Rajiv Sharma, J. - (1.) IN all these petitions, the sole question involved is that whether the Conciliation Officer/Deputy Labour Commissioner is vested with the power to review its earlier order or not and, therefore, these writ petitions are being decided by a common judgment. Brief facts, giving rise to these writ petitions, are that the workmen (private respondents) filed an application under section 2 -A of the U.P. Industrial Disputes Act, 1947 before the Deputy Labour Commissioner/Conciliation Officer alleging therein that their services have been terminated orally by the petitioner, which is a private limited company and is engaged in manufacturing of plastic and allied products. Cognizance was taken and notices were issued to which objections were filed by the petitioner denying the oral termination and it was further stated that the workmen have themselves resigned.
(2.) THE Conciliation Officer after examining the matter came to the conclusion that as the employees have tendered resignation and as such, there was no industrial dispute which can be referred for adjudication. The said report of the Conciliation Officer/Assistant Labour Commissioner was accepted by the Deputy Labour Commissioner on 28.6.2002 and the parties were also informed accordingly. Later on, the opposite parties moved an application dated 24.2.2005 for reviewing the aforesaid order, on which notice dated 4.7.2005 was issued annexing therewith the application dated 24.2.2005 submitted by the representative of the workmen. In the application dated 24.2.2005, the workmen have prayed for review of the earlier order by which the case was consigned to record. On receiving the aforesaid notice, the petitioner submitted a reply mentioning therein that the report submitted by the Assistant Labour Commissioner/Conciliation Officer has been accepted by the Deputy Labour Commissioner and the parties were informed that there exists no industrial dispute as such there was no occasion to proceed in the case, when it has already been ordered to be consigned to record. It is contended by the learned Counsel for the petitioner that by the impugned order dated 5.10.2005, the Deputy Labour Commissioner, in a most arbitrary manner, referred the case for adjudication to the Labour Court inter -alia on the ground that the original resignation letter as also the original documents pertaining to full and final settlement given to the workmen at the time of their leaving services were neither produced nor placed by the employer. It was also observed that photocopy of the resignation letter has been produced which cannot be read in evidence. According to learned Counsel for the petitioner, U.P. Industrial Disputes Act, 1947 and the rules framed thereunder do not provide for review of any order and as such, the application for review made by the workmen was not entertainable and the Deputy Labour Commissioner exceeded his jurisdiction in entertaining and allowing the same. It is a settled position of law that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. To strengthen his arguments, learned Counsel for the petitioner has relied upon the citations of Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. and another : 2005 (105) FLR 416 (SC) : 2005 (34) AIC 410 (SC), Bombay Union of Journalists and others v. The State of Bombay and another : 1964 (8) FLR 236 (SC) : AIR 1964 SC 1617, and Smt. Harjeet Kaur v. Additional District Judge, Lucknow and others, 2006 (62) ALR 826: In Kapra Mazdoor Ekta Union's case (supra), the Hon'ble Supreme Court observed that in case of procedural review, party seeking the same does not have to prove any of the grounds necessary to warrant review on merits, such as error apparent on face of record. Rather, it has to be establish that the procedure followed by the forum concerned suffered from such illegality that it vitiated the proceedings and invalidated the order made therein.
(3.) IT is also contended by the learned Counsel for the petitioner that the dispute which is to be referred is on the application of Union on behalf of the workmen and as such it cannot be termed to be an industrial dispute under section 2 -1 of the Industrial Disputes Act in so far as it can be raised by the workman individually. In the instant case workmen have tendered their resignation and, therefore, it cannot be termed to be an industrial dispute. Moreover, the disputes which can be referred to as a dispute is in respect of discharge, dismissal or termination. Learned Counsel for the petitioner next contended that non -payment of pending dues to the workmen, will not establish any industrial dispute and the proper course available to the workmen was to make a reference under section 4 -K of the U.P. Industrial Disputes Act, 1947. In support, he has placed reliance on paragraph 18 of the decision rendered in Bharat Heavy Electrical v. Anil : 2007 (1) SCC 610 : 2007 (112) FLR 117 (SC). Paragraph 18 reads as under: "There is one more reason for coming to the above conclusion. There is a difference between an individual dispute which is deemed to be an industrial dispute under section 2 -A of the said 1947 Act on the one hand and an industrial dispute espoused by the union in terms of section 2 (1) of the said 1947 Act. An individual dispute which is deemed to be an industrial dispute under section 2 -A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute under section 2(1) covers a wider field. It includes even the question of status. This aspect is very relevant for the purposes of deciding this case. In Radhey Shyam v. State of Haryana, it has been held after considering various judgments of the Supreme Court that section 2 -A contemplates nothing more than to declare an individual dispute to be an industrial dispute. It does not amend the definition of industrial dispute set out in section 2(k) of the Industrial Disputes Act, 1947 (which is similar to section 2(1) of the said 1947 Act). section 2 -A does not cover every type of dispute between an individual worker to raise an industrial dispute, notwithstanding, that no other workman or union is a party to the dispute. Section 2 -A applies only to disputes relating to discharge, dismissal retrenchment or termination of service of an individual workman. It does not cover other kinds of disputes such as bonus, wages, leave facilities, etc.";