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2006 Supreme(Guj) 523
Gujarat High Court
Judgename :H.K.RATHOD
DISTRICT PANCHAYAT - Appellant
Versus
BABUBHAI LAKHABHAI CHUDASMA - Respondent
Special Civil Application 17621 Of 2006
Decided On : 08/24/2006
Headnote:Point in Issue :
Whether Industrial Tribunal can direct implementation of Government Resolution dated 17.10.1988 in absence of terms of reference to it in that regard.
Head Note :
Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sections 2(j), 10 & 10(4) - Award - Directing to implement Government Resolution - Propriety of - Jurisdiction - Finding as to - Contention that Industrial Tribunal has no jurisdiction to grant the benefit under Government Resolution dated 17.10.1988 because there is no terms of reference which were referred for adjudication has no substance and cannot be accepted it is true that Industrial Tribunal having jurisdiction to adjudicate the order of reference does not extend beyond the terms thereof - However, in the facts of the demand of permanency after completion of 240 days reference made to Industrial Tribunal can certainly be answered in light of said Government Resolution dated 17.10.1988, where in after completion of 10 years the daily wager becomes permanent - Such consideration cannot be held out side the scope of order of reference - Petitioner has not raised any contention before Industrial Tribunal that Government Resolution dated 17.10.1988 was not applicable and not binding to petitioner District Panchayat - Industrial Tribunal, therefore, committed no error requiring interference by Court in its limited jurisdiction under Article 227 of Constitution.
Held :
It is true that Labour Court/Industrial Tribunal having jurisdiction to adjudicate the order of reference and does not extend beyond the terms thereof. Looking to the facts of the present case, demand of permanency after completion of 240 days continuous service with difference of salary was a reference made to Industrial Tribunal. But, the Industrial Tribunal has considered the demand of permanency in light of the Government Resolution dated 17.10.1988 wherein after completion of 10 years, the daily wager becomes permanent. Therefore, considering the Government Resolution dated 17.10.1988 it is not outside the scope of order of reference. However, the petitioner has not raised any contention before the Industrial Tribunal that Government Resolution dated 17.10.1988 was not applicable and not binding to the petitioner District Panchayat.
The submission which is not made before the Industrial Tribunal raising the question that Industrial Tribunal cannot examine the applicability of Government Resolution dated 17.10.1988 and then to raise, for the first time, plea before this Court, naturally, same cannot be entertained.
The Industrial Tribunal has rightly dealt with comprehensively to the dispute which has been examined by Industrial Tribunal, Rajkot. For that, Industrial Tribunal has not committed any error which requires any interference by this Court while exercising the powers under Article 227 of the Constitution of India. This Court cannot re-appreciate the evidence which has been appreciated by the Industrial Tribunal. In case when two views are possible, even though interference by this Court is unwarranted under Article 227 of the Constitution of India. [Para 8]
Law Laid Down :
In case when two views are possible even then interference by this Court under Article 227 of the Constitution is unwarranted.
Cases Law Analysis :
Indian Bank Association vs. Workmen of Syndicate Bank & Ors., 1998 (I) LLJ 223 [Para 7];; Co-operative Central Bank Limited vs. Additional Industrial Tribunal, A.P., AIR 1980 SC 245 [Para 7];; Indian Overseas Bank vs. I.O.B. Staff Canteen Workers Union & Anr., AIR 2000 SC 1508 [Para 8].-Relied on
State Bank of Bikaner vs. Om Prakash Sharma, 2006 SCC (L & S) 930. [Para 3].-Distinguished
Conclusion :
Consideration of Government Resolution dated 17.10.1988 amounts to considering the question of permanency which is involved in the terms of reference to Industrial Tribunal - Therefore, Industrial Tribunal has not committed any error while directing the petitioner to implement the Government Resolution.
Cases Referred :
Bangalore Water Supply and Sewerage Board vs. A. Rajappa, AIR 1978 SC 548;; Babulal Nagar and Ors. vs. Shree Synthetics Ltd. & Ors., AIR 1984 SC 1164.
Decided in Favour of :
Respondent
Petition Dismissed
( 1 ) HEARD the learned Advocate, mr. P. V. Hathi, appearing on behalf of petitioner.
( 2 ) IN the present petition, the petitioner has challenged the award passed by industrial Tribunal, Rajkot in Reference no. 83 of 1995 dated 18. 1. 2006, whereby the Industrial Tribunal has directed to the petitioner to implement the Government resolution dated 17. 10. 1988 w. e. f. 1. 10. 1988 unless and until the service of respondent workman will regularize after obtaining the permissions from the State government.
( 3 ) LEARNED Advocate, Mr. Hathi, submitted that terms of reference is to make permanent Shri Babubhai Lakhabhai chudasma, Shri Devraj Puna Vaja and shri Kachara Sidi Alam after completion of 240 days in service and also to grant all the benefits which are available to permanent 2 employee with arrears. He also submitted that Industrial Tribunal has no jurisdiction to grant the benefit under Government resolution dated 17. 10. 1988 because there is no terms of reference which referred for adjudication. He also submitted that industrial Tribunal has jurisdiction only to examine or adjudicate the dispute which has been referred for it. Except that, the industrial Tribunal has no jurisdiction to adjudicate another issue which is not referred for adjudication. He relied upon the decision of Apex Court in case of State bank of Bikaner v. Om Prakash Sharma, 20. 06 SCC (Lands) 930. He further submitted that this Government Resolution has been taken in account without giving opportunity to the petitioner and, therefore, the award is bad. Except that, no other submission is made by learned Advocate, mr. Hathi and no other decision has been relied by him.
( 4 ) I have considered the submissions made by learned Advocate, Mr. Hathi and have also perused the award passed by industrial Tribunal. The dispute has been referred for adjudication by appropriate government on 14. 7. 1995. The dispute is in respect to three workmen to make them permanent and to grant benefit of permanency after completion of 240 days continuous service. The statement of claim was filed by Union vide Exh. 2 and submitted that these three workmen are working for more than 10 to 12 years as a labourer against the vacant post with the petitioner. The petitioner has not been making them permanent and, therefore, the dispute has been raised on the principle of "equal pay for equal work" and accordingly, the prayer has been made in the statement of claim. The written statement was filed by the petitioner vide exh. 6 raising certain legal contentions that reference is bad and without jurisdiction. It was also contended in the written statement that estoppal, acquiescence and waiver, bar is also applicable in this case. The petitioner raised very important question that District Panchayat is not an industry knowing fully well that the Apex Court has taken clear view in case of Bangalore water Supply and Sewerage Board v. A. Rajappa, AIR 1978 SC 548 that District panchayat and even Corporations are "industry" within the meaning of Section 2 (j) of the I. D. Act,1947. This being a unequal fight with a body corporate being state authority against the poor workmen, those who are working in a post of labourer since more than 10 to 12 years. Therefore, it is relevant to refer the observations made by the Apex Court in case of Babulal nagar and Others v. Shree Synthetics Ltd. and others, AIR 1984 SC 1164. Following observations are made :"nothing appears more well settled than that the extraordinary jurisdiction under Art. 226 conferred on the High Court was a weapon forged to overreach injustice and secure and advance justice. When, therefore, this extraordinary power is used to defeat justice and to promote technicality not only its raison d etre is violated but it becomes a handy instrument for those to whom litigation cost is a luxury enjoyed at the cost of others and employed to exhaust and harass an unequal opponent. Sad as it may appear that unfortunate s
