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PETITIONER: JAIPUR UDYOG LTD.

       Vs.

RESPONDENT: CEMENT WORK KARMACHARI SANGH, SAHU NAGAR.

DATE OF JUDGMENT28/01/1972

BENCH: MITTER, G.K. BENCH: MITTER, G.K. VAIDYIALINGAM, C.A. DUA, I.D.

CITATION:  1972 AIR 1352            1972 SCR  (3) 296  1972 SCC  (1) 691

ACT: Industrial  Disputes Act--S.  10(1)(d)--Tribunal  cannot  go beyond the scope of reference.

HEADNOTE: The  appellant,  a  public Limited  Company,  had  a  Cement Factory  and at a distance, a limestone quarry. it  had  two standing orders for the workman employed in the factory  and in  the quarries.  Upto April, 1967, both sets  of  standing orders provided for superannuation of the workmen at the age of  55 with a stipulation for extension upto 60 years  if  a workman  was  found  fit to work.  After a  dispute  at  the Cement Factory, a settlement was arrived at by which it  was agreed  that  the standing order applicable  to  the  Cement Factory be amended by raising the age of superannuation from 55 to 58 without making any provision for further  extension and  accordingly,  the  amendment was  made.   Nothing  was, however,  done with regard to the superannuation age of  the employees at the quarry. On April 3, 1968, the appellant intimated the incline driver at  the quarry that he had reached the age of retirement  on 3-4-68 and accordingly he was given notice of retirement  in terms  of the standing order.  On April 30, 1968,  the  said workman wrote to the appellant that although service records showed  him to be 55 years of age, his proper age  according to  his  horoscope, was about 50 years and  so  his  service records  should  he amended accordingly, but  the  appellant refused.   The  Union took up the cause of  the  worker  and requested the Regional Labour Commissioner to put the worker back  to  work.  On a reference under S. 10(1)  (d)  of  the Industrial Disputes Act, the Tribunal took the view that the Cement  Factory and the quarries were two units of the  same establishment and so, there should be a uniform set of rules for  the workmen of the Company as a whole.  In the  result, the Tribunal held that there could not be a lower age limit of  superannuation  for workmen at the quarry  specially  in view  of the fact that workmen were  admittedly  transferred from one unit to the other.  As a consequence, the  Tribunal quashed   the   order   of  dismissal   and   directed   the reinstatement of the workman with full back wages. It  was contended by the Company before this Court that  the

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Tribunal  was wrong in construing the order of reference  to include  a dispute as to whether it was open to the  Company to have two sets of standing orders providing for  different ages  of  superannuation.  According to the  appellant,  the dispute  between the parties was whether or not the  Company was  justified in coming to the conclusion that the  workman concerned had reached the age of 55 on April 3, 1968, and as such,  was  to  be superannuated in terms  of  the  standing orders, Setting aside the award, HELD  : The Tribunal had not taken care to examine what  was the dispute between the parties when the government made the order  of reference.   No dispute was ever raised either  by the  workman  or  the Union that the age  of  superannuation governing the workman was not 297 55  years.   The finding of the Tribunal  that  the  Company could  not fix a lower age limit of superannuation  for  the workman at the quarries went beyond the scope of  reference. The Tribunal never addressed itself to the point of view  of the workman that his proper age was only 50 and not 55;  nor did  it come to a finding that the true age of  the  workman being  50  years  in  1968, there was  no  question  of  his superannuation in that year. [302 C] The Sindhu Resettlement Corporation Ltd. vs.  The Industrial Tribunal, Gujarat & Ors. [1968] 1 S.C.R. 515 referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1166 of 1971. Appeal  by special leave from the Award dated  December  19, 1970  of the Central Government Industrial Tribunal,  Jaipur in Case No. CIT-10 of 1968. M.  C. Setalvad, K. K. Jain, C. N. Sharma, C. S.  Patel  and Bishamber Lal, for the appellant. M. K. Ramamurthi and J. Ramamurthi, for the respondent. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an  award of  the  Central Government Industrial  Tribunal,  Rajasthan directing  the  reinstatement of one Bhisham  Verma  in  the service of the appellant with full back wages. The facts are as follows. The appellant is a public  limited company  with its registered office at Sawaimadhopur in  the State  of  Rajasthan. It has a cement factory  at  the  said place  besides a limestone quarry at Phallodi situate  at  a distance of 24 kms. from the  cement  factory.  It  has  two separate sets of Standing Orders for the workmen employed in the factory and in the quarries.Both sets of Standing Orders were  certified  in accordance with the  provisions  of  the Industrial   Employment  (Standing  Orders)  Act,1946.   The Standing  Orders applicable to the workmen employed  in  the factory  were  certified  in  the  year  1954  while   those applicable to the workmen of the quarries were certified  in the year 1961.Up to April 1967 both sets of Standing  Orders provided for   superannuation  of the workmen at the age  of 55  with  a stipulation for extension up to 60  years  if  a workman  was  found  fit to work.On a  dispute  having  been raised  for the raising of the age of superannuation of  the workmen  at the cement factory, a settlement was arrived  at between the appellant and the respondent (a registered trade union of the employees) on 16th December 1966 whereby it was agreed  that Standing Order No. 21 applicable to the  cement factory be amended by raising the age of superannua(ion from 55 to 58 years without making any provision for further 298

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extension.  A joint application following upon the agreement was moved by the appellant and the respondent for  modifying the,  Standing  Order  No. 21 with respect  to  the  age  of superannuation  which  was accordingly  done.   Nothing  was however  done  with regard to the age of  superannuation  of the,  employees  at the quarry, the relevant clause  in  the Standing Order remaining unaltered. On  April 3, 1968 the appellant intimated the  said  Bhisham Varma,  incline driver at the quarry, that he "had  exceeded the age of retirement on 3-4-1968" and as such he was  given "notice  of retirement in accordance with clause 21  of  the Standing  Orders of the quarries with effect from the  close of  work on 2-5-1968".  On April 30, 1968 the  said  workman wrote  to  the  appellant that  although  according  to  the service  file  he  had  completed the age  of  55  years  as indicated,  his  proper age according to his  horoscope  was about  50  years and his service record  should  be  amended accordingly.  The appellants’ reply to the above dated  July 9, 1968 was to the effect that his case had been  reexamined and  that his retirement, as already intimated  on  3-4-1968 would stand.  The Union took up the cause of the worker  and addressed  a letter on July 18, 1968 to the Regional  Labour Commissioner requesting that arrangements may be made to put the  worker back to work and take proper legal  proceedings. On behalf of the workman it was represented that he had been working  in  the company since October 11,  1957,  that  the Personnel   Manager  of  the,  quarry  had,   given   orders dismissing  him  from service on April 3, 1968 and  that  in spite  of  objections made by the workman that there  was  a mistake in the papers of the company with regard to his  age which  was  50 as supported by his  horoscope  and  doctor’s certificates  the action of the quarry manager  was  illegal and contrary to service contract.  The record does not  show what  if any other steps were taken by the parties when  the Central Government made an order of reference under s. 10(1) (d) of the Industrial Disputes Act ,reading :               "Whether  the action of the management of  the               Jaipur  Udyog Limited, P.O.  Phallodi  Ouarry,               Sawaimadhopur  in terminating the services  of               Bhisham  Varma,  incline driver,  with  effect                             from    9th   July   1968,   on   grou nds    of               superannuation  was legal and justified  ?  If               not to what relief is he entitled ? Before the Tribunal, the respondent Union filed a  statement of  claim  wherein after reciting the action  taken  by  the appellant and the representation made by the workman it  was stated that the quarry and the cement factory were under one and  the  same management and there was  complete  financial integrality  between  the activities of the company at  both the places.  It was also said 299 that workmen could be transferred from one place to  another and  that  a,.  a result of the  settlement  mentioned,  the company could not retire any workman before he attained  the age of 58 years.  The settlement was said to apply to  the workmen  employed.  at both the places.  The  Union  further submitted  that the company could not insist on two sets  of conditions  of  service covering different sections  of  the same  workmen  in the same establishment, that  the  age  of retirement  was not a subject mentioned in the  Schedule  to the Industrial Employment (Standing Orders) Act and as such. no Standing Order could be certified on this topic. In  its reply to the above, the company took the stand  that the  settlement  arrived at in respect of the  cement  works

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Karmachari   Sangh,  Sawai  Madhopur  was  not  ipso   facto applicable  to the quarry inasmuch as the  proper  authority under  the  Industrial Disputes Act 1947 in respect  of  the cement  works  was the Government of Rajasthan  whereas  the appropriate  Government in respect of the quarries  was  the Government of India.  It was said further that in  pursuance of  the  settlement arrived at in 1966 the  Standing  Orders were amended by the Certifying Officer of the Government  of Rajasthan  as a result whereof the age of superannuation  in the works at Sawai Madhopur was raised to 58.  This  however did  not  alter  or modify the position  prevailing  in  the quarries  which  were governed by a separate set  of  orders certified  by  the Certifying Officer of the  Government  of India. The  Tribunal took the view that the cement factory and  the quarries  were two units of the same establishment and  that consequently there should be a uniform set of rules for  the workmen of the company as a whole and it was immaterial that in  the  case  of one unit the Standing  Orders  had  to  be certified  by  the Certifying Officer of the  Government  of India  and  in  the other by the Officer  appointed  by  the Government  of Rajasthan.  The Tribunal was further  of  the view  that  the  clause as to superannuation  could  not  be provided  in the Standing Orders under the relevant Act  and certification  could not attach enforceability to them  even on  the  ground  that the workers  did  not  challenge  such provision before the Certifying Officer.  In the result  the Tribunal  held that there could not be a lower age limit  of superannuation for workmen at the Phallodi Quarry  specially in   view   of  the  fact  that  workmen   were   admittedly transferable from one place to the other.  As a  consequence of  the  above finding, the Tribunal quashed the  order  and directed  the  reinstatement of the workman with  full  back wages. On behalf of the company the first contention raised by  Mr. Setalvad was that the Tribunal had gone wrong in  construing the order of reference to include a dispute as to whether it was open to the company to have two sets of Standing  Orders providing for 300 different ages of superannuation.  Mr. Setalvad argued  that in   view  of  the  correspondence  terminating   with   the representation by the Union to the Conciliation Officer,  it was  abundantly clear that the dispute between  the  parties was  whether or not the company was justified in  coming  to the  conclusion +hat the workman concerned had  reached  the age  of  55  on  April  3,  1968  and  as  such  was  to  be superannuated  in terms of the Standing Orders.  The  letter of the 9th July 1968 by the Company to the workman reads  as follows               Please  refer to your application dated  30-4-               1968  received by us on 8-5-1968 along with  a               copy   of  your  horoscope  in   Hindi.    The               Management  has reexamined your case and  come               to  a  final conclusion that  your  retirement               from  the service of the company as  intimated               to you vide our memo No. Pq/B/186 dated 3-4-68               should stand.  You are, therefore, directed to               collect  your dues, if any, from our  Accounts               Department on any working day after  producing               necessary clearance certificate." Of  necessity, reference had to be made by the  Tribunal  to ,the application of the workman dated April 30, 1968 with  a copy of his horoscope.  The said latter expressly complained of  the alleged inaccuracy in the service record  pertaining

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to  him according to which the writer had not completed  the age   of   55   years  on  the   3rd   April.The   workman’s representation was that his age had     been    inaccurately recorded, ,’,hat his proper age was 50 and that the  records should be corrected accordingly. In our view, if the Tribunal had taken care to examine what was  the  dispute between the parties when  the   Government made ,the order of reference it would have had no difficulty in  realising  that  no dispute was  raised  either  by  the workman  or  the  Union  that  the  age  of   superannuation governing  the workman was not 55 years.  It  was  certainly open   to   the  workman  to  contend  that   his   age   of superannuation should be fixed at 58 and not 55 years and it would have been equally open to the Union to raise the point in  their  representation to the Conciliation  Officer.   If that  had been done, the Government of Rajasthan could  have property  made a reference of a dispute between the  parties regarding   the  correct  age  of  superannuation  and   the adjudication of the dispute regarding the superannuation  of the  workman concerned on that basis.  Nothing  was  however shown  to us, apart from the documents already referred  to, to  enable  us  to find that any question  had  been  raised before  the Government of Rajasthan relating to the  age  of superannuation of the workmen at the quarries or that  there was any basis for apprehension of such a dispute and it  was therefore  not open to the Tribunal to enlarge the ambit  of the  dispute  between  the  parties  by  reference  to   the difference in the 301 age of superannuation under the two sets of Standing Orders. Mr.  Setalvad  drew our attention to the  judgment  of  this Court  in Tile Sindhu Resettlement Corporation Ltd.  V.  The Industrial Tribunal of Gujarat & Ors.(1) for the proposition that  unless a dispute was raised by the workman with  their employer   it  could  not  become  an  industrial   dispute. Respondent No. 3 before this Court in that case was employed by  the appellant as an accounts Clerk at Gandhidham in  the year  1950.  Some years thereafter his services were  placed at the disposal of the subsidiary. company of the appellant. The respondent was appointed in the said subsidiary  company on a different set of conditions of service.  He worked with that  company  up to February 1958 when  his  services  were terminated  after payment of retrenchment  compensation  and other  dues by the said subsidiary company.  The  respondent then  went to the appellant and requested that he  might  be given-  posting orders.  The appellant declined to do so  on the ground that the post which he was occupying in 1953  had been   permanently  filled  up.  Thereupon  the   respondent demanded retrenchment compensation from the appellant  also. As the representations of the respondent were not  fruitful, conciliation proceedings were started and ultimately, on the report  of  the Conciliation Officer, the State  of  Gujarat referred  the  dispute  to, the  Industrial  Tribunal.   The matter  referred  for adjudication was,  "whether  the  said respondent  should  be  reinstated in  the  service  of  the appellant and be paid back wages from 21st February,  1958." The  Tribunal  directed reinstatement and  payment  of  back wages.  In allowing the appeal, this Court observed that the respondent   workman   had  only  asked   for   payment   of retrenchment compensation and did not raise any dispute  for reinstatement.  According to this Court (see p. 522):--               ". . . . the evidence produced clearly  showed               that   no  such  dispute  (i.e.  relating   to               reinstatement)  had  ever been raised  by  the               respondent   with   the  management   of   the

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             appellant.  If no dispute at all was raised by               the  respondents  with  the  management,   any               request  sent by them to the Government  would               only be a demand by them and not an industrial               dispute between them and their employer. Relying  on the above decision Mr. Setalvad argued  that  in order  that  a  reference  can be  construed  to  embrace  a particular  dispute it must be shown that a demand had  been made by the workman and not accepted by the employers so  as to  give  rise  to  a  dispute which  in  the  view  of  the Government  required adjudication.  Mr. Ramamurty on  behalf of  the respondents drew our attention to the provisions  of s. 10(1) of the Industrial Disputes Act and in particular to clauses (c) and (d) thereof.  He argued that it was open  to the appropriate Government in an appropriate case to (1)  [1968] 1. S.C.R. 515. 302 refer  a  dispute  along with any  matter  appearing  to  be connected  with or relevant to the dispute and no  objection could be taken to the award of a Tribunal where the Tribunal had  not transgressed the limits of cls. (c) and (d)  of  S. 10(1) of the Act.  It was further contended that the  proper age  of superannuation applicable to the company as a  whole was so intimately connected with or relevant to the  dispute which actually arose between the parties prior to the  order of reference as to lead us to hold that the Tribunal had not gone  beyond  its jurisdiction in construing  the  order  of reference  to  embrace an adjudication as to proper  age  of superannuation  of  a workman like Bhisham  Verma.   In  our view, the finding of the Tribunal that the Company could not fix  a lower age limit of superannuation for workmen at  the quarries went beyond the scope of reference which had to  be gathered  from  the circumstances preceding  the  Government Order.  The Tribunal never addressed itself to the point  of view of the workman that his proper age was only 50 and  not 55;  nor did it come to a finding that the true age  of  the workman being 50 years in 1968 there was no question of  his superannuation in that year. Mr.  Setalvad  raised a further point that so, long  as  the quarried, had a different set of Standing Orders prescribing a different age of superannuation from that fixed  under,the Standing  Orders relating to the cement works, the  tribunal could  not  have disregarded the Standing Orders as  it  had purported to do and lay down that the age of  superannuation of all workmen should be 58 as found" by it.  Our  attention was drawn to s. 2 (g) of the Industrial Employment (Standing Orders)  Act  and  to S. 3(2) of the said  Act  under  which provision had to be made in Standing Orders for all  matters set  out  in  the Schedule to the  Act.   According  to  Mr. Setalvad, item 8 of the Schedule reading:               "Termination  of  employment, and  the  notice               thereof to be given by employer and workmen." allowed the framing of Standing Orders with regard to age of superannuation.   Mr. Ramamurty on the other hand  contended that  this item could not possibly embrace such a matter  as the age of superannuation but was limited to voluntary  acts of  the  employer  or  the workmen to  put  an  end  to  the employment   without   any   question   of   superannuation. Arguments were advanced at some length by counsel on  either side  on this point, but in the view which we have taken  on the  first point as to the jurisdiction of the Tribunal,  we find it unnecessary to decide this point. in the result we hold that the award of the Tribunal was in- competent as the dispute which it sought to adjudicate  upon was  not the one referred.  The award will therefore be  set

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aside,  but  in the circumstances of the case,  we  make  no order as to costs. S.C.                            Award set aside. 303