- (1.)This appeal is directed against the impugned judgment and order dated 20.01.2010 passed by the High Court of Judicature at Bombay, Nagpur Bench in Writ Petition No. 2069 of 2009, for setting aside the impugned order and quashing the order of reference dated 18.2.2009 passed by the State Government of Maharashtra - respondent No.1 herein, raising certain questions of law and urging grounds in support of the same.
(2.)The factual matrix and the rival legal contentions urged on behalf of the parties are briefly stated hereunder with a view to find out whether the impugned judgment and order warrants interference by this Court in this appeal.
(3.)The appellant is the employer and respondent nos. 4 to 8 herein are the representatives of its workmen. The workmen raised an industrial dispute under the provisions of the Bombay Industrial Relations Act, 1946 (for short "the B.I.R. Act") read with the relevant provisions of the Bombay Industrial Relations Rules, 1947 (for short "the B.I.R. Rules") in relation to the service conditions of the workmen for payment of variable dearness allowance (VDA) to be given to all categories of workmen, in the industrial establishment of the appellant with an increased rate from time to time as per the Government notification dated 1.4.1993. The third respondent - Assistant Commissioner of Labour, Nagpur, the Conciliation Officer, before whom the workmen raised an industrial dispute in relation to the above service conditions of the workmen, has issued a notice to the appellant either to settle the matter or he will refer the industrial dispute to an appropriate Industrial Tribunal/Labour Court for adjudication of the same in accordance with law. The appellant filed objection statement on 14.4.2008 before the Assistant Commissioner of Labour, inter alia, stating that no industrial dispute was existing between the workmen and the employer with regard to the claim of variable dearness allowance as per the Government notification dated 1.4.1993, as the appellant employer and the elected representatives of the workmen who were elected as per Section 28 of the B.I.R. Act, have signed the settlements with regard to the variable dearness allowance as per the settlements dated 06.05.1993, 12.06.1996, 29.04.1998, 07.02.2000, 09.05.2003 and lastly on 16.04.2006, which was in force for a period of 3 years i.e. upto 31.03.2009. Since the industrial dispute could not be settled between the parties in the conciliation proceedings and in the light of the legal objections raised by the appellant, the Assistant Commissioner of Labour forwarded the failure report to the Commissioner of Labour - the second respondent herein, under Section 64 of the B.I.R Act. The Commissioner of Labour published the failure report and forwarded the same with his recommendation to the State Government to make an order of reference of the industrial dispute to the Industrial Tribunal having the jurisdiction for adjudication as the objection raised by the appellant does not have any legal standing. The State Government, after examining the matter, referred the same for adjudication to the Industrial Tribunal, Nagpur, as per the point of dispute in exercise of its powers conferred under Section 73(2) of the B.I.R. Act vide its order dated 18.02.2009. Aggrieved by the same, the appellant filed a writ petition before the High Court which was also dismissed by passing the impugned judgment. Hence this appeal. Mr. V.A.Mohta, the learned senior counsel appearing for the appellant has contended that raising of the industrial dispute by the workmen and getting an order of reference made by the State Government to the Industrial Tribunal for adjudication of the dispute between the parties is not maintainable in law as the last settlement dated 16.04.2006 entered into between the appellant and the representatives of the workmen was in operation for a period upto 31.3.2009 as per the provisions of the B.I.R. Act and covered the variable dearness allowance in the said settlement. Therefore, it is contended by him that the workmen could not have raised the industrial dispute in this regard and the same could not have been referred to the Industrial Tribunal by the State Government for its adjudication in exercise of the power conferred upon the State Government under Section 73 (1) & (2) of the B.I.R. Act. Further, it has been urged that accepting the failure report received from the third respondent by the second respondent without considering the statement of objections filed by the appellant-employer, is in contravention to Sections 54, 57 and 64 of the B.I.R. Act. As the order of reference made by the State Government to the Industrial Tribunal, Nagpur was without jurisdiction; the same should have been quashed by the High Court in exercise of its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. It is also contended by the learned senior counsel for the appellant that without giving a proper hearing to the appellant-employer, the order of reference made by the State Government to the Industrial Tribunal is not in accordance with Chapter X of the B.I.R. Act and therefore, the same is liable to be quashed.