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PETITIONER: M/s.  U. P. ELECTRIC SUPPLY CO., LTD.

       Vs.

RESPONDENT: THE WORKMEN OF M/s.  S. N. CHOUDHARY,CONTRACTORS AND ANOTHER

DATE OF JUDGMENT: 08/03/1960

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1960 AIR  818            1960 SCR  (3) 189

ACT: Industrial  Dispute-Tyibunal deciding issue not referred  to it--jurisdiction-U.P.  Industrial Dispute Act, 1947  (XXVIII Of 1947), ss. 34 (Proviso) 5, 8.

HEADNOTE: The  appellant company used to employ Messrs.  S.  M.  Chou- dhary  as its contractors for doing certain work for it  and the contractors in their turn used to employ some workmen to carry  out the work which they took on contract.  A  dispute having  arisen between the contractors and their workmen  an application  was made before the conciliation board  by  the workmen  in which both the company and the contractors  were parties and four matters were referred, namely, non-grant of bonus  for two years, non-grant of festival  holidays,  non- fixation  of minimum wages of those workmen at par with  the workmen  of  the company and non-abolition of  the  contract system.  As conciliation failed the Government referred  the dispute to the Industrial Tribunal under the U.P. Industrial Disputes  Act  in which only three points out  of  the  four mentioned  above  were  referred and the  question  of  non- abolition  of  the contract system was  not  referred.   The parties  to  this reference were the contractors  and  their workmen  and  not the appellant company.   By  a  subsequent notification, however, the Government impleaded the  Company as  a  party to the dispute but did not amend  the  previous referring order by 190 adding  the  fourth point of dispute which  was  before  the conciliation   board,  namely,  the  non-abolition  of   the contract system.  The Industrial Tribunal framed a number of issues  the most important of which was whether the  workmen concerned were the employees of the appellant company or  of the  contractors  and  came to  the  conclusion  that  those workmen  were  in fact and in reality the employees  of  the company.  On appeal by the company by special leave, Held,   that  on  such  a  reference  there  could   be   no jurisdiction in the tribunal to decide the question  whether these  workmen  were the workmen of the company  or  of  the contractors,  for  such a question was not referred  to  the tribunal.

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JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 481 of 1958. Appeal by special leave from the Award dated June 29,  1957, of  the State Industrial, Tribunal U.P. Allahabad,  in  Ref. No. 98 of 1956. M.C. Setalvad, Attorney-General for India, S. N.  Andley, J.  B. Dadachanji, Rameshuar Nath and P. L. Vohra, for  the, appellants. A.   D. Mathur, for respondent No. 1. G.   C. Mathur and C. P. Lat, for respondent No. 2. G.   N. Dikshit and C. P. Lal, for the intervener. 1960.  March, 8. The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal by special leave against  the order of the Industrial Tribunal, Allahabad.  The  appellant is the U. P. Electric Supply Co. Ltd., Lucknow, (hereinafter called  the company).  It appears that the company  used  to employ  Messrs. s M.  Choudhary (hereinafter referred to  as the  contractors) as its contractors for doing certain  work for  it.  The  contractors in their turn used  to  employ  a number of persons to carry out the work which they had taken on  contract.  A dispute arose between the  contractors  and their workmen in 1956 and an application was made on June 6, 1956, by the workmen before the conciliation board.  To this application both the company as well as the contractors were parties and four matters were referred by the workmen to the conciliation  board, namely, (i) non-grant of bonus for  the years  1953-54  and  1954-55;  (ii)  nongrant  of   festival holidays;  (iii)  non-fixation  of minimum  wages  of  these workmen at par with the 191 workmen  employed by the company; and (iv)  nonabolition  of the  contract  system.  Efforts at conciliation  failed  and thereupon  the Government of Uttar Pradesh made a  reference to  the  Industrial  Tribunal under  the  U.  P.  Industrial Disputes  Act, No. XXVIII of 1947, (hereinafter  called  the Act).  In this reference only three points were referred out of  the  four  which were  before  the  conciliation  board, namely,  those  relating  to bonus,  festival  holidays  and payment of wages to these workmen at par with the workmen of the  company.  The fourth point which was raised before  the conciliation  board (namely, non-abolition of  the  contract system)  was  not referred.  The parties to  this  reference were two, namely-(i) the contractors and (ii) their workmen. The appellant was not a party to this reference.  On  August 13,  1956,  another  notification was issued by  the  U.  P. Government  under  ss. 3, 5 and 8 of the Act  by  which  the company was impleaded as a party to the dispute referred  by the  notification  of  July 31,  1956.   It  is  remarkable, however, that the matters of dispute which were specified in the reference dated July 31, 1956, were not amended as  they could  have  been under the proviso to s. 4 of the  Act,  by adding the fourth point ’of dispute before the  conciliation board,  namely,  the non-abolition of the  contract  system. When  the  matter  came up before the  industrial  court  it framed a number of issues; and the first and most  important issue ran thus: "Are the workmen concerned employees of  the U. P. Electric Supply Co. Ltd., Lucknow or of Messrs.  S. M. Chaudhary, contractors ? " The  main objection of the company was that the dispute,  if any was between the contractors and their employees and that there  was no dispute between the company and  its  workmen. It  was  further objected that there was no valid  or  legal order  of the Government referring any dispute  between  the

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company  and its workmen to the tribunal and  therefore  the tribunal  had no jurisdiction.  On the merits it  was  urged that  the  workmen  concerned were not the  workmen  of  the company  and  there  was no  relationship  of  employer  and employee between the company and these workmen and therefore the company could not be regarded 192 as a party to the dispute between the contractors and their workmen. It  is  therefore  clear that the main  question  which  was considered by the tribunal was whether the workmen concerned were  the workmen of the company or of the contractors.   As the  tribunal itself says, " the crux of the whole case  was whether  the  workmen concerned were the  employees  of  the company  ".  The  tribunal went into the  evidence  in  this connection  and  came to the conclusion that  these  workmen were in fact and in reality the employees of the company. The  main contention on behalf of the company before  us  is that even assuming that the Government had power under s.  5 read   with  cl.  12  of  G.  O.  No.   U-464   (LL)XXXVI-B- 257(LL)/1954, dated July 14, 1954, to implied the company as a  party,  the main issue decided by the  tribunal  was  not referred to it and the tribunal could only decide the  three matters  of  dispute included in the order of  reference  of July  31, 1956.  Therefore, in so far as the  tribunal  went beyond  the,  three  matters of  dispute  specified  in  the reference  and  decided  the question  whether  the  workmen concerned  were  in  the employ of the  company  or  of  the contractors  it  was  acting without  jurisdiction  as  this matter was never referred to it. We are of opinion that this contention must prevail.  As  we have already pointed out, there were four matters before the conciliation  board including the question of  non-abolition of  the  contract system.  Further before  the  conciliation board  not only the contractors but the company was  also  a party,  for obviously the question of non-abolition  of  the contract  system  would  necessitate  the  presence  of  the company  as  a party to the proceedings.  When  however  the Government referred the dispute to the tribunal on July  31, it  did  not include the fourth item which  was  before  the conciliation  board  relating to the  non-abolition  of  the contract  system among the matters in dispute.  It also  did not  include  the  company  as one of  the  parties  to  the dispute, for the reference-order refers only to two  parties to  the dispute, namely, the contractors and their  workmen. On such a reference there could be no jurisdiction in 193 the  tribunal to decide the question whether  these  workmen were  the workmen of the company or of the contractors,  for such  a  question was not referred to the tribunal.   It  is true that on August 13, 1956, the company was impleaded as a party to the dispute referred by the notification of July 31 ;  but  the matters in dispute remained  unmended,  and  the question  of  non-abolition of the contract  system  or  the question  whether  these workmen were the employees  of  the company  in  fact  and in reality was not  included  in  the matters of dispute by amendment under the proviso to s. 4 of the  Act.   In  these  circumstances  it  is  immaterial  to consider whether the impleading of the company as a party on August 13, 1956, was legal and valid or not.  Assuming  that it  was legal and valid, the fact remains that issue  No.  1 set  out  above by us which is undoubtedly the crux  of  the question  in this case was not referred to the  tribunal  at all  and did not arise out of the three matters  of  dispute specified in the reference order of July 31, 1956.  In these

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circumstances  the  order of the tribunal by which  it  held that  these  workmen  were the workmen of  the  company  was beyond  its jurisdiction.  The entire order of the  tribunal is  directed against the company and must therefore  be  set aside  in  whole  as without jurisdiction and  we  need  not express  any opinion on the merits.  We therefore allow  the appeal  and set aside the order of the tribunal against  the appellant.   In  the circumstances we pass no  order  as  to costs. Appeal allowed. 25 194