Allahabad High Court
Devendra Kumar And Another vs Presiding Officer And 2 Others on 18 January, 2019
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- WRIT - C No. - 65951 of 2015 Petitioner :- Devendra Kumar & Another Respondent :- Presiding Officer & 2 Others Counsel for Petitioner :- Jamal Ahmad Khan Counsel for Respondent :- C.S.C.,Atul Mehra Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Jamal Ahmad Khan, learned counsel for the petitioner and Sri Atul Mehra, learned counsel for the respondent.
2. The present writ petition is directed against the award dated 28.1.2015 framed by the Labour Court, Ghaziabad in adjudication case no. 71 of 2013. By that award, the Labour Court has declared, the State Government did not have the power to amend the reference already made and/or to add parties to the reference already made.
3. Briefly, by order dated 28.1.2015, conciliation proceedings arose in C.B. Case no. 1 of 2005 with respect to the following 37 workmen:
1. Sundar Lal Singh, 2. Jeetendra Bhati, 3. Phool Singh, 4. Jaswant Singh, 4. Santram, 6. Shiv Kumar Chauhan, 7. Sube Singh, 8. Subhash, 9. Devendra Kumar, 10. Ashok Kumar, 11. Bhupendra, 12. Ram Kumar, 13. Brahma Singh, 14. Rishipal, 15. Ram Jeet, 16. Manoj Tyagi, 17. Haripal, 18. Pramod, 19. Brijmohan, 20. Vinod Nagar, 21. Abhimanyu Kumar, 22. Bharat Singh, 23. Rambeer, 24. Sukhbeer Singh, 25. Vijay Singh, 26. Vikram, 27. Yash Kumar, 28. Vijay Kumar, 29. Aadesh, 30. Ishwar Singh Varma, 31. Naresh, 32. Ajay Pal Singh, 33. Gaurav Tyagi, 34. Hari Raj, 35. Ajay Pal 36. Kartar Singh, 37. Ajeet Bhati.
4. The dispute essentially was with respect to regularization and consequential benefits claimed by the aforesaid 37 workmen (hereinafter referred to as the Workmen). That cause was espoused before the conciliation officer by the Yamaha Motor Employees Union, Ghaziabad (hereinafter referred to as the Union), under Clause 2 of the U.P. Conciliation Order, (hereinafter referred to as the Order), issued under Section 3(d) of the U.P. Industrial Disputes Act, 1947 (hereinafter to as the Act).
5. Admittedly, those conciliation proceedings failed. Again, at the instance of the Union, vide order dated 20.02.2004, the following reference was made by the State Government under Section 4K of the Act:
"क्या सेवायोजकों द्वारा संलग्न सूची में उल्लेखित 37 श्रमिकों को स्थायी न किया जाना एवं स्थायी श्रमिकों की भांति वेतन भत्ते अन्य सुविधाओं न दिया जाना उचित तथा / अथवा वैधानिक है ? यदि नहीं तो सम्बंधित श्रमिकगण क्या हितलाभ / उपशम पाने के अधिकारी है एवं अन्य किन विवरणों सहित |"
6. The aforesaid reference was registered as Adjudication Case no. 71 of 2013 before the Labour Court, Ghaziabad between the parties described in the reference order as "M/s India Yamaha Motor India Pvt. Ltd., A-3, Industrial Area, NOIDA, Dadri Road; Surajpur, Gautambudh Nagar" being the Employer and; Yamaha Motor Employees Union through Shri. V.K. Tyagi, Advocate, Chamber No. 167, Civil Court, Ghaziabad as the Union espousing the cause of the workmen.
7. The Employer claims, during the pendency of the aforesaid proceedings, Rajendra Kumar Sharma, describing himself to be the then President of the Union, filed an application in the pending adjudication case supported by his affidavit, praying to dismiss that case, stating that the Union had not espoused the cause and the signatures (of its office bearers), had been forged on the record of the conciliation proceedings. Therefore, the adjudication proceedings had been wrongly instituted and the Union had no concern with the dispute as referred for adjudication. It is further stated in the affidavit that the aforesaid 37 workmen were not members of that Union.
8. In such circumstances, the Workmen claimed to have conducted a meeting and elected five amongst themselves to represent/contest the aforesaid adjudication case. Thus, Sri Devendra Kumar, Sri Sundar Lal Singh, Sri Phool Singh, Sri Vikram and Sri Brahma Singh (hereinafter referred to as the Representative Workmen') were chosen to represent the Workmen. Thereafter, Representative Workmen filed an application before the State Government to be heard in the pending adjudication case. It was allowed by the order dated 20.4.2011 passed by the State Government. The State Government added the Representative Workmen "Sri Devendra Kumar, Sri Sundar Lal Singh, Sri Phool Singh, Sri Vikram, and Sri Brahma Singh through Sri N.K.Tyagi, Advocate, Chamber no. 752, Civil Court, Ghaziabad" as workmen party no. 2 in the pending adjudication case.
9. While no direct challenge was raised to the order dated 20.04.2011 by the Employer, in a writ proceeding, the Representative Workmen filed an additional written statement in the pending adjudication case whereupon objections were filed by the Employer. Thereafter, the Employer filed an amended written statement and also it raised an objection that the reference order dated 20.02.2004 could not have been amended and the adjudication proceedings must fall upon the Union disowning the reference as made.
10. It is in such circumstances that the impugned award was framed by the Labour Court. The Labour Court framed two issues to the effect (i) whether the dispute had been validly espoused by the Union and (ii) whether the Representative Workmen were legally chosen representatives and whether they had been validly made workmen party no. 2 in the pre-existing reference. On the first issue it opined, the dispute had not been espoused by the Union and therefore it had not been validly raised. On the second issue, applying the decision of this Court in Munni Lal and Ors. Vs. State of U.P. and Ors., (2014) 142 FLR 40, it was held, the Representative Workmen had not been validly made a party and the State Government could not have amended the array of parties to the reference. It has further observed, the State Government could have made an additional reference but not amend the existing reference. Upon that reasoning, the reference made was answered against the Workmen.
11. Learned counsel for the petitioner submits, there is a clear difference between the amendment of a reference pending adjudication and change in the description of the person, who may represent a party to the dispute. A reference is claimed to comprise the narration or description of the dispute or the rights under contest. That being the terms of reference, as to the amendment thereto, it has been first conceded, there does not exist any power with the State Government or the Tribunal/Labour Court to amend the terms of reference.
12. Insofar as the present case is concerned, learned counsel for the petitioner submits, the terms of reference as originally drawn in the reference order dated 20.02.2004 and the amendment order dated 20.4.2011 are one and the same, as have been extracted above. No change was made thereto. Therefore, it has been submitted the scope of the adjudication to be made by the Labour Court remained the same, both before and after the order dated 20.4.2011.
13. Upon order dated 20.04.2011, neither any new or fresh or other rights were required to be adjudicated nor have the persons between whom such rights were in contest, been changed, altered or added. Therefore, there was no amendment made to the reference. The change made did not require either a fresh pleading to be made or evidence to be led or issue to be framed or rights to be dealt with by the Labour Court. Hence the change made was not an amendment to the reference, but only a change of representative of the Workmen.
14. The change made was to add the names of the persons who may represent the Workmen. It has been submitted, the change in the same did not amount to an amendment of the reference. It was only a right to represent the Workmen in a dispute that had already been referred for adjudication. In view of the fact the Union abandoned those Workmen, that change became necessary, in the interest of justice.
15. As to the person who may represent the Workmen, the right to represent the Workmen in conciliation proceedings arises under Clause 2 of the U.P. Conciliation Order (hereinafter referred to as the Order). It reads:
"2. Reference of disputes to Conciliation Board - (1) An application for the settlement of an industrial dispute may be made before the Conciliation Officer of the area concerned in Form I with five spare copies thereof-
(i) in the case of a workman-
(a) subject to the provisions of sub-section (3) of S.6-1, by an officer of a union of which he is a member, or by an officer of a Federation of Unions to which such union is affiliated; or
(b) where no union of workmen exists by five representatives of the workmen employed in a concern or industry, duly elected in this behalf by a majority of the workmen employed in that concern or industry at a meeting held for the purpose, or by all workmen, employed in the concern if their number is not more than five ;
[Provided that where no union of workmen exists and the application is made by representatives of the workmen duly elected as aforesaid, a copy of the resolution adopted at a meeting held for the purpose shall be attached to the application in form I, and ]A
(ii) in the case of an employer-
(a) by the employer himself ; or
(b) by an officer of a union of association of employers of which the employer is a member ; or
(c) by an officer of a Federation of Unions or associations of employers, to which the union or association referred to in clause (b) above is affiliated; or
(d) where the employer is an incorporated company or other body corporate by the agent, manager or other principal officer of the corporation :
Provided that no such application shall ordinarily be entertained by the Conciliation Officer if it is in respect of a dispute arising more than six months previous to the date of the application, or if the dispute arising more than six months previous to the date of the application, or if the dispute has already been the subject of proceedings before a Conciliation Board, a Labour Court or a Tribunal [or an Arbitrator)o and finally settled [therein]d Provided further that, notwithstanding anything contained in the foregoing proviso, the Conciliation Officer may entertain an application, if he is satisfied that the applicant had sufficient cause for not making it earlier :
Provided also that, notwithstanding anything hereinbefore contained, the Labour Commissioner (Industrial Relations)b or the State Government may refer a dispute to any Conciliation Officer for settlement by a Conciliation Board.
(2) Where a Conciliation Officer refuses to entertain an application, he shall record in writing his reasons for such refusal and communicate them to the applicant who may, within one month of the receipt thereof, represent against such order to the Labour Commissioner at Kanpur b[or the Deputy Labour Commissioner (Industrial Relations)] whose decision in the matter shall be final."
16. Then referring to Rule 40 of the Rules framed under the Act, it has been submitted it is wholly permissible and purely at the discretion of the the Conciliation Board or the Labour Court or the Tribunal, as the case may be, to allow a workman to be represented either by an Officer of the Union of which he is a member or an Officer of the Federation of the Union (of which he is a Member), is affiliated, or in absence of a Union, by any representative nominated by the Workmen who are entitled to make an application before the Conciliation Board under any order issued by the Government. Inasmuch as under Clause-2 of the Order. It was therefore at the discretion of the Industrial Tribunal to allow the Workmen to be represented by the Representative Workmen. There was no illegality or ineligibility attached to the Representative Workmen being permitted to represent the Workmen. Therefore, by allowing such representation to be made, the State Government had not amended the reference, to any extent.
17. It has also been submitted, the change in the description of the person who may represent the Workmen or the employer may become necessary on account of varying circumstances, ranging from a dissolution of the Union, an expulsion of a member, death etc. However, none of these circumstances may have a decisive impact on the existence or continuance of the proceedings for adjudication arising from a reference made with respect to an industrial dispute. In the interest of justice, the proceedings for adjudication may not be hampered, obstructed or derailed by such change becoming necessary or expedient, in varying circumstances.
18. In this regard, reliance has been placed on two decision of the Supreme Court in the case of Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orissa, AIR (1964) SC 1746, wherein the addition of a new person as an employer party in pending reference, was negated. The Supreme Court, however, as to the powers vested in the Industrial Tribunal under section 18(3)(b) of the Industrial Disputes Act, 1947, it was held as below:-
"12. Reverting then to the question as to the effect of the power which is implied in Section 18(3)(b), it is clear that this power cannot be exercised by the Tribunal so as to enlarge materially the scope of the reference itself, because basically the jurisdiction of the Tribunal to deal with an industrial dispute is derived solely from the order of reference passed by the appropriate Government under Section 10(1). What the Tribunal can consider in addition to the disputes specified in the order of reference, are only matters incidental to the said disputes; and that naturally suggests certain obvious limitations on the implied power of the Tribunal to add parties to the reference before it, purporting to exercise its implied power under Section 18(3)(b). If it appears to the Tribunal that a party to the industrial dispute named in the order of reference does not completely or adequately represent the interest either on the side of the employer, or on the side of the employee, it may direct that other persons should be joined who would be necessary to represent such interest. If the employer named in a reference does not fully represent the interests of the employer as such, other persons who are interested in the undertaking of the employer may be joined. Similarly, if the unions specified in the reference do not represent all the employees of the undertaking, it may be open to the Tribunal to add such other unions as it may deem necessary. The test always must be, is the addition of the party necessary to make the adjudication itself effective and enforceable? In other words, the test may well be would the non-joinder of the party make the arbitration proceedings ineffective and unenforceable? It is in the light of this test that the implied power of the Tribunal to add parties must be held to be limited.
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15. In Anil Kumar Upadhaya v. P.K. Sarkar a learned Single Judge of the Calcutta High Court has accepted the same view. In that case, the Trustees of the Provident Fund in question who had not been impleaded originally to the reference were summoned by the Tribunal and the Court held that in the absence of the Trustees, the award would have become nugatory. It would be noticed that in all these decisions, the implied power of the Tribunal to summon additional parties in the reference proceedings is confined only to cases where such addition appeared to be necessary for making the reference complete and the award effective and enforceable. Such a power cannot be exercised to extend the scope of the reference and to bring in matters which are not the subject-matter of the reference and which are not incidental to the dispute which has been referred". (emphasis supplied)
19. Also, reference was made to another decision of the Supreme Court in India Yamaha Motor Pvt. Ltd. Vs. Dharam Singh and Anr., (2014) 143 FLR 488, wherein the workers union that had espoused the cost had ceased to be a recognized union. In that circumstance, taking resort to Rule 40 of the Rules, the affected Workmen elected their five representative workmen who in turn were recognized by the Tribunal before whom the industrial dispute espoused by the erstwhile union was pending. The order of the Tribunal granting recognition to the representative workmen was directly assailed by the employer in a writ petition. The High Court left open to the Workmen to be represented by their authorized representatives, to pursue the reference to its logical end. The challenge raised to that order was considered by the Supreme Court in the aforesaid judgment. The appeals were dismissed with costs.
20. It is thus submitted, applying the same principle, the reference could not have been decided against the Workmen on account of change in the description of the person/s representing the Workmen so long as the dispute that had been referred for adjudication continued to exist.
21. It has also been submitted, the Labour Court being a Court of referred jurisdiction, it could not have adjudged the validity of the reference order itself. The only course open to the employer would have been to challenge the order dated 20.04.2011 passed by the State Government or the award that may have arisen, had the Labour Court decided the dispute on merits.
22. In reply, Sri Atul Mehra, learned counsel for the respondent-employer submits that the Union alone could have espoused the cause of 37 workmen and once the Union stated that the Workmen in question were not its members and it had not espoused their cause, the only course remaining with the Workmen was to seek an additional reference with respect to their individual disputes but the existing reference could not have been continued by adding a party to the same. The amendment made was rightly disapproved by the Labour Court. Also, it has been submitted that the Union having disowned the conciliation proceedings, the further reference made by the State Government was itself non-est, since the dispute had not been espoused by the Union.
23. Second, it has been submitted once the Union filed the application seeking to withdraw from the adjudication case, the reference fell on its own and did not even require any order to be passed. Nothing survived for adjudication upon that application filed by the Union. Therefore, the amendment sought and made by the State Government was of no consequence.
24. Third, it has been submitted, in the face of an existing Union in the respondent-establishment, there remained no room for application of Rule 40 of the Rules. Therefore, even otherwise, there was no room for the Representative Workmen to be recognized by the Labour Court.
25. Reliance has also been placed on the decision of this Court in the case of Munni Lal and Ors. Vs. State of U.P. and Ors. (supra) to submit that there was no room for amendment of the reference order. Then, reliance has been placed on the decision of the Calcutta High Court in Kesoram Cotton Mills Ltd., Vs. Second Labour Court and Ors., AIR (1963) Calcutta 348 to submit, no change is permissible in the reference order once made. Also, reliance has been placed on the decision of the Supreme Court in the case of State of Bihar Vs. D.N. Ganguly: Bata Shoe Company Private Limited, AIR (1958) SC 1018, to submit that the appropriate government had no power to cancel or supersede the reference.
26. Having heard learned counsel for the parties and having gone through the award passed by the Labour Court as also the pleading and the documents annexed to the affidavits filed in the present writ petition, in the first place, any reference made under Section 4K of the Act contains the description of the industrial dispute to be adjudicated by the Labour Court or the Industrial Tribunal. It is in that context that the Supreme Court in Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orissa (supra) first observed thus:
"7. In dealing with this question, it is necessary to bear in mind one essential fact, and that is that the Industrial Tribunal is a Tribunal of limited jurisdiction. Its jurisdiction is to try an industrial dispute referred to it for its adjudication by the appropriate Government by an order of reference passed under Section 10. It is not open to the Tribunal to travel materially beyond the terms of reference, for it is well-settled that the terms of reference determine the scope of its power and jurisdiction from case to case". (emphasis supplied)
27. In the present case, the reference made was specific with respect to the rights of the 37 workmen named therein. The exact reference made has been extracted above. It spells out in exact terms, the rights in dispute between the 37 workmen on one side and the employer on the other. Even upon the order dated 20.04.2011 being passed, the terms of that reference remained unaltered. Neither any change was made to the name description of the Workmen whose rights were to be adjudicated nor the nature and extent of the rights in dispute was changed/altered.
28. Thus, the terms of reference or the scope of reference remained the same both before and after the order dated 20.04.2011 being passed. Those terms had not been amended or varied. Though the terms of reference were not amended or superseded by the State Government, it remains to be examined whether the addition of a party in such pending adjudication proceedings involved an amendment of the reference or any other bar under the law.
29. Also, the power to make an additional reference has been found to be distinct and different from the power to allow a person to represent in the proceedings for adjudication of any reference. In case a particular undertaking or group of undertakings were to be included in a pending adjudication, such events may require a fresh reference as enunciated by the Supreme Court in the case of Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orissa (supra). However, a party necessary to make the reference complete and the adjudication award effective and enforceable, may be summoned by the Labour Court/Tribunal under its implied powers without such fresh reference being necessary.
30. In the instant case, the State Government had made the reference and the same had been registered as an adjudication case by the Labour Court. In National Engineering Industries Limited Vs. State of Rajasthan and Ors., (2000) 1 SCC 371, it was held:
"27. The Industrial Tribunal is the creation of a statute and it gets jurisdiction on the basis of reference. It cannot go into the question on validity of the reference........................." (emphasis supplied)
31. Once the proceedings had thus arisen before the Labour Court, that court as a court of referred jurisdiction could not have ruled on the validity of the reference made to it. It also could not have refused to answer the reference made on merits. Over and above, the respondent-employer had never set up a challenge to the original reference order dated 20.04.2011 by filing a proper writ petition. Therefore, the Labour Court could not have permitted the respondent-employer to raise that objection before it and in any case, that objection could not have been entertained or allowed. In absence of challenge raised by the respondent-employer, to the amended reference (in a writ proceeding), the Labour Court remained obliged to decide the reference made (to it), on merits only.
32. Also, on merits of the validity of the espousal of the industrial dispute, while it is true, no industrial dispute may be referred as an industrial dispute unless it fulfills the pre-condition of community of interest but for such condition to be fulfilled, it is not necessary that the individual workman whose grievance is contained in the reference order must be shown to be a member of the Union espousing his cause. What is required is the Union espousing the cause must have embraced that cause, as it's own, on the date of reference being made but even that requirement is not required to be met when the cause of action may have arisen. In this regard, the Supreme Court in Western India Match Co. Ltd. Vs. Western India Match Co. Workers Union and Ors., (1970) 1 SCC 225, held as below:
"The only condition for an individual dispute turning into an industrial dispute, as laid down in the case of Dimakuchi Tea Estate [(1958) SCR 1156] is the necessity of a community of interest and not whether the concerned workman was or was not a member of the union at the time of his dismissal. The parties to the reference being the employer and his employees, the test must necessarily be whether the dispute referred to adjudication is one in which the workmen or a substantial section of them have a direct and substantial interest even though such a dispute relates to a single workman. It must follow that the existence of such an interest, evidenced by the espousal by them of the cause, must be at the date when the reference is made and not necessarily at the date when the cause occurs, otherwise, as aforesaid, in some cases a dispute which was originally an individual one cannot become an industrial dispute. Further, the community of interest does not depend on whether the concerned workman was a member or not at the date when the cause occurred, for, without his being a member the dispute may be such that other workmen by having a common interest therein would be justified in taking up the dispute as their own and espousing it."
(emphasis supplied)
33. So also, once a valid reference arises, it would be of no consequence, if subsequent to the reference being made, the Union withdraws from the same. Upon the reference having arisen, the jurisdiction of the Labour Court gets created. Then it remains for the Labour Court to adjudicate the industrial dispute refered to it. At that stage and for that purpose, it would be incidental and not jurisdictional as to who represents the matter before the Labour Court for either of the parties. Merely because the Union that espoused such an industrial dispute may have withdrawn from that dispute, it would have no bearing on the continuance of exercise of jurisdiction by the Labour Court viz a viz the reference already before it. The Supreme Court in Binny Ltd. Vs. Workmen, (1972) 3 SCC 806, has held as below:
"We do not however see any reason to hold that the dispute which had already been referred by Government should cease to be one in respect of a portion of it merely because the Union did not choose to represent the case of a particular dismissed employee. If there was an industrial dispute at the time of reference it would not cease to be one merely because the claim of some of the dismissed employees was settled by mutual agreement."
(emphasis supplied)
34. Then, in Ram Prasad Vishwakarma Vs. The Chairman, Industrial Tribunal, Patna and Ors., AIR (1961) SC 857, the Supreme Court has held as below:
"The necessary corollary to this is that the individual workman is at no stage a party to the industrial dispute independently of the Union. The Union or those workmen who have by their sponsoring turned individual dispute into an industrial dispute, can therefore claim to have a say in the conduct of the proceedings before the Tribunal.
It is not unreasonable to think that Section 36 of the Industrial Disputes Act recognises this position, by providing that the workman who is a party to a dispute shall be entitled to be represented by an officer of a registered trade union of which he is a member. While it will be unwise and indeed impossible to try to lay down a general rule in the matter, the ordinary rule should be in our opinion be that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned. We are not satisfied that in the present case, there were any such exceptional circumstances. It has been suggested that the Union's Secretary Fateh Singh himself had made the complaint against the appellant which resulted in the order of dismissal, it has to be observed however that in spite of everything, the Union did take up this appellant's case against his dismissal as its own. At that time also, Fateh Singh was the Secretary of the Union, if are Union had not taken up his cause, there would not have been any reference. In view of all the circumstances, we are of opinion, that it cannot be said that the Tribunal committed any error in refusing the appellant's prayer for representation through representatives of his own choice in preference to Fateh Singh, the Secretary of the Union."
(emphasis supplied)
35. Therefore, once that position is found existing in law and as a fact, it is not denied that the Union withdrew from the dispute, the Labour Court could have itself either allowed the concerned workmen to represent their cause or through such person as they would authorise, that course being permissible both by virtue of section 6-I of the Act read with Rule 40 of the Rules and Clause 2 of the Order as also under section 18(3)(b) of the Industrial Disputes Act, 1947.
36. Seen in this light, in the instant case, the order dated 20.04.2011 passed by the State Government only allowed the Representative Workmen to be added as "Workmen Party no. 2" to the existing reference. On the face of it, it did not alter or amend the terms of reference made by order dated 20.02.2004. It only sought to make the adjudication more effective and real, by allowing the workmen to be properly represented before the Labour Court. In face of the Union having withdrawn form the reference, the adjudication proceedings, if they had continued without anyone to represent the workmen, would have been wholly ex-parte against them and therefore unfair and unjust. The course adopted by the State Government appears to be clearly permissible in view of the ratio in Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orissa (supra).
37. As noted above, even in absence of the order dated 20.04.2011, once a valid and alive reference was existing before it, all that remained for the Labour Court to consider was - the person who may represent the Workmen. It had ample inherent power and it ought to have exercised that power to ensure a fair and proper hearing to the parties before it. Refusal to adjudicate the otherwise valid reference pending before it, amounts to dismissing the workmen's case for non-prosecution. That power clearly does not exist to a court of referred jurisdiction.
38. The order passed by the State Government dated 20.04.2011 allowing the five representative workmen to appear before the Labour Court through a named counsel and representatives of the 37 affected workmen could only be challenged under writ jurisdiction and that challenge could not have been raised before the Labour Court. The respondent employer never challenged, either the original reference order or the order dated 20.04.2011 passed by the State Government allowing for representative workmen to appear before the Labour Court. That having not been done, it was not for the Labour Court to refuse to adjudicate the dispute.
39. Also, by virtue of Rule 40 of the Rules, such person who may be eligible to be selected to represent the Workmen under the Conciliation Order may be similarly nominated by the affected Workmen to represent them before the Conciliation Board or the Labour Court or the Tribunal.
40. The judgment in the case of Munni Lal and Ors. Vs. State of U.P. and Ors. (supra) is wholly distinguishable on facts, inasmuch as in that case, the Union that was named in the reference order and thus authorised to represent the Workmen continued to exist and espouse the cause before the Industrial Tribunal. Certain workmen still filed an application seeking permission to be allowed to represent before the Tribunal. While the Industrial Tribunal and the Labour Commissioner rejected such application, that rejection order was confirmed by this Court in the aforesaid case. Thus, that was not a case of the Union having abandoned the cause espoused by it. That case, therefore, stands on a completely different footing, inasmuch, in that case, as a fact once representation was allowed to be made through the Union, no duplication would be permissible during the continuance of the representation of the workmen being made by the Union.
41. Similarly, the decision of the Calcutta High Court in the case of Kesoram Cotton Mills Ltd., Vs. Second Labour Court and Ors. (supra) is also distinguishable as in that case, the names of the workers not included in the original reference order were sought to be introduced by way of amendment, thus enlarging or varying the terms of reference to bring for adjudication fresh/new rights. Such an act was questioned and the challenge sustained by the Calcutta High Court.
42. The decision of the Supreme Court in the case of State of Bihar Vs. D. N. Ganguly (supra) is also of no avail to the respondent-employer inasmuch as that judgment arose on completely different facts. The Supreme Court held, once a valid reference had been made, the power of the State Government did not survive to allow the State Government to cancel or supersede the reference so made. As discussed above, in the present case, there is no question of an addition of party or of supersession or cancellation of the reference or duplication of representation or alteration of any terms of the reference.
43. Consequently, the writ petition must succeed and it is allowed. The impugned award dated 28.1.2015 is set aside and the matter is remitted to the Labour Court to pass a fresh award on merits after allowing the parties to lead evidence and after hearing them on all issues as may arise on merits. Since the reference is old, the above exercise may be concluded as expeditiously as possible, preferably within a period of six months from the date of production of a certified copy of this order.
Order Date :- 18.1.2019 Prakhar