Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 2472 (PNJ)

Suraj Parkash v. Presiding Officer

2006-07-04

ARVIND KUMAR, J.S.NARANG

body2006
Judgment , J. 1. Petitioner has invoked the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari for quashing award dated 22.2.2002 Annexure P-1, vide which his reference has been dismissed and also a writ of Mandamus for directing respondent No.1, while restoring the aforesaid reference to the position it stood prior to 22.2.2002, to decide the same on merits after giving due opportunity to the parties to prove their respective claims. 2. As per case set out in the writ petition, petitioner-workman, who belongs to Scheduled Caste, was appointed as Apprenticeship Trainee in workers grade-11 on 12.5.1976 with respondent No.2, namely Hindustan Machine Tools Limited, Pinjore, District Panchkula (hereinafter referred to as the management ). It is stated that since his service record was up to the mark, he was promoted from time to time and his last promotion was to the post of Master Craftsman (turner) with designation of Senior Turner-A. It is further stated that after more than 23 yearss service, on some anonymous complaint to the effect that the caste of the petitioner was Jogi (OBC) instead of Khatik (S. C.), an enquiry was conducted and his services were terminated on 13.11.1999. Petitioner challenged the enquiry proceedings as also the order terminating his services by filing Civil Writ Petition No.2611 of 2000 in this Court which came to be dismissed on 12.5.2000 with a liberty to the petitioner to avail an alternative remedy under the Industrial Disputes Act, 1947 (in short, the Act ). In pursuance thereto, petitioner gave demand notice and finally, his case was referred for adjudication to the Labour Court, Ambala. Petitioner filed claim statement before the Labour Court to which written statement was filed by respondent-management and the case was then fixed for 22.2.2002 for filing of replication. Petitioner has stated that on 22.2.2002 when he along with his counsel appeared before the Labour Court for filing replication, it was enquired by the Court that as to how petitioners reference was maintainable in view of Sec.2 (a) of the Act ibid as the respondent-management being a Central Public Sector Undertaking, carried on under the authority of the Central Government and as such, the Labour Court at Ambala (Haryana) lacked jurisdiction to try and hear the matter and that the same should have been presented before the Central Government Tribunal-cum-Labour Court. It is further stated in the petition that as the petitioner was told by the Court that on his failure to withdraw the case, the same will have to be dismissed for want of jurisdiction, he (petitioner) accordingly made statement withdrawing the reference with liberty to approach the competent Court. Petitioner has stated that he engaged a counsel for the purpose of filing demand notice before the Assistant Labour Commissioner (Central) when he was apprised of notification dated 3.7.1998 issued by the Central Government (Annexure P-4) as per which the schedule appended thereto in case of a list of 129 Companies, the Central Government under Sec.39 of the Act delegated the power of being an appropriate Government to the concerned State Government including the respondent-management vide item No.37. Petitioner has further stated that in view of the said notification, the Haryana Government was the appropriate Government and accordingly, the Labour Court at Ambala was itself the competent Court to hear the reference. Accordingly, petitioner moved an application before the Labour Court Ambala along with an affidavit seeking permission to withdraw statement so given by him on 22.2.2002 and for restoring the case stating therein that award dated 22.2.2002 had not been published and that the same was only a procedural order made with the misconception that the proper procedure with regard to an industrial dispute concerning the respondent-management was the reference by the Central Government to the Central Government Industrial Tribunal-cum-Labour Court. However, the said application was dismissed by the Labour Court on the ground that it had become functus officio and thus, had no power to allow his application. Hence, this writ petition. 3. Upon notice of the writ petition, written statement has been filed by the respondent-management. It has been alleged therein by way of preliminary objection as also on merits that award, Annexure P-1, was published on 26.8.2003 and thus, the same became effective after expiry of 30 days i. e.25.9.2003. It is further alleged that petitioner received certified copy of award on 9.9.2003, but chose not to challenge the same till 8.10.2003 by which date the award became final and as such, the writ petition is belated one. 4. Replication has been filed to the written statement controverting the pleas taken therein and reiterating the one in the writ petition. 5. 4. Replication has been filed to the written statement controverting the pleas taken therein and reiterating the one in the writ petition. 5. Learned Counsel for the respondent has argued that the petitioner had played a fraud in getting employment by posing himself to be belonging to Khatik community though he belonged to Jogi caste which is a backward caste for which an adequate enquiry was conducted and he was dismissed from service. Thus, he by his own act and conduct is not entitled to any relief. Counsel in support of his argument has relied upon a judgment of the Supreme Court in Bank of India and Anr. V/s. Avinash D. Mandivikar and Ors. The argument of the learned Counsel is premature as this Court at this juncture is not hearing the case on merits. The only relief sought is revival of the reference to be adjudicated upon by the Labour Court as earlier the reference was withdrawn under the misconception that the Court had no jurisdiction to adjudicate upon the reference on merits. A bare perusal of the case file shows that the reference was withdrawn under the mistaken belief that H. M. T. was a Central Government Public Sector Undertaking and the appropriate Government would be the Central Government upon whose reference the matter could be referred to the Central Government Industrial Tribunal-cum-Labour Court. As a matter of fact, the Central Government vide notification dated 3.7.1998, Annexure P-4, delegated its power of being an Appropriate Government to the concerned State Government and vide item No.37 of the Schedule appended with the notification, H. M. T. had also been included and in this backdrop, it was only the Labour Court at Ambala which itself was the Competent Court to adjudicate upon the reference. There is nothing on record to suggest that there was any mala fide on the part of the petitioner in withdrawing the reference. The erros seems to be bona fide due to some confusion and is certainly not intentional. A reading of award, Annexure P-l, further shows that withdrawal of the reference was with liberty lo file a case in Civil Court/competent Court intact. Since the Labour Court at Ambala itself had the jurisdiction to adjudicate upon the reference, it is a fit case for revival of the reference. Admittedly, award dated 22.2.2002, Annexure P-l, was published on 26.8.2003. A reading of award, Annexure P-l, further shows that withdrawal of the reference was with liberty lo file a case in Civil Court/competent Court intact. Since the Labour Court at Ambala itself had the jurisdiction to adjudicate upon the reference, it is a fit case for revival of the reference. Admittedly, award dated 22.2.2002, Annexure P-l, was published on 26.8.2003. Under Sub-section (1) of Sec.17a of the Act ibid, an award becomes enforceable on expiry of 30 days from the date of its publication. Sub-section (3) of Sec.20 provides that proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Sec.17a. Till the award becomes enforceable, the Tribunal retains jurisdiction over the dispute referred to It for. adjudication and up to that date, the power to entertain an application in connection with such dispute. In the present case, application for restoration/revival of the reference had been filed on 12.4.2002. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. Thus, the Tribunal had not become functus officio. For thus, we find support from a judgment of the Supreme Court in Kapra Mazoor Ekta Union V/s. Management of Birla Canon Spinning and Heaving Mills Ltd. and Ors.2005 (2) Services Cases Today 382. 6. For the afore-stated reasons, we find that order dated 3.10.2002 and award dated 22.2.2002, cannot be sustained and are hereby set aside. Accordingly, the writ petition stands allowed. Reference is restored to the file of the Labour Court, Ambala. 7. Parties through their counsel are directed to appear before the Labour Court. Ambala, on 2.8.2006. .