{"id":37530,"date":"2011-04-19T00:00:00","date_gmt":"2011-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011"},"modified":"2019-03-16T16:57:01","modified_gmt":"2019-03-16T11:27:01","slug":"golden-vs-learned-on-19-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011","title":{"rendered":"Golden vs Learned on 19 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Golden vs Learned on 19 April, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/4032\/2011\t 57\/ 57\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 4032 of 2011\n \n\n \n\n\n \n\n \n\n\n \n\n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nGOLDEN\nJUBILEE CO-OPERATIVE CREDIT SOCIETY - Petitioner(s)\n \n\nVersus\n \n\nLEARNED\nASSISTANT LABOUR COMMISSIONER & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nANAND B GOGIA for\nPetitioner(s) : 1,MR RB GOGIA for Petitioner(s) : 1, \nNone for\nRespondent(s) : 1 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 19\/04\/2011 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr.Anand B. Gogia for petitioner – Society.\n<\/p>\n
2.\tIn
\npresent petition, petitioner has challenged order passed by Assistant
\nCommissioner of Labour, Junagadh under Section 10(1) of I.D.Act,1947,
\ndated 10.1.2011 wherein powers have been exercised by  Assistant
\nCommissioner of Labour, Junagadh under Section 10(1)(c) of
\nI.D.Act,1947 referring industrial dispute in relation to termination
\nfor adjudication to Labour Court, Junagadh. The Labour Court has also
\nissued notice for filing statement of claim as well as calling other
\nside to file written statement(Page-19) being a Reference No.3 of
\n2011. This notice has been produced on record by petitioner.\n<\/p>\n
3.\tLearned
\nadvocate Mr.Gogia has raised contention before this Court that
\nrespondent No.3 workman submitted resignation letter dated 13.3.2009
\naddressed to Chairman and Managing Committee of petitioner –
\nSociety and said resignation was placed before Executive Committee
\nwhich considered his request and took the sympathetic view of
\naccepting his resignation and did not proceed for taking disciplinary
\nand criminal action and thereafter, all dues paid to respondent No.3
\non 14.3.2009 totalling to Rs.2,45,284\/-. The relevant vouchers signed
\nby respondent No.3 has been produced on record. The respondent No.3
\nhas raised industrial dispute after 14 months while giving notice
\ndated 10.5.2010 through his Advocate, alleging that his services were
\nterminated without inquiry by obtaining resignation by duress from
\nhim which letter was replied on 20.5.2010 by petitioner through
\nAdvocate explaining facts that client had tendered resignation which
\nwas accepted by Managing Committee. In response to aforesaid dispute
\nthrough notice dated 10.5.2010 raised by respondent No.3 and for
\nthat,  Assistant Commissioner of Labour has initiated conciliation
\nproceedings and after calling petitioner and giving opportunity of
\nhearing,  the Assistant Commissioner of Labour come to conclusion
\nthat industrial dispute exists between both parties, which referred
\nfor adjudication to Labour Court, Junagadh. The contention raised by
\nlearned advocate Mr.Gogia that aforesaid order of reference passed by
\nrespondent No.2 without application of mind and contrary to record
\nand therefore, it has been considered to be a perverse on the face of
\nit. He also raised another contention that procedure under Section
\n12(5) of the I.D.Act,1947 has not been followed by Assistant
\nCommissioner of Labour and therefore, order of reference is bad. He
\nalso raised contention that reference has been made mechanically
\nwithout reading and appreciating relevant material made available
\nbefore   Assistant Commissioner of Labour by petitioner –
\nsociety.\n<\/p>\n
4.\tI
\nhave considered aforesaid contentions raised by learned advocate
\nMr.Gogia for petitioner. Section-10 of I.D.Act,1947 gives powers to
\nappropriate Government when he is of opinion that any industrial
\ndispute exists or his apprehended, it may at any time by order in
\nwriting refer the dispute or any matter appearing to be connected
\nwith or relevant to dispute if it relates to any matter specified in
\nsecond schedule to Labour Court for adjudication. The Second Schedule
\nof I.D.Act,1947 under Section 7 of I.D.Act,1947 where it is
\nspecified that matters within jurisdiction of Labour Court and Item
\nNo.3 provides discharge or dismissal workman including reinstatement
\nof, or grant of relief to, workmen wrongfully dismissed, is covered
\nby Second Schedule. Accordingly, industrial dispute raised by workman
\nwhich has been referred for adjudication to Labour Court, Junagadh.
\nThe schedule of industrial dispute suggests that whether  order of
\ntermination dated 13.5.2009  is legal or not and whether workman is
\nentitled relief of reinstatement with back wages of interim period or
\nnot. Therefore, contention raised by learned advocate Mr.Gogia cannot
\nbe accepted in light of facts that industrial dispute has been raised
\nagainst so called resignation which has been obtained by petitioner
\nwhile serving notice through Advocate by workman where a specific
\ncontention has been raised that resignation has been obtained by
\nadopting coercive measure and by duress and that fact cannot be
\nexamined by Assistant Commissioner of Labour while exercising powers
\nunder Section 10(1) (c) of I.D.Act,1947. The view taken by Apex Court
\nin case of Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of
\nBihar and Others,<\/a> reported in AIR 1989 SC 1565, that while
\nconsidering industrial dispute raised by workman, merits cannot be
\nexamined by appropriate Government. Therefore, in facts of this case
\nalso, Assistant Commissioner of Labour, Junagadh has considered
\nmerely an industrial dispute raised by workman against his so called
\nresignation and that considered to be an industrial dispute exists
\nbetween parties and accordingly, with application of mind industrial
\ndispute has been referred for adjudication by appropriate Government
\nto Labour Court, Junagadh. The contention raised by learned advocate
\nMr.Gogia that proceedings under section 12(5) of I.D.Act,1947 has not
\nbeen initiated or followed by Assistant Commissioner of Labour,
\ncannot be accepted because this industrial dispute raised by workman
\nunder Section 2A of I.D.Act,1947 being an individual dispute against
\ntermination, for which a detailed proceedings or procedure as
\ncontemplated under Section 12 of I.D.Act,1947 is not necessary to be
\nfollowed because it is an individual industrial dispute raised by
\nworkman under Section 2A of I.D.Act,1947. For that, conciliation
\nproceedings have been commenced before Assistant Commissioner of
\nLabour and thereafter, both parties are not agreed for settlement and
\nultimately, this dispute remained in existence after conciliation and
\ntherefore, it has been referred for adjudication to Labour Court,
\nJunagadh. Section-2A of I.D.Act,1947 provides that where any employer
\ndischarged, dismissed, retrenched or otherwise terminates services of
\nan individual workman, any dispute or difference between that workman
\nand his employer connected with or arising out of such discharge,
\ndismissal, retrenchment or termination shall be deemed to be an
\nindustrial dispute notwithstanding with any other workman nor any
\nUnion of workman is party to dispute. Therefore, steps to make
\nstatutory provisions enabling workman to approach Labour Court or
\nIndustrial Tribunal directly without requirement of reference by
\nGovernment in case of dispute governed by Section 2A was held to be
\nappropriate by Apex Court in case of Hospital Employees Union v.
\nUnion of India,<\/a> reported in 2003 I LLJ (SC) 1127. Therefore, as per
\nSection-12, detailed procedure is not required to be followed because
\nthat procedure is required to be followed when industrial dispute
\nraised by number of workmen and not by an individual workman or it
\nhas been espoused by Union including strike notice given under
\nSection 22 of I.D.Act,1947 in case of public utility service.
\nTherefore, contention raised before this Court for first time by
\nlearned advocate Mr.Gogia which was not raised before Assistant
\nCommissioner of Labour, cannot be accepted and such contention cannot
\nbe entertained by this Court. Otherwise also, legal procedure has
\nbeen followed by  Assistant Commissioner of Labour for making
\nreference of industrial dispute which was exist between both parties
\nand specifying requirement of Section 2A of I.D.Act,1947 and
\ntherefore, according to my opinion, Assistant Commissioner of Labour
\nhas applied mind and considered notice (page-62) dated 10.5.2010,
\nserved by workman through Advocate, challenging so called resignation
\nwhich has been obtained by petitioner. Therefore, contention which
\nhas been raised by learned advocate Mr.Gogia cannot be accepted.\n<\/p>\n
4.1\tThe
\ndifference between proceedings filed by workman under Section 2A
\nbeing an individual dispute and industrial dispute raised by Union,
\nfor both a separate machinery has been provided by statutory
\nprovisions under I.D.Act,1947. This aspect in detailed has been
\nexamined by this Court in case of Ravjibhai Khodabhai Devara v. Union
\nof India, reported in 2008 (17) GHJ 452. Relevant discussion made in
\naforesaid judgment are in Para.17 to 19, 21 to 32, 38 to 40, 45, 55
\nto 57, 59 to 63 are quoted as under :\n<\/p>\n
“17.\t\tNow,
\nconsidering the definition of Industrial Dispute u\/s.2(k) means any
\ndispute or difference between employers and employers or between
\nemployers and workmen or between workmen and workmen, which is
\nconnected with the employment or non-employment or the terms of
\nemployment or with the conditions of labour of any persons.
\nTherefore, if complaint u\/s. 2A is filed by workman under the
\nprovision of I.D. Act, then, appropriate Government has to consider
\nwhether such complaint is satisfied requirement of Industrial Dispute
\nor not, and if appropriate Government is having opinion that
\nindustrial dispute exists or is apprehended, then he shall have to
\nrefer for adjudication to Labour Court\/Industrial Tribunal subject to
\nthat employer covered by definition of “Industry”.  So,
\nwhatever opinions are necessary for complaint filed by workman, who
\nsatisfied requirement of Section 2(s) in respect to industrial
\ndispute must have to be satisfied requirement of Section 2(k) and
\nagainst whom dispute is raised, he must have to be satisfied that it
\nis covered by definition of Industry under Section 2(j).\n<\/p>\n
18.\t\tTherefore,
\nappropriate Government should not have to go into the detailed
\nprocedure after conciliation proceeding is come to an end to submit
\nfailure report u\/s.12(4) and thereafter, appropriate Government has
\nto formed the prima facie opinion or to satisfy whether dispute can
\nbe referred for adjudication or not.  The definition of employer is
\ngiven u\/s 2(g).\n<\/p>\n
19.\t\tIn
\nthis case, what happened that appropriate Government has followed
\nprocedure u\/s.12, which is not necessary in accordance with law.  The
\nsection 12, duties of Conciliation Officer, where any industrial
\ndispute exists or is apprehended, the Conciliation Officer may, or
\nwhere the dispute relates to a public utility service and a notice
\nu\/s.22 has been given, shall, hold conciliation proceedings in the
\nprescribed manner.  So, subsection 1 of Section 12 suggest that
\nwhether any industrial dispute exists or is apprehended, where the
\ndispute relates to public utility service and notice u\/s 22 has been
\ngiven, otherwise to power u\/s 12 should not have to be exercised by
\nappropriate Government including Conciliation Officer.    Under
\nSection 12, the separate detail procedure prescribed, there is a
\npurpose behind it that industrial dispute exists or apprehended in
\nrespect to public utility service and strike notice u\/s 22 is given
\nby Union, then, only detailed procedure is to be followed by
\nConciliation Officer.  The Section 12 suggests that Union shall have
\nto espouse the cause of dispute.  The individual employee has not to
\ngive strike notice u\/s 22 in respect to public utility service.\n<\/p>\n
21.\t\tThere
\nis a one order of appropriate Government u\/s 12(5) and there is one
\norder of appropriate Government u\/s 10(1), both are having separate
\ndetails and independent procedure, is to be followed by appropriate
\nGovernment when such dispute raised by Union and workman.\n<\/p>\n
22.\t\tIn
\nthis case, after filing complaint by workman, which is at page 18 and
\n19 dated 21\/10\/1999, it is not the industrial dispute raised by
\nworkman relating to public utility service given strike notice u\/s
\n22, but it was the dispute by way of filing complaint under section
\n2A raised by workman in respect to his termination. Even though, the
\nprocedure was followed by appropriate Government u\/s 12 of I. D. Act
\n1947, which is not appropriate procedure is to be followed by
\nappropriate Government because it is not the dispute raised by Union
\nin respect to public utility service give strike notice u\/s 22 of the
\nI. D. Act 1947.\n<\/p>\n
23.\t\tTherefore,
\nentire procedure, which has been followed by appropriate Government
\nafter receiving complaint from workman sending failure report u\/s
\n12(4) by Conciliation Officer to the Secretary, Government of India,
\nMinistry of Labour dated 25\/10\/2000 and thereafter, appropriate
\nGovernment has decided that prima facie, this Ministry does not
\nconsider this dispute fit for adjudication.\n<\/p>\n
24.\t\tUnder
\nsection 10(1), the appropriate Government has no power to consider
\nthe case for prime facie opinion or there is no necessity for
\nappropriate Government to arrive satisfaction.\n<\/p>\n
25.\t\tTherefore,
\naccording to my opinion, the order passed by appropriate Government
\ndated 30\/1\/2001 rejecting to refer the industrial dispute for
\nadjudication while exercising power u\/s 12(5) of the I. D. Act 1947
\nis without jurisdiction, but appropriate Government has to consider
\nthe complaint u\/s 2A while exercising the power u\/s 10 subsection 1
\nof I. D. Act 1947.\n<\/p>\n
26.\t\tThis
\nis the basic difference not properly followed procedure by
\nappropriate Government being Central Government.  Since many years
\nthe appropriate Central Government is understood that any kind of
\nindustrial dispute whether it cover termination, discharge or
\ndismissal or not even though they should have to follow the procedure
\nas required u\/s 12 of I. D. Act 1947.  That concept and opinion is
\nwrong amounts to misconception of law by appropriate Government being
\nCentral Government.\n<\/p>\n
27.\t\tTherefore,
\naccording to my opinion, the order passed by appropriate Government
\ndated 30\/1\/2001 is without jurisdiction required to be set aside now
\nonly on the ground that different procedure has been followed by
\nappropriate Government being Central Government.\n<\/p>\n
28.\t\tNow,
\nsecond question is that though it is not necessary to deal with but
\nalso dealt with it, because it has been raised before this Court.
\nLearned advocate Mr. Malkan in SCA No.7155\/2002, dated 19\/10\/2002 has
\nrelied upon the decision of Apex Court wherein, the Apex Court has
\nconsidered the case of Secretary Indian Tea Association v. Ajit
\nKumar Barat and Others<\/a> reported in AIR 2000 SC 915.\n<\/p>\n
29.\t\tTherefore,
\nquestion is that whether appropriate Government can decide the
\nmerits\/dispute while arriving prima facie opinion or not and what is
\nthe meaning of prima facie opinion and what is the meaning of
\nsatisfaction.  These are not discussed in aforesaid decision.\n<\/p>\n
30.\t\tSection
\n12(5), not suggests the prima facie opinion, but section suggest
\nsatisfaction.  Therefore, in light of this, the reason, which has
\nbeen given by appropriate Government in facts of present case can be
\nconsidered to be merely opinion or prima facie observations or
\nsatisfaction of the appropriate Government. The appropriate
\nGovernment has used to give reason on prima facie as it has been used
\nin Apex Court decision as referred above case in the Secretary,
\nIndian Tea Association (supra).\n<\/p>\n
31.\t\tThe
\nIndustrial dispute raised by workman or Union if appropriate
\nGovernment is having power in light of the satisfaction to decide the
\ndispute, then, there is no need to constitute Labour Court or
\nIndustrial Tribunal under the Provisions of I. D. Act 1947.  The
\npower to adjudicate the dispute is within the jurisdiction of Labour
\nCourt\/Industrial Tribunal. A moment, the appropriate Government comes
\nto conclusion that workman has failed to establish his case of
\ncontinuous employment during the relevant period or to disprove the
\nfact that he has self employed, these are the clear finding of fact
\nto have decision on merits as if that appropriate Government has
\nadjudicated the dispute like Labour Court.  It is not the prima facie
\nopinion, it is not remained up to prima facie opinion, but
\nappropriate Government has given further extend his jurisdiction to
\ndecide the dispute being adjudication, which amounts against the
\nprincipal of natural justice because while passing such kind of order
\ndeclined to refer such dispute the right of workman or Union is come
\nto end to have further machinery under the provisions of I. D. Act
\n1947.\n<\/p>\n
32.\t\tTherefore,
\nunder statutory provisions, the legislation by his wisdom not given
\npower to appropriate Government to adjudicate the dispute.  Merely,
\nappropriate Government has power to seen whether industrial dispute
\nis exists or not if there is a  dispute between employer and
\nemployee, it covers the difference of opinion, relating to
\nemployment\/non employment or conditions of service is enough to refer
\nthe dispute for adjudication.  No further elaborate inquiry or
\ndetermination of dispute is necessary.\n<\/p>\n
38.\t\tI
\nhave considered their submissions and I have also considered the
\ndecision given by this Court (Coram : Honourable Mr. Justice Ravi R.
\nTripathi) in SCA no. 7155\/2002 dated 19\/10\/2002. Heavy reliance is
\nplaced by both the learned advocates on Apex Court decision in case
\nof the Secretary, Indian Tea Association Vs. Ajit Kumar Barat
\nreported in AIR 2000 SC 915, where first time Apex Court has
\nconsidered that appropriate Government can consider the dispute on
\nprima facie whether dispute is an industrial dispute or not or
\nwhether workmen is workmen or not within the meaning of Section 2(s)
\nof I. D. Act 1947.  I have gone through the aforesaid decision, where
\nApex Court has come to conclusion that whether dispute raised by
\nworkman is workman or not.\n<\/p>\n
39.\t\tAccording
\nto Apex Court decision, the appropriate Government has to form the
\nopinion whether the employee is workman or not and thereafter, has to
\nconsider whether an industrial dispute exists or is apprehended or
\nnot.  Relevant para 11 is quoted as under:\n<\/p>\n
“11.\t\tFrom
\nthe order of the State Government we find that while deciding the
\nquestion whether respondent NO.1 as a workman, it took into
\nconsideration the salary and allowances of respondent No.1 drawn at
\nthe relevant time and also the nature of work. Respondent No.1 who
\nhas appeared in person did not dispute the salary and allowances
\netc., as indicated in the order of the Government but urged that his
\nresponsibilities were neither supervisory nor managerial in nature.”\n<\/p>\n
40.\t\tThe
\nbare perusal of para 11 as referred above in respect to salary and
\nallowances of respondent no. 1 workman drawn at the relevant time and
\nalso nature of work. The respondent no. 1, who is appeared in
\npresence of officer did not dispute the salary and allowances as
\nindicated in the order of Government, but dispute is responsibility
\nwhere neither supervising nor managerial in nature.  The para 12 is
\nalso equally relevant which is quoted as under:\n<\/p>\n
“12.\n<\/p>\n
Mr. Gupta, learned senior counsel appearing for the appellant has
\ndrawn out attention to the circular dated 30th March; 1994 issued by
\nthe appellant-association. This circular indicates duties of
\nrespondent No. 1 who was functioning as a Joint Secretary at the
\nrelevant time and we find his duties were to deal with all legal
\nmatters and Court proceedings, labour and land laws and publications
\n(Labour legislations Labour welfare). We also find from the records
\nthat respondent No. 1 had power to sanction expenses incurred in
\nlitigation by the appellant. On the above materials on record the
\nState Government rightly formed the opinion that respondent No. 1 was
\nnot a workman.”\n<\/p>\n
45.\t\tRecently,
\nthe Division Bench of the Bombay High Court in case of Bhartiya
\nJanata Kamgar Mahasangh, Maharashtra, Nagpur v. Government of India,
\nUnder Secretary, Ministry of Labour, Delhi and Another
\nreported in 2008 (1) LLJ page 298.  In this case
\nCentral Government has decided that there was no relationship of
\nemployer and employee between party concerned. The Court held that it
\nwas only an Industrial Tribunal\/Court that could determine whether
\ncontractor through the each workman were engaged was mere
\nruse\/camouflage to evade compliance with various beneficial Labour
\nlegislations.  The Division Bench of Bombay High Court has considered
\nvarious decision on the subject including the Secretary Indian Tea
\nAssociation (supra) case.  Relevant para 8 and 9 are quoted as under:\n<\/p>\n
“8.\tWe
\nhave carefully considered the submissions made by the learned counsel
\nfor the parties and perused the records and the judgment to relied
\nupon by the respective counsel. It is well settled by catena of
\ndecisions of the Apex Court that the appropriate Government exercises
\nadministrative function under Section 10(1) of the Act and the
\nfunction is neither judicial nor quasi judicial. Under Section
\n12(5) of the Act the appropriate Government can refuse to make
\nreference. On a consideration of report under sub Section 4 of
\nSection 12 of the Act if the appropriate Government is satisfied that
\nthere is a case for reference to Labour Court or Tribunal as the case
\nmay be, it may make such reference. Where the appropriate government
\ndoes not make a reference it has to record and communicate the
\nreasons thereof to the parties concerned. No doubt, if on the basis
\nof the material before the appropriate Government the appropriate
\nGovernment comes to the conclusion that there is no industrial
\ndispute and upon admitted facts the reference is not warranted the
\nappropriate Government would be within its jurisdiction to refuse to
\nmake reference and refuse to make reference by giving reasons in
\nterms of Section 12(5) of the Act.\n<\/p>\n
9.\tIn
\nthe present case perusal of the records and more particularly failure
\nreport submitted by the conciliation officer discloses that according
\nto the petitioner the contractor entered into between the respondent
\nNo.2 and the contractor was sham and bogus and was entered into only
\nto defeat the legitimate claims of the seven workmen. According to
\nthe petitioner, since the contract was sham and bogus the seven
\nworkmen were deemed to be regular employees of respondent No.2 and,
\ntherefore, their termination was illegal. In the case of Telco
\nConvoy Drivers Mazdoor Sangh and Another v. State of Bihar and Others<\/a>
\n(supra) the appellant raised
\ndispute that 900 convoy drivers should be made permanent by the
\nmanagement and they should be given all facilities as were available
\nto the permanent employees of Telco. The said demand proceeded on the
\nbasis that the convoy drivers were all workmen of Telco. The
\nappropriate Government refused to make reference on the ground that
\nthere was no relationship of master and servant between the said
\nconvoy drivers and the Telco. The appellant challenged the action of
\nthe Government of refusing to make reference on the ground that the
\nappellant had filed to satisfy that they were employed either by
\nTelco or by Telco Contract Association. In this factual back ground
\nthe Apex Court while allowing the appeal filed by the Appellate Telco
\nConvoy Drivers Mazdoor Sangh and Another observed in paragraphs 13
\nand 14 as under :\n<\/p>\n
 “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.,<\/a> (1985) 2 SCR 1019 : (AIR 1985 SC 860) ; Shambu Nath Goyal v. Bank of Baroda, Jullundur,<\/a> (1978) 2 SCR 793: (AIR 1978 SC 1088).\n<\/p>\n
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.”\n<\/p>\n
\tIn
\nSteel Authority of India Ltd., and Others v. National Union
\nWaterfront Workers and Others<\/a> (supra), the Apex Court in paragraphs
\n119(5) and 126 of the judgment observed thus 2001-II-LLJ-1087 at
\np.1132 :\n<\/p>\n
“119(5).\n<\/p>\n
On issuance of prohibition notification under S. 10(1) of the CLRA
\nAct prohibiting employment of contract labour or otherwise, in an
\nindustrial dispute brought before it by any contract labour in regard
\nto conditions of service, the industrial adjudicator will have to
\nconsider the question whether the contractor has been interposed
\neither on the ground of having undertaken to produce any given result
\nfor the establishment or for supply of contract labour for work of
\nthe establishment under a genuine contract or is a mere
\nruse\/camouflage to evade compliance of various beneficial
\nlegislations so as to deprive the workers of the benefit thereunder.
\nIf the contract is found to be genuine but a mere camouflage, the
\nso-called contract labour will have to be treated as employees of the
\nprincipal employer who shall be directed to regularize the services
\nof the contract labour in the concerned establishment subject to
\nconditions as may be specified by it for that purpose in the light of
\npara 6 hereunder.\n<\/p>\n
120.
\nWe have used the expression “industrial adjudicator” by
\ndesign as determination of the questions aforementioned requires
\ninquiry into disputed question of facts which cannot conveniently be
\nmade by High Courts in exercise of jurisdiction under Art. 226 of the
\nConstitution. Therefore, in such cases the appropriate authority to
\ngo into those issues will be Industrial Tribunal \/ Court whose
\ndetermination will be amenable to judicial review.”\n<\/p>\n
55.\t\tSection
\n12 is having come into effect only in case of industrial dispute
\nespouse by Union relates to public utility service and receiving
\nstrike notice u\/s 22 of I. D. Act 1947.  The Section 12 subsection 1
\nis very clear, even though, the individual complaint of workman
\nrelates to dismissal, discharge and termination, no conciliation
\nproceeding is required by appropriate Government except to see that
\nwhether industrial dispute is exists or not and is there any
\napprehended dispute then dispute must have to be referred for
\nadjudication.  No reason is necessary for referring dispute for
\nadjudication.\n<\/p>\n
56.\t\tIn
\nfact of this case, though industrial dispute was raised by workman
\nagainst termination even though power has been exercised u\/s 12 by
\ninitiating conciliation proceedings, which is without jurisdiction.
\nThe State Government has rightly followed the procedure after
\nreceiving the complaint against dismissal, discharge and termination.
\n After receiving complaint by Assistant Commissioner of Labour, who
\nis having power, which has been delegated by State Government to
\nrefer the dispute for adjudication to Labour Court.  Therefore,
\nappropriate Government being Central Government has to consider the
\ndefect remaining in following procedure in case of dismissal,
\ndischarge and termination.  The decision, which is under challenged,
\nwhere Central Government being appropriate Government has decided the
\nmerits, for which appropriate Government has no jurisdiction to
\nadjudicate the dispute and to give finding on merits.\n<\/p>\n
57.\t\tThe
\nview taken by Apex Court in case of Telco Convoy Drivers Mazdoor
\nSangh and another Vs. State of Bihar and Others, reported in AIR 1989
\nSC 1565 is binding to Central Government.\n<\/p>\n
59.\t\tConsidering
\nthe aforesaid sections, dispute relating to termination is covered by
\nSection 2k being Industrial Dispute. Section 2A is that individual
\nworkmen have right to raise dispute against termination without the
\nhelp of Union by way of filling individual complaint before
\nConciliation Officer.\n<\/p>\n
60.\t\tSection
\n10 provides the power of appropriate Government to refer the
\nindustrial dispute if it exists or apprehended and section 12,
\nprovide the detailed procedure when strike notice given by Union in
\nrespect to industrial dispute relating to public utility service.\n<\/p>\n
61.\t\tIn
\nthis case, present respondent Bank is not public utility service.
\nTherefore, complaint u\/s 2A was filed by workman.  It is not a
\ngeneral industrial dispute which covered or concerned with the
\nworkmen working with Industry.  Therefore, Section 12 is not
\napplicable to the fact of this case, even though, appropriate
\nGovernment has followed procedure u\/s 12, which is without
\njurisdiction and therefore, decision taken u\/s 12 subsection 5 is
\nalso without jurisdiction.\n<\/p>\n
62.\tIt
\nis necessary to consider the legal harassment which has been made to
\nconcerned petitioner by appropriate Government while adopting wrong
\nprocedure resulted into wrong order. The service of petitioner was
\nterminated on 11st August 1999. He raised industrial
\ndispute on 4th October 1999 and appropriate Government
\ndecided on 30th January 2001 having the opinion not to
\nrefer the industrial dispute for adjudication. The petition is filed
\nbefore this Court in the year 2001 which is remained pending before
\nthis Court for about seven years and now, today, this Court has
\ndecided the petition. Therefore, a petitioner who has to wait because
\nof legal fight for a period of more than eight years, till date,
\nwhether his termination is legal or not, that question is not
\nreferred for adjudication remained without decision. The delay caused
\nby appropriate Government while adopting wrong procedure and forming
\nan opinion as if adjudicating the dispute and thereafter, matter
\nremained pending before this Court. A poor employee is a sufferer who
\nis without work remained unemployed for a period of more than eight
\nyears. After dispute will refer for adjudication to Industrial
\nTribunal, when question of granting the back wages arise for interim
\nperiod, whether at that occasion, Labour Court grant it or not
\nbecause of delay in referring the dispute to the Labour Court.
\nUltimately, sufferer is a poor casual employee who remained without
\nwork and wages for a period of more than eight years. The appropriate
\nGovernment has to think twice before refusing to refer the industrial
\ndispute when it relates to dismissal\/discharge and termination,
\nbecause, ultimately, not to refer the dispute amounts to deny the
\nremedy to the concerned workman. If dispute is not referred, then,
\nworkman remained without remedy because Civil Court has no
\njurisdiction when order of termination passed under the provisions of
\nservice rules. No other Court has jurisdiction which gives remedy to
\nthe workman to challenge his termination. Therefore, in such
\ncircumstances, normally, unless dispute is raised a totally frivolous
\none ex facie, otherwise, rule is to make a reference. The Apex
\nCourt had considered the scope of power of appropriate Government
\nunder the provisions of Industrial Disputes Act, 1947 in case of
\nRajasthan State Road Transport Corporation and Another etc., v.
\nKrishna Kant etc., reported in 1995-II-LLJ-728.
\nThis decision is given by Hon’ble bench consisting of three judges of
\nApex Court. In the said decision, the Apex Court has command to the
\nParliament and the State Legislature to make the provisions enabling
\na workman to approach the Labour Court, Industrial Tribunal directly
\ni.e. with the requirement of a reference by the Government in case of
\nindustrial disputes covered by Section 2A of the Industrial Disputes
\nAct, 1947. This would give a long way in removing the misgivings with
\nrespect to the effectiveness of the remedies provided by the
\nindustrial Disputes Act. The recommendations made by Apex Court in
\nthe year of 1995 after a period of more
\nthan 12 years, Central Government and State Legislature
\nhaving no time to make the amendment in the Industrial Disputes Act
\nwhich facilitate the remedy to the workman against
\ndismissal\/discharge and termination, so, unnecessary time may not be
\nconsumed in conciliation proceedings and workman can straightway
\napproached the Labour Court and challenge the termination or
\ndismissal. In Bombay Industrial Relation Act, 1946, under Section
\n78\/79, an employee who governed by BIR Act, 1946 entitled to
\nchallenge termination straightway by filing an application before the
\nLabour Court. The purpose behind it that time consuming by
\nappropriate Government for taking decision to refer or not to refer
\nthe dispute is more than one year period and in case if dispute is
\nmore than one year period and in case if dispute is not referred,
\nthen, it will be more than five to ten years for deciding the
\ndecision of appropriate Government. This recommendations of Apex
\nCourt as referred above require immediate action by appropriate
\nGovernment either Central Government or State Government. The
\nrelevant discussion of Apex Court making certain observations about
\npower of appropriate Government in respect to industrial dispute
\nunder Section 2A are relevant, therefore, the same are quoted as
\nunder :\n<\/p>\n
“18.\n<\/p>\n
The expression “Industrial Dispute” is defined in Section
\n2(k) to mean any dispute or difference (i) between employers and
\nemployers; (ii) between employers and workmen; and (iii) between
\nworkmen and workmen, provided such dispute is connected with the
\nemployment, non-employment, terms of employment or conditions of
\nlabour of any person. It is well settled by several decisions of this
\ncourt that a dispute between the employer and an individual workman
\ndoes not constitute an industrial dispute unless the cause of the
\nworkman is espoused by a body of workmen [See Bombay Union of
\nJournalist v. “The Hindu”, (1961)2 Lab LJ 436 : (AIR 1963
\nSC 318)]. Of course, where the dispute concerns the body of the
\nworkers as  a whole or to a section thereof, it is an industrial
\ndispute. It is precisely for this reason that Section 2-A was
\ninserted by Amendment Act 35 of 1965. It says, “where any
\nemployer discharges, dismisses, retrenches or otherwise terminates
\nthe services of an individual workman, any dispute or difference
\nbetween that workman and his employer connected with, or arising out
\nof, such discharge, dismissal, retrenchment or termination shall be
\ndeemed to be an industrial dispute notwithstanding that no other
\nworkman nor any union of workmen is a party to the dispute”. By
\nvirtue of this provision, the scope of the concept of industrial
\ndispute has been widened, which now embraces not only Section 2(k)
\nbut also Section 2-A. Section 2-A, however, covers only cases of
\ndischarge, dismissal, retrenchment or termination otherwise of
\nservices of an individual workman and not other matters, which means
\nthat – to give an example – if a workman is reduced in rank pursuant
\nto a domestic enquiry, the dispute raised by him does not become an
\nindustrial dispute within the meaning of Section 2-A. (However, if
\nthe union or body of workmen espouses his cause, it does become an
\nindustrial dispute.) We have given only one instance; there may be
\nmany disputes which would not fall within Section 2(k) or Section
\n2-A. It is obvious that  in all such cases, the remedy is only in a
\nCivil Court or by way of arbitration according to law, if the parties
\nso choose. The machinery provided by the Industrial Disputes Act for
\nresolution of disputes (in short, Section 10 or 12) does not apply to
\nsuch a dispute.\n<\/p>\n
27.\tBut
\nthen it is argued that while a person can go and file a suit
\nstraightway, he cannot resort to the forums under Industrial Disputes
\nAct directly and that access to these forums is premised upon the
\nappropriate government referring the dispute to them. The submission
\nis no doubt attractive ex facie but not on deeper scrutiny. Firstly,
\nthe discretion to refer is not arbitrary. It has to be exercised to
\neffectuate the objects of the enactment. An arbitrary refusal to
\nrefer is not un-challengeable. The Courts normally lean in favour of
\nmaking a reference rather than the other way. In view of the manner
\nin which the several governments have been acting over the last
\nseveral decades there seems no basis for the apprehension that this
\npower will be exercised arbitrarily. The circumstance suggested
\ncannot, therefore, militate against the view taken by us herein.\n<\/p>\n
32(4).\tIt
\nis not correct to say that the remedies provided by the Industrial
\nDisputes Act are not equally effective for the reason that access to
\nthe forum depends upon a reference being made by the  appropriate
\ngovernment. The power to make a reference conferred upon the
\ngovernment is to be exercised to effectuate the object of the
\nenactment and hence not unguided. The rule is to make a reference
\nunless, of course, the dispute raised is a totally frivolous one ex
\nfacie. The power conferred is the power to refer and not the power to
\ndecide, though it may be that the government is entitled to examine
\nwhether the dispute is ex facie frivolous, not meriting an
\nadjudication.\n<\/p>\n
32(5).\tConsistent
\nwith the policy of law aforesaid, we commend to the Parliament and
\nthe State Legislatures to make a provision enabling a workman to
\napproach the Labour Court\/Industrial Tribunal directly – i.e.,
\nwithout the requirement of a reference by the Government – in case of
\nindustrial disputes covered by Section 2-A of the Industrial Disputes
\nAct. This would go a long way in removing the misgivings with respect
\nto the effectiveness of the remedies provided by the Industrial
\nDisputes Act.\n<\/p>\n
32(7).\tThe
\npolicy of law emerging from Industrial Disputes Act and its sister
\nenactments is to provide an alternative dispute resolution mechanism
\nto the workmen, a mechanism which is speedy, inexpensive, informal
\nand un-encumbered by the plethora of procedural laws and appeals upon
\nappeals and revisions applicable to civil courts. Indeed, the powers
\nof the Courts and Tribunals under the Industrial Disputes Act are far
\nmore extensive in the sense that they can grant such relief as they
\nthink appropriate in the circumstances for putting an end to an
\nindustrial dispute.”\n<\/p>\n
63.\t\tTherefore,
\naccording to my opinion, appropriate Government has exceeded in
\njurisdiction and dispute raised u\/s 2A, the appropriate Government
\nhas no jurisdiction to examine the matter u\/s 12. On both ground,
\nthis order dated 30\/1\/2001 passed without jurisdiction required to be
\nquashed and set aside.”\n<\/p>\n
5.\tIt
\nis also necessary to note that petitioner having a remedy before
\nLabour Court to raise all contentions which are raised before this
\nCourt in present petition at the time of filing written statement and
\nalso petitioner is having a remedy to lead oral evidence to prove
\ntheir case that resignation which was given by workman being a
\nvoluntary and accepted amounts after sanctioning resignation from
\nemployer. Therefore, petitioner is having ample opportunity as well
\nas complete remedy to raise all these contentions before Labour Court
\nduring pendency of reference and therefore also, this being a second
\nground not to entertain petition filed by petitioner before this
\nCourt challenging order of reference made by  Assistant Commissioner
\nof Labour, Junagadh.\n<\/p>\n
6.\tIt
\nis also necessary to note that by referring dispute under Section
\n10(1)(c) of I.D.Act,1947, the appropriate Government or Assistant
\nCommissioner of Labour has not decided industrial dispute between
\neither of parties. Therefore, rights of either parties merely
\nreferring dispute is not decided by Assistant Commissioner of Labour,
\nJunagadh. Therefore also, challenge to such order being an
\nadministrative order, this Court should not entertain or encourage
\nsuch challenge which would stall the proceedings pending before
\nLabour Court and avoid decision on merits.\n<\/p>\n
7.\tThis
\naspect has been in detail considered by this Court in case of Apollo
\nTyres Limited v. Commission of Labour and Anr.,<\/a> reported in
\n2008-II-LLJ-184 where petitioner company challenged a reference made
\nto Industrial Tribunal for adjudication on the ground inter-alia that
\nit was an individual, not industrial dispute and that union which
\nraised it was not representing substantial number of workmen.
\nRelevant observations made in aforesaid judgment are in Para.4 to 10,
\nwhich are quoted as under :\n<\/p>\n
\t“4.\tI
\n\thave considered the submissions made by the learned Advocate Mr. KC
\n\tRaval before this Court. Considering the submission of learned
\n\tadvocate Mr. Raval that the order of reference is bad, learned
\n\tadvocate Mr. Raval has not been able to point out as to which right
\n\tof the company is violated by respondent no.1 by making an order of
\n\treference. Unless and until it is successfully demonstrated by the
\n\tparty challenging an order of reference that it is violative of any
\n\tright of the petitioner, such party cannot be permitted to challenge
\n\tthe order of reference only on the ground that the reference is bad.
\n\tEven if it is believed that the order of reference is bad, then
\n\talso,that would, ipso-facto, not entitle such party to challenge the
\n\tsame before the higher forum.So long as the right of the petitioner
\n\tcompany not adversely affected by the respondent no.1 while passing
\n\tthe order of reference,t his court cannot entertain the petition
\n\tonly on that ground. Writ petition is maintainable only when right
\n\tof the parties are adversely affected by the action or order of the
\n\tState Authority. Learned Advocate Mr. Raval has not been able to
\n\tpoint out before this court that because of the order of reference
\n\tmade by respondent no.1, any right of the petitioner has been
\n\tadversely affected. Therefore, on this count, writ petition is not
\n\tmaintainable. Apart from that, whatever contentions raised by the
\n\tpetitioner in this petition before this court can be raised by the
\n\tpetitioner even before the industrial tribunal as well while
\n\tparticipating in the reference proceedings and the petitioner can
\n\tparticipate in the reference proceedings without prejudice to his
\n\trights and contentions to challenge the order of reference if the
\n\tultimate orders of the tribunal are adverse to the petitioner, then
\n\tsame can be challenged  therefore, on that ground also, writ
\n\tpetition challenging order of reference is not maintainable.
\n\tTherefore, according to my opinion, petitioner is having alternative
\n\teffective remedy to raise all these contentions before the
\n\tindustrial tribunal and the tribunal is competent enough to
\n\tadjudicate or decide it on the basis of the record which can be
\n\tproduced by the respective parties before the tribunal. So, the
\n\tpetitioner is having alternative equally efficacious remedy to raise
\n\tall these contentions before the industrial tribunal  and therefore
\n\talso this petition is not maintainable because petitioner has not
\n\tbeen able to point out that any right of the petitioner has been
\n\tadversely affected by order of reference.\n<\/p>\n
\t5.\tFurther,
\n\twhether the union is representing substantial number of workmen or
\n\tnot; whether the individual dispute under section 2A is to be
\n\tconverted into a dispute under section 2K or not; in respect of the
\n\tsettlement, whether that settlement has been accepted by each
\n\tworkman or not and whether the union which has raised dispute is
\n\tentitled to raise the dispute in respect of suspended employees or
\n\tnot and whether all these contentions raised by the petitioner in
\n\tthis petition for challenging order of reference were raised by the
\n\tpetitioner in conciliation proceedings or not, all these are the
\n\tdisputed questions of fact which cannot be appropriately dealt with
\n\tand decided by this court in a petition under Article 226 of the
\n\tConstitution of India. There is nothing on record to show that the
\n\tpetitioner has raised any of such contentions before the
\n\tconciliation officer. All these are the disputed questions of fact
\n\trequiring appreciation of evidence and the petitioner is having
\n\tample opportunity to raise preliminary contention before the
\n\tindustrial tribunal in respect of whatever contention raised before
\n\tthis court and the industrial tribunal can, on the basis of the
\n\tevidence and record produced by the parties, examine the same but
\n\tthis court cannot examine all these disputed questions of fact in a
\n\tpetition under Article 226 of the Constitution of India.\n<\/p>\n
\t6.\tIn
\n\tPhilips India Limited and Another And P.N. Thorat, Asstt.
\n\tCommissioner of Labour and Conciliation Officer and others, reported
\n\tin 2006-I-LLJ page 1013, order of reference was challenged by the
\n\temployer before the Division Bench of Bombay High Court. Workmen
\n\twere contending fraud committed by employer in implementing
\n\tsettlement for Voluntary Retirement Scheme. It was held that the
\n\tdispute involved triable issues requiring evidence to be led and,
\n\ttherefore, employer’s challenge was held to be not sustainable.
\n\tRelevant observations made by the Division Bench of the Bombay High
\n\tCourt in the said decision in para 12 are reproduced as under:\n<\/p>\n
\t“12.\tFrom
\n\tthe above, what emerges is that there are serious triable issues.
\n\tThe contention of the Union and the workmen is that fraud has been
\n\tpractised upon them. If the workmen are able to succeed in proving
\n\tthat the agreement was entered into by playing fraud, it will be
\n\topen for them to avoid the settlement. This issue cannot be answered
\n\tby this court at this stage as it would require evidence to be led.
\n\tPrima facie a Division Bench of this Court in the very proceedings
\n\thas taken note that the employees involved in both the writ
\n\tpetitions would be workmen. The Apex Court, however, left that
\n\tquestion to be decided. At any rate the expression workmen
\n\tconsidering section 2(s) of the ID Act would include ex-workmen.
\n\tThat contention of the management that they are not workmen would
\n\trequire adjudication of facts. Based on these findings and the issue
\n\tof pensionary benefits under VRS it will have to be considered
\n\twhether the dispute partakes of an industrial dispute. This again
\n\twould be premature for this Court to decide at this stage and it
\n\twill be open to the petitioners to raise all issues before the
\n\tIndustrial Tribunal to which the reference is made. Similarly the
\n\tcontention of the employer that they have complied with the terms of
\n\tthe settlement and consequently there is no industrial dispute and
\n\tthat the employees cease to be workmen will have to be adjudicated
\n\tupon by the Tribunal. ”\n<\/p>\n
\t7.\tSimilar
\n\tquestion has been examined by the Division Bench of Delhi High Court
\n\tin DD Gears v. Secretary (Labour) and others, reported in 2006 Lab.
\n\tIC 1462 wherein reference of an industrial dispute to the industrial
\n\ttribunal was challenged. It was held that no writ petition should be
\n\tentertained against a mere reference as not affecting rights of the
\n\tparties. It was held in para 19, 20, 21 and 22 of the said judgment
\n\tas under:\n<\/p>\n
\t“19.The
\n\tlearned Single Judge rejected the Writ petition and hence this
\n\tappeal.\n<\/p>\n
\t20.\tIn
\n\tour opinion, we cannot interfere with the reference order under
\n\tsection 10 (1) of the Industrial Disputes Act because that order
\n\tdoes not affect the rights of the parties. Hence the Writ petition
\n\tagainst that order is liable to be dismissed.\n<\/p>\n
\t21.\tIt
\n\tis well settled that a writ petition lies only when the rights of
\n\tsome party has been adversely affected. A mere reference under
\n\tsection 10(1) of the Industrial Disputes Act does not effect any
\n\tone, rights and hence no writ petition should ordinarily be
\n\tentertained against a mere reference under section 10(1), as such a
\n\tpetition is premature.\n<\/p>\n
\t22.\tIt
\n\tis only when an a ward is given by the Labour Court or Tribunal that
\n\ta writ petition should be entertained.”\n<\/p>\n
\t8.\tIn
\n\tthe instant case also, mere reference has been made by respondent
\n\tno.1 and petitioner is unable to point out how it is adversely
\n\taffecting the rights of the company. Petition is also involving
\n\tdisputed questions of fact which cannot be appropriately dealt with
\n\tand decided in a writ petition under Article 226 of the Constitution
\n\tof India. Therefore, in view of the aforesaid two decisions,
\n\tpetition is not sustainable in law.\n<\/p>\n
\t9.\tIn
\n\tSanjay Sitaram Khemka versus State of Maharashtra and others
\n\treported in (2006) 5 SCC 255, maintainability of petition involving
\n\tquestions of fact was considered by the apex court. It was held that
\n\tthe matter involving disputed questions of fact cannot be dealt with
\n\tby the High Court in exercise of its power of judicial review.
\n\tRelevant observations made in para 8 and 9 of the judgment by the
\n\tapex court are reproduced as under:\n<\/p>\n
\t“8.Having
\n\tregard to the allegations and counter allegations made by the
\n\tparties before us, we are of the opinion that no relief can be
\n\tgranted to the petitioner in this petition. The writ petition has
\n\trightly been held by the High Court to be involving disputed
\n\tquestions of fact.The petitioner has several causes of action
\n\twherefor he is required to pursue specific remedies provided
\n\ttherefor in law.\n<\/p>\n
\t9.\tA
\n\twrit petition, as has rightly been pointed out by the High Court,
\n\tfor grant of said reliefs,was not the remedy. A matter involving a
\n\tgreat deal of disputed questions of fact cannot be dealt with by the
\n\tHigh Court in exercise of its power of judicial review. As the High
\n\tCourt or this Court cannot, in view of the nature of controversy, as
\n\talso the disputed questions of fact, go into the merit of the
\n\tmatter; evidently no relief can be granted to the petitioner at this
\n\tstage. We are, therefore, of the opinion that the impugned judgment
\n\tof the High Court does not contain any factual or legal error
\n\twarranting interference by this court in exercise of its
\n\tjurisdiction under Article 136 of the Constitution.”\n<\/p>\n
\t[See
\n\t: 2007 (6) MLH 406]<\/p>\n
\t10.\tTherefore,
\n\tin view of the above observations made by the Supreme Court, Bombay
\n\tHigh Court, as well as the Delhi High Court as referred to above,
\n\tand also considering the facts of the present case which involves
\n\tdisputed questions of fact and also considering the fact that the
\n\tpetitioner is not able to contend that the order of reference is
\n\tadversely affecting its right, according to my opinion petition is
\n\tnot maintainable against order of mere reference made by respondent
\n\tno.1 as petitioner is having specific remedy before the industrial
\n\ttribunal to raise all the contentions raised in this petition before
\n\tthe tribunal because the questions raised in this petition are such
\n\twhich would require evidence to be led and appreciation thereof.
\n\tAccording to my opinion, petitioner herein is having several causes
\n\tof action for which petitioner is required to pursue specific remedy
\n\tbefore the tribunal and this court cannot decide such disputed
\n\tquestions of fact in exercise of the powers under Article 226 of the
\n\tConstitution of India. It is more so when the petitioner is not
\n\talleging any mala fides against respondent no. 1. Further, it is not
\n\tthe case of the petitioner that the industrial tribunal is not
\n\thaving power to examine the preliminary contention which may be
\n\traised by the petitioner in respect of the contentions raised by the
\n\tpetitioner in this petition before this court, meaning thereby,
\n\ttribunal is having powers under section 10(1) and 10(4) of the ID
\n\tAct, 1947,so, tribunal is competent to decide all the contentions
\n\tthat may be raised by the petitioner before it including the
\n\tpreliminary contention as well and can participate in the reference
\n\tproceedings without  prejudice to its rights and contentions in
\n\trespect of the preliminary contention and if the ultimate outcome is
\n\tadverse to the petitioner, then, petitioner can challenge the same
\n\ton all grounds available to him including the contentions raised by
\n\tpetitioner before this court against the order of reference. In view
\n\tof that also, this petition is not maintainable in law.”\n<\/p>\n
8.\tSimilar
\naspect considering legal consequences in such type of challenge by
\nemployer has been also deprecated by this Court in case of Indian
\nPotas Ltd. v. Gujarat Mazdoor Panchayat & Anr., reported in 2006
\nII CLR 1051. Relevant
\nobservations made in aforesaid judgment are in Para.9 to 13, which
\nare quoted as under :\n<\/p>\n
“9.\tThe
\nthird order that is the order of reference made by appropriate
\nGovernment dated 27th February 2003. This Court cannot
\nentertain such petition wherein the order of reference is challenged
\nby the employer. This Court cannot go into the disputed question of
\nfacts and triable issues raised by the petitioner in the present
\npetition. The petitioner having full opportunity of hearing to raise
\nall the contention which has been raised before this Court in pending
\nreference before the Labour Court. Therefore, this Court should not
\nhave to entertain the petition filed by the petitioner challenging
\nthe order of reference. Such petition should not have to be
\nentertained by this Court and that view has been taken by Delhi High
\nCourt in case of D.D. Gears Ltd. v. Secretary (Labour) and others<\/a>
\nreported in 2006 LAB.I.C. 1462. The relevant Para 21 is
\nas under :\n<\/p>\n
” Para
\n21 :\tIt is well settled that a Writ Petition lies only when the
\nrights of some party has been adversely affected. A mere reference
\nunder Section 10(1) of the Industrial Disputes Act does not effect
\nanyone,, rights, and hence no Writ Petition should ordinarily be
\nentertained against a mere reference under Section 10(1), as such a
\npetition is premature.”\n<\/p>\n
10.\tThe
\nabove view has also been taken by Bombay High Court in case of in
\ncase of Philips India Limited and Another v. P.N. Thorat, Asst.
\nCommr. Of Labour and Conciliation Officer and Others<\/a> reported in
\n2006-I L.L.J. 1013. The relevant Para 12 and Para 13
\nare as under :\n<\/p>\n
” Para
\n12 :\tFrom the above, what emerges is that there are serious
\ntriable issues. The contention of the Union and the workmen is that
\nfraud has been practised upon them. If the workmen are able to
\nsucceed in proving that the agreement was entered into by playing
\nfraud it will be open to them to avoid the settlement. This issue
\ncannot be answered by this Court at this stage as it would required
\nevidence to be led. Prima facie a Division Bench of this Court in the
\nvery proceedings has taken note that the employees involved in both
\nthe writ petitions would be workmen. The Apex Court, however, left
\nthat question to be decided. At any rate the expression workmen
\nconsidering Section 2(s) of the I.D. Act would include ex-workmen.
\nThat contention of the management that they are not workmen would
\nrequire adjudication of facts. Based on these findings and the issue
\nof pensionary benefits under VRS it will have to be considered
\nwhether the dispute partakes of any industrial dispute. This, again
\nwould be premature for this Court to decide at this stage and it will
\nbe open to the petitioner to raise all issues before the Industrial
\nTribunal to which the reference is made. Similarly, the contention of
\nthe employer that they have complied with the terms of the settlement
\nand consequently there is no industrial dispute and that the
\nemployees cease to be workmen will have to be adjudicated upon by the
\nTribunal.\n<\/p>\n
 Para
\n13 :\tConsidering the above, in our opinion, this would not be a
\nfit case where this Court should exercise its extraordinary
\njurisdiction. In the light of that both the petitions stand
\ndismissed. In the circumstances of the case, there shall be no order
\nas to costs.”\n<\/p>\n
11.\tThe
\nabove view has also been taken by this Court in case of in case of
\nIndian Institute of Management v. Gujarat Majdoor Sabha & Ors.
\n(Ahmedabad)<\/a> reported in 2006 (2) G.C.D. 1227 (Gujarat).\n<\/p>\n
12.\tIn
\nlight of this, according to my opinion, petition against the
\nchallenge of order of reference is not maintainable because
\npetitioner having a full opportunity to make their submission or to
\nraise contention before the Labour Court which are raised before this
\nCourt against the order of reference. This Court cannot examine the
\ndisputed question of facts while exercising the power under Article
\n226 and 227 of the Constitution of India. Therefore, against that
\nchallenge, petition should not be entertained by this Court,
\naccordingly, not entertained.\n<\/p>\n
13.\tIn
\nlight of the above observation made by this Court and this
\nCourt having a limited power to scrutinize the orders are in question
\nwhile exercising the power under Article 227 of the Constitution of
\nIndia. The view express by Apex Court in case of Laxmikant
\nRevchand Bhojwani and Another Vs. Pratapsing Mohansingh pardeshi
\nreported in (1995)6 SCC 576.\n<\/p>\n
The following observations are relevant which are quoted as under :\n<\/p>\n
“The
\nHigh Court under Article 227 cannot assume unlimited prerogative to
\ncorrect all species of hardship or wrong decisions. It must be
\nrestricted to cases of grave dereliction of duty and flagrant abuse
\nof fundamental principles of law or justice, where grave in justice
\nwould be done unless the High Court interferes.”\n<\/p>\n
9.\tThis
\nquestion is also considered by Apex Court in case of AMZ Grindlays
\nBank Ltd. v. Union of India,<\/a> reported in AIR 2006 SC 296, wherein
\nApex Court has observed that it is true that normally, a writ
\npetition under Article 226 of Constitution of India should not be
\nentertained against an order of appropriate Government making a
\nreference under Section 10 of Act as the parties would get
\nopportunity to lead evidence before Labour Court or Industrial
\nTribunal and to show that claim made is either unfounded or there was
\nno occasion for making a reference. Relevant
\nobservations made in aforesaid judgment are in Para.13, which are
\nquoted as under :\n<\/p>\n
“13.\tMr.\n<\/p>\n
Bhat, learned counsel for the second respondent, has submitted that
\nthis Court should not interfere with the order of the Central
\nGovernment making a reference under Section 10 of the Act, as the
\nappellant can ventilate its grievances before the Industrial Tribunal
\nitself and if the decision of the tribunal goes against the
\nappellant, the same may be challenged in accordance with law.
\nAccording to learned counsel the writ petition is pre-mature as the
\nappellant has got a remedy before the Tribunal to show that the
\nreference is either bad in law or is uncalled for.  We are unable to
\naccept the submission made.  It is true that normally a writ petition
\nunder Article 226 of the Constitution should not be entertained
\nagainst an order of the appropriate Government making a reference
\nunder Section 10 of the Act, as the parties would get opportunity to
\nlead evidence before the Labour Court or Industrial Tribunal and to
\nshow that the claim made is either unfounded or there was no occasion
\nfor making a reference.  However, this is not a case where the
\ninfirmity in the reference can be shown only after evidence has been
\nadduced.  In the present case the futility of the reference made by
\nthe Central Government can be demonstrated from a bare reading of the
\nterms of the reference and the admitted facts.  In such
\ncircumstances, the validity of the reference made by the Central
\nGovernment can be examined in proceedings under Article 226 of the
\nConstitution as no evidence is required to be considered for
\nexamining the issue raised.”\n<\/p>\n
9.1\tIn
\nfacts of this case, petitioner is not able to point out before this
\nCourt that reference which has been made by appropriate Government is
\nin futility and can be demonstrated from
\nbare reading of terms of reference and this being an admitted facts.
\nThese are not facts before this Court because so called resignation
\nwhich has been obtained by petitioner and payment was made, that has
\nbeen challenged or disputed by workman while serving notice (Page-62)
\ndated 10.5.2010 that itself is enough not to cover case based on
\nadmitted facts. Therefore, once dispute has been raised and it was
\nnot an admitted facts between parties, then Assistant Commissioner of
\nLabour, Junagadh has no jurisdiction to decide merits of  industrial
\ndispute but, it has a limited jurisdiction to consider as to whether
\nindustrial dispute exists between parties or not and if he satisfied
\nwhile considering legal notice dated 10.5.2010 (Page-62) that there
\nis a genuine  dispute raised by workman challenging so called
\nresignation then it is enough for satisfying requirement of Section
\n10(1)(c) of I.D.Act,1947 to refer such dispute for adjudication to
\nLabour Court as covered by Item No.3, second schedule under Section-7
\nof I.D.Act,1947.\n<\/p>\n
10.\tTherefore,
\nin light of this background, such challenge made by petitioner having
\na complete remedy to raise all these contentions before Labour Court
\nbut to see that by challenging such type of order of reference to
\ncurtail further hearing of reference which has been referred for
\nadjudication by appropriate Government. Such challenge by employer
\ncannot be encouraged by this Court when employer having complete
\nopportunity to raise all these contentions before Labour Court, then
\nto entertain such petition it amounts to encouraging employer to
\nchallenge such type of order of reference so that workman may not be
\nable to get right of adjudication
\nbefore appropriate forum which has been prescribed under provisions
\nof I.D.Act,1947. In I.D.Act, particular forum is prescribed for
\nresolving the industrial dispute between parties and for that,
\nAssistant Commissioner of Labour, Junagadh has referred dispute to
\ndecide dispute between parties, at that occasion challenging order of
\nreference apparently it is nothing else but a clear case of mala fide
\nof petitioner to avoid decision on merits and to get stay against
\nproceedings pending before Labour Court, Junagadh. Such type of
\nattempt and efforts made by employer, this Court cannot encourage
\nsuch type of challenge, otherwise whole machinery is to be considered
\nstand still if such challenge is entertained by this Court while
\nexercising powers under Article 226\/227 of Constitution of India. It
\nis necessary to note that workman has no other remedy to challenge
\nsuch dispute in any other statutory forum. The workman cannot
\nchallenge such dispute in civil court and even not able to challenge
\ndisputed facts in this Court under writ petition under Article 14, 16
\nand 226 of the Constitution of India. So only statutory forum under
\nprovisions of I.D.Act,1947 is available except that no forum is
\navailable to such dispute can be resolved by independent statutory
\nauthority. Therefore, if such challenge by employer, order of
\nreference before this Court if encourage then workman remained
\nwithout remedy. The workman may not able to get adjudication about
\nhis dispute that so called resignation was obtained by the employer
\nunder duress and adopting coercive steps against workman. This being
\nvery vital and important issue must have to keep in mind by this
\nCourt when order of reference challenged by employer based on
\ndisputed facts and not based on admitted facts. I have also
\nconsidered one important fact that merely order of reference made
\nby appropriate Government (Assistant Commissioner of Labour,
\nJunagadh) to Labour Court, Junagadh, that itself not violated any
\nlegal rights of petitioner. So when by order of reference, right of
\npetitioner is not violated or having any adverse effect to his right,
\nthen writ petition is not maintainable under Article 226 \/ 227 of the
\nConstitution of India. The Assistant Commissioner of Labour, Junagadh
\nhas not decided right of either parties which referring merely
\nindustrial dispute to Labour Court, Junagadh. It is open for
\npetitioner to raise all contentions before Labour Court, Junagadh and
\neven if it decides against the petitioner, then petitioner can
\nchallenge award which may be passed by Labour Court, Junagadh to
\nhigher forum. So right of petitioner is remained intact and fully
\nsafeguard under machinery of I.D.Act,1947 during pending reference
\nand even after award is passed against petitioner, this being good
\nground not to entertain such petition filed by petitioner,
\nchallenging order of reference before this Court. This aspect
\nrecently examined by Division Bench of this Court in case of Thakor
\nNagjibhai Bhailal v. IPCL, Now Amalgamated<\/a> with Reliance Inds.Ltd &
\nOrs., reported in 2011 I CLR 183. Relevant observations of aforesaid
\ndecision are in Para.12, 12A, 20, 20A, 21 to 24, 26, 27, 35 and 36,
\nwhich are quoted as under :\n<\/p>\n
“12.\tThe
\nmanagement has taken almost similar plea before us.  The learned
\ncounsel for the management would contend that the appellants –
\nworkmen had ceased to be workmen within the meaning of Section 2(s)
\nof the ID Act  and, therefore, on cessation of employment pursuant to
\ntheir applications under the Voluntary Separation Scheme, there is no
\nindustrial dispute within the meaning of Section 2(k) of the ID Act,
\nwhich can be referred under Section 10(1).  Reliance was also placed
\non Section 2(k) of the ID Act, which reads as under :-\n<\/p>\n
“2(k)\t“industrial
\ndispute” means any dispute or difference between employers and
\nemployers, or between employers and workmen, or between workmen and
\nworkmen, which is connected with the employment or non-employment or
\nthe terms of employment or with the conditions of labour, of any
\nperson;”\n<\/p>\n
12A.\tHe would
\ncontend that for the purpose of qualifying as an industrial dispute,
\nthe dispute or difference has to be between the employer and the
\nworkmen and in the present case, the appellants having been separated
\nthemselves from the services of the Company and as they were no
\nlonger workmen of the Company from the date of acceptance of
\nvoluntary retirement, the alleged dispute or difference between the
\nappellants and the management Company cannot be termed as an
\n‘industrial dispute’ for reference under Section 10 of the ID Act.\n<\/p>\n
20.\tIn the case of Sarva
\nShramik Sangh vs. Indian Oil Corporation Ltd.,<\/a>
\nreported in (2009) 11 SCC 609, the Supreme Court observed as follows
\n:-\n<\/p>\n
“29.\tIt
\nis true that making a reference under Section 10(1) of the ID Act is
\nwithin the discretion of the appropriate Government.  Referring to
\nthe unamended Section 10(1) of the ID Act this Court in State
\nof Madras vs. C.P. Sarathy, AIR<\/a>
\n1953 SC 53 laid down the following principles :-\n<\/p>\n
(i)\tThe
\nGovernment should satisfy itself, on the facts and circumstances
\nbrought to its notice, in its subjective opinion that an “industrial
\ndispute” exists or is “apprehended”.\n<\/p>\n
(ii)\tThe
\nfactual existence of a dispute or its apprehension and the expediency
\nof making reference are matters entirely for the Government to
\ndecide.\n<\/p>\n
(iii)\tThe
\norder making a reference is an administrative act and it is not a
\njudicial or a quasi-judicial act.\n<\/p>\n
(iv)\tThe
\norder of reference passed by the Government cannot be examined by the
\nHigh Court in its jurisdiction under Article 226 of the Constitution,
\nto see if the Government had material before it to support the
\nconclusion that the dispute existed or was apprehended.”\n<\/p>\n
20A.\tIn Rohtas
\nIndustries Ltd. vs. S.D. Agarwal,<\/a> reported in (1969) 1 SCC
\n325, the Supreme Court held as follows :-\n<\/p>\n
“7.\t….\n<\/p>\n
This interpretation of Section 10(1) is based on the language of that
\nprovision as well as the purpose for which the power in question was
\ngiven and the effect of a reference.  That decision cannot be
\nconsidered as an authority for the proposition that whenever a
\nprovision of law confers certain power on an authority on its forming
\na certain opinion on the basis of certain facts the courts are
\nprecluded from examining whether the relevant facts on the basis of
\nwhich the opinion is said to have been formed were in fact existed.”\n<\/p>\n
21.\tWhether the Government
\ncan go into the merits of the dispute was the question raised before
\nthe  Supreme Court in Western
\nIndia Match Co. Ltd. vs. Western India March Co. Workers’ Union,<\/a>
\nreported in (1970) 1 SCC 225.  Therein, at para 9, the Supreme Court
\nobserved as under :-\n<\/p>\n
“9.\t…\n<\/p>\n
the Government cannot go into the merits of the dispute, its function
\nbeing only to refer such a dispute for adjudication so that the
\nindustrial relations between the employer and his employees may not
\ncontinue to remain disturbed and the dispute may be resolved through
\na judicial process as speedily as possible.”\n<\/p>\n
22.\tIf the appropriate
\nGovernment refuses to make a reference for irrelevant considerations,
\non extraneous grounds or acts mala fide, a party would be entitled to
\nmove the High Court for a writ of mandamus.  This was the view of the
\nSupreme Court in Hochtief
\nGammon vs. State of Orissa,<\/a> reported in (1975) 2 SCC 649,
\nwherein the Supreme Court made the following observations :-\n<\/p>\n
“13.\tThe
\nexecutive has to reach their decisions by taking into account
\nrelevant considerations.  They should not refuse to consider relevant
\nmatter nor should they take into account wholly irrelevant or
\nextraneous consideration.  They should not misdirect themselves on a
\npoint of law.  Only such a decision will be lawful.  The courts have
\npower to see that the executive acts lawfully.  It is no answer to
\nthe exercise of that power to say that the executive acted bona fide
\nnor that they have bestowed painstaking consideration.  They cannot
\navoid scrutiny by courts by failing to give reasons.  If they give
\nreasons and they are not good reasons, the court can direct them to
\nreconsider the matter in the light of relevant matters, though the
\npropriety, adequacy or satisfactory character of those reasons may
\nnot be open to judicial scrutiny.  Even if the executive considers it
\ninexpedient to exercise their powers they should state their reasons
\nand there must be material to show that they have considered all the
\nrelevant facts.”\n<\/p>\n
23.\tSection 10(1) of the ID
\nAct confers a discretionary power and is exercised on being satisfied
\nthat an industrial dispute exists or is apprehended.  There may be
\nsome material before the Government on the basis of which it forms an
\nopinion.  The adequacy or sufficiency of the material on which the
\nopinion was formed is beyond the pale of judicial scrutiny.  If the
\naction of the Government in making the reference is impugned by a
\nparty, it would be open to such a party to show that what was
\nreferred was not an industrial dispute and that the Tribunal had no
\njurisdiction to make the award but if the dispute was an industrial
\ndispute, its factual existence and the expediency of making a
\nreference in the circumstances of a particular case are matters
\nentirely for Government to decide upon, and it will not be competent
\nfor the court to hold the reference bad and quash the proceedings for
\nwant of jurisdiction merely because there was, in its opinion, no
\nmaterial before the Government on which it could have come to an
\naffirmative conclusion on those matters.  Such was the finding of the
\nSupreme Court in Avon
\nServices Production Agencies (P) Ltd. vs. Industrial Tribunal,<\/a>
\nreported in (1979) 1 SCC 1.\n<\/p>\n
\tIn the very same case,
\nhowever, the Supreme Court held that “….merely because the
\nGovernment rejects a request for a reference or declines to make a
\nreference, it cannot be said that the industrial dispute has ceased
\nto exist. …..   The industrial dispute may nonetheless continue to
\nremain in existence and if at a subsequent stage the appropriate
\nGovernment is satisfied that in the interest of industrial peace and
\nfor promoting industrial harmony it is desirable to make a reference,
\nthe appropriate Government does not lack power to do so under Section
\n10(1), nor is it precluded from making the reference on the only
\nground that on an earlier occasion it had declined to make the
\nreference.”\n<\/p>\n
24.\tIn Ram
\nAvtar Sharma vs. State of Haryana, reported in (1985) 3
\nSCC 189, the Supreme Court considered a refusal by the Government
\nwhich has decided on merit.  That was the case where the services of
\nthe employee were terminated  after charges against him were proved
\nin a domestic enquiry.  In the said case, the Supreme Court observed
\nas follows :-\n<\/p>\n
“….\n<\/p>\n
 The reasons given by the Government would show that the Government
\nexamined the relevant papers of enquiry and the Government was
\nsatisfied that it was legally valid and that there was sufficient and
\nadequate evidence to hold the charges proved.  It would further
\nappeal that the Government was satisfied that the enquiry was not
\nbiased against the workman and the punishment was commensurate with
\nthe gravity of the misconduct charged.  All these relevant and vital
\naspects have to be examined by the Industrial Tribunal while
\nadjudicating upon the reference made to it.  In other words, the
\nreasons given by the Government would tantamount to adjudication
\nwhich is impermissible.  That is the function of the Tribunal and the
\nGovernment cannot arrogate to itself that function.  Therefore if the
\ngrounds on which or the reasons for which the Government declined to
\nmake a reference under Section 10 are irrelevant, extraneous or not
\ngermane to the determination, it is well settled that the party
\naggrieved thereby would be entitled to move the court for a writ of
\nmandamus .. …  It is equally well settled that where the Government
\npurports to give reasons which tantamount to adjudication and refuses
\nto make a reference, the appropriate Government could be said to have
\nacted on extraneous, irrelevant grounds or grounds not germane to the
\ndetermination and a writ of mandamus would lie calling upon the
\nGovernment to reconsider its decision.”\n<\/p>\n
26.\tWhen
\nsimilar matter fell for consideration before the Supreme Court in
\nSharad Kumar vs. Govt. of NCT
\nof Delhi,<\/a> reported in AIR 2002 SC 1724, the Supreme Court
\nobserved that where determination of the question required
\nexamination of factual matters for which materials including oral
\nevidence will have to be considered, in such matters, the State
\nGovernment could not arrogate on to itself the power to adjudicate on
\nthe question.\n<\/p>\n
27.\tIn the
\npresent case, there is a disputed question of fact whether the
\nworkmen had withdrawn their offers for voluntary retirement prior to
\nthe order of acceptance of such voluntary retirement or prior to
\ntheir relieving.  The management has taken a plea that the circulars
\nwere displayed on the notice board on 21.3.2007, but also accepted
\nthat the letters of voluntary retirement were issued in the end of
\nMarch, 2007.  The management has also accepted that pursuant to the
\nVRS on or about 3.4.2007, 455 persons were relieved and 7 persons
\nwere relieved on 30.4.2007 and 2 persons were relieved on 31.5.2007.
\nTherefore, the question as to whether one or the other workmen had
\nwithdrawn their prayer for voluntary retirement prior to issuance of
\ntheir relieving order or prior to their relieving is one of the
\nquestions which requires determination to adjudicate whether the
\nrelationship of employer and employees ceased because of the
\nvoluntary retirement or they were forcibly retired from the service
\namounting to retrenchment.\n<\/p>\n
35.\tWe have
\nnoticed that this Court cannot sit in appeal over a finding of the
\nState.  The determination of the question which requires examination
\nof factual matters, for which material including oral evidence is
\nrequired to be considered, such matter cannot be arrogated to by the
\nState which will amount to adjudication of the question.\n<\/p>\n
36.\tIn
\nthe present case, it will be evident that the workmen also moved
\nbefore this Court in Special Civil Application
\nNo. 20727 of 2007 and in analogous cases.  Therein,
\nthis Court by order dated 22.8.2007 after considering the submissions
\nmade by the learned counsel for the parties, having noticed that a
\nnumber of disputed questions are raised in the aforesaid group of
\npetitions, which require some evidence to be taken before the
\nappropriate authority, allowed the parties to move before the State.
\nThereafter, the workmen moved before the respondent – State for
\nreference under Section 10(1) of the ID Act.  Such observations
\nhaving already made, the matter having remitted at the instance of
\nthe parties including the management, when the question of deciding
\nthe disputed fact was required to be determined on the basis of the
\nevidence, we are of the view that the respondent – State or its
\nauthority could not have arrogated on itself the power to adjudicate
\non the question whether the relationship between the management and
\nthe workmen ceased because of voluntary retirement or they were
\nretrenched.   In view of the Supreme Court decisions as referred to
\nabove, we also hold that the respondent – State and the
\nAssistant Labour Commissioner, in particular, had no jurisdiction to
\nlook into the evidence to adjudicate on the question which was
\nrequired to be determined by the Tribunal in a reference, if it would
\nhave been made under Section 10(1) of the ID Act.”\n<\/p>\n
[See
\n:United Phosphorus Ltd. v. Commissioner of Labour & Anr.,<\/a>
\nreported in 2011 Lab.I.C. 1006, decided on 26.4.2010 (Coram :
\nH.K.Rathod,J.)]<\/p>\n
11.\tRecently,
\nApex Court has examined question how to exercise the powers by High
\nCourt under Article 226 \/ 227 of Constitution of India and even while
\nexercising such powers, what are fundamental principles is to be
\nconsidered by High Court in case covered under provisions of
\nIndustrial Law. That has been considered in detail by Apex Court in
\ncase of Harjinder Singh v. Punjab State Warehousing Corporation,<\/a>
\nreported in 2010 (1) Scale 613. Relevant
\nobservations made in aforesaid judgment are in Para.10, 11, 26 to 44,
\nwhich are quoted as under :\n<\/p>\n
“10.\tWe
\nhave considered the respective submissions. In our opinion, the
\nimpugned order is liable to be set aside only on the ground that
\nwhile interfering with the award of the Labour Court, the learned
\nSingle Judge did not keep in view the parameters laid down by this
\nCourt for exercise of jurisdiction by the High Court under Articles
\n226 and\/or 227 of the Constitution – Syed Yakoob v. K.S.
\nRadhakrishnan and others<\/a>, AIR 1964 SC 477 and Surya Dev Rai v. Ram
\nChander Rai and others<\/a> 2003 (6) SCC 675. In Syed Yakoob’s case,
\nthis Court delineated the scope of the writ of certiorari in the
\nfollowing words:\n<\/p>\n
“The
\nquestion about the limits of the jurisdiction of High Courts in
\nissuing a writ of certiorari under Article 226 has been frequently
\nconsidered by this Court and the true legal position in that behalf
\nis no longer in doubt. A writ of certiorari can be issued for
\ncorrecting errors of jurisdiction committed by inferior courts or
\ntribunals: these are cases where orders are passed by inferior courts
\nor tribunals without jurisdiction, or is in excess of it, or as a
\nresult of failure to exercise jurisdiction. A writ can similarly be
\nissued where in exercise of jurisdiction conferred on it, the Court
\nor Tribunal acts illegally or properly, as for instance, it decides a
\nquestion without giving an opportunity, be heard to the party
\naffected by the order, or where the procedure adopted in dealing with
\nthe dispute is opposed to principles of natural justice. There is,
\nhowever, no doubt that the jurisdiction to issue a writ of certiorari
\nis a supervisory jurisdiction and the Court exercising it is not
\nentitled to act as an appellate Court. This limitation necessarily
\nmeans that findings of fact reached by the inferior Court or Tribunal
\nas result of the appreciation of evidence cannot be reopened or
\nquestioned in writ proceedings. An error of law which is apparent on
\nthe face of the record can be corrected by a writ, but not an error
\nof fact, however grave it may appear to be. In regard to a finding of
\nfact recorded by the Tribunal, a writ of certiorari can be issued if
\nit is shown that in recording the said finding, the Tribunal had
\nerroneously refused to admit admissible and material evidence, or had
\nerroneously admitted inadmissible evidence which has influenced the
\nimpugned finding. Similarly, if a finding of fact is based on no
\nevidence, that would be regarded as an error of law which can be
\ncorrected by a writ of certiorari. In dealing with this category of
\ncases, however, we must always bear in mind that a finding of fact
\nrecorded by the Tribunal cannot be challenged in proceedings for a
\nwrit of certiorari on the ground that the relevant and material
\nevidence adduced before the Tribunal was insufficient or inadequate
\nto sustain the impugned finding. The adequacy or sufficiency of
\nevidence led on a point and the inference of fact to be drawn from
\nthe said finding are within the exclusive jurisdiction of the
\nTribunal, and the said points cannot be agitated before a writ Court.
\nIt is within these limits that the jurisdiction conferred on the High
\nCourts under Article 226 to issue a writ of certiorari can be
\nlegitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque<\/a>
\n1955 (1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills
\nDivision and Appeals Assam<\/a> 1958 SCR 1240 and Kaushalya Devi v.
\nBachittar Singh AIR<\/a> 1960 SC 1168).\n<\/p>\n
It
\nis, of course, not easy to define or adequately describe what an
\nerror of law apparent on the face of the record means. What can be
\ncorrected by a writ has to be an error of law; hut it must be such an
\nerror of law as can be regarded as one which is apparent on the face
\nof the record. Where it is manifest or clear that the conclusion of
\nlaw recorded by an inferior Court or Tribunal is based on an obvious
\nmis-interpretation of the relevant statutory provision, or sometimes
\nin ignorance of it, or may be, even in disregard of it, or is
\nexpressly founded on reasons which are wrong in law, the said
\nconclusion can be corrected by a writ of certiorari. In all these
\ncases, the impugned conclusion should be so plainly inconsistent with
\nthe relevant statutory provision that no difficulty is experienced by
\nthe High Court in holding that the said error of law is apparent on
\nthe face of the record. It may also be that in some cases, the
\nimpugned error of law may not be obvious or patent on the face of the
\nrecord as such and the Court may need an argument to discover the
\nsaid error; but there can be no doubt that what can be corrected by a
\nwrit of certiorari is an error of law and the said error must, on the
\nwhole, be of such a character as would satisfy the test that it is an
\nerror of law apparent on the face of the record. If a statutory
\nprovision is reasonably capable of two constructions and one
\nconstruction has been adopted by the inferior Court or Tribunal, its
\nconclusion may not necessarily or always be open to correction by a
\nwrit of certiorari. In our opinion, it is neither possible nor
\ndesirable to attempt either to define or to describe adequately all
\ncases of errors which can be appropriately described as errors of law
\napparent on the face of the record. Whether or not an impugned error
\nis an error of law and an error of law which is apparent on the face
\nof the record, must always depend upon the facts and circumstances of
\neach case and upon the nature and scope of the legal provision which
\nis alleged to have been misconstrued or contravened.”\n<\/p>\n
11.\tIn
\nSurya Dev Rai’s case, a two-Judge Bench, after threadbare
\nanalysis of Articles 226 and 227 of the Constitution and considering
\nlarge number of judicial precedents, recorded the following
\nconclusions:\n<\/p>\n
“(1)
\nAmendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115
\nof the Code of Civil Procedure cannot and does not affect in any
\nmanner the jurisdiction of the High Court under Articles 226 and 227
\nof the Constitution.\n<\/p>\n
(2)\tInterlocutory
\norders, passed by the courts subordinate to the High Court, against
\nwhich remedy of revision has been excluded by CPC Amendment Act 46 of
\n1999 are nevertheless open to challenge in, and continue to be
\nsubject to, certiorari and supervisory jurisdiction of the High
\nCourt.\n<\/p>\n
(3)\tCertiorari,
\nunder Article 226 of the Constitution, is issued for correcting gross
\nerrors of jurisdiction I.e. when a subordinate court is found to have
\nacted (I) without jurisdiction – by assuming jurisdiction where
\nthere exists none, or (ii) in excess of its jurisdiction – by
\noverstepping or crossing the limits of jurisdiction, or (iii) acting
\nin flagrant disregard of law or the rules of procedure or acting in
\nviolation of principles of natural justice where there is no
\nprocedure specified, and thereby occasioning failure of justice.\n<\/p>\n
(4)\tSupervisory
\njurisdiction under Article 227 of the Constitution is exercised for
\nkeeping the subordinate courts within the bounds of their
\njurisdiction. When a subordinate court has assumed a jurisdiction
\nwhich it does not have or has failed to exercise a jurisdiction which
\nit does have or the jurisdiction though available is being exercised
\nby the court in a manner not permitted by law and failure of justice
\nor grave injustice has occasioned thereby, the High Court may step in
\nto exercise its supervisory jurisdiction.\n<\/p>\n
(5)\tBe
\nit a writ of certiorari or the exercise of supervisory jurisdiction,
\nnone is available to correct mere errors of fact or of law unless the
\nfollowing requirements are satisfied: (I) the error is manifest and
\napparent on the face of the proceedings such as when it is based on
\nclear ignorance or utter disregard of the provisions of law, and (ii)
\na grave injustice or gross failure of justice has occasioned thereby.\n<\/p>\n
(6)\tA
\npatent error is an error which is self-evident I.e. which can be
\nperceived or demonstrated without involving into any lengthy or
\ncomplicated argument or a long-drawn process of reasoning. Where two
\ninferences are reasonably possible and the subordinate court has
\nchosen to take one view, the error cannot be called gross or patent.\n<\/p>\n
(7)\tThe
\npower to issue a writ of certiorari and the supervisory jurisdiction
\nare to be exercised sparingly and only in appropriate cases where the
\njudicial conscience of the High Court dictates it to act lest a gross
\nfailure of justice or grave injustice should occasion. Care, caution
\nand circumspection need to be exercised, when any of the abovesaid
\ntwo jurisdictions is sought to be invoked during the pendency of any
\nsuit or proceedings in a subordinate court and the error though
\ncalling for correction is yet capable of being corrected at the
\nconclusion of the proceedings in an appeal or revision preferred
\nthereagainst and entertaining a petition invoking certiorari or
\nsupervisory jurisdiction of the High Court would obstruct the smooth
\nflow and\/or early disposal of the suit or proceedings. The High Court
\nmay feel inclined to intervene where the error is such, as, if not
\ncorrected at that very moment, may become incapable of correction at
\na later stage and refusal to intervene would result in travesty of
\njustice or where such refusal itself would result in prolonging of
\nthe lis.\n<\/p>\n
(8)\tThe
\nHigh Court in exercise of certiorari or supervisory jurisdiction will
\nnot convert itself into a court of appeal and indulge in
\nreappreciation or evaluation of evidence or correct errors in drawing
\ninferences or correct errors of mere formal or technical character.\n<\/p>\n
(9)\tIn
\npractice, the parameters for exercising jurisdiction to issue a writ
\nof certiorari and those calling for exercise of supervisory
\njurisdiction are almost similar and the width of jurisdiction
\nexercised by the High Courts in India unlike English courts has
\nalmost obliterated the distinction between the two jurisdictions.
\nWhile exercising jurisdiction to issue a writ of certiorari, the High
\nCourt may annul or set aside the act, order or proceedings of the
\nsubordinate courts but cannot substitute its own decision in place
\nthereof. In exercise of supervisory jurisdiction the High Court may
\nnot only give suitable directions so as to guide the subordinate
\ncourt as to the manner in which it would act or proceed thereafter or
\nafresh, the High Court may in appropriate cases itself make an order
\nin supersession or substitution of the order of the subordinate court
\nas the court should have made in the facts and circumstances of the
\ncase.”\n<\/p>\n
A
\nreading of the impugned order shows that the learned Single Judge did
\nnot find any jurisdictional error in the award of the Labour Court.
\nHe also did not find that the award was vitiated by any error of law
\napparent on the face of the record or that there was violation of
\nrules of natural justice. As a matter of fact, the learned Single
\nJudge rejected the argument of the corporation that termination of
\nthe appellant’s service falls within the ambit of Section
\n2(oo)(bb) of the Act, and expressed unequivocal agreement with the
\nLabour Court that the action taken by the Managing Director of
\ncorporation was contrary to Section 25G of the Act which embodies the
\nrule of last come first go. Notwithstanding this, the learned Single
\nJudge substituted the award of reinstatement of the appellant with
\ncompensation of Rs.87,582\/- by assuming that appellant was initially
\nappointed without complying with the equality clause enshrined in
\nArticles 14 and 16 of the Constitution of India and the relevant
\nregulations. While doing so, the learned Single Judge failed to
\nnotice that in the reply filed on behalf of the corporation before
\nthe Labour Court, the appellant’s claim for reinstatement with
\nback wages was not resisted on the ground that his initial
\nappointment was illegal or unconstitutional and that neither any
\nevidence was produced nor any argument was advanced in that regard.
\nTherefore, the Labour Court did not get any opportunity to consider
\nthe issue whether reinstatement should be denied to the appellant by
\napplying the new jurisprudence developed by the superior courts in
\nrecent years that the court should not pass an award which may result
\nin perpetuation of illegality. This being the position, the learned
\nSingle Judge was not at all justified in entertaining the new plea
\nraised on behalf of the corporation for the first time during the
\ncourse of arguments and over turn an otherwise well reasoned award
\npassed by the Labour Court and deprive the appellant of what may be
\nthe only source of his own sustenance and that of his family.\n<\/p>\n
26.\tJudges
\nof the last Court in the largest democracy of the world have a duty
\nand the basic duty is to articulate the Constitutional goal which has
\nfound such an eloquent utterance in the Preamble. If we look at our
\nPreamble, which has been recognised, a part of the Constitution in
\nHis Holiness Kesavananda Bharati Sripadagalvaru and others vs. State
\nof Kerela and another – [1973 SC 1461], we can discern that as
\ndivided in three parts. The first part is a declaration whereby
\npeople of India adopted and gave to themselves the Constitution. The
\nsecond part is a resolution whereby people of India solemnly resolved
\nto constitute India into a sovereign, socialist, secular, democratic
\nrepublic. However, the most vital part is the promise and the promise
\nis to secure to all its citizens:\n<\/p>\n
    ”\tJUSTICE,
\nsocial, economic and political;\n<\/p>\n
\tLIBERTY
\nof thought, expression, belief, faith and worship;\n<\/p>\n
\tEQUALITY
\nof status and of opportunity;\n<\/p>\n
    \tAnd
\nto promote among them all<\/p>\n
    \tFRATERNITY
\nassuring the dignity of the individual and the unity and
\nintegrity of the Nation;”\n<\/p>\n
    [See
\nJustice R.C. Lahoti, Preamble- The Spirit and backbone of the<\/p>\n
    Constitution
\nof India, Anundoram Barooah law Lectures, Seventh Series,  Eastern
\nBook Company, 2004, at p. 3]<\/p>\n
27.
\nJudges and specially the judges of the highest Court have a vital
\nrole to ensure that the promise is fulfilled. If the judges fail to
\ndischarge their duty in making an effort to make the Preambular
\npromise a reality, they fail to uphold and abide by the Constitution
\nwhich is their oath of office. In my humble opinion, this has to be
\nput as high as that and should be equated with the conscience of this
\nCourt.\n<\/p>\n
28.
\nAs early as in 1956, in a Constitution Bench judgment dealing with an
\nArticle 32 petition, Justice Vivian Bose, while interpreting the
\nArticle 14 of the Constitution, posed the following question:\n<\/p>\n
    “After
\nall, for whose benefit was the Constitution enacted?”\n<\/p>\n
    [Bidi
\nSupply Co. vs. Union of India and others<\/a> – AIR 1956 SC  479 at Para
\n23, pg. 487]<\/p>\n
29.
\nHaving posed the question, the Learned Judge answered the same in his
\ninimitable words and which I may quote:\n<\/p>\n
“I
\nam clear that the Constitution is not for the exclusive benefit of
\nGovernments and States; it is not only for lawyers and politicians
\nand officials and those highly placed. It also exists for the common
\nman, for     the poor and the humble, for those who have businesses
\nat stake, for the  “butcher, the baker and the candlestick
\nmaker”. It lays down for this land     a “rule lof law”
\nas understood in the free democracies of the world. It  constitutes
\nIndia into a Sovereign Democratic Republic and guarantees in   every
\npage rights and freedom to the individual side by side and
\nconsistent with the overriding power of the State to act for the
\ncommon good of all.”\n<\/p>\n
[Ibid, Emphasis supplied)<\/p>\n
30.
\nThe essence of our Constitution was also explained by the eminent
\njurist Palkhivala in the following words:\n<\/p>\n
“Our
\nConstitution is primarily shaped and moulded for the common man.
\nIt takes no account of “the portly presence of the potentates,
\ngoodly in  girth”. It is a Constitution not meant for the ruler<\/p>\n
 “but
\nthe ranker, the tramp of the road,<\/p>\n
The
\nslave with the sack on his shoulders pricked on with the goad,<\/p>\n
The
\nman with too weighty a burden, too weary a load.””\n<\/p>\n
[N.\n<\/p>\n
A. Palkhivala, Our Constitution Defaced and Defiled,   MacMillan,
\n1974, p. 29]<\/p>\n
31<\/span>
\nI am in entire agreement with the aforesaid interpretation of the
\nConstitution given by this Court and also by the eminent jurist.\n<\/p>\n
32.
\nIn this context another aspect is of some relevance and it was
\npointed out by Justice Hidayatullah, as His Lordship was then, in
\nNaresh Shridhar Mirajkar and others vs. State of Maharastra and Anr.<\/a>\n<\/p>\n
– [AIR 1967 SC 1]. In a minority judgment, His Lordship held that the
\njudiciary is a State within the meaning of Art. 12. [See paras 100,
\n101 at page 28, 29 of the report]. This minority view of His Lordship
\nwas endorsed by Justice Mathew in Kesavananda Bharati (supra) [at
\npage 1949, para 1717 of the report] and it was held that the State
\nunder Article 12 would include the judiciary.\n<\/p>\n
33.
\nThis was again reiterated by Justice Mathew in the Constitution bench
\njudgment in the case of State of Kerela and another vs. N. M. Thomas
\nand others [AIR 1976 SC 490] where Justice Mathew’s view was the
\nmajority view, though given separately. At para 89, page 515 of the
\nreport, his Lordship held that under Article 12, `State’ would
\ninclude `Court’.\n<\/p>\n
34.
\nIn view of such an authoritative pronouncement the definition of
\nState under Article 12 encompass the judiciary and in Kesavananda
\n(supra) it was held that “judicial process” is also “state
\naction” [Para 1717, pg. 1949]<\/p>\n
35.
\nThat being the legal position, under Article 38 of the Constitution,
\na duty is cast on the State, which includes the judiciary, to secure
\na social order for the promotion of the welfare of the people.
\nArticle 38(1) runs as follows:\n<\/p>\n
“The
\nState shall strive to promote the welfare of the people by securing
\nand protecting as effectively as it may a social order in which
\njustice,  social, economic and political, shall inform all the
\ninstitutions of the     national life.”\n<\/p>\n
 This
\nis echoing the preambular promise<\/p>\n
36.
\nTherefore, it is clearly the duty of the judiciary to promote a
\nsocial order in which justice, economic and political informs all the
\ninstitution of the national life. This was also made clear in
\nKesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952
\nand His Lordship held that the Directive Principles nevertheless are:\n<\/p>\n
 “…fundamental
\nin the governance of the country and all the organs of the  State,
\nincluding the judiciary are bound to enforce those directives. The
\nFundamental Rights themselves have no fixed content; most of them are
\nmere empty vessels into which each generation must pour its content
\nin   the light of its experience.”\n<\/p>\n
37.
\nIn view of such clear enunciation of the legal principles, I am in
\nclear agreement with Brother J. Singhvi that this Court has a duty to
\ninterpret statutes with social welfare benefits in such a way as to
\nfurther the statutory goal and not to frustrate it. In doing so this
\nCourt should make an effort to protect the rights of the weaker
\nsections of the society in view of the clear constitutional mandate
\ndiscussed above.\n<\/p>\n
38.
\nThus, social justice, the very signature tune of our Constitution and
\nbeing deeply embedded in our Constitutional ethos in a way is the
\narch of the Constitution which ensures rights of the common man to be
\ninterpreted in a meaningful way so that life can be lived with human
\ndignity.\n<\/p>\n
39.
\nCommenting on the importance of Article 38 in the Constitutional
\nscheme, this court in Sri Srinivasa Theatre and Others vs. Government
\nof Tamil Nadu and others<\/a> [(1992) 2 SCC 643], held that equality
\nbefore law is a dynamic concept having many facets. One facet- the
\nmost commonly acknowledged- is that there shall be not be any
\nprivileged person or class and that none shall be above the law. This
\nCourt held that Art 38 contemplates an equal society [Para 10, pg.
\n651].\n<\/p>\n
40.
\nIn Indra Sawhney and Others vs. Union of India and Others<\/a> [1992 Supp.
\n(3) SCC 217], the Constitution Bench of the Supreme Court held that:\n<\/p>\n
“The
\ncontent of the expression “equality before law” is
\nillustrated not only     by Articles 15 to 18 but also by the several
\narticles in Part IV, in particular,    Articles 38, 39, 39-A, 41 and\n<\/p>\n
46.”\n<\/p>\n
[at
\nParas 643, pg. 633]<\/p>\n
41.
\nTherefore, the Judges of this Court are not mere phonographic
\nrecorders but are empirical social scientists and the interpreters of
\nthe social context in which they work. That is why it was said in
\nAuthorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and
\nothers – [(1979) 3 SCC 466], while interpreting the land reforms Act,
\nthat beneficial construction has to be given to welfare legislation.
\nJustice Krishna Iyer, speaking for the Court, made it very clear that
\neven though the judges are “constitutional invigilators and
\nstatutory interpreters” they should “also be responsive to
\npart IV of the Constitution being “one of the trinity of the
\nnation’s appointed instrumentalities in the transformation of the
\nsocio-economic order”. The Learned Judge made it very clear that
\nwhen the Judges “decode social legislation, they must be
\nanimated by a goal oriented approach” and the Learned Judge
\nopined, and if I may say so, unerringly, that in this country “the
\njudiciary is not a mere umpire, as some assume, but an activist
\ncatalyst in the constitutional scheme.” [Para 1, p. 468]<\/p>\n
42.
\nI am in entire agreement with the aforesaid view and I share the
\nanxiety of my Lord Brother Justice Singhvi about a disturbing
\ncontrary trend which is discernible in recent times and which is
\nsought to be justified in the name of globalisation and
\nliberalisation of economy.\n<\/p>\n
43.
\nI am of the view that any attempt to dilute the constitutional
\nimperatives in order to promote the so called trends of
\n“Globalisation”, may result in precarious consequences.
\nReports of suicidal deaths of farmers in thousands from all over the
\ncountry along with escalation of terrorism throw dangerous signal.
\nHere if we may remember Tagore who several decades ago, in a slightly
\ndifferent context, spoke of eventualities which may visit us in your
\nmad rush to ape western ways of life. Here if I may quote the
\nimmortal words of Tagore:\n<\/p>\n
“We
\nhave for over a century been dragged by the prosperous West
\nbehind its chariot, choked by the dust, deafened by the noise,
\nhumbled by     our own helplessness and overwhelmed by the speed. We
\nagreed to     acknowledge that this chariot-drive was progress, and
\nthe progress was     civilization. If we ever ventured to ask
\n“progress toward what, and     progress for whom”, it was
\nconsidered to be peculiarly and ridiculously     oriental to
\nentertain such ideas about the absoluteness of progress. Of     late,
\na voice has come to us to take count not only of the scientific
\nperfection of the chariot but of the depth of the ditches lying in
\nits path.”\n<\/p>\n
44.
\nHow stunningly relevant are these words and how deep are the ditches
\ncreated in our society by the so called advance of globalization.”\n<\/p>\n
12.\tThe
\nApex Court, in case of Telco Convoy Drivers Mazdoor Sangh and Anr. v.
\nState of Bihar and Others,<\/a> reported in AIR 1989 SC 1565, observed in
\nPara.11 to 16 as under :\n<\/p>\n
“11.\n<\/p>\n
It is true that in considering the question of making a reference
\nunder Section 10(1), the Government is entitled to form an opinion as
\nto whether an industrial dispute “exists or is apprehended”,
\nas urged by Mr. Shanti Bhusan. The formation of opinion as to whether
\nan industrial dispute “exists or is apprehended” is not the
\nsame thing as to adjudicate the dispute itself on its merits. In the
\ninstant case, as already stated, the dispute is as to whether the
\nconvoy drivers are employees or workmen of TELCO, that is to say,
\nwhether there is relationship of employer and employees between TELCO
\nand the convoy drivers. In considering the question whether a
\nreference should be made or not, the Deputy Labour Commissioner
\nand\/or the Government have held that the convoy drivers are not
\nworkmen and, accordingly, no reference can be made. Thus, the dispute
\nhas been decided by the Government which is, undoubtedly not
\npermissible.\n<\/p>\n
12.
\nIt is, however, submitted on behalf of TELCO that unless there is
\nrelationship of employer and employees or, in other words, unless
\nthose who are raising the disputes are workmen, there cannot be any
\nexistence of industrial dispute within the meaning of the term as
\ndefined in Section 2(k) of the Act. It is urged that in order to form
\nan opinion as to whether an industrial dispute exists or is
\napprehended, one of the factors that has to be considered by the
\nGovernment is whether the persons who are raising the disputes are
\nworkmen or not within the meaning of the definition as contained in
\nSection 2(k) of the Act.\n<\/p>\n
13.
\nAttractive though the contention is, we regret, we are unable to
\naccept the same. It is now well settled that, while exercising power
\nunder Section 10(1) of the Act, the function of the appropriate
\nGovernment is an administrative function and not a judicial or quasi
\njudicial function, and that in performing this administrative
\nfunction the Government cannot delve into the merits of the dispute
\nand take upon itself the determination of the lis, which would
\ncertainly be in excess of the power conferred on it by Section 10 of
\nthe Act. See Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 :
\n(AIR 1985 SC 915) ; M.P. Irrigation Karamchari Sangh v. State of
\nM.P.,<\/a> (1985) 2 SCR 1019 : (AIR 1985 SC 860) ; Shambu Nath Goyal v.
\nBank of Baroda, Jullundur,<\/a> (1978) 2 SCR 793: (AIR 1978 SC 1088).\n<\/p>\n
14.
\nApplying the principle laid down by this Court in the above
\ndecisions, there can be no doubt that the Government was not
\njustified in deciding the dispute. Where, as in, the instant case,
\nthe dispute is whether the persons raising the dispute are workmen or
\nnot, the same cannot be decided by the Government in exercise of its
\nadministrative function under Section 10(1) of the Act. As has been
\nheld in M.P. Irrigation Karamchari Sangh’s case (supra), there may be
\nexceptionl cases in which the State Government may, on a proper
\nexamination of the demand, come to a conclusion that the demands are
\neither perverse or frivolous and do not merit a reference. Further,
\nthe Government should be very slow to attempt an examination of the
\ndemand with a view to declining reference and Courts will always be
\nvigilant whenever the Government attempts to usurp the powers of the
\nTribunal for adjudication of the valid disputes, and that to allow
\nthe Government to do so would be to render Section 10 and Section
\n12(5) of the Act nugatory.\n<\/p>\n
15.
\nWe are, therefore, of the view that the State Government, which is
\nthe appropriate Government, was not justified in adjudicating the
\ndispute, namely, whether the convoy drivers are workmen or employees
\nof TELCO or not and, accordingly, the impugned orders of the Deputy
\nLabour Commissioner acting on behalf of the Government and that of
\nthe Government itself cannot be sustained.\n<\/p>\n
16.
\nIt has been already stated that we had given one more chance to the
\nGovernment to reconsider the matter and the Government after
\nreconsideration has come to the same conclusion that the convoy
\ndrivers are not workmen of TELCO thereby adjudicating the dispute
\nitself. After having considered the facts and circumstances of the
\ncase and having given our best consideration in the matter, we are of
\nthe view that the dispute should be adjudicated by the Industrial
\nTribunal and, as the Government has persistently declined to make a
\nreference, under Section 10(1) of the Act, we think we should direct
\nthe Government to make such a reference. In several instances this
\nCourt had to direct the Government to make a reference under Section
\n10(1) when the Government had declined to make such a reference and
\nthis Court was of the view that such a reference should have been
\nmade. See Sankari Cement Alai Thozhiladar Munnetra Sangam v. Govt. of
\nTamilnadu, (1983) 1 Lab LJ 460; Ram Avtar Sharma v. State of Haryana,
\n(1985) 3 SCR 686 : (AIR 1985 SC 915); M. P. Irrigation Karamchari
\nSangh v. State of M. P.,<\/a> (1985) 2 SCR 1019: (AIR 1985 SC 860); Nirmal
\nSingh v. State of Punjab, (1984) 2 Lab LJ 396 : (AIR 1984 SC 1619).”\n<\/p>\n
13.\tIn
\nlight of aforesaid observations made by Apex Court as well as this
\nCourt and considering such challenge, for that petitioner is having
\nalternative remedy to raise all these contentions before the Labour
\nCourt. Such challenge cannot be entertained or encouraged by this
\nCourt while exercising discretionary powers being extraordinary
\njurisdiction of this Court under Article 226\/227 of Constitution of
\nIndia. Therefore, contentions raised by learned advocate Mr.Gogia
\ncannot be accepted. Therefore, there is no substance in present
\npetition. Accordingly, present petition is dismissed summarily.\n<\/p>\n
[
\nH.K.RATHOD, J. ]<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Golden vs Learned on 19 April, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/4032\/2011 57\/ 57 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4032 of 2011 ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-37530","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGolden vs Learned on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Golden vs Learned on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2011-04-18T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2019-03-16T11:27:01+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"85 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Golden vs Learned on 19 April, 2011\",\"datePublished\":\"2011-04-18T18:30:00+00:00\",\"dateModified\":\"2019-03-16T11:27:01+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011\"},\"wordCount\":16890,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011\",\"name\":\"Golden vs Learned on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2011-04-18T18:30:00+00:00\",\"dateModified\":\"2019-03-16T11:27:01+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/golden-vs-learned-on-19-april-2011#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Golden vs Learned on 19 April, 2011\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Golden vs Learned on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011","og_locale":"en_US","og_type":"article","og_title":"Golden vs Learned on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2011-04-18T18:30:00+00:00","article_modified_time":"2019-03-16T11:27:01+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"85 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Golden vs Learned on 19 April, 2011","datePublished":"2011-04-18T18:30:00+00:00","dateModified":"2019-03-16T11:27:01+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011"},"wordCount":16890,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Gujarat High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011","url":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011","name":"Golden vs Learned on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2011-04-18T18:30:00+00:00","dateModified":"2019-03-16T11:27:01+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/golden-vs-learned-on-19-april-2011#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Golden vs Learned on 19 April, 2011"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/37530","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=37530"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/37530\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=37530"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=37530"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=37530"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}