Judgment:
Venkatachalamoorthy, J.
1. The third respondent in O. P. No. 8522 of 1988-M is the appellant herein.
2. Hindustan Machine Tools Limited, Kalamassery, the first respondent herein and the petitioner in O. P. No. 8582 of 1988 (hereinafter called 'the Company') is a Government Company incorporated under the Indian Companies Act. The Company is engaged in the manufacture of machine tools and printing press machinery at its factory at Kalamassery. For the benefit of the workman, a canteen is situated outside the factory premises, but, however, within the estate of the company. The canteen was being run on contract basis by licensees/contractors to whom it was awarded for a specific period by inviting competitive tenders in accordance with the procedure laid down by the Government of India governing the Award of contracts by the Government undertakings. During the year 1975 the Company invited tenders for running the canteen and one Sri A. C. Kunju Mohammed was the successful tenderer to whom the licence to run the canteen was granted. As per the terms of the agreement executed by the said A. C. Kunju Mohammed, he had to employ his own workmen for running the canteen, paying their wages, benefits etc.
3. The appellant herein would claim that he was employed as a cook in the canteen run by the 4th respondent as a licensee from the company with effect from June 20, 1969, The grievance of the appellant is that he was denied employment with effect from February 23, 1975. In this regard, he gave a complaint to the Labour officer on June 11, 1975. An industrial dispute was raised before the Conciliation Officer. But, however, no settlement was reached in the conciliation proceedings and the Conciliation Officer sent his failure report to the Government. Thereafter, the industrial dispute raised by the appellant against the said A. C. Kunju Mohammed for denial of employment was referred for adjudication to the Industrial Tribunal, Calicut which was having the jurisdiction over the matter at that time. The Government Order passed in this regard by the Labour (A) Department of Government of Kerala, namely, G.O. (Rt.) No. 475/ 767 LBR dated March 30, 1976 reads thus :
'Whereas, the Government are of opinion that an industrial dispute exists between Sri A. C. Kunju Mohammed, H. M. T. Canteen Contractor, Kalamassery, Alwaye-4 and the workman of the above establishment represented by Shri K. Krishna Panicker, Thyveedu, Arookutty. P.O. Via. Shertallai ............ in respect of matters mentioned in the annexure to this order.
And, whereas, in the opinion of Government it is necessary to refer the said industrial dispute for adjudication.
Now, therefore, in exercise of the powers conferred by Section 10(1)(d)(c) of the Industrial Disputes Act of 1947 (Central Act XIV of 1947) the Government hereby direct that the said industrial dispute be referred for adjudication to the Industrial Tribunal/Labour Court, Calicut............'
4. When the matter was taken up before the Industrial Tribunal, the appellant filed his claim statement before the said Tribunal specifically stating that he was employed by the contractor who was running the canteen on the basis of an agreement with the company and the succeeding contractor denied him employment. There was no claim or demand that the appellant was the Company employee or the company denied him employment. While the proceedings were pending before the said Industrial Tribunal, the appellant herein filed a petition before the Industrial Tribunal to implead the company as an additional party to the dispute. This was opposed by the company. However, the Industrial Tribunal, purporting to exercise the powers under Section 18(3)(b) of the Industrial Disputes Act, impleaded the company as a party. An Award was passed by the then Industrial Tribunal directing the company to reinstate the appellant and to pay all his backwages.
5. This Award came to be challenged by the Company before this Court in O.P. No. 3473 of 1979 and the impugned Award was quashed by this Court in its judgment dated January 14, 1982 by a learned single Judge. In paragraph 4 of the said judgment, the learned single Judge found that the Company was at no stage prior to the order made by the Tribunal under Section 18(3)(b), in the picture, and that the company did not figure before the Conciliation Authority. The Court observed that it was not thought of by the Government that the company had anything to do with the dispute and the dispute referred by the Government did not touch the company. The learned single Judge further held that the Company, even if rightly summoned under Section 18(3)(b), could not be treated as a substantive party and could not be made liable for any substantive relief. The learned single Judge went further and observed that even assuming that the presence of the company was necessary for proper disposal of the matter before the Tribunal and for making the award effective, the company had no liability in respect of any substantive relief which the Tribunal could grant the employee and in those circumstances the learned single Judge reached the conclusion that the Tribunal was not justified in making the award against the company, particularly when no relief was granted against the contractor. After so holding, the learned single Judge observed, in the final paragraph of the judgment, that whether there is in fact any nexus between the company and the appellant and whether any such dispute, namely, relationship of the appellant with the company, would be justified is a point on which the learned single Judge would not express any view at all. The learned single Judge quashed the impugned award dated April 16, 1979 and allowed the Original Petition.
6. Aggrieved by the said judgment dated January 14, 1982 in O. P. No. 3473 of 1979, the appellant herein filed an appeal before this Court (W. A. No. 342 of 1982). A Division Bench of this Court, by judgment dated November 7, 1986, affirmed the decision of the learned single Judge in quashing the award made against the company and holding that the impleading of the company as a party to the proceedings is illegal. But, however, the Division Bench remitted the case back to the Industrial Tribunal, Alleppey (the Tribunal having jurisdiction as on that date) to deal with the dispute between the appellant and Sri. A. C. Kunju Mohammed. Before passing such a judgment, the Division Bench of this Court pointed out that the question pressed into service by the appellant is as to who is answerable whether the company or Sri A.C. Kunju Mohammed and the same cannot be regarded as an incidental one. It has been further pointed out that in order to invoke the provisions of Section 18(3)(b) and to implead the company and to enable the Tribunal to make an award so as to bind the company and the dispute is one between the appellant on the one hand and Sri. A.C. Kunju Mohammed on the other. The Division Bench held that the Tribunal had nojurisdiction to adjudicate upon the question as to whether the company is liable for the denial of employment to the appellant and to make an award against the company.
7. The appellant thereafter sent a petition to the State Government dated November 20, 1986. In the said petition, after referring to his stand in the earlier proceedings culminated up to the order in Writ Appeal No. 342 of 1982, stated that without any valid reason the company is not added as a party to the dispute in the reference order and the company is an essential and necessary party to the reference and without the company no effective or enforceable award can be passed in the matter. The appellant also contended that the company practiced fraud upon the Labour Officer and as on that date the canteen is being run as a co-operative society by name Hindustan Machine Tools Employees Cooperative Canteen Society Limited and all the employees in the canteen were employed by the new society. On these averments, the appellant made a prayer that the Government may be pleased to amend the reference order No. G.O. (Rt) 475/76-LBR dated March 30, 1976 by adding Hindustan Machine Tools Limited, Kalamassery and H.M.T. Employees Co-operative Canteen Society Ltd., Kalamassery as parties to the dispute. As no orders were passed on the said petition dated November 20, 1986 filed by the appellant, according to the appellant, he was constrained to file O. P. No. 1015 of 1988 before this Court. In and by an order dated February 8, 1988 in the said Original Petition, this Court directed the Government to consider and dispose of the representation as expeditiously as possible.
8. The State Government thereafter passed G.O.(Rt.) No. 1486/8/LBR dated August 16, 1988 stating that the Government have considered the request and have decided to implead H.M.T. Kalamassery also as party representing employers to the industrial dispute pending before the Industrial Tribunal, Alleppey. Aggrieved by this Government Order, the company filed O.P. No. 8522 of 1988-M before this Court praying to quash the said order, namely Order dated August 16, 1988 and to restrain the Industrial Tribunal, Alleppey from taking any further proceedings pursuant to the said order against the company by issuing a writ of mandamus or direction.
9. O. P. No. 8522 of 1988 came to be disposed of by this Court on October 13, 1993. A learned single Judge of this Court allowed the O. P. quashing the Government Order, namely, G. O. (Rt) No. 1486/88/LBR dated August 16, 1988. The learned single judge pointed out that in W. A. No. 342 of 1982 this Court found that the dispute referred and pending before the Industrial Tribunal was denial of employment to the worker (i.e.) the appellant herein, by the Contractor and in the nature of reference the Tribunal had no jurisdiction to adjudicate upon the question as to whether the Company was liable for denial of employment to the worker and to make an award against the Company. The learned single Judge also pointed out that a Division Bench of this Court has observed earlier in Writ Appeal No. 342/82 that what is sought to be done is to pass the liability to the company on the ground that it is the company that is answerable to the claim of the appellant regarding denial of employment or in other words, the question pressed into service by the appellant is as to who is answerable, the company or Sri A. C. Kunju Mohammed and such a question cannot be regarded as an incidental one in order to invoke the provisions of Section 18(3)(b) and to implead the company and to enable the Tribunal to make an award so as to bind the company.
10. Aggrieved by the said judgment of the learned single Judge, dated October 13, 1993, in O. P. No. 8522 of 1998-M, the appellant has filed the above writ appeal (W. A. No. 300 of 1994). The said writ appeal came up for hearing before the first Bench. After pointing out that the issue referred for adjudication in the original reference was '(1) Non-employment of Shri K. Krishna Panicker; (2) His wages for the period of unemployment, 'and that factually it may not be the same as in Hochtief Gammon v. Industrial Tribunal, Bhubaneshwar, (1964-II-LLJ-460) (SC) as in the array of parties, names of the contractor and the workmen were only included and in the absence of any finding that the Government has no power to implead the parties and also further taking note of the fact that mere wording of the reference is not decisive in the matter of tenability of a reference, and that even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the materials before it, the Tribunal has a duty to decide the points on merit and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again, the Division Bench felt that the issue referred for adjudication does not say who is the real employer and when two parties are named as employers in the array of parties whether the Tribunal can consider the matter who is the real employer or against whom relief can be granted as an incidental matter to the issue referred for adjudication without amending the reference what type of matters can be adjudicated by the Tribunal as incidental matter, whether the Government has got power to amend the reference even if such amendment may cause prejudice to one of the parties to the reference after adjudication, etc., are questions for which authoritative decision is needed and in that view of the matter the Division Bench thought it fit to be decided by a Full Bench.
11. The above matter has thus been placed before us for hearing and disposal.
12. Heard the learned counsel for the respective parties.
13. The appellant claims that he was employed as a cook in the industrial canteen of the company run by Shri A. C. Kunju Mohammed with effect from June 20, 1969 and that he was denied employment with effect from February 23, 1975 and so he made a complaint to the Labour Officer on June 11, 1975. As the company took stand that the appellant is not their employee and that therefore they are not concerned with the complaint of the appellant regarding denial of employment, no further notice was given to the company by the Conciliation Officer. When the conciliation failed, the dispute was referred by the State Government under Section 10 of the Industrial Disputes Act to the Industrial Tribunal, Calicut, on March 30, 1976. The Government of Kerala, in exercise of the powers conferred under Section 10(1)(d)(c) of the Industrial Disputes Act, 1947,directed that the industrial dispute be referred for adjudication to the Industrial Tribunal, Calicut. The earlier part of the said order reads that the Government are of the opinion that an industrial dispute exists between Sri A. C. Kunju Mohammed, H.M.T. Canteen Contractor, Kalamassery, Alwaye-4 and the workman of the above establishment represented by Shri K. Krishna Panickar, Thyveedu, Arookutty. P. O., Via. Shertallai.
14. The issue for adjudication in the said reference was (1) Non-employment of Shri K. Krishna Panicker, and (2) His wages for the period of unemployment. In the course of the proceedings before the Tribunal, the appellant moved the Government for impleading the company as a party to the proceedings. In spite of the objection raised by the Company, it was impleaded as a party and the Tribunal passed an award in favour of the appellant and against the Company, directing reinstatement of the appellant in the canteen with backwages. Aggrieved by this, the Company filed a writ petition before this Court (O. P. No. 3473 of 1979). In the said Original Petition, the State of Kerala, represented by the Secretary to Government, Labour & Housing, Trivandrum figured as second respondent. As pointed out already, in the judgment in O. P. No. 3473 of 1979 dated January 14,1982, a learned single Judge of this Court pointed out thus :
'The Company was at no stage, prior to the order made by the Tribunal under Section 18(3)(b), in the picture. The company did not figure before the Conciliation Authority. It was not thought by the Government that the company had anything to do with the dispute. The dispute referred by the Government did not touch the Company. The Company, even if rightly (sic) summoned under Section 18(3)(b), could not be treated as substantive party and could not be made liable for any substantive relief. Even assuming that the presence of the company was necessary for a proper disposal of the matter before the Tribunal and for making the award effective, the company had no liability in respect of any substantive relief which the Tribunal granted (sic) the employee. In the circumstances, I am of the view that the Tribunal was not justified in making the award against the company, particularly when no relief has been granted against the contractor.'
After so observing, the learned single Judge allowed O.P. No. 3473 of 1979. Thereafter, the appellant filed an appeal before this Court (W A. No. 342 of 1982). This Court disposed of the said writ appeal by judgment dated November 7, 1986. It is relevant to extract paragraphs 3 and 4 of the said judgment which read thus :
'It is however necessary to point out that the Tribunal has not rendered its decision in regard to the dispute referred to it viz. denial of employment to the appellant by the 4th respondent. Hence we are in agreement with the contention of the learned counsel for the appellant that the award of the Industrial Tribunal having been quashed, the matter should have been remitted to the Industrial Tribunal to examine afresh the real dispute referred to the Tribunal between the appellant on the one hand and the 4th respondent on the other.
For the reasons, stated above this appeal is partly allowed, while affirming the decision of the learned single Judge in quashing the award made against the first respondent and holding that the impleading of the first respondent as a party to the proceedings is illegal, we remit the case to the Industrial Tribunal, Alleppey (which, it is agreed, is the Tribunal now having jurisdiction) to deal with the dispute between the appellant and the 4th respondent according to the order of reference, afresh and in accordance with law, expeditiously. The first respondent stands deleted from the array of the parties before the Tribunal. No costs.'
15. A perusal of the said judgment of the Division Bench would show that the State Government figured as the third respondent in the said appeal and the State was represented by the Government Pleader at the time of hearing. The Division Bench held that the decision of the learned single Judge in quashing the award is legal and proper and the impleading of the company as a party to the proceedings is illegal. The writ appeal was allowed in part, namely, for the limited purpose of directing the Industrial Tribunal to dispose of the matter according to the order of reference and according to law. It should be noted that the Division Bench gave a specific and definite direction to the Industrial Tribunal, Alleppey to deal with the dispute between the appellant and the 4th respondent. If really the appellant or the State Government was aggrieved by this judgment, he/it should have sought recourse to legal proceedings that are available in law. Not having done so whatever findings rendered and directions issued in the said writ appeal have become final and binding on all the parties, including the State Government. Only after the disposal of the said writ appeal the appellant filed a representation before the State Government, dated November 20, 1986, requesting the Government to amend the reference order, namely, G.O. (Rt) No. 475/76/LBR dated March 30, 1976 by adding the company and H.M.T. Employees Co-operative Canteen Society Limited as parties to the dispute. As the said representation was not disposed of the appellant filed O. P. No. 1015 of .1988 before this Court and this Court, by judgment dated February 8, 1988, directed the Government to consider and dispose of the representation expeditiously. It is necessary to quote the exact sentence in the said order which reads thus :
'The first respondent is therefore directed to consider and dispose of Exts. P4 and P5 as expeditiously as possible and at any rate within three months from the date of receipt of a copy of this judgment by the first respondent.'
While that being the correct factual position, the State Government passed G. O. (Rt) No. 1486/ 88/LBR dated August 16, 1988 acceding the request of the appellant and impleading the company as a party representing the employers to the industrial dispute and while so passing such an order the Government misunderstood the order of this Court in O.P No. 1015 of 1988 as if this Court directed the Government to reconsider the matter. The relevant portion from the said Government Order is extracted below :
'............In the judgment as third paper (Judgment dated February 8, 1988 in O. P. 1015/88-U), the High Court has directed to reconsider and dispose of the petitions before Government.'
16. To sum up, once this Court clearly ruled, in the presence of all the parties, including the State Government, in W. A. No. 342 of 1982, that the decision of the learned single Judge in holding that the impleading of the first respondent as a party to the proceedings is illegal, and gave a positive and clear direction to the Industrial Tribunal, Alleppey to deal with the dispute between the appellant and Shri A. C. Kunju Mohammed according to the order of reference afresh and in accordance with law, the State Government has no power or authority or jurisdiction to pass an order in terms of G.O. (Rt) No. 1486/88/LBR dated August 16, 1988 on a representation made by the appellant dated November 20, 1986, which is certainly contrary to the judgment in Writ Appeal No. 342 of 1982. As already pointed out, even assuming that the judgment in WA, No. 342 of 1982 is erroneous, unless and until the same is set aside in a manner known to law, none has the power or authority or jurisdiction to pass any order contra to that, moreso, when they were parties to the proceedings. It may also be further pointed out that the order passed by the Division Bench even if found to be contra to a subsequent ruling of the Apex Court, it is not open to the Government to consider the matter in the light of such judgment of the Supreme Court. In this view of the matter, the submission made by the learned counsel for the appellant, that in fact subsequent to the Government passing the order, namely, G. O. (Rt) No. 1486/88 LBR dated August 16, 1988 the Apex Court has ruled, at least in three cases K.S.K. Union (Regd.) v. Union of India, AIR. 1988 SC 1965 M.M.R. Khan v. Union of India,(1995-III-LLJ(Suppl)-166) (SC) and Parimal Chandra Raha v. LIC of India (1995-II-LLJ-339) (SC) that employees of canteen in an establishment managed by Committees or Employees Cooperative Societies or Contractors have to be treated as employees of the establishment from the very inception and that being the law of the land as on today there is nothing erroneous or illegal on the part of the Government in passing the said order, namely, G. O. (Rt) No. 1486/88/LBR dated August 16, 1988, cannot be accepted. In this context, this Court would like to refer to a ruling of the Apex Court, reported in AIR 1999 SC 1796 --Vallapally Plantations Pvt. Ltd. v. State of Kerala. Even though that was a case rendered by the Apex Court under the Kerala Land Reforms Act, the legal principle has clearly set out in paragraphs 24 and 25 which read thus at Page 1800 of AIR :
'No doubt in the present case the order that was sought to be set aside was of the Board. But the said order was passed in pursuance to the directions of the High Court in the revision petition. In other words in substance and in effect in passing the order the Board was only complying with the direction of the High Court. To vest jurisdiction in the Board to set aside such an order will be permitting the Board to interfere with the decision of the High Court which has attained finality inter-partes.
A somewhat similar question arose before this Court in the case of Authorised Officer (Land Reforms) v. M. M. Krishnamurty Chetty, 1998 7 JT (SC) 503. In that case about 4.81 standard acres of land belonging to the respondent were declared surplus. Ultimately the matter came to the High Court. The learned Judge of the High Court set aside the order and remanded the case for fresh consideration in the light of the Judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer, 1971 84 Mad LW 69. While the matter was pending before the authorised officer the Supreme Court reversed the aforesaid judgment in the case of Authorised Officer v. S. Naganatha, AIR 1979 SC 1487. The authorised Officer decided the proceeding in the light of the judgment of the Supreme Court. The land holder went in revision before the High Court challenging the order of the Authorised Officer. A stand was taken before the High Court that the order of remand passed by the High Court directing the authorised officer to decide the dispute in respect of the ceiling area in the light of the judgment of the High Court was not challenged by the Authorised Officer before the Supreme Court and as such it had become final. In other words the Authorised Officer was bound by the order of remand passed by the High Court and it was not open to the Authorised Officer to consider the dispute in respect of the ceiling area in the light of the judgment of the Supreme Court. The High Court accepted this contention and allowed the civil revision filed by the land holder-the respondent. This Court confirming the order of the High Court observed as follows :
'The order passed by the High Court directing the Authorised Officer to examine the dispute in the light of the judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer (supra) became final although the judgment on which the grievance had to be examined itself was reversed later by this Court. We find no fault with the reasoning of the High Court. It is well settled that even orders which may not be strictly legal become final and are binding between the parties if they are not challenged before the superior Courts, in the result the appeal fails and it is dismissed.'
17. In view of the above discussion and in the light of the ratio laid down by the Apex Court, there are no merits in the Writ Appeal and the same is liable to be dismissed. Once this Court comes to such a conclusion, then this Court is of the considered opinion that the issues which the first Bench of this Court thought fit to be decided really do not arise for consideration in this Writ Appeal. Consequently, we arc not taking up the exercise of considering those issues.
18. In this view of the matter, the writ appeal is dismissed.