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District Motor Transport Workers' Union Vs. State of Haryana (06.11.1968 - PHHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in(1970)ILLJ607P& H
AppellantDistrict Motor Transport Workers' Union
RespondentState of Haryana
Cases ReferredLtd. v. State of Punjab and Ors.
Excerpt:
.....was that they should be given the increases in their deafness allowance as had been given by the punjab government on 11 may 1967, 15 december 1967, and 11/15 january 1968. there is no doubt that they baaed this demand on the basis of the settlement which bad been arrived at on 17 april 1957. that settlement was for ten years and lapsed on the expiry of that term so that when their notice of demand dated 13 january 1968, was issued, the settlement did not subsist between the parties. secondly, the president of india, in the notification dated 5 march 1968, did not mention that he bad formed an opinion that an industrial dispute existed between the workmen and the management of respondents 2 to 4 and the condition precedent for reference of an existing dispute to the tribunal for..........increasing the dearness allowance payable to the workmen as and when those were increased by the punjab government. these increase were made on 18 february 1965, 15 june 1966 and 8 february 1967. on 11 may 1987, the punjab government announced further increase in the dearness allowance of its employees but the said respondents refused to allow the increase to their employees. further increases were made on 15 december 1967 and 11/15 january 1968, which were also not allowed to the workmen by respondents 2 to 4. the workmen sent a notice dated 13 january 1968, to the said respondents in which they demanded dearness allowance from 1 may 1967, as had been given to the punjab roadways employees and they also made some other demands with which we are not concerned. the matter was brought to.....
Judgment:

Bal Raj Tuli, J.

1. This petition has been filed by the workmen of respondents 2 to 4 which are transport companies and seeks the quashing of notification No. 5991 published in the Haryana Government Gazette dated 5 March 1968 (annexure A-12 to the writ petition).

2. The facts are that on 17 April 1957, a settlement was arrived at under Section 12(3) of the industrial Disputes Act (hereinafter called the Act) between the workers, represented through the District Motor Transport Workers' Union (Registered), Karnal, and the management of the Karnal Co-operative Transport Society, Ltd., Karnal. Item 1 of the settlement is as under:. The terms and conditions of service applicable at present to all categories of employees of Punjab Roadways and as may be modified from time to time by the Government, would be applicable to the employees of the Karnal Co-operative Transport Society, Ltd., Karnal. The previous record of service. educational qualifications, would not, however, disqualify the present employees in any way for the purposes of continuing in the employment of the company. A copy of the service rules enforced at present in the Punjab Roadways obtained by the labour officer would be supplied to both the parties for their guidance and compliance.

3. The Karnal Co-operative Transport Society, Ltd., was divided into three societies in 1965, these societies being respondents 2,3 and 4. The said societies being successors-in-nterest of the Karnal Co-operative Transport Society, Ltd., were bound by the said settlement. In accordance with that settlement the said respondents went on increasing the dearness allowance payable to the workmen as and when those were increased by the Punjab Government. These increase were made on 18 February 1965, 15 June 1966 and 8 February 1967. On 11 May 1987, the Punjab Government announced further increase in the dearness allowance of its employees but the said respondents refused to allow the increase to their employees. Further increases were made on 15 December 1967 and 11/15 January 1968, which were also not allowed to the workmen by respondents 2 to 4. The workmen sent a notice dated 13 January 1968, to the said respondents in which they demanded dearness allowance from 1 May 1967, as had been given to the Punjab Roadways employees and they also made some other demands with which we are not concerned. The matter was brought to the notioe of the Haryana Government which was under President's rule then and the following notification dated 15 and 16 February 1968, was issued:

No. ID/3914.-Whereas the President of India is of opinion that an industrial dispute exists between the workmen and the management of

(i) Karnal Co-operative Transport Sooiety, Ltd., Karnal,

(ii) Karnal Delhi Co-operative Transport Sooiety, Ltd., Karnal, and

(iii) New Karnel Co-operative Transport Sooiety, Ltd., Karnal,

regarding the matters hereinafter appearing ;

And whereas the Presinent of India considered it desirable to refer the dispute for adjudication;

Now, therefore, in exercise of the powers conferred by Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947, the President of India hereby refers to the industrial tribunal, Haryana, Chandigarh, constituted under Section 7A of the said Act, the matters specified below, being either matters in dispute or matters relevant to or connected with the dispute as between the said management and the workmen for adjudication:Whether the workmen should be granted dearness allowance as has been given to the Punjab Roadways employees on or after 1 May 1987 ?

Copies of this notification were sent to the presiding officer, Industrial tribunal, Haryana, Chandigarh; Statistical officer, office of the Labour Commissioner, Haryana, Chandigarh; Labour officer-cum Conciliation officer, Karnal, respondents 2 to 4 and the Dlstrlot Motor Transport Workers' Union, Kurnal, through the general seoretaiy/president.

4. After this notification the Government leaned another notification dated 5 March 1968, which reads as under:

In exercise of the powers conferred by Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947, and all other powers enabling him in this behalf; the President of India is pleased, to make the following amendment in the Haryana Government Labour Department Notification No. 3915, dated 15 February 1968, published in Haryana Government Gazette Extraordinary.

Amendment

For the word 'Punjab' occurring in the issue, the word ' Haryana' may be substituted.

5. The submission of the learned Counsel for the petitioners is that the Haryana Government had no power to amend the notification to as to substitute ' Haryana ' for ' Punjab' as the petitioner never raised any dispute with the management of respondents 2 to 4, that they wanted to be paid any increase in the dearness allowance at the rates allowed to Haryana Roadways employees. In fact, Haryana Roadways did not grant any such increases in dearness allowance to their employees. Increases in dearness allowance had been granted by the Punjab Roadways to its employees and the demand of the petitioners was based on the increases made by the Punjab Roadways. There was thus no dispute between the petitioners and the management of respondents 2 to 4, to which the amended notification related and unless there was an industrial dispute between the workmen and the management, the State Government had no Jurisdiction to refer suo motu any imaginary dispute for adjudication to the industrial tribunal. The amendment had the effect of withdrawing the first notification dated 15/16 February 1968, and making a fresh notification dated 5 March 1968. According to the judgment of their lordships of the Supreme Court in State of Bihar v. D.N. Ganguli and Ors. 1958 -II L.L.J. 634, the State Government had no power to cancel of to supersede a notification under Section 10(1) of the Act. It was held by a learned single Juige of the Madras High Court in Thambi Motor Service, Salem v. Labour Court. Coimbatore and Anr. 1960-II L.L.J. 563 that the appropriate Government has got no power to amend or modify a reference once made under Section 10(1) of the Industrial Disputes Act. This Judgment was affimed by a Division Bench of that High Court in Workers of Thambi Motor Service (Mettupalayam-Nilgiris Motor Workers1 Union) v. Thambi Motor Service, Salem, and Anr. 1963-I L.L.J. 497. The same view was taken by a Division Bench of this Court (I. D. Dua, J., as his lordship then was and R.S. Nirula, J.) in Dalmia Dadri Cement, Ltd. v. State of Punjab and Ors. 1867-I L.L. J. 222. In that case original notification related to the retrenchment of 95 workmen and a corrigendum notification added 43 more workmen and the corrigendum notification was struck down for the following three reasons:

(1) This is not an independent notification under Section 10(1) of the Act.

(2) Reading the second notification it is obvious that the original notification did not need any amendment and could stand by itself. By the second notification, a dispute between two different parties is sought to be included in the existing references. Even if Section 21 of the General Clauses Act could be invoked, the impugned notification has not been issued in a like manner and subject to like sanction and condition as the original notification. The impugned notification does not obviously show that the conditions precedent for the exercise of jurisdiction under Section 10(1) have been satisfied in this case.

(3) The third reason is that it is neither expressed to be in the name of the Government nor purports to have been signed by the order of the Governor as required under Article 166.

6. In the instant case, the workmen never demanded any increase in their dearness allowance on the basis that such increase had been allowed to the employees of the Haryana Roadways. Their demand was that they should be given the increases in their deafness allowance as had been given by the Punjab Government on 11 May 1967, 15 December 1967, and 11/15 January 1968. There is no doubt that they baaed this demand on the basis of the settlement which bad been arrived at on 17 April 1957. That settlement was for ten years and lapsed on the expiry of that term so that when their notice of demand dated 13 January 1968, was issued, the settlement did not subsist between the parties. The workmen, however, raised a dispute that they should be paid increased dearness allowance at the rates which had been fixed by the Punjab Roadways for its employees. Whether they were entitled to get these rates or not, was for the tribunal to decide and not for the State Government to say that the intention behind the demand was that the workmen wanted the dearness allowance at the rates allowed to the employees of Haryana Roadways. It is nowhere so stated in the demand notice for the simple reason that Haryana Roadways had not announced any increase in the dearness allowance. Secondly, the President of India, in the notification dated 5 March 1968, did not mention that he bad formed an opinion that an industrial dispute existed between the workmen and the management of respondents 2 to 4 and the condition precedent for reference of an existing dispute to the tribunal for adjudication was lacking. For these reasons, the notification dated 5 March 1968, has to be quashed,

7. The learned Counsel for the respondents have placed strong rellance on the judgment of their lordships of the Supreme Court in Dabur (Dr. S.K. Burman) (Private), Ltd., Deoghar v. their workmen 1967-II L.L.J. 863 where the Government had referred the dispute to the labour court, Patna, instead of Ranchi. By an amendment ' Ranchi' was substituted for ' Patna' and it was contended that the State Government had no Jurisdiction to amend the notification so as to substitute Ranchi for Patna. It was held by the Supreme Court that from the facts stated by the appellant in the writ petition. it was clear that the alteration in the order of reference was a mere correction of a clerical error because by mistake ' Patna ' had been mentioned in place of ' Ranchi' in the first notification. Their lordships, in view of that finding of the High Court, held that a cierical error can always be corrected and such correction does not amount either to withdrawal of the reference from or cancellation of the reference to, the labour court, Patna, and that the High court was right in rejecting the contention of the appellant. The cardinal principle to determine, whether the amendment amounts to a correction of clerical error or introduction of fresh material, is whether the relief claimed by the aggrieved party in the original notification can be granted in the proceedings which are to take place in pursuance of the amended notification. If the same relief can be granted, the mistake may be considered as clerical which can be corrected by amendment. But if the same relief cannot be granted, then it means that the original notification has been cancelled or withdrawn and another notification has keen issued in its place which the State Government is not competent to do. In the instant case, in the proceedings which may take place on the basis of the amended notification, the workmen will never be able to get the relief in respect of the demand or Industrial dispute raised by them for which the original notification was issued, i.e., dearness allowance at the rates paid to the employees of the Punjab Roadways.

8. For the reasons given above this petition is allowed with costs and the impugned notification dated 5 March 1968 (annexure A-12 to the writ petition) is hereby quashed. Counsel's fee Rs. 100.


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