WORKMEN OF M/S HINDUSTAN LEVER LTD. & ORS. versus MANAGEMENT OF M/S HINDUSTAN LEVER LTD.

J .. Tf solemn agr_eelt)ents _proposed. by employer. and readily ac.ceeded. to by .the workmeio and holding:the forte for over a· quarter· of a: century Ure crud~Jy .disowned .cofr1pelli:ig. the workmen to knock at the door of the apex court for removing the "roaJcblock in tJ1e access to justice set up by preliminary cbjectioi C'f ·iechnioal nature>, _industrial peace and harmony chanted" by the emplo~·er. \~ould be not merely an empty buf a· fliti!e (,xercise df chasi,ng a mirage and unfortunately that i~ the ·sltuati('i1 here. ·

p. 311, margin A

. .

p. 311, margin B

._Hindustan Lev.~r L~d., muhi:ri~itio~a! co1ripany, respo~dent herein addressed a communication d'::ted January 24,_ 1957 1-ccordjng the out-come· of mutual deliberaiiors betwcrn the .Hi1•dust211 Lever · Ltd_. {'employer'. for short) and.· the Hindust_an Levq' Mazdcor Sabha ·uni-o-n' f Or' short) recognised repres~n"tativ- u1lion ·th~. \\'0rkn1cn employed by _the employer. The rckvan_t portion may be extrnct(d :

p. 311, margin C

"Bx. W-2 24th January, 1957 _The Presidrnt, Hindt)Stan Lever Mazdoor Sabha, Bomloay, Dear Sir; . •'

p. 311, margin D

R~ferring~to: . our rcCent 1neeting: abriut 'field force;- \ve \VOlfld <:,c to p:ucc. on record that ~- · • .!) . Wc."r~·:"ognise you as representjtive union. fo·r aJl

p. 311, margin D

s~ctiofis of fic19- fo~ce all over In.din. 2). · Yoll'-h,,tve agr~ed to tre<:1t_all 1nat'tcrs relating to \vages/• sitlaries and ter-1ns and cdnditions cf $ervice ·on an ali·ITidia · basis· and not_ on· a regional haSi? as far as fi.efd forct is

p. 311, margin D

c:_,nccrne'd. - 3f. For all -111atter~ of an .;ll~India natute re!nti1ig to field force, you will communicate ivith ihe Pcrs~1'nel Director. We hope that all such .matters will he scttkd by dircc_l Megq!iatiOn hut.i.f at ony stage you decide to refer the matlcr to conciliation, you will. po w only at Bombay. W::., on our part, gi.ve you the assurance that if the 1naltcr

p. 311, margin D

[1984) 2. is referred to a· Tribuna!"in llombay then its a\vard will be applied by you to field force all.Dver India .. Fo~ thi~ !·eason, you wiH agree that it will be only proper for the

p. 312

Tribunalto examine \he matter in an all India perspective. 4)"· Although we do not nnticipate. any problei11s of a.purely local nature i~ cas.c such proble~s do arise· :;our

p. 312, margin A

rnembers vvill first try to arrive at a solution by approaching · their own managers. and if this fails, your loeal Committee should refer the matter to the local Commercial Manager

p. 312, margin B

·nr Office Manage~. · · . 5) . Foi future disputes. v~shall ·not coniest. issues about field. force the basis of t.hejr not ~being 'wo-r~mcn' bLit shal! "contest issues only qn their 111erits in th.e same way wego !£ir other e91ployces. ·

p. 312, margin B

Please.confirm that yo~1-agree.with the points menticined above. , Yours faithfully,

p. 312, margin C

Sd/- B.K. B;nd1ni"

p. 312, margin C

...

p. 312, margin C

The union respondi:d ·to this con1n1unication· as per its letter elated April 24, 1957 which reads as under :

p. 312, margin C

"nx: w.3 · . The Personnel· Manager> Hindustan Lever Limited, Seindia House, R8lbrd Est.ate, Bombay-]; 24th April; 1957 D~ar·Sir,

p. 312, margin E

With reference your letter·Personn~l KSB/BN/49 dated 24.1.1957 and in the light of further discussions we had with ·you ori the subject. we would like. to sta1e as under : J. We thank you for recognising u; as the Representative Union for all sections of the 'Field Force e11iployees all ovei India.

p. 312, margin F

(Desai, J.)

p. 313

2. We agree that certain major issues such as salary wages, bonus,.provident fund, Gratuity, leave etc. will be treated as far as nossible on an all-India basis.

p. 313, margin A

. . .

p. 313, margin A

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 i•ou, we agree to follow

p. 313, margin A

the procedure. as far as legally permissible. '

p. 313, margin B

4. Local matters, if .nol settled by negotiations, will have to be ·dealt with otherwise. For instance ihe Sabha may go in for co_nciliation or may be free to resort to

p. 313, margin B

.>iny other legitimate and/or peaceful method. ·

p. 313, margin C

5. We are indeed glad to note tha.t you will not contest issues about fiel_d force on ·the basis of their n6t being 'Workmen' but you will contest issues only ·an their n1erits in·the san1e \Vay you do for other emp{oyees-. We ·wish to take the opportunity also to· confirm your agreenlefit with us that regard to ·deinal1ds relating to Field Force contained in Rer. N.48 of "1956, now p~niling adjuQicatie,Rtat Delhi, you will not•contest the issue on the basis Of their not being 'Worl011{'1l' b'ut you \viii contest the is.sue on the. n1crits of the dernands you do for other cmpfoyces .

p. 313, margin C

Yours faitlifully, Sd/- J?, Pullat President

p. 313, margin E

!st May, ,1957"

p. 313, margin E

A further communicatiqn ensued from th"- employer dated . May I, 1957. It is not necessary to reproduce the whole of it save ahd cxc_ept that the e1nployer wanted .t~ be assured that the un.ion by its communicaiio11 dated April 24, 1957 uneguivccally intended.

p. 313, margin E

CJ;ifirm iten1s of.agrceincnt to various iten1s 6f'indi1strial disput~s b:!t\v~en the parties as set out in its con1municatjon dated· JanLJary 24, 1957 ai1d .further sought clarification of _the two points t\l~~d b); the uninn. • ·

p. 313, margin F

Tn~- ·substantial questio1_1 is vvhethcr there C-ft1:erged a ·concluded ag.ree.n12nl between thC parties and binding on the parties till it t~rrr)inated accordin·g to la\v? the question of the existence of c3nsluJ~d agrGemtnt its validity arises· the folk)\ving·circumstances. · ·

p. 313, margin G

·•

p. 314

REl'OR\~ [1984] 2 s.c,R .Shri A.K', Sircar and Shri Gupta were protected workmen

p. 314

R.L. 'Pi thin. th~· meaning of the expression in the Industrial Dispute~··A<:t; 1947 ('Ac!' for short) and were admittedly the. office-bearers of the miion a1id consequehtly leaders of the. workmen,. The employer served_ a charge-sheet on.Shri A.K. Sfrcar on April JO, 1974 and on the n·oxt•day. 'a charge-sheet. was served .on Shri R.T,. Gupta. ·There .followed .a disciplinary enquiry and ultimately the services of Shri A.K .. Sircar nd Shri R.L, Gupta were ierminated by the employer . . The union raised an industrial dispute contending· that the termination of services of the afore'nlCiltioned. two w0rkmenwaS illegal and invalid :and the ·enquiry was equally illegal and improper and that the acti.On of the employer was an act of reprisal and victimization because.of the trade-union .actiyities of the afor.ementioned two ·office-bearers of the 'union. The appropriate Governfrlent referred the industrial dispute to the Industrial Tribunal on July 16, )977.

p. 314

Tl;e employer in its· written ~tatement. intet a/ia contended that Shrl .A.K. Sircar and Shri. R.L. Gupta .were iiot workmen within the · meaning of the expression in the Act and .therefore the appropriate Government had nojurisdiction to refer the dispute to the Industrial Tribunal and consequently-the Industi"il.Tribunol had ·no jurisdiction to .hear and qeal' with 'the ref ereµ~~- _ It was ~urther -~on_tendCd t~at. in a reference·between the employer and the union in ai1other dispute to the Industrial Tribunal· in Maharashtra· State, ·a contentio.n was ~als_ed-byJh~ en1Ploy~r tbat sJ!e~111f!Jl, off he el'nplcY.er.i~ not~ ~vor!(1~2n ·within the 1;1eaning or the expfes>ion .in the Act and• this objection was upheld.by the Industrial.Tribunal and a petition for.special leave against the decisbn of the Jqdu'str:a1 Tr<bunal to the Supreme Court . waS' rejected o~ O:tober l, 1975. ft' was furtl'er contended that'the services the af~)remenJioned · t\Vo Were. terminated . not by way of punishment. but under the co;llract of sorvice and the dis-c;irlinary e11quify,_ WhiCh conniienced earl:er slfbsequfntJy dropped.

p. 314, margin B

· The union in its counter-affidavit iiiter al/a co1itcnded that .the e;,,player '.was est0pped from chalhnging the ·Status 'of the fwo cQncerned workmen as not being \VCPknieo withfo the meaning of· the :ex- "pression in the Act on account of a subshting valid concluded agreement bet\Veeo the parties inter a/ia ]Yrovi(ling that the einploycr \Viii . n~t· contest the issue about statu~ .of field force (which expression includes salesman) on the basis of their not b~ing workmen but shall contest the issue.only on the nieri'ts ill the same way as they .do for other employees, It.· was also. contended that in view of Shri Roop,

p. 314, margin F

. . Chandra· award ti1e ·is.sue about existence of ihe agreement and the status of salesman· is res judicatq and cannot be reopend iill the agree~ n1cnt remains i1r force and operative. .

p. 315

The rival pleadings led tci. the Industrial Tribunal framing the . following issues : · ·

p. 315, margin A

•· "l) Whether the management .is estopped from challenging the status of these two concerned workmen as "workman'.

p. 315, margin B

within the meaning ofthe Industrial Disputes Aet. 2) .Whether -the awar<! dated 17-11-66 of the Additional Industrial Tribunal, Delhi wculd operate as res judicata

p. 315, margin B

between the parties ?' 3) . lf issue No. I is answered int~e negative whether the concerned (sic) are· 'workman' within :the meaning .of ·

p. 315, margin C

· the I.D. Act ? '4) What is the effect of the order dated·.6-1-75 passed by the ·l.T. Maharashtra. in reference 203 of 1973 and order dated i.10.1975 of the Supre1m; Court in Petition

p. 315, margin C

for special leave 1602 of .1975? - 5) · Whether the reference is incomp.etent and bad iri law .for reasons mentioned in preL qbjections (III), (IV), (V) · a11d (Vil) and (VIII) 1

p. 315, margin D

Issue Nos. 1,2, 4·and 5 were directed to be he;ird as pre· liminary issues. On Issue· No . .J, the Industrial Tribnrtal held that the tht~e.communications.E~.W-2 ·ciated January 24, 1957, Ex. W-3. 'dated April 24, 1957 and Ex. W-4 dated May 1, 1?57 did not spell out a complete concluded agreement betw·een the parties on ihe points set oµt therein but it \V.as· an inchoate agreement in the stage of negotiations and therefore the· employer wa& not bound to stand by its offer made in the comm,;nication dated January 24, 1957 deny- ,ing to itself' the right to contest the. status ·of the field force incfoding salesman as not· being workman within the meaning of the expression in the Aci. On Issue No. 2,.it was hied that the award of Shri Roop Chandra in LD. 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 industri.al dispute therein 'raised could not be adjudkated upon at Delhi, it being an AU-India ·dispute and ought to have been rai$e<l at Bombay, did not:opei:ate as resjuqivata . .... 316 . [1984) 2 because the issue in the award was not directly and s11bsta11tially in. issue in the present reference. Parties did not advance any argument on Issues·Nos.-4 .and 5 anc\ tl1erefcire with reference to Issue No. 4, .the Ttibunal observ~d that the same. may not be disposed of without further hearii1g the parties and no findi.ng was recorded on Issue ·No, 5. The Tribunal accordingly rejected the preliminary objectiorn raised on behalf. of the union and set down the reference for further hearing. Hence this• appeal by s·pecial. le~vc by the union. .

pp. 315–316, margin E

. At the outset, we must xecord our unhappiness on the attitude adopted by the employer in eon tending as late.as .1981 tha~ the three commmiications ·Exs W-2, W-J and W-4 did ·not constitute a con-· eluded agreement between the parties with respect to the points settled therein and the Tribunal ignoing the ·l1istoi·y and repeated advantage taken by the employer of this conclLided agreement . on numerous. oc.casions accepted. the conte1ition of the employer. It is therefore necessary first to point out how from 1957 till as' late as. 1966 ahd even thereafter the employer non,suited the union, if that is a proper. term, by .• setting up the .,very agrce1nent which now the employer wants to. urge that it is11ot a concluded agreemeni. · The three impoitant clauses of the agreement ·emerging 'from the· correspondence relevant to the present dispute are that (i) the Hindustan Lever fyfozdoor Sabha was tecognised by tbe employer as a representative union for all s~ctions. of field force all over lndia in the employinent

p. 316, margin B

of the. employer and (ii) the union agreed to bring all matters relating · . to wages/salaries and ·ter'rns and conditions o'r service on an All-India basis and not·on regional basis as for as field force is concerned.and (iii) that in future dispuics, the employer will not contest issue about member of the field forc.e 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 witl1in the meaning of the expression in the Act and that reference, if any, would M contested on tl\e meri\s of the industi-ial dispute in respect of which reference is made to the Industrial Tribunal. The out-tome of the agreement would be that if a dispute of an all-India nature in respe~t of the field. force . is raised at a regional level, foundi\lg 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 subsistil1g valid agre.ement between the parties that such dispute .of an all-India . nature in respect of the field force can.be· raised at Bombay only and withiµ the jurisdiction of the Industr.ial Tribunal at Bombay only . There is no dispute between the parties that if't\1ere an agreement such would bo 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 enwloyer and the 11nion concerning the field force including salesman in 1«15"1, 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 settlernent dated December 22, 1964.. Jt is signed ·by Shd 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 1n respect of which settlement is arrived at were between the employer and the workmen of the. company who were the members of the field fot'ce (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 ibat the status of the salesman as · being workman within the meaning of the expression of the Act was · not only not disputed but specifical)y conceded and that mtist obviously be pursuant to the subsisdng 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.' ·

pp. 316–317, margin E

The Chief Commissioner of Delhi referred an.industrial dispute whether workmen whose names were set out in the order of reference l;Je paid compensation in addition to' the usual remuneratidn for the period they had marketed Erasmic Blades and what directions were necessary· in this behalf. The reference was between the employer tl1e present respondent and the appelll~nt Union.

p. 317, margin D

In this reference~ the workmen whD claimed ren1uneratiun \Vere Delhi based salesmen of the employer. The_ employer appeared and ~ontested the reference. The only important contention raised on behalf of the employer which must be 1ioticed reads as under :

p. 317, margin D

"That the concerned workmen are members of the field force of the company; .that the field force unit is a seperate 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 wa'.< agreed between the .company and the Hindustan Lever Mazdoor Sabha, Bombay that all matter.< relating to Field Force Unit would be dealt ivi_th by both parties at Bombay on all-India basis and_ if no settlement is reached; the dispute shall be raised in Bombay in accordan.ce with Industrial Disputes Act; and. that any ,sett/emen.t or Award tl;erein 1vo1dd be m~de app/icaO/e and sha// bindilj[5 a// members of the jiefd force ail over. India." . (Emphasis supplied). . .

pp. 317–318, margin F

The employer also contended. that i1f view of .the agreement between· the parties, the dispute. referred to the Industrial Tribunal regarding Hie field force could not be ;·aised at Delhi. It was also contended ihat in view of the agreement subsisting betweeh.the paries, the employe.i· had agreed not to contest the issue that its salesman were not lv.orkmen within tlie meaning of the expression in the. A~t'. kfurthe·r contentlo;1 was. raise.ct that the union has committed breach . of'the agreement by ri!ising t.he dispute at Delhi. ·

p. 318, margin A

' The union while conceding that there was an agreement between the parties as alleged w· the· employer contested the issue by·saying. that.:the dispute was)1ot of an all-fodia nature as it was concerning only some Delhi based .salesmen of the employer ·and therefore the dispute was not .covered by the agreement. ·

p. 318, margin A

The Industrial . Tribunal. (Shri Roop Chandra) 61\ the rival contentions of the parties, raised the. following issues : .

p. 318, margin D

"ISSUES "I) Is thei·e any agreement between tl1e 'Cqmpany a1id its wo.rkme1i thi·ough ·the Hindustan Lever Mazdoor Sabha that all maU~rs relating to· members of the :field force • would be dealt with by both the parties in Bombay ou a:n ail India basis and that if no settlement is reached,· the dispute would be raised in Bombay.ii} accordance with

p. 318, margin D

the Indnsti:ial Disputes ~ Act ? · 2) Doe.s the said agreement preve~1t the workmen in this

p. 318, margin F

case from· raisi11g the dispute in Delhi ? ·3) · Are the einployees concerned not 'w.orkmen' ·within the meaning of the term under tlie lndu~trial Disputes

p. 318, margin F

Act? If so, has.the tribunal no juri~diction? · 4) · Whether workmen have committed· a breach of. the agreement' alleged to have been entered .into between the. management and the µnion in 1957 and if so·, is the

p. 318, margin F

v .. (Desai, management not entitled rai.se. the pl.ea ·that the salcs1nen .are not 'wofk1nen' within· the: meaning· of

p. 319

Industrial Disputes Act ? "

p. 319, margin A

It would thus appear at a gl!tnce that i( was the employer who wanted the refe~ence t-0 be rejected on the preliminary objection .that there was a valid subsisting c01icludecl agreement between the parties : which had a direct bearing on the· industfi.al dispute involved in the reference and that ·because• of the agrce1nent and as a 11ecessary ·corollary of. the agreement, the Tribunal had no · jurisdktion to entertain. tlie dispute. . .

p. 319, margin A

Now sec the out-coib.e of this contention o(the employer. On Issue Nos. I and 2, Shri Roop Chandra as per bis a.ward dated November 17, 1966 held that in view of Exs. W-2, W-3 and W-4marked in evide1ice_i11 the reference before him .~s Exs. M-1, M-2 and M-3 pro, duced aµd .relied upon by- the mai\agement th~!. is the employer, t.he Industrial. Tribunal at Delhi would have no jurisdiction to·entertai11 it. It was never contended by the employer.beforeS·hri Roop Chandra that the three documents did not end in a concluded agreement. On . a contrary parties were ad idem that there was aconcluded agreement . ·between the parties. The difference was in their approach as to the applicability of various clauses of agreement td 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 ot.Jie·r ha11d, contended tha the dispute· was of a regional nature ·concerning only 1.6 Delhi based salesme1i of the Company and therefore the dispute could not be styled as an all'lndia dispute. · .

p. 319, margin C

The. Tribuna.1 lield .ih11t the dispute was of ari all-India nature, related ·to the· duties and liabilities of all members of the .field force employed all over India.and it involved su~h a major issue as salary and.wages. Approaching the .matter from .this angle, the Tribunal further held on the basis oLthe agreement, that the dispuie 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 C:ontra6t Act because where the parties .choose to h.ave the matter entertained in one of the two or more courts having jurisdiction to e1itertain the matter, such an agreement does not· cont~avene Sec. 28 .. The Tribunal further held that the agreement had the sanctity . ofa 'contract and the parties must be held.to the c.ontract'. The Tribunal concluded by observing that the union was notjustified in raising .• the dispute. in. Delhi in vi;w ·of its agreement' with. the emp!o;er 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 Tribuna) that there was a valid and concluded agreement. wants to contend that the three doeun:ients,Exs. W-1, W-2.and W-3do not spell out a · concluded agreement but ail inchoate one which remained at foe stage of negotiations only. Btil that is ·not the end .of th~ vacillation ~n the part of.the-employer. ·

pp. 319–320, margin F

Mr. Pai, learned counsel on. behalf ~f the employer on the "other hand contended that" the union has expressly repudiated the agreement 8.iid th~r~fore, it is not open no\v ro the union to take r~course to the . agreement. It was subniiiteil 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. agteement. To substantiate thi& submission, our attention was invited to a reference made by the Lt. Governor, Delhi to the Addl. Industrial Tribnnal constituted · for the Union Tt'1"ritory of Delhi; thcn·presided over.by Shri Hans Raj for adjudication of the following. ,two issues :

p. 320, margin C

···1. whethor the deduction of leave" ·by tlie management for"

p. 320, margin E

the year··I967 is illegai ·and/or unjustified and if so, to" what relief are the affec1,ed wo1·kmen enti(led' and what

p. 320, margin E

directions are necessary in this respect ?

p. 320, margin E

2. Whether .the management was obliged to grant. _special· increment to all of its workineil. in .Delhi Branch and if so, to what relief the affected workmen are 'entitled·

p. 320, margin E

and what directions are necessary in this 1:espect ?"

p. 320, margin F

The. union filed a statement of claim and sulisequently filed an" additionai or amended written statement in which inte1· alia it was. .-contended- 'that the .workmen of the concern "throughout India were agitated becasue of this measure .and its wholly illegal implementation . and the applicant Sabha led the opposition of the scheme and the resistence of the workmen to it.' This averment was relied npon to urge that the unlon ·raised a dispute of ail all-India nature at Delhi· which was the regional centre .und this would imply intentional breac.h or repudiation of the a~reeinent. Before we examine !his contention, it is. necessary to refer to p'ara IO of the amended st(ttement of claim in \vhich the union states·as under : ·

pp. 320–321, margin F

"That th.e binding nat~re of the agreement has been· flagrantly flou<ed by the Management and. the very basis of collective bargaining for industrial peace ha; been attac)<ed.":

p. 321, margin A

This would show that the unioi1 .accused the employer of breach· of agreement. On the. other hand, the employer in its written state-· mcnt contended as under : ·

p. 321, margin B

"No claim on behalf of the employees of the Field Force ca'il .be taken up by Hind\1sta1i Lever Mazdoor Sabha, Delhi ·Centre and this Hon'ble Tribunal has no jurisdiction to entertain the same in view of an agreement arrived ai and between the. Company and the Hindustan Lever Mazdoor Sabha in )957." (emphasis supplied) · ·

p. 321, margin C

It would be crystai 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 betwee11 the parties, the· dispute referred to for adjudication being of an all-India nature,' the . union was precluded from raising lne same at a regional level and the Tribunal had no jurisdiction to entertain the same. Apart frem the extracted specific contention paragraphs 5 and 6, the contentio1i· is· elaborated by the employer and it was specifically contended that in the award ·dated Nov. 17, 1966 by Sh;i Roop Chandra, Addi. Industrial Tribunal, Delhi, it' was held that a valid agreeme1it was in existence between the parties and no dispute pertainfog 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 Ro-0p 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 fiow from the ple. ad.ings. 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 ca!Jle up before. the Tribunal. . 'By a laconic order, unsupported by any. reasoning, the Tribunal observed that the salesmen are not w-0rkmen and so the documents neeu not be .summoned. lt was this order on the application which was cha\lenged i1rihe writ petition filed by the unicin .. It is difficult to appreciate what permitted the Tribunal 'to hold· thar the salesmen are not workmen.within the.meaning o!the qpression int.he Act and why it did not consider the specific contention that the .employer wa·s estopped · from caising the contention as to· the status of the ·salesmen in view

pp. 321–322, margin D

of the. ~i°nding agreemei~t between tl~e par~ies. Bt,it for- the present · purpose, it is sufficient to .notice that tlie employer and the UJiion both swore by the agreement and at any rate the employer mover contended that there was no concluded agnoe\nent between 'the parties covering · . one of the points in the dispute· namely,:the status of the members · of the Field Force including salesmen. ·

p. 322, margin A

· Mr. Pal. next turned to another' ·round of litigation between the panics. It appears that <:ffective from· September u, 1966, 'the employer J'e.organised its marketing organisation into .·tivo divisions, the Main Liries Division and the Spe;:iality Lines Division. The Calcutta' ·Branch of the employer was coi1cerned only with marketing.·· The workmen at· Calcutta were directlv. affected by 'the reorganiszation. On· a· di°spute raise.cl by the union: the Governinent of West Bengal refei'red .the {allowing disJl.ute for adjudication to the· Industrial Tribunal· · · ·

p. 322, margin C

"Is' the liun1an rarionttlisation as a n1easure of econo·n1ic · reorganisation. of the company : reflected through job-integration ·that. have either' been. effected or pro.posed to be

p. 322, margin D

effected justified ?" .

p. 322, margin D

" Pending adjudication of the dispute, some workmen filed applicalions under Sec. 33A of the Industrial Disputes Act before the Tribunal alleging .that during the pendency of the adjudication their service cdnditions·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 approac)led the Supreme Court by ·special leave,. The main refer.!i1c~ was finally disposed of . infavo.ur of the· employer upholding the reorgani~atioil 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 Le~er Ltd. v. Ram Mohan Ray & Ors.'" T[lis Conrt upheld the r.ight' of tlle employer to organise and reorganise its work)~ the mamier it pleases. 'Accordingly the appeals 'filed by the union wern rejected.

p. 322, margin D

(I) [1973] 3 SCR 624 . ..

p. 322, margin H

.. The appeals:filed by the employ~r againstthe award in favour of the workmen in the applications under Sec. 33A were eq~ally rejected by . this.Court holding that: non-payment of wages in the circumstances of the case amounts to ·an alteration in thecoi1ditions of service. Frankly,. this decision sheds no light o.n the point:under discussion because · neither: side refo:d unon the agree.men! ncir did the agreement figure into the dispute. However, it is interesting to note that when the · · main refejence was be.fore the Trlbui1al, a. prel~minary objech011 was · raised cin behalf of the employer to the effect that 'by an agreement entered into in January 1957 by and between the employer and unio·n, · it was agreed that all matters relafo;g to die matters of the "'utdoor ' mal'keting staff, to wit members of' the field force can be rais~d al Bombay only and as ~uch the company as well 0s·the Sal)ha are bouri.d · by the aforesaid agreement. Therefore, 1iot only the employer affirmed the agreement, did not contend that it was an inchoate one but specifically placed that it,'is a ~ncluded ·binding·agreement between the partie-s. · · · - · · · It appears that .J.ttere was .one 1i10re reference I.D. No. 43/72 between the parties at Delhi. Following the. decision of ·this_ Court in the case just herein discussed, the !'cf.er.:nc;e \Vas rej~cled .

p. 323

. Mr. Pai nexi referred io an order in Ref~rp1ce (I.D}No. by the :Indtistriai' Tribunal Maharnshtra bctwtci1 the.employer and the \Vork1nen- efnployeeS under -it: The clcLtland \vhich "' as refei-red for' adjudicati~n· incfoded · r~vis,ion of pay s~ales with adjustment, re_visiof1 _of the y.:age-s~ale of sUb-cle-r-i~al grade, gratuity disturbance allowance/and settling-in-al)o\vance · fo the Office staff,· allo\\'.ance t? office ·st.aff. whi-Ic tOur, acting allo~ance,. ov.ertin1e. ~ages, caSh allowance and. leave tt'avel facilities. The. employer raised number of prelin1inary o.bjcetions, one SU!.~lr being that Salesn1e11, ·Marl<eting Research Investigators, Market Research Supervisors, Sales' SupervisOrs, Trade Marks Jnv(;~HigQtors; ·Seed B~yers and -·Supervisors Or c:ler{caI· staff arc ·no~· .\vor~tnen.· within 'the ·1neani~g 9t' the Cxpression in, the ACt, and hence nO indl1strial dispute be rnisCd on their behalf and consequently the .. Ti'ibunal had no'jurisdio.tion· to adjudicate · upon the sanie. ··The .un'ion ··counterQd this_ preliminary objection by ·asserting that the cDntentiori about the status <if the aforementioned· .c~tegorie.s is barred by the principle of resfudi~at.a in view of.the "'~ard dated April 13,' 1967 made by .the 3rd Industrial Tribunal, Wc5t Bengal The Tribunal rcj 'cted the contention of· the u'nion observing thai the dispute bei,;,een them is .not of ati all-In'dia nature and therefore, the employer is entitled to raise the question ,about the status of the work- . . men included in lh~ aforem~ntioned c'ategories. This. woul\! imply that the reference was rejected not the ground lhai there was no agreement but 011°the ground that the dispute involved ii1 the reference was not covered by the agreement. In the· same reference, a plea of estbppel rnised on behalf of the union to the effect that the company was precluded in view .of the subsisting agreCIJlCnt from que~tioning the status ~f the salesmen and allied categories as workmm was . overruled bv the Tribunal observing that Exs. W-2, W-J and .W~4.

pp. 323–324, margin D

. . leave no :doubt thot the employers' agreement not to dispute the status . of the· Field Force was only on the clear undcrstandi1ig that it will be so, if' dispute. is raised on all India· basis. The Tribunal tlien 'observed that the .dispute atlmittedlywas not an all-Tndia dispute and therefore, rejected the plea of cstoppcl.

p. 324, margin B

It is at this stage necessary to refer to 6ne more reference between the parties being LT. No. 233}67. The dispute referred to was a· ·demand by the .workmen to withdraw the ·reorganisation integration imposed on the Suporvisors attached· to the Sales Department arid impending in the case of Field Force (Salesmeniand otherstaff attache.d to the Sales, Accounts, .Transport and alhed department. TlllS demand \\'as rejected by ihe Tribunal· fol lowing the decision in Hindustan Lever Ltd. v. Ram Mohmi Ray & Ors .. (supra) The rejection of the demand has no impaci at ali on the point under discussion.

p. 324, margin C

Having rneticnlousl)r eXamined various references pertaining to various industrial disputes between the' parties al different centres in.lndia since the' agreement 1957, it unquestionablyemei·ges that' the employer till the present reference never once even whispered · that the agreement was not. a concluded i1greemcnt or that it. was an inchoate one left hanging at the stage of: negotiations. But in the

p. 324, margin E

\\1~s pr_esent reference the contention raised was that the agrement not a concluded agreern.ent because tha( is hdw the Tribunal 'has approache.d the pr0b:cm .. The Tribimal has ohserved in this behalf as under:

p. 324, margin E

"Accordin-' to the inanage1nent the -three letters do ~ot constitute an agreement because in an agree1nent there should be an offer and the offer must ·be accepted as such. They have.argued.that the offer. made in Ex. W-2'ha·vc 'not beenaccept~~as·..,uch in Ex. W-3 .. . -..... -....... "

p. 324, margin E

The employer ~hich swore by the agreement and repeatedly succeeded in getting thrown out certain· references at the threshold on. [:ccou.nt of the' ag(ec1nent, no\v \VantS coritend that there \vas no concluded agreement, arid ignoring the whole history, the Tribunal falls into an error in accepting this corytention. 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. Tt is a solemn agreement, tht agreement of which effective and wh.cilesome advantage has been taken by the employer and when it now does not suit it in breach of the solerrrn 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.

pp. 324–325, margin G

Mr. Pai, however, raised a very technical contention that the · preliminary objection raise~ by the union that the employer is cstopped • · from questioning the status of the salesmen or members of the Field · Force· being not workmen \vith(n tho 1;,caning ·of the expression in the Act- must be rejected either on the princi pie of ·~es judicata or pr!nciples analago1is to res judicata or the pdncipic of is~ue of · estoppel or promissory. estoppel and neither of the three contentions is available to the union notwithstanding the foct whether the agreemeiit .exists· or· stands repudiated and therefore,. the Trihnnal was justified in .rejecting_the contention of thC union. Mr. Pai in support.

p. 325, margin C

the s.ub1nission urg~d ~hat at no timC as the s·ta~us of the salesmen as not being \Vork1nell or otherwise was ever directlv and stibstaritiallv

p. 325, margin D

issue in c;rlier referc.nc_es, _the i.Ssue.cann_ot be rej~·cted on the· grou.nd of res J1.1dicata and at any rate there:: \vas no dee.is ion on tllis issue and therefore the principle of.issue "st6Jl'pel cannot. preclude. the employer froi11 raising the contention. ·Mr. Ra1nan1urthi, on the Other hand, contended that' it is not the contention. of the union that the issue about tile status of thi; salesi11e_n is res judic<ita but ·,vJ1at is res judicata _is"thc ·existence· and bindin!! ~ ·-character of the iigree1nent wb1ch· was directly· and st\bstantially in issue .between the patties in the award given by Shri Roop Chandra and in· various other awards.

p. 325, margin E

In order to tlppfect-ate rival contentions it iS · necessai·y to' focUs attention on the issue; framed by. Industrial Tribu.nal presided over by Shri Roop Chandra in f. D. No. 46 of _1966. These issues have been extracted earlier. The most important issue was Issue No. J about the existence of a binding agreement between the parties which would preclude . the employer from ever guestioning the ;tatus of the salesmen till the airee1nent reinains subsisting and till it is tern1inUted. · ; . The issue \Vas : "is there any a·grcen1ent bet\vcen the co111pany ·.and·

p. 325, margin F

its worklneu coyering inter a/la the question aboi1t tlie status 'of sales- . meii ?' ·And the answer was : 'there is such a valid and subsisting . agreeinent and that posiffdn was adopted by noneother than the employerand the employer succeeded in getting the reference thrownout at tlie threshold· on .the ground. that in view ·of the subsisting . valid agreement betw<;en the parties, the union was est0pped fro1n ·raising a dispnte of a0 all-India nature at.a regional ·level and it can . : only be raised i1t Bombay and .therefore the Tnd11strial· Tribunal at Delhi had no.jurisdiction to entertain the same Even if the-teclinicaJ · pri~ciple .of res Judic~ta is imported In the field of industrial adjudication, the issue about the existence of an .agreemen(was substant,ially and directly in issue between the pa;:ties .in the earlier proceedings and was decided in the offirrnative that there exists.such an agreement. In the reference fi:om \vhich tlie present a.l.'pe3l arises, the employer • ·contended that theie is no such concluded' agreement as pleaded· bji the union; and ·therefore, the issue that arises is: whether there is ·such an -agreement as piea"ded on behalf ~ni1eunio11. But that was the specific issu.e in Reference I D. No; 46 of l966"between the .same. p-arties. To. that extent, one.ca~·say that unless Change ~f Circumstances are established, the issue would be res ;udlcata. But" we consider it i1;appropriate. to usher in this techn.ical concept. of res judiqata pervading the field of aivil justice. into.the field of industrial arbitration.· The apprc\lons;on' :vas voiced by ·this .Court in Slwhdara (Delhi) Saharanpur Light Raf/.ivay Co. Ltd. v. Shahdara (Delhi) Saharanp111· Railwav. Wor/.:crs Union'!) when it said that it is doubtful whether the . principles anaJC,gous to resjudicaid properly be applied industfial '.ldju~ica~i-on: We are not una\var~of the legal pq~tion that pr_inciplC: of res judicatri was invoked and applied by this --Court in Workmen of . Straw Board M~nufacturing. Co. Ltd. v, · M/s Straw ·}Jom:d Manufac-. ·_turin"ft Co. Ltd.(2> One can safely Say that prilicipte analogous tO res judic~ta can be av~iled ;r to scuttel any atte;npt at raising' industrial - . disputes repeat"'~dly in de~ance uf Operative &ettlernen~s a\vards.

p. 326, margin A

But this hig'1'y technical concept of civil justice may be kept ia precise conlill~d limits in the fi~ld of -industrial arbitration \vhich n1ust a·s.far as pOs.Sibie: be hept free· from 'such t!'.lchni_caJities whiCh th\vart resolution industri{tl disputes. We however proceed on the assumption . that· an industrial dispute may be rejected. on the principle ai:alogous · to res ji1dicata. The matter however, may be fooked at from a s ightly difforent angle. The_ concept of compulsory adjuditation of industrial disputes .st~tutqrily uShered in with a vic\V to· pro.viding a. forun1 [i%9] I L.L,j,734 at 742 . [1974] 3 S.C.R. 703. . ·. ' . arid 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 h1 industrial production . . Peace and harmony in industry and uninterrupted production being the demands of the time, it was considered wise to arm the Govern- . rnent with power to compel the parties to re5ort to arbitr,,tion a.rid ' as a necessary corollary to avoid confrontation at;d trial of strength, which were considered wasteful from · national and· public interest .poini of view. A welf~re State can ill-afford. to 16.ok askance at · industrhl unrest and industrial . disputes. (See 'JJahyabhai Ranch·.· hoddas Shah v. Jayanti/a/ Mohanlat."l The . .Act die! not confer till the introduction of Chapters V-A and V-B, a1w special' benefits or enforce• · able benefits on. the workmen. The Att was designed to provide a self-contained Code to co~pcl . 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 tor resolution of disputes may remain unhampered by any statutory control and devise rational norms keeping pace .. with i,mproved industrial relations .reflecting and imbibing .socio-economic'justice. If this is the underlying object behind enactment of the Act, the Court by interpretative process mlist strive.to reduce the field of.conflict and expand the area of agreement and show its preference for· uphcilding agreements sanctified by mutuality and consensus in larger public interest; namely,' to eschew industrial strife, confrontation and· consequent wasfrge. ·

pp. 326–327, margin F

. .

p. 327, margin E

The parties fo .this case .entered into a solemn agreement. It is hot for a moment suggested that the agreement has been terminated. The only argument put forward on behalf ~f fhe .employer was th.at 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 wiihout merits. What has happened is. that the union raised certain dispµtes which according to the 4nion we're of a,.regional nature and which it was not estopped froin 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 ,<:iitfereiice in.approach being: whether the dispute was of an all,India: ·nature 'or of \egional nature .. The emerging situation .would be th.at neiteer tile union repudiated the agreement n·or the employer and till .the present dispute, both swore by the agreement. The divergence in·· [1'B] Lab; Industrial C.ases 967, · 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 fndustrial Tribunal cimsistenly upheld at the instance of the employer that there was a binding valitl 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 tlispute· was of an all-fndia nature and not of a regional level as contended by the'union .. This constitutes adherance to ag.reement., performance of tbe agreement, implementation of.the agreement and being bound by the agreement. ·This cond,uct in no sense can be said. to constitute repudii\lion of agreement by tbe union. Unilateral repudiation of an · agreement, as contended by Mr. Pai, does not result in termination · of;· 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 refeiences rejected 'on the pr<liminary 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 sa1ne. when it sui.~s it. Unilaterai' repudiation is·.distinct terminrition .and an agree1nent/settlen1ent r.e1nains. In force binding till' terminated and does .not come to· an end by unilatera 1 repudiation . But it mlist be 1nade clear that there is no s·t1bstance in contention of Mr. Pai that the union repudiated the agreement. If thus; the employer swore by Ilic' agreement, rdied upon it '1nd succes.sfully contested the clai1n 'of the ~inion, it cannnt now be penn;tted to back ·out from such solemn abgreement and apart from the technicality of the issue being res judicata or issue estojJpel, industrial peace and <har·mony, good. behaviour and fair rel_atiofi \vith \Vorkn-!en estOpes the _employer fr0m either repudiating the agreement or contending. that tl;e agreement ~as not a concluded agreement but incl1oate one. Jn this connectinn, we may profitably refer to Western India Match Co. v. Their Workmen'" w'herein this . Court observed ;s urider :

pp. 327–328, margin E

"It is nqt out of place to 1nentioi1 in-this connection that l1n so~e i)revious occasions the 1nanagement itself has treated. these categories as workmen within the meaning of the U.P. Industrial Disputes Act. The management's contention that {IJ [1964] 3 S.C.R. 560 at 566. the Tribunal has erred in thinking that the inspectors, sales-· men and retail salesmen are work1nen must- therefore be 'rejected."

pp. 328–329, margin F

••

p. 329, margin A

Same view was ado'ptcd in Alluminhm1 Factor)/ Work~l's' Union v. Indian Co. Lfd. Jn. fRat case·. Certain corresrnndcnce which passed before rnd after the awards betwec1i \he parties ~as referred to. Thi'> corre<;po:ide;ic(' sh,_,wed that the ar:~1Jlant/urti611 and the steff associetion of the "'""µqny foily· accepted the principle that Supervisors wo<.ilcl no lr.nger be regarded as workmen and that Supervisors had resigned from-1ncmbership of.the wor-krnen's unions.

p. 329, margin A

' . These ave.rtments in the correspondence regarding the status of the Supervisors being not workmen was held binding between the parties and both ihe Industrial Tribunal·and this Court declined· to examin.e 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 concedii}g not t.o contest the· status of salesmen would. equally be binding on the e1n']Jloyer. It would thus appear that the employer/management was held hound· not ~y any spe~ific agreemen.t but an agrcen1ent 5pclt-out of its con~· duct in Western India Matr;:h Co. case and asserti-Ons in correspondence in [ndia Alun1inium Co. case trcati'ng certain categ·orics ofthi:: workmen as. workmen or not as \\'Orkrne1} resp~ctively \Vithjn the meaning· or the expression in the Act. then at a later stage, the employer and the u~ion respectively \Vere estopped frnn1 contendifig to ·the contrary. The case before u.s is much_stronger. in that there is a conclude4 binding agreement b2-tween parties neither repudiaj:ed ·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 em.ployed by the .C~mpany as workmen within the meaning of· the exp~ession in the Act. Therefore, ·the Tribunal c~nimitted a seriQus error, apparent on record i1~ holding that there .\vas no ~Oncluded agr,:cmont between. the parties as. emerging from Exs. W-2, W-3 and W-4.

p. 329, margin B

Th.e Tribunal 1~ega~ived the contention of the union that the employer was estopped from challenging the status of the workmen also. Oil the gr..ound that 'there Cbn be estoppeJ against the S~at.ute. We must confess th0-t ~ven.Mr. Pai 9id not appear to be very enthusiastic to support the finding of the Tribunal that even if there is a binding ·agreement ~etween the parties and th.erefore, the employe estopped from questioni1,g· 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 unnderstand but to appreciate the approach and the finding of the Tribunal in this behalf.• . There is no statutory pro~ision that a· status of a person invoking

pp. 329–330, margin F

. , the jurisdiction of the Tribunal must be adjudicated upon notwithstanding that no contention· io t!iaf effect is·. raised.. No statutory pro- ·vis{on was brought to our notice which would. be rendered nugatory or ineffective if the. status of workman is not questioned. ·Nor it can he s~id that the employer has contracted out of the. benef)tsof a statute. Whether a particular, person is a workman or not dependsupo·n factua.1 matrix .. Workman is defined ·;n Sec. ·2(s) of the Act. · The ingredients and· the incidents of the definiti"on when .satisfied, the . person sati;fying the same would be a workman. Negaiively, if someone fails to satisfy 6ne or other ingredient. or incident of the definiti'on, he may not be held to be workman within the meaning of the expression in ihe Act. The.re is no provision in the Act. which obilges 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 w!iether the ·pcrs·on who has· invoked its jurisdiction is· a workman or not. There is· no such obligation cast statutorily · on the Tribu11al. ,If the employer .does not .arise the contention ,about the status of the workman approacliing the Tribunal, the Tribunal ,h~s no obligation, to ~ccide the status .of the persq11 whether' he ,is a workman or not. . Conversely, if the employer agrees not to ques!fon the status in future it would only imply that such a contention would not· only be not raised· but if raised it would not bepressed and if pressed 'should be negatived in view· o.f the binding agreement: The .. resultant situation would be that the Tribunal must proceed on the assumption that no such conten.tion is raised and required to be ·adjudicated upon: .lf the contention is not raised, the Tribunal is u.nder no. obligation, or on its o·wn to raise and decide such a contention tci clothe 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 1;ocessity decide to acquire jurisdjctioh.· Therefore, the · Tribunal was clearly in error in holding that the contention canvassed o'n beh~lf of the union would permit it to taise estoppel against' a . statute. Undoubtedly,. it is true that there cari be no estoppel againsf the Jaw 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 fr is his duty to do; the result would be an enlargement of the contractual or other rights ailowed by law or the'.r alteratio~: The

p. 330, margin A

v .. (Desai. J-)' 331 Cour·t e11forces 'the performance of statutory duty and declines to · interfere for the assistance of persons who seek its aid to relieve the~ . aga,inst the express statutory provision. Approving the dicta Jn. Maddison v. Alderson(", this Court observed in K. Romadas Shenoy

p. 331

The Chief Officers, Town Municipal .Council, Udipi and Ors.,t•l that an excess of statutory power · could not be validated by acquiescenc;e. in by the operatio·n of ~stoppel. 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 th\'refore Shri A.K. Basu is not . workman under ·the Act, the agreement between the union. and the emoloyer. cannot ·confer on the Tribunal any jurisdic- . lion to give any- relief to him under the Act. Tb.c Tribunal. completely misdirected itself when it assumed and arrogated to itself tj:le . obligatory duty in the absence of an impermissible contention, to .raise one and proceeded . to adjudicate upon, notwithstanding the fact if Hie 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 ihat when a reference is·made under Sec. 10 of the Act; Rule .10-B of the Industrial Disputes (Central) ·Rutes, 1957 obliges the workman involved in the reference to file. with tl1e Tribunal a statement of demands relating only to the issues as are included fo the order of reference and simultaneously serve a copy ofthe same to the employer. Sub-rule (2) enjoins the employer within ·two weeks .ohhe receipt of the statemerit·of claim to file its rejoinqer aud simultaneously serve a copy ofthe same on the workman. Ordinarily,, the Tribunal ·after ascertaining on ·what issue the parties are at variance rais.es i.ssues to focus aitention on points in dispute. In industrial adjudication,: issues are of two typ_es : (i)· those referred by the Governmei;it for adjudication aud set oat in the order of reference. and (ii) incidental issues ·which· are· sometimes the issues· of law or . iss·ues of mixed law and fact. The' Tribunal may.'as well frame pre~ liminary issues if the poiut on which the parties are ai varia11ce, as . reflected in the preljffiinary issue, o/OU!d go to the root of the matter. But the Tribun&l cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from r11ising; to wit if the employer. does riot q11estion the status of the worken, (he Tribunal cannot suo inotu raise the issue and proceed to adjudicate upoil the same and throw out (l) [18831 8 A.C. 467. (2) [19751 1 S.C.R 680. the reference on the sole ground that the concerned -workman was . not .a workman .w;thin the meaning of the expression of the Act. And it is' not obligatory upqn the employer i1ecessarily to raise \he conten- "tion that the co.ncerned workman was not a workma1i 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 ~ere· to prevail, the well laid rnle of no estoppel against a statute would be violate<).

pp. 331–332, margin A

Having examined all the diniensions 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. is binding upon both the parties. Once the agreen:ient is held to· be binding, the employer is estopped fro;,, contending that the workmen involved in the dispute wbo were sales1ncn wen~ not work1nen within the nleaning. of the expression undei· 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 Tribui1al to ·proceed to deteni1inc . the dispute on merits without concerning itself with .the consideration of the question whether the concerned workmen were workmei1 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 lndustri_al Tribunal with a direction lo proceed further in the light of the observations made in thi.• judgment. The respondent shall pay to the appellant cosis quantified at Rs; 3,000. · · N.V;K. Appeal allowed.

p. 332, margin B