JUDGMENT
A.S. Naidu, J.
1. The award dated 21.9.2000 (Annexure-5) passed by the Presiding officer, Industrial Tribunal, Rourkela in I.D. Case No. 37/97(C) is assailed in this case. According to the petitioner he Was an employee under opposite party No. 1 and his services were illegally terminated with effect from 20.5.1992. He raised an industrial dispute and conciliation having failed, Government of India in the Ministry of Labour in exercise of power conferred under Clause (d) of Sub-section (1) and Sub-section (2A) of Section 10 of the Industrial Disputes Act referred the following dispute to the Presiding Officer, Industrial Tribunal, Rourkela for adjudication :
whether the action of the management of M/s. Tata Iron and Steel Co, Ltd., Dist. : Keonjhar in dismissing Sri Nityananda Panigrahi, P. No. 92154 vide letter dt. 20.5.92 was justified ? If not, to what relief the workman is entitled ?
2. According to the petitioner-workman in course of his service a domestic enquiry was conducted against him on several frivolous allegations. Though he raised objection, the management paid no heed to the same. The said enquiry was conducted in an illegal manner without following the principles of natural justice and equity and without affording him opportunity to defend himself, and culminated in his dismissal from service with effect form 21.5.1992. The workman has prayed that the order of his dismissal from service being illegal the same might be quashed and the management might be directed to reinstate him in service with full back wages.
The management, at the other hand, strongly repudiated the averments of the workman. According to it, the conduct of the petitioner was deplorable. Charges were properly framed against the workman, a domestic enquiry was conducted in consonance with the Standing Order and Rules of the management, enough opportunity was given to the workman to defend himself and after following the principles of natural justice and conducting the enquiry in a most fair and legal way ultimately the order of dismissal was passed. It was emphatically submitted that the impugned order was just and proper and any submission to the contrary were unfounded.
3. On the basis of the pleadings of the parties, the Tribunal framed as many as four issues and considering the materials available before it though the Tribunal answered all the issues in favour of the workman, in the concluding paragraph it was observed that in Clause 25 of the Memorandum of Settlement dated 23.8.1976 an Arbitration committee consisting of one representative each to be nominated by the management and the union was to be constituted to deal with the cases of appeal on discharge and dismissal of employee of the Mines Division and award of the said Committee would be final and binding on all the parties concerned. Further in consonance with Clause XXXVIII of the Memorandum of Agreement dated 11.9.1989 providing for appeal against discharge/dismissal, it was agreed that the provision of Clause 25 of the aforesaid Memorandum of Settlement dated 23.8.1976 would continue. Therefore against the order of dismissal of the workman, an appeal was to be preferred before the Arbitration Committee. On the basis of such observation/conclusion the Tribunal held that as the workman did not prefer appeal before the Arbitration Committee, the dispute could not be referred to it under Section 10-A of the I.D. Act.
4. Mr. Das, learned Counsel appearing for the workman, forcefully submitted that the Tribunal lacked initial Jurisdiction to question the reference made to it. According to him, the Tribunal could not go into validity of the said reference. The Union of India having exercised its power under Clause (d) of Sub-section (1) of Section 10 of the I.D. Act referred the dispute to the Tribunal, it was incumbent upon the latter to decide the same. Thus the conclusion arrived at by the Tribunal was unjust and contrary to law.
The second contention of Mr. Das is that the aforesaid Memorandum of Settlement dated 23.8.1976 though was binding on the workman, the same had spent its force in course of time and the Agreement dated 11.9.1989 could not extend the provisions of Clause 25 of the Memorandum of Settlement, According to Mr. Das, the Tribunal acted illegally and with material irregularity in holding that no reference could be made under Section 10-A of I.D. Act.
5. Both the aforesaid contentions of Mr. Das are strongly repudiated by Mr. S. P. Sarangi, learned Counsel appearing for the management. According to Mr. Sarangi, the Memorandum of Settlement dated 23.8.1976 is binding on the parties in terms of the Memorandum of Agreement dated 11.9.1989. In view of the specific provision in Clause 25 of the Memorandum of Settlement the alternative redressal forum being available to a dismissed/ discharged employee by way of appeal to the Arbitration Committee, the Tribunal rightly came to the conclusion that no reference could be made to it under Section 10-A of the Act and the impugned award calls for no interference.
6. I have heard learned Counsel for the parties at length and have perused the materials on record. In the Writ application no stand has been taken specifically by the petitioner that he was not bound by the aforesaid Memorandum of Settlement dated 23.8.1976 or the Memorandum of Agreement dated 11.9.1989.
In absence of such stand/pleading, this Court does not entertain the submission now advanced, more so when the management had no opportunity before the Tribunal to countenance the same. Therefore consideration of such submission by this Court would cause prejudice to the management-opposite party.
7. So far as the observation of Tribunal with regard to validity/ maintainability of the reference to it under Section 10-A of the I.D. Act is concerned, it is well settled that Industrial Tribunal is a creation of Statute and it gets jurisdiction on the basis of a reference. Therefore a Tribunal cannot go into the question of validity of a reference, as has been held by the Supreme Court in the case of National Engineering Industries Ltd. v. State of Rajasthan and Ors. reported in 2000 Lab.I.C. 260. But then, as would be evident from the facts and circumstances of the case, there was Memorandum of Settlement among the parties since as long back as 23.8.1976 and Mr. Das does not dispute its applicability to the petitioner and other workmen. In consonance with Clause 25 of the said Memorandum of Settlement, an Arbitration Committee has been constituted for redress of the grievances of the employees dismissed/discharged from service by way of appeal. The said Clause, as would be evident from the Memorandum of Agreement dated 11.9.1989 has been still in force. In view of such alternative redressal forum being available, this Court feels that the reference made to the Tribunal was not in consonance with law. Thus this Court finds no reason to interfere with the impugned award.
8. It is however submitted by Mr. Das that the petitioner was a poor workman and substantial injury has been caused to him by the order of dismissal from service basing on the report’ of a domestic enquiry which was conducted in a perfunctory manner. Considering such submission and taking a liberal view, this Court direct that though substantial time has expired in the meanwhile, in the event the petitioner prefers an appeal before the Arbitration Committee within eight weeks hence, the said Committee shall dispose of the said appeal in consonance with law expeditiously, preferably within four month thereof.
With the aforesaid observation/direction this Court disposes of the Writ application.
This judgment be communicated to the opposite party management a, the cost of the petitioner.