The court emphasized the importance of the validity of the reference under Section 10 of the Industrial Disputes Act and the interpretation of the definition of 'workman' for the purpose of industrial disputes.

( 1 ) THE petitioner, aggrieved by the award of the industrial Tribunal, has filed this writ petition. The industrial Tribunal in view of the award dated 25. 1. 90 on a reference from the appropriate Government held that the term of reference was capable of only a negative answer. It was further held that the Industrial Tribunal could not create a new term of reference and is bound to limit the adjudication to the term of reference. It was held in the award that in view of provision of Contract Labour regulation and Abolition Act, 1970, the decision of the labour Commissioner in terms of the said Act and pursuant to the authority of Supreme Court in Canon India Ltd. 1974. Labour Indian Cases 707. shall be final and in view of AIR 1972. Supreme Court 1942. reference under Section 10 of the Industrial Disputes Act, 1947 cannot be made in respect of contract labour after enforcement of Contract labour Regulation and Abolition Act, 1970.

( 2 ) UNFORTUNATELY, workmen did not challenge the award but choose to file application under Section 33-A of the Industrial Disputes Act. That application was dismissed.

( 3 ) DURING the pendency of these proceedings, i. D. No. 10/81 was filed before the award was made by the industrial Tribunal. Mr. Sabharwal counsel for the petitioner has vehemently contended that dismissal of i. D. No. 10/81 was beyond the scope of Section 33 (2) of the Industrial Disputes Act.

( 4 ) MR. SABHARWAL has contended that the dispute raised by the petitioner against the management was industrial dispute as defined under Section 2 (k) of the industrial Disputes Act 1947. Another contention of the counsel for the petitioner was that the services of the petitioner were terminated during the pendency of the proceedings in relation to the said industrial dispute which could not have been done without taking requisite approval under Section 33 (2) (b) of the Industrial disputes Act. It was further contended by Mr. Sabharwal that the expression used in Section 33 (2) (b)of the industrial Disputes Act is "during the pendency of any proceedings in respect of an Industrial Dispute". The proceedings referred to in the above expression means de facto proceedings. It does not mean that if the reference is not valid then pendency of such proceedings under an invalid reference order was not treated as covered in the above expression and in this context the object of the said provision has to be kept in view. Counsel for the petitioner in support of his contention has cited the authority of Supreme Court in Raja Kulkarni and Ors. Vs. State of Bombay, LLJ 1954 (1 ).

( 5 ) ON the basig of the aforesaid authority Mr. Sabharwal has contended that the proceedings referred to in the above expression will include a reference which is ultimately found to be incompetent but such a pendency is very much the pendency of proceedings in respect of an industrial dispute as contemplated in Section 33 of the industrial Disputes Act. In support of his contention mr. Sabharwal has cited Standard Vaccum refining Company of India Ltd. V. Their Workmen, 1960-II, LLJ 233.

( 6 ) ON the other hand, counsel for the respondent has contended that the definition of "workman" for the purpose of industrial disputes does not take into its fold workman employed through contractor. He has contended that the definition of workman as defined under section 2 (s) of the Industrial Dispute Act,1947 and the definition of workman as defined under Section 2 (I) of contract Labour (Regulation and Abolition)Act 1970 covers workman for two distinct and different purposes. Relying on the decision of Supreme Court in Steel Authority of india Ltd. and Ors. Vs. National Union Waterfront workers, 2001 (7) JT 268, it has been contended that until and unless the employment of workman through a contractor is a camouflage only in that case there shall be a relationship of master and servant between the principal employer end the workman for the purposes of Industrial dis