Full Judgment Text
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PETITIONER:
WORKMEN OF M/S HINDUSTAN LEVER LTD. & ORS.
Vs.
RESPONDENT:
MANAGEMENT OF M/S HINDUSIAN LEVER LTD.
DATE OF JUDGMENT05/01/1984
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
VARADARAJAN, A. (J)
CITATION:
1984 AIR 516 1984 SCR (2) 307
1984 SCC (1) 728 1984 SCALE (1)15
ACT:
Industrial Disputes Act 1947
Industrial Dispute-Jurisdiction of industrial tribunal-
Determined from the order of reference-Status of person not
questioned by employer-Tribunal whether entitled to suo motu
decide as a preliminary issue.
Concluded Agreement between Management and Union-
Management acting on the agreement for some years-Management
whether later entitled to repudiate and disown agreement-
Difference between unilateral repudiation and termination of
agreement Indicated.
Industrial disputes-Adjudication of-Concept of res
judicate-Whether applible.
HEADNOTE:
The appellant-Union and the respondent-company through
their communications dated January 24,1957, April 24,1957
and May 1,1957 concluded an agreement relating to various
items of industrial disputes which inter alia provided that
the employer had agreed not to contest the issue whether
field force including salesmen were not ’workmen’ within the
meaning of the expression in the Industrial Disputes Act and
that disputes of an All-India nature could be raised only at
Delhi.
Two employees of the Respondent-company who were
salesmen and protected workmen with the meaning of the
expression in the Industrial Disputes Act, 1947 and who were
office-bearers of the union, were charge sheeted and after a
disciplinary enquiry their services were terminated. The
appellant-union raised an industrial dispute contending that
the termination of services of these two workmen were
illegal and invalid, and that the enquiry was equally
illegal, and improper, and that the action of the employer
was an act of reprisal and victimization, because of their
trade union activities. The Government referred the
industrial dispute to the Industrial Tribunal.
The employer contended that the two workmen were not
’workmen’ within the meaning of the expression in the Act
and that the Government had no jurisdiction to refer the
dispute to the Industrial Tribunal. It was further contended
that the services of the workmen were terminated not by way
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of punishment but under the contract of service and that the
disciplinary enquiry which was commenced was subsequently
dropped.
The appellant-union however contended that the employer
was estopped from challenging the status of the two workmen
within the meaning of the expression
308
in the Act on account of the subsisting, valid, concluded
agreement between the parties and that in view of the award
of the Industrial Tribunal, Delhi in I.D. No. 46/66. The
contentions about the existence of the agreement and the
status of salesmen were res judicata and could not be
reopened so long as the agreement was in force and
operative.
The Tribunal rejected the preliminary objections raised
on behalf of the union and came to the conclusion that the
three communications dated January 24,1957, April 24,1957
and May 1, 1957 Ex. W-2, W-3, W-4 respectively did not spell
out a complete, concluded agreement between the parties on
the points mentioned therein but it was an inchoate
agreement in the stage of negotiations and the employer was
not bound to stand by its offer made in the communication
dated January 24,1957 denying itself the right to contest
the status of the field force including salesmen as not
being workman within the meaning of the Act. The award of
the Industrial Tribunal, Delhi in I.D. No. 46/66 in which it
was held that there was a concluded agreement between the
parties and therefore the industrial disputes raised therein
could not be adjudicated at Delhi did not operate as res
judicata because the issue in that award was not directly
and substantially in issue in the present reference. The
Tribunal set down the reference for further hearing.
Allowing the Appeal:
^
HELD: 1. The Tribunal committed a serious error,
apparent on record in holding that there was no concluded
agreement between the parties as emerging from Exs. W-2, W-
3, and W-4. [329 F]
In the instant case, having meticulously examined
various references pertaining to various industrial disputes
between the parties at different centres in India since the
agreement in 1957 it unquestionably emerges that the
employer till the present reference never once even
whispered that the agreement was not a concluded agreement
or that it was an inchoate one left hanging at the stage of
negotiations. It was only in the present reference the
contention raised was that the agreement was not a concluded
agreement. The employer which swore by the agreement and
repeatedly succeeded in getting thrown out certain
references at the threshold on account of the agreement
contended that there was no concluded agreement, and
ignoring the whole history, the Tribunal fell into an error
in accepting this contention. The Tribunal wholly ignored
the fact that it was a solemn agreement, of which effective
and wholesome advantage had been taken by the employer and
when it did not suit it, it wanted to turn round and not
only repudiate it but disown it. No court of justice can
ever permit such a thing to be done. [324 E-325 B]
Hindustan Lever Ltd. v. Ram Mohan Ray & Ors., [1973] 3
S.C.R. 624; Western India Match Co. v. Their Workmen [1964]
3 S.C.R. 560 at 566; and Aluminium Factory Workers, Union v.
Indian Aluminium Co. Ltd. [1962] 1 L.L.J. 210, referred to
2. The Tribunal is directed to proceed to determine the
dispute on merits without concerning itself with the
consideration of the question whether the concerned workmen
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were workmen within the meaning of the expression under the
Act. [332 E]
3. The concept of compulsory adjudication of industrial
disputes was statutorily ushered in with a view to providing
a forum and compelling the parties
309
to resort to the forum for arbitration-so as to avoid
confrontation and dislocation in industry. A developing
country like India can ill-afford dislocation in industrial
production. Peace and harmony in industry and uninterrupted
production being the demands of the time, it was considered
wise to arm the Government with power to compel the parties
to resort to arbitration and as a necessary corollary to
avoid confrontation and trial of strength, which were
considered wasteful from national and public interest point
of view. A welfare State can ill-afford to look askance at
industrial unrest and industrial disputes. [326H-327B]
Dahyabhai Ranchhoddas Shah v. Jayantilal
Mohanlal.,[1973] Lab. & Industrial Cases 967 referred to.
4. The Act did not confer till the introduction of
Chapters V-A and V-B, any special or enforceable benefits on
the workmen. The Act was designed to provide a self-
contained Code to compel the parties to resort to industrial
arbitration for the resolution of existing or apprehended
disputes without prescribing statutory norms for varied and
variegate industrial relation, so that the forums created
for resolution of disputes may remain unhampered by any
statutory control and devise rational norms keeping place
with improved industrial relations reflecting and imbibing
socioeconomic justice. If this is the underlying object
behind enactment of the Act, the Court by interpretative
process must strive to reduce the field of conflict and
expand the area of agreement and show its preference for
upholding agreements sanctified by mutuality and consensus
in larger public interest, namely to eschew industrial
strife, confrontation and consequent wastage. [327 C-E]
5. It is inappropriate to usher in the technical
concept of res judicata pervading the field of civil justice
into the field of industrial arbitration. The principle
analogous to res judicata can be availed of to scuttle any
attempt at raising industrial disputes repeatedly in
defiance of operative settlements and awards. But this
highly technical concept of civil justice may be kept in
precise confined limits in the field of industrial
arbitration which must as far as possible be kept free from
such technicalities which thwart resolution of industrial
disputes. [326 D-G]
Shahdara (Delhi) Sharanpur Light Railway Co. Ltd. v.
Shahdara(Delhi) Sharanpur Railway Workers Union, (1969) 1
L.L.J. 734 at 742; and Workmen of Straw Board Manufacturing
Co. Ltd. v. M/s Straw Board Manufacturing Co. Ltd. [1974] 3
S.C.R. 703 referred to.
6. Unilateral repudiation is distinct from termination
and an agreement/settlement remains in force and binding
till terminated and does not come to an end by unilateral
repudiation. [328 E]
In the instant case, the parties entered into a solemn
agreement. It is not suggested that the agreement has been
terminated. The only argument put forward on behalf of the
employer was that the union has repudiated the agreement by
raising disputes of an all-India nature at a regional level
and thereby committed breach of the agreement. This
contention is entirety without merits. What has happened is
that the Union raised certain disputes which according to
the Union were of a regional nature and which it was not
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estopped from raising in the teeth of the terms of the
binding agreement between the parties. On the other hand the
employer contended that the disputes so raised were of an
all-India nature. Both sides swore by the agreement, the
difference in approach being whether the dispute was of an
all-India nature or of regional nature. The divergence in
approach
310
was as to the interpretation, the coverage, the ambit and
the width of the agreement Both the parties swore by the
agreement but differed in their approach and interpretation
and the forum namely the Industrial Tribunal consistently
upheld at the instance of the employer that there was a
binding valid agreement subsisting between the parties. This
constitutes adherence to agreement, performance of the
agreement, implementation of the agreement and being bound
by the agreement. This conduct in no sense can be said to
constitute repudiation. [327 F-328 C]
7. The Tribunal derives its jurisdiction by the order
of reference and not on the determination of a
jurisdictional fact which it must of necessity decide to
acquire jurisdiction. [330 G]
8. In industrial adjudication, issue are of two types:
(i) those referred by the Government for adjudication and
set out in the order of reference, and (ii) incidental
issues involving mixed questions of law and facts. The
Tribunal may frame preliminary issues if the point on which
the parities are at variance, go to the root of the matter.
But the Tribunal cannot travel beyond the pleadings and
arrogate to itself the power to raise issues which the
parties to the references are precluded from raising. If the
employer does not question the statues of the workmen, the
Tribunal cannot suo motu raise the issue and proceed to
adjudicate upon the same and throw out the reference on the
sole ground that the concerned workman was not a workman
within the meaning of the expression under the Act. [331 G-
332 A]
9. Whether a particular person is a workman or not
depends upon factual matrix. Workman is defined in Sec. 2(s)
of the Act. The ingredients and the incidents of the
definition when satisfied, the person satisfying the same
would be a workman. Negatively if someone fails to satisfy
one or other ingredient or incident of the definition, he
may not be held to be workman within the meaning of the
expression in the Act. [330 C]
10. There is no provision in the Act which obliges the
Industrial Tribunal or other forums set up under the Act to
decide even in the absence of a contention from the
employer, a preliminary issue whether the person who has
invoked its jurisdiction is a workman or not. There is no
such obligation cast statutorily on the Tribunal. If the
employer does not raise the contention about the status of
the workman approaching the Tribunal, the Tribunal has no
obligation to decide. The status of the person whether he is
a workman or not. The Tribunal must proceed on the
assumption that no such contention is raised and is required
to be adjudicated upon. [330 D-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1865 of
1982
Appeal by Special leave from the Order dated the 24th
December, 1981 of the Labour Court, Delhi in ID. No. 120 of
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1977.
M.K. Ramamurthi, V.P. Choudhary Jitendra Sharma and P.
Gaur, for the Appellant.
G.B. Pai, O.C. Mathur, D.N. Mishra, S. Sukumaran and
Ms. Meera Mathur, for the Respondent.
311
The Judgment of the Court was delivered by
DESAI, J. If solemn agreements proposed by the employer
and readily acceeded to by the workmen and holding the forte
for over a quarter of a century are crudely disowned
compelling the workmen to knock at the door of the apex
court for removing the road-block in the access to justice
set up by preliminary objection of technical nature,
industrial peace and harmony chanted by the employer would
be not merely an empty mantra but a futile exercise of
chasing a mirage and unfortunately that is the situation
here.
Hindustan Lever Ltd., a multi-national company,
respondent herein addressed a communication dated January
24, 1957 recording the out-come of mutual deliberations
between the Hindustan Lever Ltd. (employer’ for short) and
the Hindustan Lever Mazdoor Sabha (’union’ for short)
recognised representative union of the workmen employed by
the employer. The relevant portion may be extracted:
"Ex. W-2 24th January, 1957
The President,
Hindustan Lever Mazdoor Sabha,
Bombay.
Dear Sir,
Referring to our recent meeting about field force, we
would like to place on record that:
(1) We recognise you as the representative union for
all sections of field force all over India.
(2) You have agreed to treat all matters relating to
wages/salaries and terms and conditions of service
on an all India basis and not on a regional basis
as far as field force is concerned.
(3) For all matters of an all-India nature relating to
field force, you will communicate with the
Personnel Director. We hope that all such matters
will be settled by direct negotiation but if at
any stage you decide to refer the matter to
conciliation, you will do so only at Bombay. We,
on our part, give you the assurance that if the
matter
312
is referred to a Tribunal in Bombay then its award
will be applied by you to field force all over
India. For this reason, you will agree that it
will be only proper for the Tribunal to examine
the matter in an all India perspective.
4) Although we do not anticipate any problems of a
purely local nature, in case such problems do
arise your members will first try to arrive at a
solution by approaching their own managers and if
this fails, your local Committee should refer the
matter to the local Commercial Manager or Office
Manager.
5) For future disputes we shall not contest issues
about field force on the basis of their not being
’workmen’ but shall contest issues only on the
merits in the same way as we do for other
employees.
Please confirm that you agree with the points
mentioned above.
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Yours faithfully,
Sd/- B.K. Bindani
The union responded to this communication as per its
letter dated April 24, 1957 which reads as under:
"Ex. W.3
The Personnel Manager,
Hindustan Lever Limited,
Scindia House,
Ballard Estate,
Bombay-1. 24th April, 1957
Dear Sir,
With reference to your letter Personnel KSB/BN/49
dated 24.1.1957 and in the light of further discussions
we had with you on the subject, we would like to state
as under:
1. We thank you for recognising us as the
Representative Union for all sections of the Field
Force employees all over India.
313
2. We agree that certain major issues such as a
salary wages, bonus, provident fund, Gratuity,
leave etc. will be treated as far as possible on
an all-India basis.
3. We agree that for all matters of an all-India
nature, we will communicate with the Personnel
Director. As for the other points raised by you,
we agree to follow the procedure, as far as
legally permissible.
4. Local matters, if not settled by negotiations,
will have to be dealt with otherwise. For
instance, the Sabha may go in for conciliation or
may be free to resort to any other legitimate
and/or peaceful method.
5. We are indeed glad to note that you will not
contest issues about field force on the basis of
their not being ’Workmen’ but you will contest
issues only on their merits in the same way as you
do for other employees. We wish to take the
opportunity also to confirm your agreement with us
that in regard to demands relating to Field Force
contained in Ref. N.48 of 1956, now pending
adjudication at Delhi, you will not contest the
issue on the basis of their not being ’Workmen’
but you will contest the issue on the merits of
the demands as you do for other employees.
Yours faithfully,
Sd/- P. Pullat President
1st May, 1957"
A further communication ensued from the employer dated
May 1, 1957. It is not necessary to reproduce the whole of
it save and except that the employer wanted to be assured
that the union by its communication dated April 24, 1957
unequivocally intended to confirm the items of agreement
relating to various items of industrial disputes between the
parties as set out in its communication dated January 24,
1957 and further sought clarification of the two points
raised by the union.
The substantial question is whether there emerged a
concluded agreement between the parties and binding on the
parties till it is terminated according to law? The question
of the existence of a concluded agreement and its validity
arises in the following circumstances.
314
Shri A.K. Sircar and Shri R.L. Gupta were protected
workmen within the meaning of the expression in the
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Industrial Disputes Act, 1947 (’Act’ for short) and were
admittedly the office-bearers of the union and consequently
leaders of the workmen. The employer served a charge-sheet
on Shri A.K. Sircar on April 10, 1974 and on the next day, a
charge-sheet was served on Shri R.L. Gupta. There followed a
disciplinary enquiry and ultimately the services of Shri
A.K. Sircar and Shri R.L. Gupta were terminated by the
employer. The union raised an industrial dispute contending
that the termination of services of the aforementioned two
workmen was illegal and invalid and the enquiry was equally
illegal and improper and that the action of the employer was
an act of reprisal and victimization because of the trade-
union activities of the aforementioned two office-bearers of
the union: The appropriate Government referred the
industrial dispute to the Industrial Tribunal on July 16,
1977.
The employer in its written statement inter alia
contended that Shri A.K. Sircar and Shri R.L. Gupta were not
workmen within the meaning of the expression in the Act and
therefore the appropriate Government had no jurisdiction to
refer the dispute to the Industrial Tribunal and
consequently the Industrial Tribunal had no jurisdiction to
hear and deal with the reference. It was further contended
that in a reference between the employer and the union in
another dispute to the Industrial Tribunal in Maharashtra
State, a contention was raised by the employer that salesman
of the employer is not a workman within the meaning of the
expression in the Act and this objection was upheld by the
Industrial Tribunal and a petition for special leave against
the decision of the Industrial Tribunal to the Supreme Court
was rejected on October 1, 1975. It was further contended
that the services of the aforementioned two workmen were
terminated not by way of punishment but under the contract
of service and the disciplinary enquiry which was commenced
earlier was subsequently dropped.
The union in its counter-affidavit inter alia contended
that the employer was estopped from challenging the status
of the two concerned workmen as not being workmen within the
meaning of the expression in the Act on account of a
subsisting valid concluded agreement between the parties
inter alia providing that the employer will not contest the
issue about status of field force (which expression includes
salesman) on the basis of their not being workmen but shall
contest the issue only on the merits in the same way as they
do for other employees. It was also contended that in view
of Shri Roop
315
Chandra award the issue about existence of the agreement and
the status of salesman is res judicata and cannot be
reopened till the agreement remains in force and operative.
The rival pleadings led to the Industrial Tribunal
framing the following issues:
"1) Whether the management is estopped from
challenging the status of these two concerned
workmen as "workman’ within the meaning of the
Industrial Disputes Act.
2) Whether the award dated 17-11-66 of the Additional
Industrial Tribunal, Delhi would operate as res
judicata between the parties ?
3) If issue No. 1 is answered in the negative whether
the concerned (sic) are ’workman’ within the
meaning of the I.D. Act ?
4) What is the effect of the order dated 6-1-75
passed by the I.T. Maharashtra in reference 203 of
1973 and order dated 1.10.1975 of the Supreme
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Court in Petition for special leave 1602 of 1975 ?
5) Whether the reference is incompetent and bad in
law for reasons mentioned in prel. objections
(III), (IV), (V) and (VII) and (VIII) ?
Issue Nos. 1,2, 4 and 5 were directed to be heard
as preliminary issues. On Issue No. 1, the Industrial
Tribunal held that the three communications Ex.W-2 dated
January 24, 1957, Ex. W-3 dated April 24, 1957 and Ex. W-4
dated May 1, 1957 did not spell out a complete concluded
agreement between the parties on the points set out therein
but it was an inchoate agreement in the stage of
negotiations and therefore the employer was not bound to
stand by its offer made in the communication dated January
24, 1957 denying to itself the right to contest the status
of the field force including salesman as not being workman
within the meaning of the expression in the Act. On Issue
No. 2, it was held that the award of Shri Roop Chandra in
I.D. No. 46 of 1966 in which it was held that there was a
concluded agreement between the parties as disclosed in Exs.
W-2, W-3 & W-4 and therefore the industrial dispute therein
raised could not be adjudicated upon at Delhi, it being an
All-India dispute and ought to have been raised at Bombay,
did not operate as res judivata
316
because the issue in the award was not directly and
substantially in issue in the present reference. Parties did
not advance any argument on Issues Nos. 4 and 5 and
therefore with reference to Issue No. 4, the Tribunal
observed that the same may not be disposed of without
further hearing the parties and no finding was recorded on
Issue No. 5. The Tribunal accordingly rejected the
preliminary objections raised on behalf of the union and set
down the reference for further hearing. Hence this appeal by
special leave by the union.
At the outset, we must record our unhappiness on the
attitude adopted by the employer in contending as late as
1981 that the three communications Exs. W-2, W-3 and W-4 did
not constitute a concluded agreement between the parties
with respect to the points settled therein and the Tribunal
ignoing the history and repeated advantage taken by the
employer of this concluded agreement on numerous occasions
accepted the contention of the employer. IT is therefore
necessary first to point out how from 1957 till as late as
1966 and even thereafter the employer non-suited the union,
if that is a proper term, by setting up the very agreement
which now the employer wants to urge that it is not a
concluded agreement. The three important clauses of the
agreement emerging from the correspondence relevant to the
present dispute are that (i) the Hindustan Lever Mazdoor
Sabha was recognised by the employer as a representative
union for all sections of field force all over India in the
employment of the employer and (ii) the union agreed to
bring all matters relating to wages/salaries and terms and
conditions of service on an All-India basis and not on
regional basis as far as field force is concerned and (iii)
that in future disputes, the employer will not contest issue
about member of the field force being workmen but shall
contest issues only on their merits in the same way as the
employer would do for other employees. Freed from technical
jargon, the employer agreed and undertook not to contest in
any industrial dispute the status of the field force as not
being workman within the meaning of the expression in the
Act and that reference, if any, would be contested on the
merits of the industrial dispute in respect of which
reference is made to the Industrial Tribunal. The out-come
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of the agreement would be that if a dispute of an all-India
nature in respect of the field force is raised at a regional
level, founding its contention on one of the terms of the
agreement, the employer would be in a position to get any
regional reference rejected on the ground that there is a
subsisting valid agreement between the parties that such
dispute of an all-India nature in respect of the field force
can be raised at Bombay only and within the jurisdiction of
the Industrial Tribunal at Bombay only.
317
There is no dispute between the parties that if there is an
agreement such would be the out-come of it. This is not only
not in dispute but it is conceded that a settlement was
arrived at in respect of industrial disputes between the
employer and the union concerning the field force including
salesman in 1957, 1959 and 1964. An averment to this effect
is made in Paragraph ’H’ of the petition for special leave
and Anx.5 was annexed to the petition which purports to be
the settlement dated December 22, 1964. It is signed by Shri
C.J. Mahimkar, Joint Personnel Manager on behalf of the
employer and Shri A.K. Basu, General Secretary of the union
at the relevant time. The various industrial disputes in
respect of which settlement is arrived at were between the
employer and the workmen of the company who were the members
of the field force (salesmen, sales supervisors etc.)
employed in any part of India. This settlement was arrived
at under the Industrial Disputes Act and was registered
according to the requirements of the Act. This implies that
the status of the salesman as being workman within the
meaning of the expression of the Act was not only not
disputed but specifically conceded and that must obviously
be pursuant to the subsisting agreement. This is however an
inference so it is better now to move on to adjudication and
award by a forum with jurisdiction to decide the point.
The Chief Commissioner of Delhi referred an industrial
dispute whether workmen whose names were set out in the
order- of reference be paid compensation in addition to the
usual remuneration for the period they had marketed Erasmic
Blades and what directions were necessary in this behalf.
The reference was between the employer the present
respondent and the appellant union.
In this reference, the workmen who claimed remuneration
were Delhi based salesmen of the employer. The employer
appeared and contested the reference. The only important
contention raised on behalf of the employer which must be
noticed reads as under:
"That the concerned workmen are members of the
field force of the company; that the field force unit
is a separate unit known as Field Force Unit; that they
are liable to be transferred anywhere in India; that
the Field Force Unit is controlled by Company’s Head
Office in Bombay; that it was agreed between the
company and the Hindustan Lever Mazdoor Sabha, Bombay
that all matters relating to Field Force Unit would be
dealt with by both parties at Bombay on all-India basis
and if no settlement is reached, the dispute
318
shall be raised in Bombay in accordance with Industrial
Disputes Act; and that any settlement or Award therein
would be made applicable and shall be binding on all
members of the field force all over India." (Emphasis
supplied).
The employer also contended that in view of the
agreement between the parties, the dispute referred to the
Industrial Tribunal regarding the field force could not be
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raised at Delhi. It was also contended that in view of the
agreement subsisting between the parties, the employer had
agreed not to contest the issue that its salesman were not
workmen within the meaning of the expression in the Act. A
further contention was raised that the union has committed
breach of the agreement by raising the dispute at Delhi.
The union while conceding that there was an agreement
between the parties as alleged by the employer contested the
issue by saying that the dispute was not of an all-India
nature as it was concerning only some Delhi based salesmen
of the employer and therefore the dispute was not covered by
the agreement.
The Industrial Tribunal (Shri Roop Chandra) on the
rival contentions of the parties, raised the following
issues:
"ISSUES
"1) Is there any agreement between the Company and its
workmen through the Hindustan Lever Mazdoor Sabha
that all matters relating to members of the field
force would be dealt with by both the parties in
Bombay on an all India basis and that if no
settlement is reached, the dispute would be raised
in Bombay in accordance with the Industrial
Disputes Act ?
2) Does the said agreement prevent the workmen in
this case from raising the dispute in Delhi ?
3) Are the employees concerned not ’workmen’ within
the meaning of the term under the Industrial
Disputes Act ? If so, has the tribunal no
jurisdiction ?
4) Whether workmen have committed a breach of the
agreement alleged to have been entered into
between the management and the union in 1957 and
if so, is the
319
management not entitled to raise the plea that the
salesmen are not ’workmen’ within the meaning of
Industrial Disputes Act. ?"
It would thus appear at a glance that it was the
employer who wanted the reference to be rejected on the
preliminary objection that there was a valid subsisting
concluded agreement between the parties which had a direct
bearing on the industrial dispute involved in the reference
and that because of the agreement and as a necessary
corollary of the agreement the Tribunal had no jurisdiction
to entertain the dispute.
Now see the out-come of this contention of the
employer. On Issue Nos. 1 and 2, Shri Roop Chandra as per
his award dated November 17, 1966 held that in view of Exs.
W-2, W-3 and W-4 marked in evidence in the reference before
him as Exs. M-1, M-2 and M-3 produced and relied upon by the
management that is the employer, the Industrial Tribunal at
Delhi would have no jurisdiction to entertain it. It was
never contended by the employer before Shri Roop Chandra
that the three documents did not end in a concluded
agreement. On a contrary parties were ad idem that there was
a concluded agreement between the parties. The difference
was in their approach as to the applicability of various
clauses of agreement to the dispute raised in the reference
before the Tribunal. The employer contended that the dispute
was of an all-India nature and therefore could not be raised
at Delhi. The union on the other hand, contended that the
dispute was of a regional nature concerning only 16 Delhi
based salesmen of the Company and therefore the dispute
could not be styled as an all-India dispute.
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The Tribunal held that the dispute was of an all-India
nature, related to the duties and liabilities of all members
of the field force employed all over India and it involved
such a major issue as salary and wages. Approaching the
matter from this angle, the Tribunal further held on the
basis of the agreement, that the dispute could only be taken
cognizance of at Bombay. The Tribunal was of the opinion
that the agreement was valid and did not contravene Sec. 28
of the Indian Contract Act because where the parties choose
to have the matter entertained in one of the two or more
courts having jurisdiction to entertain the matter, such an
agreement does not contravene Sec. 28. The Tribunal further
held that the agreement had the sanctity of a contract and
the parties must be held to the contract. The Tribunal
concluded by observing that the union was not justified in
raising
320
the dispute in Delhi in view of its agreement with the
employer as evidence by the three documents and that it is
not expedient in the interest of justice and peace and
harmony in industry that the Tribunal should adjudicate the
matter of an all-India nature. So saying the Tribunal
rejected the reference. The question is who took advantage
and benefit of the agreement ? Unquestionably, the employer
who now decades after successfully contending before another
Tribunal that there was a valid and concluded agreement,
wants to contend that the three documents Exs. W-1, W-2 and
W-3 do not spell out a concluded agreement but an inchoate
one which remained at the stage of negotiations only. But
that is not the end of the vacillation on the part of the
employer.
Mr. Pai, learned counsel on behalf of the employer on
the other hand contended that the union has expressly
repudiated the agreement and therefore, it is not open now
to the union to take recourse to the agreement. It was
submitted that if the union has committed a breach of the
agreement, if there was any, the employer is absolved from
observing or complying with the agreement. To substantiate
this submission, our attention was invited to a reference
made by the Lt. Governor, Delhi to the Addl. Industrial
Tribunal constituted for the Union Territory of Delhi, then
presided over by Shri Hans Raj for adjudication of the
following two issues:
’1. whether the deduction of leave by the management
for the year 1967 is illegal and/or unjustified
and if so, to what relief are the affected workmen
entitled and what directions are necessary in this
respect ?
2. Whether the management was obliged to grant
special increment to all of its workmen in Delhi
Branch and if so, to what relief the affected
workmen are entitled and what directions are
necessary in this respect ?"
The union filed a statement of claim and subsequently
filed an additional or amended written statement in which
inter alia it was contended ’that the workmen of the concern
throughout India were agitated because of this measure and
its wholly illegal implementation and the applicant Sabha
led the opposition of the scheme and the resistance of the
workmen to it.’ This averment was relied upon to urge that
the union raised a dispute of an all-India nature at Delhi
which was the regional centre and this would imply
intentional breach or repudiation of the agreement. Before
we examine this contention,
321
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it is necessary to refer to para 10 of the amended statement
of claim in which the union states as under:
"That the binding nature of the agreement has been
flagrantly flouted by the Management and the very basis
of collective bargaining for industrial peace has been
attacked."
This would show that the union accused the employer of
breach of agreement. On the other hand, the employer in its
written statement contended as under:
"No claim on behalf of the employees of the Field
Force can be taken up by Hindustan Lever Mazdoor Sabha,
Delhi Centre and this Hon’ble Tribunal has no
jurisdiction to entertain the same in view of an
agreement arrived at and between the Company and the
Hindustan Lever Mazdoor Sabha in 1957."
(emphasis supplied)
It would be crystal clear that the employer wanted the
reference to be rejected at the threshold on the preliminary
objection that in view of the concluded binding agreement
between the parties, the dispute referred to for
adjudication being of an all-India nature, the union was
precluded from raising the same at a regional level and the
Tribunal had no jurisdiction to entertain the same. Apart
from the extracted specific contention in paragraphs 5 and
6, the contention is elaborated by the employer and it was
specifically contended that in the award dated Nov. 17, 1966
by Shri Roop Chandra, Addl. Industrial Tribunal, Delhi, it
was held that a valid agreement was in existence between the
parties and no dispute pertaining to the members of the
Field Force can be raised anywhere except in the State of
Maharashtra. It was further contended that the award of Shri
Roop Chandra was confirmed by the High Court of Delhi by
summarily dismissing the Writ Petition No. 1163/67 filed by
the union against the award and when the union approached
the Supreme Court in Appeal No. 42/68, the same was rejected
thereby affirming the existence and binding character of the
agreement. These assertions by the employer flow from the
pleadings. To revert to the narration, Shri Hans Raj proceed
on leave and then retired and when a new Presiding Officer
was appointed, the reference with one application filed by
the union to summon certain documents came up before the
Tribunal. By a laconic order, unsupported by any reasoning,
the Tribunal observed that the salesmen are not workmen and
so the documents need not be summoned. It was this order on
the application which was chal-
322
lenged in the writ petition filed by the union. It is
difficult to appreciate what permitted the Tribunal to hold
that the salesmen are not workmen within the meaning of the
expression in the Act and why it did not consider the
specific contention that the employer was estopped from
raising the contention as to the status of the salesmen in
view of the binding agreement between the parties. But for
the present purpose, it is sufficient to notice that the
employer and the union both swore by the agreement and at
any rate the employer never contended that there was no
concluded agreement between the parties covering one of the
points in the dispute namely, the status of the members of
the Field Force including salesmen.
Mr. Pai next turned to another round of litigation
between the parties. It appears that effective from
September 6, 1966, the employer reorganised its marketing
organisation into two divisions, the Main Lines Division and
the Speciality Lines Division. The Calcutta Branch of the
employer was concerned only with marketing. The workmen at
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Calcutta were directly affected by the reorganiszation. On a
dispute raised by the union, the Government of West Bengal
referred the following dispute for adjudication to the
Industrial Tribunal
"Is the human rationalisation as a measure of
economic reorganisation of the company reflected
through job-integration that have either been effected
or proposed to be effected justified ?"
Pending adjudication of the dispute, some workmen filed
applications under Sec. 33A of the Industrial Disputes Act
before the Tribunal alleging that during the pendency of the
adjudication their service conditions had been altered
adversely and their salary for the month of October, 1966
had not been paid. The Tribunal granted the applications of
the workmen and the employer approached the Supreme Court by
special leave. The main reference was finally disposed of in
favour of the employer upholding the reorganisation of
marketing organisation. The union questioned the correctness
of this award before the Supreme Court. Both the groups of
appeals came up for hearing together and the decision of
this Court is reported in Hindustan Lever Ltd. v. Ram Mohan
Ray & Ors. This Court upheld the right of the employer to
organise and reorganise its work in the manner it pleases.
Accordingly the appeals filed by the union were rejected.
323
The appeals filed by the employer against the award in
favour of the workmen in the applications under Sec. 33A
were equally rejected by this Court holding that non-payment
of wages in the circumstances of the case amounts to an
alteration in the conditions of service. Frankly, this
decision sheds no light on the point under discussion
because neither side relied upon the agreement nor did the
agreement figure into the dispute. However, it is
interesting to note that when the main reference was before
the Tribunal, a preliminary objection was raised on behalf
of the employer to the effect that by an agreement entered
into in January 1957 by and between the employer and union,
it was agreed that all matters relating to the matters of
the outdoor marketing staff, to wit members of the field
force can be raised at Bombay only and as such the company
as well as the Sabha are bound by the aforesaid agreement.
Therefore, not only the employer affirmed the agreement, did
not contend that it was an inchoate one but specifically
placed that it is a concluded binding agreement between the
parties.
It appears that there was one more reference I.D. No.
43/72 between the parties at Delhi. Following the decision
of this Court in the case just herein discussed, the
reference was rejected.
Mr. Pai next referred to an order in Reference (I.D.)
No. 203/70 by the Industrial Tribunal Maharashtra between
the employer and the workmen-employees under it. The demand
which was referred for adjudication included revision of pay
scales with adjustment, revision of the wage-scale of sub-
clerical grade, gratuity disturbance allowance/and settling-
in-allowance to the office staff, allowance to office staff
while on tour, acting allowance, overtime wages, cash
allowance and leave travel facilities. The employer raised
number of preliminary objections, one such being that
Salesmen, Marketing Research Investigators, Market Research
Supervisors, Sales Supervisors, Trade Marks Investigators,
Seed Buyers and Supervisors of clerical staff are not
workmen within the meaning of the expression in the Act, and
hence no industrial dispute can be raised on their behalf
and consequently the Tribunal had no jurisdiction to
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adjudicate upon the same. The union countered this
preliminary objection by asserting that the contention about
the status of the aforementioned categories is barred by the
principle of res judicata in view of the award dated April
13, 1967 made by the 3rd Industrial Tribunal, West Bengal.
The Tribunal rejected the contention of the union observing
that the dispute between them is not of an all-India nature
and therefore, the employer is entitled to raise the
question about the status of the work-
324
men included in the aforementioned categories. This would
imply that the reference was rejected not on the ground that
there was no agreement but on the ground that the dispute
involved in the reference was not covered by the agreement.
In the same reference, a plea of estoppel raised on behalf
of the union to the effect that the company was precluded in
view of the subsisting agreement from questioning the status
of the salesmen and allied categories as workmen was
overruled by the Tribunal observing that Exs. W-2, W-3 and
W-4 leave no doubt that the employers’ agreement not to
dispute the status of the Field Force was only on the clear
understanding that it will be so, if dispute is raised on
all India basis. The Tribunal then observed that the dispute
admittedly was not an all-India dispute and therefore,
rejected the plea of estoppel.
It is at this stage necessary to refer to one more
reference between the parties being I.T. No. 233/67. The
dispute referred to was a demand by the workmen to withdraw
the reorganisation integration imposed on the Supervisors
attached to the Sales Department and impending in the case
of Field Force (Salesmen) and other staff attached to the
Sales, Accounts, Transport and allied department. This
demand was rejected by the Tribunal following the decision
in Hindustan Lever Ltd. v. Ram Mohan Ray & Ors. (supra) The
rejection of the demand has no impact at all on the point
under discussion.
Having meticulously examined various references
pertaining to various industrial disputes between he parties
at different centres in India since the agreement in 1957,
it unquestionably emerges that the employer till the present
reference never once even whispered that the agreement was
not a concluded agreement or that it was an inchoate one
left hanging at the stage of negotiations. But in the
present reference the contention raised was that the
agreement was not a concluded agreement because that is how
the Tribunal has approached the problem. The Tribunal has
observed in this behalf as under:
"According to the management the three letters do
not constitute an agreement because in an agreement
there should be an offer and the offer must be accepted
as such. They have argued that the offer made in Ex. W-
2 have not been accepted as such in Ex. W-3
......................"
The employer which swore by the agreement and
repeatedly succeeded in getting thrown out certain
references at the threshold on account of the agreement, now
wants to contend that there was no
325
concluded agreement, and ignoring the whole history, the
Tribunal falls into an error in accepting this contention.
The weight of evidence not only not at all referred to by
the Tribunal but frankly wholly ignored clearly and
unmistakably leads to one and one conclusion alone that
according to the employer there was the concluded agreement
between the parties. It is a solemn agreement, the agreement
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of which effective and wholesome advantage has been taken by
the employer and when it now does not suit it, it in breach
of the solemn agreement wants to turn round and not only
repudiate it but disown it as having never been entered
into. No Court of justice can ever permit such a thing to be
done.
Mr. Pai, however, raised a very technical contention
that the preliminary objection raised by the union that the
employer is estopped from questioning the status of the
salesmen or members of the Field Force being not workmen
within the meaning of the expression in the Act must be
rejected either on the principle of issue of estoppel or
promissory estoppel and neither of the three contentions is
available to the union notwithstanding the fact whether the
agreement exists or stands repudiated and therefore, the
Tribunal was justified in rejecting the contention of the
union. Mr. Pai in support of the submission urged that at no
time as the status of the salesmen as not being workmen or
otherwise was ever directly and substantially in issue in
earlier references, the issue cannot be rejected on the
ground of res judicata and at any rate there was no decision
on this issue and therefore the principle of issue estoppel
cannot preclude the employer from raising the contention.
Mr. Ramamurthi, on the other hand, contended that it is not
the contention of the union that the issue about the status
of the salesmen is res judicata but what is res judicata is
the existence and binding character of the agreement which
was directly and substantially in issue between the parties
in the award given by Shri Roop Chandra and in various other
awards.
In order to appreciate rival contentions it is
necessary to focus attention on the issues framed by
Industrial Tribunal presided over by Shri Roop Chandra in I.
D. No. 46 of 1966. These issues have been extracted earlier.
The most important issue was Issue No. 1 about the existence
of a binding agreement between the parties which would
preclude the employer from ever questioning the status of
the salesmen till the agreement remains subsisting and till
it is terminated. The issue was: ’is there any agreement
between the company and
326
its workmen covering inter alia the question about the
status of salesmen? And the answer was: ’there is such a
valid and subsisting agreement and that position was adopted
by none other than the employer and the employer succeeded
in getting the reference thrown-out at the threshold on the
ground that in view of the subsisting valid agreement
between the parties, the union was estopped from raising a
dispute of an all-India nature at a regional level and it
can only be raised at Bombay and therefore, the Industrial
Tribunal at Delhi had no jurisdiction to entertain the same.
Even if the technical principle of res judicata is imported
in the field of industrial adjudication, the issue about the
existence of an agreement was substantially and directly in
issue between the parties in the earlier proceedings and was
decided in the affirmative that there exists such an
agreement. In the reference from which the present appeal
arises, the employer contended that there is no such
concluded agreement as pleaded by the union, and therefore,
the issue that arises is: whether there is such an agreement
as pleaded on behalf of the union. But that was the specific
issue in Reference I.D. No. 46 of 1966 between the same
parties. To that extent, one can say that unless change of
circumstances are established, the issue would be res
judicata. But we consider it inappropriate to usher in this
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technical concept of res judicata pervading the field of
civil justice into the field of industrial arbitration. The
apprehension was voiced by this Court in Shahdara (Delhi)
Saharanpur Light Railway Co. Ltd. v. Shahdara (Delhi)
Saharanpur Railway Workers Union (1) when it said that it is
doubtful whether the principles analogous to res judicata
can properly be applied to industrial adjudication. We are
not unaware of the legal position that principle of res
judicata was invoked and applied by this Court in Workmen of
Straw Board Manufacturing Co. Ltd. v. M/s. Straw Board
Manufacturing Co. Ltd.(2) One can safely say that principle
analogous to res judicata can be availed of to scuttle any
attempt at raising industrial disputes repeatedly in
defiance of operative settlements and awards. But this
highly technical concept of civil justice may be kept in
precise confined limits in the field of industrial
arbitration which must as far as possible be kept free from
such technicalities which thwart resolution of industrial
disputes. We however proceed on the assumption that an
industrial dispute may be rejected on the principle
analogous to res judicata. The matter however may be looked
at from a slightly different angle. The concept of
compulsory adjudication of industrial disputes was
statutorily ushered in with a view to providing a forum
327
and compelling the parties to resort to the forum for
arbitration so as to avoid confrontation and dislocation in
industry. A developing country like India can ill-afford
dislocation in industrial production. Peace and harmony in
industry and uninterrupted production being the demands of
the time, it was considered wise to arm the Government with
power to compel the parties to resort to arbitration and as
a necessary corollary to avoid confrontation and trial of
strength which were considered wasteful from national and
public interest point of view. A welfare State can ill-
afford to look askance at industrial unrest and industrial
disputes. (See Dahyabhai Ranchhoddas Shah v. Jayantilal
Mohanlal(1). The Act did not confer till the introduction of
Chapters V-A and V-B, any special benefits or enforceable
benefits on the workmen. The Act was designed to provide a
self-contained Code to compel the parties to resort to
industrial arbitration for the resolution of existing or
apprehended disputes without prescribing statutory norms for
varied and variegated industrial relation norms so that the
forums, created for resolution of disputes may remain
unhampered by any statutory control and devise rational
norms keeping passe with improved industrial relations
reflecting and imbibing socioeconomic justice. If this is
the underlying object behind enactment of the Act the Court
by interpretative process must strive to reduce the field of
conflict and expand the area of agreement and show its
preference for upholding agreements sanctified by mutuality
and consensus in larger public interest, namely to eschew
industrial strife, confrontation and consequent wastage.
The parties in this case entered into a solemn
agreement. It is not for a moment suggested that the
agreement has been terminated. The only argument put forward
on behalf of the employer was that the union has repudiated
the agreement by raising disputes of an all-India nature at
a regional level and thereby committed breach of the
agreement. This contention is entirely without merits. What
has happened is that the union raised certain disputes which
according to the union were of a regional nature and which
it was not estopped from raising in the teeth of the terms
of the binding agreement between the parties. On the other
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hand the employer contended that the disputes so raised were
of an all-India nature. Both sides swore by the agreement
the difference in approach being whether the dispute was of
an all-India nature or of regional nature. The emerging
situation would be that neither the union repudiated the
agreement nor the employer and till the present dispute,
both swore by the agreement. The divergence in
328
the approach was as to the interpretation the coverage, the
ambit and the width of the agreement. Both the parties swore
by the agreement but differed in their approach and
interpretation and the forum namely the Industrial Tribunal
consistently upheld at the instance of the employer that
there was a binding valid agreement subsisting between the
parties forbidding the union from raising a dispute of an
all-India nature at the regional level and succeeded in
getting the reference thrown out at the threshold on the
ground that the dispute was of an all-India nature and not
of a regional level as contended by the union. This
constitutes adherence to agreement, performance of the
agreement, implementation of the agreement and being bound
by the agreement. This conduct in no sense can be said to
constitute repudiation of agreement by the union. Unilateral
repudiation of an agreement, as contended by Mr. Pai, does
not result in termination of a solemn agreement because the
wrongful repudiation can be corrected by enforcement of
agreement through machinery provided by the statute. And
that is what the employer has succeeded in achieving. The
employer relying on the agreement got a number of references
rejected on the preliminary objection founded on the
agreement. The employer cannot therefore be heard to say
that the attempted repudiation by the union, if any, permits
the employer to disown the same when it suits it. Unilateral
repudiation is distinct from termination and an
agreement/settlement remains in force and binding till
terminated and does not come to an end by unilateral
repudiation. But it must be made clear that there is no
substance in the contention of Mr. Pai that the union
repudiated the agreement. If thus the employer swore by the
agreement relied upon it and successfully contested the
claim of the union it cannot now be permitted to back out
from such solemn agreement and apart from the technicality
of the issue being res judicata or issue estoppel,
industrial peace and harmony good behaviour and fair
relation with workmen estopes the employer from either
repudiating the agreement or contending that the agreement
was not a concluded agreement but an inchoate one. In this
connection we may profitably refer to Western India Match
Co. v. Their Workmen(1) wherein this Court observed as
under:
"It is not out of place to mention in this
connection that on some previous occasions the
management itself has treated these categories as
workmen within the meaning of the U.P. Industrial
Disputes Act. The management’s contention that
329
the Tribunal has erred in thinking that the inspectors,
salesmen and retail salesmen are workmen must therefore
be rejected."
Same view was adopted in Aluminium Factory Worker’s
Union v. Indian Aluminium Co Ltd.(1) In that case certain
correspondence which passed before and after the awards
between the parties was referred to. This correspondence
showed that the appellant/union and the staff association of
the company fully accepted the principle that Supervisors
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would no longer be regarded as workmen and that Supervisors
had resigned from membership of the workmen unions. These
averments in the correspondence regarding the status of the
Supervision being not workmen was held binding between the
parties and both the Industrial Tribunal and this Court
declined to examine the contention about the status on
merits If the union can be held bound to such an inferred
agreement from correspondence, the employer conceding the
status or to be precise conceding not to contest the status
of salesmen would equally be binding on the employer. It
would thus appear that the employer management was held
bound not by any specific agreement but an agreement spelt-
out of its conduct in Western India Match Co. case and
assertions in correspondence in India Aluminium Co. case
treating certain categories of the workmen as workmen or not
as workmen or not as workmen respectively within the meaning
of the expression in the Act then at a later stage the
employer and the union respectively were estopped from
contending to the contrary. The case before us is much
stronger in that there is a concluded binding agreement
between the parties neither repudiated nor terminated till
today which provides that the employer on its part will not
contest the status of the membership of the Field Force
including the salesmen employed by the Company as workmen
within the meaning of the expression in the Act. Therefore
the Tribunal committed a serious error apparent on recorded
in holding that there was no concluded agreement between the
parties as emerging from Exs. W-2, W-3 and W-4.
The Tribunal negatived the contention of the union that
the employer was estopped from challenging the status of the
workmen also on the ground that there can be no estoppel
against the statute We must confess that even Mr. Pai did
not appear to be very enthusiastic to support the finding of
the Tribunal that even if there is a binding agreement
between the parties and therefore the employe is estopped
330
from questioning the status of salesmen as being workmen, it
cannot be availed of by the union because there can be no
estoppel against a statute. We find it very difficult not
only to understand but to appreciate the approach and the
finding of the Tribunal in this behalf. There is no
statutory provision that a status of a person invoking the
jurisdiction of the Tribunal must be adjudicated upon
notwithstanding that no contention to that effect is raised.
No statutory provision was brought to our notice which would
be rendered nugatory or ineffective if the Status of workman
is not questioned. Nor it can be said that the employer has
contracted out of the benefits of a statute. Whether a
particular person is a workman or not depends upon factual
matrix. Workman is defined in Sec. 2(S) of the Act. The
ingredients and the incidents of the definition when
satisfied. the person satisfying the same would be a
workman. Negatively, if someone fails to satisfy one or
other ingredient or incident of the definition he may not be
held to be workman within the meaning of the expression in
the Act. There is no provision in the Act which obliges the
Industrial Tribunal or other forums set up under the Act to
decide even in the absence of a contention from the
employer, a preliminary issue whether the person who has
invoked its jurisdiction is a workman or not. There is no
such obligation cast statutorily on the Tribunal. If the
employer does not arise contain about the status of the
workman approaching the Tribunal the Tribunal has no
obligation to decide the status of the person whether he is
a workman or not. Conversely if the employer agrees not to
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question the status in future it would only imply that such
a contention would not only be not raised but if raised it
would not be pressed and if pressed should be negatived in
view of the binding agreement. The resultant situation would
be that the Tribunal must proceed on the assumption that no
such contention is raised and required to be adjudicated
upon. If the contention is not raised the Tribunal is under
no obligation suo motu or on its own to raise and decide
such a contention to cloth itself with jurisdiction to
adjudicate upon the dispute. The Tribunal derives its
jurisdiction by the order of reference and not on the
determination of a jurisdictional fact which it must of
necessity decide to acquire jurisdiction. Therefor the
Tribunal was clearly in error in holding that the contention
convassed on behalf of the union would permit it to raise
estoppel against a statute. Undoubtedly it is true that
there can be no estoppel against the law of the land. If a
party is estopped by doing a thing which it is under a legal
disability to perform or forbearing to do something which it
is his duty to do the result would be an enlargement of the
contractual or other rights allowed by law or their
alteration. The
331
Court enforces the performance of statutory duty and
declines to interfere for the assistance of persons who
seek its aid to relieve them against the express statutory
provision. Approving the dicta in Maddison v. Alderson(1)
this Court observed in K.Ramadas Shenoy v. The Chief
Officers, Town Municipal Council, Udipi and Ors.,(2) that an
excess of statutory power could not be validated by
acquiescence in or by the operation of estoppel. Is that the
situation here? The Tribunal observed that notwithstanding
the fact that the employer has agreed to recognise the union
as representative of the Field Force including the salesmen,
agreement between the parties cannot override the statute
and if therefore Shri A.K. Basu is not workman under the
Act, the agreement between the Union and the employer cannot
confer on the Tribunal any jurisdiction to give any
relief to him under the Act. The Tribunal completely
misdirected itself when it assumed and arrogated to itself
the obligatory duty in the absence of an impermissible
contention, to raise one and proceeded to adjudicate upon,
notwithstanding the fact if the agreement is subsisting no
such contention can be raised and if raised has to be
ignored as an irrelevant pleading. In this connection, it
may be recalled that when a reference is made under Sec.10
of the Act, Rule 10-B of the Industrial Disputes (Central)
Rules, 1957 obliges the workman involved in the reference to
file with the Tribunal a statement of demands relating only
to the issues as are included in the order of reference and
simultaneously serve a copy of the same to the employer.
Sub-rule(2) enjoins the employer within two weeks of the
receipt of the statement of claim to file its rejoinder and
simultaneously serve a copy of the same on the workman.
Ordinarily, the Tribunal after ascertaining on what issue
the parties are at variance raises issues to focus attention
on points in dispute. In industrial adjudication , issues
are of two types: (i) those referred by the Government for
adjudication and set out in the order for reference and (ii)
incidental issues which are sometimes the issues of law or
issues of mixed law and fact. The Tribunal may as well frame
preliminary issues if the point on which the parties are at
variance, as reflected in the preliminary issue, would go to
the root of the matter. But the Tribunal cannot travel
beyond the pleadings and arrogate to itself the power to
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raise issues which the parties to the reference are
precluded or prohibited from raising; to wit if the employer
does not question the status of the workmen, the Tribunal
cannot suo motu raise the issue and proceed to adjudicate
upon the same and throw out
332
the reference on the sole ground that the concerned workman
was not a workman within the meaning of the expression of
the Act. And it is not obligatory upon the employer
necessarily to raise the contention that the concerned
workman was not a workman within the meaning of the
expression under the Act. Therefore, the Tribunal was wholly
in error in holding that if the contention of the union were
to prevail, the well laid rule of no estoppel against a
statute would be violated.
Having examined all the dimensions of the matter, it is
crystal clear and is indisputably established that the
agreement relied upon by the union is a valid subsisting
agreement. It is in force. It is neither repudiated nor
terminated. It is binding upon both the parties. Once the
agreement is held to be binding, the employer is estopped
from contending that the workmen involved in the dispute who
were salesmen were not workmen within the meaning of the
expression under the Act. Therefore, the Tribunal was in
error in undertaking to examine that contention and answer
it. That part of the order/award of the Tribunal is
unsustainable and must be quashed and set aside.
We accordingly, direct the Tribunal to proceed to
determine the dispute on merits without concerning itself
with the consideration of the question whether the concerned
workmen were workmen within the meaning of the expression
under the Act. This appeal accordingly succeeds and the
award of the Tribunal to the extent indicated herein is
quashed and set aside and the matter is remitted to the
Industrial Tribunal with a direction to proceed further in
the light of the observations made in this judgment. The
respondent shall pay to the appellant costs quantified at
Rs. 3,000.
N.V.K. Appeal allowed.
333