W.P.(C)/4119/2014 of BHARAT HEAVY ELECTRICALS LTD. Vs UDAIBIR SINGH & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI+ W.P.C No. 4119/2014 and CM PPL.8270/2014, 22870/2017 and 47013/2017

Judgment reserved on : 03.04.2018Date of decision : December 29[th], 2018

BHARAT HEAVY ELECTRICALS LTD...... Petitioner

Through: Mr. Sandeep Sethi, Senior Advocate with Mr. A.K.Roy, Advocate Advocate with Mr. A.K.Roy, Advocate

versus

UDAIBIR SINGH & ORS.

..... Respondents

Through: Ms. Asha Jain Madan, Advocate for R-1 to 164 Advocate for R-1 to 164

Mr. R.K. Saini, Adv. for R-165-166. 166.

Mr. Arun Bhardwaj, CGSC for R-167-168. R-167-168.

CORAM:HON'BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

ANU MALHOTRA, J.

1.The petitioner Bharat Heavy Electricals Ltd. vide this petition under Articles 226 & 227 of the Constitution of India seeks the setting aside of the Reference made vide order no. L-42011/55/2013-IR (DU) dated 25.07.2013 vide which the Central Government opined that an industrial dispute exists between the employer in relation to the

management of the BHEL House and their workmen in respect of the matter specified in the Schedule annexed with the order which read to the effect:-

“Whereas the action of the management of BHEL is not regularizing the employment of Shri Udaibir Singh and 163 others and engagement of the said workers through M/s. Arron Aviation Services Pvt. Ltd. and M/s Oynx Management Services Pvt. Ltd. as per annexure, is legal and justified? To what relief the workmen are entitled to?”

and thus referred the said dispute in terms of Section 10(1)(d) and Section 10(2A) of the Industrial Disputes Act, 1947 which were referred for adjudication to the Central Government Tribunal-cum- Labour Court No.2, New Delhi calling upon the Tribunal to give its award within three months.

2.The petitioner also thus sought that the consequential proceedings in ID No.94/13 pending adjudication before the Central Government Industrial Tribunal-cum-Labour Court-II, KKD be also quashed and sought that the entire records of the conciliation proceedings before the Additional Labour Commissioner in ALC-1.8 (35) 2011 and the documents which formed the basis of the Reference be called for.

3.There are 168 respondents arrayed to the present petition with respondent nos.1 to 164 being workers represented through Shri Jagdish Prasad, President of the Delhi State General Workers Congress and M/s Aroon Aviation Services Ltd. and M/s Oynx Management Services Pvt. Ltd. arrayed as respondent nos.165-166 to the present petition and the Union of India represented through the Office of Regional Labour

Commissioner (Central), Ministry of Labour and Employment is arrayed as respondent no.167 and the respondent no.168 is the Secretary, Government of India, Ministry of Labour and Employment. 4.This reference has arisen out of the failure report of conciliation dated 01.04.2013 passed by the Assistant Labour Commissioner (Central), Office of the Regional Labour Commissioner (Central) in ALC-1.8 (35) 2011. The said notice was issued by the Labour Commissioner to the petitioner to attend the proceedings fixed on 17.10.2011 in order to hold conciliation and arrive at an amicable settlement of the dispute referred by the Delhi State General Workers Congress for regularization of Jagdish Prasad and others.

5.It was further submitted on behalf of the petitioner that the notice dated 13.09.2011 received from the Office of the Divisional Labour Commissioner (Central) had copy of statement of claim containing

the names of 167 workmen who were as follows:

The said notice apart from being addressed to the petitioner was also addressed to Goyal Services and O.P. & Associates (Contractors).

6.The petitioner further submitted that the statement of claim had been signed by five persons and that the petitioner no.4 herein was in the capacity of an alleged and unrecognized union by the name of Jagdish Prasad and that there was nothing to show that the President and the signatory of the statement of claim were duly authorized by other persons as listed in the statement of claim.

7.The petitioner thus submitted that the very initiation of proceedings was without any authorization and authentication. It was further submitted on behalf of the petitioner that the petitioner had participated in the conciliation proceedings and filed detailed written statement dated 14.10.2011 challenging the claims of the respondent concluding that the claim of the respondents/workmen was barred by the principle of resjudicata and submitted that the said written statement was submitted during the conciliation proceedings on 18.10.2011. The petitioner has further submitted that the President of the Union moved an application dated 23.03.2011 before the Conciliation Officer for deletion/addition of the names of the workers in the list as filed in the statement of claim and in the said application, the grounds raised for deletion was that certain workers were working against their own

interest and were no longer members of the Union and thus the Union and other workers decided to delete the name of such workers and the Union sought the deletion of the names of 13 workers and addition of seven workers in its place. It has been submitted on behalf of the petitioner that this application was not allowed by the Conciliation Officer nor was there any amendment ever directed to be carried out. The said application for deletion/addition of names of workers in the list of workers filed with the statement of claim as submitted before the Assistant Labour Commissioner (Central) states that:

“That the claimant had raised the above Industrial Dispute for the regularization of the services of the workers named in Annexure P-1 attached there to. It is submitted that since the workers named here under in this para had been working against the interest of the workers and since they are no more the members of the above union, the union and the other claimant workers have decided to remove the names of the following workers from the array of parties/list of workers:

and further stated vide para-2 to the effect that:

“The union and the other workers have also decided to implead the names of the following workers who were unfortunately left out from being included in the list of workers due to typographical

8.The said application thus stated that the final list covered in the

Industrial Dispute was as per the amended list of workers to the effect:

9.The petitioner submitted that vide this application, the Union had sought to delete the names of thirteen workers and to add seven workers in its place and this application was never allowed by the Conciliation Officer nor was there any amendment ever directed to be carried out. Inter alia the petitioner submitted that the application sought deletion in the list in which the name of one person Lalsa appeared twice and it was further submitted that in the amended list of workers submitted with the application for deletion/addition of names of the workers in the list of workers filed with the statement of claim serial no.73 was missing from the list and the name of Lalsa appeared at serial no.75 and 141 of the said list.

10.Inter alia the petitioner submitted that the President of the respondent’s Union vide another application dated 23.03.2012 requested the Conciliation Officer to implead the names of the new contractors by the name of M/s. Aroon Aviation Services (Pvt.) Ltd. and M/s Oynx Management Services Pvt. Ltd. Through this application dated 23.03.2012, it was stated by the claimant/workers through Jagdish Prasad, President of the Delhi State General Workers Congress to the effect:

“It is stated that it is the BHEL who had initially engaged the claimant workers directly and after few years the workers were shown to have been engaged through its different agencies. It is also reiterated that the claimant workers were already working for the BHEL management when the present agencies of BHEL was engaged by the BHEL Management and the services of the claimant workers are continued without any break by the above management in-spite of the repeated change or the agents. After

the engagement of the present agencies by the management of BHEL, the claimant workers, who were earlier shown to have been engaged through the earlier agents i.e. M/s Goel Services are now shown to have been engaged through the new agencies namely M/s Aroon Aviation Services (Pvt.) Ltd. and M/s Oynx Management Services Pvt. Ltd., both c/o BHEL, BHEL House, Siri Forth, New Delhi-110049. (registered office)

That in order to facilitate the conciliation proceedings and to make it more meaningful, it is necessary that the present agencies of the BHEL through whom it has engaged the claimant workers, be also impleaded as party Respondents. Both the agencies have to be served at the address of the BHEL management.

In the premises mentioned above, it is most respectfully prayed that this Hon'ble commission be pleased to implead the present agencies of BHEL as party Respondents to the above conciliation proceedings.”

and the petitioner submitted that the contractors are independent and have their own addresses as mentioned in the memo of parties of the present petition.

11.Vide notice dated 10.05.2012, the Assistant Labour Commissioner (Central) issued notice to the existing contractors i.e. M/s Oynx Management Services Pvt. Ltd. and M/s. Aroon Aviation Services (Pvt.) Ltd. apart from O.P. & Associates and M/s Goel Services.

12.M/s. Aroon Aviation Services (Pvt.) Ltd. submitted its written statement before the Assistant Labour Commissioner stating that it had recruited the claimant worker w.e.f. 01.07.2011 for the period of the contract. The petitioner has further submitted that the respondent

workmen vide their rejoinder dated 22.08.2012 submitted further amended list of workers comprising 161 workmen.

13.The petitioner has further submitted that on perusal of the records and after protracted discussion, the conciliation proceedings failed and the Office of the Regional Labour Commissioner thus submitted its report of failure of conciliation proceedings to the Secretary, Government of India, Ministry of Labour and Employment on 01.04.2013 and for the first time without allowing any application for deletion/addition of names of workmen, the cause title of the failure

report was altered as follows:

"Sub: Industrial Dispute raised by Shri Udaibir Singh, Deepak Kumar etc. through Shri Jagdish Prasad, President, Delhi State General Workers Congress against the management of Bharat Heavy Electricals Limited and its contractors."

It has been submitted by the petitioner that such material alteration could not have been made in the final report without allowing addition/deletion of names and without accepting any particular list as the conclusive list before the Conciliation Officer. The petitioner further submitted that an office memorandum no.L-42011/55/2013 – IR(DU) dated 10.06.2013 was issued by the Under Secretary, Government of India, Ministry of Labour stating therein that upon consideration of the facts and circumstances of the case and the contention of the parties, it was proposed to refer the dispute to the Industrial Tribunal for adjudication on the following terms of reference:

“Whether the action of the management of B.H.E.L in not regularizing the employment of Shri Udaibir Singh and 163 others and engagement of the said workers through M/s. Aroon

Aviation Services Pvt. Ltd. and M/s. Oynx Management Services Pvt. Ltd., as per annexures, is legal and justified? To what relief the workmen are entitled to?”

It was also stated in the said adjudication proposal dated 10.06.2013 to

the effect:

“M/o Heavy Industries & Public Enterprises are requested kindly to advise the management to settle the dispute amicably by discussion with the concerned union/workmen and/ or furnish their comments to this Ministry within period of 30 days, failing which it will be presumed that they have no objection to the dispute being referred for adjudication.”

14.Vide order dated 25.07.2013 as already adverted to elsewhere hereinabove, the Central Government opined that an industrial dispute exists between the employers in relation to the management of BHEL House and their workmen and referred the matter to adjudication as already adverted to elsewhere hereinabove to the CGIT-cum-Labour Court.II.

15.The petitioner further submitted that apart from the factum that it was not served with any statement of claim with the notice calling upon him to appear before the CGIT, the cause title of the claim read as:

“Shri Udaibair Singh & 163 others C/o Sh. Jagdish Prasad, President, Delhi State General Workers Congress, 8/425, Trilok Purl

Delhi-110091

Versus

1.The CMD

Bharat Heavy Electricals Ltd.,

BHEL House, Siri Fort, , New Delhi-49

2.M/s Arron Aviations Services Ltd., C/o Bharat Heavy Electricals Ltd., BHEL House, Siri Fort, C/o Bharat Heavy Electricals Ltd., BHEL House, Siri Fort,

New Delhi-49

3.M/s Oynx Management Services Pvt. Ltd.

C/o Bharat Heavy Electricals Ltd., BHEL House, Ski Fort, New Delhi-49.” BHEL House, Ski Fort, New Delhi-49.”

16.The petitioner further submitted that whereas this first title at the stage of conciliation read as ‘Shri Udaibir Singh & 163 others’, the notice issued by the CGIT was issued to the petitioner in the name of Jagdish Prasad and Others. The petitioner submitted that the letter of authority filed along with the statement of claim does not bear the signatures of the workmen alleged to have been parties to the proceedings and the list of names furnished as claimants do not bear any particulars of the claimants, the nature of the jobs performed by them and the name of the contractor who was the employer of such workmen and there was material alteration and random deletion/addition of names resulting in huge variation even in the name of the workmen from the list that was submitted by the workmen/union which was annexed as Annexure-P to the petition with the names of the workmen at serial nos.1 to 164 being to the effect:

17.The petitioner submitted that it filed an application dated 19.03.2014 before the CGIT for furnishing of better particulars including that of authorization by the listed persons in their favour and also sought therein that the claimant be directed to suitably amend the list of claimant workers in the statement of claim as filed in the conciliation proceedings. It was further submitted on behalf of the petitioner that however, the CGIT directed the workmen to file reply to the said application but directed the petitioner herein to file its written statement and in the absence of any detail being furnished by the respondent workmen, thus the petitioner was left with no option but to file provisional written statement dated 30.04.2014 and sought to file detailed written statement at an appropriate stage.

18.The petitioner has submitted that the claimants had deliberately manipulated the documents and had gone to the extent of even changing the names of the workmen in the conciliation proceedings and in the present reference and that the irregularities and illegalities were so manifest and arise out of an administrative order of which there can be no positive directions issued by the Labour Court and thus the petitioner

had filed the present petition in as much as the reference is patently illegal in the light of the conciliation proceedings which forms the very basis for initiation of an industrial dispute and there is an error apparent on the records of the failure report filed by the Conciliation Officer, wherein an incorrect list of workmen had been furnished, some of whom were never party to the conciliation proceedings and that even the cause title of the Reference had been altered at the behest of the workmen without any rhyme or reason. The petitioner has thus submitted that the illegality is not only apparent but is bound to culminate in miscarriage of justice if the order of reference is not set aside.

19.The respondent no.166 arrayed to the present petition i.e. M/s Oynx Management Services Pvt. Ltd. who stated that it was an independent contractor of the petitioner supported the claim of the petitioner and submitted that there was an alteration in the name of workmen in the Memo of Parties in the original memorandum submitted before the ALC in the conciliation proceedings and the final list of names submitted by the ALC to the appropriate government with the failure report for making reference and that the Conciliation Officer had not passed any order in favour of the workmen to amend the memo of parties and names of workmen and submitted that such alteration could not have been made in the final report without allowing deletion/addition of the names and without accepting any particular list as the conclusive list before the Conciliation Officer.

20.The counter affidavit of the respondent no.165 M/s Aroon Aviation Services Pvt. Ltd. was to similar effect and likewise supported

the contention of the petitioner to similar effect as of the respondent no.166 M/s Oynx Management Services Pvt. Ltd.

21.The respondent nos.167 to 168 to the present petition i.e. Union of India and the Secretary, Government of India, Ministry of Labour and Employment through the counter affidavit of Shri SK Das, Regional Labour Commissioner (Central) who is working with respondent no.168 stated vide para 1 & 2 of the counter affidavit to the effect:

“1. The workmen numbering 167 engaged by two contractors of Bharat Heavy Electricals Ltd. raised an industrial dispute against the management of BHEL on 13.09.2011 through Delhi State General Worker's Congress under the Industrial Disputes Act, 1947 before the-then Assistant Labour Commissioner(C) and Conciliation Officer claiming regularisation in the services of Bharat Heavy Electricals Ltd.

2.Although the list of the workmen raising the dispute contained the name of Sh. Jagdish Prasad at SI. No. 1, the representation was signed by four workmen namely Sh. Udaybir Singh, Sh. Deepak Kumar, Sh. Mahendra Singh and Sh. Ramesh Kr. Gupta, all belonging to the Union, Delhi State Workers Congress. As such the title of the dispute was subsequently changed from Jagdish Prasad and others Vs. BHEL' to 'Udaibir Singh and others Vs. BHEL', as the same did not materially change the dispute or claim of the workmen in any way.”

and further submitted to the effect that:

5. The union thereafter submitted two applications both dated 23.03.2012 addressed to Conciliation Officer, which was received in the office on 23.03.2012, under the signatures of Sh. Udaibir Singh and 3 others. In one application the union requested for deletion of 13 workmen on the ground that they no more owed allegiance to the union and simultaneously requested to add 7 workmen on the ground that it was typographical mistake on the part of the union not to have included their names in the list earlier

submitted by them. However, the consolidated list of workmen submitted by the union marked as 'Annexure A' to their application contained 164 names of the workmen. This is to add that in the list submitted by the union to the Conciliation Officer along with their application, the details of 164 workmen including their father's names, dates of joining and salary drawn were mentioned.

The Second application contained request from the union to implead two contractors namely M/s Aroon Aviation Services (P) Ltd. and M/s Oynx Management Services Pvt. Ltd. as additional parties.

6. However, the conciliation officer had already issued notice to M/s Aroon Aviation Services (P) Ltd. amongst others on 23.02.2012. Taking cognizance of the request of the union as mentioned above, the conciliation officer issued notice also to M/s Oynx Management Services Pvt. Ltd. on 10.05.2012 amongst others.

22. Inter alia the counter affidavit for the respondent nos.167- 168 vide para-7, 8 & 9 states to the effect:

“7) Although it is not clear from the conciliation proceedings as to whether the union's application along with the list of 164 workmen were passed on to the management, generally during the conciliation proceedings the communications made by the parties are exchanged between them.

8) M/s Oynx Management Services Pvt. Ltd and M/s Aroon Aviation Services (P) Ltd. submitted their respective written statements in response to which the union submitted rejoinders enclosing there with list of 161 workmen. Aviation Services (P) Ltd. submitted their respective written statements in response to which the union submitted rejoinders enclosing there with list of 161 workmen.

9) It is observed from the proceedings and the concerned file maintained by the then conciliation officer, different lists of workmen consisting of names of 167,164, 162, 163, 161 workmen have been submitted.”

23.Inter alia through the said counter affidavit submitted for respondent nos.167 & 168 vide para-10 thereof it was submitted to the effect that :

“10) Although there is no specific proceeding in regard to allowing the union for amendment of the list of 167 workmen initially submitted by them, the facts of the mention of the no. of workmen as 164 in the proposed terms of reference as well as in the 'subject' on the body of the report and also the submission of the list of 164 workmen with the report on FOC by the Conciliation Officer to the Government imply that the request of the union in this regard was acceded to by the Conciliation Officer. It may be mentioned here, that there was no other list submitted by the Conciliation Officer to the govt. which consisted 164 names. The objective of conciliation proceeding is to persuade both the parties to arrive at an amicable settlement. During the course of conciliation, the parties submit their respective points of view both in writing as well as orally. The Conciliation Officer is often not in position to record each and every statement made by the parties during conciliation. There is no specific proceeding about impleading additional parties in the dispute, but having taken cognizance of the request of the union, the two contractors namely M/s Oynx Management Services PVt. Ltd. and M/s Aroon Aviation Pvt Ltd. had been included as parties and notices were issued to them.”

24.The respondent nos.167 to 168 had further submitted through parawise reply to the petition to the effect that:

“The allegations levelled by the petitioner in this paragraph are true only to very limited extent. The dispute between the management of BHEL and its workmen revolves around the issue of regularization of their services in the company as they have been working in the organization through contractors for years. The moot question to be decided in the dispute is whether the workmen deserve to be regularized. On this core issue the petitioner did never come out with clear submissions either during the course of conciliation or afterwards in the CGIT in as much as in this instant writ petition there is no whisper from the side of the petitioner about the claim of the workmen for regularization. Assuming but not admitting that the list of 164 workmen submitted by the-then Conciliation Officer to the Government with the report on Failure of Conciliation (FOC)

and thereafter by the Government to the CGIT is wrong, the petitioner has not mentioned anywhere in this W.P. as to what exactly was wrong in the list of workmen or as to what should have been the correct number of workmen with their details. The petitioner also preferred not to provide the correct list it wanted to rely on even to the CGIT. Further, in the instant petition the petitioner has pointed out just two irregularities observed by it in the list of workmen that the name of one workman has been mentioned twice at SI. No. 75 & 141 in the list containing the names of 168 workmen and further that the SI. No. 73 is missing in the same list. However, as this list was not considered finally by the Conciliation Officer as is evident from the report on Failure of Conciliation submitted by the Conciliation Officer to the Government, there appears to be no reason for the Petitioner to raise this issue. Thus it is crystal clear that the petitioner has not come with clean hands in filing this Writ Petition before this Hon'ble Court. It is also clear that the petitioner did not deliberately want the lapse, if any, on the part of the conciliation officer to be corrected and as such refrained from submitting the correct list of workmen to the conciliation officer. Had the petitioner submitted the same before the conciliation officer, this litigation would not have at all arisen.

The Government before referring the dispute for adjudication to Industrial Tribunal had even vide their letter no.L- 42011/55/2013-IR(DU) dated 10.06.2013 (marked as Annexure P-10 in the W.P. by the Petitioner) conveyed the proposed terms of reference to the petitioner for their comments meaning thereby the petitioner had an opportunity to raise the issue as has been raised in this petition at that point of time which could have prevented this litigation from arising. The list of workmen not being objected to by not communicating anything whatsoever to the Government at that time, the list was genuinely deemed to have been accepted by the petitioner. The illegalities and irregularities as alleged to have been perpetuated by the respondents do not hold base as through submissions, depositions, etc. and by leading evidence in the tribunal the discrepancies, if any, could have been removed. The

CGIT is well within its powers to change only few of the names say 2 or 3 in list of about 164 workmen through depositions and evidences while deciding the moot terms of reference on the issue of regularization of such huge no. of workmen. Such small change on the part of the Tribunal would not have amounted to changing the terms of reference. The whole exercise by the petitioner through this petition appears to have been done only in order to deviate from the main issue and delay dispensation of justice to the poor workmen.”

25.The said respondent nos.167 to 168 have further placed reliance on the verdict of this Court in WP (C) 12602/2006 dated 24.09.2008 to contend that mere reference under Section 10(1) of the ID Act, 1947 does not affect anyone’s right and no writ petition ordinarily can be entertained against the mere reference under Section 10(1) of the ID Act, 1947 and as such the petition is premature and that writ petition lies only when the rights of some party had been adversely affected. Reliance was also placed on behalf of the respondent nos.167 to 168 on the observations of the Hon’ble Surpeme Court in the case DP Maheshwari Vs. Delhi Administration and Ors. AIR 1984 SC 153 wherein it was observed to the effect that:

“It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Art. 226 of the Constitution and to this Court under Art. 136 of the Constitution and delay decision of the real dispute for years, sometimes for over decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us case where dispute originating in 1969 and referred for adjudication by the Government to the Labour

Court in 1970 is still at the stage of decision on preliminary objection. There was time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before Tribunal so that preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Art. 226 and Art. 136 are not meant to be used to break the resistance of workmen in this fashion.”

(emphasis supplied)

26.Apart from refuting the contention of the petitioner that the claim of the workmen was barred by resjudicata, the respondent nos.167-168 denied that the statement of claim of the workers was not submitted with due authority submitting to the effect that the workmen vide letter dated 02.09.2011 in the letterhead of the Delhi State General Worker Congress authorized their union represented by Shri Jagdish Prasad to espouse their case. The respondent nos.167-168 had further stated that the oral cause title before the Conciliation Officer qua the dispute was ‘Sh. Jagdish & Others’ and the cause title mentioned in the FOC was ‘Udaibir Singh & Others’ which cause title was changed by the Conciliation Officer as signatories to the initial application and

subsequent correspondences bore the signature of Shri Udaibir Singh and two others although the name of Shri Jagdish Prasad was mentioned at serial no.1 in the list of workmen and it was submitted on behalf of the respondent nos.167-168 that the change of the cause title as mentioned did not materially change the substance of the dispute in any manner whatsoever.

27.Inter alia the respondent nos.167-168 further stated through the counter affidavit that the proposed terms of reference along with all enclosures was sent to the petitioner by the Ministry of Labour, Union of India vide letter no.L-42011/55/2013-IR(DU) dated 10.06.2013 and there was an opportunity to the petitioner to raise objection, if any, by responding to that letter and by the fact that the petitioner did not at that stage avail of the opportunity this aspect could not be now availed vide the writ petition.

28.Inter alia it was submitted by the Regional Labour Commissioner (Central) vide his affidavit dated 05.12.2014 submitted on behalf of the respondent nos.167-168 to the effect that the terms of the reference were not needed to be changed and what may be required to be changed to very limited extent is the list of workmen and such minor change in the list of workmen is well within the powers of the Labour Court to carry out by leading evidence.

29.The respondent nos.1-164 through the counter affidavit of the respondent no.51 Shri Ashok Chopra refuted the contentions of the petitioner submitting to the effect that the petition is barred by laches in as much as the impugned reference had been made on 10.06.2013 and

the petition had been filed after gap of year after completion of proceedings before the industrial adjudicator.

30.Inter alia the respondent nos.1-164 submitted that even M/s. Aroon Aviation Services (Pvt.) Ltd., one of the agencies of the petitioner management had not raised any dispute as regards the discrepancies in the list of workmen filed with the statement of claim. The respondent nos.1-164 thus submitted that there was duplication of names in the list of workmen filed with the statement of claim and with the permission of the ALC, the workmen had filed the correct list as under:

31.The respondent nos.1-164 thus submitted that errors in the original list were thus rectified in the amended list that was filed on 23.03.2012 with 163 names of workmen and since there was photocopying error in the list, the workmen were compelled to file another correct list and since the name of Harish Kumar had erroneously got deleted while preparing the list dated 23.03.2012, the fresh list had been filed including that name also thus totalling to 164 workmen and thus it was submitted by the respondent nos.1-164 that there was no illegality in the said list. Inter alia the respondent nos.1-164 also submitted that the notice dated 13.09.2011 referred to the name of Jagdish as having the first workman in the statement of claim and Shri Udaibir Singh was also party at S.No.92 and that in the reference dated 25.7.2013 the name of Udaibir Singh was mentioned only because Udaibir was the first signatory amongst the five workmen who were authorized to sign the statement of claim.32. To the counter affidavit of the respondent no.167-168, the petitioner submitted that the core issue remains that there was gross

discrepancy in the names in the various lists as consequence of which the authenticity of the claimants cannot be determined which was brought forth through the counter affidavit of the respondent no.166 M/s Oynx Management Services Pvt. Ltd. The petitioner also submitted that the factum of irregularities and inconsistency in the various list of workmen with varying stages showing names of workmen to be 167, 164, 162, 163, 161 itself indicated the irregularities and inconsistency in the reference and that the theory of implication is not permissible to contend that the Conciliation Officer had taken the amended list impliedly on the record and it was thus submitted on behalf of the petitioner that deliberate fraud had been perpetuated by the workmen and sought to place reliance on the verdict of the Hon’ble Supreme Court in Chengalvaraya Naidu (Dead) by LR’s Vs. Jagannath (Dead) by LR’s and Ors. AIR 1994 SC 853 to contend that fraud or concealment of facts by party at whatever stage vitiates the entire proceedings. Inter alia reliance was also placed on behalf of the petitioner on the verdict of Hon’ble Supreme Court in MCD Vs. State of Delhi & Anr. 2005 SCC (Crl.) 1322 to submit that where litigant withholds vital document or suppresses the material facts in order to get an advantage in the case, the case can be summarily thrown out at any stage and that thus the respondent nos.1-164 were not entitled to any relief. The petitioner has further submitted that discrepancies in the list of workmen are to the effect:

“CHANGE OF CAUSE TITLE

Notice from the RLC in conciliation proceedings dated 13.9.2011 bears the cause title Jagdish & Ors. Vs. BHEL &

Ors.. Annexure PI to the Statement of Claim bears list of Petitioners with SI. No. 1-16 Report of failure of conciliation dated 1.4.2013 (Page 93), Office Memorandum dated 10.6.2013 (Page 107) and notice and Statement of Claim in ID No. 94/2013 (page 110-124) reads as Udaibir Singh & 163 Ors. Vs. CMD BHEL & Ors. (Page 110).

b. In the first list attached with the conciliation proceedings, LIST-A, at Page 42 of the present petition, SI. No. 73 is missing. Thus, total number of claimants is 167 and not 168.

c. In LIST -A, there are various names that appear twice or even thrice. The names of such persons with the SI. No. is mentioned as under:

d. Since, there are Twelve names that repeat itself in LIST A, the effective number in the List remains as 167-12= 155.

e. In the application filed by the Claimants for addition/deletion of names of workers at Annexure P-4, no order allowing impleadment was passed. The application was never allowed. This has been admitted by the Respondent in the Counter Affidavit. Yet, the I.D. bears the names of such persons. Thus, the Reference is not maintainable in its present form.

f. Together with the application at Page 60, two amended lists were filed which is denoted as LIST-B. First list has SI. 1-163 and the Second list has SI.1-164 (Page 62-67) and typed list (Page 68-74).

g. As per the list for deletion at Page 60, the name of 13 persons was requested for deletion, but, effectively, it relates to 12 persons. The name Lalsa/Lalsha appears twice, as pointed out earlier. Thus, 155 - 12 = 143

h. As per the list requesting for addition, at Page 60, the name of 7 persons was requested for addition. Thus, the total number of claimants in the event of application for deletion/addition having been allowed would have been 143 + 7 = 150.

i. In the two amended lists referred at Page 62 to 67, Five additional names have been included, which was not even part of the amendment application.

At SI. No. 73 - Jagdish Chander

At SI. No. 75 - Nandlal At SI. No. 141- Chinta Man At SI. No. 163- Surender Pal Singh At SI. No. 164- Harish Kumar

j. The application seeking addition/deletion is dated 23.3.2012 (Page 60) and the rejoinder filed by Claimant is dated 22.8.2012. Even in the rejoinder, certain names have been altered. Admittedly, therefore, since no Order for addition/deletion was passed, an attempt was again made for manipulation of names. Together with this rejoinder, third list was filed, namely, LIST-C which contains SI.No.l- 161. There is again difference of names between LIST-A, & as follows:-

k. As per the application at Page 60, the prayer was for addition of the following names, which was never allowed, however, these names also appear in the I.D. 66. Vikram 157. Lalit Prasad 158. Ch. Mahinder Singh 159. Shashi Rawat 160. Devki Banola 161. Brham Pal 162. Vinod

l. The name Udaibir Singh at SI. No. 92 of LIST-A (Page 42), SI. No. 68 LIST-B (Page 66) has been named as the Petitioner

No.l in the ID and the name of Jagdish, i.e. the original Petitioner has been put at SI. No. 68 of ID.

m. Thus, there is difference of about 27-30 names in the present I.D from that of the List that was filed by the Claimants along with the Statement of Claim for Conciliation (page 41-44), which also is full of irregularities as pointed out above.”

33.Inter alia it has been submitted on behalf of the petitioner that there can be no amendment/rectification of the list before the CGIT because it is settled legal principle that neither the Labour Court nor the Tribunal can amend or alter the terms of reference in any manner and it was immaterial whether the amendment sought in the term of reference was big or small and it is also settled legal principle that no prejudice or bias can be caused to any party to the dispute in the name ofdispensation of justice and it was submitted by the petitioner that the list of incorrect workmen was being attempted to be thrusted upon the petitioner in any manner whatsoever without even verification of the list which was gross illegality which needs to be redressed. Inter alia the petitioner denied that any list or enclosure was sent with letter dated 10.06.2013 to it with the proposed terms of reference.

34.Vide order dated 09.10.2014, the proceedings before the CGIT had been stayed till further orders.

35.During the course of present proceedings, CM APPL.47013/2017 was filed on behalf of the respondent nos.1-164 under Section 151 of the CPC, 1908 seeking directions to the petitioner to pay the wages of respondents/workers which were withheld from 01.07.2017 and to continue to pay the same during the course of the pendency of the industrial dispute submitting to the effect that the matter being reserved

in the present petition, the respondents/workers have been unable to get any relief from the Labour Officer vide their proceedings dated 25.09.2017 and 16.11.2017. Inter alia it was submitted through the said application on behalf of the respondent nos.1-164 that during the last 40 years, the petitioner/management had changed its contractor and it had ensured that the incoming contractor did not terminate the services of the workmen and that clause had been inserted in the tender to the effect that the successful contractor would have to retain all existing contract workers under new job contracts but that in the tender floated on 19.04.2017 for Delhi and Noida offices, the clause pertaining to retention of the services of the respondent workmen had been maliciously deleted and the new contractor who had come to the work site w.e.f. 01.07.2017 did not allow the workers to join as they were asked to sign on set of papers including an application for temporary appointment addressed to the new contractor namely Orion Security Solutions Pvt. Ltd. which contained various clauses which were totally contrary to the present terms and conditions of their service and were not only adverse to the interest of the workmen but were also illegal. It was sought through the said clauses by new contractor that:

a.That the workmen are agreeable to get minimum wages only despite the fact that these workmen are working for over 3-4 decades continuously and are presently getting more than the minimum wages; despite the fact that these workmen are working for over 3-4 decades continuously and are presently getting more than the minimum wages;

b.That the workmen are asked to give an undertaking that their appointment is purely temporary for period of 6/3 months, despite the fact that these workmen are working for the last many decades for BHEL despite repeated change of contractor. appointment is purely temporary for period of 6/3 months, despite the fact that these workmen are working for the last many decades for BHEL despite repeated change of contractor.

36.Inter alia it was submitted on behalf of the respondent nos.1-164 that the workmen were not allowed to sign the said papers after making the necessary deletions therefrom and also after recording that they were signing without prejudice to their rights and contentions raised in different Court cases. It is also submitted by the said respondents that some of the workmen i.e. 10, 64, 73, 105, 108-118, 120-126 and 129 could not arrange for funds and were thus forced to agree for the purpose of their survival. The respondent nos.1-164 thus submitted that this action of the petitioner/management of changing the terms and conditions of services of the respondents/workers and by not allowing them to work and by making them work on holidays was illegal, malafide and motivated to frustrate the respondent/workers and thus sought the relief or direction to the BHEL to pay the wages of the workers allegedly withheld illegally w.e.f. 01.07.2017 and to continue to pay the same. The said application was vehemently opposed on behalf of the petitioner submitting to the effect that no such order can be passed thereon.37.On consideration of the rival submissions, though undoubtedly, it is apparent as brought forth through the counter affidavit/ counter reply filed on behalf of the respondents No. 167 and 168 i.e. the Union of India, through the Office of the Regional Labour Commissioner (Central) and the Secretary, Government of India, Ministry of Labour and Employment, respectively, as submitted through the counter affidavit of Mr. S.K.Das, Regional Labour Commissioner (Central), dated 5.12.2014 that there are some discrepancies in the list of workmen as submitted initially to the Conciliation Officer and the

subsequent list of 164 workmen with report on the FO(C) by the Conciliation Officer, coupled with the factum that it has been stated as indicated vide paragraph 9 of the said affidavit of the Regional Labour Commissioner (Central) vide paragraph 9 thereof that different lists of workmen consisting of names of 167/164/163/162/161workmen had been submitted, yet it cannot be overlooked that in the subsequent reference of the dispute to the Industrial Tribunal as had been proposed vide letter No. L-42011/55/2013- IR(DU) dated 10.6.2013 submitted as annexure P-10 to the writ petition also by the petitioner, the Government had put forth the annexure to the proposed reference and that the petitioner thus had liberty to raise the issue as raised in the present petition. The list of workmen with the proposed terms of reference having not been objected to by the petitioner at that stage as has rightly been contended by the respondent No. 167-168 is deemed to have been accepted by the petitioner.

38.In any event as brought forth through the counter affidavit submitted on behalf of the respondents No.1 to164 as well as submitted on their behalf by the respondent No. 51 Sh. Ashok Chopra as has already been adverted to elsewhere herein above, the final list before the Conciliation Officer had 164 names and the list attached to the reference also has 164 names. As regards the contention of the petitioner as per ground m of the rejoinder to the counter affidavit of the respondents No. 1 to 164 through paragraph 3 that there is difference of about 27 to 30 names in the present industrial dispute from that of the list that was filed by the claimants along with the statement of the claimant for conciliation, taking into account the factum that the

workmen had filed an application for amendment of the list of workmen on record though no formal order on the same was passed by the ALC, admittedly, the final reference made by the Government i.e. respondent No. 167 is on the basis of the amended list. As rightly contended on behalf of the respondents No. 167 and 168, the veracity of the claims of the respondents now arrayed to the writ petition as 1 to 164 as being those workmen in relation to whom the reference was made vide order dated 25.7.2013 of the Central Government under Section 10(1) (d) (2A) of the ID Act, 1947, relates to the reference made as per the schedule to the said order dated 25.7.2013 as to whether the action of the management of the BHEL in not regularizing the employment of Sh. Udaibir Singh and 163 others and engagement of the said workers through M/s Aroon Aviation Services Pvt. Ltd. And M/s Onyx Management Services Private Limited as per the annexure annexed to the said reference was legal and justified and to what relief the workmen are entitled has undoubtedly to be adjudicated by the Industrial Tribunal and all objections in relation to their claims as raised by the petitioners can be adjudicated upon by the Industrial Tribunal. The factum that the petitioner is aware of the list annexed as the annexure to the reference made by the Central Government, thus provides, ample opportunity to the petitioner to raise its contentions before the Industrial Tribunal in relation thereto.

39.Undoubtedly, in terms of Section 10 (4) of the Industrial Disputes Act 1947, it has been provided to the effect:

(4) Where in an order referring an industrial dispute to Labour Court, Tribunal or National Tribunal under this

section or in 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 case may be shall confine its adjudication to those points and matters incidental thereto.”

40.It is thus ordained that the Labour Court or the Tribunal or the National Tribunal, as the case may be, has to confine its adjudication to those points and matters incidental thereto in reference made of an Industrial dispute or in subsequent order where the appropriate Government has specified the points of dispute. The contention submitted on behalf of the petitioner that the varying lists submitted by the workmen before the Conciliation Officer taking into account the factum that the application for amendment had not been explicitly allowed vide written order by the ALC cannot be taken into account by the Industrial Tribunal, cannot be accepted, for ultimately the reference that has been made to the Industrial Tribunal is in relation to the annexures annexed to the reference made.

41.Apparently and essentially the Industrial Tribunal would thus confine itself to the reference made in relation to the list attached to the reference made and not beyond. Since it is the final list annexed with the reference, the amendments sought by the workmen before the Conciliation Officer have essentially to be deemed to have been allowed.

42.The other aspect that cannot be overlooked significantly is that it is not that the scope or ambit of the reference made to the Industrial Tribunal vide the order dated 25.7.2013 that is sought to be expanded

by the Central Government in any manner and rather all that has been done is that the proposed amended lists submitted by the workmen as being the list of 164 persons i.e. Sh. Udaibir Singh and 163 others as per the annexure attached to the reference is the dispute that has been referred to the CGIT-cum-Labour Court-II and the said details in view of the proposed reference having already been sent to the petitioner, the petitioner has not been taken by any surprise despite the contention of the petitioner that there was no annexure attached to the proposed office memorandum dated 10.6.2013 in as much as nothing prevented the petitioner from seeking that the annexure attached to the proposed reference be supplied.

43.Furthermore, in the facts and circumstances of the instant case where the reference was made on 20.7.2013 with the number of years that have elapsed therefrom, as rightly contended on behalf of the respondents No.1 to 164 they would be put to great prejudice if the aspect of determination of the list of workmen is now remanded back to the Conciliation Officer. In the facts and circumstances of the instant case thus it is the reference which has been made by the appropriate authority, i.e., the Central Government, vide order dated 25.7.2013 with the annexure annexed thereto that is the scope and ambit of the reference that has been made which is to be adjudicated upon by the CGIT-Labour Court-II and the list attached to the reference shall be deemed to be the list of workmen in relation to which the dispute has been referred to in the facts and circumstances of the instant peculiar case as also taking into

account the lapse of time since the date of the reference i.e. 25.7.2013.

44.As laid down by the Hon’ble Supreme Court in D.P.Maheshwari V. Delhi Administration & Ors; AIR 1984 SC 153, Cooper Engineering Ltd. v. P.P. Mundhe (1975) II LLJ 379 SC and in National Council for Cement and Building Materials v. State of Haryana & Ors.; (1996) II AD SC 594, pendency of the preliminary issues which take long years to settle with proceedings in the reference being stayed and thus the proceedings in the reference lying dormant for long time in relation to preliminary issue getting held up, - is an unhealthy and injudicious practice which delays the adjudication of the industrial disputes for the resolution of which an informal forum and simple procedure has been devised for by the Industrial Disputes Act, 1947, with an object to keep them away from the dilatory practices of the Civil Courts.

In view of the spirit of the judgments of the Hon’ble Supreme

Court in D.P. Maheshwari (Supra),Cooper Engineering Limited (Supra) and National Council for Cement and Building Material(Supra), it is held that the substantial reference made vide order dated 25.7.2013 by the Central Government is the aspect where the action of the management or the BHEL in not regularizing the employment of the workmen engaged through M/s Aroon Aviation Services Pvt. Ltd. And M/s Onyx Management Services Private Limited which workmen have been described through the annexure attached to the reference was legal and justified and as to what relief they were entitled to. As to whether the workmen in the list

attached to the reference are entitled to any such claim and whether they fall within the ambit of engagement through M/s Aroon Aviation Services Pvt. Ltd. And M/s Onyx Management Services Private Limited would be an aspect within the domain of the CGIT concerned.

46.In the facts and circumstances of the instant case, there is no ground for granting the prayers sought by the petitioner vide the writ petition No. 4119/2014 and consequently thus there is no ground for quashing the reference referred vide office memo dated 25.7.2013 No. L-42011/55/2013-IR(DU) as issued by the Under Secretary, Government of India, Ministry of Labour (Shram Mantralay) nor for quashing any consequential proceedings in ID No. 94/13 pending adjudication before the CGIT-cum-Labour Court-II. The petition and the accompanying applications filed with this petition are thus dismissed. The interim stay of proceedings before the CGIT-cum Labour Court-II directed vide order dated 9.10.2014 in relation to the ID No.94/13 is thus vacated.

47.The CGIT concerned is thus directed to proceed with the Industrial Dispute referred to it vide order dated 25.7.2013 and in the facts and circumstances of the instant case to deal with the dispute to be in relation to the workmen who are listed in the annexure to the said reference.

48.The parties to the present petition are thus directed to appear before the CGIT concerned in relation to ID No. 94/13 on 21.1.2019 at 2:30 p.m.

CM APPL.47013/2017

49.As regards the prayer made by the workmen vide CM No.47013/17 seeking direction to the petitioner to pay to the respondent’s workers i.e. respondent nos.1 to 164 wages allegedly withheld from July, 2017, the said determination also falls within the ambit of the Industrial Tribunal and the prayers in relation thereto as raised by the workmen through CM No.47013/17 filed before this Court may be raised before the CGIT, i.e., the appropriate forum in relation thereto, in view of the vacation of the stay of proceedings before the CGIT as directed herein above.

DECEMBER 29[th], 2018/vm/SV/mk

ANU MALHOTRA, J.