SUPREME COURT OF INDIA

Before:- P.B. Gajendragadkar and K.N. Wanchoo, JJ.

Civil Appeal No. 481 of 1958. D/d. 8.3.1960.

U.P. Electric Supply Co. Ltd. - Appellants

Versus

The Workmen of S.M. Choudhary, Contractors and another - Respondents

State of U.P. - Intervener.

For the Appellant :- M.C. Setalvad, Attorney General for India, S.N. Andley, J.B. Dadachanji, Rameshwar Nath and P.L. Vohra, Advocates of Rajinder Narain and Co., Advocates.

For the Respondent :- A.D. Mathur, Advocate, G.C. Mathur and C.P. Lal, Advocate.

For the Intervener :- G.N. Dikshit and C.P. Lal, Advocates.

Uttar Pradesh Industrial Disputes Act, 1947 Sections 3 and 5 Workers employed by the contractor - Dispute referred to Tribunal - Company being made a party subsequently - Tribunal holding that workers were employees of the company, even no such question was raised - Findings and orders without jurisdiction.

[Para 5]

JUDGMENT

K.N. Wanchoo, J. - This is an appeal by special leave against the order of the Industrial Tribunal Allahabad. The appellant is the U. P. Electric Supply Co. Ltd., Lucknow, (hereinafter called the company). It appears that the company used to employ Messrs. S. M. Choudhary (hereinafter referred to as the contractors) as its contractors for doing certain work for it. The contractors in their turn used to employ a number of persons to carry out the work which they had taken on contract. A dispute arose between the contractors and their workmen in 1956 and an application was made on June 6, 1956, by the workmen before the conciliation board. To this application both the company as well as the contractors were parties and four matters were referred by the workmen to the conciliation board, namely, (i) non-grant of bonus for the years 1953-54 and 1954-55; (ii) non-grant of festival holidays; (iii) non-fixation of minimum wages of these workmen at par with the workmen employed by the company; and (iv) non-abolition of the contract system. Efforts at conciliation failed and thereupon the Government of Uttar Pradesh made a reference to the Industrial Tribunal under the U. P. Industrial Disputes Act, No. XXVIII of 1947, (hereinafter called the Act). In this reference only three points were referred out of the four which were before the conciliation board, namely, those relating to bonus, festival holidays and payment of wages to these workmen at part with the workmen of the company. The fourth point which was raised before the conciliation board (namely, non-abolition of the contract system) was not referred. The parties to this reference were two, namely-(i) the contractors and (ii) their workmen. The appellant was not a party to this reference. On August 13, 1956, another notification was issued by the U. P. Government under Sections 3, 5 and 8 of the Act by which the company was impleaded as a party to the dispute referred by the notification of July 31, 1956. It is remarkable, however, that the matters of dispute which were specified in the reference dated July 31, 1956, were not amended as they could have been under the proviso to Section 4 of the Act, by adding the fourth point of dispute before the conciliation board, namely, the non-abolition of the contract system. When the matter came up before the industrial court in framed a number of issues; and the first and most important issue ran thus:

"Are the workmen concerned employees of the U. P. Electric Supply Co. Ltd., Lucknow or of Messrs. S. M. Chaudhary, contractors?"

2. The main objection of the company was that the dispute, if any, was between the contractors and their employees and that there was no dispute between the company and its workmen. It was further objected that there was no valid or legal order of the Government referring any dispute between the company and its workmen to the tribunal and therefore the tribunal had no jurisdiction. On the merits it was urged that the workmen concerned were not the workmen of the company and there was no relationship of employer and employee between the company and these workmen and therefore the company could not be regarded as a party to the dispute between the contractors and their workmen.

3. It is therefore clear that the main question which was considered by the tribunal was whether the workmen concerned were the workmen of the company or of the contractors. As the tribunal itself says,

"the crux of the whole case was whether the workmen concerned were the employees of the company".

The tribunal went into the evidence in this connection and came to the conclusion that these workmen were in fact and in reality the employees of the company.

4. The main contention on behalf of the company before us is that even assuming that the Government had power under Section 5 read with Clause 12 of G. O. No. U-464 (LL) XXXVI-B-257 (LL) 1954, dated July 14, 1954, to implead the company as a party, the main issue decided by the tribunal was not referred to in and the tribunal could only decide the three matters of dispute included in the order of reference of July 31, 1956. Therefore, in so far as the tribunal went beyond the three matters of dispute specified in the reference and decided the question whether the workmen concerned were in the employ of the company or of the contractors it was acting without jurisdiction as this matter was never referred to it.

5. We are of opinion that this contention must prevail. As we have already pointed out, there were four matters before the conciliation board including the question of non-abolition of the contract system. Further before the conciliation board not only the contractors but the company was also a party, for obviously the question of non-abolition of the contract system would necessitate the presence of the company as a party to the proceedings. When however the Government referred the dispute to the tribunal on July 31, it did not include the fourth item which was before the conciliation board relating to the non-abolition of the contract system among the matters in dispute. It also did not include the company as one of the parties to the dispute, for the reference-order refers only two parties to the dispute, namely, the contractors and their workmen. On such a reference there could be no jurisdiction in the tribunal to decide the question whether these workmen were the workmen of the company or of the contractors, for such a question was not referred to the tribunal. It is true that on August 13, 1956, the company was impleaded as a party to the dispute referred by the notification of July 31; but the matters in dispute remained unamended, and the question of non-abolition of the contract system or the question whether these workmen were the employees of the company in fact and in reality was not included in the matters of dispute by amendment under the proviso to Section 4 of the Act. In these circumstances, it is immaterial to consider whether the impleading of the company as a party on August 13, 1956, was legal and valid or not. Assuming that it was legal and valid, the fact remains that issue No. 1 set out above by us which is undoubtedly the crux of the question in this case was not referred to the tribunal at all and did not arise out of the three matters of dispute specified in the reference order of July 31, 1956. In these circumstances the order of the tribunal by which it held that these workmen were the workmen of the company was beyond its jurisdiction. The entire order of the tribunal is directed against the company and must therefore be set aside in whole as without jurisdiction and we need not express any opinion on the merits. We therefore allow the appeal and set aside the order of the tribunal against the appellant. In the circumstances we pass no order as to costs.

Appeal allowed.