Siddhartha Varma, J. - (1.) After the respondent no. 2 had undergone a training of being an apprentice, he was given an engagement on a purely temporary basis during the crushing season of the petitioner. This was to cater to the additional work load which had accrued during the crushing season. In the year 1993, the respondent no. 2 raised an industrial dispute which was referred by the State Government to the Labour Court on 29.4.1993. After the pleadings were exchanged, and oral arguments were advanced, the award was ultimately passed on 29.7.1997 directing the petitioner to create a post on which the seasonal temporary employee could be employed as a seasonal permanent employee. Further direction was that since the respondent no.2 was entitled for a salary payable as a seasonal permanent employee he had to be given a "retaining" allowance till such time the post was created.
(2.) Assailing the award learned counsel for the petitioner made the following submissions:- I. The reference made by the State Government to the Labour Court was as to whether the respondent no. 2 could be declared a seasonal employee and what would be the effect if he was so declared. However, instead of just dealing with this reference, the Labour Court had given a direction that the petitioner had to create a post on which the petitioner could be employed as a permanent seasonal employee and further quite away from the reference a direction was issued to the petitioner that till such time the post was created the respondent no. 2 had to be given a "retaining" allowance. This, according to the learned counsel for the petitioner, could not have been done as a Labour Court is a referral court and it cannot go beyond the reference. In this context, the counsel for the petitioner has cited (Pottery Mazdoor Panchayat Vs. Perfect Pottery Co. Ltd., 1979 38 FLR 38). He has specifically referred to the following paragraph of this judgement:- "The questions were argued before the High Court: Firstly, whether the Tribunals had jurisdiction to question the propriety or justification of the closure and secondly whether they had jurisdiction to go into the question of retrenchment compensation. The High Court has held on the first question that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of the reference made to it. On the second question the High Court has accepted the respondent's contention that the question of retrenchment compensation has to be decided under Section 33-C (2) of the Central Act. Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management." He also cited Mukund Ltd. Vs. Mukan Staff & Officers Association, 2004 101 FLR 219 (S.C.). In this judgement he specially read out paragraph 24, which is being reproduced here as under:- "24. We have already referred to the order of Reference dated 17.2.1993 in paragraph supra. The dispute referred to by the order of Reference is only in respect of workmen employed by the appellant-Company. It is, therefore, clear that the Tribunal, being a creature of the Reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In the facts and circumstances of the present case, the Tribunal could not have adjudicated the issues of the salaries of the employees who are not workmen under the Act nor could it have covered such employees by its award. Even assuming, without admitting, that the Reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the ' non-workmen." The other decision which was cited by the learned counsel was (Uttar Pradesh State Road Transport Corpooration, through Regional Manager Vs. State of U.P., P.S.I.C.O. Labour Court & Baijnath Prasad, 2006 1 AWC 134). Learned counsel read out paragraph 8 of it and so it is being reproduced here as under:- "8. I have heard the learned counsel for the parties and perused the record and the Reference to the Labour Court. From the record it is clear that immediately when the Reference was made, after filing the written statement by respondent no. 3, an affidavit with the order was filed before the Labour Court that an order of promotion dated 3.5.1999 was passed in favour of the respondent No. 3 and he has been given promotion and seniority from 24.1.1991, as such there was no dispute. The Court has also perused the referring order in which it is clear that in not promoting the respondent no. 3 on the basis of the select list whether the action of the employer is legal or not and if he is not entitled for promotion on the post of Mechanic to what extent he is entitled for compensation? From the referring order it is clear that the Reference was not to the extent whether respondent No. 3 was entitled to the salary of the post of Mechanic from 24.1.1991. It is now well settled that regarding payment of monetary benefit and back wages, the same is to be decided or adjudicated by the authority concerned. It has to be seen whether the workman has worked on the said post or not. This was an issue which was to be decided by the employer. Admittedly respondent No. 3 workman has not worked from 1991 till the date of promotion i.e. 3.5.1999, the date of promotion. Regarding entitlement of the salary from 1991 to 1999, the employer has to decide that under what circumstances in spite of the fact that respondent No. 3 was selected on the post of Mechanic and junior person to the respondent No. 3 was given promotion, then under what circumstances respondent No. 3 was not given promotion. This was a matter to be decided. The Reference of the State Government to the Labour Court was not to that extent. Therefore, from the record it is clear that the Labour Court has travelled beyond the jurisdiction of the Reference. In case of Firestone Tyre and Rubber Co. the three Hon'ble Judges of the Apex Court has clearly held that the Labour Court has got no power to travel beyond the terms of the Reference. In Mukand Limited's case the Apex Court has clearly held that the Tribunal being creature of Reference cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In a recent judgment Mahendra L. Jain V. Indore Development Authority, 2005 SCC(L&S) 154 the Apex Court has taken a view that the Labour Court can only decide the dispute referred to it and not beyond it. The Labour Court has not jurisdiction to go beyond the Reference. Relevant para 34 is being reproduced below: 34. We have noticed the provisions of the Act and the Rules. No case was made out by the appellants herein in their statements of claims that they became permanent employees in terms thereof. There is also nothing on record to show that such a claim was put forward even in the demand raising the industrial dispute. Presumably, the appellants were aware of the statuary limitations in this behalf, furthermore, the Labour Court having derived its jurisdiction from the reference made by the State Government, it was bound to act within the four corners thereof. It could not enlarge the scope of the reference nor could deviate therefrom. A demand which was not raised at the time of raising the dispute could not have been gone into by the Labour Court being not the subject-matter thereof. " II. The other argument raised by the petitioner was that in fact no industrial dispute existed and even though the reference was bad yet the impugned order was passed.
(3.) In reply the learned counsel for the respondent no. 2 submitted that since the arguments which were raised by the learned counsel for the petitioner here in the High Court were never raised before the Labour Court this Court cannot allow him to raise such arguments and he further stated that since the respondent no. 2 was an employee of the petitioner and there was a direction of the Labour Court the petitioner had to follow it.;