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2024 DIGILAW 2165 (ALL)

Hindustan Aeronautics Limited v. Union of India

2024-09-30

CHANDRA KUMAR RAI

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JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Diptiman Singh, learned counsel for the petitioner and Mr. Annapurna Singh Chandel, learned counsel for respondent nos. 1 to 3. 2. Brief facts of the case are that petitioner- Hindustan Aeronautics Limited, a Central Government undertaking, incorporated under the Indian Companies Act, having its registered office at Bangalore, is engaged in the manufacturing, repairing and overhauling of sophisticated aircraft and other defence equipment in India. The present writ petition relates to the Transport, Aircraft Division, H.A.L., Kanpur Division which deals with manufacturing/maintaining/overhauling/repairing of transport aircraft used by defence forces of the nation. The petitioner has its certified standing orders which are certified by Certifying Officer as provided under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as “the Act”) and each division has a separate standing order which is approved by the competent authority/Certifying Officer. On 25.4.2016, the petitioner has submitted a draft for modification/amendment of certified standing orders before respondent no.3 under the provisions of Section 10 of the Act. The petitioner filed an application on 13.6.2018 before respondent no.3, stating that certified standing orders at H.A.L., Barrackpore Division has been amended and new clause of pre-mature retirement of workman has been incorporated. On 25.4.2019, another application was filed before respondent no.3 on behalf of the petitioner, stating that clause of pre-mature retirement of the workman has been approved and incorporated in Lucknow as well as in Hyderabad Division of H.A.L. on 5.3.2019 and 6.3.2019 respectively. Another application was filed on behalf of the petitioner on 8.7.2019 before respondent no.3, requesting that proposed incorporation/modification of certified standing orders of H.A.L., Kanpur may also be approved. Respondent no.3 vide order dated 30.9.2020 rejected the proposed amendment/modification of certified standing orders. The petitioner challenged the order dated 30.9.2020 by way of appeal under Section 6 of the Act before respondent no.2 which has been dismissed under the impugned order dated 20.7.2021 on the ground that Mr. Jaspal Singh, Senior Manager (HR), H.A.L. is not competent to file the appeal. The petitioner challenged the order dated 30.9.2020 by way of appeal under Section 6 of the Act before respondent no.2 which has been dismissed under the impugned order dated 20.7.2021 on the ground that Mr. Jaspal Singh, Senior Manager (HR), H.A.L. is not competent to file the appeal. Hence, the instant writ petition for the following relief:- “(i) Issue a writ, order or direction in the nature of certiorari to quash the order dated 20.7.2021 passed by respondent no.2 (Annexure No.1 to the writ petition) (ii) Issue a writ, order or direction in the nature of mandamus, directing respondent no.2 to decide the appeal of the petitioner dated 19.10.2020 (Annexure no. 10 to the writ petition) afresh, through a reasoned and speaking order in respect of the proposed amendment/modification of certified standing orders of the petitioners.” 3. This Court vide order dated 25.10.2021 issued notice to respondent nos. 4 & 5. In pursuance of the order dated 25.10.2021, steps have been taken on behalf of the petitioner but nobody has put in appearance on their behalf although service is sufficient upon respondent nos. 4 & 5 according to office report dated 23.5.2024. No counter affidavit has been filed on behalf of respondent nos. 1 to 3 who are represented by the office of the Asst. Solicitor General of India. 4. Learned counsel for the petitioner submitted that the impugned orders have been passed in illegal and arbitrary manner. He further submitted that the appeal filed by the petitioner has been dismissed on misconceived grounds that there was no proper power of attorney executed by the Factory Manager, although Senior Manager (HR) was duly competent and was delegated by the General Manager with the authority to represent H.A.L. before the appellate authority but the appeal has been dismissed on misconceived grounds. He further submitted that Nasik, Barrackpore, Luckonw and Cobra Division of H.A.L. have already incorporated the proposed amendment regarding pre-mature retirement of workman, as such, there was no occasion to reject the proposed amendment in Kanpur Division. He submitted that impugned appellate order be set aside and matter be remitted back before appellate court to decide the appeal afresh on merit. 5. On the other hand, learned counsel for respondent nos. 1 to 3 have supported the impugned orders, stating that there is no illegality in the impugned appellate order, as such, no interference is required in the matter. 6. 5. On the other hand, learned counsel for respondent nos. 1 to 3 have supported the impugned orders, stating that there is no illegality in the impugned appellate order, as such, no interference is required in the matter. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that respondent no.3 vide order dated 30.9.2020 rejected the proposed amendment/modification claimed by the petitioner in the certified standing orders and the appeal filed by the petitioner has been dismissed, on the ground that there was no proper power of attorney executed by the Factory Manager. 8. In order to appreciate the controversy involved in the matter, the perusal of the proposed incorporation under Clause 18(A) in the certified standing orders of the division will be relevant which is as under:- “Clause 18(A) : “Premature retirement of workmen” (i) The normal age of superannuation in the company is 60 years. However, the management will have the right to terminate the service of any workmen on account of inefficiency/non-performance/misconducts at any time during his services if his services are no longer required provided he/she has either completed at least 15 years of continuous service in the company or attained 45 years of age as on the last date of the preceding month of September. (ii) Premature retirement from the services shall not amount to punishment. On premature retirement the workmen will be eligible for various benefits as applicable to workmen who retire from the services of the company on grounds other than punishment.” 9. The perusal of Sections 2(d)(i) and 6 of the Act will be relevant for perusal which are quoted hereunder:- Section 2(d)(i) of the Act:- “employer means the owner of an industrial establishment to which this Act for the time being applies, and includes- (i) in a factory, any person named under (clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948 (63 of 1948), as manager of the factory. Section 6 of the Act:- “Any employer, workman, trade union or other prescribed representatives of the workmen aggrieved by the order of the Certifying Officer under sub-section (2) of Section 5 may within (thirty days) from the date on which copies are sent under sub-section (3) of that section, appeal to the appellate authority, and the appellate authority, whose decision shall be final, shall by order in writing confirm the standing orders either in the form certified by the Certifying Officer or after amending the said standing orders by making such modifications thereof or additions thereto as it thinks necessary to render the standing orders certifiable under this Act.” 10. In the instant matter, the appeal filed by the petitioner through Mr. Jaspal Singh, Senior Manager, (HR), H.A.L., Kanpur has been dismissed under the impugned appellate order, as not maintainable because Mr. Jaspal Singh was not found competent to file the appeal. The review application filed by the petitioner before respondent no.2, stating that there was proper authorization to Mr. Jaspal Singh to file the appeal, annexing authorization letter along with the review application but no order was passed on the review application. 11. In view of the authorization letter given to Mr. Jaspal Singh (HR), H.A.L. by the petitioner, the dismissal of appeal on the ground of maintainability by respondent no.2 is not in the interest of justice. It is also material that the proposed amendment which has been claimed by the petitioner in Kanpur Division, has already been allowed in other divisions, as such, the appeal filed by the petitioner is to be decided on merit, considering the fact that the proposed amendment has already been allowed in other divisions. 12. Considering the facts and circumstances, the impugned appellate order dated 20.7.2021 passed by respondent no.2 is liable to be set aside and the same is hereby set aside. 13. The writ petition stands allowed and the matter is remitted back before respondent no.2/Appellate Authority under the Industrial Employment (Standing Orders) Act, 1946/Deputy Chief Labour Commissioner (Central), Kanpur to register the petitioner’s appeal on its original number and decide the same on merit, after affording opportunity of hearing to the petitioner, expeditiously, preferably within a period of 3 months from the date of production of the certified copy of the order.