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2003 DIGILAW 1627 (RAJ)

Bakshi Steels Limited v. State of Rajasthan

2003-12-05

K.S.RATHORE

body2003
JUDGMENT 1. :- This writ petition is filed by the petitioner seeking writ/order/direction in the nature of certiorari for quashing the order (Notification) No. F. 1(1)(1875)/Shre-Ni/95 dated 27th July, 1996 (Annexure-1) passed by the State Govt. referring the matter for adjudication to the Industrial Tribunal, Bharatpur. 2. The .itioner mainly challenged the reference order dated 27th July, 1996 made by the appropriate govt. under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 for adjudicating the dispute between the employees of Baxi Steel Limited and Baxi Steel Limited, Bhiwadi. 3. Mr. Virendra Agarwal, learned counsel for the petitioner pointed out clerical error regarding the period of strike in the issue No.1 and requested to issue directions to appropriate Government to correct this clerical error. 4. The second point to challenge the reference order was raised by the petitioner on the ground that none of the parties has stated that management restrained the workers from joining their duties. the certificate issued by the State Government and marked as Annexure-4, 5 and 6 clearly show that the workers were on strike during this period. 5. It is also given out by the learned counsel for the petitioner that the industrial dispute arises when a demand is made and the employer refuses the same but in case when there is no demand then there cannot be any dispute much less an industrial dispute. In the present case there was no averment, allegation or demand that from Ist November, 1995 the workers were restrained from joining their duties. The only document on the basis of which reference has been made as per the notification is the failure report. Even in this failure report there is no averment that the Management restrained the workers from Ist November, 1995. Therefore, this part of reference is bad in eye of law. 6. In support of his contentions, Mr. Agarwal placed reliance on the judgment of this court in the case Jaipur Polyspin Ltd. v. State of Rajasthan and Ann reported in 1992(l) RLR 390. 7. With regard to reference Mr. Therefore, this part of reference is bad in eye of law. 6. In support of his contentions, Mr. Agarwal placed reliance on the judgment of this court in the case Jaipur Polyspin Ltd. v. State of Rajasthan and Ann reported in 1992(l) RLR 390. 7. With regard to reference Mr. Agarwal submits that the management was asking for giving more workload then what was agreed in the settlement dated 14.1.1994 but in the failure report this averment does not find place that the settlement between the establishment and the workmen had arrived No reference can be made regarding terms of settlement and the only remedy of the concerned party is to get a reference under Section 36(A) of the Industrial Disputes Act, 1947 for interpretation of the settlement. To this effect Mr. Agarwal referred the following judgments reported in 1956(2) LLJ 319 , 1989(1) LLJ 180 and 1995(70) FLR 650 . 8. On behalf of respondents, Mr. V.L. Mathur submitted that this writ petition is not maintainable as the reference order is an administrative order. Mr. Mathur in support of his argument that the reference order is an administrative order placed reliance on the following judgments:- 1. 2001(2) LLJ 304 (Cal.)Mecon Ltd. v. State of West Bengal 2. 2001(10) SCC 526 Harnam Singh v. P.S.E.B. & Ors. 9. Mr. Mathur further submitted that all objections which are raised here in this writ petition can be raised before the Industrial Tribunal and without submitting and petition before the Tribunal, the petitioner cannot invoke the extraordinary jurisdiction under Article 226 of the Constitution of India by way of filing the present writ petition and writ jurisdiction is not a proper forum. To this effect Mr. Mathur placed reliance on the following judgments: 1. 1990(6) FLR 282 (SC) Abad Dairy Dudh Vitaran Kendra v. Abad Dairy & Ors. 2. 1995(71) FLR 518 (Cal.) Andrew Yule Co. Ltd. Employees Union v. Andrew Yule & Co. Ltd. 10. Mr. Mathur further submitted that the petitioner has no occasion to challenge the reference order since both the parties consented to refer the dispute on account of failure of the conciliation proceeding the petitioner is bound by the order dated 23.11.95. 2. 1995(71) FLR 518 (Cal.) Andrew Yule Co. Ltd. Employees Union v. Andrew Yule & Co. Ltd. 10. Mr. Mathur further submitted that the petitioner has no occasion to challenge the reference order since both the parties consented to refer the dispute on account of failure of the conciliation proceeding the petitioner is bound by the order dated 23.11.95. He also strongly contended that the Industrial Tribunal has jurisdiction to decide jurisdictional issue if raised and the petitioner can raise the jurisdiction issue before the Industrial Tribunal as held in the case of "Teeka Ram & Sons v. Their Workmen" S.C.L.J. 1950-83 Page 550. Upon failure report under Section 12(5) of the Act, the appropriate Government having enough material for making reference. As in the instant case the matter has been referred after failure report is prepared u/s. 12(5) and this argument is supported by the judgments reported in 2000(1) SCC 371 "N.E.I. v. State of Raj. and 1995(11) LLJ 628" Village Papers Mazdoor Sangh v. State of U.P. & Ors. 11. Heard rival submissions of the respective parties and perused the reference order as well as the failure report dated 23.11.1995 and the judgments referred by both the parties.So far as the challenge on the-clerical mistake is concerned, it can be rectified by making application under Section 12(4) of the Act and the petitioner can make an application for correction in dates. So the first ground which was taken by the petitioner of clerical error regarding period of strike does not survive.The second point of challenge by the petitioner is while making reference this fact has not been considered that workers were on strike during the period in question. To this effect the objections which are raised here in this writ petition can be raised before the Industrial Tribunal and same can be considered by the Industrial Tribunal. For this mistake only, the reference order cannot be said to be illegal and on this aspect also the reference does not require any interference by this C*irt as held in the case of Jeepa Ram & Sons (supra). It is also not disputed that the reference order is an administrative act of Government as held in the case Mecon Ltci. (supra) merely on technical grounds reference order cannot be challenged and the writ jurisdiction is not a proper remedy as held in the Abad Dairy Dudh Vitaran Kendra (supra). It is also not disputed that the reference order is an administrative act of Government as held in the case Mecon Ltci. (supra) merely on technical grounds reference order cannot be challenged and the writ jurisdiction is not a proper remedy as held in the Abad Dairy Dudh Vitaran Kendra (supra). As such, the judgments referred by the petitioner are not applicable to the instant case. And this is a case where no interference whatsoever is required by this Court as the petitioner can very well raise the objections before the Industrial Tribunal itself.Consequently, the writ petition fails and is hereby dismissed with no orders as to cost.Petition dismissed. *******