T G K CHARLU Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition under section 103 of the Cons ­titution of Jammu and Kashmir for the issue of an approp ­riate writ, direction or order quashing and in the alternative declaring as ineffective, an award passed by the Jammu and Kashmir Industrial Tribunal directing the reinstatement of respondents 4 to 87 and some others, retired employees of the Kashmir Silk Factory, Srinagar and payment to them of their back wages from the date of their retirement.

(2.) THE Jammu and Kashmir Industries Ltd., a com ­pany incorporated under the Companies Act, run amongst others an industrial unit known as the Kashmir Silk Factory Srinagar. In pursuance of section 3 of the Jammu and Kashmir Industrial Employment (Standing orders) Act, 1960 the company submitted draft standing orders of adop ­tion in the industrial units under its control to the Certify ­ing Officer who authenticated the same with certain modi ­fication on 31 -8 -1968 as required under section 5 of the said Act. These standing orders are annexure A to the peti ­tion. Aggrieved by the modifications made by the Certi ­fying Officer in standing orders ll(vii), 16fb) and 17(a) the company went in appeal to the appellate authority (District Judge, Srinagar) who. by his order dated 17 -9 -69, maintained the modifications in Standing Orders No. 16(b) and 17(a) and varied that in Standing Order No. ll(vii) in terms indicated in his order. Subsequently the company, while acting under Standing Order 19, retired respondents 4 to 87 and some other workers of the Kashmir Silk Factory, Srinagar on their attaining the age of 55 years. Some of the workers, it is alleged by the petitioner, accepted the order of retirement and received the amount of gratuity admissible under the Standing orders but not so respondents 4 to 87 who disputed the validity of the order and moved the Government through the Secretary of their Union, respondent No. 3 herein, to refer the dispute for adjudication to the Industrial Tribunal. Respondents 4 to 87 deny the correctness of this statement and say that the number of retired employees was 146, all of whom moved the Government through the Secretary of their Union. Admittedly, however, the Government referred the dispute for adjudication to the Industrial Tribunal, respondent No. 2 herein. That was so by Notification SRO 46 dated 4 -2 -1971, copy whereof forms annexure A to the reply affidavit filed by the State respondent No. 1 herein. The Notification has been inadvertently described as SRO 512 dated 12 -9 -1969 in the award made by the Tribunal and so also in the petition. The material questions referred to the Tribunal were these: - (a) The legality or otherwise of the action of the management in retiring 113 workers on a attaining the age of 55 years. (b) Whether the gratuity admissible under the standing orders of the said management at the time of re ­tirement is adequate?

(3.) BY its award dated 3 -2 -1972 the Industrial Tribunal found that the District Judge had omitted to send a copy of his order dated 17 -9 -1969 and so also that of Standing order 11 (Vii) modified thereunder to the Trade Union or other prescribed representatives of workmen as required by section 6(2) of the J&K Industrial Employment (Stand ­ing Orders) Act, 1960, and held that all the Standing orders were, therefore, inoperative by virtue of section 7 of the said Act rendering it incompetent for the Company to take any action in terms thereof including that of the retirement based on standing order 19. In that view the Tribunal did not consider it necessary to go into the ques ­tion regarding adequacy or otherwise of the gratuity admissible under the standing orders to the workmen on their retirement and directed that the retired employees be re -instated and paid their back wages. The Tribunal submitted its award, as aforesaid, to the Government under Section 15 of the Industrial Disputes Act, 2006. The award was published under orders of the Deputy Secretary, Labour Department, in the Government Gazette dated 16 -3 -1972 which appeared as a separate compilation of the Govern ­ment Gazette of 20th April, 1972. The Company through its Managing Director Mr. Charlu has filed this writ peti ­tion and challenged the validity of the award. Before us the learned counsel for the petitioner urged the following points: 1) That the award has no force in the eye of law because it was not published within the time allowed by section 17 of the Industrial Disputes Act and also because the publication was directed by an incom ­petent person; 2) That the Tribunal has committed an error apparent on the face of the record in its holding that all the Standing orders are in -operative because of the omission of the appellate authority to com ­municate to the Trade Union or other prescribed representatives of the workmen its orders passed on an appeal challenging some of these standing orders alone.