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Engineering Kamgar Union v. Industrial Tribunal And Another - WRIT - C No. 16458 of 1997  RD-AH 20533 (5 December 2006)
Court no. 31
Civil Misc. Writ Petition no. 16458 of 1997
Engineering Kamgar Union vs. Industrial Tribunal (I), Allahabad & another
Hon'ble Bharati Sapru, J.
The present writ petition has been filed against an order of the Industrial Tribunal dated 30.8.1996 passed in adjudication case no. 94 of 1994.
The facts of the case are that the workmen of the petitioner Union went on an illegal strike on 23.1.1993 without due compliance of section 6 S (2) of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act).
On the next date i.e. 24.1.1993 a lock out was declared by the employer. Aggrieved, the workmen Union sought a reference. A reference was made under section 4K of the Act in terms as given below:
"KYA SEVAYOJKO DWARA DINAK 24.1.93 SE 14.10.93 TAK KE GAI TALABANDI UCHIT ATHWA VAIDHANIK HAI ? YADI HA/NAHI TO SAMBANDHIT SHRAMIK TATHA HITLAB PANE KA ADHIKARI HAI, TATHA ANYA KIS KIN VIVRAN SAHIT?
Learned Industrial Tribunal while dealing with reference has come to the conclusion that reference itself was bad in law because it was not a complete reference and it was completely silent on the issue of ''strike' whether it was ''legal' or ''illegal'.
Learned counsel for the petitioner Union Miss. Sumanti Rani Gupta has argued that question whether the strike was legal or illegal was merely an incidental question and only evidence was required to be recorded and reference as had been made could very well answered this incidental question.
On the other hand, the learned Senior Advocate appearing on behalf of the respondent Sri Ravi Kant assisted by Sri Rohit Agarwal has argued that question whether the strike was legal or illegal was not an incidental question but in fact a fundamental issue which would have to be examined by way of making a proper reference. The shape of the reference as it was, could not go into this fundamental issue because the Industrial Tribunal while deciding the issue under section 4K of the Act or while acting as Court deciding a reference under section 10 of the Act has a limited jurisdiction which is confined to the order of reference itself. Labour Court/Industrial Tribunal is not closed with powers either to travel beyond the reference or to extend the scope of reference. In the present case, admittedly the strike took place on 23.1.1993 whether it was legal or illegal would therefore become a fundamental question and once that question is decided, consequences would flow i.e. to say that whether the lock out was justified or not, would flow from that.
In the reference, the position could not have been reversed. The Industrial Tribunal while examining this issue has relied on judgments of Bombay High Court and Delhi High Court in coming to the conclusion that the reference is bad in law but has left it open to the Government to consider it again by making of a fresh reference.
Thus the Industrial Tribunal has not decided any issue against the petitioner Union but has left issue open.
Learned counsel for the respondent has also placed reliance on the decisions of Hon'ble Supreme Court in the case of Mukund Ltd., vs. Mukund Staff and Officers Association, as reported in 2004 (10) SCC 460 wherein the Hon'ble Supreme Court has held that scope of reference is limited to the reference itself and the Industrial Tribunal being creature of the reference could not adjudicate the matter not within the purview of the dispute actually referred to it by the order of reference.
Even earlier the learned Supreme Court in the case of Pottery Majdoor Panchayat vs. The Perfect Pottery Co. Ltd., as reported in 1979 (38) FLR 38, laid down that the Labour Court/Industrial Tribunal being a court of referred jurisdiction must confine itself to the reference alone and cannot travel beyond the question actually referred to it.
Taking into consideration the entire facts and circumstances of the case, I am of the opinion that the argument as made by the learned counsel for the petitioner cannot be accepted. The question whether the strike was legal or illegal cannot be said to be an ancillary matter and would necessarily have to be adjudicated as a fundamental issue, the lock out followed the strike and not vice versa and therefore the reference could not be decided by way of a reverse process. The moot dispute in the present case in fact is whether the strike was legal or illegal, all other things would be consequential.
The contentions as raised by the learned counsel for the respondent are well founded and have substance.
The writ petition is dismissed as above. The impugned order of the learned Tribunal dated 30.8.1996 is upheld. It is, however, directed that if the petitioner Union approaches the Government for seeking a fresh reference, the time spent in agitating the matter in the present writ petition will not stand in the way of the petitioner. There will be no order as to costs.
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