A.B.C. Export vs State of U.P. and Others

Rakesh Tiwari, J.—Heard counsel for the petitioner and the standing counsel.

This writ petition has been filed challenging legality and correctness of the order dated 12.9.2007 appended as annexure-1 to the writ petition.

By the aforesaid order, the Deputy Labour Commissioner, Mirzapur Region, Pipri, Sonbhadra is claimed to have illegally superceded the previous reference and amendment made in the reference order dated 8.4.2008 by the Labour Commissioner in the garb of amending aforesaid reference order.

It appears that previous reference order has been amended by the Dy. Labour Commissioner by deleting the name of M/s A.B.C. Limited and in place thereof name of M/s A.B.C. Export, which is a partnership concern, has been substituted.

Contention of the counsel for petitioner is that the aforesaid order dated 8.4.2008 passed by respondent No. 3 is without any basis for the reasons:

(a) that establishment of the petitioner M/s A.B.C. Export is situated at Imalaha, Mirzapur which was closed with effect from 1.4.2004 and closure notice is also appended as annexure-3 to the writ petition;

(b) that an industrial dispute was raised by the workman-respondent No. 5 against (1) M/s A.B.C. Limited, and (2) M/s A.B.C. Limited Kray Kendra and not against the petitioner;

(c) that the petitioners in their reply to application of respondent No. 5 filed an objection before the Regional Conciliation Officer on 26.4.1999 specifically averring that the petitioner has no concern or relation with M/s A.B.C. Limited or M/s A.B.C. Kray Kendra and that dispute between the petitioner and aforesaid concern has no nexus with the partnership firm of petitioner M/s A.B.C. Export; and

(d) that the workman has no relation with any of the parties named in the application and that inspite of objections, the workman did not amend his application u/s 2-A before Regional Conciliation Officer impleading the petitioners and if they were in fact his employers, he ought to have amended his application at that stage.

It is stated that on reference, summons were wrongly sent by the labour court at the petitioners'' address though M/s A.B.C. Limited and M/s A.B.C. Kray Kendra have different address than the petitioner, as such the petitioner filed objections before the labour court inter alia that petitioner is neither named in the reference order nor has any relation with the workman in the case.

It appears that after hearing the parties i.e. the petitioner and workman, the labour court vide order dated 28.11.2006 held that there is no relation between the parties named in the order of reference namely M/s A.B.C. Limited, M/s A.B.C. Kray Kendra and M/s A.B.C. Exports which are independent organisations having no relations with each other and that there is no averment on behalf of the workman that the parties named in the reference order have been acquired or merged with the petitioner firm M/s A.B.C. Exports, therefore, petitioner''s firm cannot be impleaded as party on the basis of possibility, and application of the workman was accordingly rejected. Findings of the labour court in this regard are as under:

eSus i{kdkjksa ds fo}ku izfrfuf/k;ksa dk rdZ lquk ,oa i=koyh dk voyksdu fd;k A lanHkkZns''k esa lsok i{k fuEufyf[kr ukfer gS%

1- es0 ,0ch0lh0fy0] yky fMXxh] ehjtkiqj A

2- es0 ,0ch0lh0fy0 dz; dsUnz] Hknksgh] tuin &lar jfonkluxj A

vkifRrdrkZ ds vuqlkj mldh QeZ ,0ch0lh0 ,DliksVZ] fetkZiqj gS A lanFkkns''k esa ukfer i{k ,oa vkifRrdrkZ vyx&vyx laLFkk gS vkSj vyx LFkku ij LFkkfir gS tSlk fd vkifRr ls izdV gS vkSj i{kdkjks dh vksj ls fookn esa ugh gS A

Jfed Ik{k dh vksj ls ;g rdZ fn;k x;k fd lsok;kstu Ik{k ds ekfyd lh0ih0 xqIrk gS vkSj vc mUgksus QeZ dk uke cny fn;k gS bl dkj.k og fof/kor i{kdkj gS bl lanHkZ esa mUgksus Jek;qDr] m0iz0 dk vkns''k Hkh izLrqr fd;k ijUrq mDr vkns''k dh QksVks izfr izLrqr dh xbZ gS bl vkns''k esa ,slk dFku fd;k x;k fd mijksDr lHkh QeZ ,d gh O;fDr esa lcaf/kr gS A ;fn ,slh fLFkfr Fkh rks lanHkZkns''k vf/kdkjh dk mRrjnkf;Ro Fkk fd lsok;kstdks esa ,0ch0lh0 ,DliksVZ] ehjtkiqj dks Hkh i{kdkj cukrk ijUrq ,slk ugh fd;k x;k A bl dkj.k ml vfHkys[k dk ykHk Jfed dks ugh fn;k tk ldrk A Jfed dh vksj ls ,slk dksbZ dFku ugh gS vFkok lekdsfrd dj fy;k gS vFkok mudk QeZ LFkkukUrfjr dj fn;k x;k gS A vfHk0 fo0 esa vkS0 fo0 vf/k0 1947 ds varxZr u;k i{kdkjksa dks i{kdkj cukus gsrq ,slk vko;''d gS fd ,sls vfHkfu.kZ; dks izHkkooh fd;k tk lds rHkh vfrfjDr i{kdkj ck, tk ldrs gS ysfdu ,sls Ik{kdkj cukus ds fy, lanHkkZns''k esa ukfer lsok;kstd ,oa QeZ ,0ch0lh0 ,DliksVZ ,slh vyx vyx laLFkk,a gS A ftudk ,d nwljs ls dksbZ laca/k ugh gS A Hkfo"; esa Hkh buds ,d gksus dk iz''u ugh gS A ;fn ,slk lEHko gS rc Hkkjrh; dEiuh vf/kfu;e ds varxZr dk;Zokgh fd;k tkuk vko;''d gS A bl izdkj ek= laHkkouk ds vk/kkj ij Hkh ,0ch0lh0 ,DliksVZ dks i{kdkj ugh cuk;k tk ldrk A bl lanHkZ esa iSjh bEIykbt ;wfu;u cuke tt lsdsUM baMfLV�;y fV�C;wuy osLV caxky dydRrk o vU; 1997 [kaM 77 ,Q,yvkj ist 430@426 ij fo''okl O;Dr djrk gwWa A mijksDr rF;ksa ds lanHkZ esa ,0ch0lh0 ,DliksV yky fMXxh ds fo:) uskfVl tkjh djuk ,oa i{kdkj Lohdkj djrs gq, dk;Zokgh djuk U;k;ksfpr ugh gS vr% mUgs lanHkkZos''k ls �foeqDr@fMLpktZ� fd;k tkrk gS A

g0 ih0v0 28-11-06

Counsel for the petitioner has placed annexure-11 before this Court which is statement of demand by the workman dated 22.5.2006 filed on affidavit in adjudication case No. 87 of 2003 wherein the workman has stated that he was appointed by M/s A.B.C. Hitkari Enterprises and after sometime its name was changed as A.B.C. Limited which after his termination was changed to M/s A.B.C. Overseas Ltd.

He then urged that even from the aforesaid statement of demand by the workman it is apparent that he never claimed to be an employee of M/s ABS Exports which has now been impleaded/substituted and deleting the real employer from the order of reference on an application filed by the workman before the Deputy Labour Commissioner dated 20.4.2007 containing misrepresentation of facts wherein it has wrongly been mentioned that workman had raised dispute against M/s A.B.C. Exports, Imalaha, Mirzapur which is against the record ; that a perusal of the application filed before Deputy Labour Commissioner appended as annexure -4 shows that workman had made M/s A.B.C. Limited, Lal Diggi, Mirzapur and M/s A.B.C. Limited, Kray Kendra, Bhadohi as party and not impleaded petitioner M/s A.B.C. Exports in spite of the fact that they had specifically denied any relationship with them which were independent organisations and also the fact that they had no relationship of master and servant with respondent No. 5.

The counsel for petitioner emphatically argued that the order of reference is in supersession of earlier order of reference which could not have been done as parties can be added or amended in view of Section 10(5) of the Industrial Disputes Act (Central), 1947. He has relied upon paragraph No. 10 of the judgment in State of Maharashtra v. Kamani Employees'' Union and Ors. 1975 LAB. I.C. 387 and upon The State of Bihar Vs. D.N. Ganguly and Others,

From perusal of decision in State of Maharashtra v. Kamani Employees'' Union and Ors., it appears that Court has clarified meaning of supersession and withdrawal of reference order in paragraph 10 of the said judgment. Whereas the case of State of Bihar v. Ganquli (D.N.) and Ors. pertains to cancellation of the order of reference and it is in that context the Court considered sections 7, 10, 12, 15, 17-A and 33 read with Section 21 of the General Clauses Act regarding power of the appropriate government to cancel, withdraw and supersede the reference already made and which is pending adjudication.

In my considered opinion, case of the petitioner is distinguishable from the facts of the aforesaid cases only on the ground that in this case the petitioner totally disclaims any relationship of master and servant with the workman-respondent No. 5, and hence even if the order of reference is amended or superseded or withdrawn, it will have no effect upon the case of the petitioner if he is not employer of the workman concerned.

In the circumstances and for the reasons stated above, without entering into the merits and the technicalities, this writ petition is being finally disposed of at this stage by directing the labour court to frame a specific issue with regard to the question as to whether the petitioner was employer of respondent No. 5 or not, and then proceed with other issues regarding supersession/withdrawal of order of reference and the main reference. No order as to costs.