1. The present petition is preferred with the following reliefs:
“A) to issue a writ of mandamus and/or similar writ and/or order and/or direction asking the respondent to treat the petitioners covered under the previous order as is done in case of other employees and they should be treated employees of the ONGC as other similarly situated employees are considered;
B) appropriate writ of mandamus and/or similar suitable order and/or direction may kindly be issued asking the respondent to treat the petitioners covered under the earlier proceeding and should be considered as employees of the respondent Corporation;
C) any other appropriate order may kindly be issued in the interest of justice and if the Hon’ble Court comes to other conclusion, if a necessary process should be started and they should be considered after following required procedure in the matter of other employees and treat them as employees of the respondent from the respective dates.
D) pending admission, hearing and final disposal of this petition, the respondent may be directed to allow the petitioners to continue in the Canteen department;
E) to grant any such other and further relief/s as may be deemed fit and proper in the facts and circumstances of the case.”
2. The short facts as per the petition are as under:
2.1 Petitioners nos.1 and 2 were working as helpers and petitioner no.3 was working as supervisor in Canteen department of respondent since last more than 14 years.
2.2 The names of the petitioners were in the list of employees whose reference was made by the Government for adjudication with other employees. A reference was determined by the Industrial Tribunal, but, the adjudication with regard to these petitioners was not done under the guise that they were not present during the proceedings and not attended the tribunal.
2.3 Being aggrieved by the said order, the petitioners filed Misc. Application No.2 of 2001 along with affidavit affirmed by petitioner no.3.
2.4 The petitioners’ names were mentioned in list of employees which can be seen at serial nos.4, 8 and 12 of the order of Desk Officer dated 19/21.1.1998 at Annexure-B.
2.5 Without giving any opportunity of hearing to the petitioners, the Industrial Tribunal passed the order dated 08.07.2002 in Misc. Application No.2 of 2001, rejecting the application of the petitioners.
3. Mr. Mahendra Patel, learned advocate for the petitioners has contended that Reference (ITC) No.10 of 1998 was referred for the employees, wherein 17 employees were parties to the proceedings, however, the petitioners’ names were sought to be deleted by Exh.24 without the consent of the petitioners and therefore, they could not know the final award and therefore, the same benefit may be conferred to the petitioners. Being aggrieved, the petitioners moved Misc. Application No.2 of 2001 in Reference ITC No.10 of 1998 under Rule 26(A) and prayed that the petitioners may be granted the same order.
3.1 learned advocate for the petitioners has further contended that the deletion below Exh.24 was done without the consent of the petitioners and the Tribunal has no jurisdiction to delete the names of the petitioners below Exh.24. In that view of the matter, respondent may be directed to give the benefits which are conferred to other 14 employees.
4. Mr. Marshal, learned senior counsel for the respondent has supported the order of the Tribunal and contended that, in view of the observations made in Para-9 of Misc. Application No.2 of 2001, the Tribunal has rightly rejected the application of the petitioners. He further contended that the said order was challenged by way of Writ Petition No.3203 of 2001 which came to be disposed of on 03.10.2012. Thus, the order of the Tribunal is merged in the order of the High Court.
5. Heard Mr. Patel, learned advocate for the petitioners and Mr. Marshal, ld. senior counsel for the respondent. I have perused the record and proceedings of the case. It is clear that the petitioners were not present during the proceedings of reference before the Tribunal. Unless the order in reference below Exh.24 is recalled or set aside by the competent authority, the further proceedings is not maintainable. In that view of the matter, the view taken in Para-9 by the Tribunal is just and proper. Para-9 is reproduced as under:
“9. Thus, in view of the aforesaid facts, it clearly transpires that the case has been disposed of on merits, no ex-parte award has been passed. As the three workmen did not remain present, Union itself has foregone the demands only for them. Thus, when the award wherein the ex-prate award has not been passed, cannot be ordered to be entertained on merits by listing on board again as reference confined to only three workmen. As discussed herein above, this is one of the group dispute, it has been decided on merits. Therefore, the demand of taking the reference on file only for three workmen is no way proper and legal. The workmen/Union has stated that they do not press the demand themselves. Thus, after hearing both the parties, when the group dispute has been decided on merits, the request of hearing the reference again only for three workmen is not legal. The group dispute cannot be divided in two parts. The award which has been passed, is not the part award but the reference has been completely disposed of. If it is to be filed again, by canceling the award passed in the entire reference, not doing so that the case should be heard again, the request for hearing again for the three workmen is not proper and legal. The workmen have no right or authority to make such application. If they so feel that they should be afforded an opportunity legally, they can come for judicial decision through a new reference by creating an industrial dispute again. But this application cannot be entertained legally, therefore, following order is passed.”
6. The reference was through union and application for deletion was given by the union. The said order is not recalled or set aside. Therefore, it will not be proper to interfere in the matter. I am in complete agreement with the view taken by the Tribunal. Accordingly, the petition, devoid of any merit, deserves to be dismissed and therefore, the same is dismissed. Rule is discharged.
(K.S.JHAVERI, J.) Chandrashekhar*