ORDER
S.K. Dubey, J.
1. The petitioner-employer has challenged the award of the Central Government Industrial Tribunal dated December 19, 1989 (Annexure -2) whereby on an industrial dispute being raised by the Respondent No. 1, the Union, the appropriate Government referred the dispute vide order dated January 30, 1986 for adjudication of the Tribunal in the following terms of reference.
“Whether the action of the management of] Chirimiri Area of Western Coal fields Limited, P.O. Chirimiri Colliery, Distt. Surguja (M.P.) in not giving an opportunity to the workers (listed in the annexure to the schedule), subsequent to their termination from services is justified, if not, to what relief are these workers entitled”
In the first round, the reference was answered in negative. Aggrieved of that the Union preferred a writ petition being M.P. No. 375/88, wherein this court, by order dated August 2, 1989, remitted the case to the Tribunal for deciding the reference and for passing a fresh award in respect of it according to law with advertence to the observations made in the order which are extracted thus:
“It is apparent from reading the said reference that it proceeded on the assumption that the persons mentioned in the schedule had been employed as the workers by the respondents and the only question which was to be decided by the Tribunal was whether after the termination of their services they were entitled to be re-employed under Section 25H of the Industrial Disputes Act.
In our opinion, the above said being the scope of the reference, the Tribunal committed an error, which is apparent on the face of the record, by examining the question whether the persons mentioned in the schedule had ever been employed as workmen by the respondent-employer. The said matter was beyond the scope of reference and the Tribunal committed an error of jurisdiction in proceeding to decide the said question.”
2. After remand the Tribunal recorded the evidence of the parties and held the termination of 45 workmen amounting to retrenchment under Section 2(oo) of the Industrial Disputes Act, 1947 (for short the ‘Act’) without complying the mandatory conditions of Section 25F the Act of the petitioner/employer was also held violative of Section 25G of the Act, therefore, directed reinstatement with full back-wages right from December, 1980. The Tribunal also expressed in the last paragraph of its award that a suitable action be taken against the management for their misconduct and the defaulting officers be punished who have put the workmen out of employment to fill up their own men and mislead the Government and the Court by withholding the facts on false pretext.
3. Shri P.S.Nair, learned counsel for the petitioner contended that the reference made by the appropriate Government is bad and vague, therefore, the reference so made deserves to be quashed. Then the learned counsel submitted that the Tribunal has travelled beyond the terms of the reference in as much as there was no term of reference for declaring the termination of workmen as illegal and for grant of the relief. The term of reference as clarified by this Court, related to the re-employment of the workmen so retrenched in view of Section 25H of the Act, therefore the Tribunal could not have declared the retrenchment of the workmen as illegal. The Tribunal, utmost would have directed re- employment without any wages for the back period. Learned counsel criticised the direction made in the last paragraph of the award which is without jurisdiction as there was no such question involved. The direction is unwarranted and against the principles of natural justice and it is settled that no person can be condemned at his back.
4. Shri R.K.Gupta learned counsel for the respondent No. 1 supported the award and contended that in fact when the petitioner gave re-employment to certain other workmen in the year 1981-82, the workmen, for whom the dispute was raised, was also entitled to re-employment, therefore, the action of the petitioner was in violation of Section 25H and as such from that period, Tribunal rightly direct reinstatement and payment of back-wages.
5. The first contention that the reference be quashed being vague has no merit. In view of this Court’s order dated August 2, 1989 which clarified the term of reference and remitted it to the Tribunal to decide the case in accordance with law with advertence to the observations made in the order. That order was not challenged by the petitioner, the petitioner after remand took part in the proceedings before the Tribunal with full understanding of the term of reference, therefore now the petitioner cannot be allowed to challenge the reference is bad being vague.
6. Coming to the next contention that the Tribunal was not called upon to decide the question whether retrenchment of these workmen was illegal and void, and as a consequence of that, to what relief the workmen are entitled, in the opinion of this court, the Tribunal has certainly exercised its jurisdiction by travelling beyond the term of reference as the dispute referred for adjudication was limited to re-employment in view of Section 25H of the Act, therefore, there was no occasion for the Tribunal to declare the termination of 1980 as illegal and void in contravention of Sections 25F and 25G of the Act. Hence, directing the reinstatement with back wages from the date of retrenchment is illegal and without jurisdiction.
7. On facts, the action of not giving re-employment of retrenched workmen is certainly illegal, and that cannot be assailed but, for that the award of back-wages right from the date of retrenchment is illegal. The Union raised the dispute in the year 1985, and the appropriate Government referred the dispute, vide order dated January 30, 1986, therefore, if analogy of normal rule reinstatement follows backwages on declaration of an order of termination, is illegal is applied, in that case too the back pay cannot be awarded prior to the date of raising the dispute. In fact it is the discretion of the Tribunal, which has to be exercised judicially in the fact situation of a particular case. Therefore this Court while maintaining the award in respect of re-employment, has no option, but to remit the case again to the Tribunal for determining the question relating to entitlement and quantum of back wages.
8. There is yet another reason for remitting the case as to who are those workmen, who are entitled for re-employment. In this petition itself several persons have filled applications for intervention stating that they are genuine workmen who are entitled for re-employment of which some are represented by Shri S. S. Tiwari, Advocate and some are not represented . Therefore, to find out who are genuine and real persons who are entitled for re-employment this Court gave a direction to Regional Labour Commissioner to hold an enquiry and to record a finding so that real persons may get the re employment and the relief in terms of the award of the Tribunal. But that enquiry could not be completed by the R.L.C., who filed M.C.C. No. 639/94 wherein, it is stated that the matter is being delayed either because of the counsel for parties or because of the workmen or sometimes because he is busy in discharge of pubic duty. Therefore, a prayer for extension of time for 6 months has been made to conclude the enquiry. Shri O.P. Namdeo, advocate who represented R.L.C. in these proceedings also submitted that as the case is being sent to the Tribunal this question be also determined by the Tribunal.
9. After hearing the learned counsel for parties, including those of intervenors and Shri Namdeo and looking to the serious controversy in respect of identity of genuine and real workmen who were retrenched it would be just and proper to direct the Tribunal to hold an enquiry in the matter so that after recording of evidence of all the rival persons, the Tribunal may record as to identify of real workmen and may specify while passing the award afresh in relation to their entitlement of re-employment and quantum of ancillary benefit.
10. As a result of the above the award so far as it relates to the grant of back wages is quashed and the case is sent back to the Tribunal for deciding the matter afresh in the light of the direction given hereinabove. The Tribunal shall hold an enquiry in respect of the identity of the real and genuine workmen and pass an award in accordance with law specifying the persons who are entitled to re-employment and back wages if awarded. The Tribunal shall see that the award is passed expeditiously as far as possible within a period of six months. It is expected of the parties to co operate with the Tribunal so that the award be passed expeditiously. Parties shall appear before the Tribunal on December 19, 1994 for which no notice shall be issued to the parties as the parties have been noticed here. The R.L.C. is also directed to transmit the original record of the enquiry conducted by it so far with all the proceedings to the Tribunal by retaining the photo copy of the record.
11. In view of the fact, that the case has been sent back, till the Tribunal passes a fresh award in terms of the directions given herein above, the petitioners need not deposit the last drawn wages to such workmen in compliance of Section 1/-B of the Act. After the fresh award is passed and the real persons are identified and specified, the petitioner shall re-employ them and shall make the payment as may be directed by the Tribunal.
12. Now, the last submission relates to direction of the Tribunal for taking suitable action against the defaulting officers, suffice it to say that the direction is ‘De premisses’ i.e. traveling beyond the subject matter and is against the principle ‘Audi alterm partem” i.e no party should be condemned unheard. So decision of the Supreme Court in Tarapore & Co (1994) 3 SCCP. 521 and Dr. I.B. Gupta’s case (1994 Supp (2) SCC p.37 Accordingly., the direction for taking suitable action against the defaulting officers is also quashed.
13. At this stage Shri R.K.Gupta submits that the record of M.P.No. 3141/94 for facilitating the enquiry in respect of the identification of workmen would be necessary as the two sets of photograph of the same persons have been filed by the intervenors. For that, the petitioner, if so advised, may move the Tribunal by an appropriate application for summoning of the record.
14. In the result, the petition is disposed of in the manner aforesaid with a direction to the Tribunal, to pass a fresh award, so far as it relates to payment of back wages, and identity of workmen who are entitled for re-employment and payment of other benefits.
No costs.
