IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2010 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.No.688 of 2010 A.Velayutham .. Petitioner Vs. 1. The Secretary to Government Government of India Ministry of Labour & Employment Shram aut Rozgar, Mantralaya New Delhi 1 2. The Chairman and Managing Director Indian Overseas Bank 763, Anna Salai, Chennai 600 002 .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the 1st respondent to consider the representation of the petitioner dated 15.6.2009 to amend the Schedule in the order of Reference dated 23.12.2008 in respect of 'reinstatement' in the place of 'appointment' and regularisation and pass orders within a stipulated time. For Petitioner :: Mr.M.Hidayathullakhan O R D E R
This is a most unfortunate case the workman is driven even to get a reference for adjudication by the Tribunal. The petitioner, who was employed in Indian Overseas Bank in a temporary capacity raised a dispute before the Assistant Labour Commissioner, Central II, Chennai regarding his non-employment. When the said conciliation ended in failure as early as May 2002, the Central Government, the 1st respondent herein declined to refer the dispute and went into the merits of the case. This forced the petitioner to file a Writ Petition being W.P.No.39150 of 2002 challenging the order declining reference. This Court by an order dated 22.10.2008 allowed the Writ Petition and directed the Central Government to grant a reference.
2. It is pursuant to the said direction, the 1st respondent by an order dated 23.12.2008 under section 10(1) (d) and read with Section 2-A of the Industrial Disputes Act, 1947 referred the dispute for adjudication by the Central Government Industrial Tribunal-cum-Labour, Chennai. The Schedule of the order reads as follows:
“Whether the claim of Shri A.Velayudham, casual workman for appointment and regularisation in the Indian Overseas Bank w.e.f.3.4.1995 is legal and justified. What relief the concerned workman is entittled to?”.
3. Pursuant to the reference, the Tribunal had taken the case on file as I.D.No.19 of 2009 and ordered notice to the 2nd respondent Bank. The 2nd respondent had also filed a counter statement dated 18.4.2009 before the Tribunal. In the meanwhile, the petitioner apprehending that the reference may give rise to certain complications sent a representation dated 15.6.2009 to the 1st respondent Central Government stating that the reference should be amended so as to include that his claim for reinstatement with effect from 3.4.2005 was legal and justified. Pending the said representation, the petitioner also filed a memo before the Tribunal stating that since the order of reference used the word ‘appointment’ and not reinstatement in the Schedule to the reference as extracted above, he required further amendment. Therefore, he has come forward to file the present Writ Petition seeking for a direction to the Central Government to issue an order of amendment.
4. It is most unfortunate that such a direction should be sought especially when the earlier order of the Central Government is perfectly in order and does not room for give any confusion or any legal hurdle in answering the dispute raised by the petitioner workman, the order of reference itself referred to Section 10(1)(d) r/w Section 2-A of the Industrial Disputes Act. Only in cases where there is a non-employment of workman, which involves dismissal, discharge or termination, a dispute can be raised by a workman. In the earlier case, since the Central Government had gone to the merits of the dispute, this Court had specifically set aside the order declining reference and ordered a positive direction for referring the matter. It is pursuant to the said direction, the present reference has been made. There is no difficulty for the Tribunal to adjudicate such a reference, since the reference arose out of the non-employment of the petitioner. Though under section 10(4) of the Industrial Disputes Act, the Tribunal shall confine its adjudication to the points referred and the matters incidental thereto, it is not as if the Tribunal cannot read the real intention or the lis between the parties in answering a reference.
5. It has been held in Minimax vs. its workers reported in 1968 (1) LLJ 369 that 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 be avoided. But, however, the court struck a note of caution by stating that the courts must attempt to construe the reference not too technically or in a pedantic manner but fairly and reasonably.
6. The same view was also reiterated by the Court in Express Newspapers v. Their workers and staff reported in 1962 (2) LLJ 227.
7. Further, the Supreme Court in Delhi Cloth and General Mills vs. its workmen reported in AIR 1967 SC 469 has held that the Tribunal must 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.
8. In the light of the wealth of the legal principle, it is unnecessary for the petitioner to rush to this Court in seeking for direction to the first respondent for amendment of the reference. The present reference made by the Central Government which is seized by the Central Government Industrial Tribunal as I.D.No.19 of 2009 is sufficient to answer the grievance projected by the workman.
9. With these observations, the writ petition stands dismissed as unnecessary. No costs.
ajr
To
1. The Secretary to Government
Government of India
Ministry of Labour & Employment
Shram aut Rozgar, Mantralaya
New Delhi 1
2. The Chairman and Managing Director
Indian Overseas Bank
763, Anna Salai,
Chennai 600 002