SONI AND SONS Vs. INDUSTRIAL TRIBUNAL, J&K

JUDGEMENT

(1.) THIS is a letters paten appeal against the judgment of a Single Judge of this Court in writ petition No 203 of 1971 The learned Judge has dismissed the petition and has held that the reference made by the Government under the Industrial Disputes Act of 2006 to the Industrial Tribunal was competent and consequently the award made by the Tribunal was valid and further that the Tribunal did not exceed its jurisdiction by going beyond the scope of terms of reference.

(2.) BRIEFLY speaking the facts that have given rise to this appeal are as follow: - The appellant is a firm carrying on business of selling liquor at Jammu in the name of M/S Soni and Sons. The respondent No 3 Shri Banarasi Lal Jandial was in the employment of the petitioner as Sales man -cum Accounts clerk. He was drawing a salary of Rs.175.00 per month. He made a complaint to the Deputy Labour Commissioner who was also Conciliation Officer under the Industrial Disputes Act alleging that his service were terminated by the appellant on August 26, 1968 in violation of Section 25 (C) of the Jammu and Kashmir Industrial Disputes Act of 2006 and that he has not been paid compensation. Alongwith this complaint a letter from the Secretary Trade Employees Association respondent No 2 was also received by the Conciliation Officer. A notice dated 21.11.1969 was issued by the Conciliation Officer to the appellant to appear on 27th of January 1969 in his office. The stand of the appellant firm before the Conciliation Officer was that the services of the respondent No. 3 had never been terminated and that he was absent from duty from 26th of August 1968 and therefore there was no question of paying any compensation to the Ex -employee. The Conciliation Officer did not succeed in bringing about the conciliation between the parties and therefore he submitted his failure report to the Government under Section 12 (4) of the Industrial Disputes Act. On receipt of the failure report of the Conciliation Officer the Government in exercise of powers u/s 10 sub -sections 1 (d) of the Industrial Disputes Act referred the dispute to Respondent No. 1, the tribunal for adjudication vide SRO -29 dated 22 -1 -1970. It is pertinent to mention here that the terms of reference made to the Tribunal were as follows: - (i) Claim of Shri Banarasi Lal employee for grant of compensation etc. due to him on the termination of his services by the employer; (ii) the legality or otherwise of the action of the management in disallowing the above mentioned claim of the employee ; and (iii) award appropriate relief to the employee in case illegality of the managements action is established. The Tribunal after holding on enquiry into the matter made an award on April 29, 1971 to the effect that the respondent No. 3 should be reinstated and should also be given back wages from 25 -8 -1968 to the time he assumes charge as a salesman in the firm. He was also found entitled to three months wages in lieu of his unveiled of leave. The Tribunal, however, observed that as the respondent No. 3 had served the Bombay Dying for three months on the pay of Rs. 150.00 per month therefore the amount of Rs. 450.00 should be deducted from the back wages allowed, to him. Against the award made by the Tribunal the appellant went up in writ. Before this court. He inter alia contended that the reference to the Tribunal was incompetent as there was no Industrial dispute within the meaning of the Act and that the Tribunal had acted beyond its jurisdiction by enlarging the scope of the reference and by giving relief of reinstatement because no such relief initially had been asked for and that the question of reinstatement and payment of back wages did not constitute one of the terms of the reference made by the Government to the Tribunal. The leaned Single Judge Shed - Wasi -ud -Din J. by his order dated 27th of March1973 dismissed the writ petition and held that the reference was competent as an Industrial Dispute did exist between the parties, and that a demand for meeting his claims had been made on the management by the respondent No. 3. He also held that the Tribunal had not gone beyond the scope of the terms of reference and that while affording relief to the respondent No 3 it could also make a direction for his reinstatement and also for payment of back wages.

(3.) APPEARING for the appellant Mr. I. K. Kotwal has vigorously contended that there was no industrial dispute within the meaning of Section 2 (J) of the Jammu and Kashmir Industrial Disputes Act of 2006. In order to constitute an Industrial Dispute it is necessary that there should a demand made on the management, which must be in writing and must be specific, and there should be a refusal by the management to accede to this demand. Moreover, the demand raised must be not by an individual but in a collective for. As no demand was made by the Respondent No 3 on the management, nor was such a demand sponsored by the Union therefore there was no dispute and consequently the reference was incompetent. It is also submitted that the terms of reference were clear and specific and the Industrial Tribunal respondent No 1 could not travel beyond the terms of reference and could not award a relief to the respondent, which was not warranted by the terms of reference. The action of the Tribunal in making an order of reinstatement of respondent No. 3 and also in awarding him the back wages was without jurisdiction. There was nothing to show that the services of the respondent No. 3 were terminated by the appellant or that he had been retrenched. The record of the case clearly established that the respondent No. 3 had Voluntarily left the service of the appellant. He absented himself right from 26 -8 1968 and did not attend the firm although he was asked many a times to come back and resume his duties, even before the conciliation Officer respondent No. 3 refused to be reinstated This was quite evident from the report of the Conciliation Officer. In. these circumstances the respondent No. 3 was not entitled to claim any compensation much less the backwage since 26th of August 1968, It is also pointed out that the Tribunal had made a wrong observation of the fact that the dispute between the parties started from the date when an amount of Rs, 100,00 -was shown to have been debited to the employee respondent No. 3 in the voucher book when the same was detected by the letter on 26th of August 1968, and that this was contested by the employee, and further that this entry had been rubbed off from these spots in voucher book marked as L and M by the Tribunal, The observation, It is submitted was based, on no legal evidence and was not therefore sustainable. The contention of respondent No, 3 in this behalf was belled by the very far that in the cash book and in the ledger book no such entry of debit of Rs. 100.00 of the relevant date existed. Without that any entry in the voucher book was meaningless. On these grounds the award, if is used, is liable to be quashed. Learned counsel has relied upon A, I. R. 1968 S C. 529 and A, I - R. 1970 Delhi 60 for the proposition that there was no industrial dispute and that the reference was incompetent.