Foundation Brake Kamgar ... vs M/S Foundation Brake ...
2016 Latest Caselaw 3078 Bom

                                             1                    WP No. 4691/2016

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                             
                       BENCH AT AURANGABAD

                          WRIT PETITION NO.4691 OF 2016




                                                     
      Foundation Brake Kamgar Sanghatna
      "Savali", 8, Kalyani Nagar,




                                                    
      Behind Dadawadi Temple, Jalgaon,
      Tq. and Dist. Jalgaon
      Through its General Secretary                   =        PETITIONER




                                      
               VERSUS
                             
      M/s Foundation Brake Manufacturing
                            
      Pvt. Ltd., Bambhori, Tq.Dharangaon,
      District Jalgaon, Through its
      Deputy General Manager (HR)                     =        RESPONDENT 
                                       -----
      


      Mr.T.K.Prabhakaran, Advocate for Petitioner;
   



      Mr.Sandesh R. Patil, Advocate for Respondent.
                                       -----
                                   CORAM :  P.R.BORA, J.





                                   DATE  :         
                                                 22 nd
                                                       
                                                       June,2016.
                                                                 
                                                         
      JUDGMENT:

1) Heard. The petitioner union has filed

the present petition against order dated 26th

February, 2016 passed by Member, Industrial

Court, Jalgaon in Appeal (IESO) No.1 of 2015.

2) The aforesaid appeal was filed by the

present respondent, seeking quashment of order

dated 21.8.2015 in Application No.1 of 2015

passed by Deputy Commissioner of Labour, i.e.

Certifying Officer, under The Industrial

Employment (Standing Orders) Act, 1946 (for

short, the Act), whereby he had allowed the

application of the petitioner union and has

consequently allowed to extend age of retirement

from 58 years to 60 years in the Standing Orders.

Vide the impugned order, the Industrial Court,

which is an appellate authority, as provided

under the provisions of the Act, has set aside

the order dated 21.8.2015 passed by the Deputy

Commissioner of Labour, Nasik Division, Nasik in

Application No. 1 of 2015 and consequently, he

has rejected the application filed by the

petitioner union, whereby the union had prayed

for extension of age of retirement from 58 years

to 60 years.

3) When the present matter was taken up for

hearing, Shri T.K.Prabhakaran, learned Counsel

appearing for the petitioner union, submitted

that the matter will have to be remitted back to

the Appellate Authority for its re-consideration

in view of the fact that under Section 6(1) of

the Act, the Appellate authority does not possess

any power to set aside the order passed by the

Certifying Officer. In view of the submission so

made by Shri Prabhakaran, I heard the learned

counsel appearing for the parties on the limited

issue of jurisdiction of the Industrial Court

(Appellate Authority) in passing the orders under

Section 6(1) of the Act.

4) After hearing the arguments of the

learned Counsel for the parties, it was clarified

by this Court that the issue of jurisdiction will

be decided first by the Court and if this court

reaches to the conclusion that the Appellate

Authority has no power to set aside the order

passed by the Certifying Officer, necessary

orders will be passed or else the matter will be

heard on merits on the next date.

5) Accordingly, Shri Prabhakaran, learned

counsel for the petitioner and Shri Sandesh

Patil, learned counsel appearing for the

respondent, made their respective submissions on

the limited issue of jurisdiction, as aforesaid.

6) Shri Prabhakaran, learned Counsel,

submitted that the plain reading of Section 6 of

the Act makes it clear that the Appellate

Authority has the power either to confirm the

order of Certifying Officer or alter in the form

certified by the Certifying Officer amending the

said Standing Order by making necessary

modification thereto as he thinks necessary.

However, the Appellate Authority has no power to

cancel the Standing Orders or set aside the

Orders passed by the Certifying Officer. In

order to substantiate his arguments, the learned

counsel relied upon two judgments; one delivered

by the Kerala High Court in the case of Kerala

Agro Machinery Vs. Industrial Tribunal and Ors. -

1988(II)LLJ 18 (KL HC) and the other by Himachal

Pradesh high Court in the case of Gabriel

Employees Union Vs. Gabriel India Ltd. And Ors. -

2008(I) LLJ 618 (HP HC).

7) Shri Sandesh Patil, learned counsel

appearing for the respondent, opposed the

submissions advanced on behalf of the petitioner

union. Placing reliance on the judgment of the

Allahabad High Court in the case of Electric

workers Union Vs. The U.P. Electric Supply Co.

reported in AIR (36) Allahabad 504, the learned

Counsel submitted that the Appellate court has

power to set aside such amendment. Taking

support of the observations made by the Hon'ble

Apex court in the case of James Joseph Vs. State

of Kerla - (2010) 9 SCC 642, the learned Counsel

submitted that statutory provisions for appeals

against the original orders or decrees will not

have any limitations and as such the argument

advanced on behalf of the petitioner union that

the appellate authority under the provisions of

the said Act does not possess any power to set

aside the order passed by the Certifying Officer,

cannot be accepted.

8) I Have carefully considered the

submissions made by the leaned Counsel appearing

for the respective parties. Section 6(1) of the

Act reads thus, -

"6. Appeals -

(1) Any employer, workman, trade

union or other prescribed representatives of the workmen aggrieved by the order of the

Certifying Officer under sub-section (2) of Section 5 may, within thirty

days from the date on which copies are sent under sub-section (3) of

that section, appeal to the appellate authority, and the appellate authority, whose decision, shall be final, shall by order in

writing confirm the amendments either in the form certified by the Certifying Officer or after further modifying the same as the appellate authority thinks necessary."

9) From the plain reading of the

aforementioned Section, it is clear that the

Appellate Authority has power either to confirm

the order of the Certifying Officer or to alter

in the form certified by the Certifying Officer

amending the said Standing Order by making

necessary modification thereto as he thinks

necessary.

10) The similar issue had arisen for

consideration before the Kerala High Court in the

matter of Kerala Agro Machinery (cited supra)

'whether the Industrial Tribunal has got

jurisdiction to set aside the order passed by the

Certifying Officer under The Industrial

Employment (Standing Orders) Act, 1946' and while

deciding the said issue, the Kerala High court

has held as under, -

"The powers of the Appellate Authority are specified in sub- section (1) of Section 6 of the Act. The Appellate Authority has the power to confirm the standing orders

certified by the Certifying Officer,

or to amend or modify and add to the standing orders as it thinks

necessary to make the standing orders certifiable under the Act. This power of the Appellate

Authority includes the power to adjudicate the fairness or reasonableness of the standing

orders also. Under the first part

of sub-section (1) of S.6, right is given to any person aggrieved by the

order of the Certifying Officer to challenge the same by preferring an appeal. The power of the Appellate

Authority is to confirm the standing orders either in the form certified

by the officer or by amending the same or by making such modifications

or additions as it thinks necessary to render the standing orders certifiable under the Act. The Appellate Authority can exercise

only those powers conferred on it under S.6(1). The Appellate Authority has no power to cancel the standing orders or set aside the order passed by the Certifying Officer. Therefore, the Appellate

Authority has no power to set aside

the orders of the Certifying Officer and remand the mater for fresh

disposal. The power to remand is not a procedural one."

11) Similar view was taken by the Himachal

Pradesh High court while delivering the judgment

in the case of Gabriel Employees Union (cited

supra).

12) The judgment in the case of Electric

Workers Union (cited supra) delivered by

Allahabad High court, relied upon by Shri Patil,

learned counsel appearing for the respondent, may

not apply to the facts of the present case since

Section 6 of the Act has suffered the amendment

in the year 1958, and the relevant portion in

Section 6(1), i.e. "confirm the amendments either

in the form certified by the Certifying Officer

or after further modifying the same as the

appellate authority thinks necessary" was

substituted vide the said amendment.

13) In so far as the powers of the Appellate

Authority are concerned, in the judgment of the

Hon'ble Apex court itself, which has been relied

upon by Shri Patil, it has been clarified that

the width, extent and limitation of / on

appellate jurisdiction depends on the language

employed by the statute conferring the appellate

jurisdiction. In the instant case, the statute

itself does not confer the power to the appellate

authority to set aside the order passed by the

Certifying Officer. Section 6 of the Act

specifies the powers to be exercised by the

appellate authority. The appellate authority can

exercise only those powers conferred on it under

Section 6(1) of the Act. As mentioned earlier,

under Section 6(1) of the Act, the appellate

authority has no power to set aside the order

passed by the Certifying Officer.

14) In the instant case, the appellate

authority has set aside the order dated 21.8.2015

passed by the Certifying Officer. The power that

has been exercised by the appellate authority is

one beyond the scope of Section 6(1) of the Act.

The order passed by the appellate authority is

thus without jurisdiction. Such order cannot be

sustained and has to be set aside and the matter

has to be sent back to the appellate authority to

reconsider it afresh in accordance with the

provisions of law.

15) In the result, the following order, -

ORDER

i) Order dated 26.2.2016 passed by Member,

Industrial Court, Jalgaon (the appellate

authority) in Appeal (IESO) No.1 of 2015, is

quashed and set aside;

ii) The matter is remitted to the appellate

authority to reconsider it afresh in accordance

with law by giving opportunities to both the

parties.

iii) The writ petition is allowed in the

aforesaid terms;

      iv)              No order as to costs.

                                            




                                                   
                                        Sd/-
                                                 (P.R.BORA,J.)
                                         
                                         




                                       
      bdv/

      fldr 15.6.2016