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2004 DIGILAW 357 (ORI)

OCL INDIA LIMITED v. STATE OF ORISSA

2004-08-13

L.MOHAPATRA

body2004
JUDGMENT : L. Mohapatra, J. - The petitioner in this writ application has prayed for the following reliefs: (1) To quash Annexure 6 in which the Government of Orissa in the Department of Labour and Employment issued a corrigendum on 13.6.2003 making a reference in place of earlier reference made in Annexure 5. (2) Order dated 16.6.2003 in Annexure 7 directing transfer of ID Case No. 14 of 2003 to Industrial Tribunal, Rourkela from the Labour Court, Sambalpur for adjudication. 2. Case of the petitioners is that the petitioner No. 1 is a public limited company registered under the Companies Act, 1956 having its registered office at Rajgangpur in the district of Sundargarh. Opposite Party No. 5 made an application on 1.9.1977 to the petitioner-company for being appointed as Mazdoor declaring his age to be 35 years. He was appointed on temporary basis on the said day. He was sent for medical examination on 1.9.1977 and the Medical Officer also assessed his age to be 35 years which was not disputed by the Opposite Party No. 5. Accordingly, in official records of the petitioner-company, age of the petitioner was recorded as 35 years on the date of entry into service. The petitioner was due for retirement on superannuation in the year 2000 and 50 days before his retirement on 12.7.2000 he made a representation to the petitioner-company to requesting it to change his date of birth as mentioned in the records of the company. Said representation was not allowed and the Opposite Party No. 5 was superannuated on the basis of the age mentioned in the records of the petitioner-company. Thereafter, the Opposite Party No. 5 raised a dispute on the basis of which conciliation was held and conciliation having failed, a failure report was submitted by the Conciliation Officer before the State Government. The State Government in its order dated 15.7.2002 in Annexure 5 referred the dispute to the Labour Court, Sambalpur for adjudication and the schedule of reference runs as follows : "Whether the demand for correction of the age/date of birth of Sri Gokul Das, Ex-Maintenance Attendant, Kiln Maintenance Department Refractories Works of M/s. OCL India Limited, Rajgangpur in legal and/or justified ? If so what should be his actual age/date of birth ?" Said reference was registered as ID Case No. 72 of 2002 before the Labour Court, Sambalpur. If so what should be his actual age/date of birth ?" Said reference was registered as ID Case No. 72 of 2002 before the Labour Court, Sambalpur. When the dispute case was pending, on 21.6.2003 the petitioner-company appeared before the Court to file it's written statement but was informed that the schedule of reference has been changed vide corrigendum dated 13.6.2003 at the instance of the General Secretary, Gangpur Shramik Sangh and the schedule of reference in the corrigendum is as follows : "Whether action of the management M/s OCL India Ltd., Rajgangpur in superannuating their workman Sri Gokul Das, Ex-Maintenance Attendant, Kiln Maintenance Department, Refractores Works of M/s OCL India Ltd., Rajgangpur w.e.f. 1.9.2000 taking into consideration his age as 35 years as on 1.9.1977 is legal and/or Justified ? If not what should be his actual age/date of birth and to what relief he is entitled to ?" 3. According to the learned counsel for the petitioners once a reference is made the State Government has no further power to make any change in the reference and therefore fresh reference made in Annexure 6 is without jurisdiction. It is the further grievance of the petitioner that the order in Annexure 7 was passed behind the back of the petitioner-company for transfer of the case from the Labour Court, Sambalpur to Industrial Tribunal, Rourkela for adjudication. According to the learned counsel for the petitioners, no such order could have been passed without hearing the petitioner-company and therefore the order in Annexure 7 is also liable to be quashed. 4. Learned counsel appearing for the Opposite Party No. 5 opposed the prayer of the petitioners on the ground that if there is some mistake in the reference made by the State Government, it is always open for the State Government to correct such mistake and for correction of such mistake appearing in the reference the State Government has ample power. So far as the second prayer of the petitioners is concerned, it was contended by the learned counsel for the Opposite Party No. 5 that the Opposite Party No. 5 is a retired poor workman and if the dispute case is adjudicated at Rourkela it will be convenient for him to attend Court, whereas attending Court at Sambalpur will be expensive for him. Since the petitioner-company is in no way prejudiced because of such transfer, prayer for quashing Annexure 7 should not be entertained. 5. First question raised before this Court is as to whether the State Government is left with any power to substitute a fresh reference in place of earlier one or not. It was contended by Sri Parija, learned counsel appearing for the petitioners that once a reference is made u/s 10 of the Industrial Disputes Act, there is no power left with the State Government to make a fresh reference by way of substitution. Shri Mishra, learned counsel appearing for the Opp. Party No. 5, on the other hand, contended that the reference made in Annexure 6 does not in any way substitute earlier reference, and it is only a clarification of the earlier reference which is permissible under law. In this connection, reference may be made to a decision of the Apex Court in the case of State of Bihar v. D.N. Ganguly and Ors. and The State of Bihar Vs. D.N. Ganguly and Others, In the aforesaid reported case the question that came for consideration before the Apex Court is that once an industrial dispute has been referred to the Tribunal for adjudication by the appropriate Government u/s 10(1)(d) of the Industrial Disputes Act, 1947, can the State Government supersede the said reference pending adjudication before the Tribunal constituted for that purpose. The Apex Court in Para 9 of the judgment has categorically held that the Act does not expressly confer any power on the appropriate Government to cancel or supersede a reference made u/s 10(1) of the Act. On perusal of Annexure 5 and 6 it appears that initially the State Government had made a reference to the effect as to whether demand for correction of the age/date of birth of the Opp. Party No. 5 is legal and/or justified ? If so, what should be the actual age/date of birth ? In the corrigendum in Annexure 6 reference is whether action of the management of the petitioner-company in superannuating the workman Opp. Party No. 5 with effect from 1.9.2000 taking into consideration his age as 35 years as on 1.9.1977 is legal and/or justified. Though the learned counsel for the Opp. Party No. 5 submitted that both the references are similar but the language is different, I am unable to accept such contention. Party No. 5 with effect from 1.9.2000 taking into consideration his age as 35 years as on 1.9.1977 is legal and/or justified. Though the learned counsel for the Opp. Party No. 5 submitted that both the references are similar but the language is different, I am unable to accept such contention. In the first reference in Annexure 5 only question referred to the Tribunal is whether demand of Opp. Party No. 5 for correction of his date of birth/age is justified or not and if it is found justified, what would be the actual date of birth, whereas in the corrigendum in Annexure 6 the question referred for adjudication is legality of superannuation of the Opp. Party No. 5 on the basis of entry made in the records of the petitioner-company with regard to his age. On perusal of both the references, it will be very clear that the question referred are different and distinct and therefore the reference made in corrigendum in Annexure 6 intends to substitute the earlier reference made in Annexure 5. In view of the decision of the Apex Court in the case of State of Bihar v. D.N. Ganguly and Bata Shoe Co. (supra), such a reference by way of corrigendum is not permissible under the Act and therefore the State Government has absolutely no jurisdiction to substitute the reference under the cover of a corrigendum. In view of the above, the reference by way of corrigendum made in Annexure 6 is unsustainable. 6. So far as transfer of the case is concerned, from Annexure 7 it is clear that only on consideration of the representation of the Opp. Party No. 5 case was transferred and no opportunity of hearing was given to the petitioner. Learned counsel appearing for the petitioners relied upon a decision of the Apex Court in the case of Management of M.S. Nally Bharat Engineering Co. Ltd. Vs. State of Bihar and Others. In the said case, the appropriate Government transferred a dispute case pending before the Labour Court, Dhanbad to the Labour Court, Patna on representation of the workman. No notice or opportunity was given to the management. The Apex Court under such circumstances held that transfer of the case from one Court to other without giving an opportunity of hearing to the management vitiates the decision of the Government. Learned counsel appearing for the Opp. No notice or opportunity was given to the management. The Apex Court under such circumstances held that transfer of the case from one Court to other without giving an opportunity of hearing to the management vitiates the decision of the Government. Learned counsel appearing for the Opp. Party No. 5 in the present case could not cite any decision contrary to the view taken by the Apex Court in the aforesaid case. In view of the above, the order passed by the appropriate Government in Annexure 7 transferring the dispute case from Sambalpur to Rourkela without giving an opportunity of hearing to the petitioner-company is vitiated and unsustainable in law. 7. In view of the discussions made above the writ application is allowed and the orders in Annexures 6 and 7 are quashed. Before parting with the case, I feel it appropriate to direct the Labour Court, Sambalpur to dispose of the. aforesaid ID case within a period of six months from the date of communication of this order. Requisites for communication of this order be filed within one week. Final Result : Allowed