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Judgment
Javed Iqbal Wani, J
In the instant petition filed under Article 226 of the Constitution of India, on the foundation of the case set up, the petitioner implores for following relief:-
"a) By issuing order of direction more particularly in the nature of certiorari, therefore by the impugned award dated 27.06.2016 passed by Industrial Tribunal cum-Labour Court, J&K annexed with this petition as annexure-B supra be set aside/quashed as illegal in the eyes of law."
The factual matrix as propounded in the petition reveals that the predecessors-in -interest of the respondent herein, namely, Habibullah Ahanger ( deceased -respondent No. 1) and namely, Wali Mohammad Lone-( deceased-respondent No. 2) were appointed as daily rated workers on 24.03.1970 and 24.02.1970, respectively in the petitioner-Corporation and had declared their date of birth as 25.10.1942 and 05.12.1942, respectively having been recorded in the incumbency register at the time of their initial appointment maintained by the petitioner-Corporation.
It is being stated that the services of both the deceased-respondents were regularized under SRO 64 of 1994, necessitating preparation of their service books on the basis of their service data available with the petitioner-Corporation.
It is being stated that during the preparation of the service books of the deceased-respondents, it surfaced that the said respondents in connivance with their Unit heads had resorted to tempering of their original service record making alteration in their date of birth as 25.10.1946 and 01.01.1995 respectively.
It is being next stated that upon coming to know about the said tempering in the date of birth of the deceased-respondents, the petitioner-Corporation constituted an enquiry Committee, which after enquiry found the deceased-respondents involved in the tampering, resulting into their demotion from their posts as a measure of punishment and removal from the services of the Corporation with immediate effect in terms of order Nos. Estt/PF/01-61888-94 dated 12.07.2001 and Estt/PF/-01-6/30-35 dated 12.07.2001, respectively.
It is being next stated that the deceased -respondents aggrieved of the said orders dated 12.07.2021 challenged the same before this Court in a petition which came to be disposed of on 03.07.2006 directing the respondents to consider the prayer of the petitioners/deceased respondents within a period of one month and that the deceased-respondents upon being summoned by the petitioner-Corporation did not choose to appear and their cases were considered on merits.
It is being next contended that the deceased-respondents thereafter approached the Conciliation Officer under the Industrial Disputes Act 1947 (hereinafter the Act‟) who upon summoning the parties directed them to produce all the record which came to be produced, whereupon the Conciliation Officer issued a summon to Chowdidar who had issued the birth certificates to the deceased-respondents and after recording their statements prepared a detailed report in the matter holding that he did not find any merit in the case for sending it to Industrial Tribunal -cum-Labour Court, J&K Srinagar (for brevity Tribunal‟) for adjudication.
It is being next contended that aggrieved of the said report of the Conciliation Officer, the deceased-respondents questioned the same in petition bearing OWP No. 482/2008, before this Court, and in terms of the order dated 07.09.2009 the said report of the Conciliation Officer came to be set aside, while directing the respondent-petitioner-Corporation herein to conduct a proper enquiry in the case associating the applicants-deceased-respondents herein.
It is next contended that the matter was referred to the Conciliation Officer as per the direction passed by this Court vide order dated 07.09.2009 and that the Conciliation Officer while undertaking the proceedings in the matter did not summoned the petitioner-Corporation and that the Conciliation Officer submitted his recommendation to Labour Commissioner, Kashmir requesting him to make reference of the disputes to the Labour Court, whereupon while accepting the said recommendation, the matter came to be referred to the Tribunal without providing an opportunity of hearing to the petitioner-Corporation.
It is stated that the Tribunal under took the proceedings upon the reference made to it in the matter and summoned the petitioner-Corporation whereupon the petitioner-Corporation appeared and prepared its objections, but could not file the same on account of floods of 2014, in Kashmir Valley.
It is being further stated that the petitioner-Corporation after the floods learnt from the office of Tribunal that the Tribunal has not started functioning after the floods and that as and when the Tribunal will start functioning petitioner-Corporation would be informed in advance about the fixing of the date in the case.
It is further stated that in the month of ending April, 2017 petitioner- Corporation received a photocopy of the award dated 27.06.2016 passed by the Tribunal where after it applied for a certified copy of the same and upon receipt found that the petitioners-Corporation has been set ex-parte and award has been passed without providing the petitioner-Corporation an opportunity of hearing.
It is next being contended that the authorities of the petitioner-Corporation decided to challenge the award dated 27.06.2006 and, accordingly, filed the instant petition.
The award is being challenged by the petitioner-Corporation inter alia on the grounds that the Tribunal did not pass the same in accordance with law and that the Conciliation officer did not summon the petitioner-Corporation before conducting fresh conciliation proceedings pursuant to the orders of this Court and that the non-summoning of the petitioner-Corporation resulted into making a reference to the Conciliation Officer, where after the matter came to be decided by the Tribunal in terms of the impugned award and that the award came to be passed by the Tribunal upon receipt of the reference on the unilateral and ex-parte recommendation made by the Conciliation Officer without conducting any conciliation proceedings and that the impugned award has been passed by the Tribunal in ex-parte against the mandate of law and in absence of the objections of the petitioner-Corporation and that the Tribunal denied an opportunity of hearing to the petitioner-Corporation and in the process violated the principle of natural justice.
On the basis of the aforesaid contentions raised and grounds urged, prayer for quashment of the impugned award is made in the instant petition.
The objections have been filed in opposition to the petition, wherein dismissal of the petition is sought on the premise that the respondents came to be regularized by the petitioner-Corporation while working as daily wagers and that their dates of birth were recorded as 25.10.1946 and 01.01.1955 in the nomination and declaration form duly accepted by the petitioner-Corporation and that the said date of birth of the respondents was changed at their back by the petitioner-Corporation upon an allegation of tempering by the petitioner-Corporation resulting into their pre-mature termination from service which termination came to be challenge before this Court in a petition, wherein the petitioner-Corporation was directed to consider the prayer of the petitioners-respondents herein and that thereafter the matter was referred to the Tribunal in accordance with law and direction passed by this Court, whereupon the Tribunal passed the award under challenge.
It is being next contended that a valid reference came to be made by the Government to the Tribunal on the recommendation of the Conciliation Officer based on the order passed by this Court in a subsequent petition filed by the respondents herein and that the Tribunal while entering upon the reference issued notice to the petitioner-Corporation for filing objections and that the petitioner-Corporation though did appear through their counsel, yet did not choose to file any objections, which resulted into passing of the award under challenge after the respondents participated in the proceedings before the Tribunal and led evidence in support of their cases and that the Tribunal passed the award under challenge holding the superannuation of the respondents on the basis of altered date of birth bad and held the deceased-respondents entitled to all service benefits on the basis of un-altered dates of birth.
The respondents on the basis of the said contentions raised in the objections, seeks dismissal of the instant petition.
Heard learned counsel for the parties and perused the record.
The first ground urged by the petitioner-Corporation against the impugned award in the petition relates to non-summoning of the petitioner-Corporation by the Conciliation Officer, while undertaking fresh conciliation proceedings pursuant to the order of this Court resulting into condemning the petitioner-Corporation unheard. Perusal of the record tends to show that the Conciliation Officer on receipt of the matter from the Labour Commissioner, for denovo enquiry vide letter dated 17.10.2011, pursuant to order passed by this Court in OWP No. OWP No. 481/2008 dated 07.09.2009, had summoned the parties for contesting the conciliation proceedings under the Act, and that the Management of the Corporation choose to remain absent in the said proceedings, resulting into submission of a failure report by the Conciliation Officer to the Government vide No. DLCK/2012/171 dated 28.05.2012 recommending for making a reference to Tribunal for adjudication of the issues framed by the Conciliation Officer as under:-
"a) whether the termination of service of the applicants by way of their superannuation as on 12.07.2001 is right?
b) If not, to what relief the applicants are entitled to Record further tends to show that the Government made a reference under Sub-section (1) of Section 10 of the Act vide Notification/SRO 378 dated 27.08.2013 for adjudication by the Industrial Tribunal-cum-Labour Court.
Thus, the ground urged by the petitioner-Corporation that it was not summoned by the Conciliation Officer during fresh conciliation proceedings is belied by the record.
The second ground urged by the petitioner-Corporation is that the Conciliation Officer recommended the case to the Administrative Department for making a reference to the Tribunal against the mandate of law and without providing an opportunity of hearing to the petitioner-Corporation.
The said ground of the petitioners-Corporation about non-observation of principles of natural justice stands dealt with in the preceding para, however, so far as the question of reference made by the Conciliation Officer to the Administrative Department is concerned, same is not subject matter of the petition and is not under challenge, as such, there is no occasion or reason for this Court to deal with such ground/contention of the petitioner-Corporation.
The third ground urged by the petitioner-Corporation in the petition is that the Tribunal passed the award in ex-parte against the mandate of the law without providing a chance to the petitioner-Corporation to file objections and that the Tribunal did not follow the principles of natural justice.
The perusal of the record tends to show that the Tribunal after entertaining the reference summoned the parties on 20.11.2013 and on 12.12.2013, one Nazir Ahmad, Junior Assistant appeared for the petitioner-Corporation before the Tribunal who has appeared, on 23.01.2014 and 24.02.2014 as well.
Record further tends to show that Mr. B. A. Misri, standing counsel for the petitioner-Corporation has appeared before the Tribunal on 24.03.2014 and received copy of the claim petition filed by the deceased-respondents. The record demonstrates that the petitioner-Corporation has been all along being represented before the Tribunal after 24.03.2014 till 03.09.2014.
The ground urged by the petitioner-Corporation, that the Tribunal passed the impugned award in ex-parte though is admitted, yet the said award came to be passed after the petitioner-Corporation choose to remain absent during the course of the proceedings before the Tribunal after 03.09.2014. Thus, it cannot by any sense of imagination said to have violated any mandate of law or principles of natural justice. Record tends to show that before the Tribunal, the deceased-respondent No. 1 appeared as his own witness in support of his claim along with 05 witnesses and that the Tribunal after considering the matter from every angle passed the impugned award.
It cannot be lost sight of that controversy fostered in the instant petition indisputably, is based on complicated and disputed questions of fact which stand adjudicated upon by the Tribunal under and in terms of the provisions of the Act. The Apex Court in case titled AIR India Cabin Crew Assn. vs. Yeshaswinee Merchant and others, 2003 (6) SCC 278, has provided in the 75 that ".....Proceedings under Article 226 of the Constitution are neither appropriate nor a substitute of industrial adjudication to the Industrial Courts and Tribunals constituted in Industrial law.
It is pertinent to mention here that the learned appearing counsel for the petitioner-Corporation during the course of arguments while finding fault with the impugned award pointed out that the award has been passed in violation of Section 10 Sub-section (2-A) of the Industrial Disputes Act, 1947.
Section 10 Sub section (2-A) of the Act reads as under:-
"An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government:
Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months:
Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit:
Provided also that in computing any period specified in this sub- section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded:
Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub- section had expired without such proceedings being completed."
As is evident from the above, Section 10 sub-section (2A) requires the appropriate Government to specify the period in the order of reference of an industrial dispute to a Labour Court within which it should submit its award on the dispute to the appropriate Government. However, no uniform period has been fixed by the legislature for adjudication of the dispute. Moreover, Proviso IV appended to Sub-section 2 provides that no proceeding before a Labour Court or Tribunal shall lapses merely on the ground that any period specified under Sub-section 2 had expired without such proceedings being completed.
Thus, the provisions of Section 10 Sub-section 2 could safely be said to be directory and not mandatory, as no penalty has been provided thereof for its non-compliance. Moreover, the respondents being workmen could have been persons aggrieved of non-mentioning of the period of adjudication in the reference, in that, the fixing of the period for adjudication is for the benefit of the workmen requiring adjudication of the cases expeditiously unlike un-ending civil suits. The petitioner-Corporation in this view of the matter cannot be said to have this contention/ground available for throwing challenge to the award. Therefore, the reference (which is not under challenge in the instant petition) and proceedings conducted thereupon resulting into passed of the impugned award cannot be said to be bad or legally untenable.
Viewed in the context what has been observed, considered and analyzed hereinabove, the instant petition fails and is, accordingly, dismissed.