High Court allowed writ petition interfering with State Industrial Court's refusal to entertain revision petition. Relied on Rule 10 to uphold Member Judge's jurisdiction despite vacant President post and remitted matter.
Writ petition allowed; State Industrial Court ordered to hear the revision petition on merits immediately.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (L) No. 27 of 2021
1. Ravichandar Moorthy Dakshina S/o Shri Dakshina Moorthy, Occupier, J. S. W. Ispat Special Products Limited, Mandir Hasaud, District Raipur, Chhattisgarh
2. Pradeep Kumar Baghel S/o Shri D. N. Singh Factory Manager, J. S. W. Ispat Special Products Limited, Mandir Hasaud, District Raipur Chhattisgarh
---- Petitioners
Versus
1. State Of Chhattisgarh Through Inspector Under Factories Act, 1948, Office Of The Deputy Director, Industrial Health And Safety Divisional Office, Old Bus Stand Parisar, Pandri, Raipur, Chhattisgarh
2. State Industrial Court Chhattisgarh, Raipur Through Its Registrar- In - Charge, Raipur, Chhattisgarh
3. Labour Court Raipur Through Registrar
---- Respondents
For Petitioners : Mr. Ashish Shrivastava, Sr. Advocate with Mr. Aman Saxena, Advocate For State : Mr. Rahul Jha, Govt. Advocate
Hon'ble Shri Justice P. Sam Koshy
Order On Board
18.06.2021
1. Aggrieved by the order dated 02.03.2021 passed by the State Industrial Court, Raipur in Criminal Misc. Case No. unregistered/CGIR Act/V/20 the present writ petition has been filed. In addition, the petitioners have also challenged the order passed by the Labour Court No.2, Raipur
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dated 05.01.2021 in Criminal Case No. 01/Factories Act/2021. Vide order dated 02.03.2021 the learned State Industrial Court has expressed its reluctance in entertaining the Miscellaneous Criminal Case filed by the petitioners invoking the provisions of Section 397 of CrPC read with Section 64(2) & 64A of the Chhattisgarh Industrial Relations Act, 1960.
2. The brief facts relevant for disposal of the present writ petition are that the petitioner-establishment which has a Steel Industry at village Kurud, District Raipur witnessed an industrial accident on 16.09.2020. On account of the accident a worker of the said establishment namely Dhruv Narayan died and another worker suffered serious injuries.
3. The accident was intimated as per the requirement of the provisions of the Factories Act in the office of Factory Inspector. Based on the said intimation, Factory Inspector visited the plant and inspected the site of accident on 13.10.2020. Subsequently, the Factory Inspector issued a show cause notice to the present petitioners on 20.10.2020. Immediately on receipt of the notice the present petitioners submitted their detailed reply on 14.11.2020.
4. Thereafter, there has been no further development from the office of Factory Inspector. That after some time the Factory Inspector intimated the petitioners by an e-mail dated 26.12.2020 directing the petitioners to remain present on 05.01.2021 before the Labour Court, Raipur on which day he intends to file a complaint before the Labour Court.
5. On 05.01.2021 the Factory Inspector submitted a complaint under Section 105 of the Factories Act before the Labour Court, Raipur which was duly registered and cognizance was taken of the said complaint
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and the Labour Court on 05.01.2021 i.e. on the same day passed the following order which for ready reference is being reproduced hereinunder:
“ ifjoknh }kjk Jh foosd psydj dkj[kkuk fujh{kd mivfHk;qDrx.k vuqifLFkrA
Jh psydj us vfHk;qDrx.k ds fo:) ifjokn varZxr /kkjk 105 dkj[kkuk vf/kfu;e 1948 ds rgr e;lwph vuqlkj nLrkost] /kkjk 256 n-iz-l- ds rgr vkosnu rFkk vfHk;qDrx.k dks Mkd ls o bZ-esy ds ek /;e ls fnukad 05-01-2021 dks Je U;k;ky; esa mifLFkr gksus tkjh lwpuk i= is”k fd;s gSA
ifjokn dk voyksdu fd;k x;k] Jh foosd psydj dkj- fujh{kd }kjk dkj[kkuk vf/k-1948 dh /kkjk 92 ds rgr naMu;h vijk/kks dk fopkj.k gsrq is”k fd;k x;k gSA
ifjoknh ds }kjk ;g ifjokn “kkldh; lsod ds :i esa is”k fd;k x;k gSA vr% iath;u iwoZ lk{; dh vko”;drk ugh gSA
izdj.k esa izFke n`’V;k vfHk;qDrx.k ds fo:) lacaf/kr vijk/k ds fopkj.k gsrq Ik;kZIr vk/kkj gksuk n”khZr gks jgk gSA ?kVuk fopkj.k {ks=kf/kdkj bl U;k;ky; dks izkIr gSA ifjokn fu;r le;kof/k ds vanu is”k fd;k x;k gSA
vr% vfHk;qDrx.k ds fo:) lacaf/kr vijk/k dh /kkjk 92 dkj[kkuk vf/kfu;e 1948 dk laKku fy;k tkrk gSA bl laca/k esa lacaf/kr jftLVj esa ;g ifjokn iathd`r fd;k tk;A
ifjoknh }kjk vfHk;qDrx.k jfopanj ewfrZn{k.k vf/kHkksxh rFkk iznhi dqekj flag c?ksy dkj[kkuk izca/kd dks vkt U;k;ky; esa vfHk;ksx esa vfHk;ksx i= is”k] djus ,oa mUgs mifLFr gksus Mkd ls rFkk
4 bZ-esy }kjk lwfpr fd;k x;k lkFk gh mUgs vkt Qksu }kjk Hkh U;k;ky; esa mifLFkr gksus Qksu }kjk lwfpr fd;k x;k gSA
vkt vfHk;qDrx.k vuqifLFkr gSA vr% vfHk;qDrx.k dh mifLFkfr lqfuf”pr djus gsrq 5000&5000 :- dk tekurh; okjaV tkjh fd;k tk;A izdj.k vfHk;qDrx.k dh mifLFkfr gsrq fu;r dh tkrh gSA izdj.k okLrs mifLFkfrA”
6. Since the present petitioners did not appear before the Labour Court as called upon by the Factory Inspector on 05.01.2021, the Labour Court without issuance of any summons at the first instance, straightaway issued bailable warrants against the petitioners seeking their presence before the Labour Court and fixed the date for hearing on 25.03.2021 .
7. Immediately on the Labour Court passing the aforesaid order on 05.01.2021, the petitioners invoking the supervisory jurisdiction of the Industrial Court filed a petition before the State Industrial Court under Section 397 of CrPC read with Section 64(2) & 64A of the Chhattisgarh Industrial Relations Act, seeking for an appropriate relief of setting aside of the order of the Labour Court dated 05.01.2021. They had further sought for a direction to the Labour Court to first issue summons and then proceed in accordance with law against the petitioners. The said application by the petitioners was filed before the Industrial Court on 22.02.2021 i.e. much before the next date of hearing fixed before the Labour Court .
8. After the matter was filed before the Industrial Court and because the post of President of the Industrial Court was lying vacant for quite some time at the request of the petitioners, on an application for urgent
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hearing, the revision petition was placed before the Member Judge, wherein the impugned order Annexure P-1 was passed, whereby the learned Industrial Court has expressed its reluctance in entertaining the revision petition on the ground that the Industrial Court in the absence of a proper President appointed and also in the circumstances of the post of President lying vacant, the Member-Judge sitting alone may not have the jurisdiction to entertain the revision petition.
9. Learned Industrial Court referred to the Chhattisgarh Industrial Court Rules, 2008 (hereinafter referred as “the Rules of 2008). According to the Industrial Court, on the conjoint reading of Rules 5, 6, 7 & 12 of the aforesaid Rules of 2008 it would reflect that in the absence of President or where the office of President is lying vacant, the Member Judge sitting alone may not have the powers to entertain such a revision petition. It appears that the Industrial Court has proceeded on the backdrop that in the absence of a President heading the institution, the Member Judge sitting alone cannot suo motu entertain a revision petition without being properly assigned/made over by the President for hearing o n such matters.
10. From the order of the Industrial Court it also reflects that the post of the President of the State Industrial Court is lying vacant since July, 2019 i.e. for almost 2 years now. On the last date of hearing, this Court had asked the state counsel to find out whether in the absence of any President being appointed by the State Govt. the Member Judge of the Industrial Court at Raipur has been conferred or given the powers of an Incharge President or an acting President till a regular appointment is made or not.
12. For ready reference it would be more appropriate to quote Rules 5, 6, 7 10 & 12 of the Rules of 2008 which has been relied upon by the learned Member Judge of the Industrial Court while passing the impugned order:
Rule 5 – The following matters shall ordinarily be heard at motion or final stage and disposed of by Bench consisting of two or more members:-
i. Appeal under Section 11-c(1)(a) of Industrial Disputes Act, 1947 by the person convicted in terms of Section 65(b) of the Act, where sentence awarded is 3 months’ imprisonment or more with or without fine;
ii. Appeal under Section 11-C(1)(b) of the Industrial Dispute Act, 1947 by the State Government in terms of Section 65(c) of the Act against acquittal entertainable with the leave of the Court in terms of Section 64(2) of the Act read with Section 378 (3) of the Code of Criminal Procedure;
iii. Appeal and Appeal under Section 11-C(1)(c) under Industrial Dispute Act, 1947 by the State Government for enhancement of the sentence in terms of Section 65(d) of the Act to a term of 3 months’ imprisonment or more with or without fine as prayed in Memorandum of
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Appeal.
iv. Reference on point of law or interpretation of the Act and the Industrial Dispute Act, 1947 or rules under Section 70 of the Act.
Rule 6 – Save as otherwise provided by law or by these rules or by general or special order of the President, All matters shall be heard and disposed of by a Bench of one member.
Rule 7 - Notwithstanding anything contained in these Rules, a member sitting alone, in the long vacation as vacation judge may exercise any or all of the powers of the Industrial Court.
Rule 10 - If at any time the President or the member is unable to function for any reason whatsoever, then notwithstanding anything contained in these Rule, the President or the member alone, as the case may be, shall have all the powers vested under these Rules in a Bench of more than one member.
Rule 12 – the President shall have powers to distribute the work amongst the Member-Judge and shall have also powers to make over or recall or transfer any case suo motu or on application for disposal in accordance with law.
13. A plain perusal of Rule-5 would reveal that Rule-5 primarily refers to those matters which could be seized for hearing by a Bench comprising 2 or more members. In other words, apart from all those
8 categories as is reflected under Rule 5, all other matters which are filed before an Industrial Court would be heard by a Single Bench or otherwise as per the Act which may be heard by the Division Bench unless specifically notified .
14. In the aforesaid factual backdrop if we look into the categories of cases which can be heard by the Division Bench as is enumerated in the four categories referred therein, it clearly reveals that the revision petition under which the petitioners wanted to approach the Industrial Court for an appropriate direction is one which does not fall under any of those 4 categories reflected in the 4 Clauses to Rule-5. This provision stands further clarified on plain reading of Rule-6 which specifically envisages that they were otherwise provided, all other matters shall be heard and disposed of by a Bench of one Member.
15. Similarly, Rule-7 confers the powers upon a Member-Judge sitting alone during the vacation period to exercise the powers of a Division Bench. There are further exceptions which have been carved out under Rule-10 which further suggest that if at any time the President or the Member is unable to function for whatsoever reason, the President or the Member sitting alone shall have all the powers vested under the Rules or a Bench of more than one Member. The very uses of the term “ any time & whatsoever reason” clearly indicates that it would be applicable even beyond the vacation period. It further indicates that it would be applicable in the event of the post of President or for that matter any of the Members falling vacant under any circumstances.
16. True it is that under the normal circumstances as per Rule 12 the
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President shall have the powers to distribute works among the Members and also exercise the powers to make over or recall or transfer any case from one member to another as is required. But this Rule i.e. Rule-12 would come into play only in the circumstance of the post of President being occupied by a person and in addition there being one or more Member Judges available and for the purpose of distribution of work the power stands vested with the President. However taking strength from Rule-10 what the law makers clearly indicate is that if in a given circumstance where the post of President falls vacant or for that matter the post of a Member-Judge falls vacant at any time or for any reason whatsoever, the remaining Member or for that matter the President sitting alone would not be denuded of their powers to hear the matters filed before the Industrial Court, be it one, to be heard by a single bench or one to be heard by a bench consisting two or or more.
17. If the analogy as expressed by the learned Industrial Court is to be accepted, it may lead to a situation where in the absence of a President the very Industrial Court itself even if there is a MemberJudge available may become defunct or may get paralyzed from discharging its day to day judicial work. Such strict interpretation cannot be extended particularly in cases where the persons who have approached the Court seeking for an appropriate right which according to them have been infringed by an action of either the Lower Court or for that matter by an action of a State Authority. Such an analogy can also lead to the applicants or the aggrieved person remedy less, only for the inaction on the part of the Government not making prompt appointments on the post of President in the Industrial Court.
19. If at all the State authorities were finding a difficult to fill up the post of President, at least an alternative arrangement by appointing somebody as an Incharge President would have resolved many of such technical problems which the institution would be facing. The State Govt. should take prompt measure to appoint the senior most person available as an Incharge President which could resolve many such technicalities that may arise in the day to day functioning of the Industrial Court and also the large number of Labour Courts functioning in the State.
20. Be that as it may, since this Court is of the firm view that with a liberal, constructive and harmonious interpretation of Rule 10 even if there is only one Member available, the Bench would definitely have the powers under the given circumstances to exercise all the powers which are otherwise vested under these Rules upon a President and also can take up matters which are otherwise to be heard by a bench consisting of two or more.
21. Another aspect which this Court is of the view is that in any case the subject matter involved in the revision petition was one which was otherwise to be seized by a single Bench of the Industrial Court and was not a matter which required hearing by more than one Member as it does not fall under any of those 4 Clauses as envisaged under Rule-
11 5. In the administration of justice and also for the prompt justice delivery system, ignoring the technicalities that have been referred to by the Industrial Court, in the opinion of this Court, it could have simply heard the matter and passed an appropriate order in accordance with law as deemed fit, rather than showing reluctance to entertain the revision petition only on account of the non availability of the President that too particularly when the post of the President is lying vacant for more than 2 years.
22. Accordingly, the writ petition as of now stands allowed. The matter stands remitted back to the Industrial Court with a direction to the Industrial Court to hear the revision petition itself on its own merits in accordance with law. Considering the nature of dispute involved in the case it is expected that the Industrial Court shall take up the matter at the earliest and shall proceed in accordance with law. It is made clear that this Court has not in any manner expressed any opinion on the merits of the case.
23. With the aforesaid observations the writ petition stands allowed and disposed of.
24. Before parting this Court would expect that the State Govt. in this regard would take prompt steps firstly in ensuring that a regular President is appointed at the earliest if not at least an Incharge President is appointed at the earliest.
Sd/P. Sam Koshy Judge
Khatai
3 issues framed by the court
Whether the State Industrial Court lacks jurisdiction to entertain a revision petition under Section 397 CrPC when the post of President is vacant.
Whether the Member Judge of the Industrial Court can exercise powers of a bench consisting of two or more members under Rule 10 when the President post is vacant.
Whether technicalities regarding the vacancy of the President post can be ignored to ensure prompt delivery of justice.
4 provisions across 3 enactments
Ravichandar Moorthy Dakshina
Pradeep Kumar Baghel
State Of Chhattisgarh
State Industrial Court Chhattisgarh
Labour Court Raipur
P. Sam Koshy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
