Jaipur Udyog Ltd. v. Cement Karmachari Sangh

296 JAIPUR UDYOG LTD. _v._ #### \ CEMENT WORK 1KARMACHARI SANGH, SAHU NAGAR. _Ja11uary_ 28, 1972 [C. A. VAIDIALINGAM, I. D. DUA AND G. K. MITTER, JJ.] . _Industrial Disputes_ _Act-S._ 10(1) _(d)-Tribunal_ _cannot_ _go_ _beyond the_ _scope_ _of_ _reference._ The appellant, a public Limited Company, had a Cement Factory and at '3. distance, :;i. limestone quarry. It had two standing orders for the workman employed in the factoiry and in the quarries. Upto April, 1967, both sets of standing orders provided fo< superannuation of the workmen at the age of _55_ with a stipulation for extension upto 60 years if a workman was found fit to work. After a dispute at the Cement Factory, a settlement was arrived at by which it was agreed that the standing order applicable to the Cement Factory be amended by raising the age of superannuation from _55_ t..:> _58_ without making any provision for further exten~ sion S.nd accordingly, the amendment was made. Nothing was, however, done with regard to the superannuation age of the employees at the quarry. On April 3, 1968, the appellant intimated the incline driver at the quarry that he had reached the age of retirement on 3-4-68 and accord· ingly he was given notice of retirement in terms of the standing order. On April 30, 1968, the said workman wrote to the appellant that altbou&h service records showed him to be _SS_ yean of age, his proper aao accord· ing to his borOICOpe, was about SO yean and so his service record• ahould be amended accordingly, but the appellant refuaed. The Union took up the cause of the worker and requested the Regional Labour Commilllioner to put the worker back to work .. On a reference under S. 10(1) (d) of the Industrial Disputes Act, the Triblinal took the view that the Cement Factory and the quarries were two units of the same eotablishment and so, there should be a uniform set of rules for the wo<kmeri of the Company as a whole. In the result, the Tribunal held that there could not be a lower age limit of superannuation for workmen at the quarry specially in view of the fact that workmen were admittedly transferred from one unit to the other. As a consequence, the Tribunal quashed lhe order of dismissal and direcied the reinstatement of the workman with full back wages. B ### c D E F It was contended by the Company before this Court that the TribuD:ll was wrong 'in construing tho order of reference to include a dispute as to whether it was open to the C.Ompany to have two sets of standing G orders providing for different ages of superannuation. According to the appellant, the dispute between the parties w:is whether or not the Company was justified in Coming to the conclusion that the workman con· cemed had reached the age of _55_ on April 3, 1968, and as such, was to be superannuated in terms of the standing orders. Setting aside the award, HELD : Tbe Tribunal had not taken care to examine what was the H ·dispute between the parties when the government made the order of reference. No dispute was ever ~aised either by· the workman or the Union that the age of superannuation governing the _workman was not **A** B ### c **D** E **F** G **H** JAI~UR UDYOG LTD. _V._ CEMENT KARMACHARI SANGH 297 _(Mitter,_ J.) _55_ years. The finding of the Tribunal that !he Company could not fix. **a** **lower** **·age** **limit of** **superannuation** **for** **the** **workman** **at** **the** **qU'lI'ries** **went-** **beyond** **the** **scope of reference.** **The** **Tribunal** **never** **addressed** **itself** **to** the point of view of the workman that his proper age was anly 50 and **not** _**55;**_ **nor** **did** **it** **come** **to** **a** **finding** **that** **the** **true** **age** **of** **the** **workman:·** **being** **50** **years** **in** **1968,** **·there** was **no** **question** **of** **his** **superannuation** **in** 1hot year. [302 CJ _**The**_ _**Sindhu**_ _**Rese1tlement**_ _**Corporation**_ _**Lu/.**_ **vs.** _**The**_ _**Industrial**_ _**Tribunal,.**_ _G11jarat_ & _Ors._ [1968] I S.C.R. 515 referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1166 of 1971. Appeal by special leave from the Award dated December 19, 1970 of the CentralGovernment Industrial Tribunal, Jaipur in Case No. CI'l:'-10 of 1968. _M,_ C. _Setalvad,_ _K. K._ _Jain,_ C. _N._ _Sharma,_ C. _S._ _Patel_ and _Bishamber Lal,_ for the appellant. _M._ _K. Ramamurthi_ and _J._ _Ramamurthi,_ for the respondent. The Judgment of the Court was delivered by · Mitter, **J,** This is an appeal by special leave from an award of the Central Government Industrial Tribunal, Rajasthan directing the reinstatement of one Bhisham Verma in the service of t..'ie· appellant with full back wages. The_ facts are as foliows. The appellant is a public limited company with its registered office at Sawaimadhopur in the State of Raiasthan. It has a cement factory at the said place besides a limestone quarry at Phallodi situiite at a distance of 24 kms. from the cement fa_ctory. It has two separate sets of Standing Order> for the workmen employed in the factory and in the quarries. Bath sets of Standing Orders were certified in accordance with the provisions of the Industrial Employment (Standing Orders) Ac!, 1946. The Standing Orders applicable to the workmen employed in the factory were certified in the year 1954 while those applicable to the workmen of the quarries were certified in the year 1961. Up to April 1967 both sets of Standing Orders provided for superannuation of the workmen at the age of 55 with a stipulation for extension up to 60 years if a workman was found fit to work. On a dispute having been raised for the raising of the age of 8uperannuati0n of the workmen at the cement factory, a settlement was arrived at between the appellant and the respondent (a relti~tered trade union of the employees) on 16th December 1966 whe-reby it was agreed that Standinp; Order No. 21 applicable to the. cement factory be amended by raising the age of superannuation.from 55 to 58 years without making any provisfon for further 298 SUPREME COURT REPORTS [1972] 3 S.C.R. extension. A joint application following upon the agreerMnt was moved by the appellant and !he respondent for modifying the Standing Order No. 21 with respect to the age of superannuation which was accordingly done. Nothing was however done with regard to the age of superannuation of the employees at !he quarry. the relevant clause in 'the Standing Order remaining unaltered. On April 3, 1968 the appellant intimated the said Bhishan1 Va/.;;ia, incline driver a!. the quarry, that he "had exceeded the age of retirement on 3-4-1968" and as such he was given "notice of retirement in accordance with clause 21 of the Standing Orders of the quarries With effect from the close of work on 2-5-1968". On April 30, 1968 the said wortanan wrote to !he appellant that although according to the service file he had completed 1the age of 55 years as indicated, his proper age according to his horoscope was about 50 years and his service record should be amended accordingly. The appellants' reply to the above dated July 9, 1968 was !o the effect that his case had been re-examined and that his retirement, as already intimated on 3-4-1968 would stand. The Union took up the cause of the worker and addressed a letter on July 18, 1968 to 1he Regional Labour Commissioner requesting that arrangemen!s may .be made to put the worker back to work and take proper legal proceedings. On behalf of the workman it was represented that he had been working in the company sine" October 11, 1957, that the Personnel Manager of the quarry had given orders dismissing him from service on April 3, 1968 and tha! in spite of objections made by the workman thai there was a mistake in the papers of the company with regard to his age which was 50 as supported bv his horoscope and doctor's certificate, the action of the quarry manager was illegal and contrary to service con!ract. The record does not show what if any other steps were taken by the parties when the Central Government made an order of reference under s. 10 (1 )( d) of the Industrial Disputes Act reading : "Whether the action of th;;1 management of !he Jaipur Udyog Limited, P.O. Phallodi Quarry, Sawaimadhopur in terminating the services of Bhisham Varma, incline driver, with effect from 9th July 1968, on ##### l(roUnds of superannuation was legal and justified ? If not to what relief is he entiled ? A B ### c D E F G Before the Tribunal, the respondent Union filed a sttitement of claim wherein after reciting the action taken by the appellant and, the represen!atioh made by the workman it was stated that H the quarry and the cement factory were under one and the same management and there was complete financial integrality between 'the activities of !he company at both the places. It was also'said JAIPUR UDYOG LTD. _V._ CEMENT KARMACHAR! SANGH 299 _(Mitter,/.)_ that workmen could be transferred from one place to another and that a& a result of the settlement mentioned, the company could not retire any workman before he al'lained the age of 58 years. The settlement was said to apply to the workmen employed at both the places. The Union further submitted that tile company could not ilJliist on two sets of conditions of service covering different sections of the same workmen in tile same establishment, that the age of retirement was no! a subject mentioned in the Schedule to the Industrial Employment (Standing Orders) Aot and as such no Standing Order could be Cl'.rtified on this topic. In its reply to !he above, the company took the stand that the settlement ~!!)ved at in respect of the cement works Karmachari Sangh, Sawai Madhopur was not _ipso facto_ [1 ] applicable ito the quarry inasmuch as the proper authority under the Industrial Disputes Act 1947 in respect of the cement works was the Government of Rajasthan whereas the appropriate Government in respect of the quanies was the Government of India. It was said further that in pursuance of the settlement anived alt in 1966 the Standing Orders were amended by the Certifying Officer of the Government of Rajasthan as a result whereof the age of superannuR'tion in the works at Sawai Madhopur was raised to 58. This however did not alter or modify the position prevailing in the quar1ies which were governed by a separate set of orders certified by,the Certifying Officer of !he Government of India. B ### c D E F G H The Tribunal took the view that th~ cement factory and the quarries were two units of the same .establishment and that conse quen~y there should be a uniform set of rules for the workmen of the company as a whole and it was immaterial that in the case of one _unit_ the Standing Orders had to. be certified by the Certifying Officer of the Government of India and in the other by the Officer appointed by !he Government of Rajasthan. The Tribunal was further of ihe view that the clause as to superannuation could net be provided in the Standing Orders under the relevant Act and certification could not attach enforceability to them even on the ground that t!Je workers did not challenge such provision before the Certifying Officer. In the result the Tribunal held that there oould not be a lower age limit of superannuation for workmen at the Phallodi Quarry specially in view of the fact that workmen were admittedly transferable from one place to the other. As a consequence of the above finding, the Tribunal quashed the order and directed the reinstatement of the workman with foll back wages. On behalf of the company the first contention raised by Mr. Setalvad was .that the Tribunal had gone wron11: in construii;ig the order of reference to include a dispute as to whether it was open _to_ the company to have two sets of Standing Orders providing for 300 SUPREME COURT REPORTS [1972] 3 SC.R. .. different ages of superannuation. Mr. Setalvad argued that in A view of the co;:respondence terminating with ithe representation bv ·the Union to the Conciliation Officer, it was abundantly clear that the dispute between the parties was whether or not the company was justified in coming to the conclusion '.hat the workman concerned had reached the aw~ of 55 on April 3, 1968 and as such was to be superannuated in terms of the Standing Orders. The Jetter of the B 9th July 1968 by the Company to the workman reads _:·5_ ## follows : "Pl,J!~Se re.fer to your applic<ttion da·ted 30-4-1968 receiv.~ by us on 8-5-1968 along with a copy of your horoscope in Hindi. The Management has re-examined your case and come to a final conclusion that your re- C tirement from the service of the company as intimated to you vide our memo No. PQIB/186 dated 3-4-68 should stand. You are, therefore, directed to collect your dues, if any, from our Accounts Department on any working day after producing necessary clearance certificate." Of necessity, reference had to be made by the Tribunal to tile D application of the workman dated April 30, 1968 with a copy uf his horoscope. The said latler expressly complained of 1i1e alleged inacc11racy in the service record pertaining to him according to which the writer had not completed the age of 55 year< (HI the 3rd April. The workman's representation was that his age had been ina.ccurately recorded, •that his proper ·age was 50 ;rnd E that the records should be corre~ted accordingly. In our view, if the Tribunal had taken care •to examir.1" "h.it was the dispute between the parties when the Government made the order of reference it would have had no difficulty in realising that no dispute was raised either by the workman or the Union that the age of sup,~rannuation governing,the workman was not _55_ years. It was certainly open to the workman to contend that hi> a~e of superannuation should b~ fixed at 58 and not 55 years anJ it would have been equally open to the Union to raise the point F in their represen•ta1ion to the Conciliation Officer. Tf that had been done, the Government of .Rajasthan could have properly made a reference of a dispute between the parties regarding the G correct age of superannuation and the adjudication of the disputi: regarding the superannuaition of the workman concerned on that basis. Nothing was however shown to us, apart from the d0cu ments already referred to, to enable us to find that any qu.estion had been raised before the Government of Rajasthan relating to the age of superannuation of the workmen at the quarries or that there was any basis for apprehensi0n of such a dispute and 'it was therefore not open ito the Tribunal to enlarge the ambit of the dispute between the parties by reference to the difference in the H # : ': A _))_ .E F H JAIPUR UDYOG LTD. _V._ CEMENT KARMACHARI SANGH 301 _(Mitter,_ _J.)_ age of superannuation under tho two sets of Standing Orders. Mr· Setalvad drew our aVtemion to the judgment of this Court in _The_ _Sindhu Resettlement Corporation Ltd._ v. _The Industrial Tribunal_ _of Gujarat_ & _()rs._ ( [1] ) for the proposition that unless a dispute was raised by the workman with their employer it could not become an industrial dispute. Respondent No. 3 before this Court in that case was employed 'by the appellant as an accounts Clerk at Gandhidham in the year 1950. Some years thereafter his services were placed at the disposal of the subsidiary company of the appellant. The respondent was appointed in the said subsidiary company on a different set of conditions of service. He worked with that CQllUlany up to February 1958 when his services were terminated after payment of retrenchment compenslltion and other dues by the sajd su.bsidiary company. The respondent then went to the appellant and requested that he might be given posting orders. The appellant declined lo do so on the ground that the post which he was occupyin.e; in 1953 had been permanently filled up. Thereupon the respondent demanded retrenchment compensation from the appellant also. As the representations of the respondent were not fruitful, conciliation proceedings were started and ultimately,. on the report of the Conciliation Officer, the State of Gujarat referred the dispute to the Industrial Tribunal.. The matter referr~ for adjudication was, "whether the said resp0ndent should be reinstated in the service of the appellant an<;! be paid back wages from 21st February, 1958." The Tribunal directed reinstatement and payment of back wages. In allowing the appeal. this Court observed that the respondent workman had only asked for payment of retrenchment compensation and /did not raise any dispute for reinstatement. According to this Court (si;e p. 522) : Relying on the above decision Mr. Setalvad argued ithat in order that a reference can be construed to embrace a particular dispute it must be shown that a demand had be>~n made by the workman and not accepted by the employers so as to give rise to a dispute which in the view of the Government required adjudication. Mr. Ramamurty on behalf of the respondents drew our attention 'to the provisions of s. 10 (1) of the InduS'trial Dispmes Act and in ##### particular to clauses (c) and (d) thereof. He argued that it was open to !he appropriate Government in an appropriate case to (l) [l968J 1. s.c.R. s1s. " .... the evidence produced clearly showed that no such dispute _(i.e._ relating to reinstatement) had ever ~n raj_scd by the respondent with the management of the appellant. If no dispute at all was raised by the respondents with the management, any request sent by them,to the Government would only be a aemand by them and no_t an industrial dispute betw~u them and their employer." 302 SUPREME COURT REPORTS [1972] 3 S.C.R. refer a dispute alOnl!; with any martter appearing to be connected with or relevant to the dispute and no objection could be taken to the award of a Tribunal where the Tribunal had not transgressed the limits of els. ( c) and ( d) of s. 10 ( 1 ) of the Aot. It was #### further contended that the proper age of superannuation applica r [1 ], to the comPal\Y as a whole was so intimately connected with or relevant to the dispute which actually arose between the parties prior to the order of r.;oference as to lead us _to_ hold that the Tribunal had not gone beyond its jurisdiction in construing the order of reference to embrace an adjudication as -to proper age of superannuation of a workman like Bhisham Verma. In our view, the finding of the Tribunal that the Company could not fix a lower age limit of superannuation for workmen at the quarries went beyond the scope of reference which had to be gathered from the circumstances preceding the Government Order. The Tribunal ne'•~r addressed itself to !he paint of view of the workman that his proper age was only 50 and not 55; nor did it come to a findinl!; that the true age of the workman being 50 years in 1968 there was no question of his superannuatio11 in that year. Mr. Setl!lvad raised a further point that so Jong as the quarries had a different set of Standing Orders prescribing a different age of superannuation from ithat fixed under the Standing Orders relating to the ~ement works, the tribunal could no! have disregarded the Standing Orders as it had purported to do and lay down that the age of superannuation of all workmen should be 58 as found by it. Our attention was drawn to s. 2(g) of the Industrial En1ployment (Standing Orders) Act and to s. 3(2) of the said Act under which provision had to be made in Standing Orders for all m:itters set out in the Schedule to the Ac!. According to Mr. Setalvad, item 8 of the Schedule reading : "Termination of employment, and the notice thereof to~ given by employer and workmen." allowed !he framing of Standing Orders with regard to age of superannuation. Mr. Ramamurty on the ather hand contended that this item could not possibly embrace such a matter as the age of superannuation but was limited !o voluntary aots of the employer or tl!_e workmen to put an end to the employment without any question of suir.rannuation. Arguments were advanced at some length by counsel on ei!her side on this point, but in . the view which we have taken on the first point as to the jurisdiction gf the TribUJlal, we find it unnecessary to decide this point. In the result we hold tha! the award of the Tribunal was incompetent as the dispute which it sought to adjudicate upon was not the one referred. The award will therefore be set aside, but in the circums!ances of the case, we make no order as to costs. S.C. _Award_ _set_ _aside._ A B ### c D E F G H