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Judgment
R.K. Merathia, J.—Heard.
Petitioner has prayed for quashing the order of reference dated 4.10.2001 (Annexure 1) issued by respondent No. 2, whereby and whereunder
purported dispute raised by the concerned workman (respondent No. 1) was referred for adjudication before the Labour Court; and also for
quashing the order dated 25.11.2003 passed in Reference Case No. 9 of 2001 by the Presiding Officer, Labour Court, Bokaro Steel City,
Bokaro under which petitioner''s application for deciding the preliminary issue was rejected.
Relevant facts in short are as follows. A complaint was made by one Baru Gorain son of Fakir Gorain before the management that the
concerned workman is in fact Sona Ram Teli son of Karu Gorain and also that the name of wife children declared in service records are false and
that he got employment by impersonation whereas the complainant was entitled to employment being a displaced person. In the preliminary enquiry
held by vigilance department, the complainant''s allegations were found correct. A departmental proceeding was initiated. In reply to the charge
sheet he admitted the charges. He took part in the departmental proceeding. The Enquiry Officer held that the concerned workman got
employment by impersonation. Ultimately he was dismissed from service on 28.2.1985. Instead of raising an industrial dispute u/s 10 of the
Industrial Dispute Act (I.D. Act for short) he chose to file a petition u/s 33A of the I.D. Act for setting aside the said order of dismissal, which was
registered as Misc. Case No. 6 of 1986.
By Award dated 22.1.1991 (Annexure 4), the said Misc. Case No. 6 of 1986, was disposed of holding that the concerned workman was not
entitled to any relief. The Labour Court found that in the Reference Case No. 39 of 1973, all the employees of Bokaro Steel Plant, who were on
roll of the company on 30.12.1970, were directly or indirectly concerned in the dispute, whereas, the concerned workman was appointed in 1979,
much after the reference of the said dispute and therefore he was not at all directly or indirectly concerned with the said pending Reference Case
No. 39 of 1973. On the issue, whether the dismissal of the concerned workman was justified or not, the Labour Court found that the domestic
enquiry was properly held: the concerned workman admitted in reply to the charge-sheet that he was not the real Barn Gorain; and that the
concerned workman was guilty of misconduct and false impersonation which is a serious one and therefore, his dismissal was justified.
After about nine years the concerned workman challenged the said Award by filing a writ petition being C.W.J.C. No. 133 of 199 (R) which
was disposed of on 28.11.2000 (Annexure 5). The concluding portion of the said order reads as follows:
In the facts and circumstances of the case, there being delay of about 8 to 9 years, I am not inclined to interfere with the same. However, the
petitioner may raise a dispute u/s 10 of the Act, if permissible. In such case, if any reference is made, the Presding Officer will decide the issues on
merit, in accordance with law, without being prejudiced by the award in question.
The writ applications stands disposed of with aforesaid observation.
Thereafter an industrial dispute was referred by the State Government by impugned order (Annexure 1)
The petitioner filed a petition before the Labour Court for deciding the question of its jurisdiction and res judicata. The Labour Court rejected
such preliminary objection, mainly on the ground that in the said order dated 28.11.2000, this Court observed that if reference is made, the Labour
Court will decide the issues on merit. Petitioner filed a petition for review, which was also rejected.
Relying on (2000) I LLJ 247 SC National Engineering Industries Ltd. etc.; (2000) 2 SCC 355, Nedugadi Bank Ltd. etc. and (2000) 3 SCC
1993 Sec. Indian Tea Association etc., Mr. Rajiv Ranjan submitted that the reference itself was invalid and illegal. He further relied on AIR 1953
Bom 133 , Batuk K. Vyas etc. and submitted that the Labour Court was obliged to decide the complaint u/s 33A of the I.D Act, as if it were a
dispute referred to it in accordance with the provisions of I.D. Act and accordingly, the Labour Court adjudicated the complaint of the concerned
workman about his dismissal in the earlier Award passed in Misc. Case 6/1986. He also relied on AIR 1963 Cal 275 , Walford. Transport Ltd.
etc.; Trichy-Srirangam Transport Company (Private), Ltd. Vs. Industrial Tribunal and Others, and the judgment of Supreme Court reported in
Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd. Vs. Bharat Barrel Employees Union, ; and (1968) I LLJ 555 SC Management of Banglore
woolen, cotton, Cotton and Silks Mills Co. Ltd. etc. in support of his contention that the principle of res judicata applies to the industrial dispute.
Mr. Jay Lal Gorain, appearing for the concerned workman could not satisfy this Court as to how the impugned reference was legal and valid
However, on the question of validity and legality of the preliminary order dated 25.11.2003, relying on D.P. Maheshwari Vs. Delhi Administration
and Others, he submitted that High Court should not interfere with the orders of Labour Court deciding preliminary issue; and that the writ petition
filed by the concerned workman against the earlier Award was not interfered by this Court on the ground of delay and therefore principle of res
judicata will not apply to this reference case. He relied on AIR 1995 SC 316 Managing Director, etc.
The questions arc (i) whether the order of reference was valid and legal; and (ii) whether the Labour Court''s order rejecting preliminary
objection is legal and valid.
I take up the first issue first. In my opinion, the reference itself was invalid and illegal.
On 2.11. 2006, this Court asked the State counsel to show when were the materials before the State Govt. justifying the reference. Mr.
Shamim Akhtar appearing for the State with reference to the counter affidavit submitted that in view of the said order of the High Court dated
28.11.2000, the Government opined to refer the matter for adjudication. As per Section 10(1) and Section 12 of the I.D. Act, the appropriate
Government is required to consider a full report containing full statement of facts and circumstances and to record its satisfaction that in its opinion
the dispute deserves reference. The Government cannot act in a mechanical manner (Please see The Secretary Indian Tea Association Vs. Ajit
Kumar Barat and Others, .
In the earlier award passed in Misc. Case 6 of 1986, the Labour Court held inter alia that the departmental proceeding was fair and proper;
the concerned workman admitted that he got employment by impersonating the complainant and the order of his dismissal was justified. That
award became final, when it was challenged in the said writ petition but was not interfered by this Court, may be on the ground of delay. There is
nothing to show that a full report containing the full statement of facts and circumstances was placed before the Government, and it was
considered, before forming an opinion that the dispute deserves reference. It is clear that only on the basis of the aforesaid order of this Court
dated: 28.11.2000, the Govt. referred the dispute in mechanical manner. This Court did not direct the Government to refer the dispute. This Court
never intended that the Govt. should refer the dispute ignoring provisions of Section 10(1) and 12 of the I.D. Act.
In view of the facts and circumstances; and the legal position, noted above, it has to be held that the order of reference dated 4.10.2001 is
invalid and illegal. The first issue is decided in negative. In view of this finding, it is not necessary to go into the second issue about the validity of
order dated 25.11.2003. In the result, this writ petition is allowed and impugned order of reference is set aside. However there will be no order as
to costs.