# COX & KINGS (AGENTS) LTD v. THEIR WORKMEN AND ORS

- **Citation:** [1977] 3 S.C.R. 332
- **Court:** Supreme Court of India
- **Decided:** 1977-03-18
- **Case number:** Civil Appeal No. 375 of 1976
- **Bench:** V. R. Krishna Iyer, R. s. SARKARIA, JAswANT SINGH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/cox-kings-agents-ltd-v-their-workmen-and-ors-7224
- **Pages:** 11

## Headnote

Industrial Disputes Act, 1947-S. 2(b) and s. 19(3)-Scope of-Dedsion
given without going into merits of a dispute-If an award-Second reference iu
~uch a case-If could be made ·within a year.
The term 'Award' has been defined by s. 2(b) of the Industrial Disputes Act,
1947 to mean an interim or a final determination of any industrial dispute or of
any question relating thereto by a Labour
Court. Section 10,
which describes the matters that can be referred to a Labour Court etc. for adjudication
provides in sub s. (I) that where an appropriate government is of opinion that
any industrial dispute exists or is apprehended it may, at any time, by order in
writing ... ( c) refer the dispute or any matter appearing to be connected
with or relevant to the dispute, if it relates to any matter specified in the second
schedule, to a Labour Court for adjudication. Under s. 19(3) an award shall
remain in operation for a period ,of one year from the date on which the award
becomes enforceable under s. 17A.
An industrial dispute relating to the dismissal of three workmen of the appellant had been referred to a Labour Court. The Labour Court held that the
reference was invalid because, as the workmen had not served demand notice
on the management prior to the reference, no industrial dispute could legally
come into existence before the reference.
After serving a demand notice on
the manage.ment within a month thereafter the workmen raised
an industrial
dispute relating to the same matter. The Labour Court rejected the employer's
preliminary objection that in vie\V of s. 19, the se.cond reference was not competent in that it was made within one year of the first award, and decided the
case on merits. The Labour Court held that the termination of the services of
the workmen was illegal and ordered reinstatement with back wages from the
date of termination.
The employer's writ petition under Art. 226 of the Comtitution i1npugning
the Labour Court's decision was dismissed by the High Court.
Dismissing the appeal,
HELD : The Labour Court's determination in the first. reference did not
possess the attributes essential to bring it within the definition of an award. The
mere fact that this order was published by the Government under s. 17(1), did
not confer that status on it.
[339 D]
l(a) The definition of 'award' under s. 2(b) falls in two parts (i) determination, final or interim, of any industrial dispute and (ii) of any question relating to an industrial dispute. The basic posttJ.late common to both the parts of
the defintion is the exi'stence of on industrial dispute, actual or apprehended.
The 'detern1ination' contemplated by the definition is of an industrial dispute or
a question relating thereto on merits.
[338 D]
(b) In the instant cases the order of the Labour Court in the first reference
did not determine the question or points specified in government order of reference, nor was it an adjudication on merits of any industrial dispute or a question relating thereto.
The only question determined by the Labour Court was
about the existence of an industrial dispute which in its opinion was a sine qua
non for the validity of the reference. Rightly or wrongly it found that this preliminary jurisdictional fact did not exist because no industrial dispute had come
into existee.ce in accordance with law and in
consequence. the reference was
invalid. There ·was, therefore, no determination of the dispute on merits on the
question relating thereto.
[339 C-D]
cox & KINGS LTD. v. WORKMEN (Sarkaria, J.)
333
Tcclinological Institute of Textiles v. /ts Workn1en and Ors. [1965] 2 LLJ 149,
A
followed.
Manage1ne11t of Baflgalore Woollen, Cotton & Silk Mills Co. Ltd. v. The
Workmen and Anr. [1968] 1 SCR 581, referred to.
rt/#·
Workmen of Swadeshi l.'otton Mills Co. Ltd. v. Swadeshi Cotton A-tills Co.
i
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Ltd. Kanpur and Ors. 42 Indian Factories Journal p, 25.5, not a~~ved.
(b) Moreover the decision of the Labour Court in the first reference did not
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impose an

## Text

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332
COX & KINGS (AGENTS) LTD.
v.
THEIR WORKMEN AND ORS.
March 18, 1977
[V. R. KRISHNA IYER, R. s. SARKARIA AND JAswANT SINGH, JJ.J
Industrial Disputes Act, 1947-S. 2(b) and s. 19(3)-Scope of-Dedsion
given without going into merits of a dispute-If an award-Second reference iu
~uch a case-If could be made ·within a year.
The term 'Award' has been defined by s. 2(b) of the Industrial Disputes Act,
1947 to mean an interim or a final determination of any industrial dispute or of
any question relating thereto by a Labour
Court. Section 10,
which describes the matters that can be referred to a Labour Court etc. for adjudication
provides in sub s. (I) that where an appropriate government is of opinion that
any industrial dispute exists or is apprehended it may, at any time, by order in
writing ... ( c) refer the dispute or any matter appearing to be connected
with or relevant to the dispute, if it relates to any matter specified in the second
schedule, to a Labour Court for adjudication. Under s. 19(3) an award shall
remain in operation for a period ,of one year from the date on which the award
becomes enforceable under s. 17A.
An industrial dispute relating to the dismissal of three workmen of the appellant had been referred to a Labour Court. The Labour Court held that the
reference was invalid because, as the workmen had not served demand notice
on the management prior to the reference, no industrial dispute could legally
come into existence before the reference.
After serving a demand notice on
the manage.ment within a month thereafter the workmen raised
an industrial
dispute relating to the same matter. The Labour Court rejected the employer's
preliminary objection that in vie\V of s. 19, the se.cond reference was not competent in that it was made within one year of the first award, and decided the
case on merits. The Labour Court held that the termination of the services of
the workmen was illegal and ordered reinstatement with back wages from the
date of termination.
The employer's writ petition under Art. 226 of the Comtitution i1npugning
the Labour Court's decision was dismissed by the High Court.
Dismissing the appeal,
HELD : The Labour Court's determination in the first. reference did not
possess the attributes essential to bring it within the definition of an award. The
mere fact that this order was published by the Government under s. 17(1), did
not confer that status on it.
[339 D]
l(a) The definition of 'award' under s. 2(b) falls in two parts (i) determination, final or interim, of any industrial dispute and (ii) of any question relating to an industrial dispute. The basic posttJ.late common to both the parts of
the defintion is the exi'stence of on industrial dispute, actual or apprehended.
The 'detern1ination' contemplated by the definition is of an industrial dispute or
a question relating thereto on merits.
[338 D]
(b) In the instant cases the order of the Labour Court in the first reference
did not determine the question or points specified in government order of reference, nor was it an adjudication on merits of any industrial dispute or a question relating thereto.
The only question determined by the Labour Court was
about the existence of an industrial dispute which in its opinion was a sine qua
non for the validity of the reference. Rightly or wrongly it found that this preliminary jurisdictional fact did not exist because no industrial dispute had come
into existee.ce in accordance with law and in
consequence. the reference was
invalid. There ·was, therefore, no determination of the dispute on merits on the
question relating thereto.
[339 C-D]
cox & KINGS LTD. v. WORKMEN (Sarkaria, J.)
333
Tcclinological Institute of Textiles v. /ts Workn1en and Ors. [1965] 2 LLJ 149,
A
followed.
Manage1ne11t of Baflgalore Woollen, Cotton & Silk Mills Co. Ltd. v. The
Workmen and Anr. [1968] 1 SCR 581, referred to.
rt/#·
Workmen of Swadeshi l.'otton Mills Co. Ltd. v. Swadeshi Cotton A-tills Co.
i
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Ltd. Kanpur and Ors. 42 Indian Factories Journal p, 25.5, not a~~ved.
(b) Moreover the decision of the Labour Court in the first reference did not
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impose any continuing obligation on the parties bound by it. The second reference was, therefore, not barred by oo.ything contained in subs. (3) or other provisions of s. 19. [340 Cl
2. The Labour Court was not justified in awarding compensation to the workmen for wages relating to the period prior to the date on which the
demand
notice for reinstatement was served on the management. [140 I-I]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 375 of 1976.
(Appeal by Special Leave from the Judgment and Order dated
7.11.1975 of the High Court at New Delhi in Civil Writ No. 1123
of 1975)
G. B. Pai, 0. C. Mathur and D. N. Mishra, for the appellant.
M. K. Rarnarnurthi, S. C. Jain and Madan Mohan, for respondent
No. 1.
The Judgment of the Court was delivered by
SARKARIA, J.-Th principa[ question that arises in this appeal by
special leave is : Whether an order of the Labour Court to the effect,
that since no demand of the workmen had been served on the employer, no industrial dispute had come into existence in accordance with
law, and as such the Reference was invalid and the Court had no
jurisdiction to adjudicate the matter referred to it by the Government,
is an "award" for the purposes of Section 19 of the Industrial Dis-
!putes Act, 1947, (for short, called the Act)?
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Cox & Kings (Agents) Ltd. (for short, the Management) disF
missed from service three of their workmen after a domestic enquiry
conducted against them on certain charges.
In May 1967, the Lt. Governor of
Delhi made a Reference
under s. 10 read with s. 12(5) of the Act to the Labour Court, Delhi,
to deter.nine :
"Whether the terminations of services of S/Shri H. S.
Rawat, Bidhi Chand and Ram Sarup Gupta were unlawful
and unjustified, and if so, to what relief are these workmen
entitled?"
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By an amendment of their written statement in February, 1969,
augmented by an application dated 17.8.1971, the Management raisH
ed a preliminary objectiQn that since no demand
notice had been
•served on the Management, no industrial dispute had legally come
into exllitence, and as such the Reference was invalid and the Labour
334
SUPREME COURT REPORTS
(1977] 3 S.C.R.
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Court had no jurisdiction to adjudicate it.
By an order, dated September 27, 1972, the Labour Court accepted the objection, holding :
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that no industrial dispute came into existence before this reference as the workmen have failed to establish
serving of demand on the management prior to this reference.
The effect of this finding is that the reference could
not have been made for adjudication and the same is accordingly invalid and hence !he question of deciding the issue
as In the reference or other issu1:s does not arise as the industrial dispute under reference did not come into existence
in accordance with Jaw before this reference.
This award
is made accordingly."
Thereafter, the workmen on 25.l 0.1972, raised a dispute by serving
demand
notices on the
Management.
By his
order
dated
2.5.1973, the Lt. Governor, Delhi, again made a Reference to the
Labour Court, under the Act for adjudication of the same matter relating to the termination of the services of the aforesaid workmen.
The Management raised, inter alia, a preliminary objection that a
second Refere,ncc within one year of the first 'award', dated September
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27, 1972, was not competent in view of what is contained in sec. 19
of the Act.
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By an order dated 2.5.1973, the Labour Court dismissed the preliminary objections.
After recording the evidence produced by the·
parties, !he Court held on merits, !hat the termination of the services
of 3 workmen was illegal and unjustified. The Court further found that
Bidhi Chand workman had become gainfully employed elsewnere as
a driver with better emoluments and it was
therefore sufficient to
award him compensation without any relief of reinstatement, at the
rate of 50% of his wages for three years from 1966 to 1969 to the
date of his getting employment elsewhere.
It fmther found that Ram
Sarup Gupta had remained unemployed after his dismissal in 1966. It
therefore directed his reinstatement with full back wages and continuity of service.
As regards H. S. Rawat, !he Court fonnd that
he could not have remained unemployed throughout but was doing
some work or the other for his living, may be with occasional spells.
The Court therefore held that Rawat was entitled to reinstatement
and continuity of service with 50% back wages till the award came
into operation and he got his reinstatement.
This award was made
by the Labour Court on 1-5-1975.
The Management impugned thfr award by filing a writ petition
1under Art. 226 of the Constitution in the High Court of Delhi. Only
three contentions were canvassed by the Management at the preliminary
hearing before the High Court : ( i) That the determination,
dated
27.9.1972, by the Labour Court was an 'award' as defined ins. 2(b)
of the Act, and in view of sub-s. (3) of s. 19, it had to be in operation
for a period of one year.
It could be
terminated only by a notice
given under sub-ss. ( 4) & ( 6) of s. 19.
Since no such notice was
given, !he award continued to be in operation.
The second award,
dated 1-5-1975, could not be validly made during the period,
the
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cox & KINGS LTD. v. WORKMEN (Sarkaria, J.)
335
fu:st award was in operation; (ii) The demand for reinstatement was
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not made by the workmen till 1972 and the Labour Court was not
justified in awarding them the relief of reinstatement together with compensation for back wages from 1966 onwards; (iii) The onus to show
that the workmen had not obtained alternative employment, after their
dismissal, was. on the workmen and this onus has not been discharged.
On the other hand, the Labour Court wrongfully did not permit the
Management to adduce additional evidence to show that the workmen
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had obtained alternative employment and, in consequence, were not
entitled to back wages.
Regarding ( i), the High Court held that since the 'award' dared
27.9.1972, was not one which imposed any continuing obligation on
the partie'S, but had ended with its pronouncement, nothing in subsections (3) and (6) of sec. 19 was applicable to it.
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As regards (ii), the High Court held that once the dismissal of
the workmen was found illegal, it was inevitable to award the compensation from the dates of dismissal till they found alternative employment or till the date of the award, as the case may be.
In regard to (iii), the High Court said that the question of burden of proof as to who is to prove, whether the workmen did not get
alternative employment for the period for which back wages have
·been awarded to them could arise only if no evidence was given by
either party or if the evidence given by them was evenly balanced.
Neither of these circumstances wa·s present before the Labour Court,
and there was no good reason to disturb the finding of fact recorded
by the Labour Court on this point.
The High Court tbns rejected all the three
contentions, and, in
the result, dismissed the writ petition in limine, with a speaking order.
Hence this appeal.
Shri G. B. Pai has reagitated all the three points before us.
He
assails the findings of the High Court, thereon.
Regarding point No. (i) Mr Pai's argument is that the determination, dated 27.9.1972, also, was an 'award' within the second part
of the definition of the term in e. 2(b) of the Act, inasmuch as it
determined a question relating to an industrial dispute.
Emphasis
has also been laid o,n the point that this 'award', dated 27 .9.1972 was
duly published by the Government under s. 17(1) and had assumed
finality under sub-s. (2)
of the same section.
This award
dated
27.9.1972-proceeds the argument-bad to remain operative under
sub-s. (3) of s. 19 for a period of one year from the date on which
it became enforceable under 8. 17 A i.e., a date one month after its
publicatio,n. It is submitted that no second Reference could be validly made by the Government during the period the first award remained operative, and since the :o.econd Reference, dated 2.5.1973 was
made before the expiry of such period of the first award (which had
not been terminated in the manner laid down in s. 19) it was invalid
and the consequeintial adjudication by the Labour Court on its basis,
was null and void.
In this connection counsel has relied upon a
.7 -43 6SCI /77
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SUPREME COURT REPORTS
[ 1977] 3 s.c.R.
judgment of this Court in Management of Bangalore Woollen, Cotton
& Silk Mills Co. Ltd. v. The Workmen and anr.(') wherein it was held
that when there is a subsisting award binding on the parties, the Tribunal has no jurisdiction to consider the same points in a fresh reference.
Jn that case, the earlier award had not been terminated and
the Reference was therefore held to be incompetent.
Reference bas
also been made to a single Bench Judgment of the Allahabad lligh
Court in Workmen of Swadeshi Cotton Mills Co. Ltd. v Swadeshi
Cotton Mills Co., Ltd., Kanpur and ors.(2)
As against this, Shri M. K. Ramamurthi maintains that the Labour Court's order, dated May 1, 1972, was not an 'award' within the
definition of the term in s. 2(b) inasmuch as it was not a determination, on merits, of any industrial dispute or of any question relating
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to an industrial dispute.
In this connection reliance has been placed
on a judgmoot of this Court in Civil Appeal No. 241 of 1964 (Technological Institute of Textiles v. Its Workmen and ors. (3).
Before dealing with the contentions canvassed, it will be worthwhile to notice the relevant statutory provisions.
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The terms 'award' and 'industrial dispute' have been
defined in
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the Act as follows :
'Award' means an
interim or a final
determination
of any industrial dispute or of any question relating thereto
by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under
s. lOA". [vide s. 2 (b)].
"Industrial dispute" means "a;ny
dispute or difference
between employers and employens, or between employers
and workmen, or between workmen and
workmen, which
is connected with the
employment or non-employment or
the terms of employment or with the conditions of labour,
of any person", [vide s. 2(k)].
Section 10 describes the matters which can be referred to Boards,
Courts or Tribunals for
adjudication.
Only clause (i) of subsection ( 1) is material for our purpose. I! provides;
"Where the appropriate Government is of opinion that
any industrial dispute exists or is
apprehended, it may at
any time by order in writing-
(a)
(b)
(c) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, if it relates to any
(1) [196R] I S.C.R. 581.
(1) 42 Indian Factories Journ•I p. 255.
(3) [1965] 2 L.L.J. 149.
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<COX.& KINGS LTD. v. WORKMEN (Sarkaria, ]. )
33 7
.matter .specified in the Second Schedule to a Labour Court
'A
.for .adjudication".
Sub-section ( 4) requires the Labour Court to confine its adjudi-
.cation to those po\nts of dispute and matters incidental thereto which
<he appropriate Government has referred to it for adjudication.
The material part of section 19 reads as under :
"(1)
(2) ..
(3) An award shall, subject to the provisions of this section
remain in operation for a period of one year from the
date on which the award becomes
enforceable
under
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Provided that the appropriate Government may reduce
.the said period and fix such period as it thinks fit :
"Provided further that the appropriate Government
may, before the expiry of the said period, extend the
period of operation by any period not exceeding one
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year at a time as it thinks fit so, however, that the total
(4)
( 5)
period of operation of any award does not exceed
three years from the date on which it came into
operation.
Where the appropriate Government, Whether of its
own
motion or on the
application of any party
bound by the award, considered that since the award ·
was made, there has been a material change in the
circumstances on which it was based, the appropriate
Government may refer the award or a
part of it
to a Labour Court, if the award was that of a Labour
Court or to a Tribunal, if the award was that of. a
Tribunal or of a National
Tribunal for
decision
whether the period of operation should not, by reason of such change, be shortened and the decision
of Labour Court or the Tribunal, as the case may
be, on such reference shall be final.
Nothing contained in sub-section (3) shall apply to
any award which by its nature, terms or other circumstances does not impose, after it has been given
effect to, any continuing obligation on the parties
bound by the award.
(6) Notwithstanding the expiry of the period of operation under snb-section (3), the award shall continue to be binding, on the parties until a period of
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two months has elapsed from the date on which
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notice is given by any party hound by the award to
the other party or parties intimating its intention to
terminate the award.
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SUPREME COURT REPORTS
(1977] 3 s.C.R.
(7) No notice give.a under sub-section (2) or sub-section
(6) shall have effect, unless it is given by a party
representing the majority of persons bound by the
settlement or award, as the case may be."
There is no dispute that the order on the earlier Reference was
made by the Labour Court on 27-9-1972, while the second Reference
with the same terms of Reference to that Court was made by tho
Government on 2.5.1973, i.e., within one year of the earlier order.
It is common ground that the period of one year for which an award
normally remains in operation under sub-s. (3) was not reduced or
curtailed by the Government under sec. 19 or under any other provision
of the Act.
It is further admitted between the parties that no notice
was given by any party of its ~ntention to terminate the Order dated
27.9.1972.
The controversy with regard to the first point therefore narrows
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down into the issues whether the determination dated 27.9.1972, of
the Labour Court was an award as defined in s. 2 (b) of the Act:/
The definition of award in s. 2(b) falls in two parts.
The first
part covers a determination, final or ~nterim, of any industrial dispute.
The second part takes in a determination of any question relating to
an industrial dispute.
But the basic postulate common to both the
parts of the definition, is the existence of an industrial dispute, actual
or apprehended.
The "determination" contemplated by the definition is of the industrial dispute or a question relating tl1ereto,
on
merits. It is to be noted further that sec. 2, itself, expressly makes
the definition subjet:t to "anything repugnant in the subject or context".
We have therefore to consider this definition in the context
of sec. 19 and other related provisions of the Act.
Mr. Pai concedes that the order dated 27.9.1972, is not a deter.
mination of any industrial dispute, as such, falling under the first part
of the definition.
However, his argument is that the expression "or
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•any question relating thereto" in the second part of the definition is
of wide amplitude and
should
be spaciously construed.
It is
maintained that a question, whether or not an industrial dispute exists,
will itself be a questi..0n relating to an industrial dispute within the intendment of the second part of the definition.
The contention appears to be attractive but does not stand a close
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examination.
II
Sub-section (1) of sec. 10 indicates when and what matters can
be referred to the Labour Court for adjudication.
The sub-section
expressly makes formation of opinion by the appropriate Govemm~nt,
··that any industrial dispute exists or is
apprehended" a _condillon_
precedent to the exercise of the power of making a Reference.
Subsection ( 4) gives a mandate. to the La.hour Court to confin~ its ~judi
cation to those points of dispute which have been
specified m the
Order of Reference, or are incidental thereto. From a conjoint reading of cl.(b) of s. 2 and sub-section (1) and (4) of sec. 10, it is
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cox & KINGS LTD. v. WORKMEN (Sarkaria, J.)
339
clear that i,n order to be an 'award' within the second part of the defiA
nition, a determination must be-(i) an adjudication of a question or
point re:ating to an industrial dispute, which has been specified in
the Order of Reference or is incidental thereto : and (ii) such adjudication must be one on merits.
Now let us test the Labour Court's order, dated 27.9.72 in the
light of the above enunciation.
That Order did not satisfy any of the
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criteria indicated above. It did not determine the questions or points
specified in the Government
Order of
Reference.
Nor was it an
adjudication on merits of any industrial dispute or a question relating
thereto. The only question determined by the Order, dated 27.9.1972,
was about the existence of a preliminary fact, viz., existence of an
industrial dispute which in the Labour Court's opinion was a siM
qua non for the validity of the Reference and the exercise of further
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jurisdiction by the Court.
Rightly or wrongly, the Court found that
this preliminary jurisdictional fact did not exist, because "no industrial dispute had come into existence in accordance with Jaw", and,
in consequence, the Reference wa6 invalid and the Court was not
competent to enter upon the Reference and
determine the matter
referred to it.
With this finding, the Court refused to go into the
merits of the question referred to it. There was no determination on
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merits of an industrial dispute or a question· relating thereto.
We are
therefore of
opinion that
Labour
Court's
determination
dated
27.9.1972, did not possess the attributes essential to bring it within th•
definition of an 'award'.
The mere fact that this order was published
by the Government under s. 17(1) of the Act did not confer that
status on it
In the view we take we are fortified by the principle laid down by
this Court in Technological Institute of Textiles v. Its Workmen
(supra).
In that case, there was a settlement which in the absence
of necessary formalities, was not binding on the parties.
Certain
items of dispute were not pressed and withdrawn under the terms
of such settlement.
In the subsequent reference before the IndusE
trial Tribunal some of the items of dispute were withdrawn and no
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award was made in respect thereto.
Thereafter, these items wera
again referred for adjudication along with certain other matter~ to
the Tribt1nal. It was contended on behalf of the Management that
subsequent reference with regard to the items which had been withdrawn and not pressed in the earlier reference, was barred under sec.
19, because the earlier award had not been terminated in full.
Ramaswami J., speaking for the Court, repelled this contention. with these
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observations :
"It is manifest \n the present case that there has been
no adjudication on merits by the industrial tribunal in
the
previous reference with regard to the matters covered by
items ( 1) and (3) of the present reference, because the
workmen had withdrawn those matters from the purview of
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the dispute.
There was also no settlement in Ex. R. 4, because the demands in question had been withdrawn by the
workmen and there was no agreement between the parties
340
SUPREME COURT REPORTS
(1977] 3 S.C.R.·
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in regard thereto. Our conclusion, therefore, is that the bar
of s. 19 of the Industrial Disputes Act docs not operate
with regard te the matters covered by items (1) and {3) of
the present reference and the argument put forward by the
appellant on this aspect of the case must be rejected."
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Although the facts of the case before us are different, yet the
principle enunciated therein viz., that the bar of sec. 19 operates only
with regard to a detennination made on merits, is fully· applicable.
By any reckoning, the decision dated 27.9.1972 of the Labour
Court by its very nature did not impose any continuing obligation
on the parties bound by it.
This was an additional reason. for holding thatl the earlier reference was not barred by anything contained
in sub-section (3) or other provisions of section 19,
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We have gone thrqugh the single Bench decision o~ the Allahabad
High Court in Workmen of Swadeshi Cotton Mills Co. Ltd. case
(supra).
That decision is to the effect that the finding recorded by
the Labour Court that the matter referred to it for adjudication wru
not an industrial dispute as defined! in the Act is itself a determination
of a question relating to a:n industrial dispute, and would fall within
the definition of the term "award" under the Act.
In our opinion,
this is not a correct statement of the law on th<:> point.
,
The next submission of Mr, Pai is that since the demand for reinstatement was not duly made by the workmen before 28 . 10. 1972,
the Courts below were not justified in
awarding to the workmen,
compensation for back wages from 1966 onwards.
On the other hand, Mr. Ramamurthi maintains that such a claim
F
was presumably agitated by the workmen in proceedings before the
Conciliation Officer, in 1966.
While conceding that technically, no
demand notice for reinstatement was served by the workmen on the
Management before 25. 10. 1972, Counsel submits that the Management were aware of the workmen's claim to reinstatement, since 1966,
and in these circumstances, the Management should not be allowed to
take shelter behiud this technical flaw, and deny just compensation to
G
them from the date of wrongful dismissal.
We have carefully considered the contentions advanced on both
sides.
After taking into consideration all the circumstances of the
case, we are of opinion that the Labour Court was not justified in
awarding compensation to the workmen, for wages relating to the
H
period prior to 25.10.1972 i.e., the date on which the demand notices
for reinstatement were served on ihe Management.
To this extent,
we would accept the contention of the appellants.
c;ox & KINGS LTD. v. WORKMEN (Sarkaria, J.)
.3 4 I
.
The third contention of the appellants is that the onus of provA
mg that they had not obtained alternative employment elsewhere after
the termination of their services, was on the workmen and they had
failed to discharge that onus.
'
""
We find no merit in this cqntention.
').·
I
'_[he question of onus oft loses its importance when both the
parties adduce whatever evidence they had to produce.
In the instant
case, both the parties led their evidence and closed their respective
cas!lS.
Subseque?tly, at .a. late sta~e, the Management made an application for adducmg additional evidence. The Labour Court declined that application.
The High Court found-and we think rightly,
no good reason to interfere with the discretion of the Labour Court.
It may be remembered further, that this appeal arises out of a petition
under Art. 226 of the Constitution, and in the
exercise of that
special jurisdiction? the High Court .does not reopen a finding of fact
based on legal evidence. The findmgs of the Labour Court to the
effect, that after their dismissal, Ram Swarup Gupta was unable to find
any alternative employment elsewhere, while Rawat was able to find
on! Y intermittent employment elsewhere, were based on evidence produced by the parties. The High Court was therefore right in not
interfering with those findings of fact.
Lastly it was urged by Mr. Pai, that the employers had lost confidence in the employees, and therefore, compensation, without reinstatement, would have been adequate relief.
It is submitted that the
business of the employers is that of Travel Agents and such a sensitive business can be successfully carried on only with the aid of employees whose fidelity and integrity is beyond doubt.
It is stressed
that the employees of the appellants, have to handle daily lot of cash
received from their clients in the discharge of their duties. It is pointed out that the charge against H. S. Rawat was one of misappropriation of such funds and this charge was established in the domestic
enquiry.
The Labour Court, proceeds the argument, did not displace
that finding of the domestic Tribunal, but ignored it on the ground
that the charge was stale and had been condoned.
In short, the
argument is that the employers had lost confidence in this employee.
who could no longer be entrusted to perform sensitive jobs on behalf
of the Manageme,nt, without detriment to its business.
We are unable to accept this contention.
B
c
D
E
F
Firstly, this point was not argued before the High Court. SecondG
ly, the observations of the Labour Court, read as a whole, show that,
in its opinion, the charge of misappropriation of funds had not. been
proved against H. S. Rawat.
This is what tl;ie Labour .Court said on
the point :
"I am therefore of op\nion that the charges had been
condoned and they could not be revived . again. and the . ~ct
of reviving the charge on account of his Uruon act1V1hes
was an act of unfair labour practice on the
part of the
Management and
amounted to victimisation. Even the
H
342
SUPRBMI! COURT Rl!PORTS
[1977] 3 S.C.R.
A
charges in the charge-sheet Ex. M/5 have not been established before me, that the workman withdrew the fnnds from
the company on false pretences for revenue stamps and misappropriated the same."
B
c
Thus there is no factual basis for this belated contention, and we
""'I
repel the same.
For the foregoing reasons, we dismiss this appeal with the modification that in addition to the relief of
reinstatement
with continuity of service, S/Shri H. S. Rawat and Ram Swarup Gul'ta shall be
entitled to 50%, and full back wages, respectively, from 25.10.1972.
It may be recalled that the special leave to appeal in this case,
was granted on the condition that the appellants shall pay the coslli
of this appeal to the respondents, in any event.
We order
accordingly.
·
P.B.R.
Appeal dismissed.