PALANISAMY R Vs. P O LABOUR COURT

JUDGEMENT

(1.) THE Order of the Court was as follows : THE above writ petition is filed seeking for the relief of issuance of a writ of certiorarified mandamus calling for the records relating to the order made in I.A. No. 30/2000 in I.D. No. 233/1999 dated March 10, 2000 made by the first respondent Labour Court and quash the same and directing the respondents to implead the petitioners as respondent in I.D. No. 233 of 1999 on the file of the Labour Court, Salem. THE case of the petitioners, who are seven in number is that they are working as Marketing Assistants in the 3rd respondent Society having been appointed as packers Grade II during the year 1991 and that subsequently they were promoted as Marketing Assistants with effect from September 9, 1997 under the proceedings in Na. Ka. No. 126/97 Pa. Tho (7) by the Managing Director of the 3rd respondent. According to the petitioners, 9 employees of the 3rd respondent Society who are not qualified or ineligible to be promoted questioned the promotion of the petitioners from the post of Packers Grade II to Marketing Assistants by filing a suit in O.S. No. 422 of 1997 on the file of the District Munsif Court, Tiruchengode. THE said suit is still pending. Pending the suit before the Civil Court, the said employees raised an industrial dispute through their Union represented by the General Secretary, the second respondent herein before the Labour Officer, Erode District. THE petitioner approached the Labour Officer seeking an opportunity to explain their case for sustaining the promotion granted in their favour. THE Labour Officer did not respond to their request, which forced the petitioner to file a writ petition before this Court in W.P. No. 7214 of 1998 and the same is pending. THE Labour Officer on finding that the conciliation ended in failure sent his report to the Government in Na. Ka. No. 390/1998. THE Government in its turn referred the dispute to the Labour Court, Salem and the same is pending in I.D. No. 233 of 1999. In the said industrial dispute, the petitioners sought to implead themselves as a party by filing an application in I.A. No. 30 of 2000. THE Labour Court by its order dated March 10, 2000 dismissed the said application on the ground that the dispute is one referred by the State Government under Section 10(1)(c) and 10(1)(d) of the Industrial Disputes Act, 1947 and the names of the petitioners sought to be impleaded are not there and further that the Labour Court is of the opinion that it can only adjudicate upon the specified point on dispute given in the annexure to the reference order and the adjudication shall be confined only to those points. In the reference neither the names of the petitioners are found nor any point is specified concerning these petitioners for adjudication. On the abovesaid two grounds, the Labour Court dismissed the application for impleading the petitioners as parties. THE correctness of the said order is now challenged in the present writ petition on the ground that the Labour Court failed to note that in the industrial dispute the petitioner's promotion is questioned and as such their presence in the proceedings is necessary and the dispute referred by the Government is one relating to the petitioners' promotion.THE second respondent filed a counter, wherein besides denying the various averments contained in the affidavit filed in support of the writ petition contended inter alia that there is no provision in the Industrial Dispute to implead any party in a dispute to be adjudicated upon on the basis of the reference made by the Government. THE procedures and powers of Labour Court has been clearly defined under Section 11 of the Industrial Disputes Act. Under sub-section (3) of Section 11 the Labour Courts are vested with the same power as are vested in a Civil Court under the Civil Procedure Code with respect to a specified matter, namely enforcing the attendance of any person and examining him on oath; compelling the production of documents and material objects; issuing commissions for the examination of witnesses; in respect of such other matters as may be prescribed. Rule 24 of the Central Rules, 1957 also confers powers on the Labour Courts which are vested in the Civil Court under the Civil Procedure Code in respect of discovery and inspection, granting adjournment; reception of evidence taken on affidavit and further empowers the Labour Court to summon and examine any person whose evidence appears to be material. This specific provision clearly excludes the other provisions of the Civil Procedure Code. THE Labour Court cannot adjudicate upon the issue which are not connected or extraneous to the order of reference. Thus contending the second respondent prays for the dismissal of the above writ petition. Mr. Ramesh, learned counsel for the petitioner has contended that the order of the Labour Court rejecting the request of the petitioners to implead themselves as a party in the industrial dispute is quite correct on the ground that there is no power for the Labour Court to implead any person other than those mentioned in the industrial dispute. THE trappings of the Civil Procedure Code is not applicable to Labour Court. THE Labour Court would exercise the powers of the Civil Court only in respect of the matter enumerated under Section 11 of the Act and Rule 24 of the Rules. THE Labour Court cannot enlarge the scope of the reference. In support of his arguments, the learned counsel for the respondent relied on the following decision of the Supreme Court.1. Hochtief Gammon v. Industrial Tribunal, Bhubaneshwar 1964-II-LLJ-460.

(2.) HOTEL Imperial, New Delhi v. Chief Commissioner, Delhi and others 1959-II-LLJ-553. The learned counsel seeks support to the above decisions for his contention that the Labour Court cannot implead any other person other than those referred in the reference. In Hochtief Gammon v. Industrial Tribunal Bhubaneshwar (supra) it is observed that in deciding the industrial dispute, the Tribunal should bear in mind that the Tribunal is a Tribunal of limited jurisdiction. Its jurisdiction is only to try an industrial dispute referred to it for adjudication by the appropriate Government by an order of reference passed under Section 10. It is not open to the Tribunal to travel materially beyond the terms of reference for it is well settled that the terms of reference determine the scope of its power and jurisdiction from case to case under Section 10 of the Industrial Disputes Act. But on a fair reading of the ruling, it would be evident that the Supreme Court has held that the Tribunal can consider in addition to the disputes specified in the order of reference only matters incidental to the said disputes this naturally suggests certain obvious limitations on the implied power of the Tribunal to add parties to the reference before it. While exercising its implied power under Section 18(3)(b) if it appears to the Tribunal that a party to the industrial dispute named in the order of reference does not completely or adequately represent the interest either on the side of the employer or on the side of the employee, it may direct that the other persons should be joined, who would be necessary to represent such interest. After elaborately dealing with the provisions such as Sections 2(k), 10, 11, 18 of the Industrial Disputes Act, ultimately the Apex Court held that the test always must be, is the addition of the party necessary to make the adjudication itself effective and enforceable " In other words, the test may well be, would the non-joinder of the party make the arbitration proceedings ineffective and unenforceable " It is in the light of this test that the implied power of the Tribunal to add parties must be held to be limited.In view of the decision of the Supreme Court, the impleading of a party to a proceedings before the Labour Court is not totally prohibited. If the Labour Court considers that the presence of such party is necessary for the effective adjudication and effective enforcement of the award, then according to the Supreme Court the Labour Court has implied power to add or admit a party to the industrial dispute. The Supreme Court has also held that the Tribunal can consider in addition to the disputes specified in the order of reference any matter incidental to the dispute. By the said decision, the Supreme Court has approved the decision of this Court in P. G. Brookes v. Industrial Tribunal, Madras and Others 1953-II-LLJ-1, wherein it has been held that the Labour Court can add necessary or proper party. He need not be the employer or the employee. The abovesaid decision also explains the position as to the binding nature of the award under Section 18(3)(b). In Ram Nagar Cane & Sugar Co. Ltd. v. Jatin Chakravarthy the Supreme Court has also held that the awards in order to bind the workmen it is necessary to show that the said workmen belong to the union which was a party to the dispute before the conciliator. Thus the view of the Supreme Court is that the award, in order to bind the workmen it is necessary to show that the workmen belong to the Union which was a party to the dispute before the Labour Court. From the above said decisions, it is clear that the power of the Labour Court to add or implead a party is not totally prohibited. If the Labour Court is of the opinion that the presence of the party is necessary for effective and enforceable adjudication, it can add a party. Further the Labour Court can also adjudicate upon matters, which are incidental to the order of reference.The other Supreme Court Judgment referred to by the learned counsel for the respondent in HOTEL Imperial, New Delhi v. Chief Commissioner, Delhi and Others (supra) is also to the same effect. In the present case, an industrial dispute has been raised by the Union under Section 2(k) of the Industrial Disputes Act. The statement of the case filed by the Union itself shows that the members of the Union have been overlooked and the petitioners in the writ petition have been given promotion. This claim of the Union could be gathered from the failure report submitted by the Labour Officer, which is annexed at pages 1 to 16 of the typed set of papers. It can also be gathered from the said report the reasons given by the Union for assailing the promotion granted to the petitioners. However in the reference order of the Government, which has been extracted in the counter affidavit by the second respondent, the reference is so worded as to whether the denial of promotion to the workmen of the Union is justified or not. If an award is passed by the Labour Court in affirmative in respect of the reference made to the Labour Court by the Government it would definitely alter the position or service conditions of the petitioners herein. The reference as couched by the Government does not specifically refer to the promotion given to the petitioners herein by the 3rd respondent Management but impliedly questions the correctness of the promotion given to the petitioners herein. While adjudicating upon the reference, the Labour Court has to go into the correctness or otherwise of the promotion to the petitioners, which adjudication is incidental to resolve the reference made to the Labour Court. If that be so, the necessary corollary would be the presence of the petitioners herein is essential so as to have an effective and enforceable adjudication.In view of the rulings of the Supreme Court that the Labour Court has got implied power to order impleading of necessary party and also have power to adjudicate upon the issues, which are incidental to the reference order and in view of the fact that the correctness of the promotion given to the petitioners in other words the denial of promotion to the workmen of the Union has been referred to the extent by the reference order though not by specific wording but by necessary implication, I am of the clear view that the impleading of the petitioners is necessary so as to have an effective and enforceable and binding adjudication. The filing of the suit by the members of the Union against the Petitioner would also fortify the same. Mr. Ramesh learned counsel for the respondent has alternatively contended that the promotions to the petitioners have been given by the Management, 3rd respondent herein that when the management is a party to the dispute any question as to the correctness of the promotion could very well be advanced by the management that the interest of the petitioners and the Management is one and the same in the sense the management is interested in sustaining the correctness of the order passed, by which the promotion has been given to the petitioners and the petitioners interest is also to the same effect and as such the petitioners interest could very well be safeguarded by the management in the proceedings before the Labour Court. This argument of the learned counsel cannot be accepted, because it is against the very rudiment of the industrial legislation. The order whatever be in its nature cannot be passed without hearing the persons whose interests are likely to be affected by the order. In view of the reasonings stated above, the order of the Labour Court abruptly shutting the doors to the petitioners at the threshold, when the interest of the petitioners is very much involved in the adjudication process before the Labour Court, in my opinion is unsustainable in law and has to be set aside. Accordingly the order of the Labour Court is set aside and the Labour Court is hereby directed to proceed with the adjudication after impleading the petitioners herein as a party to the same.The Writ Petition is allowed. However, there will be no orders as to costs. Consequently, the connected W.M.P. is closed.