Heard Sri Manoj Yadav, learned counsel for the petitioner and Sri Ajay Kumar, learned counsel for the respondent nos. 3 and 4. and perused the record.
The present writ petition is directed against the award dated 2.1.2018 published on 29.5.2018 passed by the Presiding Officer, Labour Court, U.P., Meerut in Adjudication Case No. 49 of 2007 between U.P. Electricity Staff Union Circle Committee Meerut vs. U.P. State Electricity Board and others.
The petitioner herein is a trade union registered under the provisions of the Indian Trade Union Act, 1926 vide registration no. 12211 dated 23.1.1961 with the Registrar of Trade Union, U.P., Kanpur. The said union raised a dispute with regard to the reappointment/reinstatement of the workman petitioner namely Chaman Singh son of Daleep Singh before the Conciliation Officer in C.P. case on 29.1.1998 demanding wages and other benefits for the period from 7.4.1978 to 9.10.1990. The specific dispute raised by the union on behalf of the workman was that he was entitled to reinstatement and the employer had wrongly reappointed him on 9.10.1990 which had resulted in the loss of continuity of service and other benefits thereof.
The said dispute had been culminated into an order of reference dated 20.9.2007 as under:-
vkS|ksfxd fookn dk fooj.k ^^D;k lsok;kstdksa }kjk vius Jfed Jh peu flag iq= Jh nyhi flag] fLdYM dqyh dh iqufuZ;qfDr fnukad 20-07-1976 ds LFkku ij fnukad 09-10-1990 ls fd;k tkuk mfpr [email protected] oS/kkfud gS\ ;fn ugha rks lEcfU/kr Jfed D;k [email protected]'ke ikus dh vf/kdkjh gS] fdl frfFk ls o vU; fdu fooj.kksa lfgrA** Without delving into the merits of the claim of the union regarding reappointment/reinstatement of the workman, it would be relevant to note that the reference was rejected on the ground that cause of the workman had not been properly espoused by the union. In other words, it has been held by the labour Court that the applicant has not been able to establish that it has espoused the cause of the workman properly through union. It was, thus, held that the dispute, therefore, would not fall within the ambit of the industrial dispute under the U.P. Industrial Disputes Act, 1947 conferring jurisdiction on the labour Court to adjudicate and answer the reference. The award dated 2.1.2018 was passed, accordingly.
This award is under challenge in the present writ petition on the ground that it was the result of non-application of judicial mind. The dispute was referred as early as in the year 2007 by the appropriate Government after satisfying itself about the existence of the industrial dispute. The labour Court was under obligation to answer the reference made under Section 4-K of the U.P. Act No. 1947. The labour Court is a Court of referral jurisdiction, it did not have jurisdiction to reject the reference on the alleged incompetence of the union to espouse the cause of the workman.
It is noteworthy that in adjudication case, a written statement dated 7.1.2008 was filed by the employees union in respect of the dispute of the concerned workman Sri Chaman Singh. The said written statement is signed by the President on behalf of the employees union. A written statement in reply thereto was filed by the employer on 20.10.2008 wherein no objection was taken with regard to the authority of the union to espouse the cause of the workman. The objections in the said written statement of the employer was only on the merits of the claim of the union.
The evidence of the parties had commenced, the concerned employee Sri Chaman Singh recorded his statement as W.W.-1 with the affidavit dated 25.3.2011. He had entered into the witness-box and his statement-in-chief and cross-examination was recorded between 26.2.2014 and 26.8.2014.
A perusal of the said statement shows that the workman had made categorical statement there that he raised the dispute through the employees union which is a registered trade union. For the said purpose, he moved an application in the year 1998 before the union, a carbon copy of which is on record as Exhibit W-13. The extract of the membership register containing the name of the workman and the registration certificate are also on record. From the cross-examination of the workman, it is apparent that no such suggestion was given to him as to the correctness of the said documents.
The record further indicates that the President of the registered union had also filed his affidavit in evidence stating therein that with list 19-B(ii), the registration certificate of the trade union, the extract of membership register showing the name of the workman therein, the copy of the application dated 3.1.1998 filed by the workman, had been filed. The working committee of the union had passed a resolution by majority to espouse the cause of the workman and, thereafter, the dispute was raised before the Conciliation Officer. It was also deposed that both on the written statement filed on behalf of the union and on the authority letter, the signature of the President of the union namely the deponent exist. He had deposed as D.W.-2 and stated on oath that the documents filed with the list 19-B(ii) bear his signature and the union had resolved to espouse the cause of the workman. In the cross-examination, though he admitted that the original application and all other original record had not been brought by him before the labour Court but reiterated that the proceedings with regard to the agenda and resolution for espousing the cause of the concerned workman were written in the proceeding register.
The statement of this witness was recorded on 26.2.2014.
The Executive Engineer of the Distribution Nigam, the respondent employer had entered in the witness-box on 19.5.2015 and deposed as D.W.-1. There is nothing in his statement which would demonstrate that he had raised any objection with regard to the right of the union to raise the industrial dispute.
Four months after the evidence of both the parties were concluded, an application dated 10.9.2015 was filed by the employer's representative wherein an objection had been raised to frame preliminary issue regarding the manner in which the industrial dispute was raised. It was stated therein that there is no evidence on record which would demonstrate that the union had resolved to espouse the cause of the workman. The agenda and resolution of the union are not on record. There is no document on record which would prove the workman being member of the union. D.W.-2 namely the President of the union had admitted in his cross-examination that he did not bring the original records of proceedings of the union to prove that it had in fact resolved to espouse the cause of the workman. The President of the union had no right to raise the dispute on his own and, therefore, it would not be a valid dispute so as to treat it as an industrial dispute.
The said application was registered as paper no. 38-D to which a reply was filed by the authorised representative of the union. It was stated therein that the preliminary issue raised by the employer by means of application 38-D, after 8 years of the reference was with the view to delay the proceedings of the adjudication case. After evidences were concluded and dates were being fixed for final hearing for a period of three months, the employer could not be permitted to raise the preliminary objection raising dispute regarding the validity of the reference on the aforesaid ground.
The labour Court, however, has allowed the application 38-D holding that the cause of the workman cannot be said to be espoused by the union and the reference, therefore, is liable to be rejected.
Having noticed the above undisputed facts evident from the record, it is apparent that the preliminary issue with regard to the correctness of the reference was raised by the employer after a period of eight years from the date of reference that too when the evidence of both the parties were concluded. Before 10.9.2015, when the application 38-D was moved by the employer no objection was taken with regard to the entitlement of the then President of the union to raise the dispute on behalf of the workman through union. There is no dispute about the fact that the conciliation application was filed on 29.1.1998 on behalf of the union through the then President. The authorised representative of the union namely the President had participated in the conciliation proceedings. After failure of the conciliation, the dispute was referred on 20.9.2007 for adjudication. The union had filed a written statement on 7.1.2008 through its authorised representative who was the then President. He had entered in the witness-box and recorded his statement in the year 2014. The evidences of both the parties were concluded on 19.5.2015. Till then, no objection was raised by the employer regarding entitlement of the authorised representative to espouse the cause of the workman through union. From the stage of conciliation till much after conclusion of the evidences of both the parties, at no point of time any application was moved by the employer raising a dispute regarding validity of the reference on the said ground. There is no objection in the written statement in this regard. The dispute admittedly had been raised for the first time on 10.9.2015 that too taking aid of the statement of the then President of the union recorded in evidence at an earlier point of time.
The labour Court has allowed the application 38-D while rejecting the documents appended with the list paper no. 19-B(ii) filed by the union solely on the ground that the authorised representative of the union namely D.W.-2 could not prove the said documents in evidence. It has further observed that the question as to whether the cause of the workman has been espoused by the union goes to the root of the matter and, therefore, was necessary to be determined first before entering into the merits of the reference.
This approach of the labour Court, in the opinion of this Court, is wholly uncalled for. The labour Court has completely ignored the fact that no such dispute at any point of time was raised by the employer prior to 10.9.2015. In absence of any such dispute, there was no occasion for the authorised representative to bring the original records before the labour Court to prove that the cause of the workman was validly espoused before it.
It has further ignored the undisputed fact that the employees union which had filed the conciliation application in the year 1998 is a registered trade union and the employees of the Electricity Board are its members. The fact that the original records of the resolution having been passed by the union in the year 1998 was not brought on record of the labour court for there was no dispute at that time, has been conveniently ignored by the labour Court. It has committed grave illegality in rejecting the reference on the ground that the authorised representative had failed to prove the documents filed with list 19-B(ii) by bringing the original record while appearing in the witness-box on 26.2.2014. It is also noteworthy that even the conciliation proceedings were initiated by the union and at no point of time, the employer raised any dispute with regard to right of the authorised representative of the union namely the President to raise the dispute.
There cannot be a dispute that the question as to whether the union was espousing the cause of the workman or the President of the union on his own had raised the dispute, could have been examined by the labour Court so as to satisfy itself as to whether the dispute has validly been raised or not. However, such a question could have been examined by the labour Court on an objection raised by the employer at the initial stage of the adjudication by framing an issue in this regard so as to allow both the parties to lead their evidence. It was not open for the labour Court to entertain application 38-D filed by the employer at the stage of the final arguments in the adjudication case. The fact that the employer did not raise any such dispute in the written statement was sufficient to proceed with the reference on merits treating it as a valid reference and the dispute having been raised through union for espousing the cause of the workman.
The reliance placed by the labour Court upon the judgment of the Delhi High Court in Management of Hotel Samrat and others vs. Government of NCT and others1 to substantiate its opinion is misplaced, inasmuch as, the said case has been decided in the facts and circumstances of that case.
Reference may be made to the judgment of the Apex court in J.H. Jadhav vs. Forbes Gokak Ltd.2 wherein the order of the High Court in upsetting the award on the ground that there was nothing on record to show that the appellant was the member of the union or the dispute had been espoused by the union by passing any resolution in that regard, has been set aside.
It has further been observed therein as under:-
"As far as espousal is concerned there is no particular form prescribed to effect such espousal. Doubtless, the Union must normally express itself in the form of a resolution which should be proved if it is in issue. However proof of support by the Union may also be available aliunde. It would depend upon the facts of each case."
The Apex Court has thus held that as far as espousal is concerned, the same is normally proved by the resolution of the union. However, the proof may also be available aliunde i.e. from any other available source. That means, the resolution of the union is not the only source for proof of the fact of the espousal of cause of the workman by it.
It has further been observed by the Apex Court therein that the question as to whether the cause of the workman was espoused by the union by majority is the subject matter of evidence to be led, if such an issue is raised and would depend upon the facts of each case.
In the instant case, the question answered by the labour Court by the order impugned was not in issue, till evidence of the parties were concluded. It was, therefore, not open for the labour Court to entertain the application raising such an issue after conclusion of the evidence of the parties that too after a period of eight years of the reference. For the aforesaid, there cannot be a second opinion to the fact that the application dated 10.9.2015 raising preliminary objection was filed with a view to stall the proceedings in sheer abuse of process of law.
For the above discussion, the award dated 2.1.2018 published on 29.5.2018 in Adjudication Case No. 49 of 2007 (U.P. Electricity Staff Union Circle Committee Meerut vs. U.P. State Electricity Board and others) cannot be sustained.
The same is hereby quashed.
The matter is remitted back to the Presiding Officer, Labour Court, U.P., Meerut for decision on the merits of the reference.
It is made clear that the labour Court shall make all endeavour to decide the Adjudication Case No. 49 of 2007, expeditiously, preferably, within a period of two months from the date of submission of certified copy of this order.
Subject to the above observations and directions, the writ petition is disposed of.