- (1.) THIS petition under Art. 227 of the Constitution of India is filed by the B. E. S. T. Workers' Union (hereinafter referred to as the union) challenging the order of the President of the Industrial Court who had set aside the order of the Labour court holding that the respondent B. E. S. T. Undertaking (hereinafter referred to as the undertaking)had made an illegal change and the application of the union came to be rejected on the ground that the necessary parties were not joined.
(2.) THE undertaking had created two posts of statistical officer and survey officer in the traffic supervisors M. N. Palvankar and s. P. Orpe to these posts respectively by promotion. The union filed an application, being Application No. 378 of 1969, for a declaration that the undertaking had committed an illegal change, but as a result of those proceedings, the posts were discontinued from 1 October 1969, because even according to the undertaking, the posts were temporarily created. However, the undertaking granted a lump sum of Rs. 75 to each of the above two employees and the union again filed an application under S. 78 read with S. 42 (4) of the Bombay Industrial relations Act, 1946 (hereinafter referred to as the Act), for a declaration that the undertaking by sanctioning and granting an allowance of Rs. 75 per month to the two officers without giving the prescribed notice had committed an illegal change.
(3.) ADMITTEDLY, the compensatory allowance of Rs. 75 was granted to each of the above two officers without giving any notice of change. The Labour Court took the view that this amounted to a change and fell under item (9) of Sch. II of the Act. It further took the view that the appointment of the two above mentioned employees in the statistical section increased the number of persons employed in that section and thus was an illegal change covered by item (2 ). The contention that the change was covered by item (4) of Sch. II was, however, negatived. The undertaking was directed to, withdraw the change within one month from the date of the order of the labour Court. The undertaking filed an appeal before the Industrial Court. The Industrial Court did not go into the legality or otherwise of the action taken by the undertaking, but it took the view that the order of the Labour Court suffered from an inherent defect inasmuch as though the order affected the two employees concerned, none of them was given an opportunity to be heard and the order was passed in their absence. The Industrial Court took the view that the finding that the two employees were not eligible to payment of such allowance could not be recorded without notice to the persons concerned and in their absence. The Industrial Court further observed that no useful purpose would be served by remanding the matter because the stand taken by the union was that the two persons concerned were not required to be impleaded. Having thus found that the two employees were not only proper parties but necessary parties, the order of the labour Court was set aside and the application of the union came to be rejected. The union has now filed this petition challenging the order of the Industrial Court.;