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SCA/4032/2011 57/ 57 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4032 of 2011
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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GOLDEN
JUBILEE CO-OPERATIVE CREDIT SOCIETY - Petitioner(s)
Versus
LEARNED
ASSISTANT LABOUR COMMISSIONER & 2 - Respondent(s)
=========================================================
Appearance
:
MR
ANAND B GOGIA for
Petitioner(s) : 1,MR RB GOGIA for Petitioner(s) : 1,
None for
Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/04/2011
ORAL
ORDER
1. Heard
learned advocate Mr.Anand B. Gogia for petitioner – Society.
2. In
present petition, petitioner has challenged order passed by Assistant
Commissioner of Labour, Junagadh under Section 10(1) of I.D.Act,1947,
dated 10.1.2011 wherein powers have been exercised by Assistant
Commissioner of Labour, Junagadh under Section 10(1)(c) of
I.D.Act,1947 referring industrial dispute in relation to termination
for adjudication to Labour Court, Junagadh. The Labour Court has also
issued notice for filing statement of claim as well as calling other
side to file written statement(Page-19) being a Reference No.3 of
2011. This notice has been produced on record by petitioner.
3. Learned
advocate Mr.Gogia has raised contention before this Court that
respondent No.3 workman submitted resignation letter dated 13.3.2009
addressed to Chairman and Managing Committee of petitioner –
Society and said resignation was placed before Executive Committee
which considered his request and took the sympathetic view of
accepting his resignation and did not proceed for taking disciplinary
and criminal action and thereafter, all dues paid to respondent No.3
on 14.3.2009 totalling to Rs.2,45,284/-. The relevant vouchers signed
by respondent No.3 has been produced on record. The respondent No.3
has raised industrial dispute after 14 months while giving notice
dated 10.5.2010 through his Advocate, alleging that his services were
terminated without inquiry by obtaining resignation by duress from
him which letter was replied on 20.5.2010 by petitioner through
Advocate explaining facts that client had tendered resignation which
was accepted by Managing Committee. In response to aforesaid dispute
through notice dated 10.5.2010 raised by respondent No.3 and for
that, Assistant Commissioner of Labour has initiated conciliation
proceedings and after calling petitioner and giving opportunity of
hearing, the Assistant Commissioner of Labour come to conclusion
that industrial dispute exists between both parties, which referred
for adjudication to Labour Court, Junagadh. The contention raised by
learned advocate Mr.Gogia that aforesaid order of reference passed by
respondent No.2 without application of mind and contrary to record
and therefore, it has been considered to be a perverse on the face of
it. He also raised another contention that procedure under Section
12(5) of the I.D.Act,1947 has not been followed by Assistant
Commissioner of Labour and therefore, order of reference is bad. He
also raised contention that reference has been made mechanically
without reading and appreciating relevant material made available
before Assistant Commissioner of Labour by petitioner –
society.
4. I
have considered aforesaid contentions raised by learned advocate
Mr.Gogia for petitioner. Section-10 of I.D.Act,1947 gives powers to
appropriate Government when he is of opinion that any industrial
dispute exists or his apprehended, it may at any time by order in
writing refer the dispute or any matter appearing to be connected
with or relevant to dispute if it relates to any matter specified in
second schedule to Labour Court for adjudication. The Second Schedule
of I.D.Act,1947 under Section 7 of I.D.Act,1947 where it is
specified that matters within jurisdiction of Labour Court and Item
No.3 provides discharge or dismissal workman including reinstatement
of, or grant of relief to, workmen wrongfully dismissed, is covered
by Second Schedule. Accordingly, industrial dispute raised by workman
which has been referred for adjudication to Labour Court, Junagadh.
The schedule of industrial dispute suggests that whether order of
termination dated 13.5.2009 is legal or not and whether workman is
entitled relief of reinstatement with back wages of interim period or
not. Therefore, contention raised by learned advocate Mr.Gogia cannot
be accepted in light of facts that industrial dispute has been raised
against so called resignation which has been obtained by petitioner
while serving notice through Advocate by workman where a specific
contention has been raised that resignation has been obtained by
adopting coercive measure and by duress and that fact cannot be
examined by Assistant Commissioner of Labour while exercising powers
under Section 10(1) (c) of I.D.Act,1947. The view taken by Apex Court
in case of Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of
Bihar and Others, reported in AIR 1989 SC 1565, that while
considering industrial dispute raised by workman, merits cannot be
examined by appropriate Government. Therefore, in facts of this case
also, Assistant Commissioner of Labour, Junagadh has considered
merely an industrial dispute raised by workman against his so called
resignation and that considered to be an industrial dispute exists
between parties and accordingly, with application of mind industrial
dispute has been referred for adjudication by appropriate Government
to Labour Court, Junagadh. The contention raised by learned advocate
Mr.Gogia that proceedings under section 12(5) of I.D.Act,1947 has not
been initiated or followed by Assistant Commissioner of Labour,
cannot be accepted because this industrial dispute raised by workman
under Section 2A of I.D.Act,1947 being an individual dispute against
termination, for which a detailed proceedings or procedure as
contemplated under Section 12 of I.D.Act,1947 is not necessary to be
followed because it is an individual industrial dispute raised by
workman under Section 2A of I.D.Act,1947. For that, conciliation
proceedings have been commenced before Assistant Commissioner of
Labour and thereafter, both parties are not agreed for settlement and
ultimately, this dispute remained in existence after conciliation and
therefore, it has been referred for adjudication to Labour Court,
Junagadh. Section-2A of I.D.Act,1947 provides that where any employer
discharged, dismissed, retrenched or otherwise terminates services of
an individual workman, any dispute or difference between that workman
and his employer connected with or arising out of such discharge,
dismissal, retrenchment or termination shall be deemed to be an
industrial dispute notwithstanding with any other workman nor any
Union of workman is party to dispute. Therefore, steps to make
statutory provisions enabling workman to approach Labour Court or
Industrial Tribunal directly without requirement of reference by
Government in case of dispute governed by Section 2A was held to be
appropriate by Apex Court in case of Hospital Employees Union v.
Union of India, reported in 2003 I LLJ (SC) 1127. Therefore, as per
Section-12, detailed procedure is not required to be followed because
that procedure is required to be followed when industrial dispute
raised by number of workmen and not by an individual workman or it
has been espoused by Union including strike notice given under
Section 22 of I.D.Act,1947 in case of public utility service.
Therefore, contention raised before this Court for first time by
learned advocate Mr.Gogia which was not raised before Assistant
Commissioner of Labour, cannot be accepted and such contention cannot
be entertained by this Court. Otherwise also, legal procedure has
been followed by Assistant Commissioner of Labour for making
reference of industrial dispute which was exist between both parties
and specifying requirement of Section 2A of I.D.Act,1947 and
therefore, according to my opinion, Assistant Commissioner of Labour
has applied mind and considered notice (page-62) dated 10.5.2010,
served by workman through Advocate, challenging so called resignation
which has been obtained by petitioner. Therefore, contention which
has been raised by learned advocate Mr.Gogia cannot be accepted.
4.1 The
difference between proceedings filed by workman under Section 2A
being an individual dispute and industrial dispute raised by Union,
for both a separate machinery has been provided by statutory
provisions under I.D.Act,1947. This aspect in detailed has been
examined by this Court in case of Ravjibhai Khodabhai Devara v. Union
of India, reported in 2008 (17) GHJ 452. Relevant discussion made in
aforesaid judgment are in Para.17 to 19, 21 to 32, 38 to 40, 45, 55
to 57, 59 to 63 are quoted as under :
“17. Now,
considering the definition of Industrial Dispute u/s.2(k) means any
dispute or difference between employers and employers or between
employers and workmen or between workmen and workmen, which is
connected with the employment or non-employment or the terms of
employment or with the conditions of labour of any persons.
Therefore, if complaint u/s. 2A is filed by workman under the
provision of I.D. Act, then, appropriate Government has to consider
whether such complaint is satisfied requirement of Industrial Dispute
or not, and if appropriate Government is having opinion that
industrial dispute exists or is apprehended, then he shall have to
refer for adjudication to Labour Court/Industrial Tribunal subject to
that employer covered by definition of “Industry”. So,
whatever opinions are necessary for complaint filed by workman, who
satisfied requirement of Section 2(s) in respect to industrial
dispute must have to be satisfied requirement of Section 2(k) and
against whom dispute is raised, he must have to be satisfied that it
is covered by definition of Industry under Section 2(j).
18. Therefore,
appropriate Government should not have to go into the detailed
procedure after conciliation proceeding is come to an end to submit
failure report u/s.12(4) and thereafter, appropriate Government has
to formed the prima facie opinion or to satisfy whether dispute can
be referred for adjudication or not. The definition of employer is
given u/s 2(g).
19. In
this case, what happened that appropriate Government has followed
procedure u/s.12, which is not necessary in accordance with law. The
section 12, duties of Conciliation Officer, where any industrial
dispute exists or is apprehended, the Conciliation Officer may, or
where the dispute relates to a public utility service and a notice
u/s.22 has been given, shall, hold conciliation proceedings in the
prescribed manner. So, subsection 1 of Section 12 suggest that
whether any industrial dispute exists or is apprehended, where the
dispute relates to public utility service and notice u/s 22 has been
given, otherwise to power u/s 12 should not have to be exercised by
appropriate Government including Conciliation Officer. Under
Section 12, the separate detail procedure prescribed, there is a
purpose behind it that industrial dispute exists or apprehended in
respect to public utility service and strike notice u/s 22 is given
by Union, then, only detailed procedure is to be followed by
Conciliation Officer. The Section 12 suggests that Union shall have
to espouse the cause of dispute. The individual employee has not to
give strike notice u/s 22 in respect to public utility service.
21. There
is a one order of appropriate Government u/s 12(5) and there is one
order of appropriate Government u/s 10(1), both are having separate
details and independent procedure, is to be followed by appropriate
Government when such dispute raised by Union and workman.
22. In
this case, after filing complaint by workman, which is at page 18 and
19 dated 21/10/1999, it is not the industrial dispute raised by
workman relating to public utility service given strike notice u/s
22, but it was the dispute by way of filing complaint under section
2A raised by workman in respect to his termination. Even though, the
procedure was followed by appropriate Government u/s 12 of I. D. Act
1947, which is not appropriate procedure is to be followed by
appropriate Government because it is not the dispute raised by Union
in respect to public utility service give strike notice u/s 22 of the
I. D. Act 1947.
23. Therefore,
entire procedure, which has been followed by appropriate Government
after receiving complaint from workman sending failure report u/s
12(4) by Conciliation Officer to the Secretary, Government of India,
Ministry of Labour dated 25/10/2000 and thereafter, appropriate
Government has decided that prima facie, this Ministry does not
consider this dispute fit for adjudication.
24. Under
section 10(1), the appropriate Government has no power to consider
the case for prime facie opinion or there is no necessity for
appropriate Government to arrive satisfaction.
25. Therefore,
according to my opinion, the order passed by appropriate Government
dated 30/1/2001 rejecting to refer the industrial dispute for
adjudication while exercising power u/s 12(5) of the I. D. Act 1947
is without jurisdiction, but appropriate Government has to consider
the complaint u/s 2A while exercising the power u/s 10 subsection 1
of I. D. Act 1947.
26. This
is the basic difference not properly followed procedure by
appropriate Government being Central Government. Since many years
the appropriate Central Government is understood that any kind of
industrial dispute whether it cover termination, discharge or
dismissal or not even though they should have to follow the procedure
as required u/s 12 of I. D. Act 1947. That concept and opinion is
wrong amounts to misconception of law by appropriate Government being
Central Government.
27. Therefore,
according to my opinion, the order passed by appropriate Government
dated 30/1/2001 is without jurisdiction required to be set aside now
only on the ground that different procedure has been followed by
appropriate Government being Central Government.
28. Now,
second question is that though it is not necessary to deal with but
also dealt with it, because it has been raised before this Court.
Learned advocate Mr. Malkan in SCA No.7155/2002, dated 19/10/2002 has
relied upon the decision of Apex Court wherein, the Apex Court has
considered the case of Secretary Indian Tea Association v. Ajit
Kumar Barat and Others reported in AIR 2000 SC 915.
29. Therefore,
question is that whether appropriate Government can decide the
merits/dispute while arriving prima facie opinion or not and what is
the meaning of prima facie opinion and what is the meaning of
satisfaction. These are not discussed in aforesaid decision.
30. Section
12(5), not suggests the prima facie opinion, but section suggest
satisfaction. Therefore, in light of this, the reason, which has
been given by appropriate Government in facts of present case can be
considered to be merely opinion or prima facie observations or
satisfaction of the appropriate Government. The appropriate
Government has used to give reason on prima facie as it has been used
in Apex Court decision as referred above case in the Secretary,
Indian Tea Association (supra).
31. The
Industrial dispute raised by workman or Union if appropriate
Government is having power in light of the satisfaction to decide the
dispute, then, there is no need to constitute Labour Court or
Industrial Tribunal under the Provisions of I. D. Act 1947. The
power to adjudicate the dispute is within the jurisdiction of Labour
Court/Industrial Tribunal. A moment, the appropriate Government comes
to conclusion that workman has failed to establish his case of
continuous employment during the relevant period or to disprove the
fact that he has self employed, these are the clear finding of fact
to have decision on merits as if that appropriate Government has
adjudicated the dispute like Labour Court. It is not the prima facie
opinion, it is not remained up to prima facie opinion, but
appropriate Government has given further extend his jurisdiction to
decide the dispute being adjudication, which amounts against the
principal of natural justice because while passing such kind of order
declined to refer such dispute the right of workman or Union is come
to end to have further machinery under the provisions of I. D. Act
1947.
32. Therefore,
under statutory provisions, the legislation by his wisdom not given
power to appropriate Government to adjudicate the dispute. Merely,
appropriate Government has power to seen whether industrial dispute
is exists or not if there is a dispute between employer and
employee, it covers the difference of opinion, relating to
employment/non employment or conditions of service is enough to refer
the dispute for adjudication. No further elaborate inquiry or
determination of dispute is necessary.
38. I
have considered their submissions and I have also considered the
decision given by this Court (Coram : Honourable Mr. Justice Ravi R.
Tripathi) in SCA no. 7155/2002 dated 19/10/2002. Heavy reliance is
placed by both the learned advocates on Apex Court decision in case
of the Secretary, Indian Tea Association Vs. Ajit Kumar Barat
reported in AIR 2000 SC 915, where first time Apex Court has
considered that appropriate Government can consider the dispute on
prima facie whether dispute is an industrial dispute or not or
whether workmen is workmen or not within the meaning of Section 2(s)
of I. D. Act 1947. I have gone through the aforesaid decision, where
Apex Court has come to conclusion that whether dispute raised by
workman is workman or not.
39. According
to Apex Court decision, the appropriate Government has to form the
opinion whether the employee is workman or not and thereafter, has to
consider whether an industrial dispute exists or is apprehended or
not. Relevant para 11 is quoted as under:
“11. From
the order of the State Government we find that while deciding the
question whether respondent NO.1 as a workman, it took into
consideration the salary and allowances of respondent No.1 drawn at
the relevant time and also the nature of work. Respondent No.1 who
has appeared in person did not dispute the salary and allowances
etc., as indicated in the order of the Government but urged that his
responsibilities were neither supervisory nor managerial in nature.”
40. The
bare perusal of para 11 as referred above in respect to salary and
allowances of respondent no. 1 workman drawn at the relevant time and
also nature of work. The respondent no. 1, who is appeared in
presence of officer did not dispute the salary and allowances as
indicated in the order of Government, but dispute is responsibility
where neither supervising nor managerial in nature. The para 12 is
also equally relevant which is quoted as under:
“12.
Mr. Gupta, learned senior counsel appearing for the appellant has
drawn out attention to the circular dated 30th March; 1994 issued by
the appellant-association. This circular indicates duties of
respondent No. 1 who was functioning as a Joint Secretary at the
relevant time and we find his duties were to deal with all legal
matters and Court proceedings, labour and land laws and publications
(Labour legislations Labour welfare). We also find from the records
that respondent No. 1 had power to sanction expenses incurred in
litigation by the appellant. On the above materials on record the
State Government rightly formed the opinion that respondent No. 1 was
not a workman.”
45. Recently,
the Division Bench of the Bombay High Court in case of Bhartiya
Janata Kamgar Mahasangh, Maharashtra, Nagpur v. Government of India,
Under Secretary, Ministry of Labour, Delhi and Another
reported in 2008 (1) LLJ page 298. In this case
Central Government has decided that there was no relationship of
employer and employee between party concerned. The Court held that it
was only an Industrial Tribunal/Court that could determine whether
contractor through the each workman were engaged was mere
ruse/camouflage to evade compliance with various beneficial Labour
legislations. The Division Bench of Bombay High Court has considered
various decision on the subject including the Secretary Indian Tea
Association (supra) case. Relevant para 8 and 9 are quoted as under:
“8. We
have carefully considered the submissions made by the learned counsel
for the parties and perused the records and the judgment to relied
upon by the respective counsel. It is well settled by catena of
decisions of the Apex Court that the appropriate Government exercises
administrative function under Section 10(1) of the Act and the
function is neither judicial nor quasi judicial. Under Section
12(5) of the Act the appropriate Government can refuse to make
reference. On a consideration of report under sub Section 4 of
Section 12 of the Act if the appropriate Government is satisfied that
there is a case for reference to Labour Court or Tribunal as the case
may be, it may make such reference. Where the appropriate government
does not make a reference it has to record and communicate the
reasons thereof to the parties concerned. No doubt, if on the basis
of the material before the appropriate Government the appropriate
Government comes to the conclusion that there is no industrial
dispute and upon admitted facts the reference is not warranted the
appropriate Government would be within its jurisdiction to refuse to
make reference and refuse to make reference by giving reasons in
terms of Section 12(5) of the Act.
9. In
the present case perusal of the records and more particularly failure
report submitted by the conciliation officer discloses that according
to the petitioner the contractor entered into between the respondent
No.2 and the contractor was sham and bogus and was entered into only
to defeat the legitimate claims of the seven workmen. According to
the petitioner, since the contract was sham and bogus the seven
workmen were deemed to be regular employees of respondent No.2 and,
therefore, their termination was illegal. In the case of Telco
Convoy Drivers Mazdoor Sangh and Another v. State of Bihar and Others
(supra) the appellant raised
dispute that 900 convoy drivers should be made permanent by the
management and they should be given all facilities as were available
to the permanent employees of Telco. The said demand proceeded on the
basis that the convoy drivers were all workmen of Telco. The
appropriate Government refused to make reference on the ground that
there was no relationship of master and servant between the said
convoy drivers and the Telco. The appellant challenged the action of
the Government of refusing to make reference on the ground that the
appellant had filed to satisfy that they were employed either by
Telco or by Telco Contract Association. In this factual back ground
the Apex Court while allowing the appeal filed by the Appellate Telco
Convoy Drivers Mazdoor Sangh and Another observed in paragraphs 13
and 14 as under :
“13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See : Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 : (AIR 1985 SC 915) ; M.P. Irrigation Karamchari Sangh v. State of M.P., (1985) 2 SCR 1019 : (AIR 1985 SC 860) ; Shambu Nath Goyal v. Bank of Baroda, Jullundur, (1978) 2 SCR 793: (AIR 1978 SC 1088).
14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in, the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh’s case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of the valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory.”
In
Steel Authority of India Ltd., and Others v. National Union
Waterfront Workers and Others (supra), the Apex Court in paragraphs
119(5) and 126 of the judgment observed thus 2001-II-LLJ-1087 at
p.1132 :
“119(5).
On issuance of prohibition notification under S. 10(1) of the CLRA
Act prohibiting employment of contract labour or otherwise, in an
industrial dispute brought before it by any contract labour in regard
to conditions of service, the industrial adjudicator will have to
consider the question whether the contractor has been interposed
either on the ground of having undertaken to produce any given result
for the establishment or for supply of contract labour for work of
the establishment under a genuine contract or is a mere
ruse/camouflage to evade compliance of various beneficial
legislations so as to deprive the workers of the benefit thereunder.
If the contract is found to be genuine but a mere camouflage, the
so-called contract labour will have to be treated as employees of the
principal employer who shall be directed to regularize the services
of the contract labour in the concerned establishment subject to
conditions as may be specified by it for that purpose in the light of
para 6 hereunder.
120.
We have used the expression “industrial adjudicator” by
design as determination of the questions aforementioned requires
inquiry into disputed question of facts which cannot conveniently be
made by High Courts in exercise of jurisdiction under Art. 226 of the
Constitution. Therefore, in such cases the appropriate authority to
go into those issues will be Industrial Tribunal / Court whose
determination will be amenable to judicial review.”
55. Section
12 is having come into effect only in case of industrial dispute
espouse by Union relates to public utility service and receiving
strike notice u/s 22 of I. D. Act 1947. The Section 12 subsection 1
is very clear, even though, the individual complaint of workman
relates to dismissal, discharge and termination, no conciliation
proceeding is required by appropriate Government except to see that
whether industrial dispute is exists or not and is there any
apprehended dispute then dispute must have to be referred for
adjudication. No reason is necessary for referring dispute for
adjudication.
56. In
fact of this case, though industrial dispute was raised by workman
against termination even though power has been exercised u/s 12 by
initiating conciliation proceedings, which is without jurisdiction.
The State Government has rightly followed the procedure after
receiving the complaint against dismissal, discharge and termination.
After receiving complaint by Assistant Commissioner of Labour, who
is having power, which has been delegated by State Government to
refer the dispute for adjudication to Labour Court. Therefore,
appropriate Government being Central Government has to consider the
defect remaining in following procedure in case of dismissal,
discharge and termination. The decision, which is under challenged,
where Central Government being appropriate Government has decided the
merits, for which appropriate Government has no jurisdiction to
adjudicate the dispute and to give finding on merits.
57. The
view taken by Apex Court in case of Telco Convoy Drivers Mazdoor
Sangh and another Vs. State of Bihar and Others, reported in AIR 1989
SC 1565 is binding to Central Government.
59. Considering
the aforesaid sections, dispute relating to termination is covered by
Section 2k being Industrial Dispute. Section 2A is that individual
workmen have right to raise dispute against termination without the
help of Union by way of filling individual complaint before
Conciliation Officer.
60. Section
10 provides the power of appropriate Government to refer the
industrial dispute if it exists or apprehended and section 12,
provide the detailed procedure when strike notice given by Union in
respect to industrial dispute relating to public utility service.
61. In
this case, present respondent Bank is not public utility service.
Therefore, complaint u/s 2A was filed by workman. It is not a
general industrial dispute which covered or concerned with the
workmen working with Industry. Therefore, Section 12 is not
applicable to the fact of this case, even though, appropriate
Government has followed procedure u/s 12, which is without
jurisdiction and therefore, decision taken u/s 12 subsection 5 is
also without jurisdiction.
62. It
is necessary to consider the legal harassment which has been made to
concerned petitioner by appropriate Government while adopting wrong
procedure resulted into wrong order. The service of petitioner was
terminated on 11st August 1999. He raised industrial
dispute on 4th October 1999 and appropriate Government
decided on 30th January 2001 having the opinion not to
refer the industrial dispute for adjudication. The petition is filed
before this Court in the year 2001 which is remained pending before
this Court for about seven years and now, today, this Court has
decided the petition. Therefore, a petitioner who has to wait because
of legal fight for a period of more than eight years, till date,
whether his termination is legal or not, that question is not
referred for adjudication remained without decision. The delay caused
by appropriate Government while adopting wrong procedure and forming
an opinion as if adjudicating the dispute and thereafter, matter
remained pending before this Court. A poor employee is a sufferer who
is without work remained unemployed for a period of more than eight
years. After dispute will refer for adjudication to Industrial
Tribunal, when question of granting the back wages arise for interim
period, whether at that occasion, Labour Court grant it or not
because of delay in referring the dispute to the Labour Court.
Ultimately, sufferer is a poor casual employee who remained without
work and wages for a period of more than eight years. The appropriate
Government has to think twice before refusing to refer the industrial
dispute when it relates to dismissal/discharge and termination,
because, ultimately, not to refer the dispute amounts to deny the
remedy to the concerned workman. If dispute is not referred, then,
workman remained without remedy because Civil Court has no
jurisdiction when order of termination passed under the provisions of
service rules. No other Court has jurisdiction which gives remedy to
the workman to challenge his termination. Therefore, in such
circumstances, normally, unless dispute is raised a totally frivolous
one ex facie, otherwise, rule is to make a reference. The Apex
Court had considered the scope of power of appropriate Government
under the provisions of Industrial Disputes Act, 1947 in case of
Rajasthan State Road Transport Corporation and Another etc., v.
Krishna Kant etc., reported in 1995-II-LLJ-728.
This decision is given by Hon’ble bench consisting of three judges of
Apex Court. In the said decision, the Apex Court has command to the
Parliament and the State Legislature to make the provisions enabling
a workman to approach the Labour Court, Industrial Tribunal directly
i.e. with the requirement of a reference by the Government in case of
industrial disputes covered by Section 2A of the Industrial Disputes
Act, 1947. This would give a long way in removing the misgivings with
respect to the effectiveness of the remedies provided by the
industrial Disputes Act. The recommendations made by Apex Court in
the year of 1995 after a period of more
than 12 years, Central Government and State Legislature
having no time to make the amendment in the Industrial Disputes Act
which facilitate the remedy to the workman against
dismissal/discharge and termination, so, unnecessary time may not be
consumed in conciliation proceedings and workman can straightway
approached the Labour Court and challenge the termination or
dismissal. In Bombay Industrial Relation Act, 1946, under Section
78/79, an employee who governed by BIR Act, 1946 entitled to
challenge termination straightway by filing an application before the
Labour Court. The purpose behind it that time consuming by
appropriate Government for taking decision to refer or not to refer
the dispute is more than one year period and in case if dispute is
more than one year period and in case if dispute is not referred,
then, it will be more than five to ten years for deciding the
decision of appropriate Government. This recommendations of Apex
Court as referred above require immediate action by appropriate
Government either Central Government or State Government. The
relevant discussion of Apex Court making certain observations about
power of appropriate Government in respect to industrial dispute
under Section 2A are relevant, therefore, the same are quoted as
under :
“18.
The expression “Industrial Dispute” is defined in Section
2(k) to mean any dispute or difference (i) between employers and
employers; (ii) between employers and workmen; and (iii) between
workmen and workmen, provided such dispute is connected with the
employment, non-employment, terms of employment or conditions of
labour of any person. It is well settled by several decisions of this
court that a dispute between the employer and an individual workman
does not constitute an industrial dispute unless the cause of the
workman is espoused by a body of workmen [See Bombay Union of
Journalist v. “The Hindu”, (1961)2 Lab LJ 436 : (AIR 1963
SC 318)]. Of course, where the dispute concerns the body of the
workers as a whole or to a section thereof, it is an industrial
dispute. It is precisely for this reason that Section 2-A was
inserted by Amendment Act 35 of 1965. It says, “where any
employer discharges, dismisses, retrenches or otherwise terminates
the services of an individual workman, any dispute or difference
between that workman and his employer connected with, or arising out
of, such discharge, dismissal, retrenchment or termination shall be
deemed to be an industrial dispute notwithstanding that no other
workman nor any union of workmen is a party to the dispute”. By
virtue of this provision, the scope of the concept of industrial
dispute has been widened, which now embraces not only Section 2(k)
but also Section 2-A. Section 2-A, however, covers only cases of
discharge, dismissal, retrenchment or termination otherwise of
services of an individual workman and not other matters, which means
that – to give an example – if a workman is reduced in rank pursuant
to a domestic enquiry, the dispute raised by him does not become an
industrial dispute within the meaning of Section 2-A. (However, if
the union or body of workmen espouses his cause, it does become an
industrial dispute.) We have given only one instance; there may be
many disputes which would not fall within Section 2(k) or Section
2-A. It is obvious that in all such cases, the remedy is only in a
Civil Court or by way of arbitration according to law, if the parties
so choose. The machinery provided by the Industrial Disputes Act for
resolution of disputes (in short, Section 10 or 12) does not apply to
such a dispute.
27. But
then it is argued that while a person can go and file a suit
straightway, he cannot resort to the forums under Industrial Disputes
Act directly and that access to these forums is premised upon the
appropriate government referring the dispute to them. The submission
is no doubt attractive ex facie but not on deeper scrutiny. Firstly,
the discretion to refer is not arbitrary. It has to be exercised to
effectuate the objects of the enactment. An arbitrary refusal to
refer is not un-challengeable. The Courts normally lean in favour of
making a reference rather than the other way. In view of the manner
in which the several governments have been acting over the last
several decades there seems no basis for the apprehension that this
power will be exercised arbitrarily. The circumstance suggested
cannot, therefore, militate against the view taken by us herein.
32(4). It
is not correct to say that the remedies provided by the Industrial
Disputes Act are not equally effective for the reason that access to
the forum depends upon a reference being made by the appropriate
government. The power to make a reference conferred upon the
government is to be exercised to effectuate the object of the
enactment and hence not unguided. The rule is to make a reference
unless, of course, the dispute raised is a totally frivolous one ex
facie. The power conferred is the power to refer and not the power to
decide, though it may be that the government is entitled to examine
whether the dispute is ex facie frivolous, not meriting an
adjudication.
32(5). Consistent
with the policy of law aforesaid, we commend to the Parliament and
the State Legislatures to make a provision enabling a workman to
approach the Labour Court/Industrial Tribunal directly – i.e.,
without the requirement of a reference by the Government – in case of
industrial disputes covered by Section 2-A of the Industrial Disputes
Act. This would go a long way in removing the misgivings with respect
to the effectiveness of the remedies provided by the Industrial
Disputes Act.
32(7). The
policy of law emerging from Industrial Disputes Act and its sister
enactments is to provide an alternative dispute resolution mechanism
to the workmen, a mechanism which is speedy, inexpensive, informal
and un-encumbered by the plethora of procedural laws and appeals upon
appeals and revisions applicable to civil courts. Indeed, the powers
of the Courts and Tribunals under the Industrial Disputes Act are far
more extensive in the sense that they can grant such relief as they
think appropriate in the circumstances for putting an end to an
industrial dispute.”
63. Therefore,
according to my opinion, appropriate Government has exceeded in
jurisdiction and dispute raised u/s 2A, the appropriate Government
has no jurisdiction to examine the matter u/s 12. On both ground,
this order dated 30/1/2001 passed without jurisdiction required to be
quashed and set aside.”
5. It
is also necessary to note that petitioner having a remedy before
Labour Court to raise all contentions which are raised before this
Court in present petition at the time of filing written statement and
also petitioner is having a remedy to lead oral evidence to prove
their case that resignation which was given by workman being a
voluntary and accepted amounts after sanctioning resignation from
employer. Therefore, petitioner is having ample opportunity as well
as complete remedy to raise all these contentions before Labour Court
during pendency of reference and therefore also, this being a second
ground not to entertain petition filed by petitioner before this
Court challenging order of reference made by Assistant Commissioner
of Labour, Junagadh.
6. It
is also necessary to note that by referring dispute under Section
10(1)(c) of I.D.Act,1947, the appropriate Government or Assistant
Commissioner of Labour has not decided industrial dispute between
either of parties. Therefore, rights of either parties merely
referring dispute is not decided by Assistant Commissioner of Labour,
Junagadh. Therefore also, challenge to such order being an
administrative order, this Court should not entertain or encourage
such challenge which would stall the proceedings pending before
Labour Court and avoid decision on merits.
7. This
aspect has been in detail considered by this Court in case of Apollo
Tyres Limited v. Commission of Labour and Anr., reported in
2008-II-LLJ-184 where petitioner company challenged a reference made
to Industrial Tribunal for adjudication on the ground inter-alia that
it was an individual, not industrial dispute and that union which
raised it was not representing substantial number of workmen.
Relevant observations made in aforesaid judgment are in Para.4 to 10,
which are quoted as under :
“4. I
have considered the submissions made by the learned Advocate Mr. KC
Raval before this Court. Considering the submission of learned
advocate Mr. Raval that the order of reference is bad, learned
advocate Mr. Raval has not been able to point out as to which right
of the company is violated by respondent no.1 by making an order of
reference. Unless and until it is successfully demonstrated by the
party challenging an order of reference that it is violative of any
right of the petitioner, such party cannot be permitted to challenge
the order of reference only on the ground that the reference is bad.
Even if it is believed that the order of reference is bad, then
also,that would, ipso-facto, not entitle such party to challenge the
same before the higher forum.So long as the right of the petitioner
company not adversely affected by the respondent no.1 while passing
the order of reference,t his court cannot entertain the petition
only on that ground. Writ petition is maintainable only when right
of the parties are adversely affected by the action or order of the
State Authority. Learned Advocate Mr. Raval has not been able to
point out before this court that because of the order of reference
made by respondent no.1, any right of the petitioner has been
adversely affected. Therefore, on this count, writ petition is not
maintainable. Apart from that, whatever contentions raised by the
petitioner in this petition before this court can be raised by the
petitioner even before the industrial tribunal as well while
participating in the reference proceedings and the petitioner can
participate in the reference proceedings without prejudice to his
rights and contentions to challenge the order of reference if the
ultimate orders of the tribunal are adverse to the petitioner, then
same can be challenged therefore, on that ground also, writ
petition challenging order of reference is not maintainable.
Therefore, according to my opinion, petitioner is having alternative
effective remedy to raise all these contentions before the
industrial tribunal and the tribunal is competent enough to
adjudicate or decide it on the basis of the record which can be
produced by the respective parties before the tribunal. So, the
petitioner is having alternative equally efficacious remedy to raise
all these contentions before the industrial tribunal and therefore
also this petition is not maintainable because petitioner has not
been able to point out that any right of the petitioner has been
adversely affected by order of reference.
5. Further,
whether the union is representing substantial number of workmen or
not; whether the individual dispute under section 2A is to be
converted into a dispute under section 2K or not; in respect of the
settlement, whether that settlement has been accepted by each
workman or not and whether the union which has raised dispute is
entitled to raise the dispute in respect of suspended employees or
not and whether all these contentions raised by the petitioner in
this petition for challenging order of reference were raised by the
petitioner in conciliation proceedings or not, all these are the
disputed questions of fact which cannot be appropriately dealt with
and decided by this court in a petition under Article 226 of the
Constitution of India. There is nothing on record to show that the
petitioner has raised any of such contentions before the
conciliation officer. All these are the disputed questions of fact
requiring appreciation of evidence and the petitioner is having
ample opportunity to raise preliminary contention before the
industrial tribunal in respect of whatever contention raised before
this court and the industrial tribunal can, on the basis of the
evidence and record produced by the parties, examine the same but
this court cannot examine all these disputed questions of fact in a
petition under Article 226 of the Constitution of India.
6. In
Philips India Limited and Another And P.N. Thorat, Asstt.
Commissioner of Labour and Conciliation Officer and others, reported
in 2006-I-LLJ page 1013, order of reference was challenged by the
employer before the Division Bench of Bombay High Court. Workmen
were contending fraud committed by employer in implementing
settlement for Voluntary Retirement Scheme. It was held that the
dispute involved triable issues requiring evidence to be led and,
therefore, employer’s challenge was held to be not sustainable.
Relevant observations made by the Division Bench of the Bombay High
Court in the said decision in para 12 are reproduced as under:
“12. From
the above, what emerges is that there are serious triable issues.
The contention of the Union and the workmen is that fraud has been
practised upon them. If the workmen are able to succeed in proving
that the agreement was entered into by playing fraud, it will be
open for them to avoid the settlement. This issue cannot be answered
by this court at this stage as it would require evidence to be led.
Prima facie a Division Bench of this Court in the very proceedings
has taken note that the employees involved in both the writ
petitions would be workmen. The Apex Court, however, left that
question to be decided. At any rate the expression workmen
considering section 2(s) of the ID Act would include ex-workmen.
That contention of the management that they are not workmen would
require adjudication of facts. Based on these findings and the issue
of pensionary benefits under VRS it will have to be considered
whether the dispute partakes of an industrial dispute. This again
would be premature for this Court to decide at this stage and it
will be open to the petitioners to raise all issues before the
Industrial Tribunal to which the reference is made. Similarly the
contention of the employer that they have complied with the terms of
the settlement and consequently there is no industrial dispute and
that the employees cease to be workmen will have to be adjudicated
upon by the Tribunal. ”
7. Similar
question has been examined by the Division Bench of Delhi High Court
in DD Gears v. Secretary (Labour) and others, reported in 2006 Lab.
IC 1462 wherein reference of an industrial dispute to the industrial
tribunal was challenged. It was held that no writ petition should be
entertained against a mere reference as not affecting rights of the
parties. It was held in para 19, 20, 21 and 22 of the said judgment
as under:
“19.The
learned Single Judge rejected the Writ petition and hence this
appeal.
20. In
our opinion, we cannot interfere with the reference order under
section 10 (1) of the Industrial Disputes Act because that order
does not affect the rights of the parties. Hence the Writ petition
against that order is liable to be dismissed.
21. It
is well settled that a writ petition lies only when the rights of
some party has been adversely affected. A mere reference under
section 10(1) of the Industrial Disputes Act does not effect any
one, rights and hence no writ petition should ordinarily be
entertained against a mere reference under section 10(1), as such a
petition is premature.
22. It
is only when an a ward is given by the Labour Court or Tribunal that
a writ petition should be entertained.”
8. In
the instant case also, mere reference has been made by respondent
no.1 and petitioner is unable to point out how it is adversely
affecting the rights of the company. Petition is also involving
disputed questions of fact which cannot be appropriately dealt with
and decided in a writ petition under Article 226 of the Constitution
of India. Therefore, in view of the aforesaid two decisions,
petition is not sustainable in law.
9. In
Sanjay Sitaram Khemka versus State of Maharashtra and others
reported in (2006) 5 SCC 255, maintainability of petition involving
questions of fact was considered by the apex court. It was held that
the matter involving disputed questions of fact cannot be dealt with
by the High Court in exercise of its power of judicial review.
Relevant observations made in para 8 and 9 of the judgment by the
apex court are reproduced as under:
“8.Having
regard to the allegations and counter allegations made by the
parties before us, we are of the opinion that no relief can be
granted to the petitioner in this petition. The writ petition has
rightly been held by the High Court to be involving disputed
questions of fact.The petitioner has several causes of action
wherefor he is required to pursue specific remedies provided
therefor in law.
9. A
writ petition, as has rightly been pointed out by the High Court,
for grant of said reliefs,was not the remedy. A matter involving a
great deal of disputed questions of fact cannot be dealt with by the
High Court in exercise of its power of judicial review. As the High
Court or this Court cannot, in view of the nature of controversy, as
also the disputed questions of fact, go into the merit of the
matter; evidently no relief can be granted to the petitioner at this
stage. We are, therefore, of the opinion that the impugned judgment
of the High Court does not contain any factual or legal error
warranting interference by this court in exercise of its
jurisdiction under Article 136 of the Constitution.”
[See
: 2007 (6) MLH 406]
10. Therefore,
in view of the above observations made by the Supreme Court, Bombay
High Court, as well as the Delhi High Court as referred to above,
and also considering the facts of the present case which involves
disputed questions of fact and also considering the fact that the
petitioner is not able to contend that the order of reference is
adversely affecting its right, according to my opinion petition is
not maintainable against order of mere reference made by respondent
no.1 as petitioner is having specific remedy before the industrial
tribunal to raise all the contentions raised in this petition before
the tribunal because the questions raised in this petition are such
which would require evidence to be led and appreciation thereof.
According to my opinion, petitioner herein is having several causes
of action for which petitioner is required to pursue specific remedy
before the tribunal and this court cannot decide such disputed
questions of fact in exercise of the powers under Article 226 of the
Constitution of India. It is more so when the petitioner is not
alleging any mala fides against respondent no. 1. Further, it is not
the case of the petitioner that the industrial tribunal is not
having power to examine the preliminary contention which may be
raised by the petitioner in respect of the contentions raised by the
petitioner in this petition before this court, meaning thereby,
tribunal is having powers under section 10(1) and 10(4) of the ID
Act, 1947,so, tribunal is competent to decide all the contentions
that may be raised by the petitioner before it including the
preliminary contention as well and can participate in the reference
proceedings without prejudice to its rights and contentions in
respect of the preliminary contention and if the ultimate outcome is
adverse to the petitioner, then, petitioner can challenge the same
on all grounds available to him including the contentions raised by
petitioner before this court against the order of reference. In view
of that also, this petition is not maintainable in law.”
8. Similar
aspect considering legal consequences in such type of challenge by
employer has been also deprecated by this Court in case of Indian
Potas Ltd. v. Gujarat Mazdoor Panchayat & Anr., reported in 2006
II CLR 1051. Relevant
observations made in aforesaid judgment are in Para.9 to 13, which
are quoted as under :
“9. The
third order that is the order of reference made by appropriate
Government dated 27th February 2003. This Court cannot
entertain such petition wherein the order of reference is challenged
by the employer. This Court cannot go into the disputed question of
facts and triable issues raised by the petitioner in the present
petition. The petitioner having full opportunity of hearing to raise
all the contention which has been raised before this Court in pending
reference before the Labour Court. Therefore, this Court should not
have to entertain the petition filed by the petitioner challenging
the order of reference. Such petition should not have to be
entertained by this Court and that view has been taken by Delhi High
Court in case of D.D. Gears Ltd. v. Secretary (Labour) and others
reported in 2006 LAB.I.C. 1462. The relevant Para 21 is
as under :
” Para
21 : It is well settled that a Writ Petition lies only when the
rights of some party has been adversely affected. A mere reference
under Section 10(1) of the Industrial Disputes Act does not effect
anyone,, rights, and hence no Writ Petition should ordinarily be
entertained against a mere reference under Section 10(1), as such a
petition is premature.”
10. The
above view has also been taken by Bombay High Court in case of in
case of Philips India Limited and Another v. P.N. Thorat, Asst.
Commr. Of Labour and Conciliation Officer and Others reported in
2006-I L.L.J. 1013. The relevant Para 12 and Para 13
are as under :
” Para
12 : From the above, what emerges is that there are serious
triable issues. The contention of the Union and the workmen is that
fraud has been practised upon them. If the workmen are able to
succeed in proving that the agreement was entered into by playing
fraud it will be open to them to avoid the settlement. This issue
cannot be answered by this Court at this stage as it would required
evidence to be led. Prima facie a Division Bench of this Court in the
very proceedings has taken note that the employees involved in both
the writ petitions would be workmen. The Apex Court, however, left
that question to be decided. At any rate the expression workmen
considering Section 2(s) of the I.D. Act would include ex-workmen.
That contention of the management that they are not workmen would
require adjudication of facts. Based on these findings and the issue
of pensionary benefits under VRS it will have to be considered
whether the dispute partakes of any industrial dispute. This, again
would be premature for this Court to decide at this stage and it will
be open to the petitioner to raise all issues before the Industrial
Tribunal to which the reference is made. Similarly, the contention of
the employer that they have complied with the terms of the settlement
and consequently there is no industrial dispute and that the
employees cease to be workmen will have to be adjudicated upon by the
Tribunal.
Para
13 : Considering the above, in our opinion, this would not be a
fit case where this Court should exercise its extraordinary
jurisdiction. In the light of that both the petitions stand
dismissed. In the circumstances of the case, there shall be no order
as to costs.”
11. The
above view has also been taken by this Court in case of in case of
Indian Institute of Management v. Gujarat Majdoor Sabha & Ors.
(Ahmedabad) reported in 2006 (2) G.C.D. 1227 (Gujarat).
12. In
light of this, according to my opinion, petition against the
challenge of order of reference is not maintainable because
petitioner having a full opportunity to make their submission or to
raise contention before the Labour Court which are raised before this
Court against the order of reference. This Court cannot examine the
disputed question of facts while exercising the power under Article
226 and 227 of the Constitution of India. Therefore, against that
challenge, petition should not be entertained by this Court,
accordingly, not entertained.
13. In
light of the above observation made by this Court and this
Court having a limited power to scrutinize the orders are in question
while exercising the power under Article 227 of the Constitution of
India. The view express by Apex Court in case of Laxmikant
Revchand Bhojwani and Another Vs. Pratapsing Mohansingh pardeshi
reported in (1995)6 SCC 576.
The following observations are relevant which are quoted as under :
“The
High Court under Article 227 cannot assume unlimited prerogative to
correct all species of hardship or wrong decisions. It must be
restricted to cases of grave dereliction of duty and flagrant abuse
of fundamental principles of law or justice, where grave in justice
would be done unless the High Court interferes.”
9. This
question is also considered by Apex Court in case of AMZ Grindlays
Bank Ltd. v. Union of India, reported in AIR 2006 SC 296, wherein
Apex Court has observed that it is true that normally, a writ
petition under Article 226 of Constitution of India should not be
entertained against an order of appropriate Government making a
reference under Section 10 of Act as the parties would get
opportunity to lead evidence before Labour Court or Industrial
Tribunal and to show that claim made is either unfounded or there was
no occasion for making a reference. Relevant
observations made in aforesaid judgment are in Para.13, which are
quoted as under :
“13. Mr.
Bhat, learned counsel for the second respondent, has submitted that
this Court should not interfere with the order of the Central
Government making a reference under Section 10 of the Act, as the
appellant can ventilate its grievances before the Industrial Tribunal
itself and if the decision of the tribunal goes against the
appellant, the same may be challenged in accordance with law.
According to learned counsel the writ petition is pre-mature as the
appellant has got a remedy before the Tribunal to show that the
reference is either bad in law or is uncalled for. We are unable to
accept the submission made. It is true that normally a writ petition
under Article 226 of the Constitution should not be entertained
against an order of the appropriate Government making a reference
under Section 10 of the Act, as the parties would get opportunity to
lead evidence before the Labour Court or Industrial Tribunal and to
show that the claim made is either unfounded or there was no occasion
for making a reference. However, this is not a case where the
infirmity in the reference can be shown only after evidence has been
adduced. In the present case the futility of the reference made by
the Central Government can be demonstrated from a bare reading of the
terms of the reference and the admitted facts. In such
circumstances, the validity of the reference made by the Central
Government can be examined in proceedings under Article 226 of the
Constitution as no evidence is required to be considered for
examining the issue raised.”
9.1 In
facts of this case, petitioner is not able to point out before this
Court that reference which has been made by appropriate Government is
in futility and can be demonstrated from
bare reading of terms of reference and this being an admitted facts.
These are not facts before this Court because so called resignation
which has been obtained by petitioner and payment was made, that has
been challenged or disputed by workman while serving notice (Page-62)
dated 10.5.2010 that itself is enough not to cover case based on
admitted facts. Therefore, once dispute has been raised and it was
not an admitted facts between parties, then Assistant Commissioner of
Labour, Junagadh has no jurisdiction to decide merits of industrial
dispute but, it has a limited jurisdiction to consider as to whether
industrial dispute exists between parties or not and if he satisfied
while considering legal notice dated 10.5.2010 (Page-62) that there
is a genuine dispute raised by workman challenging so called
resignation then it is enough for satisfying requirement of Section
10(1)(c) of I.D.Act,1947 to refer such dispute for adjudication to
Labour Court as covered by Item No.3, second schedule under Section-7
of I.D.Act,1947.
10. Therefore,
in light of this background, such challenge made by petitioner having
a complete remedy to raise all these contentions before Labour Court
but to see that by challenging such type of order of reference to
curtail further hearing of reference which has been referred for
adjudication by appropriate Government. Such challenge by employer
cannot be encouraged by this Court when employer having complete
opportunity to raise all these contentions before Labour Court, then
to entertain such petition it amounts to encouraging employer to
challenge such type of order of reference so that workman may not be
able to get right of adjudication
before appropriate forum which has been prescribed under provisions
of I.D.Act,1947. In I.D.Act, particular forum is prescribed for
resolving the industrial dispute between parties and for that,
Assistant Commissioner of Labour, Junagadh has referred dispute to
decide dispute between parties, at that occasion challenging order of
reference apparently it is nothing else but a clear case of mala fide
of petitioner to avoid decision on merits and to get stay against
proceedings pending before Labour Court, Junagadh. Such type of
attempt and efforts made by employer, this Court cannot encourage
such type of challenge, otherwise whole machinery is to be considered
stand still if such challenge is entertained by this Court while
exercising powers under Article 226/227 of Constitution of India. It
is necessary to note that workman has no other remedy to challenge
such dispute in any other statutory forum. The workman cannot
challenge such dispute in civil court and even not able to challenge
disputed facts in this Court under writ petition under Article 14, 16
and 226 of the Constitution of India. So only statutory forum under
provisions of I.D.Act,1947 is available except that no forum is
available to such dispute can be resolved by independent statutory
authority. Therefore, if such challenge by employer, order of
reference before this Court if encourage then workman remained
without remedy. The workman may not able to get adjudication about
his dispute that so called resignation was obtained by the employer
under duress and adopting coercive steps against workman. This being
very vital and important issue must have to keep in mind by this
Court when order of reference challenged by employer based on
disputed facts and not based on admitted facts. I have also
considered one important fact that merely order of reference made
by appropriate Government (Assistant Commissioner of Labour,
Junagadh) to Labour Court, Junagadh, that itself not violated any
legal rights of petitioner. So when by order of reference, right of
petitioner is not violated or having any adverse effect to his right,
then writ petition is not maintainable under Article 226 / 227 of the
Constitution of India. The Assistant Commissioner of Labour, Junagadh
has not decided right of either parties which referring merely
industrial dispute to Labour Court, Junagadh. It is open for
petitioner to raise all contentions before Labour Court, Junagadh and
even if it decides against the petitioner, then petitioner can
challenge award which may be passed by Labour Court, Junagadh to
higher forum. So right of petitioner is remained intact and fully
safeguard under machinery of I.D.Act,1947 during pending reference
and even after award is passed against petitioner, this being good
ground not to entertain such petition filed by petitioner,
challenging order of reference before this Court. This aspect
recently examined by Division Bench of this Court in case of Thakor
Nagjibhai Bhailal v. IPCL, Now Amalgamated with Reliance Inds.Ltd &
Ors., reported in 2011 I CLR 183. Relevant observations of aforesaid
decision are in Para.12, 12A, 20, 20A, 21 to 24, 26, 27, 35 and 36,
which are quoted as under :
“12. The
management has taken almost similar plea before us. The learned
counsel for the management would contend that the appellants –
workmen had ceased to be workmen within the meaning of Section 2(s)
of the ID Act and, therefore, on cessation of employment pursuant to
their applications under the Voluntary Separation Scheme, there is no
industrial dispute within the meaning of Section 2(k) of the ID Act,
which can be referred under Section 10(1). Reliance was also placed
on Section 2(k) of the ID Act, which reads as under :-
“2(k) “industrial
dispute” means any dispute or difference between employers and
employers, or between employers and workmen, or between workmen and
workmen, which is connected with the employment or non-employment or
the terms of employment or with the conditions of labour, of any
person;”
12A. He would
contend that for the purpose of qualifying as an industrial dispute,
the dispute or difference has to be between the employer and the
workmen and in the present case, the appellants having been separated
themselves from the services of the Company and as they were no
longer workmen of the Company from the date of acceptance of
voluntary retirement, the alleged dispute or difference between the
appellants and the management Company cannot be termed as an
‘industrial dispute’ for reference under Section 10 of the ID Act.
20. In the case of Sarva
Shramik Sangh vs. Indian Oil Corporation Ltd.,
reported in (2009) 11 SCC 609, the Supreme Court observed as follows
:-
“29. It
is true that making a reference under Section 10(1) of the ID Act is
within the discretion of the appropriate Government. Referring to
the unamended Section 10(1) of the ID Act this Court in State
of Madras vs. C.P. Sarathy, AIR
1953 SC 53 laid down the following principles :-
(i) The
Government should satisfy itself, on the facts and circumstances
brought to its notice, in its subjective opinion that an “industrial
dispute” exists or is “apprehended”.
(ii) The
factual existence of a dispute or its apprehension and the expediency
of making reference are matters entirely for the Government to
decide.
(iii) The
order making a reference is an administrative act and it is not a
judicial or a quasi-judicial act.
(iv) The
order of reference passed by the Government cannot be examined by the
High Court in its jurisdiction under Article 226 of the Constitution,
to see if the Government had material before it to support the
conclusion that the dispute existed or was apprehended.”
20A. In Rohtas
Industries Ltd. vs. S.D. Agarwal, reported in (1969) 1 SCC
325, the Supreme Court held as follows :-
“7. ….
This interpretation of Section 10(1) is based on the language of that
provision as well as the purpose for which the power in question was
given and the effect of a reference. That decision cannot be
considered as an authority for the proposition that whenever a
provision of law confers certain power on an authority on its forming
a certain opinion on the basis of certain facts the courts are
precluded from examining whether the relevant facts on the basis of
which the opinion is said to have been formed were in fact existed.”
21. Whether the Government
can go into the merits of the dispute was the question raised before
the Supreme Court in Western
India Match Co. Ltd. vs. Western India March Co. Workers’ Union,
reported in (1970) 1 SCC 225. Therein, at para 9, the Supreme Court
observed as under :-
“9. …
the Government cannot go into the merits of the dispute, its function
being only to refer such a dispute for adjudication so that the
industrial relations between the employer and his employees may not
continue to remain disturbed and the dispute may be resolved through
a judicial process as speedily as possible.”
22. If the appropriate
Government refuses to make a reference for irrelevant considerations,
on extraneous grounds or acts mala fide, a party would be entitled to
move the High Court for a writ of mandamus. This was the view of the
Supreme Court in Hochtief
Gammon vs. State of Orissa, reported in (1975) 2 SCC 649,
wherein the Supreme Court made the following observations :-
“13. The
executive has to reach their decisions by taking into account
relevant considerations. They should not refuse to consider relevant
matter nor should they take into account wholly irrelevant or
extraneous consideration. They should not misdirect themselves on a
point of law. Only such a decision will be lawful. The courts have
power to see that the executive acts lawfully. It is no answer to
the exercise of that power to say that the executive acted bona fide
nor that they have bestowed painstaking consideration. They cannot
avoid scrutiny by courts by failing to give reasons. If they give
reasons and they are not good reasons, the court can direct them to
reconsider the matter in the light of relevant matters, though the
propriety, adequacy or satisfactory character of those reasons may
not be open to judicial scrutiny. Even if the executive considers it
inexpedient to exercise their powers they should state their reasons
and there must be material to show that they have considered all the
relevant facts.”
23. Section 10(1) of the ID
Act confers a discretionary power and is exercised on being satisfied
that an industrial dispute exists or is apprehended. There may be
some material before the Government on the basis of which it forms an
opinion. The adequacy or sufficiency of the material on which the
opinion was formed is beyond the pale of judicial scrutiny. If the
action of the Government in making the reference is impugned by a
party, it would be open to such a party to show that what was
referred was not an industrial dispute and that the Tribunal had no
jurisdiction to make the award but if the dispute was an industrial
dispute, its factual existence and the expediency of making a
reference in the circumstances of a particular case are matters
entirely for Government to decide upon, and it will not be competent
for the court to hold the reference bad and quash the proceedings for
want of jurisdiction merely because there was, in its opinion, no
material before the Government on which it could have come to an
affirmative conclusion on those matters. Such was the finding of the
Supreme Court in Avon
Services Production Agencies (P) Ltd. vs. Industrial Tribunal,
reported in (1979) 1 SCC 1.
In the very same case,
however, the Supreme Court held that “….merely because the
Government rejects a request for a reference or declines to make a
reference, it cannot be said that the industrial dispute has ceased
to exist. ….. The industrial dispute may nonetheless continue to
remain in existence and if at a subsequent stage the appropriate
Government is satisfied that in the interest of industrial peace and
for promoting industrial harmony it is desirable to make a reference,
the appropriate Government does not lack power to do so under Section
10(1), nor is it precluded from making the reference on the only
ground that on an earlier occasion it had declined to make the
reference.”
24. In Ram
Avtar Sharma vs. State of Haryana, reported in (1985) 3
SCC 189, the Supreme Court considered a refusal by the Government
which has decided on merit. That was the case where the services of
the employee were terminated after charges against him were proved
in a domestic enquiry. In the said case, the Supreme Court observed
as follows :-
“….
The reasons given by the Government would show that the Government
examined the relevant papers of enquiry and the Government was
satisfied that it was legally valid and that there was sufficient and
adequate evidence to hold the charges proved. It would further
appeal that the Government was satisfied that the enquiry was not
biased against the workman and the punishment was commensurate with
the gravity of the misconduct charged. All these relevant and vital
aspects have to be examined by the Industrial Tribunal while
adjudicating upon the reference made to it. In other words, the
reasons given by the Government would tantamount to adjudication
which is impermissible. That is the function of the Tribunal and the
Government cannot arrogate to itself that function. Therefore if the
grounds on which or the reasons for which the Government declined to
make a reference under Section 10 are irrelevant, extraneous or not
germane to the determination, it is well settled that the party
aggrieved thereby would be entitled to move the court for a writ of
mandamus .. … It is equally well settled that where the Government
purports to give reasons which tantamount to adjudication and refuses
to make a reference, the appropriate Government could be said to have
acted on extraneous, irrelevant grounds or grounds not germane to the
determination and a writ of mandamus would lie calling upon the
Government to reconsider its decision.”
26. When
similar matter fell for consideration before the Supreme Court in
Sharad Kumar vs. Govt. of NCT
of Delhi, reported in AIR 2002 SC 1724, the Supreme Court
observed that where determination of the question required
examination of factual matters for which materials including oral
evidence will have to be considered, in such matters, the State
Government could not arrogate on to itself the power to adjudicate on
the question.
27. In the
present case, there is a disputed question of fact whether the
workmen had withdrawn their offers for voluntary retirement prior to
the order of acceptance of such voluntary retirement or prior to
their relieving. The management has taken a plea that the circulars
were displayed on the notice board on 21.3.2007, but also accepted
that the letters of voluntary retirement were issued in the end of
March, 2007. The management has also accepted that pursuant to the
VRS on or about 3.4.2007, 455 persons were relieved and 7 persons
were relieved on 30.4.2007 and 2 persons were relieved on 31.5.2007.
Therefore, the question as to whether one or the other workmen had
withdrawn their prayer for voluntary retirement prior to issuance of
their relieving order or prior to their relieving is one of the
questions which requires determination to adjudicate whether the
relationship of employer and employees ceased because of the
voluntary retirement or they were forcibly retired from the service
amounting to retrenchment.
35. We have
noticed that this Court cannot sit in appeal over a finding of the
State. The determination of the question which requires examination
of factual matters, for which material including oral evidence is
required to be considered, such matter cannot be arrogated to by the
State which will amount to adjudication of the question.
36. In
the present case, it will be evident that the workmen also moved
before this Court in Special Civil Application
No. 20727 of 2007 and in analogous cases. Therein,
this Court by order dated 22.8.2007 after considering the submissions
made by the learned counsel for the parties, having noticed that a
number of disputed questions are raised in the aforesaid group of
petitions, which require some evidence to be taken before the
appropriate authority, allowed the parties to move before the State.
Thereafter, the workmen moved before the respondent – State for
reference under Section 10(1) of the ID Act. Such observations
having already made, the matter having remitted at the instance of
the parties including the management, when the question of deciding
the disputed fact was required to be determined on the basis of the
evidence, we are of the view that the respondent – State or its
authority could not have arrogated on itself the power to adjudicate
on the question whether the relationship between the management and
the workmen ceased because of voluntary retirement or they were
retrenched. In view of the Supreme Court decisions as referred to
above, we also hold that the respondent – State and the
Assistant Labour Commissioner, in particular, had no jurisdiction to
look into the evidence to adjudicate on the question which was
required to be determined by the Tribunal in a reference, if it would
have been made under Section 10(1) of the ID Act.”
[See
:United Phosphorus Ltd. v. Commissioner of Labour & Anr.,
reported in 2011 Lab.I.C. 1006, decided on 26.4.2010 (Coram :
H.K.Rathod,J.)]
11. Recently,
Apex Court has examined question how to exercise the powers by High
Court under Article 226 / 227 of Constitution of India and even while
exercising such powers, what are fundamental principles is to be
considered by High Court in case covered under provisions of
Industrial Law. That has been considered in detail by Apex Court in
case of Harjinder Singh v. Punjab State Warehousing Corporation,
reported in 2010 (1) Scale 613. Relevant
observations made in aforesaid judgment are in Para.10, 11, 26 to 44,
which are quoted as under :
“10. We
have considered the respective submissions. In our opinion, the
impugned order is liable to be set aside only on the ground that
while interfering with the award of the Labour Court, the learned
Single Judge did not keep in view the parameters laid down by this
Court for exercise of jurisdiction by the High Court under Articles
226 and/or 227 of the Constitution – Syed Yakoob v. K.S.
Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram
Chander Rai and others 2003 (6) SCC 675. In Syed Yakoob’s case,
this Court delineated the scope of the writ of certiorari in the
following words:
“The
question about the limits of the jurisdiction of High Courts in
issuing a writ of certiorari under Article 226 has been frequently
considered by this Court and the true legal position in that behalf
is no longer in doubt. A writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior courts or
tribunals: these are cases where orders are passed by inferior courts
or tribunals without jurisdiction, or is in excess of it, or as a
result of failure to exercise jurisdiction. A writ can similarly be
issued where in exercise of jurisdiction conferred on it, the Court
or Tribunal acts illegally or properly, as for instance, it decides a
question without giving an opportunity, be heard to the party
affected by the order, or where the procedure adopted in dealing with
the dispute is opposed to principles of natural justice. There is,
however, no doubt that the jurisdiction to issue a writ of certiorari
is a supervisory jurisdiction and the Court exercising it is not
entitled to act as an appellate Court. This limitation necessarily
means that findings of fact reached by the inferior Court or Tribunal
as result of the appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which is apparent on
the face of the record can be corrected by a writ, but not an error
of fact, however grave it may appear to be. In regard to a finding of
fact recorded by the Tribunal, a writ of certiorari can be issued if
it is shown that in recording the said finding, the Tribunal had
erroneously refused to admit admissible and material evidence, or had
erroneously admitted inadmissible evidence which has influenced the
impugned finding. Similarly, if a finding of fact is based on no
evidence, that would be regarded as an error of law which can be
corrected by a writ of certiorari. In dealing with this category of
cases, however, we must always bear in mind that a finding of fact
recorded by the Tribunal cannot be challenged in proceedings for a
writ of certiorari on the ground that the relevant and material
evidence adduced before the Tribunal was insufficient or inadequate
to sustain the impugned finding. The adequacy or sufficiency of
evidence led on a point and the inference of fact to be drawn from
the said finding are within the exclusive jurisdiction of the
Tribunal, and the said points cannot be agitated before a writ Court.
It is within these limits that the jurisdiction conferred on the High
Courts under Article 226 to issue a writ of certiorari can be
legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque
1955 (1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills
Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v.
Bachittar Singh AIR 1960 SC 1168).
It
is, of course, not easy to define or adequately describe what an
error of law apparent on the face of the record means. What can be
corrected by a writ has to be an error of law; hut it must be such an
error of law as can be regarded as one which is apparent on the face
of the record. Where it is manifest or clear that the conclusion of
law recorded by an inferior Court or Tribunal is based on an obvious
mis-interpretation of the relevant statutory provision, or sometimes
in ignorance of it, or may be, even in disregard of it, or is
expressly founded on reasons which are wrong in law, the said
conclusion can be corrected by a writ of certiorari. In all these
cases, the impugned conclusion should be so plainly inconsistent with
the relevant statutory provision that no difficulty is experienced by
the High Court in holding that the said error of law is apparent on
the face of the record. It may also be that in some cases, the
impugned error of law may not be obvious or patent on the face of the
record as such and the Court may need an argument to discover the
said error; but there can be no doubt that what can be corrected by a
writ of certiorari is an error of law and the said error must, on the
whole, be of such a character as would satisfy the test that it is an
error of law apparent on the face of the record. If a statutory
provision is reasonably capable of two constructions and one
construction has been adopted by the inferior Court or Tribunal, its
conclusion may not necessarily or always be open to correction by a
writ of certiorari. In our opinion, it is neither possible nor
desirable to attempt either to define or to describe adequately all
cases of errors which can be appropriately described as errors of law
apparent on the face of the record. Whether or not an impugned error
is an error of law and an error of law which is apparent on the face
of the record, must always depend upon the facts and circumstances of
each case and upon the nature and scope of the legal provision which
is alleged to have been misconstrued or contravened.”
11. In
Surya Dev Rai’s case, a two-Judge Bench, after threadbare
analysis of Articles 226 and 227 of the Constitution and considering
large number of judicial precedents, recorded the following
conclusions:
“(1)
Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115
of the Code of Civil Procedure cannot and does not affect in any
manner the jurisdiction of the High Court under Articles 226 and 227
of the Constitution.
(2) Interlocutory
orders, passed by the courts subordinate to the High Court, against
which remedy of revision has been excluded by CPC Amendment Act 46 of
1999 are nevertheless open to challenge in, and continue to be
subject to, certiorari and supervisory jurisdiction of the High
Court.
(3) Certiorari,
under Article 226 of the Constitution, is issued for correcting gross
errors of jurisdiction I.e. when a subordinate court is found to have
acted (I) without jurisdiction – by assuming jurisdiction where
there exists none, or (ii) in excess of its jurisdiction – by
overstepping or crossing the limits of jurisdiction, or (iii) acting
in flagrant disregard of law or the rules of procedure or acting in
violation of principles of natural justice where there is no
procedure specified, and thereby occasioning failure of justice.
(4) Supervisory
jurisdiction under Article 227 of the Constitution is exercised for
keeping the subordinate courts within the bounds of their
jurisdiction. When a subordinate court has assumed a jurisdiction
which it does not have or has failed to exercise a jurisdiction which
it does have or the jurisdiction though available is being exercised
by the court in a manner not permitted by law and failure of justice
or grave injustice has occasioned thereby, the High Court may step in
to exercise its supervisory jurisdiction.
(5) Be
it a writ of certiorari or the exercise of supervisory jurisdiction,
none is available to correct mere errors of fact or of law unless the
following requirements are satisfied: (I) the error is manifest and
apparent on the face of the proceedings such as when it is based on
clear ignorance or utter disregard of the provisions of law, and (ii)
a grave injustice or gross failure of justice has occasioned thereby.
(6) A
patent error is an error which is self-evident I.e. which can be
perceived or demonstrated without involving into any lengthy or
complicated argument or a long-drawn process of reasoning. Where two
inferences are reasonably possible and the subordinate court has
chosen to take one view, the error cannot be called gross or patent.
(7) The
power to issue a writ of certiorari and the supervisory jurisdiction
are to be exercised sparingly and only in appropriate cases where the
judicial conscience of the High Court dictates it to act lest a gross
failure of justice or grave injustice should occasion. Care, caution
and circumspection need to be exercised, when any of the abovesaid
two jurisdictions is sought to be invoked during the pendency of any
suit or proceedings in a subordinate court and the error though
calling for correction is yet capable of being corrected at the
conclusion of the proceedings in an appeal or revision preferred
thereagainst and entertaining a petition invoking certiorari or
supervisory jurisdiction of the High Court would obstruct the smooth
flow and/or early disposal of the suit or proceedings. The High Court
may feel inclined to intervene where the error is such, as, if not
corrected at that very moment, may become incapable of correction at
a later stage and refusal to intervene would result in travesty of
justice or where such refusal itself would result in prolonging of
the lis.
(8) The
High Court in exercise of certiorari or supervisory jurisdiction will
not convert itself into a court of appeal and indulge in
reappreciation or evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical character.
(9) In
practice, the parameters for exercising jurisdiction to issue a writ
of certiorari and those calling for exercise of supervisory
jurisdiction are almost similar and the width of jurisdiction
exercised by the High Courts in India unlike English courts has
almost obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari, the High
Court may annul or set aside the act, order or proceedings of the
subordinate courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High Court may
not only give suitable directions so as to guide the subordinate
court as to the manner in which it would act or proceed thereafter or
afresh, the High Court may in appropriate cases itself make an order
in supersession or substitution of the order of the subordinate court
as the court should have made in the facts and circumstances of the
case.”
A
reading of the impugned order shows that the learned Single Judge did
not find any jurisdictional error in the award of the Labour Court.
He also did not find that the award was vitiated by any error of law
apparent on the face of the record or that there was violation of
rules of natural justice. As a matter of fact, the learned Single
Judge rejected the argument of the corporation that termination of
the appellant’s service falls within the ambit of Section
2(oo)(bb) of the Act, and expressed unequivocal agreement with the
Labour Court that the action taken by the Managing Director of
corporation was contrary to Section 25G of the Act which embodies the
rule of last come first go. Notwithstanding this, the learned Single
Judge substituted the award of reinstatement of the appellant with
compensation of Rs.87,582/- by assuming that appellant was initially
appointed without complying with the equality clause enshrined in
Articles 14 and 16 of the Constitution of India and the relevant
regulations. While doing so, the learned Single Judge failed to
notice that in the reply filed on behalf of the corporation before
the Labour Court, the appellant’s claim for reinstatement with
back wages was not resisted on the ground that his initial
appointment was illegal or unconstitutional and that neither any
evidence was produced nor any argument was advanced in that regard.
Therefore, the Labour Court did not get any opportunity to consider
the issue whether reinstatement should be denied to the appellant by
applying the new jurisprudence developed by the superior courts in
recent years that the court should not pass an award which may result
in perpetuation of illegality. This being the position, the learned
Single Judge was not at all justified in entertaining the new plea
raised on behalf of the corporation for the first time during the
course of arguments and over turn an otherwise well reasoned award
passed by the Labour Court and deprive the appellant of what may be
the only source of his own sustenance and that of his family.
26. Judges
of the last Court in the largest democracy of the world have a duty
and the basic duty is to articulate the Constitutional goal which has
found such an eloquent utterance in the Preamble. If we look at our
Preamble, which has been recognised, a part of the Constitution in
His Holiness Kesavananda Bharati Sripadagalvaru and others vs. State
of Kerela and another – [1973 SC 1461], we can discern that as
divided in three parts. The first part is a declaration whereby
people of India adopted and gave to themselves the Constitution. The
second part is a resolution whereby people of India solemnly resolved
to constitute India into a sovereign, socialist, secular, democratic
republic. However, the most vital part is the promise and the promise
is to secure to all its citizens:
” JUSTICE,
social, economic and political;
LIBERTY
of thought, expression, belief, faith and worship;
EQUALITY
of status and of opportunity;
And
to promote among them all
FRATERNITY
assuring the dignity of the individual and the unity and
integrity of the Nation;”
[See
Justice R.C. Lahoti, Preamble- The Spirit and backbone of the
Constitution
of India, Anundoram Barooah law Lectures, Seventh Series, Eastern
Book Company, 2004, at p. 3]
27.
Judges and specially the judges of the highest Court have a vital
role to ensure that the promise is fulfilled. If the judges fail to
discharge their duty in making an effort to make the Preambular
promise a reality, they fail to uphold and abide by the Constitution
which is their oath of office. In my humble opinion, this has to be
put as high as that and should be equated with the conscience of this
Court.
28.
As early as in 1956, in a Constitution Bench judgment dealing with an
Article 32 petition, Justice Vivian Bose, while interpreting the
Article 14 of the Constitution, posed the following question:
“After
all, for whose benefit was the Constitution enacted?”
[Bidi
Supply Co. vs. Union of India and others – AIR 1956 SC 479 at Para
23, pg. 487]
29.
Having posed the question, the Learned Judge answered the same in his
inimitable words and which I may quote:
“I
am clear that the Constitution is not for the exclusive benefit of
Governments and States; it is not only for lawyers and politicians
and officials and those highly placed. It also exists for the common
man, for the poor and the humble, for those who have businesses
at stake, for the “butcher, the baker and the candlestick
maker”. It lays down for this land a “rule lof law”
as understood in the free democracies of the world. It constitutes
India into a Sovereign Democratic Republic and guarantees in every
page rights and freedom to the individual side by side and
consistent with the overriding power of the State to act for the
common good of all.”
[Ibid, Emphasis supplied)
30.
The essence of our Constitution was also explained by the eminent
jurist Palkhivala in the following words:
“Our
Constitution is primarily shaped and moulded for the common man.
It takes no account of “the portly presence of the potentates,
goodly in girth”. It is a Constitution not meant for the ruler
“but
the ranker, the tramp of the road,
The
slave with the sack on his shoulders pricked on with the goad,
The
man with too weighty a burden, too weary a load.””
[N.
A. Palkhivala, Our Constitution Defaced and Defiled, MacMillan,
1974, p. 29]
31
I am in entire agreement with the aforesaid interpretation of the
Constitution given by this Court and also by the eminent jurist.
32.
In this context another aspect is of some relevance and it was
pointed out by Justice Hidayatullah, as His Lordship was then, in
Naresh Shridhar Mirajkar and others vs. State of Maharastra and Anr.
– [AIR 1967 SC 1]. In a minority judgment, His Lordship held that the
judiciary is a State within the meaning of Art. 12. [See paras 100,
101 at page 28, 29 of the report]. This minority view of His Lordship
was endorsed by Justice Mathew in Kesavananda Bharati (supra) [at
page 1949, para 1717 of the report] and it was held that the State
under Article 12 would include the judiciary.
33.
This was again reiterated by Justice Mathew in the Constitution bench
judgment in the case of State of Kerela and another vs. N. M. Thomas
and others [AIR 1976 SC 490] where Justice Mathew’s view was the
majority view, though given separately. At para 89, page 515 of the
report, his Lordship held that under Article 12, `State’ would
include `Court’.
34.
In view of such an authoritative pronouncement the definition of
State under Article 12 encompass the judiciary and in Kesavananda
(supra) it was held that “judicial process” is also “state
action” [Para 1717, pg. 1949]
35.
That being the legal position, under Article 38 of the Constitution,
a duty is cast on the State, which includes the judiciary, to secure
a social order for the promotion of the welfare of the people.
Article 38(1) runs as follows:
“The
State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which
justice, social, economic and political, shall inform all the
institutions of the national life.”
This
is echoing the preambular promise
36.
Therefore, it is clearly the duty of the judiciary to promote a
social order in which justice, economic and political informs all the
institution of the national life. This was also made clear in
Kesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952
and His Lordship held that the Directive Principles nevertheless are:
“…fundamental
in the governance of the country and all the organs of the State,
including the judiciary are bound to enforce those directives. The
Fundamental Rights themselves have no fixed content; most of them are
mere empty vessels into which each generation must pour its content
in the light of its experience.”
37.
In view of such clear enunciation of the legal principles, I am in
clear agreement with Brother J. Singhvi that this Court has a duty to
interpret statutes with social welfare benefits in such a way as to
further the statutory goal and not to frustrate it. In doing so this
Court should make an effort to protect the rights of the weaker
sections of the society in view of the clear constitutional mandate
discussed above.
38.
Thus, social justice, the very signature tune of our Constitution and
being deeply embedded in our Constitutional ethos in a way is the
arch of the Constitution which ensures rights of the common man to be
interpreted in a meaningful way so that life can be lived with human
dignity.
39.
Commenting on the importance of Article 38 in the Constitutional
scheme, this court in Sri Srinivasa Theatre and Others vs. Government
of Tamil Nadu and others [(1992) 2 SCC 643], held that equality
before law is a dynamic concept having many facets. One facet- the
most commonly acknowledged- is that there shall be not be any
privileged person or class and that none shall be above the law. This
Court held that Art 38 contemplates an equal society [Para 10, pg.
651].
40.
In Indra Sawhney and Others vs. Union of India and Others [1992 Supp.
(3) SCC 217], the Constitution Bench of the Supreme Court held that:
“The
content of the expression “equality before law” is
illustrated not only by Articles 15 to 18 but also by the several
articles in Part IV, in particular, Articles 38, 39, 39-A, 41 and
46.”
[at
Paras 643, pg. 633]
41.
Therefore, the Judges of this Court are not mere phonographic
recorders but are empirical social scientists and the interpreters of
the social context in which they work. That is why it was said in
Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and
others – [(1979) 3 SCC 466], while interpreting the land reforms Act,
that beneficial construction has to be given to welfare legislation.
Justice Krishna Iyer, speaking for the Court, made it very clear that
even though the judges are “constitutional invigilators and
statutory interpreters” they should “also be responsive to
part IV of the Constitution being “one of the trinity of the
nation’s appointed instrumentalities in the transformation of the
socio-economic order”. The Learned Judge made it very clear that
when the Judges “decode social legislation, they must be
animated by a goal oriented approach” and the Learned Judge
opined, and if I may say so, unerringly, that in this country “the
judiciary is not a mere umpire, as some assume, but an activist
catalyst in the constitutional scheme.” [Para 1, p. 468]
42.
I am in entire agreement with the aforesaid view and I share the
anxiety of my Lord Brother Justice Singhvi about a disturbing
contrary trend which is discernible in recent times and which is
sought to be justified in the name of globalisation and
liberalisation of economy.
43.
I am of the view that any attempt to dilute the constitutional
imperatives in order to promote the so called trends of
“Globalisation”, may result in precarious consequences.
Reports of suicidal deaths of farmers in thousands from all over the
country along with escalation of terrorism throw dangerous signal.
Here if we may remember Tagore who several decades ago, in a slightly
different context, spoke of eventualities which may visit us in your
mad rush to ape western ways of life. Here if I may quote the
immortal words of Tagore:
“We
have for over a century been dragged by the prosperous West
behind its chariot, choked by the dust, deafened by the noise,
humbled by our own helplessness and overwhelmed by the speed. We
agreed to acknowledge that this chariot-drive was progress, and
the progress was civilization. If we ever ventured to ask
“progress toward what, and progress for whom”, it was
considered to be peculiarly and ridiculously oriental to
entertain such ideas about the absoluteness of progress. Of late,
a voice has come to us to take count not only of the scientific
perfection of the chariot but of the depth of the ditches lying in
its path.”
44.
How stunningly relevant are these words and how deep are the ditches
created in our society by the so called advance of globalization.”
12. The
Apex Court, in case of Telco Convoy Drivers Mazdoor Sangh and Anr. v.
State of Bihar and Others, reported in AIR 1989 SC 1565, observed in
Para.11 to 16 as under :
“11.
It is true that in considering the question of making a reference
under Section 10(1), the Government is entitled to form an opinion as
to whether an industrial dispute “exists or is apprehended”,
as urged by Mr. Shanti Bhusan. The formation of opinion as to whether
an industrial dispute “exists or is apprehended” is not the
same thing as to adjudicate the dispute itself on its merits. In the
instant case, as already stated, the dispute is as to whether the
convoy drivers are employees or workmen of TELCO, that is to say,
whether there is relationship of employer and employees between TELCO
and the convoy drivers. In considering the question whether a
reference should be made or not, the Deputy Labour Commissioner
and/or the Government have held that the convoy drivers are not
workmen and, accordingly, no reference can be made. Thus, the dispute
has been decided by the Government which is, undoubtedly not
permissible.
12.
It is, however, submitted on behalf of TELCO that unless there is
relationship of employer and employees or, in other words, unless
those who are raising the disputes are workmen, there cannot be any
existence of industrial dispute within the meaning of the term as
defined in Section 2(k) of the Act. It is urged that in order to form
an opinion as to whether an industrial dispute exists or is
apprehended, one of the factors that has to be considered by the
Government is whether the persons who are raising the disputes are
workmen or not within the meaning of the definition as contained in
Section 2(k) of the Act.
13.
Attractive though the contention is, we regret, we are unable to
accept the same. It is now well settled that, while exercising power
under Section 10(1) of the Act, the function of the appropriate
Government is an administrative function and not a judicial or quasi
judicial function, and that in performing this administrative
function the Government cannot delve into the merits of the dispute
and take upon itself the determination of the lis, which would
certainly be in excess of the power conferred on it by Section 10 of
the Act. See Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 :
(AIR 1985 SC 915) ; M.P. Irrigation Karamchari Sangh v. State of
M.P., (1985) 2 SCR 1019 : (AIR 1985 SC 860) ; Shambu Nath Goyal v.
Bank of Baroda, Jullundur, (1978) 2 SCR 793: (AIR 1978 SC 1088).
14.
Applying the principle laid down by this Court in the above
decisions, there can be no doubt that the Government was not
justified in deciding the dispute. Where, as in, the instant case,
the dispute is whether the persons raising the dispute are workmen or
not, the same cannot be decided by the Government in exercise of its
administrative function under Section 10(1) of the Act. As has been
held in M.P. Irrigation Karamchari Sangh’s case (supra), there may be
exceptionl cases in which the State Government may, on a proper
examination of the demand, come to a conclusion that the demands are
either perverse or frivolous and do not merit a reference. Further,
the Government should be very slow to attempt an examination of the
demand with a view to declining reference and Courts will always be
vigilant whenever the Government attempts to usurp the powers of the
Tribunal for adjudication of the valid disputes, and that to allow
the Government to do so would be to render Section 10 and Section
12(5) of the Act nugatory.
15.
We are, therefore, of the view that the State Government, which is
the appropriate Government, was not justified in adjudicating the
dispute, namely, whether the convoy drivers are workmen or employees
of TELCO or not and, accordingly, the impugned orders of the Deputy
Labour Commissioner acting on behalf of the Government and that of
the Government itself cannot be sustained.
16.
It has been already stated that we had given one more chance to the
Government to reconsider the matter and the Government after
reconsideration has come to the same conclusion that the convoy
drivers are not workmen of TELCO thereby adjudicating the dispute
itself. After having considered the facts and circumstances of the
case and having given our best consideration in the matter, we are of
the view that the dispute should be adjudicated by the Industrial
Tribunal and, as the Government has persistently declined to make a
reference, under Section 10(1) of the Act, we think we should direct
the Government to make such a reference. In several instances this
Court had to direct the Government to make a reference under Section
10(1) when the Government had declined to make such a reference and
this Court was of the view that such a reference should have been
made. See Sankari Cement Alai Thozhiladar Munnetra Sangam v. Govt. of
Tamilnadu, (1983) 1 Lab LJ 460; Ram Avtar Sharma v. State of Haryana,
(1985) 3 SCR 686 : (AIR 1985 SC 915); M. P. Irrigation Karamchari
Sangh v. State of M. P., (1985) 2 SCR 1019: (AIR 1985 SC 860); Nirmal
Singh v. State of Punjab, (1984) 2 Lab LJ 396 : (AIR 1984 SC 1619).”
13. In
light of aforesaid observations made by Apex Court as well as this
Court and considering such challenge, for that petitioner is having
alternative remedy to raise all these contentions before the Labour
Court. Such challenge cannot be entertained or encouraged by this
Court while exercising discretionary powers being extraordinary
jurisdiction of this Court under Article 226/227 of Constitution of
India. Therefore, contentions raised by learned advocate Mr.Gogia
cannot be accepted. Therefore, there is no substance in present
petition. Accordingly, present petition is dismissed summarily.
[
H.K.RATHOD, J. ]
(vipul)
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