- (1.) Substitution is allowed. In the facts and circumstances of the case, this Court holds that since 5 of the workmen had espoused the case of the workman of M/s Durga Enterprises and since during the pendency of the writ petition three have expired, the two, who still survives, are competent enough to pursue this writ petition.
(2.) By means of the impugned order dated 16.12.1999 the necessary reference made by the State Government under Section 4-K of the U.P. Industrial Dispute Act, 1947 has been returned unanswered on the ground that as per Rule 40 of the U.P. Industrial Disputes Rules, 1947 if there is no union of workmen of the industry then their claims can be represented by a representative duly nominated by the workmen to make an application before the Conciliation Board but such an application must be signed by 5 of the workmen employed in the industry concerned, and they must be duly elected by majority of their employees in a meeting held for the purpose. It has been held that one of the representatives who had signed the papers, has categorically stated on oath that no meeting was held to elect them as the representatives of the workmen or to espouse their case, he is not interested in the dispute. It has been held that since the dispute has not been espoused by persons authorised under a meeting held for this purpose, the application for conciliation represent of the workmen was defective and, therefore, the reference itself is defective.
(3.) On behalf of the Petitioner, it is pointed out that under Section 4-K of the U.P. Industrial Dispute Act a reference in respect of existing dispute can be made by the State Government at any time. The Section only contemplates that if any dispute is existing or is apprehended, the State Government can refer the dispute for adjudication to the Labour Court or the Labour Tribunal, as the case may be. There is no requirement of any application being made by the workmen concerned for such a reference being made. The power can be exercised by the State Government suo moto.;