Decided on July 12,1968



- (1.) THIS writ petition is directed against Ex. P. 7 award of the labour court, Quilon, in a dispute between the Cochin Malleables (Private), Ltd. , Trichur, and their workmen. The dispute referred to, as stated in the award, was the termination of the services of 43 workers. The labour court found that two of the workmen covered by the reference were still in service and no adjudication was called for regarding them. Of the rest, it found that eight were probationers and the remaining 33 had to be treated as temporary workmen. It found that the services of the probationers had been terminated before the period of probation was over, and their discharge, stated to be for unsatisfactory conduct, without making out any basis for the same, was without bona fides and was arbitrary. In respect of the remaining temporary workmen, it found that the termination of services was a colourable exercise of power and that the employer had not discharged the burden of proving that it was in bona fide exercise of the contractual power vested in him. In the result, it ordered reinstatement of the 33 temporary workmen and payment of wages to the eight probationers from the date of termination to 17 October 1963 when they complete their probation. This writ petition is to quash this award.
(2.) THREE points were raised by the counsel for the petitioner. First, that in respect of the confirmation of the 43 workmen covered by this award, Industrial Dispute No. 32 of 1963 is actually pending adjudication before the industrial tribunal, Ernakulam, and therefore there is neither any jurisdiction on the part of the Government to make the reference, nor; on the part of the labour court to proceed with the same as was sought to be done by the impugned order. Second, that the identical dispute having been referred successively to the industrial tribunal and to the labour court, the appropriate course, to avoid conflict of decisions, was for the labour court to stay the proceedings till the tribunal gave its award, following the principle in Section 10 of the Civil Procedure Code. Thirdly and lastly, that the decision or award of the labour court on the merits was wrong and vitiated by patent illegality.
(3.) THE proposition is well-established, and is not disputed, that in respect of the identical subject-matter the Government's power to make a reference under Clauses (a) to (d) of Section 10 (1) of the Industrial Disputes Act, and the power of the authorities to proceed with such reference, is alternative and not cumulative. Therefore, it is complained, that once a dispute has been referred, as in this case, to the industrial tribunal, Ernakulam, in Industrial Dispute No. 32 of 1963, the same dispute cannot thereafter be the subject-matter of reference to the labour court. But was the subject-matter of the two disputes the same in the present case ? I am satisfied, not. The subject-matter of the impugned award was the termination of the services of 43 workers ; and that of Industrial Dispute No. 32 of 1963 was : " confirmation of temporary and casual workers with 240 days' service " (vide Para. 7 of the counter-affidavit of the Cochin Malleable Workers' Union ). It may be that one may impinge on the other, but I am not prepared to hold that the dispute in the two cases is the same. The labour court therefore had jurisdiction to proceed with the reference. I may add that the objection to jurisdiction was not raised before the labour court and the petitioner's counsel explained the failure to do so as on account of the absence of the Government from the party array, an explanation which to me is unacceptable.;

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