IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:- 28.01.2009
Coram
The Honourable Mr. Justice K. CHANDRU
W.P. No.836 of 2000
A. Narayana Rao ... Petitioner
..Vs..
1. The Government of India,
Ministry of Labour,
rep. by its Under Secretary,
Shram Shakthi Bhavan,
Rafi Marg,
New Delhi 110 001.
2. The Manager,
Air India Ltd.,
Southern Region,
No.19, Marshalls Road,
Egmore,
Chennai 600 008. ... Respondents
Petition under Article 226 of The Constitution of India, praying to issue a writ of certiorarified mandamus, to call for the records of the 1st respondent No.L-11012/60/99-IR (C-I) dated 2.12.99 and quash the same thereby directing the first respondent to refer the petitioner's dispute for adjudication before the Industrial Tribunal, Chennai in accordance with law.
For Petitioner : Mr. Krishnanand
For Respondents : Mr. M. Gopikrishnan,
for R1
O R D E R
This writ petition has been filed, challenging the order of the Central Government dated 2.12.1999. By the impugned order, the first respondent, while exercising the power under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the I.D. Act”), refused to refer the industrial dispute relating to regularization of the petitioner, who was an ex employee of Air India Corporation/second respondent herein. The reason found in the impugned order is as follows:-
” It is reported that the workman remained deployed from time to time during the period from 1982-1988 and never beyond 165 days in any particular year on a works of casual and contingent nature. The dispute has been raised after a lapse of ten years after his last deployment. Hence no ID subsists.”
(Emphasis added)
2. It is seen from the records that the petitioner raised the industrial dispute before the Assistant Labour Commissioner(Central) under Section 2A read with Section 11 of the I.D. Act through his petition dated 12.4.1999. Notice was issued to the second respondent. The second respondent filed its reply to which, the petitioner had filed a rejoinder. Since the Conciliation Officer could not bring about any mediation, he sent his failure report to the Central Government vide his report dated 17.8.1999.
3. On receipt of the said report sent under Section 12(4) of I.D. Act, the Central Government passed the impugned order. In the impugned order, as seen above, two reasons were assigned. The first reason was that during the period 1982-1988, the petitioner never worked beyond 165 days in any particular year and his work was of casual and contingent nature. The second reason was that the dispute was raised after a lapse of ten years.
4. Mr. Krishnanand, learned counsel for the petitioner submitted that the petitioner, who is coming from poor background, was running from pillar to post. On coming to know that the services of his colleagues were regularized, he raised the dispute. The delay was not material for exercising the power of the Government under Section 10(1) of the Act. With regard to first reason, learned counsel submitted that in the guise of passing an order under Section 10(1) of the Act, the Government cannot go into the merits of the dispute.
5. Learned counsel placed reliance upon the judgment of the Supreme Court in the decision reported in the case of ASSTT. ENGINEER, CAD v. DHAN KUNWAR ((2006) 5 S.C.C. 481). In the said judgment, the Supreme Court held in paragraph 6 that in a matter of reference is concerned, no formula of universal application can be laid and it would depend on facts of each case.
6. But, in that case itself, the Supreme Court had set aside the award of the Labour Court on the ground that the dispute was raised after eight years and therefore, the workman was not eligible for any relief.
7. While doing so, the Supreme Court in paragraph 8 referred its earlier decision reported in the case of NEDUNGADI BANK LTD. v. K.P. MADHAVANKUTTY AND OTHERS (2000(2) SCC 455). Therefore, it is necessary to refer to paragraph 6 of the said decision and it reads as follows:-
” 6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.” (Emphasis added)
Since the judgment of NEDUNGADI’s case (cited supra) not having been disagreed by the Supreme Court and in fact, the same was referred to by the Supreme Court, the submission of the learned counsel for the petitioner cannot be countenanced by this Court.
8. The decision in SHAHAJI v. EXECUTIVE ENGINEER, PWD ((2005) 12 SCC 141) referred to was not a case of non reference. On the contrary, it proceeded to answer the question as to whether the Labour Court can decline to grant relief on the ground of delay even after an appropriate Government had made reference. In this context, NEDUNGADI’s case (cited supra) was distinguished. The said decision cannot be an authority for questioning the order of the Government for declining to refer a dispute.
9. Learned counsel also placed reliance on the decision reported in the case of AJAIB SINGH v. SIRHIND COOPERATIVE MARKETING-CUM-PROCESSING SERVICE SOCIETY LIMITED ((1999) 6 S.C.C. 82). The Supreme Court in SHAHAJI’s case (cited supra) had categorically held that AJAIB SINGH’s case had laid down the correct preposition of law. In AJAIB SINGH’s case, the Supreme Court only held that the Courts cannot prescribe a period of limitation, when the statute itself does not prescribe any limitation. In that particular case also, factually, after reference, the Management never raised any objection regarding delay before the Labour Court. It is not clear as to how the aforesaid judgment would be any assistance to the learned counsel appearing for the workman.
10. In the present case, the non employment of the workman arose on day on which he was denied employment. Section 2A of the Act only provides that an individual workman can raise a dispute regarding his non employment. Subsequently some workmen had got regularization cannot be a ground to raise a dispute regarding non employment caused by the second respondent. Though there is some merit in the submissions made by the learned counsel for the petitioner, on the first reason, but with reference to the question of delay, there is no explanation forthcoming.
11. Therefore, the order of the Central Government declining to refer the dispute does not suffer from any illegality or infirmity. The writ petition stands dismissed. No costs.
28.01.2009
Index:- Yes.
Internet:- Yes.
ssa.
To
1. The Government of India,
Ministry of Labour,
rep. by its Under Secretary,
Shram Shakthi Bhavan,
Rafi Marg,
New Delhi 110 001.
K. CHANDRU, J.
ssa.
2. The Manager,
Air India Ltd.,
Southern Region,
No.19, Marshalls Road,
Egmore,
Chennai 600 008.
W.P. No.836 of 2000
28.01.2009