# HOCHTIEF GAMMON v. INDUSTRIAL l'RIBUNAL, BHUBANESHWAR, ORISSA AND ORS

- **Citation:** [1964] 7 S.C.R. 596
- **Court:** Supreme Court of India
- **Decided:** 1962-01-10
- **Bench:** P. 13. Gajendragadkar, K. N. Wanchoo, K. C. Das, Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hochtief-gammon-v-industrial-l-ribunal-bhubaneshwar-orissa-and-ors-3075
- **Pages:** 10

## Headnote

Industrial Dispute-Addition and Summoning of Partie$-
Reference-Powers of Industrial Tribunal-Test and Limitation-Who$e liability to pay
Workmen's claim-Who is
Employer-Disputes, whether different and substantial-Industrial Disputes Act, 1947 (14 of 1947), Ss., 10, 18.
On reference of an Industrial Dispute between the appellants and the respondents, its workmen, the office of the Industrial Tribunal issued notice not only to the appellant and its
workmen, the respondents but also to Hindustan Steel Ltd.
This was done apparently because a copy of the notification of
the Government containing the order of reference had been
served on the said Hindustan Steel Ltd. The Hindustan Steel
Ltd. appeared .and urged that it was not concerned or interested
in the dispute and should not be added a party to the reference.
The appellant contended, inter alia, that the interests of Hindustan Steel Ltd. and the appellant were common in the pending
proceedings, and the material documents which may have to
be proved were with the said concern. The Tribunal considered
the question and held that it would decide the matter later;
meanwhile it directed Hindustan Steel to be present during
the hearing of the reference on merits. The appellant, who was
dissatisfied with this order as it wanted a specific direction to
add Hindustan Steel as a party to the reference, moved the
High Court under Art. 226 of the Constitution. This writ petition failed as the High Court held that the petition was premature as the Tribunal had not yet passed a final order under
s. 18 (3)(b) of the Industrial Disputes Act. On appeal by special
Leave:
Held: (i) S. 18(b) as it originally stood postulates that
the Tribunal had an implied power to summon parties, other
than parties to the industrial dispute to appear in the proceedings before it.
(ii) Where certain points of dispute have been referred to
the Industrial Tribunal for adjudication, it may while dealing
with the said points deal with matters incidental thereto, and
than parties to the industrial dispute to appear in the proceedthe Tribunal feels that some persons who are not joined to the
reference should be brought before it, it may be able to make
an order in that behalf under s. 18 .(3)(b) as it now stands.
(iii) Section 10(5) has now conferred power on the appropriaJte Government to add to the reference other establishments, groups or classes of establishments of a similar nature, if
it is satisfied that establishments are likely to be interested in,
·or affected by such dispute. The appropriate Government
may add them to the said reference either at the time
when the reference is initially made or during the pendency of
the said reference proceedings; but in every case, such additions can be made before the award is submitted. Now, if su.ch
'
•
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_ ..
7 S.C.R.
SUPREME COURT REPORTS
597
persons are added to the reference, the Industrial Tribunal may
1964
in exercise of Hs powers under s. 18 (3)(b) summon them to HochtiifGam"'°"
appear before 1t.
v.
(iv) The material words in s. 18 (3)(b) are the same as they In~';:t~alT~;"'l,
were originally included in s. 18(b), and so, the implied power Ori,.~a':::z" Othd•
which could be exercised by the Industrial Tribunal under s.
18(b) can now be exercised by it under s. 18(3}(b). If the Tribunal
thinks that the parties who were summoned to appear before
it were so summoned without proper cause, it may record its
opinion to that effect and then the award which it pronounces
would not be binding on them.
(v) What the Tribunal can consider in addition to the disputes specified in the order of reference, are only matters incidental to the said disputes and that naturally suggests certain
obvious limitations on the implied power of the Tribunal to add
parties to the reference before it, purporting to exercise its
implied power under s. 18(3) (b). If it appears to the Industrial
Tribunal that a party named in the order of reference does not
completely or adequately represent th

## Text

1964
..Aprill
596
SUPREME COURT REPORTS
[196f)
HOCHTIEF GAMMON
V.
INDUSTRIAL l'RIBUNAL, BHUBANESHWAR, ORISSA
AND ORS.
[P. 13. GAJENDRAGADKAR, 'C. J., K. N. WANCHOO AND K. C.
DAS, GUPTA, JJ.]
Industrial Dispute-Addition and Summoning of Partie$-
Reference-Powers of Industrial Tribunal-Test and Limitation-Who$e liability to pay
Workmen's claim-Who is
Employer-Disputes, whether different and substantial-Industrial Disputes Act, 1947 (14 of 1947), Ss., 10, 18.
On reference of an Industrial Dispute between the appellants and the respondents, its workmen, the office of the Industrial Tribunal issued notice not only to the appellant and its
workmen, the respondents but also to Hindustan Steel Ltd.
This was done apparently because a copy of the notification of
the Government containing the order of reference had been
served on the said Hindustan Steel Ltd. The Hindustan Steel
Ltd. appeared .and urged that it was not concerned or interested
in the dispute and should not be added a party to the reference.
The appellant contended, inter alia, that the interests of Hindustan Steel Ltd. and the appellant were common in the pending
proceedings, and the material documents which may have to
be proved were with the said concern. The Tribunal considered
the question and held that it would decide the matter later;
meanwhile it directed Hindustan Steel to be present during
the hearing of the reference on merits. The appellant, who was
dissatisfied with this order as it wanted a specific direction to
add Hindustan Steel as a party to the reference, moved the
High Court under Art. 226 of the Constitution. This writ petition failed as the High Court held that the petition was premature as the Tribunal had not yet passed a final order under
s. 18 (3)(b) of the Industrial Disputes Act. On appeal by special
Leave:
Held: (i) S. 18(b) as it originally stood postulates that
the Tribunal had an implied power to summon parties, other
than parties to the industrial dispute to appear in the proceedings before it.
(ii) Where certain points of dispute have been referred to
the Industrial Tribunal for adjudication, it may while dealing
with the said points deal with matters incidental thereto, and
than parties to the industrial dispute to appear in the proceedthe Tribunal feels that some persons who are not joined to the
reference should be brought before it, it may be able to make
an order in that behalf under s. 18 .(3)(b) as it now stands.
(iii) Section 10(5) has now conferred power on the appropriaJte Government to add to the reference other establishments, groups or classes of establishments of a similar nature, if
it is satisfied that establishments are likely to be interested in,
·or affected by such dispute. The appropriate Government
may add them to the said reference either at the time
when the reference is initially made or during the pendency of
the said reference proceedings; but in every case, such additions can be made before the award is submitted. Now, if su.ch
'
•
-·
_ ..
7 S.C.R.
SUPREME COURT REPORTS
597
persons are added to the reference, the Industrial Tribunal may
1964
in exercise of Hs powers under s. 18 (3)(b) summon them to HochtiifGam"'°"
appear before 1t.
v.
(iv) The material words in s. 18 (3)(b) are the same as they In~';:t~alT~;"'l,
were originally included in s. 18(b), and so, the implied power Ori,.~a':::z" Othd•
which could be exercised by the Industrial Tribunal under s.
18(b) can now be exercised by it under s. 18(3}(b). If the Tribunal
thinks that the parties who were summoned to appear before
it were so summoned without proper cause, it may record its
opinion to that effect and then the award which it pronounces
would not be binding on them.
(v) What the Tribunal can consider in addition to the disputes specified in the order of reference, are only matters incidental to the said disputes and that naturally suggests certain
obvious limitations on the implied power of the Tribunal to add
parties to the reference before it, purporting to exercise its
implied power under s. 18(3) (b). If it appears to the Industrial
Tribunal that a party named in the order of reference does not
completely or adequately represent the interest either of the
employer or of the employee, it may direct the joining of other
persons necessary to represent such interest. Similarly if the
union specified in the reference does not
represent all the
employees it may be open to the Tribunal to add such other
unions as it may deem necessary. The test always must be, is
the addition of the party necessary to make the adjudication
itself effective and enforceable? It is in the light of this test
that the implied power of the Tribunal to add parties must be
held to be limited.
P. G. Brooks, Receiver appointed by the Trustees for the
mortgagee debenture holders of the Madras Electric Tramways
(1904) Ltd. v. Industrial Tribunal, Madras, A.l.R. 1954 Mad. 369,
Radhakrishna Mills Ltd., Peelamadu, Coimbatore Ltd. v. Special
Industrial Tribunal, Madras, .A.I.R. 1954 Mad. 606 and Anil
Kumar Upadhaya v. P. K. Sarkar. A.l.R., 1961 Cal. 60, referred
~
...
(vi) The question on whom would rest the liability to pay
the respondents' claim as a result of contract between the appellant and. Hindustan Steel raises an entirely different dispute
and such dispute would be wholly foreign to the industrial disn.utA which has been referred to the Tribunal for adjudication.
(vii) The question ~s to who is the employer as betweei'I
the appellant and Hmdustan Steel is a substantial dispute
between them and cannot be regarded as incidental in any
s~nse. Where the appropriate Government desires that the quest10n as to who the employer is should be determined it generall~ makes a reference in wide enough terms and in'cludes as
parties to the reference different Persons who are alleged to be
the employers.
CIVIL APPELLATE .JURISDICTION: Civil Appeal No. 611 of
1963. Appeal by special leave from the judgment and order
dated January 10, 1962, of the Orissa High Court in o J c
No. 128 of 1961.
· ·
1964
Hocht,ief Gammon
v.
598
SUPREME COURT REPORTS
[1964}
N. C. Chatter;ee, G. Narayanaswamy, l. B. Dadachanii,
0. C. Mathur and Ravinder Narain, for the appellant.
Industrial Tribuiial,
Bliubaneshwa.-r,
Ori8sa and Othtr8
Janordhan Sharma, for respondent No. 2
S. V. Gupte, Additional Solicitor-General, G. {J. Pai and
R. H. Dehbar. for respondent No. 3.
April 1. 1964 The judgment of the Court was delivered
by
Gajendragadkar,C.J.
· GAJENURAGADKAR, C. J.-The short question which this
appeal by special leave raises for our decision is in relation to
the construction of s. 18 (3)(b) of the Industrial Disputes Act.
!947 (No. 14 of
1947) (hereinafter called 'the Act'). This
question arises in this way. An industrial dispute in regard
to the payment of bonu.s arose between the appellant Hochtief
Gammon and the respondents, its workmen, represented by
the Rourkela Workers Union, Rourkela. This dispute was
referred for adjudication to the Indu:;trial Tribunal, Orissa by
the Government of Orissa on the 14th November, 1960. After
the reference was received by the Tribunal. it passed an order
on the 17th November, 1960 that notice of the reference
should be issued to the parties concerned. Purporting to give
effect to this order, the office of the Tribunal im1ed notices
not only to the appellant and the respondents, but also to the
Deputy General Manager of MI s Hindustan Steel Ltd. This
was so done apparently because a copy of the notification of
the Government of Orissa containing the order of reference
had been served on the said Dy. General Manager. After the
notice issued by the Tribunal was received by the Dy. Gener~!
Manager of the Hindustan Steel Ltd. he appeared before the
Tribunal and urged that the Hindustan Steel Ltd. was not
concerned or interested in the dispute and should not be added
as a party to the. reference.
Meanwhife, the appellant made an application to the
Tribunal on the 21st March, 1961 and contended that the
interests of MI s Hindustan Steel Ltd. and the appellant were
common in the proceedings pending before the Tribunal, and
so, MI s
Hindustan Steel Ltd;.
should be joined as
a party. In this application, the appellant alleged that M /s
Hindustan Steel Ltd. was a necessary party, because
the material documents which may have to be proved in the
proceedings were with the said concern and, in fact, the
enquiry in question would not be complete without the said
concern being joined as a party. The Tribunal then considered the question of joining MI s Hindustan Steel Ltd. as a party
and held that it would decide the m~tter later. Meanwhile.
the Tribunal directed that MI s Hindustan Steel Ltd. which
had appeared in response to the notice issued to it should
remain present during the hearing of the reference on the
merits.
•
•
•
•
#
18.C.R.
SUPREME COURT REPORTS
599
This order did not satisfy the appellant, because it want1964
ed a specific direction from the Tribunal to add ~/s Hindu- Hoohti<JGamm••
stan Steel Ltd. as a· party to the reference. That 1s why the
v.
appellant moved the Orissa High Court under Art. 226 of the Industrial Tribu11a.1.
C
.
.
d
d h
h
d
d b
h T 'b
I
Bhubaneshwar,
onslitutmn an praye t at t e or er passe
y t e n una
Orissa and 0111.,,
refusing to deal with the matter should be set aside and M ! s .
-
Hindustan Steel Ltd. should be joined as a party to theG•;•ndr09adkar,O.J.
reference before it. This writ petition, however, failed,
because the High Court took the view that it was premature. The High Court observed that the Industrial Tribunal had not yet passed a final order under s. 18(3)(b) of the
Act, and so, without expressing any opinion on the merits of
the controversy between the parties, the High Court treated the application as incompetent because it was premature.
Against this decision, the appellant has come to this Court by
special leave; and on its behalf, Mr. Chatterjee has contended
that the I!!dustrial Tribunal has jurisdiction to add a party to
the proceedings before it and that on the merits, Mis Hindustan Steel Ltd. should be added as a necessary party. That
is how the main question which arises for our decision is to
determine the scope and effect of the provisons of s. 18(3)(b)
of the Act.
In dealing with this question, it is necessary to consider
the provisions of s. 18(b) in the Act as it was first enacted. and
then consider the provis(ons of s. 18(3)(b) as they now
stand. Under the original Act, section 18 consisted of four
clauses (a), (b), (c) and (d). We are concerned in the present
appeal with Clause (a) and (b).
Section 18(a) and (b) read
thus:-
"A settlement arrived at in the course of conciliation
proceedings under this Act, or an award which is
declared by the appropriate Government to be
binding under sub-section (2) of section 15 shall
be binding on :
:(a) all parties to the industrial dispute;
(bl all other parties
summoned to appear in the
proceedings as parties to the dispute unless
the Board of Tribunal, as the case ~ay be
records the opinion that they were so sum'.
moned without proper cause".
The first q_uestion which we have to consider is, did
s. !8(b), as 1t then stood, postula_te an implied power in the
Tnbunal to add persons as par!ies to the proceedings who
are other ~ban those who were parties to the industrial dispute? It w1.ll be. noticed that clause (a) refers to all parties to
the !ndustrial dispute, whereas clause (b) refers to all other
parties summoned to appear. The word "other" seems to
suggest that the parties summoned to appear to whom clause
•
600
SUPREME COURT REPORTS
(1964)
1964
(b) refers are not identical with the parties to the industrial
Hochtief Gamm°"' dispute specified by clause (a). Section 2(k) of the Act defines
v.
an 'industrial dispute', inter alia, as meaning any dispute or
Industrial Tribunal, difference between employers and workmen; so that parties
Bhuban.,hwcr
h · d
· I d'
d
J
( )
Id
Orissa and Oth•~s to t e m ustna
1spute un er c a use a wou
mean persons
-
between whom the disp,μte has arisen as prescribed by s. 2(k),
Gajendragadkar, O.J. and so, clause (b) contemplates persons other than those who
are actually and directly involved in the dispute which is the
subject-matter of reference under section 10. Thus, s. 18(b)
seems io contemplate that persons other than parties to the
industrial dispute may be summoned before the Tribunal.
That takes us to the question as to who can summon
these parties'? Section 11(3) of the Act prescribes, inter alia,
that the Tribunal shall have the same powers as are vested
in a Civil Court under the Code of Civil Procedure, when
trying a suit in respect of the matters specified in clauses (a)
to (d); clause (a) refers to enforcing the a.ttendance of any
person and examining him on oath; cl. (b) has reference to
the power to compel the production of documents and material
objects; cl. (c) is in respect of issuing commissions
for
thf' examination of witnesses; and clause (d) is in respect of
such other matters as may be prescribed. It is thus clear that
the power to add a party to the proceedings pending before a
Tribunal which may be exercised under the Code of Civil Procedure under 0.1 r. 10 is not included in s. 11 (3), and there is
no other section which confers such a power on the Tribunal
Therefore, if s. 18(b) contemplates that persons other than
parties to the industrial dispute can be summoned, there is no
specific provision conferring power on the Tribunal to summon them, and that inevitably suggests that the power must
be read as being implicit in s. 18(b) itself.
1In this connection, it is necessary to refer to s. 10 as it
then stood. Section lO(i) then consisted of three clauses which
read thus:-
"If any industrial dispute exists or is apprehended, the
appropriate Government may, by order in writmgs :-
(a) refer the dispute to a Board for promoting a
settlement thereof; or
(b) refer any matter appearing to be connected
with or relevant to the dispute to a Court for
inquiry; or
(c) refer the dispute to Tribunal for adjudication''.
It is significant that so far as the reference to the Tribunal is concerned, s. lO(i)(c) empowered the appropriate Government to refer the dispute to the Tribunal, and unlike
clause (b), this clause did not take within its sweep any matter
•
..
7 S.C.R.
SUPREME COURT REPORTS
601
appearing to be coμnected with or re!evan_t to the di~pute;
1964
so that in regard to the power to refer an mdustnal dispute HochtiefGammon
to the Government Tribunal for its .adjudication, the approv.
Priate Government could make a reference of the disputelndustrialTribiinal.
.
Bhubanesltwar,
itself and was not expressly clothed with the power to refer
Orissa am!. Other•
any matter appearing to be connected with, or relevant to, .
-
such a dispute. The result of these relevant provisions clearly Ga1e1Ulragadkar, G.J.
seems to be that if the Industrial Tribunal, while dealing with
an industrial dispute, came to the conclusion
that persons
other than those mentioned as parties to the industrial dispute
were necessary for a valid determination of the said dispute,
it had the power to summon them; and if such persons were
summoned to appear in the proceedings, the award that the
Industrial Tribunal may ultimately pronounce would be binding on them. Since in cases where persons were added as
parties to an industrial dispute were likely to raise the question as to whether the joinder of the parties was justified or
not, s. l 8(b) required that the Tribunal should record its
opinion as to
whether these persons had been summoned
without proper cause. Thus, we are inclined to take the view
that Mr. Chatterjee is right in contending that s. 18(b) as it
originally stood, postulates that the Tribunal had an implied
power to summon parties, other than parties to the industrial
dispute, to appear in the proceedings before it. That naturally
raises the question about the extent of this power.
In dealing with this question, it is necessary to bear in
mind one essential fact, and that is that the Industrial Tribunal is a Tribunal of limited jurisdiction. Its jurisdiction is to
tr;• an industrial dispute referred to it for its adjudication by
the appropriate Government by an order of reference passed
under s. 10. It is not open to the Triqunal to travel materially
beyond the terms of reference, for it is well-settled that the
terms of reference determine the scope of its power and jurisdiction from case to case. Section 10 itself has been subse·
quently amended from time to· time. Act 18 of 1952 made
substantial amendments in s. 10. One of these amendments
was that s: lO(l)(d) now empowers the appropriate Governwent to refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to
any matter specified in the Second Schedule, or the Third
Schedule, to a
Tribunal for adjudication. In other words,
under s. lO(J)(d), t]).e appropriate Government can refer to
the Industrial Tribunal not only a specific industrial dispute,
but can a.lso refer along with it matters appearing to be connected with, or relevant to, the said dispute. In that sense.
· !he power of the appropriate Government has been enlan>ed
m regard to the reference of industrial disputes to the Tribunal.
602
SUPREME COURT REPORTS
(19641
1964
Seeton 10(4) which was also added by the same amendHochtief '1ammo•
ing Act provides, inter alia, that the jurisdiction of the Indus-
•·
trial Tribunal wouldl be confined to the points of dispute
IndU81rial Tribunal, specified by the order of reference, and adds that the said
~'!::':10:~;,,., jurisdictiorr may take within its sweep matters incidental to
-
the said points. In other words, where certain points of dis-
<Jajendrugadkar, O.J. pute have been referred to the Industrial Tribunal for adjudi·
cation, it may, while dealing with the said points, deal with
matters incidental thereto, and that means that if, while dealiug with such incidental matters, the Tribunal feels that scme
persons who are not joined to the reference should be brought
before it, it may be able to make an order in that behalf under
s. 18(3)(b) as it now stands.
Section 10(5) has now conferred power on the appropriate Government to add to' the reference other establishments, groups or classes of establishments of a similar nature, if
it is satisfied that these establishments are likely to be interested
in, or affected by, such dispute. In other words, if industrial dis·
pute is referred to a Tribunal for adjudication, and in the·
area within the territorial jurisdicton of the appropriate Government there are other establishments which would be affect··
ed by, or interested in, such a dispute, the appropriate Government may add them to the said reference either at the time
when the reference is initially made, or during the pendency
of the said reference proceedings; but in every case; such additions can be made before the award is submitted. Now, if
such persons are added to the reference, the industrial Tribunal may in exercise of its powers under s. 18(3)(b) summoru
them to appear before it.
Section 18(b) with which we began, has also been amended by Act 36 of 1956, and it has now been renumbered. As
a result, s. 18(b) is now included in s. 18(3)(b). Section 18(3)
provides, inter alia, that an award passed by an Industrial
Tribunal which has becpme enforceable
shall be binding
on:
(a) all parties to the industrial disputes;
(b) al! other parti~s summoned to appear in the proceedings as parties to the dispute, unless the
Tribunal records the opinion that they were so
called without proper cause.
The material words in s. 18(3)(b) are the same as they
were originally included in s.18(b), and so, the implied power
which could be exercised by the 1 ndustrial Tribunal under s.
18(b) can now be exercised by it under s. 18(3)(b). If the Tribunal thinks that the parties who were summoned to appear·
before it were so summoned without proper cause, it may
record its opinion to that effect and then tlie award which it
pr;mounces would not be binding on them.
'7 S.C.R.
SUPRE!\U~ COURT REPORTS
603
Reverting then to the question as to the effec~ of the
1964
power which is implied in s. 1~(3).(b). it is clear that this PO\yer llochtiefGammon
.cannot be exercised by the Tribunal so as to enlarge matenalv.
•
Jy the scope of the reference itself, because basically the juris-Indu•trialTribunal,
. .
.
1
d 1 . h
. d tr" 1 d"
t .
Bhuban.,hwar,
diction of the Tnbuna to ea wit an Ill us Ia
!Spu e IS
Ori.so and ou,,,78
derived solely from the order of reference passed by the ap-
.
-
propriate Government under s. 10(1). What th~ Tribunal can GaJendragadkar, C.J.
consider in addition to the disputes specified m the order of
reference, are only ma,ttern incidental to the said disputes;
and that naturally suggests certain obvious limitations on the
implied power of the Tribunal to add parties to the reference
before it, purporting to exercise its implied power under s. 18-
(3)(b). H it appears to the Tribunal that a party to the industrial dispute named in the order of reference does not completely or adequately represent the interest either on the side
of the employer, or on the side of the employee, it ma,y direct
that other persons should be joined who would be necessary
to represent such interest. If the employer named in a reference does not fully represent the interests of the employer
as such, other persons who are interested in the undertaking of the employer may be joined. Similarly, if the unions
specified in the reference do not represent all the employees
of the undertaking, it may be open to the Tribunal to add
such other unions as it may deem necessary. The test always
must be, is the addition of the party necessary to make the
adjudication itself effective and enforceable? In other words,
the test well be, would the non-joinder of the party make the
arbitration proceedings ineffective and unenforceable? It is
in the light of this test that the implied power of the Tribunal
to add parties must be held to be limited.
This question has been considered by the Madras High
Court in two reported decisions .. In P. G. Brooks, Receiver
appoin!ed by the Trustees for the' mortgage debenture holders
of the Madras Electric Tramways (1904) Ltd. v. The Industrial Tribunal, Madras & Ors.,(') the .Division Bench of the
said High Conrt has held that s. 18(b) by necessary implication gives power to the Tribunal to add parties. It can add
necessary or proper party. He need not be the employer or
the employee. In that particular case, the party added was
the Receiver and it was found .that unless the Receiver was
a.dded as a party to the reference proceedings, the adjudical!on. itself would become ineffective. In the words used by
the Judgement, the party added was not a rank outsider or
a disinterested spectator, but was a Receiver who was vitally
concerned with the proceedings before the Tribunal and whose
presence was necessary to make the ultimate award effective
valid and enforceable.
'
(') A.LR. 1954 Mad. 369.
604
SUPREME COURT REPORTS
[1964)
196'
In Radhakrishna Mills Ltd. Peelamedu, Coimbatore Dt.
HO<ktie/Gammon v. The Special Industrial Tribunal, Madras & Ors.(') a single
v.
Judge of the Madras High Court followed the earlier decision,
Jnd.,trial Tribunal, though in this case, a party that was summoned by the Tribuo:f!;:~;::~=; nal had been added to the reference by the State Government
under s. 10(5) of the Act.
<Jajendragadkar, C.J.
In Anil Kuinar Upadhaya v. V. P. K. Sarkar & Ors.('),
11 learned single Judge of the Calcutta High Court has accepted the same view. In that case, the Trustee of the Provident
Fund in question who had not been impleaded originally to
the reference were summoned by the Tribunal and the Court
held that in the absence of the Trustees, the award would
have become nugatory. ltwould be noticed that in all these
decisions. the implied power of the Tribunal to summon additional parties in the reference proceedings is confined onlyto cases where such addition appeared to be necessary for
making the reference complete and the award effective and
enforceable. Such a power cannot be exercised to extend the
scope of the reference and to bring in matters which are not
the subject-matter of the reference and which qre not incidental to the dispute which has been referred.
That takes us to the question as to whether the appellant is justified in contending that Mis Hindustan Steel Ltd.
is a necessary party fo the present proceedings before the Industrial Tribunal, and should, therefore, be. added as such.
Mr. Chatterji has raised two contentions in support of his
plea that Mis Hindustan Steel Ltd. is a necessary party. The
first contention is that if it is ultimately found that the respondent's claim for bonus for the relevant year is well founded, as a result of the contract betwee.n the appellant and Mis
Hindustan Steel Ltd. the liability to pay the said bonus would
rest with the said concern and not with the appellant. The
appellant, according to Mr. Chatterjee, is a firm constituted
only for a single venture for undertaking the execution of the
work of construction· and foundation and civil engineering
·works at Rourkela: it has been engaged by the said concern
of M / s Hindustan Steel Ltd. as its agent and in that behalf
an agreement has been executed between the parties. Mr.
Chatterjee referred us to some of the relevant clauses of. this
a crreement in support of his plea that the liability for bonus.
i{ established by the respondents against the appellant. would
be not the appellant's but of M/s Hindustan Steel Ltd. We do
not propose to examine the merits of this ~o~ten.tion, b~cau~e
we· are satisfied that even if Mr. Chatterjee s contention 1s
well-founded by reference to the relevant clauses of t~e agreement between the parties, that cannot make Ml s Hindustan
Steel Ltd. a necessary party within· the meaning of s. 18(3)(b).
(') A.I.R. 1954 Mad. 606.
(') A.I.R. 1961 Cal. 60.
..
7 S.C.R.
SUPREME COURT REPORTS
605
This contention raises an entirely different dispute between
~~
the appellant and its alleged principal and such a dispute Horluie/Gammo•·
would be wholly foreign to the industrial dispute which has
. v. .
been referred to tile Tribunal for its adjudication.
1
"fi~':,~F,',!:',':'"·
"'
The next contention raised by Mr. Chatterjee is that Mis OT"1saand0thera
Hindustan Steel Ltd. is a necessary party because it is the Gajendr,;;adkar, o.J.
said concern which is the employer of the respondents and
not the appellant.
In either words, this contention is that
though in form the appellant engaged the workmen whom
the respondent union represents, the appellant was acting
as the agent of its principal and for adjudicating upon the
industrial dispute referred to the Tribunal by the State of
Orissa, it is necessary that the principal, viz., Ml s Hindustan
Steel Ltd. ought to be added as a: party. In dealing with this
argument, it is necessary to bear in mind the fact that the
appellant does not dispute the respondent Union's case that
the workmen were employed by the appellant. It would have
been open to the State Government to ask the Tribunal to
consider who was the employer of these workmen and in that
case, the ierms of reference might have been suitably framed.
Where the appropriate Government desires that the question
as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as
parties to the .. reference different persons who are
alleged
to be the employers. Such a course has not been adopted in
the present proceedings, and so, it would not be possible to
hold that the question as to who is the employer as between the
appellant and Mis Hindustan Steel Ltd. is a question incidental
to the industrial dispute which has been referred under s. 10-
(1 )(d). This dispute is a substantial dispute between the
appellant and MI s Hindustan Steel Ltd. and cannot be regarded as incidental in any sense. and so, we think that even
this ground is not sufficient to justify the contention that M f s
Hindustan Steel Ltd. is a necessary party which can be added
and summoned under the implied powers of the Tribunal
under s. 18(3)(b).
The"result is, though we accept Mr. Chatterjee's argument
that s. 18(3)(b) postulates the existence of an. implied power •
in the Tribunal to add parties and summon them, in the present case that power cannot be exercised,
because havino
regard to the limited nature of the implied power, Ml~
Hindustan Steel Ltd. cannot be regarded as a necessary party
under the provisions of s. 18(3)(b). The appeal accordingly
fails and is dismissed with costs.
Appeal dismissed.