The petitioner has filed the present writ petition questioning the legality and validity of the reference order dated 27.12.2012 issued under Section 4-K of the U.P. Industrial Disputes Act whereby the State Government has referred a dispute to the labour court for adjudication. The facts leading to the filing of the writ petition is, that the workers went on a strike on 2nd June, 1983. Conciliation proceedings were initiated between the labour force and the management and, in these conciliation proceedings, the workers were directed to report for duty by 18th August, 1983. This date was subsequently extended till 1st September, 1983. The present respondents nos. 3 to 18 apparently did not report for duty, and eventually, the management took a decision terminating their service with effect from 09th September, 1983. These 18 workers along with some others raised an industrial dispute questioning the validity and legality of the order of their termination. The dispute was referred to the labour court and eventually an award was given holding that the order of termination was illegal. The labour court also directed reinstatement of these workers along with 50 per cent backwages w.e.f. 1st August, 1987. The employers, being aggrieved by the said award, filed writ petition no. 45663 of 1983, which was eventually dismissed by the court by a judgement dated 03rd November, 1995. Thereafter, a Special Leave Petition was filed, which was also dismissed by an order dated 26th April, 1996. The award of the labour court was required to be enforced since the workers were not reinstated in service. Proceedings under Section 6-H(1) of the U.P. Industrial Disputes Act were initiated. The employers alleged that the wages for the month of June, 1996 was paid and the workers were suspended w.e.f. 1st July, 1996 for certain misconduct, and consequently, these workers only became entitled for subsistence allowance. The Deputy Labour Commissioner did not accept the contention of the petitioners and passed an order directing the employer to pay wages to the workers till July 1996. The employers, being aggrieved, by the said order filed writ petition no. 41691 of 1996. By another order, the Deputy Labour Commissioner directed the payment of bonus, which led the employers to file writ petition no. 35708 of 1996. The aforesaid two writ petitions were decided by the High Court by a judgement dated 09th April, 2003. The High Court directed payment of wages till 31st July, 1996 and also directed that the bonus was payable to the workers. The petitioners filed two special appeals, which were dismissed separately by judgement dated 25th July, 2006 and 05th September, 2006 respectively. Thereafter, a Special Leave Petition was filed, which also met the same fate and was dismissed by 04th April, 2007. The Special Leave Petition on the payment of bonus was however allowed by the Supreme Court by judgment dated 24th April, 2007.
During these proceedings before the Supreme Court, the workers moved an application under Section 6-H (1) for payment of wages and for reinstatement of their services. The Deputy Labour Commissioner by an order dated 07th August, 2004 directed the employers to pay the wages. The employers, being aggrieved by the said order, filed a writ petition no. 33988 of 2004, in which an interim order dated 1st September, 2004 was passed directing the employers to pay wages till the date of the alleged termination i.e. 10th October, 1998. The employers contended that pursuant to the suspension order dated 29th July, 1996, disciplinary proceedings were initiated, which culminated in the termination of their services on 10th October, 1998. It has also come on record that pursuant to the interim order dated 1st September, 2004, the employers paid a sum of Rs. 24,05,637.31/- towards wages upto 1st October, 1998.
It transpires that the workman filed another application under Section 6-H(1) for execution of the award and for reinstatement. This application was rejected by the Addl. Deputy Labour Commissioner by an order dated 30th January, 2008 on the ground that no relief could be granted since their services had been terminated on 10th October, 1998. A review application was filed, which was also rejected by an order dated 3rd June, 2008. The workers, being aggrieved, filed writ petition no. 36724 of 2008. Both the writ petition nos. 33988 of 2004 and 36748 of 2008 was decided together by a common judgment dated 16th December, 2011. The Writ Court held that the employers were liable to pay wages upto the date of order of termination dated 10th October, 1998. The writ court further held that, it would be open to the workman to refer the dispute with regard to their termination order and if such an application was filed, the State Government would consider the request of the workman within one month. For ready reference, the order of the writ court is extracted hereunder:-
"As far as termination order is concern qua the same it is hereby directed that State Government or authority exercising delegated power should consider the request of workmen to refer the dispute to the Industrial Court within one month in exercise of its authority under Section 4-K of U.P. Industrial Act, 1947 and thereafter in case of reference being received concern Industrial court shall decide the said dispute strictly as per time frame provided in the Rules, with the outer limit of six months after giving opportunity of hearing to parties concern.
With these observations and directions, writ petitions stands disposed of.
No order as to cost."
Pursuant to the said direction an undated application was filed by the workers before the State Government praying that the validity and legality of their order of termination dated 10th October, 1998 be referred to the labour court or the Industrial Tribunal for adjudication. The State Government, after making due enquiry and, after considering the matter, found that an industrial dispute existed and that it was expedient to refer the dispute in order to settle and quell the industrial unrest, and accordingly, referred the dispute for adjudication to the labour court. The said reference order has been questioned by the employers before this Court through the present writ petition.
Heard Sri A.H. Khan, the learned counsel for the petitioner and Ms. Bushra Mariyam, the learned counsel for the respondents.
The learned counsel for the petitioner submitted that the order of the High Court was clear and explicit, namely, that the State Government or its delegated authority was required to consider the matter. The contention of the petitioner is, that the workers did not move an application within one month from the date of the order nor the State Government passed an order within one month and since the order of the writ court was not complied with, it was no longer open to the State Government to refer the dispute after the expiry of the period, and consequently, on this ground, the reference order was liable to be quashed. The learned counsel further submitted that when the State Government was not passing the order, the workers filed a contempt petition, in which a notice was issued and when the State Government came to know about the pendency of the contempt proceedings hurriedly passed an order, which was passed without any application of mind and without giving an opportunity of hearing to the petitioner. It was contended that no notice was received or served upon the petitioner and that in the given circumstances, the petitioner was required to be heard. In this regard, the learned counsel for the petitioner has relied upon a decision of the Supreme Court in Chairman LIC of India and others Vs. Masilamani 2012 SC 780.
On the other hand, the learned counsel for the opposite party submitted that there is no violation of the order of the High Court. No such direction was issued that the application was required to be filed by the workers within one month nor there was there any requirement for the State Government to hear the petitioners before referring the dispute. It was contended that the application was filed soon after receiving the certified copy of the order and that there was no undue delay in filing the application before the State Government.
Since the impugned order referred to certain dates wherein notices were issued to the employers and which created confusion as to when the application of the petitioner was filed and when notices were issued, the Court thought it fit to summon the record. The record was duly summoned, which the Court as well as the counsel for the parties has also perused. The Court finds that an undated application of the workers was received by the State Government sometimes in February, 2012, pursuant to which, the Court finds that the first order was passed by the State Government on 28th March, 2012, and thereafter, notices were issued to the employers on 10th April, 2012 and again on 25th April, 2012.
Having heard the learned counsel for the parties, the Court is of the opinion that there was no direction to the workers to file the application within one month. The direction was to the State Government to consider the request of the workman to settle the dispute to the Industrial Court within one month. Such direction to consider the request was not a mandatory direction, but to exercise the powers by the State Government under Section 4-K of the Industrial Disputes Act as early as possible, which in the instant case, has been done by the State Government as is clear from the perusal of the original record. An undated application of the petitioner was considered and the first order was passed on March, 2011. Notices were issued to the employers in April, and thereafter, the matter was considered. Due enquiry was made and a final order referring the dispute was passed on 27th December, 2012.
The Court is of the opinion that there is no violation of any direction of the High Court and that the State Government after considering all aspects of the matter found that it was expedient to refer the dispute to a labour court for adjudication of the dispute. It is incorrect to state that the order of the reference was passed under the threat of contempt proceedings. The Court finds that due consideration was given by the State Government and after being satisfied, formed an opinion that the industrial dispute existed and accordingly found it expedient to refer the dispute for adjudication.
It was vehemently urged that the State Government was required to give a notice and an opportunity of hearing to the employers before referring the dispute to a labour court for adjudication. It was contended that when the High Court issued a direction to "consider" the request of the workers, the said request was hedged with a condition that the State Government would hear all the parties concerned before forming an opinion to refer or not to refer the dispute, which in the instant case has not been done.
The Supreme Court in Chairman LIC of India (Supra) analysed the word "consider" and held :
"The word "consider", is of great significance. Its dictionary meaning of the same is, "to think over", to regard as", or "deem to be"
Hence there is a clear connotation to the effect that, there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order. (Vide: Director, Marketing, Indian Oil Corporation Lotd. And another Vs. Santosh Kumar, 2006 11 SCC 147; and Bhikhubhai Vithlabhai Patel and others Vs. State of Gujarat and another, 2008 AIR (SC) 1771)."
The Supreme Court held that the word "consider" postulates consideration of all aspects of the matter and that formation of the opinion should reflect intense application of mind with reference to the material available on record.
The Court has already held that the State Government considered all the relevant material that was brought on record and formed an opinion that an industrial dispute existed and that it was expedient to refer the dispute in order to quell the industrial unrest that was existing between the parties. The Supreme Court in LIC of India (Supra) does not talk about opportunity of hearing and only held that there should be consideration of all relevant aspects of the matter, which in the instant case has been done.
The issue as to whether the employers are required to be given an opportunity of hearing before reference is issued is no longer res integra. This issue has been decided by the Division Bench of this Court in Indian Explosive Ltd. (Fertilizer Division) Panki, Kanpur Vs. State of U.P. And others 1981 FLR (42) 423, The Division Bench of this Court held that neither the employer nor the workman can claim any right to be heard before an order of reference is made either initially or on second thoughts. The Court held that when an order is passed under Section 4-K of the Act, the power in substance is exercised on behalf of the public at large and in the interest of the community and that the order of reference on its own force, does not affect substantive right of the parties, which have to be ultimately decided by the Industrial Tribunal or the Labour Court. The Division Bench was clearly of the opinion that neither the employer nor the workmen can claim any right to be heard before an order of reference is made either initially or on second thoughts.
In the opinion of the Court, the order passed by the State Government referring a dispute is an administrative order. No lis is involved between the parties at this stage and subsequently no notice was required to be issued to the employer for hearing him before making or refusing to make a reference.
In the light of the aforesaid, the Court is of the opinion that no notice or opportunity of hearing was required to be given to the petitioner by the State Government before making a reference under Section 4-K of the Industrial Disputes Act.
In the light of the aforesaid, the writ petition fails and is dismissed.
The original record in two volumes is being handed over to Shreeprakash Singh, the learned Standing counsel, who shall make necessary endorsement of the record in the order sheet.