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Arindam Sinha, J—Mr. Ghosh learned advocate appearing on behalf of the petitioner urged two points of challenge to the order dated 31st December, 2007 impugned in this writ petition out of three raised initially. The two points are firstly that what was referred to the Industrial Tribunal pre-supposes existence of an industrial dispute regarding whether the 97 contract labour could seek regularization. He submitted the reference was not of a dispute raised by the workmen of his client and, therefore, there is a jurisdictional bar against the Tribunal in adjudicating such dispute. Challenges to jurisdiction to the Tribunal are to be gone into by the High Court and not by the Tribunal itself. His other point is that his client, by the wording of the schedule to the impugned order, has been precluded from raising the defence that the contract in execution of which the contractor had engaged those 97 contract labour, since abolished, was not a sham contract or a camouflage. He referred to Section 10(4) of the Industrial Disputes Act, 1947 which required the Tribunal to confine its adjudication to those points in the order of reference and matters incidental thereto. He submitted, thereby his client would stand precluded from taking a substantial plea in opposing the claims made as referred.
Mr. Ghosh relied on the decision in the case of National Engineering Industries Ltd. Vs. State of Rajasthan and Others, AIR 2000 SC 469 : (2000) 84 FLR 162 : (1999) 9 JT 377 : (2000) 1 LLJ 247 : (1999) 7 SCALE 322 : (2000) 1 SCC 371 : (1999) 5 SCR 87 Supp : (2000) 1 SLJ 194 : (2000) 1 UJ 685 : (1999) AIRSCW 4626 : (1999) 10 Supreme 344 for the following view expressed therein.
"It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference."
He then relied on the cases of U.P. Power Corporation Ltd. and Another Vs. Bijli Mazdoor Sangh and Others, (2007) 113 FLR 821 : (2007) 5 JT 611 : (2007) 2 LLJ 832 : (2007) 5 SCALE 732 : (2007) 5 SCC 755 : (2007) 2 SCC(L&S) 258 : (2007) 6 SCR 256 and Oshiar Prasad and Others Vs. The Employers in relation to Management of Sudamdih Coal Washery of BCCL(2015) 2 AD 387 : (2015) 144 FLR 830 : (2015) 1 LLJ 513 : (2015) 1 LLN 283 : (2015) 2 SCALE 153 : (2015) 4 SCC 71 : (2015) 1 SCC(L&S) 789 : (2015) 2 SCJ 636 for the proposition of law declared that absorption and regularization in service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and the employer. Once it comes to an end either by efflux of time or as per the terms of the contract of employment or its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination. He submitted there was no contract of employment between the 97 contract labour and his client.
Mr. Deb, learned advocate appearing on behalf of the respondent No. 4 relied on the case of G.M. ONGC, Shilchar Vs. ONGC Contractual Workers Union, (2008) 118 FLR 942 : (2008) 7 JT 309 : (2008) 2 LLJ 1071 : (2008) 8 SCALE 665 : (2008) 12 SCC 275 : (2009) 1 SCC(L&S) 661 : (2009) 2 SLJ 28 of the said decision which are reproduced below: "16. It is true that the underlined portion of the reference prima facie does give the impression that it presupposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it.
In Delhi Cloth & General Mills Co. Ltd. V. Workmen and others, this is what the Court had to say:
"In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else."
He then relied on an earlier case of The Management of Express Newspapers Ltd. Vs. Workers and Staff Employed under it and Others, AIR 1963 SC 569 : (1962) 5 FLR 205 : (1962) 2 LLJ 227 : (1963) 3 SCR 540 therein. In that case one of the two points of reference was worded as follows:
"Whether the strike of the workers and working journalists from 27th April, 1959 and the consequent lock put by the management of the Express Newspapers (Private) Ltd. are justified and to what relief the workers and the working journalists are entitled?"
The Supreme Court in considering the wording of the question referred said as follows:--
"It may be conceded that the wording of the issue is not artistic and unfortunate. As it is worded, it no doubt, prima facie gives an impression that the enquiry on this issue has to proceed on the assumption that the conduct of the appellant amounts to a lockout, and this argument is somewhat strengthened by the ill-advised and unfortunate order passed by the State Government under Section 10(3). It is hardly necessary to emphasise that since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under S. 10 is limited by S. 10(4) to the points specifically mentioned in the reference and matters incidental thereto, the appropriate Government should frame the relevant orders of reference carefully and the questions which are intended to be tried by the Industrial Tribunal should be so worded as to leave no scope for ambiguity or controversy. An order of reference hastily drawn or drawn in a casual manner often gives rise to unnecessary disputes and thereby prolongs the life of industrial adjudication which must always be avoided. Even so, when the question of this kind is raised before the Courts, the Courts must attempt to construe the reference not too technically or in a pedantic manner, but fairly and reasonably."
Mr. Deb submitted however the schedule in the impugned order was neither loosely worded nor cryptic nor otherwise defective for it to be set aside in interference under Article 226 of the Constitution of India. He submitted the question whether or not the claim for absorption and regularization should be allowed to be gone into by the Tribunal and any defence to such claim by the petitioner could be raised for adjudication if not directly arising out of the question referred, at least as incidental thereto. He submitted further that in any event without prejudice to his argument made earlier as recorded above, his client was ready to concede that even if the wording of the schedule excluded a possible defence or contention of the petitioner by application of the provisions of Section 10(4) of the said Act, such point could be raised by the petitioner before the Tribunal and there was no necessity for reframing the schedule in the impugned order after having it set aside. He further submitted, otherwise, the Court would be acting too technically, in a pedantic manner as opposed to fairly and reasonably, as had been observed by the Supreme Court in Express Newspapers (P) Ltd. (supra).
This Court appreciates the argument made by Mr. Ghosh as based on the application of Section 10(4) of the said Act to the scope of adjudication of the issues arising out of the dispute referred by the impugned order. Mr. Ghosh''s submission that there cannot be a dispute referred since 97 contract labour were not in the service of the petitioner when they made their claim for regularization, thus, taking such claim outside the scope of a dispute contemplated under the said Act, is to be seen as whether can be adjudicated by the Tribunal within the constraints placed upon it by Section 10(4) of the said Act. Mr. Ghosh''s other point of his client being precluded by the wording of the schedule to the impugned order is also to be seen. For that purpose the schedule to the impugned order is reproduced below.
"Whether the demand of the union namely Calcutta Port Shramik Panchayat for absorption and regularisation of 97 contract labour (as per list annexed) in the permanent service of Kolkata Port Trust, is legal and justified? If yes, to what relief they are entitled for?"
Section 10(4) of the said Act is reproduced below:
"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."
That the claim is of 97 contract labour for absorption and regularisation referred for adjudication itself proclaims the fact that they were not employees of the petitioner. Mr. Deb had handed over a list of dates which mentions that the contract was abolished on 7th July, 2005. The question referred specifies the point of dispute to be whether the absorption and regularization claims are legal and justified with the consequential declaration of relief if the answer to the question is in the affirmative. Necessarily the Tribunal in confining itself to the point of dispute referred would seek to adjudicate the same on facts found and law applied. However, in making that exercise the Tribunal would be well justified in refusing to adjudicate a further issue of its jurisdiction to at all enter into the merits of the question referred for adjudication on the objection that no dispute existed at all to be referred to it. The appropriate Government had already referred a dispute and the Tribunal would, therefore, have to adjudicate that dispute without being drawn into the question whether such dispute could at all be raised as precluded by application of Section 10(4) of the said Act. That appears to be the position in law as declared by the Supreme Court appearing from the several judgments of the said Court cited at the Bar. Mr. Ghosh in reply relied upon the case of Delhi Cloth and General Mills Co. Ltd. Vs. The Workmen and Others, AIR 1967 SC 469 : (1967) 14 FLR 4 : (1967) 1 LLJ 423 : (1967) 1 SCR 882 . He relied on the following portion in that judgment.
"From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word ''incidental'' means according to Webster''s New World Dictionary."
"happening or likely to happen as a result of or in connection with something more important: being an incident; casual; hence, secondary or minor, but usually associated."
"Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct. In the light of the above, it would appear that the third issue was framed on the basis that there was a strike and there was a lock-out and it was for the Industrial Tribunal to examine the facts and circumstances leading to the strike and the lock-out and to come to a decision as to whether one or the other or both were justified. On the issue as framed it would not be open to the workmen to question the existence of the strike, or, to the Management to deny the declaration of a lock-out. The parties were to be allowed to lead evidence to show that the strike was not justified or that the lock-out was improper."
Mr. Ghosh argued in reply in seeking to distinguish Express Newspapers (supra) that the said judgment was a judgment made by the Supreme Court in exercise of powers under Article 142 of the Constitution of India. Mr. Ghosh also submitted that consent cannot confer jurisdiction upon the Tribunal and, therefore, the challenge in the writ petition must be adjudicated upon by this Court.
It appears in Delhi Cloth & General Mills (supra) the decision in Express Newspapers (supra) was noticed. The Supreme Court in the later decision in Delhi Cloth & General Mills (supra) said the following in reference to its earlier judgment.
"This decision has been referred to by the Tribunal as giving it jurisdiction to examine the question as to whether there was a strike at all. Both sides have referred to this decision in support of their respective contentions. According to the respondents, the fact that the Tribunal could go into the question as to whether there was a lock-out or a closure went to show that the Tribunal''s jurisdiction was not limited because of the use of the word ''lock-out'' in the second issue so that the Tribunal was precluded from examining the question as to whether there was a lock-out at all while according to the appellants it was because the Tribunal had always to consider whether the issue referred was an industrial dispute that the Tribunal had to scrutinize whether the cessation of business of the company was due to a lock-out which it was competent to adjudicate upon or whether it was due to a closure which was not an industrial dispute at all.
In our opinion, there was enough material on the record in that case to show that the company had been trying for some time past to transfer its business elsewhere and the action of the appellant which followed the strike on April, 27, 1959 was in fact a closure and not a lock-out. The facts of that case were very special and the decision must be limited to those special facts."
From the above it emerges that the provision mandated under Section 10(4) of the said Act was interpreted with regard to its application by the Supreme Court which itself had made a distinction regarding the views expressed earlier in Express Newspapers (P) Ltd. (supra). Accordingly, this Court is unable to accept the submissions made by Mr. Deb that the Supreme Court in G.M. O. N. G.C. Shilchar (supra) had, according to him, independently negatived objections to question(s) referred by appropriate Government for adjudication by the Tribunal on the ground of applicability of Section 10(4) of the said Act to such question(s). In G.M.O.N.G.C. Shilchar (Supra) the Supreme Court did not take notice of its earlier judgment in Express Newspapers Ltd. (supra) but did notice the decision in Delhi Cloth & General Mills Co. Ltd. (supra). The view expressed in that decision with reference to Delhi Cloth and General Mills Ltd. (supra) in paragraphs 16 and 17, as has already been set out above, would go to show that they were with regard to references which were either loosely worded or cryptic and in such cases such loosely worded or cryptic references would not bar the real issues being raised as arising therefrom in complying with the provisions of Section 10(4) of the said Act to such wordings of references. Such view does not appear to be in contradiction with the law declared in Delhi Cloth and General Mills Co. Ltd. (supra) regarding what can be said to be an incidental issue arising out of the reference made.
For the reasons aforesaid this Court finds in favour of the petitioner. The wording of the schedule would preclude the issue of whether or not there existed an industrial dispute from adjudication by application of Section 10(4) of the said Act. It is no doubt true that a dispute regarding contract labour being absorbed and regularized can be referred and the industrial adjudicator may find the contract to be not genuine but a mere camouflage to thereby treat the contract labour as employees of the principal employer [see Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., AIR 2001 SC 3527 : (2001) 91 FLR 182 : (2001) 7 JT 268 : (2001) LabIC 3656 : (2001) 2 LLJ 1087 : (2001) 5 SCALE 626 : (2001) 7 SCC 1 : (2001) SCC(L&S) 1121 : (2001) 4 SCT 1 : (2001) AIRSCW 3574 : (2001) 6 Supreme 602 . However, the question referring such dispute has to be accordingly worded.
The impugned order is quashed and set aside. The submission of Mr. Ghosh is recorded that the appropriate Government might forthwith make a fresh reference for adjudication before the Tribunal. Accordingly, the writ petition is disposed of.
Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties on usual undertaking.
CAN 8125 of 2011
CAN application being No. 8125 of 2011 is disposed of in terms of this judgment.