Judgment · High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.01.2010CORAM:THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.688 of 2010A.Velayutham.. PetitionerVs.1.The Secretary to GovernmentGovernment of IndiaMinistry of Labour & EmploymentShram aut Rozgar, MantralayaNew Delhi 12.The Chairman and Managing DirectorIndian Overseas Bank763, Anna Salai, Chennai 600 002 .. Respondents Prayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Mandamus directing the 1st respondent toconsider the representation of the petitioner dated 15.6.2009 toamend the Schedule in the order of Reference dated 23.12.2008 inrespect of 'reinstatement' in the place of 'appointment' andregularisation and pass orders within a stipulated time. For Petitioner :: Mr.M.HidayathullakhanO R D E RThis is a most unfortunate case the workman is driven even toget a reference for adjudication by the Tribunal. The petitioner, who was employed in Indian Overseas Bank in a temporary capacityraised a dispute before the Assistant Labour Commissioner, CentralII, Chennai regarding his non-employment. When the said conciliationended in failure as early as May 2002, the Central Government, the1st respondent herein declined to refer the dispute and went into themerits of the case. This forced the petitioner to file a WritPetition being W.P.No.39150 of 2002 challenging the order decliningreference. This Court by an order dated 22.10.2008 allowed the WritPetition and directed the Central Government to grant a reference. https://hcservices.ecourts.gov.in/hcservices/

#2. It is pursuant to the said direction, the 1st respondent byan order dated 23.12.2008 under section 10(1) (d) and read withSection 2-A of the Industrial Disputes Act, 1947 referred the disputefor 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 forappointment and regularisation in the Indian Overseas Bankw.e.f.3.4.1995 is legal and justified. What relief theconcerned workman is entittled to?".3.Pursuant to the reference, the Tribunal had taken the caseon file as I.D.No.19 of 2009 and ordered notice to the 2nd respondentBank. The 2nd respondent had also filed a counter statement dated18.4.2009 before the Tribunal. In the meanwhile, the petitionerapprehending that the reference may give rise to certaincomplications sent a representation dated 15.6.2009 to the 1strespondent Central Government stating that the reference should beamended so as to include that his claim for reinstatement with effectfrom 3.4.2005 was legal and justified. Pending the saidrepresentation, the petitioner also filed a memo before the Tribunalstating that since the order of reference used the word 'appointment'and not reinstatement in the Schedule to the reference as extractedabove, he required further amendment. Therefore, he has come forwardto file the present Writ Petition seeking for a direction to theCentral Government to issue an order of amendment.4. It is most unfortunate that such a direction should besought especially when the earlier order of the Central Government isperfectly in order and does not give room for any confusion or anylegal hurdle in answering the dispute raised by the petitionerworkman. The order of reference itself referred to Section 10(1)(d)r/w 2-A of the Industrial Disputes Act. Only in cases where there isa non-employment of workman, which involves dismissal, discharge ortermination, a dispute can be raised by a workman. In the earliercase, since the Central Government had gone to the merits of thedispute, this Court had specifically set aside the order decliningreference and ordered a positive direction for referring the matter.It is pursuant to the said direction, the present reference has beenmade. There is no difficulty for the Tribunal to adjudicate such areference, since the reference arose out of the non-employment of thepetitioner. Though under section 10(4) of the Industrial DisputesAct, the Tribunal shall confine its adjudication to the pointsreferred and the matters incidental thereto, it is not as if theTribunal cannot read the real intention or the lis between theparties in answering a reference. https://hcservices.ecourts.gov.in/hcservices/

#5. It has been held in Minimax vs. its workers reported in1968 (1) LLJ 369 that an order of reference hastily drawn or drawnin a casual manner often gives rise to unnecessary disputes andthereby prolongs the life of industrial adjudication which must beavoided. But, however, the court struck a note of caution bystating that the courts must attempt to construe the reference nottoo technically or in a pedantic manner but fairly and reasonably.6. The same view was also reiterated by the Court in ExpressNewspapers v. Their workers and staff reported in 1962 (2) LLJ 227.7. Further, the Supreme Court in Delhi Cloth and General Millsvs. its workmen reported in AIR 1967 SC 469 has held that theTribunal must look to the pleadings of the parties to find out theexact nature of the dispute because in most cases the order ofreference is so cryptic that it is impossible to cull out therefromthe various points about which the parties were at variance leadingto the trouble.8. In the light of the wealth of the legal principle, it isunnecessary for the petitioner to rush to this Court in seeking fordirection to the first respondent for amendment of the reference. The present reference made by the Central Government which is seizedby the Central Government Industrial Tribunal as I.D.No.19 of 2009 issufficient to answer the grievance projected by the workman. 9. With these observations, the writ petition stands dismissedas unnecessary. No costs. Sd/-Asst. Registrar//True Copy//Sub Asst. RegistrarajrTo1.The Secretary to GovernmentGovernment of India, Ministry of Labour & EmploymentShram aut Rozgar, Mantralaya, New Delhi 1 https://hcservices.ecourts.gov.in/hcservices/

#2. The Chairman and Managing DirectorIndian Overseas Bank763, Anna Salai, Chennai 600 002+ 1 cc to Mr.M.Hidayathulla Khan, Advocate, SR 2890/10W.P.No.688 of 2010SV (CO)RH (29.1.10)