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2005 DIGILAW 487 (RAJ)

CHANAKYA RESTAURANT v. STATE OF RAJASTHAN

2005-02-14

ASHOK PARIHAR

body2005
Judgment ASHOK PARIHAR, J. ( 1 ) SINCE on similar set of facts, almost same relief has been claimed in both the writ petitions, on request of counsel for the parties, both the writ petitions have been heard together and are being decided by this common order. ( 2 ) THE petitioner gave a notice of closure under Section 25-FFF to the Labour commissioner on November 29, 2002. It appears that the matter was taken up in conciliation by the Labour Commissioner and dispute having not been resolved between the petitioner and the concerned workmen, a special order under Section 10-K of the industrial Disputes (Rajasthan Amendment)Act, 1970 (hereinafter to be referred as the Act)was issued by the State Government on february 3, 2003 restraining the petitioner from closing down the establishment proposed w. e. f. February 4, 2003. Certain necessary directions were also issued for continuing the employees already working in the establishment in service and make them payment accordingly as they were receiving before the intended closure. The above directions were to be effective for one year from the date of issuing of the special order i. e. February 3, 2003. Subsequently, since the petitioner failed to comply with the directions issued in the special order under Section 10-K dated February 3, 2003, an application under section 33-C (l) of the Industrial Disputes Act, 1947 was filed by the concerned workman before the Labour Court Commissioner. Initially, the application was filed for two months salary and other emoluments. The labour Commissioner, vide impugned order dated September 15, 2003, computed and determined a sum of Rs. 2,96,200. 50 in favour of the concerned workmen. The order dated september 15, 2003 is also under challenge in the second Writ Petition No. 6436/2003 by the petitioner. ( 3 ) AFTER hearing counsel for the parties, I have carefully gone through the material on record, the impugned orders as also the provisions of the Act. ( 4 ) SECTION 10-K was introduced by the state of Rajasthan in the Industrial Disputes (Rajasthan Amendment) Act of 1970. ( 3 ) AFTER hearing counsel for the parties, I have carefully gone through the material on record, the impugned orders as also the provisions of the Act. ( 4 ) SECTION 10-K was introduced by the state of Rajasthan in the Industrial Disputes (Rajasthan Amendment) Act of 1970. The same is reproduced here as under:"section 10-K. (1) Notwithstanding anything contained in this Act, if in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or convenience for the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment or maintaining industrial peace, it may be a general or special order, make provisions: (a) for requiring employees, workmen or both to observe for such period as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order; and (b) for prohibiting, subject to the provisions of the order, strikes or lock-outs generally or a strike or lock-out in connection with any industrial dispute. (2) In case any industrial dispute is raised in respect of any provisions in the order of the state Government made under sub-section (1) within a period of three months of the order, it shall be referred by the State government for adjudication to an industrial Tribunal and the order shall lapse when the award of the Tribunal becomes enforceable: provided, however, that the reference of the industrial dispute to adjudication shall not have the effect of staying the operation of the order. "a bare reading of the provision as referred above would show that that the State Government has been empowered to issue certain directions under Section 10-K for securing the public safety and convenience of maintenance of public order or supplies and services essential to the life of the community or for maintaining employment or maintaining industrial peace. It has further been provided under the above provisions that in case any industrial dispute is raised in respect of any provisions in the order passed under Section 10-K, the State government shall refer the dispute for adjudication to an Industrial tribunal. A presumption can be drawn that if no fixed period is provided under the orders itself, the same shall expire or lapse when the award of the Tribunal becomes enforceable. A presumption can be drawn that if no fixed period is provided under the orders itself, the same shall expire or lapse when the award of the Tribunal becomes enforceable. It has also been provided that the reference to the Industrial Tribunal for adjudication shall not have the effect of staying the operation of the order passed under Section 10-K. ( 5 ) IN the present matter, the closure was to be made effective from February 4, 2003. The state Government issued the notification under section 10-K of February 3, 2003 which was made effective for one year. Though the petitioner has been opposing the order dated february 3, 2003 issued under Section 10-K, however, no reference to the Industrial Tribunal has been made so far by the State Government. No reasons whatsoever have also been given by the State Government as to why such dispute was not and could not be referred to the Industrial tribunal for adjudication. Since the remedy of such disputes being (sic) adjudicated by the industrial Tribunal is available to both the parties, i find no justification for deciding the legality and prosperity of impugned order issued under section 10-K at this stage, more so, when the period provided under the special order itself has expired after completion of one year. ( 6 ) HAVING considered entire facts and circumstances as also in the interest of justice, i now deem it proper to direct the State government to refer the dispute in regard to the proposed closure and condition mentioned in the impugned order issued under Section 10-K for adjudication to the appropriate Industrial tribunal within thirty days from the date of receipt of certified copy of this order. It is expected from the Tribunal also to expedite the hearing if any such reference is received from the State Government. It is expected from the Tribunal also to expedite the hearing if any such reference is received from the State Government. ( 7 ) IN view of the specific provisions under Section 10-K itself, reference of the industrial dispute for adjudication shall not have the staying operation of the order, though i find no illegality in the order passed by the labour Commissioner under Section 33-C (l) computing/determining the amount due in favour of the concerned workmen however, since the order dated September 15, 2003 under Section 33-C (l) has been passed only for two months and as per submissions of learned counsel for the petitioner some of the workmen have already settled their dispute with the management; to protect the rights of the concerned workmen for at least one year for which the special order under Section 10-K has been in force; I deem it proper to direct the petitioner to submit a bank guarantee of Rs. 17,00,000/- with the Labour Commissioner within thirty days as referred above. The above bank guarantee shall be subject to final award to be passed by the Industrial Tribunal. It goes without saying that in case the award is passed in favour of the concerned workman, they are always free to recover the entire amount from the petitioner in accordance with law. The concerned workmen are also free to submit application for interim relief if they are otherwise so entitled under the law before the Tribunal. ( 8 ) BOTH the writ petition are disposed of accordingly.