JUDGMENT
Amarjeet Chaudhary, J.
1. The petitioner is a Company registered under the Companies Act and has approached this Court under Article 226 of the Constitution of India seeking a writ of certiorari to quash the Award. Annexure P/9 passed by the Labour Court on 17-5-1988 whereby Shri S.R. Sharma. respondent No. 2 was reinstated in service with full back wages and continuity of service. The petitioner also seeks a relief for quashing the interim order by which his evidence was closed by an order passed by respondent No. 1 on 15-2-1988 (Annexure P/8).
2. It is stated in the writ petition that respondent No. 2 Shri S.R Sharma was working in managerial capacity with the petitioner Company. He was tempering with the records of the Company and when he was warned about it, he left the service of his own volition. When the matter was taken by respondent No. 2 before Conciliation Officer, stand of the petitioner Company was that the service of respondent No. 2 were never terminated and that respondent No. 2 was at liberty to join service with the petitioner Company. Thus, the entire blame was sought to be put on the workman. The workman, however, sought a reference under Section 10 of the Industrial Disputes Act, 1947 (for short Act) but was not successful as the appropriate government formed a view that no dispute exists as the petitioner Company was willing to take back respondent No. 2 in service. The demand of the workman was disposed of by observing as under :–
“I have been directed to bring to your notice regarding the above mentioned letter of demand dated 13-8-1982 and to clarify that this dispute is not fit for being sent for adjudication because the management is willing to take you back in service.”
3. The above written letter on 2-11-1982 was addressed to respondent No. 2 as also to the petitioner management. A copy of this letter has been appended as Annexure, P/2. However, later on the 11-8-1983 the appropriate government formed a view to refer the matter for adjucation to respondent No. 1 vide Annexure, P/3 and the question to be determined was :–
“Whether the termination of service of Shri S.R. Sharma workman is justified and in order ? If not, to what relief/exact amount of compensation is he entitled ?”
4. The matter was put to trial. The claim petition was filed by the workman. Written statement to the same was also filed by the management and one of the objections of the petitioner Company was that the Labour Court was not competent to entertain the lis because the matter had already been looked into by the appropriate government and the demand of the workman was found to be without merit’. It would be relevant to note the preliminery objection as mentioned in sub para (d) of the written statement (Annexure P/5) which reads thus : —
“That the Government had already rejected the demand of the claimant and the present reference had been without affording any opportunity and without any fresh ground and as such the same is lable to be dismissed.”
5. It was also the plea of the management that services of respondent No. 2 were never terminated and that respondent is quality of having himself abandoned the job by absenting from duties. It was also pleaded that respondent No. 2 was gainfully employed.
6. When the matter was put to trial, five issues were framed but the issue regarding maintainability of the petition on the basis of preliminary objection referred to in sub para (d) was not claimed. It appears that the petitioner Company was depending on issue No. 4 and was devoting its time to prove that respondent No. 2 was gainfully employed. The seriousness of this ground becomes apparent that when order, Annexure P/8 was passed by the Labour Court by which the evidence of the petitioner Company was closed, they moved this Court by way of writ petition but were unable to secure any relief as this Court formed the view that appropriate opportunity to challenge the order would be when a final award is passed by respondent No. 1. The petitioner has placed on record the copy of the order passed by this, Court in Civil Writ Petition No. 4476 of 1988 as Annexure P/10.
7. On the basis of the facts given above, the petitioner Company has challenged the proceedings which are based on denial of opportunity at the stage of making second reference and again with a view to prove issue No. 4. It may be mentioned here that the petitioner Company has given five instances in para 19 of the petition. These instances are with regard to the employers where respondent No. 2 was gainfully employed and to support the correctness of this assertion the petitioner Company has also placed reliance on Annexure P/12 which is an order passed by the authorities under the Punjab General Sales Tax Act, 1948 where respondent No. 2 has been shown to have appeared on behalf of the assessee as an accountant.
8. The contention that the petitioner Company was entitled to an opportunity before the second reference could be made vide Annexure, P/3 has been argued at length. For this reliance has been placed on the Division Bench judgment of this Court in Escorts Limited, Faridabad v. Industrial Tribunal, Haryana, 1983 Lab. I. C. 223. In this case S.S. Sandhawalia, C.J. speaking for the bench examined in depth as to the applicability of the rule audi alteram partem to the exercise of power under Section 10(1) of the Act when this power is exercised for the second time, after the exercise of the same has been declined earlier. On the basis of the decision given by the Supreme Court in the case of Avon Service Production Agencies Private Limited v. Industrial Tribunal, Haryana, A. I. R. 1979 S.C. 170, the Division Bench conceded to the appropriate Government power to make reference even if there was earlier rejection under Section 10 but placed a rider on this power by holding that when this power is exercised for the second time, then it is necessary to hear the parties. The change in the concept of natural justice as brought about decisions given by the Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner, A. I. R. 1978 S. C. 851, and Shrimati Maneka Gandhi v. Union of India, A.I.R. 1978 S C. 597. was duly noticed and it was observed that the judicial precedents have titled heavily in favour of the view that in making a reference afresh for an industrial dispute after the same having been rejected earlier would attract the principles of natural justice in favour of the employer. This is the consistent view taken by the Madras High Court and the full Bench of that Court in the case of G. Muthukrishnan v. Administrative, Manager New Horizon Sugar Mills Pvt. Ltd., 1980 Lab. I. C. 475. and the view of the Karnataka High Court in the case of Indian Telephones Industries Ltd. v. State of Karnataka, 1978 Lab I.C. 1779 was taken notice of and ultimately it was held that after reference is made by the appropriate Government second time, then it is necessary to give opportunity to the Management to state its case.
9. The above contention of the petitioner’s Counsel is sought to be countered by the counsel for respondent No. 2 on the ground that no issue was claimed by the petitioner Company and as such this plea taken for the first time in the writ petition cannot be adjudicated upon. For this, reliance has been placed on the judgment rendered by the Supreme Court in Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana wherein it was held that the power to make reference is discretionary and is administrative in character and the adequacy or sufficiency of material for forming Government’s opinion is not justiciable or is not open to judicial review.
10. This argument is sought to be countered by the petitioner’s Counsel by contending that once the right of hearing is recognised and then denied, then the order passed by the Government is non est. It is contended that the order passed without giving hearing would be nullity and for this reliance is being placed on Full Bench decision of this Court reported as State of Haryana v. Vinod Kumar, (1986-1) 89 P.L.R. 222 (F.B.) The above case was with regard to the interpretation of the provisions dealing with the determination of surplus area under the land law and it was held that where order is passed without giving opportunity the order would be null and void and can be chalenged in a Civil Court.
11. The question this arises whether failure on the part of a litigant to raise a point which goes to the very jurisdiction to entertain a dispute debars him to urge this point for the first time in writ jurisdiction. This question was examined by the Supreme Court in the case of Pioneer Traders v. Chief Controller of Imports and Exports A.I.R. 1963 S. C. 734. The Supreme Court did not nor suit the litigant only on the ground that there was failure to raise before an authority an objection which if raised would have made it apparent that it had no jurisdiction to deal with the matter. Dealing with this aspect of the matter in para 31 of the judgment, it was observed that where an authority whether judicial or quasi-judicial has in law no jurisdiction to make an order the commission by the party to raise before the authority relevant facts for deciding their question cannot clothe it with jurisdiction of the Court was challenged but the labour Court did not frame any issue. In view of the law laid down by this Court in the case of M/s. Escorts Limited, Faridabad that opportunity was required to be given by the appropriate government before making reference for the second time, it appears that omission to claim an issue should not go against the petitioner and it is a matter which should be gone into now. The petitioner had impleaded the State Government as a party. Even though specific averment was made in para 23 of the petition that no opportunity was granted no reply was given by the State Government. I am not holding that the State Government was under an obligation to file a written statement but this factor would show that the averment made by the petitioner has gone unrebutted. In this view of the matter it would be appropriate to remand the case back to the Labour Court with a view to ascertain as to whether any opportunity was given to the petitioner Company before making second reference.
12. Incidentally, as the matter is being remanded and as the petitioner has been agitating and making grievance that they were not afforded an opportunity to prove issue No. 4 and bad come to this Court earlier as well it may now be afforded opportunity in this regard. It may be seen that the petitioner Company had mentioned it para 19 of petition that witnesses were available and were not examined. It has also been contended that one of the witnesses from the Sales Tax Department was present but he was not examined as the records which he brought was in a sealed cover. In this regard, it may be seen that when the matter was pending in this Court, a report was sought from the Labour Inspector and in this report which finds mention in the order passed by this Court in Civil Misc. No. 1624 of 1989 and C.M. No. 3476 of 1990 on 16-7-1990, it is stated that respondent No. 2 was working part time with M/s. Aditya Enterprises. In this situation, the grievance of the petitioner Company that had it been given proper opportunity, it would have successfully proved issue No. 4 as well founded. One of the reasons given for not examining the witness from the Sales Tax Department is that the records of Sales Tax authorities were considered to be sacrosanct. This view may not be correct because it has been held by this Court in the case of Seeta Ram v. Pirthi Chand, (1987-2)92 P.L.R. 388. that the records of the Sales Tax authorities can be seen by the Court. This was a case arising under the East Punjab Urban Rent Restriction Act, 1949 but the ratio of this decision would be attracted to the case also. Apart from this, in the case of Balwant Singh Bhagwan Singh v. Rai Singh Baldev Krishan, A.I.R. 1989 Punjab 197, holding that proper opportunity should be given to a litigant to establish his case and the practice of issuing Dasti process was deprecated. I am satisfied that in this case the petitioner Company is entitled to another opportunity to substantiate its claim regarding Issue No. 4.
13. In pursuance of an order passed by this Court, about Rs. 22,000/- was given to the workman as wages claimed by him after the passing of the award and the period during which the writ petition was pending. However, in order to compensate respondent No. 2 it would be appropriate to impose heavy costs which are assessed at Rs. 2,000/-. However, this amount would be adjusted in the amount already paid to the workman under the orders of this Court and ultimately the payment of this amount would depend upon the find order which the Labour Court may pass after framing fresh issue on the question as to whether appropriate opportunity to the petitioner Company to lead evidence on issue No. 4
14. In view of the foregoing discussion, award passed by the Labour Court Annexure P-9, is quashed. The case is remanded back to the Labour Court, Jalandhar Parties shall appear before it on 15-4-1991 to receive further instructions in the matter. It is directed that the Labour Court will conclude the proceedings within six months. It is further directed that all the witnesses are to be served by the petitioner-management personally for which Dasti summons will be issue by the Labour Court. Respondent No. 2 shall be entitled to Rs. 2,000/- as costs.