1. The petitioners are aggrieved by the award dated 30.01.2013 published on 08.10.2013 passed by the Presiding Officer, Labour Court U.P. at Rampur in Reference Case No. 18 /2011 between the petitioners and one of their employees Naresh Kumar, respondent no. 3.
2. The Labour Court by the aforesaid award held the termination of the services of respondent no. 3 w.e.f 16.10.2009 from the post of Water Boy to be illegal and invalid and directed for his reinstatement with full back wages.
3. A Bank with the name of Prathama Bank was created and established by the Central Government having its branches in Rampur and Moradabad Region in exercise of powers under Section 3 of the Regional Rural Bank Act 1976 (Act No. 21 of 1976). It has one of its Branch in Chhadha Sugar Mill Malasia, Tehsil Hasanpur, J.P. Nagar, U.P.
4. The respondent no. 3 raised an industrial dispute contending that he was appointed in the aforesaid branch of the Bank w.e.f. 13.03.2007 and continued to render services up to 15.10.2009. He had put in 240 days of continuous working in each of the calender years 2007 to 2009. However, without regularizing his services the Bank stopped taking work from him w.e.f. 16.09.2010.
5. The industrial dispute so raised by him was referred to the Labour Court U.P. at Rampur vide order dated 15.09.2010 of the Deputy Labour Commissioner, Moradabad. The reference purported to be made under Section 4-K of the U.P. Industrial Dispute Act, 1947 (hereinafter U.P. Act) reads as under:-
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6. The reference was contested by the petitioners stating that the respondent no. 3 was never appointed on any post in the services of the Bank. He was never regularised on the post of Water Boy. The appointments in the Bank are covered by the Provisions of the Regional Bank Rules 1998, notified in the official gazette dated 29th July, 1998 by the Ministry of Finance. The respondent no. 3 was only asked to work for some time on daily wages at the aforesaid branch of the Bank for which he was duly paid his wages. The Labour Court has no jurisdiction to adjudicate the dispute.
7. The Labour Court by the impugned award held that the respondent no. 3 was appointed in the aforesaid branch of the Bank as a daily wager. He had worked continuously for 240 days in the year 2007, 2008 and 2009. The petitioners have not followed the procedure prescribed under Section 6 (N) of the U.P. Act for retrenchment and, therefore, the termination of his services from the post of Water Boy is bad and he is liable to be reinstated with full back wages.
8. I have heard Sri P.K. Singhal, learned counsel for the petitioners and Sri R.K. Pandey, learned counsel appearing for the respondent no. 3. Learned Standing Counsel represented respondents no. 1 and 2.
9. Sri Singhal has attacked the impugned award on the following four counts:-
(1) The award is without jurisdiction and no reference in respect of the employee of the Bank could have been made under the U.P. Act;
(2) There is no post of Water Boy in the aforesaid branch of the Bank. The petitioner was never appointed as Water Boy. There is no question of reinstatement of the petitioner on the post of Water boy. The Regional Rural Bank Rules 1998 confers no power of appointment upon the Branch Manager and the power of appointment vests in the Chairman of the Bank only;
(3) The respondent no. 3 had not completed 240 days of continuous service in any calender year. He was simply a daily wager. The burden to prove that he had put in 240 days of continuous service in a calender year was upon the petitioner which he had failed to discharge. His services were never regularised on any post much less on the post of Water Boy.
(4) The Labour Court erred in directing for reinstatement of respondent no. 3 as he was not holding any post and at best could have been awarded adequate compensation only for not following the provisions of retrenchment.
10. Sri R.K. Pandey, learned counsel for the respondent no. 3 submits that there is a clear finding by the Labour Court that the respondent no. 3 had put in 240 days of continuous service in three of the calender years. The aforesaid finding is a finding of fact and since no notice under Section 6 (N) of the U.P. Act was given to the respondent no. 3, he had rightly been directed to be reinstated. He further submits that the petitioners have not raised the plea of jurisdiction before the Labour Court and as such cannot be permitted to raise it for the first time in this petition. Moreover, the plea of jurisdiction is more of a technical nature which cannot affect the rights of respondent no. 3, particularly when his termination has been found to be bad for want of notice under Section 6 (N) of the U.P. Act.
11. The basic issue which arises for consideration in this petition is about the applicability of the U.P. Act and the initiation of proceedings thereunder in respect of the employees of the concerned Bank.
12. The objection that such a plea of jurisdiction cannot be permitted to be raised in the writ petition, as it was not taken before the Labour Court is apparently against the record.
13. The writ petition contains the objections/ written statement of the petitioners. In paragraph 13 of the objections/written statement it has been categorically stated that the Labour Court has no jurisdiction to hear the matter.
14. The award of the Labour Court itself while referring to the arguments of the petitioners mention that one of the points of argument was that the Labour Court has no jurisdiction to hear the matter. However, the said aspect of the matter was not considered and answered by the Labour Court. It is therefore, misconceived to argue that the objection of jurisdiction was not raised by the petitioners before the Labour Court.
15. The question of jurisdiction of the Labour Court to hear and decide the dispute between the parties goes to the root of the matter. The plea of inherent lack of jurisdiction can be raised by the litigating parties at any stage.
16. In Kiran Singh vs. Chaman Singh AIR-1954 SC 340 it was held that an order passed without jurisdiction is a nullity and that the plea in this regard can be raised at any stage.
17. In view of the aforesaid, the objection of learned counsel for respondent no. 3 that the issue of jurisdiction can not be permitted to be raised at this stage is over ruled and I proceed to examine the question of jurisdiction of the labour Court and the applicability of the U.P. Act to the case in hand on its merit.
18. There is no dispute that the Prathma Bank is a statuary Bank established by the Central Government under the Regional Rural Bank Act 1976.
19. The Industrial Dispute Act, 1947 (hereinafter refereed as the 'Act') vide Section 2 (9) defines "appropriate Government" to mean the Central Government in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government inter alia Regional Rural Bank established under Section 3 of the Regional Rural Banks Act, 1976. In other words, with respect to any industrial dispute concerning a Regional Rural Bank established under Section 3 of the Regional Rural Bank Act, 1976 the Central Government is the "appropriate Government" .
20. The Act is a complete code in itself and provides for a dispute redressal mechanism. It by Section 10 provides that if any industrial dispute exists or is apprehended, it may be referred to the Labour Court or Industrial Tribunal as the case may be at the behest of the appropriate Government. The term 'appropriate Government' used therein in view of Section 2 (9) of the Act would mean the Central government. Therefore, any industrial dispute in relation to the Regional Rural Banks is referable under Section 10 of the Act by the appropriate Government i.e. Central Government and not by any other authority or the any State Government.
21. In the instant case, undisputedly the industrial dispute between respondent no. 3 and the petitioners was a dispute concerning the employment in the Regional Rural Bank i.e. Prathma Bank created and established under Section 3 of the Regional Rural Banks Act 1976 and as such was referable to the Labour Court or the Industrial Tribunal by the Central Government only but the dispute in question was not referred for adjudication to the Labour Court by the Central Government. Therefore, the reference itself was bad and the Labour Court acquired no jurisdiction to adjudicate the same.
22. A bare reading of the impugned award reveals that the dispute between respondent no. 3 and the petitioners was referred on 15.09.2010 to the Labour Court by the Deputy Labour Commissioner. The said reference was made in purported exercise of powers under Section 4-K of the U.P. Act which provides for a reference of the dispute to the Labour Court or the Industrial Tribunal as the case may be by the State Government.
23. Section 2-A of the U.P. Act mandates that where a dispute relates to discharge , dismissal, retrenchment or termination of service of an individual workman it shall be deemed to be an industrial dispute.
24. Section 11-A of the U.P. Act provides that the State Government may, by notification in the Official Gazette delegate any of its powers exercisable by it under the Act or the Rules to such officer or authority subordinate to the State Government as may be specified by a notification. In exercise of the said power the State Government by notification dated 29th August, 1990 had delegated its power of making a reference under Section 4-K of the U.P. Act regarding dismissal, retrenchment or termination of service of individual workman covered by Section 2-A of the U.P. Act to the Officers mentioned in column 3 of Schedule to the notification. By virtue of the above notification, the Deputy Labour Commissioner, Moradabad, gets the jurisdiction to refer the industrial dispute relating to the Rampur Region to the Labour Court at Rampur.
25. In the case at hand, the reference was made by the Deputy Labour Commissioner under Section 4-K of the U.P. Act in exercise of delegated power of the Government of the State of U.P. The reference was not made by the Central Government.
26. In view of the aforesaid facts and circumstances, the reference of the dispute between respondent no. 3 and the petitioners to the Labour Court at Rampur was not made by the competent authority. Consequently, the award of the Labour Court is without jurisdiction and a nullity.
27. The argument that the technicalities cannot be permitted to defeat justice may sound logically correct but has no force as logic alone would not over ride the law.
28. It is not a matter of technicality, but that of competence of the authority making the reference and the jurisdiction of the adjudicating authority. It is well settled vide Taylor vs. Taylor (1876) 1 Ch. Div. 426 that if the statute provides for doing a thing in a particular manner, then it has to be done in the manner provides in the statute or not at all. Thus, the reference has to be made in the manner provided under the Act and not otherwise. Therefore, the dispute which was referable to the adjudicating authority by the Central Government would not have been decided on a reference made by the State Government.
29. Therefore, following the law as it stand, the impugned award has to go for want of jurisdiction.
30. Accordingly, without going into the merits of the various other contentions raised by the parties the impugned award dated 30.01.2013 passed by the Labour Court Rampur in Adjudication Case No. 18/2011 is quashed. The writ petition succeeds and is allowed.
Order Date :- 20 .04.2016 v.k.updh.