N.C. Sharma, J.
1. This is a writ petition under Article 226 of the Constitution of India by the workmen represented by CIMMCO Wagon Factory Mazdoor Sangh, praying for the issue of a writ of certiorari queshing the order'passed by the Industrial Tribunal, Jaipur on 17th June, 1980 and for a direction that the workmen working on 350 posts left vacant by their incumbents were entitled for permanent status from the date of their working on the posts. Facts leading to the file of this petition are that the CIMMCO Wagon Factory, Bharatpur manufactured four wheeler wagons for railways and the factory is situated at Bharatupur. The petitioner is a Union ragietered under the Indian Trade Union Act. The Union was claiming permanent appointments and benefits to workmen and raised an industrial dispute. The State Government referred the following industrial disputes between the management of CIMMCO Wagon Factory, Bharatpur and their workmen represented by the petitioner-Union. The disputes referred to were as follows:
(1) Whether the practice of the management of CIMMCO Wagon Factory of employing casual workers from time to time and not making them permanent and putting them to artificial breaks again and again so that they may not remain in continuous employment in 240 days in a year was valid? If not, to what relief the workmen were entitled to.
(2) Whether in making all other workmen permanent by the management in place of 350 workmen who had left, employment of CIMMCO Wagon Factory and further despite their performing the same work, the nonpayment of pay-scale of skilled workmen to them was proper and legal? If not, to what relief the workmen were entitled to.
2. It. may be mentioned that the Secretary of CIMMCO Wagon Factory Shramik Sangh, Bharatpur, also applied for being impleaded as a parry to the dispute and the Judge Industrial Tribunal allowed him to do so.
3. The statement of claim submitted by the petitioner Union before the Industrial Tribunal was that there were several posts and other kind of works in CIMMCO Wagon Factory which were of permanent nature and character. A number of workmen whose names have been mentioned in Schedule-Ka filed alongwith the statement of claim had left the employment and persons who were appointed in their place ought to be confirmed and they should be given regular pay. It was also pleaded that workmen whose names are mentioned in Schedule-'Kha' and 'Ga' filed alongwith the statement of claim were removed before they could complete 240 days of service and in their place other persons were employed as casual workmen. According to the petitioner-Union persons mentioned is Schedule 'Kha' and 'Ga' should have been kept on permanent basis. The total number of workmen who had left their jobs with the management was stated to be 350 and non-confirming of the workmen employed in their place, it was alleged, amounted to unfair labour practice. The course of conduct adopted to unfair labour practice. The course of conduct adopted by the management of employing casxial workmen and causing artificial breaks so that they may not be able to complete continuous service for a period of one year as explained under Section 5-8 of the Industrial Disputes Act, 1947 and not employing them continuously also amounted to unfair labour practice. The Union, therefore, prayed that the workmen named in Schedule 'Ka' may< be declared to be confirmed and may be granted the regular grade from the date they were employed. It was further prayed that the workmen named In Schedule 'Kha' and 'Ga' may be directed to be taken back In employment and they may also be confirmed and may be paid back wages. The statement of claim was also submitted by the CIMMCO Shramik Sangh.
4. From the side of the management, it was pleaded that they manufactured wagons on receiving orders from the Railway Board. The number of wagons which were manufactured did not remain the same and their number varied in accordance with the orders received by the management. Sometimes railway materials and other components have also to be imported from foreign countries. The management has, there fore, to keep some workmen as casual for two or three months. The workmen also accept their employment for two and three months land on the expire of the period, their employment automatically terminates. The Management further stated that the variation of the workmen employed is there and definitely they are confirmed and suitable pay and grade are given in accordance with his efficiency and the work base.
5. The Tribunal recorded the evidence adduced by both the sides and gave its Award Annex. 11 oh 17th June, 1980. Dealing with the first dispute referred to It, the Tribunal stated that out of the 5 witnesses examined by the petitioners, one witness Ramdayal was the only person whose name found place in list-Ga filed along with the statement of claim and, therefore, the statement of other witnesses could not be given any weight. The Tribunal made reference to the Award of Ranawat Committee which stated that the strength of the workman has been fixed by Ranawat Committee of a figure of 2000 workmen, out of which 591 were provided as unskilled workmen. It was further provided by the Ranawat Committee that the strength of the workmen of 2000 has been fixed on the basis of 2200 four-wheeler wagons and if there would be any additional burden of 4000 wagons a strength of 300 casual and 230 sami-skilled workmen can be employed by the Company In addition to the aforesaid figure of 2000 purely on temporary basis. The Tribunal also referred to an earlier settlement entered into between the management and the petitioner-Sangh on 24 the December, 1965 that the casual workmen who was no work on 1st January, 1964, if they had completed 4 terms of three months service with the break of 1 to 20 days, they would be termed on continuous service of the Company and this would be also followed in future. On the above basis, the Tribunal proceeded to observe that it was necessary for the petitioner-Sangh to prove that the workman was degrade In the manner described In the dispute, and that they were workmen employed on casual basis within the strength of 2000 workmen originally fixed by the Award of the Ranawat Committee. These matters were held to be not proved by the petitioner.
6. The Tribunal also referred to the practice in the management that when a casual workman is employed he is to fill in a form. The contention on behalf of the petitioner Sangh that the workman only put their signatures and thumb mark on the form was not found to be correct, with regard to the workmen mentioned in Schedule-'Kha' and 'Ga', it was held that this was also not proved that our of the workmen named in the said list any workmen had completed the term of service as provided in the settlement dated 24th December, 1965 and that such workman had been denied the benefit of continuous service. To reproduce the observations of the Tribunal:
In the absence of that and in the presence of above facts and circumstances given in the settlement in the Award, it cannot be held that the workmen employed on casual basis and later removed by the company on the expiry of the term of appointment, such a workman had been employed in the said manner in order to deprive him of the benefit of regular service.
7. It appears that after the dispute was referred to the Industrial Tribunal, certain vacancies were filled in on the basis of the Fitment Committee Award dated 12th November, 1974. The Tribunal referred to that Award and observed that on 1st July, 1973 there were only 219 vacancies on the posts of SkilledA, Skilled-B and Skilled-C which were filled in by mutual consent of the Sangh and the Company leaving a balance of 54 posts. These 54 posts were filled in after considering the objections invited by the Fitment Committee and with the consent of the parties. Out of these 54 posts, 14 posts of Seki-skilled were vacant. Thus only unskilled or casual workmen, who were working were likely to be made permanent on these 14 posts. The Tribunal also observed that the strength of unskilled workmen was 590 and the petitioner could not prove from its evidence that the company has resorted to a practice of employing casual workmen in the manner alleged in which there is dispute of these 590 posts initially fixed by the Award for unskilled workmen.
8. Before proceeding further, I may refer to certain decisions relied upon by the learned Counsel for the petitioner. The first decision relied upon is in the case of Everyday Flash Light Co. v. Labor Court Bareilly and Ors. reported in (1961) Vs. 2, If & LR 598. In that case, it was laid down that unfair labour practice can arise even out of a single transaction and Labour court has power to give a finding even on the basis of one act of employer. It was stated that an employer who lays off workeres with the object of depriving them of their legitimate dues or makes his workmen sign so temporary contracts and conpels them to work for years on permanent jobs with the object of depriving them of the status and privileges of permanent workers is guilty of unfair labour practice. In this case, the terms of employment were unfair and the employee was placed on probation which could be extended indefinitely at the will of the employer. In other words, it gave the employer the right never to make him permanent ever though he was doing a job of a permanent nature. A condition of employment which is designed to invest the employer with arbitrary power to keep the workman at his mercy as regards his chance of being made permanent and is eventually used to deprive him of the chance is unfair labour practice.
9. Reference was next made to the decision in Bank of Gujarat Ltd. v. Presiding Officer, Industrial Tribunal, Madras, reported in (1976) Val. 32 IF & LR 376. In that case the Bank resorted to the method of appointing apprentices with a view to get cheap labour. The Tribunal gave the finding that the recruitment of the apprentices clericals was with a view to get cheap labour amounting to unfair labour practice. The High Court upheld the Award. It was observed in this case that if the increase in work was fairly permanent and was accepted to continue for a long time the nature for appointment could be considered only on a permanent basis and no apprentices could be appointed in such vacancies.
10. Last decision referred to is in the case of Ramchandra Sharma v. State of Rqjasthan and Anr. reported in 1989 (2) RLR 302. In that case it was urged that generally the casual posts are unforeseen posts and come into existence by chance looking to the nature of the temporary need. Regular posts are those posts which are not casual and finds place generally every year.
11. It may be mentioned that although while deciding the two points, the Tribunal reproduced the two points in the Award in a form as if the burden was on the petitioner to prove that the management had resorted to the practice of employing casual labour and thereafter terminating their services by artificial breaks and whether 350 workmen had left the services of the management and workmen employed in their place were not made permanent and were not paid regular salary, but if we go through the two disputes referred to by the State Government to the Industrial Tribunal, it would be very clear that the language and terminology of the two disputes referred was in quite different terms. The first dispute referred assumed in itself that there was practice in the management of CIMMCO Wagon Factory of keeping casual workers from time to time and after giving artificial breaks of employing them again, so that they may not complete continuous employment for 240 days in a year. All this was assumed to be correct in the dispute referred. What was then referred to was whether this practice was valid? The same was the position with respect to the second dispute. It was assumed that 350 workmen had left the employment of CIMMCO Wagon Factory and in then place other persons were appointed and they performed the same work, yet they were not given the pay scale of the skilled workmen. The reference of this second dispute also assumed all these facts as correct. The only thing referred to was whether this was proper or legal. I am of the view that as a matter of fact, the reference made by the appropriate Government was not correct. In its reference the appropriate Government should have also empowered the Tribunal to examine the question of fact whether the CIMMCO Wagon Factory followed the practice as assumed in first dispute referred and whether the facts mentioned in the second dispute happened as a fact. The Industrial dispute, no doubt, exists between the petitioner-Union and the management on question of facts as well as of law and, therefore, the question of fact must also have been referred to for adjudication. There is error apparent on the fact of record that without a proper reference on the lines abovementioned being made by the appropriate Government, the Tribunal of its own recast the points for decision and gave findings that the petitioner-Sangh failed to discharge the factual aspects of the case.
12. This makes the Award even without jurisdiction because it goes against the reference where all factual aspects were assumed to be correct and only validity and legality were referred for adjudication.
13. In the above circumstances, I quash the reference made by the appropriate Government and re-frame the disputes between the petitioner-Sangh and the respondents. The re-formulated industrial disputes will be as under:
(1) Whether the management of CIMMCO Wagon Factory, Bharatpur follows the practice of keeping casual workers from time to time and does not make them permanent and gives artificial breaks in their employment again and again so that the casual workers may not be able to remain in continuous employment for one year as that that expression has been defined in the Industrial Disputes Act? If so, does this practice of the management has legal force and is valid? In case this is decided in favour of the petitioner-Sangh, to what relief the workmen of the said Factory are entitled to?
(2) Whether 350 workmen had left the employment of CIMMCO Wagon Factory as alleged by the petitioner and the management appointed other workmen in their place and despite their performing the same work, they were not paid pay-scale of skilled worker? Does this amount an unfair labour practice and if so to what relief the workmen are entitled to?
14. I direct the State of Rajasthan in Labour and Employment Department to refer the above two disputes to the industrial Tribunal for adjudication and for giving its Award afresh in accordance with the facts that may be proved and the law applicable. The Award given by the Industrial Tribunal on 16th August, 1980 (Annex. 11) its hereby quashed.