Shambhu Nath Vaid Vs. Labour Court and ors. - Court Judgment

Mehar Singh, J.

1. The facts, out of which this petition under Articles 226 and 227 of the Constitution arises, are as given below.

2. The parties are agreed that Ram Kishan, respondent 3, was an employee of the petitioner. The petitioner is a vaid and proprietor of D.A.V. Ayurvedio Pharmacies at Amritsar, Delhi, Mussorie and Dehra Dun. The Dehra Dun branch appears to have been closed during the pendency of this petition. The petitioner avers that respondent 3 was employed by him in his Dehra Dun branch on or about, 10 June 1955, and thereafter was transferred to his Amritsar branch where he worked from 10 June 1955 to 13 July 1957. Respondent 3 in his return accepts his employment in the Amritsar branch of the petitioner but denies that he was initially employed at Dehra Dun and transferred from there. But that is not going to be a material matter in the consideration of this petition. On 14 July 1957, the petitioner transferred respondent 3 from Amritsar to the branch of his establishment at Mussorie. Respondent 3 was given one week's leave at his request. According to the petitioner, respondent 3 did not join at Mussorie. There is some dispute on facts between the petitioner and respondent 3 on this aspect of the matter. It appears that the labour and conciliation officer at Amritsar intervened and on 8 August 1957, a compromise was arrived at between the parties whereunder the transfer order of respondent 3 was cancelled by the petitioner and he was asked to resume duty at Amritsar. According to the petitioner, respondent 3 refused to join duty on the ground that he will not just maintain the stock register unless he was made In charge of the entire stock. Respondent 3 gives a slightly different version of this part of the case, but that again is not going to be material as will appear presently.

3. In the end on 11 April 1958, by notification No. 2352-C-Lab. 58/11840, the Punjab Government made the following order of reference of the dispute between the petitioner and respondent 3 under Section 10(1)(c) of the Industrial Disputes Act, 1947, to the Labour Court, Punjab:

Whereas the Governor of the Punjab is of the opinion that an industrial dispute exists between the workmen and the management of the D.A.V. Ayurvedic Pharmacy, Akali Market, Amritsar, and Mall Road, Muasorie, regarding the matters hereinafter appearing;

And whereas the Governor of the Punjab considers it desirable to refer the dispute for adjudication;

Now, therefore, in exercise of the powers conferred by Clause (c) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947, the Governor of the Punjab hereby refers to the Labour Court, Punjab, constituted under Section 7 of the said Act, the matters specified below being either matters in dispute or matters relevant to or connected with the dispute as between the said management and the workman for adjudication :-

Whether Sri Ram Kishan be reinstated and compensated for the period of his forced unemployment ?The dispute came before the labour court on 24 April 1958, on which date respondent 3 put in his claim and the petitioner put in his written statement. In his written statement the petitioner objected to the jurisdiction of the tribunal on the ground that his concern was not an industrial concern but an ordinary shop. He took other pleas in his written statement which are not material for the present purpose. The case was next to be taken up by the labour court on 14 May 1958. The labour court received on 9 May 1968 an additional written statement by the petitioner and in that additional written statement the petitioner says that the D.A.V. Ayurvedic Pharmacy Agency has its head office at Delhi with branches at Mussorie and Amritsar; the reference pertaining to the Mussorie branch is incompetent nor has the labour court jurisdiction to deal with an industry being carried on at a place outside the State. The jurisdiction of the labour court was then questioned upon this ground.

4. On 14 May 1958 the petitioner did not appear, but he sent a medical certificate and also a telegram that he was ill and could not attend the Court. He requested for an adjournment. His manager from the Amritsar branch was also present but was not allowed to represent him. The Court proceeded ex parte against the petitioner and on the very day made an award in favour of respondent 3 and against the petitioner. The award is annexure L to the petition and in It, although the question of jurisdiction is attended to by the labour court on the question whether or not the concern of the petitioner is an industry, (sic) but no reference Is made to the question of jurisdiction on the plea raised in the additional written statement by the petitioner that the labour court has no jurisdiction in a labour dispute arising with regard to an establishment in another State, that is to say, in the State of Uttar Pradesh at Musaorie.

5. The petitioner in his petition attacks the award of the labour court on various grounds which go into the merits of the case, but this Court in a petition like this cannot act as a Court of appeal and consider the merits of the case. However, two points are specifically raised for the consideration of this Court and they are:

(a) that the reference by the State Government of the industrial dispute to the labour court with regard to the petitioner's establishment at Mussorie in the State of Uttar Pradesh is ultra vires and, consequently, the labour court had no jurisdiction in the dispute in the present case, and

(b) that the exercise of the discretion by the labour court in proceeding ex parte against the petitioner, in the circumstances of the case, was arbitrary and prompt, and as the petitioner had no opportunity to apply to the labour court to have the ex parte order set aside, this Court should go into the question whether the ex parte award against the petitioner is or is not to be maintained.

6. In view of the opinion that I have formed on the first of these two questions, it is not necessary in the present case to go into the second question. The appropriate Government to make reference of an industrial dispute to a labour court according to Section 2(a)(ii) of the Act is the State Government. That obviously is in relation to a dispute in an establishment within the territory of the State; The appropriate Government can refer an industrial dispute to a labour court for adjudication if the dispute relates to any matter specified in the Second Schedule to the Act, and in the Second Schedule entry 3 refers to

discharge or dismissal of workmen including reinstatement or grant of relief to workmen wrongfully dismissed.

The dispute here obviously falls under that item and if the dispute was confined to a dispute in relation to an establishment within the Punjab State, the reference on this account would obviously not be open to exception. But the notification of the Government refers to the existence of an industrial dispute between the workmen and the management of D.A.V. Ayurvedic Pharmacy at Amritsar and Mussorie. It obviously means workmen of the establishments both at Amritsar and Mussorie. But, in substance the dispute is really between the petitioner and respondent 3. The learned Counsel for the petitioner refers to Sub-section (1A) of Section 10 of the Act, which provides, so far as is relevant here:-

(1A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended ... or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication.

7. It is obvious that this sub-section deals with industrial disputes concerning industrial establishments situate in more than one State and with regard to such disputes the power of reference for adjudication is only with the Central Government and not with the State Government when obviously the reference is to cover industrial establishments in more than one State. Of course, it is open to the State Government to refer the dispute within its own territorial limits to the Industrial tribunal within those limits, but if a dispute concerning a number of establishments spread over more than one State is to be referred for adjudication, then it can only be so referred by the Central Government. It is, therefore, clear that the State Government here had no power to refer the industrial dispute between the workmen and the management of Mussorie branch of the petitioner for adjudication to the labour court in Punjab. The learned Assistant Advocate-General says that that is merely the form of the notification and the substance of the matter is that the dispute is between the petitioner's establishment at Amritsar and a workman of that very establishment at Amritsar. He presses that the whole dispute has arisen within the Punjab State and, therefore, has rightly been made to the labour tribunal within this State by the State Government. With regard to the reference in the beginning of the notification to the industrial dispute between the workmen and the management of the Mussorie branch he seems to think that that is merely a surplusage and if it is ignored the substance of the dispute is within the State of Punjab and the reference is unexceptional. He then points out that the learned labour court has not at all said a word about the dispute at Mussorie. This last consideration, to my mind, is utterly irrelevant. The notification on the face of it speaks of dispute between workmen and management of the D.A.V. Ayurvedic Pharmacy at Amritsar and at Mussorie. The reference would have been valid if it had been confined to the dispute at Amritsar. It is ultra vires the powers of the Government in so far as it refers to the establishment at Mussorie in the State of Uttar Pradesh. The reference cannot be split and the part of it dealing with the Mussorie establishment cannot be treated as a mere matter of form or surplusage. If it was so, it was open to the State Government never to have made any mention of this part of the dispute in the reference. The learned Assistant Advocate-General says that the fact is that there is really no dispute between the management and workmen of the establishment at Mussorie, and that appears to be the case. Even so, the reference could not deal with any dispute relating to the establishment at Mussorie whether imaginary or real.

8. In my opinion, the reference of the dispute for adjudication to the labour court is ultra vires the powers of the State Government, and consequently, the labour court on this ground had no jurisdiction to adjudicate upon that reference and the award of the labour court cannot be maintained. The award is, therefore, quashed. The petition succeeds and as it has been opposed by the State of Punjab, respondent 2 and respondent 3, so each one of these two respondents will bear the costs of the petitioner equally; counsel's fee being Rs. 100.