MATHUR, J. - (1.) THE common question which arises for consideration in both the Special Appeals is whether the learned Single Judge was right in dismissing the writ petition filed by the Executive Engineer, P. H. E. D. , Phalodi, against the award of the Labour Court on a reference made under Section 10 of the Industrial Disputes Act on the ground that the petition was not maintainable in absence of State of Rajasthan being the petitioner.
(2.) IN D. B. Civil Special Appeal No. 1473/1999, the learned Single Judge held that a writ of certiorari cannot be issued against the agents of the State, if the State is not there on record as party respondent. The learned Judge further held that the agent of the State cannot challenge the award in his individual capacity. The award has to be challenged by the State through Executive Engineer or by the State alongwith the Executive Engineer under Article 227 of the Constitution of INdia. IN the said case, the second respondent workman raised an industrial dispute alleging therein that while working as Helper with the Executive Engineer, P. W. D. , Pali, his services were terminated with effect from 9. 7. 90 in violation of provisions of the INdustrial Disputes Act, 1947, hereinafter referred-to as `the Act'. The Labour Court held the order of termination invalid being in violation of Section 25-F and H of the Act. The Court awarded to the workman a lump sum amount of Rs. 41,000/ -. The said award was challenged by the Executive Engineer, P. W. D. , Pali by way of the writ petition under Articles 226 and 227 of the Constitution of INdia. In D. B. Civil Special Appeal No. 645/1998, an industrial dispute was raised by the Rajasthan Trade Union Congress as to whether the Assistant Engineer, PHED, Phalodi, were right in depriving the workman Jasraj of promotion on the post of Pump Driver. The Labour Court by the award dated 20th Sept. , 1994 directed that the workman respondent be promoted on the post of Pump Driver from the date when Balmukund was promoted. A further direction was given to give him all consequential benefits including the back wages. We have heard Mr. R. P. Vyas, learned Additional Advocate General and Mr. N. M. Lodha, learned counsel for the appellants and Mr. Vijay Mehta, learned counsel for the respondents. It is contended by the learned counsel that in view of definition of employer as given under Section 2 (g) of the Industrial Disputes Act, the State being not the employer, the writ petition could be filed only by the concerned Executive Engineer. It is also argued that a reference was made by the State Government under Section 10 of the Act, as such, the writ petition could not have been maintained on behalf of the State Government as a party aggrieved. Mr. Vijay Mehta learned counsel for the respondent workman has also supported the contention of the petitioners. In order to resolve the controversy, it would be convenient to read the definition of "employer" as given in Sec. 2 (g) and that of "industry" under Section 2 (j) of the Act, which are extracted as follows: " (g) "employer" means- (i) in relation to any industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority; (j) "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen;" A reading of definition of `employer' prima facie excludes the possibility of making the Central Government and the State Government directly as a party to industrial dispute referred for adjudication under Section 10 of the Act, as employer means in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf of where no authority is prescribed, the head of the department. Under Section 2 (g), the person who is to be named as an employer for the purpose of Industrial Disputes Act will be the authority prescribed in this behalf from the Government of which the workman is employed or in the absence of such prescribed authority, the head of such department but in either case, the State as such has not been mentioned as an employer. It is also true that reference under Section 10 is made by the appropriate Government i. e. the State of Rajasthan.
(3.) BOMBAY High Court in General Superintendence Company of India Ltd. vs. General Secretary, Goa Dock Labour Union and others (1), has held that when the Court is not examining the competence of the appropriate Government directly or the subjective satisfaction of the Government before it exercised the powers conferred upon it under Section 10 of the I. D. Act but the correctness of a finding given by the tribunal on the question of jurisdictional facts, it is not necessary to make the concerned Government a party to a petition under Article 226 or Art. 227 of the Constitution of India. However, it cannot be lost sight that any order passed by the High Court in exercise of powers under Art. 226 or 227 of the Constitution, will ultimately fasten a liability on the State Govt. and not on any servant of the State. The Executive Engineer or the Assistant Engineer in the Department of P. H. E. D. is a servant of the State Government. The dispute cannot be effectively adjudicated or no effective relief can be granted in absence of appropriate Government being a party. The officers only represent the State. They don't owe any personal liability. In the instant case, in case of failure of the writ petition, a lump sum compensation is to be paid not from the pocket of the Executive Engineer or the Assistant Engineer but from the funds of the State. Thus, it would be inappropriate to take a narrow view by reading the definition of employer as given in the Industrial Disputes Act. Thus, we are of the considered; view that the State Govt. is a necessary party in a writ petition challenging the award passed by the Labour Court, where the workman concerned is the employee of the State of Rajasthan. Thus, we are in agreement with the view taken by the learned Single Judge to that extent. With respect, we are unable to subscribe to the view taken by the BOMBAY High Court. While holding that State of Rajasthan is a necessary party, we are also of the view that a writ petition should not be thrown out only on the ground that petition has not been filed on behalf of the State of Rajasthan or it has not been impleaded as a respondent. The Apex Court in Udit Narain vs. Addl. Member of the Board of Revenue (2), has held that in a writ of certiorari, not only the tribunal or the authority whose order is sought to be quashed but also a party in whose favour the order is issued, are necessary parties. The Court further held that it is in the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on application of a party to the writ or an applica- tion filed at the instance of such proper party. The Court also held that the request for impleading the parties can be made even at the stage of appeal before the Supreme Court. In the instant case, a prayer was made before the learned Single Judge to implead the State of Rajasthan as a party but the same was declined. In our view, the learned Single Judge has failed to exercise the jurisdiction u/articles 226 and 227 of the Constitution of India in a sound manner in refusing to implead the State as a party in the writ petition. A prayer for impleading party, or amendment of formal nature, can be granted even on oral request. Leave to add State of Rajasthan as co-petitioner in the writ petition is granted on oral request of the learned counsel for the appellant. (9 ). Consequently, both the Special Appeals are allowed. The judgment of the learned Single Judge dated 27. 9. 99 in S. B. Civil Writ Petition No. 2983/99 and judgment dt. 24. 8. 98 in S. B. Civil Writ Petition No. 5359/94 are quashed and set aside. Both the matters are remitted to the Single Bench for decision on merit. learned counsel for the petitioners shall file amended cause title within a period of two weeks. Cost easy. .;