Point of Law- Termination of service - Reinstatement - while contesting the reference it is open to a party to raise pleadings that what was referred for adjudication was not an industrial dispute at all.

JUDGMENT :

A.S. Chandurkar, J.

This Letters Patent Appeal takes exception to the judgment of learned Single Judge in Writ Petition No.247/2005 dated 18/10/2008. By the said judgment the award passed by the Central Government Industrial Tribunal, Nagpur (hereinafter referred to as the Tribunal) on 05/02/2002 in favour of the appellant has been set aside and the proceedings have been remanded for re-consideration to the said Tribunal.

2. The facts relevant for adjudication of the present appeal are that it is the case of the respondent No.1-Union that one Shri K.D. Kanholkar was working as Driver-cum-Sepoy with the appellant-Bank at its regional office from 22/09/1990. The said regional office at Kamptee was abolished on 31/05/1993. Thereafter he was not transferred to any other place and instead his services came to be terminated on 31/05/1993 without any notice. According to him he was in employment with the Bank as Driver and hence he sought reinstatement along with back-wages. The Central Government under provisions of Section 10(2A) of the Industrial Disputes Act, 1947 (hereinafter referred to as Act of 1947) referred the dispute to the Tribunal at Nagpur. The said employee through the registered Trade Union filed the statement of claim and the same was opposed by the Bank by filing its written statement. The parties filed their affidavits and after examination of the concerned witnesses, the Tribunal by its award dated 05/02/2002 recorded a finding that there was no appointment order issued by the Bank to Shri K.D. Kanholkar. In absence of any evidence in that regard it was held that he was not in employment with the Bank. No termination order was issued to him on 31/05/1993 and hence in absence of any evidence as to his engagement as Driver-cum-Sepoy, no relief could be granted to him. The reference was accordingly answered.

The Union challenged the aforesaid award in Writ Petition No.247/2005. The learned Single Judge found that it was not permissible for the Tribunal to go into the question as to whether the relationship of employer-employee existed between the Bank and Shri K.D. Kanholkar. Since it was found that the documentary material on record had not been duly considered by the Tribunal, the award passed by it was set aside. The proceedings were remanded for re-consideration of the entire material on record and to decide the reference afresh. It is this order that is the subject matter of challenge in the present appeal.

3. Shri A. T. Purohit, learned counsel for the Bank submitted that the learned Single Judge committed an error in holding that it was not permissible for the Tribunal to go into the question as to existence of relationship of employer-employee between the parties. The terms of reference indicated that the Tribunal had to go into the question as to whether the action of the Management of the Bank in terminating the services of Shri K.D. Kanholkar was justified or not. The aspect as to relationship of employer-employee between the parties was incidental to the dispute that was referred for adjudication. It could not be said that the Tribunal by adjudicating the aspect of relationship between the parties had travelled beyond the terms of the reference. It was then submitted that heavy burden was on the employee to prove that he was infact engaged with the Bank as Driver-cum-Sepoy. Inviting attention to the averments in paragraph 9 of the reply filed by the Bank before the Tribunal it was submitted that such relationship had been specifically denied by the Bank and that was more the reason for the Tribunal to go into said aspect. In absence of there being any evidence whatsoever to indicate engagement of Shri K.D. Kanholkar as Driver-cum-Sepoy there was no reason whatsoever to remand the proceedings to decide the reference afresh. The order passed by the Tribunal in the facts of the case was legal and correct and the same did not warrant any interference. In support of his submission that it was permissibl