Municipal Employees' Union Vs. Secretary (Labour), Govt. of N.C.T. of Delhi and Anr. (16.03.2001 - DELHC) - Court Judgment

Excerpt:
constitution of india, 1950 - article 226--writ--amendment in terms of reference--terms of reference made by secretary (labour) not justified--it would be axiomatic and indubitable that petitioner would not be entitled to any wages for any period as garden chaudhary--directions for amendments. article 226--writ--terms of reference--should be spelt out with care, exactitude and with such detail as would obviate any controversy as to the scope of reference--disputes referred require composite and single adjudication. - - ' 4. it is a well settled proposition that the industrial tribunal/labour court cannot travel beyond the terms of reference. it is often argued on behalf of the workman as well as on behalf of the management, in writ petitions assailing an award, that the terms of reference were wide enough, or not so, to cover the aspect of the issue which the particular party wishes to convass before the high court in its extraordinary jurisdiction under articles 226 and 227 of the constitution.ordervikramjit sen, j.1. costs paid.2. before the conciliation officer the workman/petitioner had suggested that the terms of reference be drafted in the following manner:-'whether the non-regularization of services of shri fateh singh on the post of garden chaudhary w.e.f. 01.08.1995, denial of difference of salary for the post of mali and the post of garden chaudhary for the period from 01.08.1995 to 13.06.1997 and his reversion to the post of mali w.e.f. 14.06.1997 by the management is legal and justified and if not, to what relief is he entitled and what directions are necessary in this respect?'3. however, the terms of reference actually forwarded by the secretary (labour) govt. of national capital territory of delhi, to the industrial disputes tribunal, delhi, for adjudication, are in the following words:'whether shri fateh singh mali is entitled to wages of garden chaudhary for the period from 1.8.95 to 13.6.97 and if so what directions are necessary in this respect?'4. it is a well settled proposition that the industrial tribunal/labour court cannot travel beyond the terms of reference. on a reading of the terms of reference proposed by the petitioner, it can be split into three parts-(i) concerning his non-regularization as a garden choudhary; (ii) the difference in salary for the period 1.08.95 to 13.06.97; and (iii) his reversion as a mali. counsel for the respondents in substance argue that the reference as it presently exists, while ostensibly covering the second aspect only, subsumes the first issue, that is, whether shri fateh singh was appointed to the post of garden chaudhary with effect from 1.8.1995. to this extent they may be correct, inasmuch as the petitioner would not be entitled to any salary/wages if he is found not to have been appointed as a garden chaudhary. the third aspect of the terms of reference proposed by the petitioner is whether the petitioner was reverted to the post of mali. the contention of the respondent is that the petitioner was appointed and served only as a mali. thereforee, there is a clear dispute even on this issue. whilst a finding on the first and second aspect would have to be in favor of the petitioner if the court is to venture also to decide the third aspect, there is no wisdom in framing the disputes to be decided in a nebulous or controversial wording. it leads to protraction and proliferation of litigation.5. in my opinion the terms of reference should invariably encompass the entire dispute between the workman and the management. it is often argued on behalf of the workman as well as on behalf of the management, in writ petitions assailing an award, that the terms of reference were wide enough, or not so, to cover the aspect of the issue which the particular party wishes to convass before the high court in its extraordinary jurisdiction under articles 226 and 227 of the constitution. in all such cases it is first left to the subjective understanding of the court as to the ambit and sweep of the terms of reference. it would, thereforee, be in the interest of justice if the terms of reference are spelt out with care, exactitude and with such detail as would obviate any controversy as to the scope of the reference. it is also in the interest of justice that all the disputes raised between the parties should be referred for adjudication at one instance and not in a truncated and piecemeal manner so that there can be a composite and single adjudication of all disputes between the parties.6. quite often, an aggrieved party approaches this court stating for the first time that as per their understanding the reference included or did not include a particular dispute. in the present case as the terms of reference proposed by the petitioner were contained in writing in a statement made before the conciliation officer, it is uncontrovertibly clear what the dispute as the workman had apprehended it were. what is now argued before me is not an after thought. my attention has also been drawn to the order of the labour officer dated 12th august, 1998 which appears to have been passed on a review being filed by the petitioner/workman. the labour officer appears to have gone into the facts of the case and has arrived at the finding that there is nothing on record to suggest that the petitioner was appointed as a garden chaudhary by the competent authority. this exercise as contemplated by the law, was administrative in character and thus the opinion that was formed was wholly beyond the jurisdiction vested in him. this conclusion could correctly have been arrived at only upon adjudication by the labour court concerned. furthermore, if the finding of the labour officer is presumed to be correct, there would be no justification for framing and forwarding even the impugned terms of reference made by the secretary(labour). logically, if there is nothing on the record to suggest, as concluded by this officer, that the petitioner was appointed as a garden chaudhary, it would be axiomatic and indubitable that he would not be entitled to any wages for any period as a garden chaudhary. on both counts, the said order is incorrect. it is quashed.7. accordingly the writ petition is allowed. the respondent no.1 is directed to amend the terms of reference on the lines indicated above and forward the dispute for adjudication within ninety days.

Judgment:
ORDER

Vikramjit Sen, J.

1. Costs paid.

2. Before the Conciliation Officer the workman/Petitioner had suggested that the terms of Reference be drafted in the following manner:-

'Whether the non-regularization of services of Shri Fateh Singh on the post of Garden Chaudhary w.e.f. 01.08.1995, denial of difference of salary for the post of Mali and the post of Garden Chaudhary for the period from 01.08.1995 to 13.06.1997 and his reversion to the post of Mali w.e.f. 14.06.1997 by the management is legal and justified and if not, to what relief is he entitled and what directions are necessary in this respect?'

3. However, the terms of Reference actually forwarded by the Secretary (Labour) Govt. of National Capital Territory of Delhi, to the Industrial Disputes Tribunal, Delhi, for adjudication, are in the following words:

'Whether Shri Fateh Singh Mali is entitled to wages of Garden Chaudhary for the period from 1.8.95 to 13.6.97 and if so what directions are necessary in this respect?'

4. It is a well settled proposition that the Industrial Tribunal/Labour Court cannot travel beyond the Terms of Reference. On a reading of the Terms of Reference proposed by the Petitioner, it can be split into three parts-(i) concerning his non-regularization as a Garden Choudhary; (ii) the difference in salary for the period 1.08.95 to 13.06.97; and (iii) his reversion as a Mali. Counsel for the Respondents in substance argue that the Reference as it presently exists, while ostensibly covering the second aspect only, subsumes the first issue, that is, whether Shri Fateh Singh was appointed to the post of Garden Chaudhary with effect from 1.8.1995. To this extent they may be correct, inasmuch as the Petitioner would not be entitled to any salary/wages if he is found not to have been appointed as a Garden Chaudhary. The third aspect of the Terms of Reference proposed by the Petitioner is whether the Petitioner was reverted to the post of Mali. The contention of the Respondent is that the Petitioner was appointed and served only as a Mali. thereforee, there is a clear dispute even on this issue. Whilst a finding on the first and second aspect would have to be in favor of the Petitioner if the Court is to venture also to decide the third aspect, there is no wisdom in framing the disputes to be decided in a nebulous or controversial wording. It leads to protraction and proliferation of litigation.

5. In my opinion the Terms of Reference should invariably encompass the entire dispute between the workman and the Management. It is often argued on behalf of the workman as well as on behalf of the Management, in Writ Petitions assailing an Award, that the terms of Reference were wide enough, or not so, to cover the aspect of the issue which the particular party wishes to convass before the High Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution. In all such cases it is first left to the subjective understanding of the court as to the ambit and sweep of the Terms of Reference. It would, thereforee, be in the interest of justice if the Terms of Reference are spelt out with care, exactitude and with such detail as would obviate any controversy as to the scope of the Reference. It is also in the interest of justice that all the disputes raised between the parties should be referred for adjudication at one instance and not in a truncated and piecemeal manner so that there can be a composite and single adjudication of all disputes between the parties.

6. Quite often, an aggrieved party approaches this Court stating for the first time that as per their understanding the Reference included or did not include a particular dispute. In the present case as the Terms of Reference proposed by the Petitioner were contained in writing in a statement made before the Conciliation Officer, it is uncontrovertibly clear what the dispute as the workman had apprehended it were. What is now argued before me is not an after thought. My attention has also been drawn to the order of the Labour Officer dated 12th August, 1998 which appears to have been passed on a Review being filed by the Petitioner/workman. The Labour Officer appears to have gone into the facts of the case and has arrived at the finding that there is nothing on record to suggest that the Petitioner was appointed as a Garden Chaudhary by the Competent Authority. This exercise as contemplated by the law, was administrative in character and thus the opinion that was formed was wholly beyond the jurisdiction vested in him. This conclusion could correctly have been arrived at only upon adjudication by the Labour Court concerned. Furthermore, if the finding of the Labour Officer is presumed to be correct, there would be no justification for framing and forwarding even the impugned Terms of Reference made by the Secretary(Labour). Logically, if there is nothing on the record to suggest, as concluded by this Officer, that the Petitioner was appointed as a Garden Chaudhary, it would be axiomatic and indubitable that he would not be entitled to any wages for any period as a Garden Chaudhary. On both counts, the said order is incorrect. It is quashed.

7. Accordingly the writ petition is allowed. The Respondent No.1 is directed to amend the Terms of Reference on the lines indicated above and forward the dispute for adjudication within ninety days.