G.K. Misra, C.J.
1. It is unnecessary to refer to the facts in detail. The following three points were referred to the Industrial Tribunal for adjudication under Sections 10(1) and 12(5) of the Industrial Disputes Act. 1947.
1. Whether the retrenchment of the workmen by the authorities of the Hirakud Dam Project effected in pursuance of the decision taken by the Control Board, Hirakud Dam Project on the 19th December 1962, is valid and legal? If not what relief the workmen are entitled to?
2. Whether the workers who are proposed to be retrenched in pursuance of the decision of the Control Board. Hirakud Dam Project and are still continuing in employment are entitled to their original conditions of service?
3. Whether the workmen, who have completed three years of service or more should be confirmed in their respective posts?
The Tribunal decided the first two points in favour of the workmen but decided the third point in favour of the State of Orissa. The State of Orissa (petitioner) filed O. J. C. No. 58 of 1965 challenging the award on points 1 and 2. By a judgment of this Court (Annexure 2) dated 5th April, 1968, the adverse view of the Tribunal against the Petitioner on points 1 and 2 was quashed. The operative portion of the judgment runs thus:
'In the result, the application is allowed, but in the circumstances without costs. The award dated 27-1-1965 passed by the learned Tribunal is quashed and the Tribunal is directed to dispose of the reference in accordance with law taking into consideration the power of termination reserved by the Management under paragraph 11 of the C. P. W. D. Code'.
Against this judgment the workmen went up to the Supreme Court in Civil Appeal No. 1492 of 1968. The Supreme Court dismissed the appeal by its judgment (Annexure 3) dated 2-2-1971. The matter went back to the Industrial Tribunal who by its order (Annexure 4) dated 6-7-1971 held that there was an open remand and it could go into point No. 3. The writ application has been filed for issue of a writ of certiorari for quashing' the impugned order (Annexure 4).
2. The point in issue lies in a narrow compass. The question is whether by its order in Annexure 2 the High Court quashed the entire award or the award relating to points 1 and 2. Mr. Nanda for opposite party No. 1 very strenuously contended that the operative portion of the High Court's judgment is plain in its language that the entire award was quashed and the High Court now cannot sit in appeal over that portion of the judgment even though it might have been wrong. The contention though, Ingenious is wholly unsustainable.
3. It is well-settled that the operative portion of the order can be construed by us though we cannot go behind that order and replace it by a fresh order. While construing the operative portion of the order it is open to this Court to look into the entire judgment and the points of controversy. As would be apparent from the history of the case, the workmen (opposite Party No. 1) were satisfied with the decision of the Industrial Tribunal on point No. 3. No writ application was filed to quash the same. The State of Orissa only assailed points 1 and 2. Even while the judgment of the High Court was adverse to opposite party No. 1 they did not canvass before the Supreme Court that point No. 3 would be reagitated before the Industrial Tribunal. Thus point No. 3 was not the subject-matter of decision either before the High Court or before the Supreme Court It assumed a character of finality the moment the order of the Industrial Tribunal was passed.
Even before the Supreme Court the workmen could not have assailed point No. 3 as they had not assailed the same before the High Court.
4. Mr. Nanda places strong reliance on a Bench decision of the Patna High Court in AIR 1968 Pat 282 (Patna Electric Supply Mazdoor Union v. H. Sahai). More or less on similar facts their Lordships held that the remand in that case was an open one and whether right or wrong they could not go behind the earlier order. That case appears, however, to be slightly distinguishable on facts. Out of the six charges in that case the Tribunal found only charge No. 3 having been established. The High Court was of opinion that charge No. 3 was not sustainable. If the correctness of the finding on charges 1 and 2, and 4 to 6 would not have been canvassed the High Court would have quashed the entire award. Without doing so the case was remanded and that must obviously be to examine the correctness and propriety of charges 1 and 2, and 4 to 6. This distinguishing feature did weigh with their Lordships in arriving at the conclusion that the remand was an open one.
5. There cannot be any dispute that the High Court in exercise of its power under Articles 226 and 227 of the Constitution can look into the correctness of a finding in an award even though the parties might not have moved the Court but the distinction between, having jurisdiction and exercising the same cannot be lost sight of. In the facts and circumstances of this case conclusion is Irresistible that point No. 3 was never assailed at any stage either before the High Court or before the Supreme Court In such context the operative portion of the order in paragraph 15 of Annexure 2 must be construed as meaning that the award was quashed with reference to points 1 and 2 as mentioned in para. 5 of that judgment.
6. In the result, the writ application is allowed. A writ of certiorari be issued quashing the impugned order (Annexure 4). The Tribunal would now proceed with points 1 and 2 only. In the circumstances, parties will bear their own costs.
7. I agree.