AIRWORKS ENG.PVT.LTD. Vs. MHH GENERAL KAMGAR

JUDGEMENT

(1.) THE Petitioner is engaged in providing Aircraft and Helicopter Maintenance Services to airline companies in the private and public sectors and operates chartered air transport services under the approval of the Director General of Civil Aviation of the Government of India. On 20th December 1997, a Charter of Demands was raised on behalf of the workmen of the Petitioner by the Bharatiya Kamgar Karmachari Mahasangh (BKKM). Conciliation proceedings were held before the Assistant Labour Commissioner. Upon those proceedings ending in failure, the industrial dispute was referred to the Industrial Tribunal for adjudication in a reference under Section 10 of the Industrial Disputes Act, 1947. The reference was in regard to the Charter of Demands which pertained inter alia to the classification, gradation, basic wage scales, dearness allowance, city travelling allowance and 14 other demands. During the pendency of the reference, the Union which prosecuted the proceedings filed a purshis, Exh.U -5 stating that it had lost its membership in the establishment of the employer, and that the reference be disposed of as "not pressed". By an order dated 12th September 2001, the Industrial Tribunal accordingly d>sposed of the reference as "not pressed. On 11th October 2002, the First Respondent moved an application, Restoration Application (IT) No.2 of 2002, seeking a restoration of the proceedings, purportedly under Rule 26(2) of the Industrial Disputes Bomba/ Rules, 1957. The Petitioner resisted the application for restoration. The Industrial Tribunal by its order dated 16th August 2003 restored the reference. That order has been challenged in these proceedings under Article 226 of the Constitution.

(2.) IN support of the application for restoration. the First Respondent pleaded that after a reference for adjudication was made to the Industrial Tribunal, the workmen were assured by the earlier Union that their cause was being duly and properly pursued. However, though two years elapsed, no further steps had been taken and the workmen once again approached the Union. When the workmen realised that the earlier Union was not acting in their interest and having lost their faith in the earlier Union, the workers joined the applicant Union. Enquiries were thereafter caused to be made upon which it was revealed that the earlier Union had filed a purshis that led to the disposal of the reference on 12th September 2001. The First Respondent stated that it gathered this information in July 2002. A certified copy of the order of the Industrial Tribunal was received on 4th October 2002. Thereafter immediately an application for restoration was filed on 11th October 2002. The First Respondent pleaded that the reference is between the employer and its workmen. The Union was concerned with the reference in a representative capacity. The reference was disposed of on account of the default on the part of the earlier Union in espousing the cause of its workmen who had all along believed that their cause was being looked after and handled by the Union. In these circumstances, the First Respondent moved an application for the restoration of the reference. The application was allowed by the Industrial Tribunal which was of the view that the restoration of the reference was in the interests of justice. The Industrial Tribunal held that an award must involve a determination of an industrial dispute or a question relating thereto. No such determination had taken place at all. A determination can arise when there is an adjudication of a dispute on merits. There was no occasion for the Tribunal to do so and hence, the earlier order did not amount to an award as contemplated by law. In these circumstances, the reference was restored.

(3.) IN Cox and Kings (Agents) Limited v. Their Workmen, 1977 I LLJ 471 the Labour Court had in its order dated 27th September 1972 held that no industrial dispute existed which was a sine qua non for the validity of a reference and the exercise of further jurisdiction by the Court. The Supreme Court held that an order of that nature did not amount to an award inasmuch as there was no determination of an industrial dispute on merits. The Supreme Court held thus: "The definition of "award" in S.2(b) falls in two parts. The first part covers a determination, final or interim, of any industrial dispute. The second part takes in a determination of any question relating to an industrial dispute. But the basic postulate common to both the parts of the definition, is the existence of an industrial dispute, ac - tual or apprehended. The "determination" contemplated by the definition is of the industrial dispute or a question relating thereto, on merits." In the case before the Supreme Court it was held that the order of the Labour Court did not meet the test of an award under clause (b) of Section 2 since, before it could be held to be an award, a determination must be (i) an adjudication of a question or point relating to an industrial dispute which has been specified in the order of the reference or is incidental thereto; and (ii) such an adjudication must be one on merits. The Supreme Court held in Workmen, Williamson Magor & Co. v. Williamson Magor & Co. 1982 LIC 33, that Industrial Tribunals are intended to adjudicate industrial disputes between the management and the workmen, settle them and pass effective awards in such a way that industrial peace between employers and employees may be maintained. Section 11(1) empowers the Labour Courts and the Industrial Tribunals to follow such procedure as they may think fit. Consistent with the provisions of Section 11 the Industrial Tribunals should not be constrained by formal rules or procedure and must so direct themselves as would advance the cause of an effective and complete resolution of the disputes which are raised before them for adjudication.