Allowed

Laxmiratan Cotton Mills v. P.O. Labour Court-I Kanpur and Others

Allahabad HC26 Oct 2021WRIC/17749/1999

Case brief

AI extract

What is this about?

This writ petition challenged an impugned award by a Labour Court. The Court held that since the petitioner is a wholly-owned Central Government entity, the Central Government was the appropriate authority to make the reference. The reference made by the State Government was beyond jurisdiction, leading to the quashing of the award.

What did the court decide?

The writ petition is allowed; the reference order and all consequential proceedings including the impugned award are quashed and set aside.

Laxmiratan Cotton Mills Vs P.O. Labour… — Labour and Industrial Disputes | Allahabad HC (2021)

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Court No. - 6

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Case :- WRIT - C No. - 17749 of 1999

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Petitioner :- Laxmiratan Cotton Mills Respondent :- P.O. Labour Court-I Kanpur And Others Counsel for Petitioner :- V.B. Singh,Kirtika Singh,D.P.Singh

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Counsel for Respondent :- C.S.C.,Bushra Maryam,Hina Rizvi,Shivam Yadav,Sunita Rani Gupta Hon'ble Ajay Bhanot,J.

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Heard Sri D.P. Singh, learned counsel for the petitioner, learned Standing Counsel for the respondents No.1 and 2 and Ms. Bushra Maryam, learned counsel for the respondent No.3.

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The writ petition is directed against the impugned award dated 01.01.1998/01.05.1998 passed by the respondent No.1-learned Presiding Officer, Labour Court (I), U.P. Kanpur.

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The reference made by the State Government under Section 4-K of the U.P. Industrial Disputes Act, 1947 records that the services of the respondent No.3-workman were terminated on 10.11.1989. The reference was made by the State Government on 05.07.1997. There is a dispute between the employer and the employee whether the services of the respondent No.3-workman were terminated or abandoned. This is an issue which the Court will not be going since the other issues which go to the root of jurisdiction have been raised. Admittedly, the reference was made after

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almost 10 years of the alleged termination of the services of the respondent No.3-workman. The reference is highly belated.

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The second submission is that the appropriate Government in the instant case is the Central Government. The petitioner-corporation is wholly owned and controlled by the Central Government. The reference by the State Government was beyond jurisdiction. Reliance is placed on the law laid down in Nedungadi Bank Ltd. Vs. K. P. Madhavankutty and others , reported at (2000) 2 SCC 455 .

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I see merit in the submission of Sri D.P.Singh, learned counsel for the petitioner that the petitioner-employer has been prejudiced beyond recall on account of the delay on part of the respondent No.3-workman in making the reference of his dispute. The evidence was lost to time and memory, as a result of which the case could not be effectively prosecuted before the learned labour court. The respondent No.3-workman cannot take advantage of his own laches. In case such belated reference is entertained and allowed, it will incentivise and instigate the industrial unrest instead of fostering industrial peace. No industrial dispute was existing when the reference was made.

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Heard learned counsel for the parties.

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The cause of delay could not be satisfactorily explained. Lawful course of action for the respondent No.3-workman is to invoke his statutory remedy without delay.

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The Supreme Court has set its face against belated references as such references defeat the purpose of the Act and do not contribute the industrial peace. In Nedungadi Bank Ltd. Vs. K. P. Madhavankutty and others , reported at (2000) 2 SCC 455 , while determining the consequences of a delayed reference, it was held that such reference itself was destructive of industrial peace:

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"6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one.

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In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.

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In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question."

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More recently Munir, J., in State of U.P. and another Vs. Presiding Officer Labour Court and another , reported at 2021 (7) ADJ 670 , has dealt with the issue in a scholarly fashion and has held

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that inordinate delay in making a reference is being fatal to the cause for the workman.

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Appropriate Government is defined in Section 7(1) of the Industrial Disputes Act, 1947. The provision is extracted below:

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" 7. Labour Courts .- (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act."

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The petitioner is a unit of National Textile Corporation Limited. Admittedly, the petitionercorporation is wholly owned and controlled by the Government of India. The appropriate Government to make a reference under the Industrial Disputes Act, 1947 in this case is the Central Government.

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The State Government has exceeded its jurisdiction by making the reference under the U.P. Industrial Disputes Act, 1947 and the labour court violated the law while entertaining the case. The reference and all the consequential action including the award of the labour court are beyond jurisdiction.

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The proposition has the support of good authorities of this Court. In National Textile

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Corporation (U.P.) Limited and another Vs. State of U.P. through Secretary (Labour), Civil Secretariat, U.P. Lucknow and others rendered in Civil Misc. Writ Petition No.45538 of 2003 on 14.09.2004. In this case, this Court in National Textile Corporation Limited (supra) found that the National Textile Corporation Limited is wholly owned and controlled by the Government of India and the reference in regard to the labour disputes of the aforesaid Corporation has to be made by the Central Government. The relevant part of the judgement is extracted hereunder:

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"14. The order of Presiding Officer dated 17th July 2000 by which the plea raised by the employer that State Government is not the appropriate Government has also been challenged in this writ petition. A copy of the said order has been annexed as Annexure-5 to the writ petition. The position of law as laid down by the Apex Court in Air India Statutory Corporation case (supra) and Hindutan Aeronautics Ltd. case (supra) in Writ Petition 13936 of 1995 decided on 29.9.1997 was not challenged before the industrial Tribunal. The Respondent rather contended that reference has been made by the State Government in exercise of delegated powers of the Central Government under Section 39 of the Industrial Dispute Act, 1947. Section 39 of the Industrial Disputes Act, 1947 is quoted below :

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Delegation of powers.-The appropriate Government

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may, by notification in the official Gazette, direct that any power exercisable by it under this Act or Rules made thereunder shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also,-

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(a) where the appropriate Government is the Central Government, by such officer or authority subordinate to the Central Government or by the State Government, or by such officer or authority subordinate to the State Government as may be specified in the notification ; and

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(b) where the appropriate Government is a State Government, by such officer or authority subordinate to the State Government as may be specified in the notification.

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Reliance has been placed on notification dated 3rd July, 1998 of which notification following extract was quoted by the Presiding Officer in the order dated 17th July 2000, "In exercise of the powers conferred by Section 39 of the Industrial Disputes Act, 1947 (14 of the 1947) Central Government hereby directs that all the powers exercisale by it under that Act and the Rules made thereunder shall...be exercisable also by the State Government". The Presiding Officer held that since in the present case reference was made after the notification dated 3rd July, 1998, the State Government was competent to refer the matter. After the order dated 17th July 2000, a review application was immediately filed by the employer in which notification dated 3rd July, 1998 was not denied, rather it was stated that the State Government can exercise

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delegated power only with regard to references which could have been made by the Central Government under the Industrial Disputes Act, 1947. It was stated in paragraph 5 that reference could have been made to the industrial Tribunal constituted under the Industrial Disputes Act, 1947 by the State Government. In paragraph 6 of the application, it was specifically stated that the State Government has referred the dispute to the industrial Tribunal constituted by the State Government under the U.P. Industrial Disputes Act, 1947. From the materials on the record, it is clear that the reference was made by the State Government vide its order dated 12th November, 1998 exercising jurisdiction under Section 4K of the U.P. Industrial Disputes Act, 1947. Delegated power under Section 39 of Industrial Disputes Act, 1947, the Central Government, which is the appropriate Government for the purposes of present case, could have made a reference to a Court constituted in accordance with Section 17A of the Industrial Disputes Act, 1947. The industrial Tribunal to which the reference was made was a industrial Tribunal constituted for Uttar Pradesh under the U.P. Industrial Disputes Act, 1947. The State Government in the referring order itself referred to its power under Section 4K of U.P. Industrial Disputes Act, 1947. Thus, the stand taken by the Respondents that under Section 39, the State Government can exercise delegated power of the Central Government while making reference cannot be accepted. In the present case, the State Government did not make reference exercising delegated power of the Central Government under Section 39 of the Industrial Disputes Act, 1947,

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rather it exercised its jurisdiction under Section 4K of U.P. Industrial Disputes Act, 1947. The appropriate Government in the present case being the Central Government, as observed above, the reference could have been made only by the Central Government. The plea of the Respondents that State Government exercised the delegated power under Section 39 of Industrial Disputes Act, 1947 which found favour with the Presiding Officer, Industrial Tribunal, is unsustainable. The reference made to the industrial Tribunal itself being incompetent, the award falls on the ground due to the said reason. It having been found that the reference itself was incompetent, it is not necessary, for this case, to consider and decide other submissions raised by the counsel for the Petitioners. This writ petition deserves to be allowed on the decision taken on the first submission of counsel for the Petitioners.

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In result, the writ petition is allowed, the reference order and consequential proceedings thereon including the award dated 27th September 2002 are quashed.

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Parties shall bear their own costs."

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Reliance is also placed on various judgements of this Court in similar cases. [ Ref: M/s Atherton Mills Vs. P.P. Ubdystruak Truvybak (iii) and others in Writ-C No.15379 of 2000 and M/s Muir Mills Vs. P.O./Labour Court and another in Writ-C No.51192 of 1999 as well as M/s National Textile Corporation Ltd. though Regional Manager Vs. Presiding Officer, Labour Court

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and 2 others in Writ-C No.44542 of 2005 ]

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The judgements cited in the preceding part of the narrative also govern the fate of this case.

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In wake of the preceding discussion, the impugned award dated 01.01.1998/01.05.1998 is illegal and beyond jurisdiction.

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The impugned award dated 01.01.1998/01.05.1998 passed by the respondent No.1-learned Presiding Officer, Labour Court (I), U.P. Kanpur is liable to be set aside and is set aside.

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The writ petition is allowed.

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Order Date :- 26.10.2021 Ashish Tripathi

Laxmiratan Cotton Mills v. P.O. Labour Court-I Kanpur and Others

Case brief

What is this about?

What did the court decide?

Laxmiratan Cotton Mills v. P.O. Labour Court-I Kanpur and Others

Case brief

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