RAFIQ, J. - (1.) THESE two writ petitions raise a common questions of fact and law and therefore are being taken up together for disposal. In both the writ petitions, the petitioner is also common and two orders passed on the same date have been challenged. However, for deciding the controversy, facts of S. B. Civil Writ Petition No. 3780/2005- Manager, Atlanta Infrastructure Ltd. vs. State of Rajasthan & Ors. are being referred.
(2.) IN the first writ petition namely, S. B. Civil Writ Petition No. 3780/2005, what is under challenge is the corrigendum issued by the appropriate Government on 9th May, 2005 vide which it has amended the name of the union in the notification earlier issued by it. IN second writ petition namely S. B. Civil writ petition No. 4155/2005 also under challenge is the corrigendum issued by the appropriate Government on 9th May, 2005 by which also an amendment was made in the notification of reference dated 14. 12. 1999. By this notification the appropriate Government had made a reference to learned labour court, Udaipur on the question of validity of retrenchment of certain employees of the petitioner from their service on 15. 7. 1999. IN both the notifications, the appropriate Government while making a reference under Section 10 of the INdustrial Disputes Act, 1947 (in short the Act of 1947) mentioned the name of the union as Atlanta INfrastructure Shramik Sangh Bhathera House, Fatehpura, Udaipur while in first notification dated 13. 10. 1999 as originally issued, the appropriate Government had mentioned the name of the union as Atlanta INfrastructure Shramik Sangh, Bathera House, Fatehpura, Udaipur. By the impugned corrigendum issued in both the cases, however the appropriate Government sought to substitute the names of the aforesaid unions by Atlanta Shramik Sangh, Udaipur. A short but an important question that arises for consideration in these writ petitions is whether the appropriate government having once issued a notification of reference under Section 10 of the Act of 1947 can at later point of time made an amendment therein so as to substitute the names of the parties, which in the present case is the name of the union and the related question whether in a case like present one, can the appropriate Government make an amendment in the terms of reference after it is divested of its powers and has become funtuous officio once notification of the reference is published. The Manager, Atlanta Infrastructure Ltd (in short management) has challenged the aforesaid orders of corrigendum on the premise that these orders are without jurisdiction and have been passed in utter disregard of principles of natural justice inasmuch as no opportunity of hearing was provided to the management prior to passing them. According to the petitioner, this has in fact resulted into changing the nature of the proceedings. In the present case, the union named in the original order of reference had been agitating grievance of the workers and espousing their case. It has been argued that it is settled law that when a reference is made, the statement of claim can be submitted only by a union authorized to represent the cause of the workmen and the filing of statement of claim by the newly substituted union respondent no. 3 was completely without authority of law and, therefore, rightly objected to by the petitioners. It was at this stage that the respondent no. 3 made an application to the appropriate Government seeking amendment in the order of reference. It has been argued that a corrigendum is confined to merely correcting clerical or typographical mistakes. Such a power however in the present case has been arbitrarily exercised by the appropriate Government, which has virtually changed the nature of the dispute by replacing an altogether new party to dispute. It has further been argued that the corrigendum having been made at a very belated stage of proceeding at the stage of final hearing it lacks bonafide because it was made at the instance of respondent no. 3 to frustrate just objection raised by the management. I have heard Shri Harish Purohit, learned counsel for the petitioner and Shri Rameshwar Dave, learned Dy. Government Advocate and perused the record. Shri Harish Purohit in support of his argument has cited the judgment of the Hon'ble Supreme Court in State of Bihar vs. D. N. Ganguly & Ors reported in AIR 1958 SC 1018 and argued that the Government having made reference under Section 10 of the Act of 1947 had no legal authority to either cancel the reference or supersede or otherwise amended it at any such subsequent state before passing of the award. The order passed by the Government therefore is not in accordance with law. He further argued that originally the respondent no. 3 was a union constituent of Mewar Wager Mazddor Sangh but subsequently when it was registered as an independent union by the name of Atlanta Infrastructure Ltd. it submitted statement of claim in its own name on 17. 6. 1999. He referred to the statement of Umed Kumar and the complaint filed by one Shri Atul Bharati in which they stated that name of their union was initially Atlanta Infrastructure Shramik Sangh, Bathera House, Fatehpura, Udaipur whereas the fact is that on that date their union was not even registered by that name. The respondent No. 3 has thus not come with clean hands. The impugned order is therefore liable to be set aside and the writ petition deserves to be allowed.
(3.) IN M/s. Dabur (Dr. S. K. Burman) Private Ltd, Deoghar, Bhiar vs. The Workmen reported in AIR 1968 SC 17, the Hon'ble Supreme Court dealing with the case in which the appropriate Government subsequent to making of reference sought to substitute the word "ranchi" from Patna with regard to the labour court to which reference was made, an argument was raised that while reference was originally sought to be made to labour court, Patna in the first notification in the subsequent one, it was replaced by Ranchi and that the view of the High Court that it was a mere clerical error was not sustainable because the labour court, Patna to which reference was originally made had no jurisdiction to entertain the dispute. The Hon'ble Supreme Court rejected the argument holding that this only reflected that the Government "in fact intended to make the reference to the labour court, Ranchi; but, while actually scribing the order of reference, a mistake was committed by the writer of putting down Patna instead of Ranchi. " It was further held that "such a clerical error can always be corrected and such a correction does not amount either to the withdrawal of the reference from, or cancellation of the reference to, the Labour Court, Patna. In M/s. Hochtief Gammon vs. State of Orissa & Ors reported in (1975) 2 SCC 649, the dispute pertained to the payment of bonus to the labouers engaged by M/s. Hochtief Gammon. In August, 1957, the Hindustan Steel Ltd (in short company) and M/s. Hochtief Gammon (in short contractor) entered into a contract for execution of the foundation and civil engineering working of the Hot and Cold Rolling Mills at Rourkela including the purification and other civil engineering work connected with the water supply to the rolling mills. As per the contract, all payments to the labour were to be made by the said company. On demand of the union, reference was made to the labour court on the question whether the workers of the contractor were entitled to any bonus. The contractor declaiming his liability requested the labour court for impleadment of the company as respondent, but the application was dismissed by the labour court and the order was not only upheld by the High Court but also Supreme Court. In those facts, the contractor submitted an application to the State Government seeking modification of the earlier reference order to the industrial tribunal by adding the said company as party respondent to decide who was liable to pay bonus. When the Government rejected the application, the contractor approached the High Court under Article 226 of the Constitution of India for writ of mandamus, which was also dismissed and matter then reached back to Hon'ble Supreme Court. In those facts, the Hon'ble Supreme Court observed that "government's order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behaviour. In para no. 15 of the judgment it further held as under: - ". . . . . . . . it has failed to realise that in effect the contractor employed labour for the company who was the real paymaster. It had failed to take into account the fact that the workmen wanted to bonus from either the company or the appellant. Naturally the workmen were not interested who paid them as long as they were paid. It would bear repetition to say again that the original mistake arose out of the assumption by the labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also. He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it in spite of the application made to them by the appellant after the disposal of the earlier appeal by this Court, giving all relevant facts. It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellant's application. " Having so hold, the Hon'ble Supreme Court directed reconsideration of the matter and thereafter, while considering the scope of Section 18 (3) (b) held as under:- ". . . . . What the Tribunal can consider in addition to the dispute specified in the order of reference, are only matters incidental to the said disputes; and that naturally suggests certain obvious limitations on the implied power of the Tribunal to add parties to the reference before it, purporting to exercise its implied power under S. 18 (3) (b ). If it appears to the Tribunal that a party to the industrial dispute named in the order of reference does not completely or adequately represent the interest either on the side of the employer, or on the side of the employee, it may direct that other persons should be joined who would be necessary to represent such interest. If the employer named in a reference does not fully represent the interests of the employer as such, other persons who are interested in the undertaking of the employer may be joined. Similarly, if the unions specified in the reference do not represent all the employees of the undertaking, it may be open to the Tribunal to add such other unions as it may deem necessary. The test always must be is the addition of the party necessary to make adjudication itself effective and enforceable? In other words, the test may well be, would the non-joinder of the party make the arbitration proceedings in effective and unenforceable? It is in the light of this test that the implied power of the Tribunal to add parties must be held to be limited. " ;