STATE OF RAJASTHAN Vs. JUDGE LABOUR COURT

JUDGEMENT

(1.) THE common question which arises for consideration in both the Special Appeals is whether the learned Single Judge was right in dismissing the writ petition filed by the Executive Engineer, P. H. E. D. , Phalodi, against the award of the Labour Court on a reference made under Section 10 of the Industrial Disputes Act on the ground that the petition was not maintainable in absence of State of Rajasthan being the petitioner.

(2.) IN D. B. Civil Special Appeal No. 1473/1999, the learned Single Judge held that a writ of certiorari cannot be issued against the agents of the State, if the State is not there on record as party respondent. The learned Judge further held that the agent of the State cannot challenge the award in his individual capacity. The award has to be challenged by the State through Executive Engineer or by the State alongwith the Executive Engineer under Article 227 of the Constitution of INdia. IN the said case, the second respondent workman raised an industrial dispute alleging therein that while working as Helper with the Executive Engineer, P. W. D. , Pali, his services were terminated with effect from 9. 7. 90 in violation of provisions of the INdustrial Disputes Act, 1947, hereinafter referred-to as `the Act'. The Labour Court held the order of termination invalid being in violation of Section 25-F and H of the Act. The Court awarded to the workman a lump sum amount of Rs. 41,000/ -. The said award was challenged by the Executive Engineer, P. W. D. , Pali by way of the writ petition under Articles 226 and 227 of the Constitution of INdia.

(3.) BOMBAY High Court in General Superintendence Company of India Ltd. vs. General Secretary, Goa Dock Labour Union and others (1), has held that when the Court is not examining the competence of the appropriate Government directly or the subjective satisfaction of the Government before it exercised the powers conferred upon it under Section 10 of the I. D. Act but the correctness of a finding given by the tribunal on the question of jurisdictional facts, it is not necessary to make the concerned Government a party to a petition under Article 226 or Art. 227 of the Constitution of India. However, it cannot be lost sight that any order passed by the High Court in exercise of powers under Art. 226 or 227 of the Constitution, will ultimately fasten a liability on the State Govt. and not on any servant of the State. The Executive Engineer or the Assistant Engineer in the Department of P. H. E. D. is a servant of the State Government. The dispute cannot be effectively adjudicated or no effective relief can be granted in absence of appropriate Government being a party. The officers only represent the State. They don't owe any personal liability. In the instant case, in case of failure of the writ petition, a lump sum compensation is to be paid not from the pocket of the Executive Engineer or the Assistant Engineer but from the funds of the State. Thus, it would be inappropriate to take a narrow view by reading the definition of employer as given in the Industrial Disputes Act. Thus, we are of the considered; view that the State Govt. is a necessary party in a writ petition challenging the award passed by the Labour Court, where the workman concerned is the employee of the State of Rajasthan. Thus, we are in agreement with the view taken by the learned Single Judge to that extent. With respect, we are unable to subscribe to the view taken by the BOMBAY High Court.