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2016 DIGILAW 105 (HP)

Joginder Singh v. State of H. P.

2016-02-24

P.S.RANA

body2016
ORDER : P.S.Rana Judge. Present civil writ petition is filed under Article 226 of the Constitution of India with prayer that impugned order dated 18.9.2009 passed by non-petitioner No. 2 Labour Commissioner HP be quashed and set aside. Further prayer sought that non-petitioner No.2 Labour Commissioner HP be directed to send reference of petitioners to learned Labour Court for adjudication on merits. BRIEF FACTS OF THE CASE: 2. It is pleaded that in the year 1978 petitioners were engaged as workers in M/s Purolator India Limited Company at Parwanoo and were working as skilled workers till 24.9.2007. It is further pleaded that on dated 24.9.2007 all petitioners were superannuated at the age of 57 years without complying certified standing orders and model standing orders. It is further pleaded that on dated 15.12.2007 all petitioners submitted demand notices to management as well as to Labour Inspector-cum-Conciliation Officer Solan for conciliation of matter. It is further pleaded that conciliation could not be effected and thereafter Labour Commissioner HP in the month of September 2009 did not refer the matter to learned Labour Court for adjudication. Prayer for acceptance of civil writ petition sought. 3. Per contra response filed on behalf of non-petitioners No.1 and 2 pleaded therein that superannuation age was enhanced from 55 years to 66 years. It is further pleaded that after enhancement of retirement age from 55 years to 60 years management of M/s Purolator India Limited Parwanoo District Solan HP filed appeal before learned Labour Court Shimla which was accepted by learned Labour Court and learned Labour Court held that raising the age of retirement from 55 to 60 years ignoring the existing settlement entered into between the parties is illegal. It is further pleaded that thereafter civil writ petition filed before Hon’ble High Court of HP against the order of learned Labour Commissioner. It is further pleaded that during the pendency of civil writ petition before Hon’ble High Court of HP petitioners retired at the age of 55 years. It is further pleaded that during the pendency of civil writ petition Hon’ble Division Bench High Court of HP passed order that Company would not retire the employee on the basis of new certified standing orders till further orders in view of the fact that matter is subjudice before Hon’ble Apex Court of India. It is further pleaded that during the pendency of civil writ petition Hon’ble Division Bench High Court of HP passed order that Company would not retire the employee on the basis of new certified standing orders till further orders in view of the fact that matter is subjudice before Hon’ble Apex Court of India. It is further pleaded that present writ petition is bad for non-joinder of necessary party i.e. the management of M/s Purolator India Limited Parwanoo District Solan HP. Petitioner filed re-joinder and re-asserted the allegations mentioned in writ petition. 4. Court heard learned counsel appearing on behalf of petitioners and learned counsel appearing on behalf of non-petitioners and also perused entire record carefully. 5. Following points arise for determination in the present writ petition: (1) Whether civil writ petition is liable to be accepted as mentioned in memorandum of grounds of civil writ petition? (2) Relief. Finding upon point No.1 with reasons. 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner be retired at the age of 60 years in view of latest certified standing order and middle standing order and matter be referred to learned Labour Court for adjudication is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that M/s Purolator India Limited Parwanoo filed appeal under Section 6 of Industrial Employment (Standing orders) Act 1946 against the order of Joint Labour Commissioner dated 15.11.2003 titled M/s Purolator India Ltd. Vs. Purolator Workers Union and another. It is proved on record that Industrial Tribunalcum- Labour Court Shimla HP in appeal No.1 of 2004 decided on 22.9.2007 held in similar nature case that M/s Purolator Workers Union and another is debarred from agitating any demand in view of existing settlement entered between M/s Purolator India Ltd. Vs. Purolator Workers Union and another relating to raising the age of retirement from 55 years to 60 years. It is proved on record that learned Labour Court set aside order dated 15.11.2003 passed by Joint Labour Commissioner. It is also proved on record that thereafter Purolator Workers Union filed CWP No. 1645 of 2007 before Hon’ble High Court of HP. It is prima facie proved on record that on dated 13.3.2008 Hon’ble Division Bench High Court of HP passed following orders which is quoted in toto: 13.3.2008 Present: Mr.V.D.Khidta, counsel for the petitioner. Mr.Dushyant Dadwal, counsel for Respondent No.1. It is prima facie proved on record that on dated 13.3.2008 Hon’ble Division Bench High Court of HP passed following orders which is quoted in toto: 13.3.2008 Present: Mr.V.D.Khidta, counsel for the petitioner. Mr.Dushyant Dadwal, counsel for Respondent No.1. Mr.R.K.Bawa, Advocate General with Mr.J.K.Verma, Deputy Advocate General for respondents No. 2 and 3. Mr.Dushyant Dadwal submits that this case is more or less covered by the judgment of this Court in LPA No. 73 of 2007. However he submits that the company in that case has approached the Supreme Court and the matter is fixed for 24th March 2008. He requests that the matter be taken up thereafter. This request is accepted. It is however made clear that the respondent-company shall not retire the employee on the basis of new certified standing orders till further orders of this Court. Sd/- Judge Judge March 13 2008. Hon’ble Division Bench High Court of HP on dated 13.3.2008 in CWP No. 1645 of 2007 held that order passed in LPA No. 73 of 2007 is challenged before Hon’ble Apex Court of India and matter of similar nature is subjudice before Hon’ble Apex Court of India. Court is of the opinion that as similar nature of matter is subjudice before Hon’ble Apex Court of India against the order passed by High Court of HP in LPA No. 73 of 2007 the case of the petitioner will also be covered as per decision of Hon’ble Apex Court of India relating to LPA No. 73 of 2007. 7. Submission of learned Advocate appearing on behalf of petitioner that learned Labour Commissioner was under legal obligation to refer the matter to learned Labour Court for adjudication is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused order of learned Labour Commissioner. Learned Labour Commissioner has specifically mentioned in his order dated 18.9.2009 that Purolator Workers Union filed an application before Certifying Officer for amendment the age of retirement from 55 years to 60 years and thereafter Joint Labour Commissioner –cum-Certifying Officer vide order dated 15.11.2003 amended the age of retirement from 55 years to 60 years. Learned Labour Commissioner has further mentioned in his order dated 18.9.2009 that thereafter company filed an appeal against the order dated 15.11.2003 before learned Labour Court and the appeal was allowed by learned Labour Court Shimla on dated 22.9.2007. Learned Labour Commissioner has further mentioned in his order dated 18.9.2009 that thereafter company filed an appeal against the order dated 15.11.2003 before learned Labour Court and the appeal was allowed by learned Labour Court Shimla on dated 22.9.2007. Learned Labour Commissioner has specifically mentioned in his order that the workers Union has filed CWP No. 1645 of 2007 before Hon’ble Division Bench High Court of HP and High Court of HP directed that company would not retire the employee on the basis of new certified standing orders till further orders of Court. It is proved on record that learned Labour Commissioner has declined to send reference to learned Labour Court for adjudication in view of the direction of Hon’ble Division Bench High Court of HP passed in CWP No. 1645 of 2007 dated 13.3.2008. It is prima facie proved on record that learned Labour Commissioner has simply comply interim order of Hon’ble Division Bench High Court of HP passed in CWP No. 1645 of 2007 dated 13.3.2008. 8. In view of the fact that interim order was passed by Hon’ble Division Bench High Court of HP on dated 13.3.2008 in CWP No. 1645 of 2007 quoted supra and in view of the fact that judgment passed in LPA No. 73 of 2007 was challanged before Hon’ble Apex Court of India and in view of fact that matter is subjudice before Hon’ble Apex Court of India it is held that it is not expedient in the ends of justice to allow civil writ petition. Petitioner did not place on record any final decision of Hon’ble Apex Court of India relating to LPA No. 73 of 2007. Hence point No.1 is answered accordingly. Point No.2 (Relief). 9. In view of finding upon point No.1 it is held that final decision of Hon’ble Apex Court of India relating to LPA No. 73 of 2007 will be followed in CWP No. 6672 of 2010 titled Joginder Singh and others Vs. State of HP and another. No order as to costs. Writ petition is disposed of. All miscellaneous application(s) are also disposed of.