IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 20/07/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.13235 of 2006
W.P. No.13236 of 2006
W.P. No.13237 of 2006
W.P. No.13265 of 2006
W.P. No.13266 of 2006
W.P. No.13267 of 2006
W.P. No.13970 of 2006
W.P. No.13971 of 2006
W.P. No.13972 of 2006
W.P. No.13973 of 2006
W.P. No.13974 of 2006
M. Sudalai Andi ..Petitioner in
WP.No.13235 of 2006
I. Rangaswamy ..Petitioner in
WP.No.13236 of 2006
S. Samy ..Petitioner in
WP.No.13235 of 2006
V.K. Elumalai ..Petitioner in
WP.No.13265 of 2006
D. Varadarajulu ..Petitioner in
WP.No.13266 of 2006
S. Elumalai ..Petitioner in
WP.No.13267 of 2006
P. Rajamanickam ..Petitioner in
WP.No.13970 of 2006
S. Mohammed Sulaiman ..Petitioner in
WP.No.13971 of 2006
D. Sivanandam ..Petitioner in
WP.No.13972 of 2006
R. Vairam ..Petitioner in
WP.No.13973 of 2006
P. Perumal ..Petitioner in
WP.No.13974 of 2006
-Vs-
1.Government of India
rep.by its Secretary,
Ministry of Labour,
Sharanshakthi Bhavan,
Rafi Marg,
New Delhi 1.
2.Food Corporation
of India,
rep.by its Senior
Regional Manager,
5/54, Greams Road,
Chennai 600 006. ..Respondents in all petitions
The above writ petitions have been filed under Article 226 of
Constitution of India, praying this Court to issue a writ of mandamus
directing the first respondent to refer the disputes of the respective
petitioners to the Industrial Tribunal, Second Floor, City Civil Court
Building, High Court Compound, Chennai-600 104, by issuing notification as the
Central Government Industrial Tribunal for deciding the disputes with a
direction to dispose of the Industrial Disputes so referred within a period of
six months.
!For Petitioners : Mr.S.Vaidyanathan
For 1st Respondent : Mr.S.Udayakumar
For 2nd Respondent : Mr.Thambusamy
:ORDER
The common prayer in the above writ petitions is to issue a writ of
mandamus directing the first respondent to refer the disputes raised by the
respective petitioners to the Industrial Tribunal (Central Government) by
issuing notification for deciding and dispose of the disputes within a period
of six months.
2. The petitioners claim that their age of retirement under the
second respondent is 60 years and the second respondent superanuated the
petitioners at the age of 58 years. The said reduction of age by the second
respondent from 60 years to 58 years was made without issuing any notice under
section 9A of the Industrial Disputes Act to alter the service conditions.
According to the petitioner, the Conciliation Officer viz. the Assistant
Labour Commissioner (Central), submitted failure report on 26.5.2005 with
regard to the disputes raised by the petitioners and the first respondent has
not referred the matter to the Labour Court and therefore these writ petitions
are filed.
3. The second respondent filed counter affidavit and stated that
the age of superannuation for departmental labourers of Food Corporation of
India remains 58 years even though the Labourers were allowed to work upto 60
years and the reduction of age of superannuation from 60 years to 58 years is
not an alteration of conditions of service and therefore section 9A of the
Industrial Disputes Act has no application to the facts of these cases.
4. The first respondent has not filed any counter affidavit.
However, the learned counsel appearing for the first respondent submitted that
the first respondent will consider the request of the petitioners either to
refer the matter or otherwise if a direction is issued.
5. The learned counsel appearing for the petitioners cited the
following decisions in support of his contentions.
(a) 1987 (1) LLJ 209
(V.Veerarajan and others v. Government of Tamil Nadu and Others)
(b) 1991 Supp (2) SCC 10
(Dhanbad colliery Karamchari Sangh v. Union of India)
(c) (1989) 3 SCC 271
(Telco Convoy Drivers Mazdoor Sangh v. State of Bihar)
(d) W.P.No.397 of 2006 (Sivanandha Steel Employees’ Union, Chennai
v. Labour Officer (Conciliation), Chennai and Others) dated
28.4.2006
(e) (2005) 13 SCC 42
(Air India Ltd. and others v. Vishal Capoor and others)
(f) 2006 (2) LLN 604
(Philips India Ltd., v. P.N. Thorat, Assistant Commissioner of
Labour and Conciliation Officer and others)
6. The learned counsel for the first respondent relied on the
following decisions.
(i) 1985 (1) LLJ 519
(M.P.Irrigation Karamchari Sangh v. State of M.P. and another)
(ii) 1987 (1) LLJ 177
(Shaw Wallace & Co. Ltd. v. State of Tamil Nadu represented by the
Commissioner and Secretary, Labour Department and others)
7. Let us first consider the decisions relied on by the learned
counsel appearing for the petitioners.
(a) In the first decision reported in 1987 (1) LLJ 209 (V.
Veerarajan and others v. Government of Tamil Nadu and Others) the Honourable
Supreme Court held that if the dispute in question raises a question of law
the appropriate Government should not purport to reach a final conclusion on
the said question of law because that would normally lie within the
jurisdiction of the Industrial Tribunal. Similarly, on disputed question of
fact, the appropriate Government cannot purport to reach final conclusions for
that again would be the province of the Industrial Tribunal.
(b) In 1991 Supp (2) SCC 10 (Dhanbad Colliery Karamchari Sangh v.
Union of India) in paragraph 3, the Supreme Court held as under,
“3. After hearing learned counsel for the parties and having
regard to the facts and circumstances of the case, we are of the opinion that
this appeal must succeed. The Central Government instead of referring the
dispute for adjudication to the appropriate Industrial Court under Section 10
of the Industrial Disputes Act, 1947, it itself decided the dispute which is
not permissible under the law. We, accordingly, allow the appeal, set aside
the order of the High Court and of the Central Government and direct the
Central Government to refer the dispute for adjudication to the appropriate
Industrial Court under Section 10 of the Industrial Disputes Act, 1947. We
further direct the Central Government to make the reference within three
months.”
(c) In (1989) 3 SCC 271 (Telco Convoy Drivers Mazdoor Sangh v.
State of Bihar), in paragraphs 13 to 15 the Honourable Supreme Court held
thus,
“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 quasijudicial 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 SCC 189);
M.P. Irrigation Karamchari Sangh v. State of M.P. ((1985) 2 SCC 103);
Shambhu Nath Goyal v. Bank of Baroda, Jullundur ((1978) 2 SCC 353).
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 case
((1985) 2 SCC 103), 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 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 i orders of the Deputy Labour Commissioner acting
on behalf of the government and that of the government itself cannot be
sustained.”
(d) In the recent decision of a Division Bench of this Court in
W.P.No.397 of 2006 (Sivanandha Steel Employees’ Union, Chennai v. Labour
Officer (Conciliation), Chennai and Others) dated 28.4.2006, this Court
directed to refer the dispute, if no conciliation is arrived at within a
period of four weeks.
(e) In (2005) 13 SCC 42 (Air India Ltd and others v. Vishal
Capoor and others), in paragraph 49, the Honourable Supreme Court gave
positive direction to refer the dispute, which is extracted hereunder,
“49. We, therefore, set aside the decision of the High Court and
allow the appeals. It is directed that the appropriate Government shall refer
the following questions for adjudication by the appropriate Tribunal:
1. Whether the 1998 settlement or any portion thereof is liable
to be set aside on the grounds of fraud, undue influence, etc. as alleged by
the Adhikari group ?
2. Whether the requirement of the ALTP licence was necessary for
co-pilots ?
3. Whether the Adhikari group was entitled to seniority over the
CPL-holders in the line seniority list ?
4. What is the legal effect of the Conciliation Officer’s
recommendation of the Adhikari group’s case and Air India’s acceptance
thereof?
5. To what relief are the parties entitled ?”
(f) A reference made to the Labour Court was challenged before the
Bombay High Court by the employer on the ground that industrial dispute does
not exist. A Division Bench of Bombay High Court in the decision reported in
2006 (2) LLN 604 (Philips India Ltd., and another v. P.N.Thorat, Assistant
Commissioner of Labour and Conciliation Officer and others) held that whether
there are triable issue or not has to be decided only by the Industrial
tribunal and not by the High Court under Article 226 of Constitution of India.
Paragraph 12 of the said decision can be usefully referred which reads 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 to 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 S.2(s)
of the Industrial Disputes 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 it 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.”
8. Now, let us consider the decisions relied on by the learned
counsel for the first respondent.
(i) In 1985 (1) LLJ 519 (M.P.Irrigation Karamchari Sangh v. State
of M.P. and another) the Honourable Supreme Court held that the question
relating to the conditions of service of employees was a matter primarily to
be decided by the Tribunal and the same cannot be adjudicated by the
Government and the Government should be slow to examine the merits of the
demand to decline reference. In paragraph 7 of the Judgment it is held thus,
“7. 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.
Government should be very slow to attempt an examination of the demand with a
view to decline reference and Courts will always be vigilant whenever the
Government attempts to usurp the powers of the Tribunal for adjudication of
valid disputes. To allow the Government to do so would be to render S.10 and
S.12(5) of the Industrial Disputes Act nugatory.”
(ii) In the decision of a Division Bench of this Court reported in
1 987 (1) LLJ 177 (Shaw Wallace & Co. Ltd. v. State of Tamil Nadu
represented by the Commissioner and Secretary, Labour Department and others),
in paragraph 32, the principles are summarised and it is held that making
reference is a rule and refusal to refer is an exception. Paragraph 32 reads
as under,
“32. On a final analysis, the following principles emerge:-
(1) The government would normally refer the dispute for adjudication;
(2) The Government may refuse to make reference, if-
(a) the claim is very stale; (b) the claim is opposed to the provisions of the Act; (c) the claim is inconsistent with any agreement between the parties; (d) the claim is patently frivolous; (e) the impact of the claim on the general relations between the employer
and the employees in the region is likely to be adverse;
(f) the person concerned is not a workman as defined by the Act;
(3) The Government should not act on irrelevant and extraneous
considerations;
(4) the Government should act honestly and bona fide;
(5) The Government should not embark on adjudication of the
dispute; and
(6) The Government should not refuse reference on the ground that
domestic enquiry was fairly and properly held and punishment awarded was
appropriate.”
9. As rightly submitted by the learned counsel for the
petitioner, the failure report has been submitted by the Assistant Labour
Commissioner (Central), Chennai, as early as on 26.5.2005 and till date the
first respondent has not taken any decision. Therefore, there is no purpose
in giving direction to the first respondent to decide the matter on merits at
this stage.
10. From the analysis of the above referred decisions of the
Honourable Supreme Court as well as Division Bench of this Court and having
regard to the failure report submitted by the Regional Labour Commissioner
(Central), Chennai-6, I am of the view that the first respondent is bound to
refer the disputes raised by the respective petitioners, as the disputes
cannot be adjudicated by the first respondent on merits. Whether the
petitioners are entitled to adjudication of disputes in their favour or not is
to be decided only by the Industrial Tribunal and not by the first respondent.
11. In view of the above findings, all the writ petitions are
allowed with a direction to the first respondent to refer the disputes raised
by the respective petitioners before the Industrial Tribunal ( Central
Government), Second Floor, City Civil Court Buildings, High Court Compound,
Chennai-600 104, within a period of six weeks from the date of receipt of copy
of this order and on such reference, the Tribunal shall dispose of the
disputes at the earliest. No costs.
vr
To
1. The Secretary,
Ministry of Labour,
Government of India,
Sharanshakthi Bhavan,
Rafi Marg, New Delhi 1.
2. The Senior Regional Manager,
Food Corporation of India,
5/54, Greams Road, Chennai 600 006.