IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER. W.P.(C) No of Reserved on:

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER W.P.(C) No of 2005 Reserved on: Date of Decision: November 21, 2006 Ram Jatan Tripathi... PETITIONER Through Mr. H.K.Chaturvedi, Advocate. versus The Management of M/s Universal Security & Detective... RESPONDENT Through Mr. J.R.Midha, Advocate. JUSTICE SHIV NARAYAN DHINGRA Judgment 1. By this order, I shall dispose of writ petition filed by the petitioner challenging the validity of award dated 7th July, 2004 whereby the Labour Court answered the reference against the workman. The following dispute was referred by the appropriate government for adjudication by the Labour Court: Whether the services of Shri Ram Jatan Tripathi have been terminated illegally and/or unjustifiably and if so, to what relief is he entitled and what directions are necessary in this respect? 2. The Labour Court after appreciating the evidence and material placed before it came to the conclusion that the services of petitioner were not terminated illegally and it was the petitioner, who himself abandoned the services and did not turn up for duty. 3. The petitioner has challenged the award and alleged that the Labour Court transgressed its jurisdiction by considering whether the petitioner had abandoned the services or not. The dispute referred to the Labour Court was about illegality or legality of the termination, no dispute of abandonment of services was referred and in view of law laid down by the Supreme Court in The Delhi Cloth and General Mills Company Limited v. The Workmen and Ors., AIR 1967 SSC 469, the decision of the Labour Court was perverse. It is submitted by the petitioner counsel that the issue of abandonment of service was not incidental to the dispute and, therefore, could not have been gone into by the Tribunal. No other ground has been pressed during the arguments. On the other

2 hand, the counsel for respondent argued that the Tribunal did not transgress its jurisdiction. The Tribunal in fact came to the conclusion that the services of the petitioner were not illegally terminated by the respondent, rather it was the petitioner, who abandoned the service. This observation of the Tribunal was based on the evidence and material placed before the Tribunal. The Tribunal in order to determine whether the service of the petitioner had been terminated or not, was necessarily to consider the factum of abandonment of service by the petitioner. This was incidental to the dispute. 4. The petitioner has relied upon Sitaram Vishnu Shirodkar v. The Administrator, Government of Goa and Ors (I) LLJ 480, wherein a division bench of Bombay High Court observed that when the reference made was about the termination of the service, the Tribunal constituted under the Act cannot travel beyond the reference and decide whether the workman had abandoned the service or not. The reference proceeds on the basis that there was termination of service and the only question left open for decision was whether the termination was legal and proper. With due deference to their lordships, I consider that the observation of the Division Bench is not the correct position of law 5. The jurisdiction of Tribunal emanates from the terms of reference and Tribunal cannot go beyond the terms of reference. The reference of a dispute under Industrial Tribunal is made under Section 10 of the Act. Sub section 4 of Section 10 provides as under: Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be,] shall confine its adjudication to those points and matters incidental thereto. A perusal of above sub section shows that the jurisdiction of the Tribunal is confined to the points specified in the order of reference or the matters incidental thereto. The matters which are incidental to the reference may be of such significance that they may go to the root of the jurisdiction of the Tribunal for example whether the workman was a workman or not at all, whether the employer was an industry or not and such other questions. A Tribunal cannot shut its eyes to the other incidental questions as well and has to decide those incidental questions which are necessary to adjudicate the dispute. 6. A Division Bench of this Court in Madho Ram v. P.K.Jain, P.O.I.T., Delhi 64 (1996) DLT 491 (DB) had surveyed the entire case law on this question and observed as under: 9. We shall start discussion with the latest ruling of the Supreme Court. In National Council for Cement and Building Materials (Civil Appeal No of 1996 dated ), the Supreme Court, after referring to Section 10(4), clearly pointed out that matters 'incidental' may, sometimes, assume significant proportions and may relate to questions which go to the root of the jurisdiction of the Tribunal. The Court pointed out that on a reference whenever such issues arose, the Tribunal should deal with the such preliminary issues simultaneously with other issues on merits so that there was no piecemeal adjudication and no scope for delay. There the management contended that its

3 activities did not amount to an 'industry' under the Industrial Disputes Act, The following observations of the Supreme Court in regard to Section 10(4) are important: This sub-section indicates that the extent of jurisdiction of the adjudicatory Tribunal is confined to the points specified in the order of reference or matters incidental thereto. Matters which are incidental to the reference may, sometimes, assume significant proportions and may relate to questions which go to the root of the jurisdiction of the Tribunal as, for example, questions relating to the nature of the activity of the employer as to whether it constitutes an industry or not, as has been done in the instant case. It is on the determination of this question that the jurisdiction of the Tribunal to adjudicate upon the reference rests This decision therefore, clearly negatives the appellant's contention. In the above decision reference was made to earlier decisions of the Supreme Court in Cooper Engineering Ltd. v. P.P.Mundhe, 1976(1)SCR 361, S.K.Verma v. Mahesh Chandra, 1983(3) SCR 799, D.P.Maheshwari v. Delhi Administration, 1983 (3) SCR 949, Workman employed by Hindustan Level Ltd. v. Hindustan Lever Ltd., 1985 (1) SCR 641 to the effect that preliminary issues going to the root of the matter could be decided by the Tribunal but the Tribunal must decide such questions along with the other issues on merits, so that there was no delay in the matter. Otherwise, if the award was initially to deal only with the preliminary issue, and the correctness of the same were to be canvassed in the High Court, then decision on the dispute on merits would get postponed till the High Court decided on the preliminary question and if the objection was not upheld; then there would be lot of delay in the decision on the other issues by the Tribunal. 10. A similar view was taken by a three-judges Bench, in Workmen of M/s Hindustan Level Ltd. and Others v. Management of M/s Hindustan Level Ltd. AIR 1984 SC 516. There again the Supreme Court referred to issues which go to the root of the matter and observed as follows: (see page 289) In industrial adjudication, issues are of two types: (i)those referred by the Government for adjudication and set out in the order of reference; and (ii)incidental issues which are sometimes issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, would go to the root of the matter. In this Court, in Tax Services Ltd. v. Delhi Administration, 1989(58) FLR 911 it was similarly held that the Tribunal can go into the existence or otherwise of jurisdiction facts and reference was made to D.P.Maheshwari v. Delhi Administration 1983 (3) SCR Learned Counsel for the appellant has however relied upon judgment of a two Judge Bench of the Supreme Court in Delhi Cloth & General Mills v. Its Workmen (AIR 1967 SC 469) wherein it was held that where the terms of reference raised an issue about legality and justification of a strike and lock-out in a particular mill on a particular date, the Tribunal must confine itself to the question whether the strike and lock out were legal and justified. It was held that the Tribunal could not enlarge its scope of its jurisdiction and decide that there was no strike or lock out. 12. For the purpose of the case before us, we need not go into the applicability of above ruling. Whether the existence of a 'strike' or otherwise (or of a lock out) is a jurisdictional fact or not or was merely a fact which the Tribunal should not have avoided

4 going into, is a question which does not arise in the case before us. We are here concerned with a more fundamental question of inherent jurisdiction of the Tribunal and in regard to which there was clear pleading before the Tribunal. We may point out that apart from a question as to whether the reference can be said to have implied the existence of certain facts referred to in the reference a question can arise whether the Tribunal can at all enter upon the adjudication of the reference. For example, if there was no relationship of employee and workman, obviously there was no question of the Tribunal entering upon the reference for adjudication. We therefore, do not think it necessary to go into the applicability of rulings relating to the existence of a strike or lock out; as in the Delhi Cloth Mills case. 13. In fact in D.P.Maheshwari's case (1983)(3) SCR 949)(referred to by the Supreme Court in its latest judgment in National Council for Cement's case) it was clearly held that the question as to whether the person was a 'workman' or not could be decided by the Tribunal as a preliminary issue but that it was to be decided along with other issues arising out of the reference. This decision of the Supreme Court is more directly in point. 14. Appellant's Counsel relied on the decision of the Three Judge Bench in Pottery Mazdoor Panchayat v. Perfect Pottery Co. (AIR 1979 SC 1356) but that case is also not relevant here. There again the reference was whether the 'closure' was proper or not. The reference was not whether there was, in fact, a closure of business by the employers. It was held that the Tribunal could not have gone into the question as to the existence of a 'closure'. It is not necessary for us to go into the applicability of th above ruling inasmuch as here, we are concerned with a question relating to the inherent jurisdiction of the Tribunal or rather its very jurisdiction to enter upon the reference. 15. We shall next refer to another decision of this Court relied upon for the appellant which is also distinguishable for the same reason. In the Full Bench decision of this Court in M/s I.T.Development Corporation v. Delhi Administration (1982) Lab. I.C (FB) (Del.) it was held that the Tribunal could not go into the question whether it was a lock out or closure as the existence of lock out was assumed by the Government though, in fact it was in dispute between the parties before the Government. This ruling also does not relate to an issue as to existence of relationship of 'employer' and 'workman'. We may however point out that the Full Bench held that the Government was wrong in assuming a disputed fact to exist and quashed the reference and directed a fresh reference on the question whether there was a lock out or strike. 16. We shall refer to a few other cases relied upon by the appellant's Counsel. So far as Workmen of M/s Delhi Cloth & General Mills v. Management of M/s Delhi Cloth and General Mills (1970)(2) SCR 886) is concerned, we find that the reference in that case dated stated that from the report of the Conciliation Officer under Section 12(4), it was to be inferred that an industrial dispute exists and that the same was being referred. The Tribunal framed Point 2: Is the reference incompetent because of settlement dated June 9, 1965 between DCM (City Shop) and Karamchari Union and Management? and the Tribunal held that the settlement was arrived at, on behalf of workmen, not by any unauthorised person but by authorised persons and was one binding on them and there was no industrial dispute. The Supreme Court held that the Tribunal ought to have in fact gone into the question as to whether the settlement complied with the provisions of Section 18(1) and Rule 58 of the Rules. The matter was remanded. In other words, though the reference stated that the dispute 'existed', the Supreme Court noticed that the

5 Tribunal had gone into the question as to the existence of dispute and the matter was remitted for fresh consideration as to its validity. This case does not therefore held the appellant. 7. I consider while deciding the issue of termination, the issue of abandonment cannot be escaped. The termination is a deliberate act on the part of employer by which services of an employee are brought to an end. The services of an employee also come to an end if he stops reporting for duty. Despite stopping to attend his duties he can take the stand that his services were terminated. In such a case a workman has to show that the employer did not allow him to perform his duty without giving him any written termination order. If the stand taken by the employer is that he had not terminated the services and it was the workman who, abandoned the service and if the workman alleges oral termination by the employer or alleges that he was not allowed to join the duties, the Tribunal cannot in order to decide the issue of termination in that context will have to decide whether the employer refused duties to the workman and did not allow the workman to join the duties or it was the workman who did not report for duty. It is not uncommon that a workman who abandons his job also takes the stand that his services were terminated by the employer. I consider a Tribunal cannot close its eyes to such facts while deciding the issue of termination and the Tribunal while deciding legality or illegality of the termination can come to a conclusion that there was no termination at all and it was the workman, who had abandoned the service. In the present case, while the workman had taken the stand that he was terminated, the employer placed on record the letters written by him to the workman and also addressed to Labour Commissioner offering the workman to join his duties but the workman failed to join the service. The Tribunal after considering entire evidence came to conclusion that it was a case of abandonment of service. In my opinion the issue of termination includes the issue of abandonment of services by the workmen. Abandonment of service is one of the facets of termination. 8. In view of my above discussion, I find no infirmity in the award. The writ petition is dismissed. No orders as to costs. Sd/- SHIV NARAYAN DHINGRA,J.