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Judgment
A.B. Srivastava, J.—This is an employer''s writ petition against preliminary award dated 2481981 of the Industrial Tribunal (V) U,P. Meerut on certain issues decided as preliminary issues.
On cessation of the employment of the respondent No. 3, with petitioner, the respondent No. 3 sought to raise an industrial dispute. The State Government initially by its order dated 71 1978 refused" to refer the said dispute. On the respondent again approaching the State Government , the said Government declined to give reference by its order dated 2971978. On yet another representation being made by the respondent, however, the State Government vide its order dated 3101978 made a reference to the Industrial Tribunal of the question as to whether the termination of the respondent''s services by the employer was proper and valid and if not to what benefits/compensation, the respondent employee was entitled.
Before the tribunal the case of the respondent No. 3 was that he was appointed as general worker in the production department of the petitioner''s establishment but in order to deprive benefit of 240 days continuous service, artificial breaks were created and fresh appointments were made every year. From 30121976 to 2131977, the petitioner remained under medical treatment due to accidential injury while performing duty, at the expense of the employers, but he was not put back on duty and was informed that his services have been terminated w.e.f. 31121976, the said termination is illegal and unsustainable.
The case set up on behalf of the employer on the other hand was that, the petitioner was for the first time employed for a fixed term of one month on 191976 and his services were extended in three instalments upto 31121996, and came to an end by efflux of time w.e.f, 31121996, and there is no question of any termination or retrenchment. It was further contended that reference order of the State Government is against law and violative of principles of natural justice.
The tribunal on the above pleas of the parties framed as many as 11 issues. Out of it following four issues were taken up as preliminary issues. Issue No. 1. Did the State Government declare that it was not expedient to refer the matter in dispute for adjudication? If so, is the order of reference bad in law? Issue No. 2. Has the burden of proof been placed wrongly on the employers in the order of reference? Issue No. 10. Whether the services of Shri Ashok Kumar automatically came to an end on the expiry of the stipulated period of his employment ? If so, marked its effect? Issue No. 11. Whether the said automatic cessation, if any, of the workman''s services falls outside the purview of the Industrial Disputes Act, particularly Section 2A thereof. If so, its effect?
The tribunal in its preliminary award held that the State Government was empowered to refer the matter in dispute for adjudication even after refusal to do so and the reference cannot be assailed. The burden to prove that the service has validly been terminated has rightly been placed on the employer, that the cessation of employment of workman comes under the definition ''retrenchment'' and does not fall outside the purview of Section 2A of Industrial Disputes Act. It is these findings which are assailed by the petitioneremployer.
Taking up first the question regarding competence or otherwise of the State Government to make a reference of the Industrial Dispute, the contention of the petitioner is that, having declined twice to make reference, the State Government acted illegally in making reference on a third attempt being made by the workmen without affording opportunity of hearing to the petitioner. This contention however, stands fully answered by a Division Bench decision of this Court in Indian Explosives Ltd v. State of U.P. and others, 1981 (42) FLR 423. The Court on thorough consideration of relevant provisions of the Industrial Disputes Act, 1947, held that when in the first instance Government either by omission or by positive order declines to make a reference, there is no exercise of power under Section 4K of the Act and therefore, when State Government ultimately does choose to make a reference, the question of affording the management a hearing before taking different decision does not and cannot arise. Neither the employer nor the workman can claim any right to be heard before an order of reference is made either initially or on second thoughts.
On behalf of the petitioner, learned counsel appearing, Shri Tarun Agarwal has, on the other hand, submitted that the consensus of pronouncement made by the various other High Courts being that affording of opportunity of hearing, before making a reference after having refused it earlier, is necessary, the decision rendered by the Division Bench of this Court in the case of Indian Explosives Ltd. (supra) needs reconsideration. The cases cited in this regard are G. Muthukrishnan v. New Horizon Sugar Mills (P) Ltd., 1980 (41) FLR (MadrasFull Bench); Mis. Escorts Limited v. Industrial Tribunal Hariyana and others, 1983 Lab. 1C (P & H) 223 ; The Management of Theatre Sanjaya v. State and others, 1984 (2) Lab.LJ 400 (Karnataka), wherein principle afaudi altempartem is stated to be attracted while referring the matter for adjudication, after the same had been rejected earlier. Having gone through these pronouncements, this Court finds itself inclined to adopt the reasonings in Indian Explosives Ltd. (supra), in so far as there is nothing in the provisions of Section 4K of the Industrial Disputes Act, 1947, which may put a clog on the power of the State Government to make a reference after having once declined to do so, nor is there anything in the said provision which may put a second or third exercise in a category different than the initial exercise of power of making the reference. It cannot be said that any right vested in the employer stands taken away by this subsequent exercise of power by the State Government. It is also noteworthy that time lag between first and the second exercise by the Government was not too long so as to raise a presumption of any right having accrued to the employer on account of the initial refusal. The first order of refusal was dated 711978, whereas Annexure1 reference order is dated 3101978.
For all these reasons therefore, the maintainability of the reference, irrespective of merit of the rival claims, isnot open to question.
Now coming to the rest of the preliminary questions, it would be found that the question of burden of proof was unnecessarily given too much importance. The burden irrespective of the Phraseology of the reference, will remain on the workman to prove wrongful termination. This view finds support from the law laid down by a Division Bench of this Court in V.K. Raj Industries v. Labour Court and others, 1981 (43) FLR 194. This part of the finding of the industrial tribunal thus is unsustainable.
As to the issues No. 10 and 11, it would be found that the tribunal in deciding the same in isolation acted illegally. These issues were interconnected with issues Nos. 3, 4, 5, 8 and 9. All these thus could be decided together after taking evidence. The finding on these two issues also thus deserves to be quashed and the issues left open.
For all these above reasons, the writ petition deserves to succeed in part only.
The writ petition is partly allowed. The finding on issues No. 2,10 and 11 of the industrial tribunal are set aside. The finding on issue No. 1 is however, affirmed. The tribunal is directed to decide issues No. 10 and 11 also alongwith remaining issues on merit. Since the case has become quite old, the tribunal shall dispose of the same within four months from the date a certified copy of this order is produced before him.
There shall be no order as to costs.