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Judgment
Ashok Bhushan, J.—Heard Counsel for the Petitioner.
By this writ petition, the Petitioner has prayed for quashing reference order dated 31.1.2003, passed by Deputy Labour Commissioner, Moradabad, referring an Industrial Dispute under the provisions of U.P. Industrial Disputes Act, 1947.
The dispute referred is as to whether action of the management in terminating/retrenching the services of their workman Vinod Kumar Narang, Supervisor with effect from 1.10.1999 is justified/valid or not and if not then to what relief the workman is entitled.
The learned Counsel for the Petitioner challenging the reference order has made following submissions in support of the writ petition:
(1) The reference has been made by Deputy Labour Commissioner exercising jurisdiction under notification dated 29.8.1990 which notification has been subsequently superseded by another notification dated 17.11.2000, hence the order is invalid.
(2) Respondent No. 4 was validly terminated after paying retrenchment compensation. The Deputy Labour Commissioner without applying his mind has made the reference.
(3) The reference order does not spell out the real dispute between the parties.
(4) Respondent No. 4 has been referred to as supervisor in the referring order itself which clearly means that he is not a workman.
I have considered the submissions of the Counsel for the Petitioner and perused the record.
The Deputy Labour Commissioner while making the reference has exercised the power given under U.P. Industrial Dispute Act, 1947. It is true that order refers to notification dated 29.8.1990, which has been subsequently superseded by the notification dated 17.11.2000. The order does not refer to the subsequent notification dated 17.11.2000. The question is as to whether by not mentioning the subsequent notification the order will be vitiated. The subsequent notification dated 17.11.2000 which has been brought on record as Annexure-10 to the supplementary-affidavit has been issued by the State Government in exercise of power u/s 11A of the U.P. Industrial Dispute Act, 1947, read with Section 21 of the U.P. General Clauses Act, 1904, delegating the powers exercisable by the State Government u/s 4K in relation to disputes regarding dismissal, retrenchment or termination of services of an industrial workman as contemplated u/s 2A of the Act. Schedule mentions the authorities who can exercise the power. Deputy Labour Commissioners posted in region have been authorised to exercise the jurisdiction u/s 4K in the local area of their administrative jurisdiction. As per notification dated 17.11.2000, the Deputy Labour Commissioner, Moradabad, who has referred the dispute, has jurisdiction to make such reference. When the authority exercising power has jurisdiction to exercise that power mere non-mentioning of the source of power or mentioning a wrong source will not vitiate the action. Deputy Labour Commissioner, Moradabad, having jurisdiction to make a reference mere mention of notification dated 29.8.1990 does not vitiate the order in any manner. The first submission of the Counsel for the Petitioner thus has no substance.
The second and third submissions are being taken together. The contention of the Counsel for the Petitioner is that retrenchment compensation was paid to Respondent No. 4. Admittedly, the reference has been made by the Deputy Labour Commissioner. On an application moved by Respondent No. 4 C.P. Case No. 1 of 2002 was registered before Assistant Labour Commissioner in which Petitioner also filed his objection. After failure of conciliation the dispute has been referred. The question as to whether retrenchment compensation has been paid to Respondent No. 4 and the termination is valid has to be adjudicated by labour Court. At the threshold of referring the dispute State Government cannot adjudicate the issue. The submission of the Counsel for the Petitioner that the referring order does not spell out the real dispute also cannot be accepted. The referring order is clear and makes out and spells out a definite dispute.
Shri Chaturvedi has placed reliance on the judgment of Delhi High Court in M/s. India Tourism Development Corporation v. Delhi Administration and Ors. 1982 Lab IC 1309. In the judgment of Delhi High Court relied by Counsel for the Petitioner real dispute between the parties was as to whether there was a lockout or closure, in the establishment and the Government referred the dispute by assuming that there was a lock up. In above facts of the case the Court held the reference bad. In the present case, there is no ambiguity in the reference order. The judgment of the Delhi High Court does not help the Petitioner.
The last submission of Counsel for the Petitioner that Respondent No. 4 has been referred to as Supervisor hence the reference ought not to have been referred also cannot be accepted. Mere nomenclature of a post is not decisive, whether a person is a workman within the meaning of Industrial Disputes Act, 1947, depends on nature of duty and several other factors. The mere fact that Respondent No. 4 has been described as Supervisor, the reference cannot be held to be invalid.
None of the submissions raised by Counsel for the Petitioner has any substance. I do not find any error in the referring order.
The writ petition lacks merit and is summarily rejected.