@JUDGMENTTAG-ORDER
H. Deka, C.J.@mdashThis matter has come to me out of a difference between my two learned brOrs. .
2. The matter initially arose out or an application under Articles 226 and 227 of the Constitution of India for issue of a writ of certiorari, mandamus or any other appropriate writ for quashing the award given by the Presiding Officer, Labour Court, Assam, under the provisions of the Industrial Disputes Act, 1947.
3. An industrial dispute was raised by the workmen of the Teok Tea Estate, represented by the Assam Chan Mazdoor Sangha, over the alleged demotion of Mugeswar Tanti, a labourer engaged as a fitter-mate by the Management of the Teok Tea Estate at the material time, and the dispute was referred to the Labour Court by the Government Notification No. CLR 262/59/6 of the 25th of May, 1959 on the following terms:
(1) Whether the demotion of Shri Mugeswar Tati is justified?
(2) If not, is he entitled to the post of fitter-mate, or any other relief in lieu thereof?
4. The case of the workman Mugeswar Tati was that he was employed as a fitter-mate by the Manager of the Teog Tea Estate and he worked as a helper to the Head Fitter, one Kartar Singh, and, on the 15th of May, 1958, he was sent to Amguri Railway Station to fit up pipes in the oil tank for bringing oil to the tea garden. On his return to the garden at about mid-day, the Manager did not allow him to enter into the factory but directed instead that he should either go to the garden for joining in hoeing operation or to act as a lorry Jogali -- a handy man.
Mugeswar Tati took it as an insult and ho refused to join and work as a ferry Jogali. The motive for this alleged demotion or transfer in employment was ascribed to be the Manager''s displeasure with the particular workman for deposing against him in a criminal case brought by one Kartar Singh, who was the Head Fitter of the tea garden in question. The alleged deposition took place on the 10th of May, 1958 in support of Kartar Singh, who filed a complaint against the Manager.
It may be indicated here that some correspondence passed between the workman and the Management and at started with a letter from Mugeswar Tati to the Manager that he worked as a Jogali to the Fitter, and, therefore, he could not go to hoe or to act as a lorry Jogali. Thereafter he absented from work without permission. The Management issued a fresh order on Mugeswar Tati to rejoin his duties on the 30th of May 1958 failing which the letter intimated his services would be terminated and his name would be removed from the Muster Roll of Workmen of the garden.
Mugeswar reported to office on the 28th of May, 1958 hoping that he would be given the work in the factory as fitter-mate. The Manager instead declined to allow him to continue in the job and reiterated the former direction that he should work as a lorry Jogali. After this, Mugeswar Tati refused to work and desisted from attending his duties in any form or shape. On the 25th of June 1958, the Management again directed Mugeswar Tati to join his duties on or before the 30th of June 1958 and to show cause why disciplinary measures should not be taken against him.
Mugeswar-Tati completely neglected this direction and did not report to the garden either for duty or for submitting an explanation as to why disciplinary measures should not be taken against him. His contention was that he was demoted without any fault on his part and was, therefore, entitled to restoration to his former job. He alleged that his demotion was mala fide, as it was actuated by the ill will on the part of the Manager for the workman siding with Kartar Singh, who bad since been dismissed from duties in the garden.
5. In the Labour Court while the Assam Chan Mazdoor Sangha supported the allegations made by Mugeswar Tati, the garden authorities look the stand that Mugeswar Tati was not initially appointed as a fitter-mate but he was an ordinary unskilled daily rated labourer (at a pay of Rs. 1-11-0 per day) and could be employed as such, in any job in the garden. Their case further was that Mugeswar Tati used to work as a lorry Jogali but afterwards he was sent to work with the Fitter Mistri, and in that capacity he was sent to Amguri Railway Station along with other labourers to join pipes in a wagon on the 15th of May, 1958, but he came away at mid-day without orders and then went away.
He is further alleged to have absented from work for several days till the 28th of May, 1958 when he reported to duty, but did not join the work as directed by the Manager. Finally a notice was served on him to come to work on the 30th of June 1958 but he refused to respond to the same; nor did he submit any explanation as asked for. In these circumstances, the Management had to dispense with his service by way of disciplinary measure. The garden authorities denied the allegation that it was out of any malice or ill-will for the workman that he was asked to work as a lorry Jogali or that it amounted to any demotion.
6. The parties adduced evidence and the Presiding Officer, Labour Court, Assam, held that Mugeswar had been working all along as a Jogali or helper to the Fitter Mistri since his appointment about two years back It was also found that he had no special training for the job except the experience that he had gained as a helper. The Presiding Officer held that Mugeswar Tati was deputed to do some other work than his usual job and he was inclined to hold that it was as a result of the displeasure incurred by him for deposing against the Manager, though the same Court found that there were other witnesses who supported Kartar Singh but no action to their prejudice was taken against them.
The stand taken by the Manager was that there was no question of any demotion involved in the matter of transferring Mugeswar Tati from the job of a helper to the Fitter Mistri to that of a handyman in a Garden lorry, but the cause for discontinuance of the work was that Mugeswar Tati did not like the other job. The Labour Court also held that there was no reduction of pay for Mugeswar Tati in the matter of working as a lorry Jogali, to which task he was transferred. He neither found that there was any diminution of prestige in holding the new job to which he was transferred or that he suffered in reputation. The material (sic) find of the learned Presiding Officer of the Labour (sic) was in the following words:
It is found that Mugeswar used to get Rs. 1-11-0 as helper to the Fitter. For a lorry Joagli and also for a Labourer in the garden, the daily rate is Rs. 1-11-0 only. In view of this fact, it really difficult to say that when the Manager asked Mugeswar to go to work as a lorry Jogali or to hoe in the garden he was really demoting him. But the fact remains that the Manager wanted to transfer Mugeswar from his job of the fitter-mate to the job of a lorry Jogali or a lobourer in the garden. Usually the management have got the right to transfer a workman from one branch to Anr. for the interest of the garden if of course it is done without any ill will or malice.
The Labour Court further found that the transfer of Mugeswar from his job of Fitter Jogali was actuated by malice on the part of the Manager and was not for the interest of the garden, and, therefore, held that the action was mala fide and the workman was entitled to be restored to his job. As a result, he ordered that the workman was entitled to reinstatement to the job of the Fitter-mate and the workman was allowed to get six months'' back wages at the prescribed rate as compensation till he was reinstated.
7. The petitioner in this Court challenged the validity of this award on the ground that the Labour Court had exceeded the jurisdiction in answering to the second point of reference in favour of the workman. According to the learned Counsel appearing for the garden authorities the answer to the second point of reference depended on the decision on the first point, namely whether the demotion of Mugeswar Tati was justified.
When the finding was to the effect that there was no demotion at all, the question of justification or absence of justification would not arise, because the tiling itself was non-existent. The relief under the second point could be given only if demotion was considered not justified. According to the learned counsel, the Labour Court had gone beyond the scope of the point of reference, and, therefore, the award is liable to be set aside.
Hon''ble Mehrotra, J. was of the view that since the first point under reference was not formulated in the way that "whether there was demotion of Mugeswar Tati", the Labour Court could go into the second point even if there was no demotion. In his opinion, on the points under reference, the whole action of the Management could be questioned by the Labour Court. On the other hand, Hon''ble Dutta, J. held that demotion was the material question that had to be gone into and decided by the Labour Court and once demotion was found to be non-existent, the question of relief under the second point of reference would not arise.
8. Mr. Talukdar, appearing in support of the Assam Chah Mazdoor Sangha, contended before me that whether there was any demotion or not was not material but whether the action as taken by the Manager in relation to Mugeswar Tati was justified was the main point under reference. The Government or the referring authority was of the impression that there was demotion, and, therefore, even if the word demotion was used without proper foundation, the Labour Court had ample jurisdiction to go into the whole range of action of the employer and see as to the justification thereof.
The reference was made for the purpose of redress to the worker as was evident. I am unable to accept this contention however attractive, and, in my opinion, the Labour Court ought to have confined itself to the exact words used in the letter of reference by the referring authorities who had the discretion in the matter. Mr. Talukdar in support of his contention relied on the case of
The point decided therein was that where a production bonus scheme is in force and has become a term of employment, there is no reason why the tribunal should not have the power to vary its terms if circumstances justified it; nor can the power of revision be denied to the tribunal in respect of a scheme actually introduced, on the ground that the introduction of such a scheme was an exclusive management function and therefore it should be immune from being touched at all, and, that the industrial tribunal was competent to revise the production bonus scheme. An explanation to the observation indicated above is found on a reference to Sub-section 4 of Section 10 of the Industrial Disputes Act, which says:
Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the ease may be, shall confine its adjudication to those points and matters incidental thereto.
The production bonus in the above case was incidental to the conditions of service or the remuneration to be paid to the workmen, and, therefore, if the reference was in broad terms, namely as to whether the action of the Management was justified as to the discharge or displacement of Mugeswar Tati then, of course, the Labour Court could have gone into the whole matter including the steps leading to the discharge of the workman.
The action as a whole, however, was not referred to the Labour Court. The purpose of stating the points u/s 10(i) (c) of the Industrial Disputes Act 1947, is to give notice to both the parties to substantiate their ease either before the Labour Court or the Tribunal, and, in the absence of any such notice, there is bound to be failure of justice and that is why the limit to the jurisdiction of the Court is prescribed u/s 10(4) of the Act.
9. Mr. Talukdar contended that the management knew their case, and, therefore, they had to come prepared to meet all emergencies. I think, the proper interpretation is available from the relevant section of the statute, that is, Section 10(1)(c), where it is prescribed that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication.
Therefore, it was open to the Government to refer the whole range of dispute between the parties or only a matter connected with or relevant to the dispute. In this case, the reference was only for ascertaining whether demotion was justified. Demotion means lowering in rank. In this particular case, there was no finding that there was demotion, and, therefore, there was no scope for widening the point under reference by resorting to the second point which was dependent on the decision of the first point. The discharge, as found by the Labour Court, was an independent issue and not incidental to alleged demotion. It could not, therefore, be taken into consideration in this reference.
10. The learned Counsel for the opposite parties made a reference to the case of
Mr. Talukdar urged that the same principle applied even here. But in this case, it cannot be lost sight of that the workman in the concern was only an unskilled labourer and he was a Jogali or a helping hand to do manual labour. It is well known that the word ''Jogali'' means a person who by manual labour helps the main worker, who may be a mason, a fitter or an expert doing some odd job, and, therefore, though normally it would not include a labourer hoeing in the garden, it would mean a helper to any technical worker in the garden in any other branch.
The factory is not the only concern; nor the carrying of petrol from the Railway station. Similarly, a truck or a lorry plying in the garden is also a concern as material as maintaining the factory. Therefore, unless there was definite term of con-tract in relation to the employee that the particular labourer would work in a particular department throughout it could not be said that the alleged transfer or change in the mode of work of a particular workman amounted to a breach of the condition of his service or was an unauthorised act on the part of the employer.
The Labour Court did not find anything more in favour of the workman except that he had acquired some experience in the department where he worked. The management was in a better position to know where he was to foe employed or how best he could be employed. In the case of
In this case, really the question of discharge, which was a subsequent happening, was not a subject of reference, and, therefore, the Labour Court could not have gone into it and held that there was either victimisation or that the dismissal was as a result of want of good faith. These matters as -such were extraneous to the point under reference and, in my opinion, the Labour Court ought to have confined itself to the limited jurisdiction as to whether the demotion was justified, and, in case there was no such demotion, the reference ought to have been answered accordingly. The transfer was within competence of the management as I have already indicated.
11. I direct, therefore, that the rule be made absolute and the award be set aside. In the circumstances of the case, however, I make no order as to costs.
