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Case Number

S.C.A Nos. 9002, 9410, 9414 and 9412 of 1999

Advocates

Nagesh Sud
N.R.Sahani
Kiran C.Raval
Anu S.Verma

Judges

H.K Rathod, J.

Acts

section 18 sub clause (3) of the I.D. Act
provisions of S. 18(3)(b) of the I.D. Act
Section 10(1)(d) of the I.D. Act
section 18(3)(b) of the I.D. Act,
S. 10(1) of the I.D. Act, 1947.

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Smart Summary

Judicial Opinion Summary: Order of H.K. Rathod, J.

Factual and Procedural Background

The petitions challenge an order dated 27th September 1999 passed by the Assistant Commissioner of Labour and Conciliation Officer, Bharuch (Respondent No. 1), under Section 10(1)(d) of the Industrial Disputes Act (I.D. Act), whereby the petitioner was joined as Respondent No. 2 in certain references (1992) pending before the Labour Court, Bharuch. The petitioner (represented by Mr. Raval) contended that Respondent No. 1 lacked power to amend a reference already pending adjudication before the Labour Court and that the amendment was effected without giving the petitioner an opportunity of hearing. The petitioner relied on an earlier application dated 16th September 1998 filed by Respondent No. 2 (the union) in the Labour Court requesting the petitioner be joined to the original reference; before the Labour Court decided that application, Respondent No. 1 issued the 27th September 1999 order joining the petitioner. The writ petitions sought relief against that order. Counsel for the parties appeared as recorded in the order.

Legal Issues Presented

Whether the Assistant Commissioner of Labour (Respondent No. 1) had the power under Section 10(1) of the I.D. Act to amend an existing reference pending before the Labour Court by joining the petitioner as a party (i.e., whether the State can amend or supplement a pending reference).
Whether making such an amendment (joining the petitioner) without giving the petitioner an opportunity of hearing violated principles of natural justice or prejudiced the petitioner's right to contest being made a party—particularly in light of the pending application before the Labour Court under Section 18(3)(b) of the I.D. Act to join the petitioner.

Arguments of the Parties

Petitioner's (Mr. Raval) Arguments

The order of 27th September 1999 (joining the petitioner as a party) was unauthorized because Respondent No. 1 had no power to amend a reference already referred to the Labour Court for adjudication.
Respondent No. 2 had earlier filed an application dated 16th September 1998 before the Labour Court seeking joinder of the petitioner, and the petitioner filed a reply to that application; consequently the Labour Court should have been allowed to decide that application under Section 18(3) (particularly Section 18(3)(b)), which deals with the binding effect of certain awards or settlements and the court's power to record whether parties were summoned without proper cause.
By issuing the amendment order on 27th September 1999 during the pendency of the Labour Court application, Respondent No. 1 effectively deprived the petitioner of an opportunity to be heard before the Labour Court and thereby breached the principles of natural justice, causing prejudice to the petitioner.
The petitioner contended that because the Labour Court had not yet decided the joinder application, the unilateral reference by Respondent No. 1 prejudiced the petitioner's position and curtailed his right to contest summons as a necessary party.

Respondents' Arguments

This opinion does not contain a detailed account of the respondents' legal arguments in opposition; the order records appearances for respondent counsel but primarily sets out the petitioner's contentions and the court's reasoning.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rashtradoot Dainik Press v. Rajasthan Samachar Patra Karmachari Sangh, 1977 LIC 1061 (Rajasthan High Court)	Held that the appropriate Government is entitled under Section 10(1) of the I.D. Act to make an independent or supplemental reference in respect of a matter pending adjudication; an amendment to an earlier reference adding or amplifying issues is permissible and not inconsistent with the Act.	The court relied on this decision to support the proposition that the Government may amend an existing reference pending before the Labour Court and that such amendment does not defeat the statutory scheme.
River Steam Navigation Co. Ltd. v. Redhanath Hazarika, AIR 1960 Assam 39 (High Court of Assam)	Expressed that if the State could make a fresh reference and the same tribunal could deal with it, then amending an earlier reference by adding another dispute should likewise be permitted; amendment is permissible to ensure proper adjudication when a necessary party was omitted by oversight.	Cited (via the Rajasthan decision) for the principle that the power to amend an existing reference to include a necessary party flows from Section 10 and is permissible in law to give effect to statutory obligations.
D. N. Ganguly, AIR 1958 1018	Recognized authority considered (by the Rajasthan High Court) in support of the permissibility of amendment of references under S.10 to include omitted necessary parties.	The order notes that this decision was considered by the Rajasthan High Court and, through that consideration, contributes to the conclusion that the Government has the power under Section 10 to amend an existing pending reference.
Madan Pal Singh v. State of U.P. and Ors., 2000 LIC 392 (Apex Court)	Addressed correction/amendment of references pending adjudication (e.g., incorrect naming of a workman). Held that the Labour Court could have sought correction from the State; once a reference is amended, jurisdiction is conferred and proceedings can be treated as valid from the date of amendment; equitable considerations may apply to avoid injustice.	The court relied on this Apex Court decision to hold that amendment can cure defects in the reference, that jurisdiction may arise upon amendment, and that equitable considerations matter—supporting the view that amendment by Respondent No. 1 could validly confer jurisdiction on the Labour Court.
Sultan Singh v. State of Haryana & Anr., 1996 AIR SCW 485 (Apex Court)	Held that before passing an order of reference under Section 10, issuance of notice to the employer or hearing the employer is not necessary when making a subsequent reference (on a second application).	The court relied on this authority to reject the petitioner's contention that Respondent No. 1 was required to give the petitioner an opportunity of hearing before issuing the 27th September 1999 amendment order.

Court's Reasoning and Analysis

The court proceeded through a sequence of legal determinations grounded in statutory interpretation and precedent:

The court first acknowledged the petitioner's complaint that Respondent No. 1 had no authority to amend a reference already pending before the Labour Court. To examine this, the court reviewed relevant case law addressing the State's power under Section 10 of the I.D. Act to make independent, supplemental or amended references.
Relying on the Rajasthan High Court decision in Rashtradoot Dainik Press (which in turn considered River Steam Navigation Co. Ltd. and D. N. Ganguly), the court accepted the principle that the Government may, under Section 10, make an independent or supplemental reference or amend an earlier reference by adding matters or parties where necessary. The court recorded the reasoning that amendment to include a party omitted by oversight is permissible so as to prevent a reference from being rendered infructuous and to ensure proper adjudication.
The court then considered the Apex Court's decision in Madan Pal Singh, which addressed correction/amendment of references (for example, an incorrectly named workman). The Madan Pal Singh decision was read to mean that where an amendment corrects a defect, the Labour Court's jurisdiction may be deemed to arise upon amendment, and equitable considerations may be applied to avoid injustice. The court used this authority to support the proposition that amendment can cure jurisdictional defects and can validate subsequent proceedings.
The court confronted the petitioner's contention that the amendment/order of 27th September 1999 violated natural justice by being made without giving the petitioner an opportunity to be heard. On this point the court relied on Sultan Singh, where the Apex Court held that issuance of notice to the employer or hearing the employer was not necessary before making a subsequent reference under Section 10. Using that authority, the court concluded that Respondent No. 1 was not obliged to hear the petitioner before making the amendment.
Addressing the petitioner's specific concern that a pending application before the Labour Court under Section 18(3)(b) to join the petitioner would be prejudiced by the State's amendment, the court explained that Section 18(3)(b) pertains to the Labour Court's power to examine whether parties were summoned without proper cause and to issue summons if necessary. The court made a clear separation between the State's power under Section 10(1) to make references and the Labour Court's power under Section 18(3)(b) to summon parties.
Critically, the court found that even after the State's amendment and the joinder of the petitioner by the 27th September 1999 order, the petitioner retained adequate procedural rights before the Labour Court: the right to file a written statement, to raise the contention that no relief could be granted against the petitioner, and to otherwise contest the matter on merits. The court observed that the Labour Court had issued notice to file a written statement in pursuance of the reference order, thereby preserving the petitioner's opportunity to be heard and to have any legal points decided by the Labour Court in accordance with law.
Because the State's action to amend the reference was supported by precedent and because the petitioner was not deprived of effective procedural remedies before the Labour Court, the court concluded that the impugned order dated 27th September 1999 fell within Respondent No. 1's jurisdiction and did not cause prejudice that would warrant quashing the order.

Holding and Implications

Holding: The petitions are dismissed.

Implications:

The court upheld the order dated 27th September 1999 passed by Respondent No. 1 joining the petitioner as a party to the pending references; it found the order to be within the jurisdiction and power of Respondent No. 1 under Section 10(1) of the I.D. Act.
The court held that no hearing was required to be given to the petitioner by Respondent No. 1 prior to making the amendment (relying on Sultan Singh), and that amendment/correction of references can confer jurisdiction and cure defects (relying on Madan Pal Singh and the Rajasthan High Court authorities).
On the procedural effect for the parties: the petitioner was not deprived of an effective opportunity to contest being made a party — the petitioner can file a written statement and raise the substantive and jurisdictional objections before the Labour Court, which must decide those contentions in accordance with law.
No order as to costs was made; notice in each petition was discharged. The order does not purport to lay down any novel legal principle beyond the authorities cited; rather it applies existing precedent to the facts and dismisses the petitions.

End of summary based exclusively on the provided opinion.

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Schoot Glass India Pvt. Ltd v. Asstt. Commissioner Of Labour And Conciliation Officer

ORDER H.K. Rathod, J.

1. Learned advocate Mr. Raval has appeared for the petitioner in this group of petitions and Ms. Anu Varma has appeared for M/s. Patel Advocates for Respondent no. 1. Learned advocate Mr. N. R. Shahani has appeared for Respondent no. 2 and Mr. Nagesh Sood has appeared for Respondent no. 3 in this group of petitions.

2. Nothing could be more unfortunate for the poor workman. Justice remains illusive, far cry for him in spite of so much laws. Slow pace of bureaucracy on one hand and the page for disposal by the Labour Court, on the other, led to injustice.

3. In this group of petitions, the order passed by the respondent Assistant Commissioner of Labour and the Conciliation Officer, Bharuch dated 27th September, 1999 has been challenged by the petitioner wherein the Assistant Commissioner of Labour has passed order under Section 10(1)(d) of the I.D. Act joining the petitioner as party Respondent no. 2 in the respective references 1992 pending before the Labour Court. Learned Advocate Mr. Raval has contended that the Respondent no. 1 has no power and/or authority to amend the reference which is already referred for adjudication and pending before the Labour Court, Bharuch. He has also submitted that the Respondent no. 2 union has given an application dated 16th September, 1998 (Annexure "A" page 15 of SCA No. 9002 of 1999) to the Labour Court, Bharuch with a request to join the petitioner in the original reference. Against the said application, the petitioner has filed reply which is on record at page 16 to 18 and thereafter the Respondent no. 2 has given application on 29th September, 1999 to the Labour Court that now there is no need to decide the application dated 16th September, 1998 submitted by the Respondent no. 2 for joining the petitioner in the present pending reference because the Respondent no. 1 has already referred the reference for adjudication against the petitioner by order dated 27th September, 1999. Learned Advocate Mr. Raval has, therefore, submitted that the petitioner has now no opportunity to submit before the Labour Court under section 18 sub clause (3) of the I.D. Act as to whether the petitioner is a necessary party or not which was required to be examined by the Labour Court in response to the application submitted by the Respondent no. 2 on 16th September, 1998. As per section 18(3)(b) of the I.D. Act, a settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under section 3a of section 10a or an award of a Labour Court, tribunal or national tribunal which has become enforceable shall be binding on all other parties summoned to appear in the proceedings as parties to the dispute, unless the board, arbitrator, Labour Court, tribunal or national tribunal as the case may be, records the opinion that they were so summoned without proper cause. Learned advocate Mr. Raval has submitted that the Labour Court is just to decide the question after submitting the reply to such an application filed by Respondent no. 2 and prior thereto, the Respondent no. 1 has misused his powers and referred the said reference on 27th September, 1999 and thus, the Respondent no. 1 has arbitrarily taken the decision. He has submitted that the Respondent no. 1 has not given any opportunity before making reference against the petitioner and, therefore, it is against the principles of natural justice. He has submitted that such order of reference is having prejudicial effect on the application filed by Respondent no. 2 dated 16.9.1998 and, therefore, the petitioner has been deprived of effective opportunity as to whether they were rightly summoned or not.

4. I have considered the submissions made by Mr. Raval, the learned advocate for the petitioners herein. I have considered the decision of the Rajasthan High Court in case of Rashtradoot Dainik Press v. Rajasthan Samachar Patra Karmachari Sangh reported in 1977 LIC 1061. The Rajasthan High Court has observed in case of Rashtradoot Dainik Press (supra) that since the appropriate Government is entitled under S. 10(1) of the Act to make an independent reference or even a supplemental reference in respect of a matter pending adjudication before the tribunal, it can be a subsequent notification amend the earlier reference which is merely in the nature of addition to or application of the issues already referred to the Industrial Tribunal. It has also been observed in the said decision that this is so because amending a reference relating to a pending dispute by way of addition or amplification thereof is not inconsistent with any of the provisions of the Act and such a course would not defeat the purposes of the Act. In the said decision, the case of River Steam Navigation Co. Ltd. v. Redhanath Hazarika re-ported in AIR 1960 Assam page 39 has also been considered by the High Court of Rajasthan. In the said decision of the River Steam Navigation Co. Ltd. (supra), it has been held by the High Court of Assam as under :

"If it was open to the State Government to make a fresh reference under S. 10 of the Act and if the same Tribunal could deal with the matter arising in the subsequent reference, then, it could not be understood as to why the amendment of the earlier reference by adding another dispute to the same could not be permitted."

After the aforesaid observations, it was further held as under :

"The power to make the amendment of nature with which we are concerned in the present case, therefore flows from S. 10 itself; because if in a given case by some mistake or oversight a person or a party, whose presence was necessary for a proper adjudication of the Industrial Dispute is not made a party, then, it would be a clear duty of the Government making reference under S. 10 to make such a person a party to the dispute, even by a subsequent notification. Otherwise, the reference itself would be rendered infractuous and the duty or the obligation which the statute imposes upon the Government would not be carried out ... It was open to the Government to make under S. 10 an independent reference concerning any matter not covered by the previous reference, the fact that it took the form of an amendment to the existing reference and not an additional reference was a mere technicality which did not merit any consideration. I should think that Sub-s. (5) of S. 10 or S. (5) of S. 20 which though in terms may not be applicable to an amendment of this character, do in addition support the inference that such amendment would be permissible in law to give effect to the provisions of the statute."

In the said decision, well Known decision of D. N. Ganguly reported in AIR 1958 page 1018 has been considered by the High Court of Rajasthan and, therefore, taking into consideration the decision of the Rajasthan High Court, the Government is having power to make under section 10 by amending existing reference pending before the Labour Court.

5. Recently, the Apex Court has, in case of Madan Pal Singh v. State of UP and Ors., reported in 2000 LIC page 392, considered the questions relating to the amendment in the existing reference already referred for adjudication and pending before the Labour Court. The Apex Court has observed that when it came to its notice that the name of the workman was not correctly mentioned in the reference though there was doubt about his identity, the Labour Court itself could have sought correction of the reference from the State Government. When the appellant approached the State Government for correcting the reference, the Labour Court certainly could have waited till the State Government amended the reference or otherwise if the Labour Court did not possess the jurisdiction in as much as there was no Industrial Dispute because there was no workman in respect of whom the Industrial Dispute was sought to be raised, the reference itself was non est and the award is nullity. When the reference had been amended, the jurisdiction stood conferred on the Labour Court and it could have held the proceedings from the stage taking the reference to be valid from the date of its amendment. Whatever the situation the Court cannot permit injustice to perpetrate. Equitable considerations can certainly be taken into account in such cases.

6. The next contention of Mr. Raval is that before making reference by way of amendment by order dated 27th September, 1999, Respondent no. 1 has not given any opportunity to the petitioner before passing the order dated 27th September, 1999. Such contention has been negatived by the apex court as per the decision in case of Sultan Singh v. State of Haryana & Anr. reported in 1996 AIR SCW 485. The apex Court has held in the said decision that before passing the order of reference under S. 10 of the Act, issuance of notice to the employer or to hear him or to consider his objection by the State Government is not necessary before making reference on second application.

7. Therefore, in view of the decision of the apex Court in case of Sultan Sinh (supra), there is no need to give opportunity of hearing to the petitioner before passing the order dated 27th September, 1999.

8. The contention of Mr. Raval to the effect that when the application which was given by the Respondent no. 2 union dated 16th September, 1998 to the Labour Court Bharuch with a request to join the petitioner in the original reference and when such an application was pending and no decision has been taken so far, meanwhile, the Respondent no. 1 has referred the matter against the petitioner and, therefore, the opportunity which was available to the petitioner to point out before the Labour Court that the petitioner is not a necessary party for which summons is required to be issued to the petitioner is not available now to the petitioner, in view of the order passed by the first Respondent dated 27th September, 1999. According to my view, Mr. Raval is not right in saying so because the provisions of S. 18(3)(b) of the I.D. Act relate to the power of the Labour Court in case if the Labour Court is satisfied that there is necessity to summon any party to appear in the present proceedings, then the Labour Court can certainly issue summons to the third party. The power of the Respondent no. 1 is altogether different under S. 10(1) of the I.D. Act, 1947. But, in either way, the petitioner can very well agitate the same contentions before the Labour Court even after the reference order dated 27th September, 1999 has been passed to join the petitioner as a party in the said proceedings. Therefore, still, opportunity is available to the petitioner herein to point out to the Labour Court that by amendment of the reference, though the petitioner is joined as a party to the proceedings by Respondent no. 1, no relief can be granted by the Labour Court against the petitioner herein. The petitioner can avail of such an opportunity by filing the written statement and by raising such a contention in the written statement before the Labour Court and it is obvious that the same shall be dealt with and decided by the Labour Court in accordance with law after hearing the parties to the proceedings. Thus, the petitioner is having an ample opportunity on merit to point out and prove before the Labour Court its contentions and, therefore, passing of an order by the first Respondent during the pendency of the application before the Labour Court will not have any adverse effect and will not curtail right of the petitioner which is otherwise available to the petitioner. Therefore, such a contention raised by Mr. Raval cannot be entertained and accepted.

9. Therefore, The order passed by Respondent no. 1 dated 27th September, 1999 is within the jurisdiction and power of the Respondent no. 1 and the petitioner is not having any prejudicial effect because the petitioner can very well submit his case by submitting written statement for which notice has been issued by the Labour Court in pursuance to the reference order dated 27th September, 1999 at page 22 to file written statement against the statement of claim filed by the second Respondent and, therefore, the petitioner is having an opportunity to submit his case before the Labour Court and, therefore, there is no substance in this petition and Respondent no. 1 has not committed any error while passing the impugned order. No other submissions were made by Mr. Raval. He has not been able to point out any infirmity and/or jurisdictional error in the order impugned herein. Therefore, the petitions are dismissed. Notice in each of the petitions shall stand discharged. There shall be no order as to costs.

Schoot Glass India Pvt. Ltd v. Asstt. Commissioner Of Labour And Conciliation Officer

Judicial Opinion Summary: Order of H.K. Rathod, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (Mr. Raval) Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Schoot Glass India Pvt. Ltd v. Asstt. Commissioner Of Labour And Conciliation Officer

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