ORDER
H.K. Rathod, J.
1. Learned advocate Mr. Raval has appeared for the petitioner in this group of petitions and Ms. Anu Varma has appeared for M/s. Patel Advocates for Respondent no. 1. Learned advocate Mr. N. R. Shahani has appeared for Respondent no. 2 and Mr. Nagesh Sood has appeared for Respondent no. 3 in this group of petitions.
2. Nothing could be more unfortunate for the poor workman. Justice remains illusive, far cry for him in spite of so much laws. Slow pace of bureaucracy on one hand and the page for disposal by the Labour Court, on the other, led to injustice.
3. In this group of petitions, the order passed by the respondent Assistant Commissioner of Labour and the Conciliation Officer, Bharuch dated 27th September, 1999 has been challenged by the petitioner wherein the Assistant Commissioner of Labour has passed order under Section 10(1)(d) of the I.D. Act joining the petitioner as party Respondent no. 2 in the respective references 1992 pending before the Labour Court. Learned Advocate Mr. Raval has contended that the Respondent no. 1 has no power and/or authority to amend the reference which is already referred for adjudication and pending before the Labour Court, Bharuch. He has also submitted that the Respondent no. 2 union has given an application dated 16th September, 1998 (Annexure “A” page 15 of SCA No. 9002 of 1999) to the Labour Court, Bharuch with a request to join the petitioner in the original reference. Against the said application, the petitioner has filed reply which is on record at page 16 to 18 and thereafter the Respondent no. 2 has given application on 29th September, 1999 to the Labour Court that now there is no need to decide the application dated 16th September, 1998 submitted by the Respondent no. 2 for joining the petitioner in the present pending reference because the Respondent no. 1 has already referred the reference for adjudication against the petitioner by order dated 27th September, 1999. Learned Advocate Mr. Raval has, therefore, submitted that the petitioner has now no opportunity to submit before the Labour Court under section 18 sub clause (3) of the I.D. Act as to whether the petitioner is a necessary party or not which was required to be examined by the Labour Court in response to the application submitted by the Respondent no. 2 on 16th September, 1998. As per section 18(3)(b) of the I.D. Act, a settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under section 3A of section 10A or an award of a Labour Court, tribunal or national tribunal which has become enforceable shall be binding on all other parties summoned to appear in the proceedings as parties to the dispute, unless the board, arbitrator, Labour Court, tribunal or national tribunal as the case may be, records the opinion that they were so summoned without proper cause. Learned advocate Mr. Raval has submitted that the Labour Court is just to decide the question after submitting the reply to such an application filed by Respondent no. 2 and prior thereto, the Respondent no. 1 has misused his powers and referred the said reference on 27th September, 1999 and thus, the Respondent no. 1 has arbitrarily taken the decision. He has submitted that the Respondent no. 1 has not given any opportunity before making reference against the petitioner and, therefore, it is against the principles of natural justice. He has submitted that such order of reference is having prejudicial effect on the application filed by Respondent no. 2 dated 16.9.1998 and, therefore, the petitioner has been deprived of effective opportunity as to whether they were rightly summoned or not.
4. I have considered the submissions made by Mr. Raval, the learned advocate for the petitioners herein. I have considered the decision of the Rajasthan High Court in case of Rashtradoot Dainik Press v. Rajasthan Samachar Patra Karmachari Sangh reported in 1977 LIC 1061. The Rajasthan High Court has observed in case of Rashtradoot Dainik Press (supra) that since the appropriate Government is entitled under S. 10(1) of the Act to make an independent reference or even a supplemental reference in respect of a matter pending adjudication before the tribunal, it can be a subsequent notification amend the earlier reference which is merely in the nature of addition to or application of the issues already referred to the Industrial Tribunal. It has also been observed in the said decision that this is so because amending a reference relating to a pending dispute by way of addition or amplification thereof is not inconsistent with any of the provisions of the Act and such a course would not defeat the purposes of the Act. In the said decision, the case of River Steam Navigation Co. Ltd. v. Redhanath Hazarika re-ported in AIR 1960 Assam page 39 has also been considered by the High Court of Rajasthan. In the said decision of the River Steam Navigation Co. Ltd. (supra), it has been held by the High Court of Assam as under :
“If it was open to the State Government to make a fresh reference under S. 10 of the Act and if the same Tribunal could deal with the matter arising in the subsequent reference, then, it could not be understood as to why the amendment of the earlier reference by adding another dispute to the same could not be permitted.”
After the aforesaid observations, it was further held as under :
“The power to make the amendment of nature with which we are concerned in the present case, therefore flows from S. 10 itself; because if in a given case by some mistake or oversight a person or a party, whose presence was necessary for a proper adjudication of the Industrial Dispute is not made a party, then, it would be a clear duty of the Government making reference under S. 10 to make such a person a party to the dispute, even by a subsequent notification. Otherwise, the reference itself would be rendered infractuous and the duty or the obligation which the statute imposes upon the Government would not be carried out … It was open to the Government to make under S. 10 an independent reference concerning any matter not covered by the previous reference, the fact that it took the form of an amendment to the existing reference and not an additional reference was a mere technicality which did not merit any consideration. I should think that Sub-s. (5) of S. 10 or S. (5) of S. 20 which though in terms may not be applicable to an amendment of this character, do in addition support the inference that such amendment would be permissible in law to give effect to the provisions of the statute.”
In the said decision, well Known decision of D. N. Ganguly reported in AIR 1958 page 1018 has been considered by the High Court of Rajasthan and, therefore, taking into consideration the decision of the Rajasthan High Court, the Government is having power to make under section 10 by amending existing reference pending before the Labour Court.
5. Recently, the Apex Court has, in case of Madan Pal Singh v. State of UP and Ors., reported in 2000 LIC page 392, considered the questions relating to the amendment in the existing reference already referred for adjudication and pending before the Labour Court. The Apex Court has observed that when it came to its notice that the name of the workman was not correctly mentioned in the reference though there was doubt about his identity, the Labour Court itself could have sought correction of the reference from the State Government. When the appellant approached the State Government for correcting the reference, the Labour Court certainly could have waited till the State Government amended the reference or otherwise if the Labour Court did not possess the jurisdiction in as much as there was no Industrial Dispute because there was no workman in respect of whom the Industrial Dispute was sought to be raised, the reference itself was non est and the award is nullity. When the reference had been amended, the jurisdiction stood conferred on the Labour Court and it could have held the proceedings from the stage taking the reference to be valid from the date of its amendment. Whatever the situation the Court cannot permit injustice to perpetrate. Equitable considerations can certainly be taken into account in such cases.
6. The next contention of Mr. Raval is that before making reference by way of amendment by order dated 27th September, 1999, Respondent no. 1 has not given any opportunity to the petitioner before passing the order dated 27th September, 1999. Such contention has been negatived by the apex court as per the decision in case of Sultan Singh v. State of Haryana & Anr. reported in 1996 AIR SCW 485. The apex Court has held in the said decision that before passing the order of reference under S. 10 of the Act, issuance of notice to the employer or to hear him or to consider his objection by the State Government is not necessary before making reference on second application.
7. Therefore, in view of the decision of the apex Court in case of Sultan Sinh (supra), there is no need to give opportunity of hearing to the petitioner before passing the order dated 27th September, 1999.
8. The contention of Mr. Raval to the effect that when the application which was given by the Respondent no. 2 union dated 16th September, 1998 to the Labour Court Bharuch with a request to join the petitioner in the original reference and when such an application was pending and no decision has been taken so far, meanwhile, the Respondent no. 1 has referred the matter against the petitioner and, therefore, the opportunity which was available to the petitioner to point out before the Labour Court that the petitioner is not a necessary party for which summons is required to be issued to the petitioner is not available now to the petitioner, in view of the order passed by the first Respondent dated 27th September, 1999. According to my view, Mr. Raval is not right in saying so because the provisions of S. 18(3)(b) of the I.D. Act relate to the power of the Labour Court in case if the Labour Court is satisfied that there is necessity to summon any party to appear in the present proceedings, then the Labour Court can certainly issue summons to the third party. The power of the Respondent no. 1 is altogether different under S. 10(1) of the I.D. Act, 1947. But, in either way, the petitioner can very well agitate the same contentions before the Labour Court even after the reference order dated 27th September, 1999 has been passed to join the petitioner as a party in the said proceedings. Therefore, still, opportunity is available to the petitioner herein to point out to the Labour Court that by amendment of the reference, though the petitioner is joined as a party to the proceedings by Respondent no. 1, no relief can be granted by the Labour Court against the petitioner herein. The petitioner can avail of such an opportunity by filing the written statement and by raising such a contention in the written statement before the Labour Court and it is obvious that the same shall be dealt with and decided by the Labour Court in accordance with law after hearing the parties to the proceedings. Thus, the petitioner is having an ample opportunity on merit to point out and prove before the Labour Court its contentions and, therefore, passing of an order by the first Respondent during the pendency of the application before the Labour Court will not have any adverse effect and will not curtail right of the petitioner which is otherwise available to the petitioner. Therefore, such a contention raised by Mr. Raval cannot be entertained and accepted.
9. Therefore, The order passed by Respondent no. 1 dated 27th September, 1999 is within the jurisdiction and power of the Respondent no. 1 and the petitioner is not having any prejudicial effect because the petitioner can very well submit his case by submitting written statement for which notice has been issued by the Labour Court in pursuance to the reference order dated 27th September, 1999 at page 22 to file written statement against the statement of claim filed by the second Respondent and, therefore, the petitioner is having an opportunity to submit his case before the Labour Court and, therefore, there is no substance in this petition and Respondent no. 1 has not committed any error while passing the impugned order. No other submissions were made by Mr. Raval. He has not been able to point out any infirmity and/or jurisdictional error in the order impugned herein. Therefore, the petitions are dismissed. Notice in each of the petitions shall stand discharged. There shall be no order as to costs.