1994 Supreme(Bom) 654

IN THE HIGH COURT OF BOMBAY
B.N. Srikrishna, J.
Peico Employees Union.... Petitioner.
Versus
Peico Electronics Electrical Ltd. and others.... Respondents.
Writ Petition No. 5068 of 1993, decided on 2-12-1994.
Advocates appeared :
C.U. Singh with K.P.V. Menon, for the petitioner.
K.K. Singhvi with L.M. Nerlekar, for respondent No. 1.
Mgr. Colin Gonsalves, for respondent No. 2.

Headnote:Articles 226 and 227-Industrial Disputes Act, 1947-Section 10.

       Scope of writ jurisdiction where award made beyond jurisdiction, High Court informed to interfere within writ jurisdiction.

       Sections 9-A & 33 (1) (a)--Settlement service conditions by award-Alteratioa in only to be made by contract, settlement and/or by award under Section 10-In favour of employer no extra or new rights created by provisions of Section 9-A and 33.

       Section 10.

       See Constitution of India, Articles 226 and 227].

       Section 10 (4)-Scope.

       It is pointed out that the Division Bench of the Patna High Court bas taken the view that it is a well known proportion of law, so far as disputes pending in Civil Courts are concerned, that a compromise even beyond the scope of the dispute can be recorded by a Civil Court, and that it an agreement was arrived at between the Union and the Management, there was no reason to hold that the Tribunal cannot adopt that agreement as an A ward, merely because the agreement had taken within its ambit certain matters which were not strictly covered by the terms of the reference with great respect. The Bombay High Court is unable to accept the line of reasoning in the said judgment. The Patna High Court appears to have wholly relied on the fact that in a Civil Court the compromise could be recorded even beyond the scope of the dispute in the suit, and not considered a situation where there could be served Unions on the scene. The Patna High Court observes:

       "But in regard to the matter of adopting a compromise as a part of the award, after due consideration, I have come to the conclusion, that the Tribunals power is almost at par with that of the Civil Court except in one regard. The matters which are to be considered for recording a compromise in a Civil Court are engrafted in Order XXIII, Rule 3 of the Code of Civil Procedure, which may not include the matter of reasonableness, fairness or its being beneficial to a particular party except when minors are involved. While the Tribunal does not record a compromise as such but adopts it as a part of its award after finding it reasonable, just, fair or in the interest of the workmen, the distinction is appreciable. And, yet I do not feel persuaded to accept the argument put forward on behalf of the petitioners that while adopting the agreement as a part of the award, the Tribunal must confine itself to the point referred or the matters incidental thereto. It may well be that the award on pure and simple adjudication could not travel beyond the scope of the reference. But if an agreement is arrived at between a Union and a Management, I see no reason to hold that the Tribunal cannot adopt that agreement as an award merely because the agreement has taken within its ambitsertain matters which are not strictly covered by the terms of reference."

       It does not appear that the Patna High Court was considering a multi-union situation. It also does not appear from the judgment that that the attention of their Lordships was drawn to the fact that, while a compromise would operate against and bind the parties to the suit, by virtue of Section 18 (3) of the Act, an Award would bind all the workmen in the Industrial establishment irrespective of whether they was party to the agreement and whether they were before the Tribunal or not in the face of the provisions of Section 10 (4) of the Act, as interpreted by the different judgments of the Supreme Court to which a reference has already been made. The Bombay High Court is unable to persuade him-self to share the view taken by the Division Bench of the Patna High Court in Deokinandans case, (1972) 25 FLR 206. Held that the only point of dispute referred to for adjudication to the Tribunal was the one contained in Demand No. 7 namely,

       Demand No. 7: Working Hours:

       Reduction in working hours of all the workmen of the factory/office from 44 hours per week to 40 hours per week with five days Teek.

       It was open to the Tribunal to adjudicate this demand and hold either that there was justification for the demand in which case it could have directed reduction of the working hours from 48 hours per week to 44 or such other hours per week as found reasonable. If the Tribunal did not consider the demand as justified, then the only option available to it was to reject the demand. In my view, considering the point of dispute as framed vide Demand No. 7, it would be fallacious to say that the demand to increase the working hours from 44 to 48 hours per week is incidental to it, within the meaning of sub-section (4) of Section 10 of the Act. The word incidental is defined in the Oxford English Dictionary (1978 Edition) as under:

       " 1. Occuring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part casual.

       Off a charge or expense: Such as is incurred (in the execution of some plan or purpose) apart from the primary disbursements.

       2. Incidental to: Liable to happen to: to which a thing is liable or exposed. Incidental upon following upon as an incidental.

       Given to relating casual incidents, nonce-use.

       An incidental circumstances, event, charge expense etc."

       Something is incidental to another, if it occurs or is liable to occure in fortuitous or subordinate conjuction with that other entity, of which it forms an essential part and goes hand in hand with it as an integral part. It can neither be internecine, noro over-ride the other ehtity in the present case, the demand for increasing working hours from 44 hours per week to 48 hours per week was clearly inconsistant with and distructive of the original demand itself and, therefore, I am unable in construe it as being incidental to the main demand which was the point of dispute referred for adjudication to the industrial Tribunal in the pending reference.

       It is not possible for the High Court to accept the contention streneously argued that the demand for increasing the working hours from 44 hours per week to 48 hours per week was incidental to the point of dispute referred for adjudication and, therefore, within the jurisdiction of the Tribunal.

       Once was reach the conclusion that the issue of increasing the working hours was not referred to the Tribunal in the points of dispute, no was incidental to any of the points of dispute referred for adjudication, the law on the subject is clear and it must be held that any A ward made on such an issue is without jurisdiction.

       The High Court held of the view that whatever the manner in which the issue was brought to the forefront, the Tribunal. on the terms of reference pending before it, had no jurisdiction to make an A ward directing the increase of the working hours from 44 hours per week to 45 hours per week The jurisdictional contention of the petitioner union is required to be upheld.