IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.03.2010
CORAM:
THE HON'BLE MRS.JUSTICE R.BANUMATHI
AND
THE HON'BLE MR.JUSTICE M.VENUGOPAL
W.A.NO.1379 of 2000
The Management of Pankaja
Mills Limited, Coimbatore 641 045. .... Appellant
Vs.
1.K.Nithyanandam
2.T.Subramaniam
3.S.Gunasekaran
4.A.Sudnaram
5.A.Nataraj
6.S.R.Thangavel
7.R.Thangavelu
8.K.Arumugam
9.P.Balasubramaniam
10.R.Subramani
C/o.The President
Coimbatore Bharathiyar
Thozhilalar Sangam
46, Rama Devar Veedhi
Gandhi Nagar Extn.,
Coimbatore 641 016
11.The Government of Tamil Nadu
rep.by the Commissioner and
Secretary to Government
Fort St.George, Madras 9. .... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the order of this Court dated 4.8.2000 passed by the single Judge in W.P.No.18597 of 1993.
For Appellant : Mr.P.John for
Mr.T.S.Gopalan
For Respondents : Mr.K.M.Ramesh for R.1 to R.10
Mr.A.Arumugham,Spl.G.P.(Writs)
for R.11
JUDGMENT
R.BANUMATHI,J.
This Writ Appeal arises out of order in W.P.No.18597 of 1993 quashing G.O.Ms.No.1746 dated 11.8.1987. Whether learned single Judge was right in directing the Government to refer the dispute to the concerned Labour Court is the short point falling for consideration in this appeal.
2. The brief facts are that the Appellant is a unit of National Textile Corporation Limited, which is a subsidiary of National Textile Corporation Limited, New Delhi. According to Workmen, they have joined the services of the Appellant Mills in 1984 on daily wages. The workmen 8 workers out of 10 workmen were working in the Spinning Department and two others were working in Cone Winding Department. Grievance of workmen is that there was no absorption and regularisation in service even after 3 years. The workmen have joined Coimbatore Bharathiyar Thozhilalar Sangam and requested Appellant Management to recognise them into permanent service and to confer status of permeant workmen so as to have all the benefits available as other workers in the same factory. The further grievance of workmen is that the Management became inimical and hostile against them and with a view to victimise them removed their names from the rolls of the mills in November 1986 without any reason and they were not engaged after November 1986. The workmen had raised an Industrial Dispute under Section 2-A of the Industrial Disputes Act. By order in G.O.Ms.No.1746 dated 11.8.1987, the Government declined to refer the dispute for adjudication on the ground that the workmen had not worked for 240 days in a period of 12 months and that they were not entitled to permanent status.
3. Challenging G.O.Ms.No.1746 dated 11.8.1987 and seeking for writ of mandamus to direct the Government to refer the dispute to the Labour Court for adjudication, workmen have filed Writ Petition No.18597 of 1993. Learned single Judge quashed the said Government Order holding that the Government Order passed is not valid in law. Observing that opportunity is to be given to the workmen to adjudicate the Industrial Dispute, learned single Judge granted mandamus directing the Government to refer the dispute to the Labour Court. The order of learned single Judge is challenged in this writ Appeal.
4. We have heard Mr.P.John, learned counsel appearing for Appellant Management and Mr.K.M.Ramesh, learned appearing on behalf of Respondents/workmen and also Special Government Pleader appearing for Respondent No.11.
5. The learned counsel for Appellant submitted that the impugned order was passed by the Government in 1987 and Writ Petition was filed in 1990 and numbered in 1993 and the Management was served in 1995 and in view of efflux of time the Court should not have issued direction for reference. By placing reliance upon a decision of the Supreme Court in 2000(2) SCC 455 (NEDUNGADI BANK LTD. VS. K.P.MADHAVANKUTTY AND OTHERS), the learned counsel for Appellant submitted that the delay is one of the factor, which the Court ought to have kept in view and the learned single Judge ought to have declined to make a reference. It was further argued that in view of passage of time, if any reference is made to Labour Court and the matter is adjudicated, the Appellant Management would be subject to hardship since the Appellant Management is not having any records relating to the employment of the workmen.
6. Placing reliance upon a decision of the Supreme Court in 1985(2)LLJ 187 (RAM AVTAR SHARMA AND ANOTHER VS. STATE OF HARYANA AND ANOTHER), the learned counsel for workmen submitted that when the reasons given by the Government were extraneous, the Court can certainly interfere and issue appropriate direction to the Government to refer the dispute for adjudication. It was further argued that there is no period of limitation prescribed in the Act for making a reference under Section 10(1) of the Industrial Disputes Act and the words “at anytime” used in Section 10(1) do not admit of any limitation in making an order of reference. It was further argued that reference cannot be denied merely on the ground of delay and that mere delay does not cease the dispute and therefore order of learned single Judge does not warrant interference.
7. Making an order of reference under Section 10(1) is undoubtedly an administrative function of the appropriate Government based upon its own opinion with respect to the existence or apprehension of Industrial Dispute and its subjective satisfaction as to whether it would be expedient to make a reference or not. Thus, the power to make order of reference arises only when necessary opinion is formed by the appropriate Government with respect to existence or apprehension of Industrial Dispute. Considering the nature of power exercised by “appropriate Government”, in 1985 (II) L.L.J. 187 (RAM AVTAR SHARMA AND ANOTHER VS. STATE OF HARYANA AND ANOTHER) the Supreme Court has held that it is well settled by a series of decisions that while exercising power of making a reference under Section 10(1) of the Industrial Disputes Act, the appropriate Government performs an administrative act and not a judicial or quasi-judicial Act.
8. Before forming an opinion, the “appropriate Government” must have applied its mind to the questions whether there is an Industrial Dispute existing or apprehended or whether it would be expedient to refer the dispute on the basis of material before it. If the reference is made or declined to make on any extraneous or irrelevant consideration, which had no rational connection with the question of making reference the Order of “appropriate Government” is certainly subject to judicial review. Whether the workmen had worked for 240 days or not is a question of fact to be examined on the materials to be adduced by the parties. While so, the Government was not right in forming an opinion that the Respondents/workmen had not worked for 240 days and declining to refer the dispute. In our considered view, the learned single Judge was right in quashing G.O.Ms.No.1746 dated 11.8.1987.
9. The next point urged by the learned counsel for Appellant is the delay. G.O.Ms.No.1746 was passed by the Government on 11.8.1987. Writ Petition was filed in the year 1990 taken on file in 1993 and writ petition was disposed in 2000. The workmen were terminated way back in November 1986. Government declined to refer the dispute on the ground that the workmen have not worked for 240 days in a period of twelve months and hence they cannot claim permanent status. Learned counsel for the Appellant contended that the delay is one of the factors which the learned single Judge ought to have kept in view and declined to issue writ of mandamus.
10. Whether delay could be the reason for declining to refer the matter for adjudication is the point falling for our consideration.
11. In (1999) 3 L.L.N. 872 MAHAVIR SINGH VS. U.P.STATE ELCTRICITY BOARD AND OTHERS , the Supreme Court observed that a reference could be made after a delay of nine years and it cannot be denied merely on the ground of delay and that mere delay does not cease the dispute, but taking more time at the time of creating relief to the concerned workmen. In (2000) 2 SCC 455 (NEDUNGADI BANK LTD. VS. K.P.MADHAVANKUTTY AND OTHERS), the Supreme Court has held as under:
“Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the Respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the Respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the Respondent for raising an industrial dispute was ex facie bad and incompetent.”
12. There is no period of limitation prescribed in the Act for making reference under Section 10(1). The words “at any time” used in Section 10(1) do not admit of any limitation in making an order of reference. As righty submitted by learned counsel for workmen, Mr.K.N.Ramesh, there is no hard and fast rule regarding time for making order of reference. As to what is the reasonable time within which the dispute should be referred after the failure of conciliation proceedings or whether the claim has become too stale or not will depend upon facts and circumstances of each case. In our considered view, in the case on hand, the workmen were said to be working from 1984 and that they have been terminated in November 1986. As the issue involved is the collective interest of workmen, in our considered view, notwithstanding the delay, the learned single Judge was right in issuing writ of mandamus directing the Government to make a reference.
12. In the result, the writ appeal is dismissed. The Government is directed to make reference within a period of four weeks from the date of receipt of copy of his order. On such reference is made, concerned Labour Court is directed to proceed with the matter in accordance with law. However, there is no order as to costs.
usk
Copy to:
Commissioner and Secretary to Government
Labour Department
Government of Tamil Nadu
Fort St.George,
Madras 9