Dismissed

M/S the Leprosy Mission Hospital Naini Allahabad v. State of U P and 3 Others

Allahabad HC30 Aug 2018WRIC/18955/2018

Case brief

AI extract

What is this about?

This writ petition challenged an order amending a reference date in an industrial dispute regarding a workman's termination. The Court dismissed the petition, holding that the amendment was necessary to bring the controversy to a logical culmination and did not cause injustice, as the dispute referred was the legality of termination itself.

What did the court decide?

Writ petition found devoid of merits and dismissed; the order amending the reference date is upheld.

M/S the Leprosy Mission Hospital Naini… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 36 Case :- WRIT - C No. - 18955 of 2018 Petitioner :- M/S The Leprosy Mission Hospital Naini Allahabad Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Gaurav Srivastava,Anil Kumar Srivastava

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Counsel for Respondent :- C.S.C.,.,Manoj Kumar Mishra

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard Sri Gaurav Srivastava learned counsel for the petitioner and Sri D.K. Tripathi learned counsel for the respondent no.4.

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The present petition is directed against the order dated 16.04.2018 whereby the amendment has been made in the reference order dated 18.11.2010 for changing the date of termination of the respondent-workman from 01.04.2010 to 03.09.2010. The submissions of learned counsel for the petitioner are two folds. The first submission is that no opportunity of hearing was granted to the petitioner before making amendments in the reference order. Secondly, the Deputy Labour Commissioner, Allahabad had no jurisdiction to pass the order dated 16.04.2018, in as much as, the Labour Court has been seized with the matter. The said reference was required to be answered by the Labour Court with regard to the date of termination mentioned therein. For any dispute relating to the termination order dated 03.09.2010, only option for the respondentworkman was to file a fresh application before the Conciliation Officer under Section 2-A of the U.P. Industrial Disputes Act' 1947 (in short as Act' 1947) who has jurisdiction to hear the parties and to decide as to whether the industrial dispute exists or not.

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Reliance is placed upon the judgement of Apex Court in The Sindhu Resettlement Corporation Ltd. Vs.

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The Industrial Tribunal of Gujrat & others¹ to submit that the question as to whether any industrial dispute exists or not can be examined only by the Conciliation Officer.

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On the presentation of the writ petition, the learned Standing Counsel was directed to seek instruction and inform as to the reasons for amendment of the reference order. The written instruction supplied by the Deputy Labour Commissioner, Allahabad Region indicates that the reference dated 18.11.2010 was made in CP Case No.24 of 2010 after due notice to the contesting parties. The dispute therein was with regard to the termination of services of the respondent-workman, which according to her was wef 01.04.2010. On an application dated 22.02.2016 moved by respondent no.4, noticing the written termination order dated 03.09.2010 served upon the respondent-workman, the date of termination in the reference order has been changed from 01.04.2010 to 03.09.2010 in order to avoid multiplicity of the proceedings.

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The respondent no.2 filed a counter affidavit wherein it is stated that the termination order dated 03.09.2010 came into existence only after the written statement was filed by the petitioner on 11.05.2011. The reference dated 18.11.2010 was answered by the Labour Court by passing an award which was sent for publication. On the objection raised by the respondent-workman, the matter was remitted to the Labour Court for fresh consideration. The Labour Court had issued notice on 05.06.2015. The matter was transferred thereafter by the Government to the Industrial Tribunal, Allahabad on 17.04.2018. In the meantime, the respondent-workman moved an application for amendment in the date of

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1.AIR 1968 SC 529

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termination in the reference order on 22.02.2016. The order dated 16.04.2018 was thereafter passed by the Deputy Labour Commissioner noticing the written termination order dated 03.09.2010.

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Reliance is placed upon the judgement of Apex Court in Madan Pal Singh Vs. State of U.P.² as also the judgment of this Court in Hindu Sewa Sadan Chikitsalaya, Varanasi Vs. State of U.P. & others³ to submit that the amendments in the reference can be made for correction of the date of termination without issuing notice to the opposite side.

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In the supplementary affidavit filed on 03.08.2018, the written statement filed on behalf of the petitioner dated 11.05.2011 has been brought on record. Submission is that the date of termination has been clearly mentioned in the said written statement. The respondent-workman on the other hand insisted that the date of termination was 01.04.2010 and not 03.09.2010 in his reply. Submission is that after a period of six years that too after determination of dispute once by the Labour Court, it was not open for the Deputy Labour Commissioner to make amendment in the reference. Moreover, the Deputy Labour Commissioner discharges the powers delegated to him vide notification issued by the State Government under Section 11-A of the Act' 1947. The power to make amendment in the reference order has not been delegated to the Deputy Labour Commissioner under the notification issued on 29.08.1990 and as such, he had no jurisdiction to make amendment.

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Considered the submissions of learned counsel for the parties and perused the record.

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2.2000 (1) SCC 683

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3.2009 (120) FLR 970

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Before entering the dispute raised in the present petition, it would be relevant to go through the judgement of Apex Court in Madan Pal Singh (supra) which pertains to correction in the reference order under Section 10 of the Act' 1947. In the said case, the order passed by the Writ Court was challenged whereby the award passed by the Labour Court Ghaziabad was withheld. The dispute referred to the Labour Court was regarding the termination of services of workman w.e.f July 7, 1986. The Labour Court after recording all the evidences came to the conclusion that the management had not terminated the services of the workman as he was never employed. The said mistake happened because in the reference order, the name of the workman was mentioned as Madan Pal Singh in place of Madan Lal. It was noted by the Apex Court that having noticed the mistake, during the pendency of the matter before the Conciliation Officer, the workman approached the Conciliation Officer, for correction of mistake in his name. The mistake, however, was not rectified and the dispute was referred to the Labour Court for adjudication.

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Resultantly, the mistake occurred in the reference order had resulted in the award passed by the Labour Court for rejection of claim of the workman on the ground that the said workman was never employed and as such there was no question of termination of his services. Further, request was also made to the Labour Court by the workman for granting time to seek amendment in the reference which was objected by the employer. Soon after the award was passed, the State Government amended the reference upon which, the workman had again approached the Labour Court. The Labour Court had rejected the application of the workman with the observations that no amendment could be made before the award had been given. This had resulted in

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filing of the writ petition before the High Court which was dismissed.

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Noticing the above facts, the Apex Court has observed that whatever may be the situation, the Court cannot permit injustice to perpetuate. Nothing could be more unfortunate for the poor workman than what had happened in the said case for the slackness on the part of the bureaucracy on the one hand and the lack of understanding by the labour court which had led to causing injustice to the workman.

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It was held that though initially the fault lay on the workman himself who gave wrong name in the conciliation application, however, when the mistake had come to notice and the workman approached the State Government for correction, the labour court certainly could have waited till the State Government amended the reference or otherwise. After the reference was amended, the jurisdiction stood conferred on the labour court and it could have taken the proceeding from the stage taking the reference as valid from the date of its amendment. It should thereafter granted time to the parties to lead their evidences and determine the dispute. With the said observation, the Apex Court had set aside the order of the High Court and the award of the labour court and remitted the matter back to adjudicate the industrial dispute on the amended reference after giving opportunity to the parties to lead evidence.

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The said decision of the Apex Court has been relied upon by this Court in Hindu Sewa Sadan Chikitsalaya, Varanasi (supra). In another matter in Hamdard (Waqf) Laboratories Vs. State of U.P. &

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others⁴ , the Court with reference of Section 4-K of Act' 1947 has held that the issue whether the employer are required to be given an opportunity of hearing before reference is no longer res integra. The Division Bench of this Court in Indian Explosive Ltd. (Fertilizer Division) Panki, Kanpur Vs. State of U.P. & others)⁵ has held that neither the employer nor the workman can claim any right to be heard before an order of reference is made either initially or on second thought. When an order is passed under Section 4-K of the Act'1947, the power in substance is exercised on behalf of the public at large and in the interest of the community and that the order of reference on its own force does not affect substantive right of the parties, which have to be ultimately decided by the industrial tribunal or the labour court. The order passed by the State Government referring a dispute is an administrative order. No lis is involved between the parties at this stage and subsequently no notice is required to be issued to the employer for hearing him before making or refusing to make a reference.

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Having noticed the above legal position, it would be apt to appreciate the facts of the instant case.

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In the instant case, the reference order dated 18.11.2010 was passed on the application dated 10.05.2010 moved by the respondent-workman under Section 2-A of the Act. A specific stand was taken in the said application that the employer had restrained the workman from joining her duties on 01.04.2010 and no notice was given to the workman before bringing her services to an end. The transfer order was also challenged with the assertion that it was passed to harass the workman.

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5.1981 42 FLR 423

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4.2013 (138) FLR 1015

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On the said application after putting notice to the employer, the dispute was referred for adjudication to the labour court vide reference order dated 18.11.2010.

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After reference, the written statement dated 11.05.2011 was filed by the employer before the labour court to which, the replication was filed by the workman on 20.06.2011. Another letter was filed by the employer on 05.07.2011. In the written statement dated 11.05.2011 as also the rejoinder statement dated 05.07.2011, the employer had denied the claim of the workman of bringing her services to an end w.e.f from 01.04.2010 rather a categorical stand has been taken that the services of the workman was terminated w.e.f 03.09.2010 and as such, the reference order indicating the date of termination as 01.04.2010 itself was bad in the eye of law.

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Though the respondent-workman still insisted that her service had been terminated w.e.f 01.04.2010 and did not move any application for correction of reference, but it cannot be ignored that in the first round of ligation, the competent authority did not approve the award passed by the labour court rather referred the matter back for fresh adjudication. After remittal, the respondent-workman moved application before the labour court for correction in the date of termination from 01.04.2010 to 03.09.2010. On the said application, the order for correction in the date of termination in the reference dated 18.11.2010 was done by order passed on 16.04.2018 which is challenged in the present petition.

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Having noticed the fact that the dispute raised by the respondent-workman was with regard to termination of her services and that the date of termination was disclosed

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in the written statement filed by the employer before the labour court, in the opinion of the Court, the order of amendment of reference has been passed in order to bring the controversy to its logical culmination. There is no dispute about the fact that the services of workman was terminated in the year 2010 which has resulted in reference of the industrial dispute for adjudication to the labour court. It appears that initially the respondent-workman insisted that the date of termination was 01.04.2010, but as a second though she sought to challenge the written termination order dated 03.09.2010 which was brought on record by the employer before the labour court. On the presentation of the amendment application, the Deputy Labour Commissioner having perused the written order of termination dated 03.09.2010 has proceeded to amend the reference.

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There cannot be a dispute that the reference of industrial dispute was made by the Deputy Labour Commissioner after giving opportunity to the petitioner to enter into a settlement by undertaking the conciliation proceeding. The reference was made only after ascertaining the fact of existence of the industrial dispute between the parties. In the said scenario, the date of termination whether 01.04.2010 or 03.09.2010 would be of no relevance. The reference before the labour court is whether the termination of services of respondent-workman was illegal or not. This Court is, therefore, of the considered view that the order of correction/amendment in the reference by changing the date of termination would not cause injustice to any of the parties rather it would help in making proper adjudication by the labour court.

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Further under Section 21 of the General Clauses Act, the State Government has jurisdiction to make

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correction/amendment in the reference which would not change the nature of dispute between the parties or would not amount to make any addition to it. Reference may be made to the judgement of Calcutta High Court in Kesoram Cotton Mills Ltd. Vs. Second Labour Court & others⁶ .

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In order to meet the ends of justice without making much deliberation on the power of the Deputy Labour Commissioner, this Court reaches at the conclusion that no interference is required in the order of correction of date of termination in reference, in as much as, the dispute referred to the labour court is to be decided on the evidences of the parties.

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In view of the above, the writ petition is found devoid of merits and hence dismissed .

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Order Date :- 30.8.2018 Himanshu

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6.AIR 1963 Calcuta 348

M/S the Leprosy Mission Hospital Naini Allahabad v. State of U P and 3 Others

Case brief

What is this about?

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M/S the Leprosy Mission Hospital Naini Allahabad v. State of U P and 3 Others

Case brief

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