Indian Farmers Fertilizer Co-operative Limited and Another vs State of Orissa and Others

B.K. Patel, J.—Learned Counsel for the petitioners, learned Counsel for the opposite party No. 2-workmen and learned Counsel for the State are present.

On consent, the matter is taken up for final disposal.

Heard.

In this writ application the petitioners assail the legality of the order dated 15.12.2008 passed by learned Presiding Officer, Industrial Tribunal, Bhubaneswar in I.D. Case No. 2 of 2006, copy of which is at Annexure-9 to the writ application, impleading the petitioners in the proceeding as successor-in-interest of the erstwhile management of opposite party No. 3 M/s. Oswal Chemicals and Fertilizers Limited, Paradip and the legality of schedule of reference under Order No. 1121 dated 6.2.2006 of Government of Orissa, in the Labour and Employment Department, copy of which is at Annexure-5 to the writ application.

I.D. Case No. 2 of 2006 was initiated to adjudicate reference under the Order at Annexure-5 which was passed in supersession of earlier Order No. 8737 dated 23.7.2002, copy of which is at Annexure-1 to the writ petition. As per the schedule of reference under Annexure-1, I.D. Case No. 15 of 2002 had been initiated earlier to adjudicate industrial dispute between the management of opposite party No. 3 through its contractor M/s. Balaji Traders on the one, hand and their workmen-opposite party No. 2 on the other hand. I.D. Case No. 15 of 2002 was disposed of as infructuous by Order dated 1.9.2008 which, inter alia, reads:

Since the Government is silent over the matter after the second reference, I find no alternative than to ask the parties to proceed in I.D. Case No. 2 of 2006 and consequently the I.D. Case No. 15/2002 is held to be infructuous in view of order No. li/1 (B)-108/06 1121/LE dated 6th February, 2006 of the Government in Labour and Employment Department. The I.D. Case No. 15/ 2002 is treated to be disposed of. The Government in Labour and Employment Department be informed accordingly.

Learned Counsel for the petitioners submits that the very initiation of I.D. Case No. 2 of 2006 being illegal, there was no scope for the learned Tribunal to pass the impugned order impleading the petitioners in the proceeding. It is contended that once a proceeding is initiated upon receipt of reference u/s 10 of the Industrial Disputes Act, 1947 (for short, ''the Act''), appropriate Government has no jurisdiction to guillotine the proceeding by cancellation or supersession of the reference. Government has no authority to cancel or revoke any notification issued u/s 10(1) of the Act. In this context, learned Counsel for the petitioners relies upon The State of Bihar Vs. D.N. Ganguly and Others, , wherein it has been held that the Act. does not expressly confer any power on the appropriate government to cancel on supersede a reference made u/s 10(1) of the Act. The scheme of the provisons in Chapters III and IV of the Act appears to be to leave the reference proceedings exclusively within the jurisdiction of the tribunals constituted under the Act and to make the awards of such tribunals binding between the parties, subject to the special powers conferred on the appropriate government under Sections 17A and 19. The appropriate government undoubtedly has the initiative in the matter. It is only where it makes an order in writing referring an industrial dispute to the adjudication of the tribunal that the reference proceedings can commence; but the scheme of the relevant provisions would prima facie seem to be inconsistent with any power in the appropriate government to cancel the reference made u/s 10(1). If the legislature had intended to confer on the appropriate government the power to cancel an order made in Section 10(1) of the Act, the legislature would have made a specific provision in that behalf and would have prescribed appropriate limitations on the exercise of the said power.

Without disputing in any manner the proposition of law laid down in State of Bihar v. D.N. Ganguly and Ors. (supra), it is submitted by the learned Counsel for the opposite party No. 2 that the petitioners have already been impleaded in I.D. Case No. 15 of 2002 in which issues, copy of which is at Annexure-C to their counter-affidavit, have already been settled. Issue No. 1 relates to maintainability of the reference under order at Annexure-5 to the writ petition. It is argued that as maintainability of the reference is an issue for adjudication, petitioners should have approached the learned industrial Tribunal to take up the same for adjudication as a preliminary issue.

Learned Counsel for the petitioners submits that the petitioners have no objection against participation in the proceeding before the learned Tribunal for adjudication of issue relating to maintainability of the reference under order at Annexure-5 as a preliminary issue in the light law laid down in State of Bihar v. D.N. Ganguly and Ors. (supra).

In view of such consensus between the parties, the writ petition is disposed of with a direction to the learned Industrial Tribunal, Bhubaneswar to take up issue No. 1 relating to maintainability of the reference as a preliminary issue for adjudication in I.D. Case No. 2 of 2006.

Accordingly, the writ petition is disposed of.