Calcutta High Court (Appellete Side)
N.T.P.C. Ltd vs Union Of India & Ors on 28 February, 2014
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present :
The Hon'ble Justice Soumen Sen
W.P.21716 (W) of 2013
N.T.P.C. Ltd.
Vs.
Union of India & Ors.
With
W.P.1357(W) of 2014
N.T.P.C. Ltd.
Vs.
Union of India & Ors.
With
W.P. 1366 (W) of 2014
N.T.P.C. Ltd.
Vs.
Union of India & Ors.
For the plaintiff : Mr. Soumya Majumdar,
Mr. Uttam Kumar Mondal
For the respondent No.3 : Mr. J. Das Gupta,
Mr. R. Guha Thakurta For Union of India : Mr. Asish Kumar Roy (in W.P.21716(W) of 2013) Heard on : 19.02.2014, 20,02.2014, 27.02.2014 Judgment on : 28th February, 2014 Soumen Sen, J.:- All the matters are taken up analogously and disposed of by this common judgment and order.
The subject matter of challenge in this writ petition are three similarly worded orders of reference all dated 28th February, 2013.
The petitioner challenging the said orders contended that the appropriate Government is perverse and suffers from total non-application of mind. The said submission is based on the premise that the respondent Nos.3, 4, 5 and 8 are registered trade unions of the Contractors engaged at N.T.P.C., F.S.T.T.P. protecting the interest of the contractor's workman. The petitioner's company does not employ any workman of the contractor directly and there is no existence of any master-servant relationship between the petitioner-company and the said respondents.
The respondent No.7 is an association formed by the contractors who are engaged by the petitioner-company for the purpose of execution of various exigencies of work. The petitioner-company does not exercise any supervision, administration and control over the work performed by the workman. In or about May, 2010 the respondent trade unions raised an issue with the Assistant Labour Commissioner (Central) Kolkata, regarding discrimination in payment of wages and other fringe benefits of some contract workers working without 'norms' under different contractors in the NTPC. It was alleged in the said proceeding that there is a major discrimination concerning unequal payment of wages and other fringe benefits for which there is a resentment among 'non- norm' workers since their wages and fringe benefits are not at par with the 'norms' workers engaged by the contractors of the petitioner-company.
The present conditions of service of the norm labourers of the contractors have been regulated by settlement executed on November 29, 2009 by and between the Association of Contractors/contractors and the contract labourer's union, i.e. the workmen of the contractors represented by their trade unions. They are reportedly the workers of the contracts who have worked with their employer/contractors under various contracts and settlement since 4th November, 1987 and by reason of their experience and length of service they were paid certain additional benefits by their employers in terms of various settlement executed between 1987 and November, 2009.
The petitioner was summoned for conciliation in a dispute raised by the respondent trade unions before the respondent No.2 by notice dated 2nd August, 2010. The said notice was issued following the representation received from Farakka NTPC Contractors' Shramik Union, F.S.T.P.P.P.R.S Contract Workers Union and F.S.T.P.P. Ltd. Thika Sramik (Service & Maintenance) Union (CITU) regarding payment to workers working under various contractors in all sites of NTPC, Farakka. Thereafter, the respondent No.2 intimated the petitioner that there is no such term used as 'norm' or 'non-norm' in Labour laws in respect of contract labourers and they are categorized in four categories, unskilled, semi- skilled, skilled and highly skilled and, therefore, these type of categorization of norms and non-norms is obviously creating resentment amongst the workers, those who are continuing since long. The petitioner was requested to look into the matter and discuss the matter with the Union and try to find out the ways and means so that this discrimination, if any, could be sorted out without any further delay.
The petitioner, however, by letter dated 21st September, 2010 expressed his inability to attend the meeting since according to the petitioner the dispute is essentially regarding payment of wages between the workers of the contractors and the contractors and NTPC being a principal employer had no role to play in the matter. However, the petitioner clarified that all the contracting agencies have been directed to pay their workers minimum wages and there is no dispute regarding payment of minimum wages.
The respondent No.2, thereafter, on 10th November, 2010 invited the petitioner for a joint discussion in order to investigate the factual position although in such communication the said authority had acknowledged that the employer and employee relationship in the instant case exists between the contractors and their workmen represented by respondent Nos.3, 4 and 6 respectively. The petitioner stated that curiously the real employees, namely, the contractors or their association, namely, respondent No.7 was, however, not summoned to appear before the conciliation proceeding. The petitioner, thereafter, also clarified that as a principal employer that the petitioner did not have the power to delve into the categorization of skilled levels required for execution of any work which is carried out by any employer-contractor under a contract executed with NTPC Farakka. It was further clarified that the wages were being paid to the contract workers in terms of the wage settlement by and between the Employers/Contractor's Association and their workmen which adopted central wages as the basis of deciding remuneration/wages which took shape of 'Agreed wages'. The NTPC, Farakka is merely instrumental in discharging its obligation in terms of the settlement arrived at between the Employer's Contractors Association and their workmen and two responsible officers of the NTPC had signed the said settlement as a witness to assure that such settlement would be upheld by the NTPC.
Thereafter, the petitioner had submitted the name of list of contractors and contract labourers as and when asked for by the respondent authorities. On 25th October, 2012, the Assistant Labour Commissioner (Central) Kolkata as the Conciliation Officer has filed the failure report following which, the respondent No.2 the under Secretary to the Ministry of Labour, Government of India passed the order dated 28th February, 2013, inter alia, observing that the Central Government was of the opinion that industrial dispute exists between the employers in relation to the management of NTPC Ltd., FSTPP and their workmen regarding justifiability of the action of the management of NTPC in implementing/allowing two types of wages for contracted workers like norms and non-norms and by the said order the Central Government referred the dispute to the Central Government Labour Tribunal-cum-Labour Court.
Mr. Majumdar, appearing for the petitioner submits that the said order of reference is ex-facie perverse and illegal inasmuch as the alleged discrimination, if any, of the so-called non-norms contract labourers was the result of settlement/agreement entered into by and between the representatives of the contractors association and the trade unions representing the workmen wherein NTPC was a mere witness as a principal employer.
The learned Counsel has referred to the recitals of the agreement dated 26th November, 2009 which records that the NTPC Farakka has been engaging different contracting agencies for execution of different nature of works from time to time who have formed themselves into an Employers' body, namely, Farakka Nabarun Civil and Technical Contractors' Association. The agreed wages and benefits for the contract workers of different contractor's establishment/undertaking who were engaged in executing various contractual and contingent nature of maintenance works in NTPC Farakka were earlier decided by and between the above parties in the meetings held on 1st August, 1996 and the financial benefits as decided are continuing. The unions, thereafter, represented before Deputy Chief Labour Commissioner (Central), Kolkata by their joint letter dated 7th July, 2009 and during conciliation proceedings held on 27th July, 2009 and 28th August, 2009 before the said authority, it was decided that issues raised by the said unions should be resolved amicably through discussions and, accordingly, the deliberations between the parties took place which has culminated in the said settlement dated 26th November, 2009. It was, thus, submitted that the NTPC is merely implementing the said settlement arrived at between the said parties and is nowhere connected with the terms of employment and of conditions of service of such workmen, vis-à-vis their contractor.
The learned Counsel has referred to a communication dated 10th November, 2010 from the Ministry of Labour & Employment to the General Manager, NTPC and submitted that the said authority has admitted that the employer-employee relationship in the instant case exists between the contractors and their workmen and NTPC was requested to participate in the discussion and/or conciliation proceeding in order to investigate the factual position and to resolve the impasse so that industrial peace and harmony could not be maintained. The NTPC has no role to play in introducing the norm and non-norm categorization of workers of the contract labourers and NTPC is only disbursing the amount that was required to be paid on the basis of the settlement arrived at between the Contractor's Association as employers and, thus, workmen on 26th November, 2009.
It is submitted that the respondent No.2 in total non-application of mind has couched the reference in such a manner which has prejudicially affected NTPC since NTPC is in no way involved with the dispute existing between the Contractor's Association and their workmen. The reference as worded gives a clear indication according to Mr. Majumdar that NTPC is responsible for implementing two types of wages for the contractual workers like norms and non-norms when factually it would appear that discrimination, if any, is the result of the settlement dated November 26, 2009 between the Contractor's Association and their workmen. NTPC has nothing to do with the payment of such wages.
Mr. Majumdar has relied upon a Division Bench judgment of our High Court in F.M.A. 3/12 (Indian Oil Corporation Ltd. Vs. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Asansol, West Bengal & Ors.) and submitted that when the materials on record would clearly show that there is no existence of employer-employee relationship, the Court is competent to go into such question and decide the matter on the basis of the materials that were placed before the appropriate authority for the purpose of formation of opinion and to find out the real identity of the parties who can be brought to the arena of the reference. It is submitted that the Hon'ble Division Bench in the said judgment has negated the observation of the Trial Court that such question, namely, whether the engagement of the security guard by the security agency was in effect a direct employment given by the employer and the security agency was only a ruse or camouflage being a disputed question of fact cannot be gone into and decided in a writ petition.
In Indian Oil (supra) it appears that the issue arose with regard to the regularization of certain employees of a security agency appointed by Indian Oil Corporation Ltd. who claimed absorption of their services in Indian Oil Corporation Ltd. The dispute that was referred to the Industrial Tribunal appears to be that whether the action of the management of the Durgapur Divisional Office of the Indian Oil Corporation Ltd. in denying the regularization of services of five persons was legal and justified. This order of reference was challenged with the specific allegation that the five persons named in the said reference were all employees of the contractor of Indian Oil Corporation Ltd., namely, M/s. Lock Jaw. The said workmen contended that they were engaged for the purpose of maintaining security service for years and the job was perennial in nature. According to them, contracts of contract labours are sham or camouflage and the Indian Oil Corporation as principal employer cannot be relieved of its liability. The said respondents specifically contended that the contractors never recruited the said respondents as their own staff but only recruited for the purpose of employment in the said corporation and these security agencies were merely name-lenders and the real employer was the Indian Oil Corporation. The learned Single Judge dismissed the petition holding that whether a person is an employer or not is a disputed question of fact and this cannot be gone into by the writ court. Reversing the said order of the learned single Judge, the Division Bench held that the learned single Judge has completely glossed over the fundamental issues with regard to the jurisdiction of the Tribunal. Underlying the whole challenge by the Indian Oil Corporation lay the assertion that the dispute raised by the concerned respondents boiled down to abolition of contract labour and an Industrial Tribunal lack jurisdictional competence to go into it.
The Division Bench noticed that from the conciliation report it appears that the said respondents had been working continuously as security guards/gunmen since 1991 to 1992 through four contractors engaged by the management periodically. The dispute relating to denial of regularization of service basically originate from, and could not be decided without first deciding the issue of abolition of contract labour. The said issue was never raised and, accordingly, not referred to for adjudication. If the principal issue giving rise to the same cannot be decided by any authority decision on an aspect originating therefrom must be held to be necessarily barred and beyond the scope of the said authority to adjudicate. It was further held that it cannot be gainsaid that the documentary evidence including the statements made by the concerned respondents workmen in their written statement evinced that the respondents were employed by the respective security agencies. It was held that Industrial Tribunal cannot decide a question relating to claim of regularization and, accordingly, the said reference was held to be invalid.
Per contra, Mr. J. Dasgupta, learned Counsel representing the respondent No.3 submitted that the appropriate Government on proper consideration of the materials on record has formed an opinion that an Industrial Dispute exists between the parties before making a reference and it cannot be said that the said order of reference is perverse or suffers from non-application of mind. Mr. Dasgupta has referred to various settlements starting from 1987 till 2009 and submitted that excepting for settlement arrived on November 26, 2009 in all earlier settlements, NTPC Ltd. has actively participated which would go to show that NTPC was very much involved in the entire matter and NTPC at this stage cannot shrug off its responsibility. It is submitted that the other unions have clandestinely entered into a secret arrangement with the management of NTPC with a view to deprive the respondent No.3 and other respondent unions. This issue can only be decided if a proper trial takes place in terms of the reference.
The learned Counsel has referred to the preamble of the settlement of November, 2009 to show that the participation of NTPC in all the earlier settlements has been duly recorded and submitted the only inescapable conclusion that can be reached on the basis of the documents available on record and were placed before the Conciliation Officer is that the order of reference has been properly worded. The learned Counsel has referred to Paragraph 4 of the affidavit-in-opposition and various sub-paragraphs thereunder in which the said respondents have contended that the terms and conditions of employment of such contract labourers have been governed by the terms of settlement by and between different trade unions represented by such workmen and the management of the writ petitioner, namely, the settlements dated November 01, 1987, January 01, 1991, January 25, 1994 and July 22, 1996. The respondent No.3 has been championing the cause of such workmen and have protested against such continuos employment of contract labours which forced the management of the writ petitioner to insert an artificial intermediary. It was further argued that the other functioning trade unions are not championing the cause of the workmen properly for which the respondent No.3 refused to become parties to the settlement dated November 26, 2009. The learned Counsel has referred to the protest letter dated 18th February, 2010 against modification of the existing contract as per agreement with effect from 1st November, 2009 addressed to the General Manager, NTPC, Farakka as also the representation to the Deputy Chief Labour Commissioner in which it was stated that the said Union had recently come to learn that the contractor of NTPC under the guidance and management of NTPC has executed a secret agreement with some trade unions regarding new system of salary/wages for regular contract workers and had created a division between two types of workers silently declaring them as norms and non-norms based which had caused immense prejudice to the private respondents.
The other representation annexed to the said affidavit are Bharatiya Majdoor Sangh in which the said trade unions has complained that the contractor's association had made agreement of wages with the other three unions keeping the said union in dark and the said settlement is prejudicial to their interest.
The scope of interference with the order of reference has come up time and again before various Courts including the Apex Court. The Court in finding whether the reference has been properly made is required to ascertain as to whether on the basis of the materials available with the authority concerned, the said authority could come to the said conclusion and at least form a prima facie view that an industrial dispute exists or apprehended and such industrial dispute exists between the parties named in the said reference order. The mistake in a reference as regards the identity of the parties to the dispute is a material defect.
Under the scheme of the Act, the employer-employee relationship between the management and the workers concerned is a sine qua non for holding that the latter are workmen of the employer from whom they claim relief. It is the existence of this jural relationship which is fundamental to the issue and decides the jurisdiction. The Government on the basis of the materials on record is required to arrive at a conclusion that a prima facie case for reference has been made out and then only it would be open to the Government to consider whether there are any other relevant or material facts which would justify it to refuse a reference. Normally, the Government refers the dispute for adjudication. At the same time before making reference the Government should ascertain if the claim is stale or is opposed to the provisions of the Act or inconsistent with any agreement between the parties or patently frivolous or the person concerned is not a workman as defined under the Act. The Government should not act on irrelevant and extraneous considerations. The Government shall act honestly and bona fide and should not embark on adjudication of the dispute. It would be worthwhile to refer to some of the decisions and examine if the instant order of reference calls for interference.
In Royal Calcutta Golf Club Mazudur Union Vs. State of West Bengal & Ors. reported in AIR 1956 Cal 550 it was held that the power of the Government to refer or its duty to refer, as laid down in S.10, is subject to two qualifications. Firstly, it has to arrive at a subjective opinion as to whether any industrial dispute exists or is apprehended. Secondly, even if it does come to such a conclusion, or even if the facts are so patent that the existence of a dispute cannot be denied, still, the expediency to refer to adjudication is left open to Government. In other words, because a dispute exists it does not follow that it must be referred. As framed, the section does not even speak of the existence of an industrial dispute, but as to the opinion of Government as to whether it exists or is apprehended. Government cannot make a dispute which is not an industrial dispute into an industrial dispute, because that is an objective fact. But it is the sole arbiter in deciding whether an industrial dispute exists on is apprehended. That is purely subjective.
The wordings of sub-s. (5) of S. 12 are slightly different from the opening words of S.10. What the Government has to be satisfied upon receiving a report, as laid down in S.12 (5), is as to whether there was a 'case for a reference' to a Board or Tribunal. These words are very wide, and include the question as to the existence of a dispute and as to the expediency of referring. The only difference is that in case Government chooses not to refer a matter for adjudication, it must record and communicate to the parties, the reason.
In Gouripore Co. Limited & Ors. Vs. State of West Bengal & Anr. reported in 1975 (1) LLJ 247, a learned Single Judge held that an order of reference under Section 10(1) of the Act can be challenged in an application under Article 226 of the Constitution of India that it can be challenged on the grounds that the (i)order is void ab initio (ii) without jurisdiction or (iii) when the order of reference is made in bad faith or mala fide or (iv) the appropriate Government had no material before it or (v) it did not apply its mind to a material fact or (vi) has taken into consideration some irrelevant or extraneous considerations or (vii) has not taken into consideration certain vital facts and materials which it ought to have taken into consideration.
But if the order is sought to be challenged on the ground that what was referred to was not an "industrial dispute" or the persons about whom reference was made were not "workmen" within the meaning of the Act, the decisions of those questions call for an examination of facts and the writ Court cannot go into that question.
The petitioners challenge the order of reference dated July 7, 1972, by which the grade and scale of pay of supervisory personnel was referred to by the State Government for adjudication before the 8th Industrial Tribunal. It was alleged by the petitioners that no members of the supervisory staff employed in the petitioners' jute factory was a "workman" as defined in S.2(s) of the Industrial Disputes Act, 1947, as they were not only employed in supervisory capacity but were also employed to do "mainly" managerial or administrative duties on account of the nature of duties attached to their office and by reason of the powers vested in them.
The learned Single Judge held that whether supervisory personnel are workmen or not cannot be decided without proper materials or evidence as to the main functions of their work. It would not be proper for the writ court to enter into an examination of facts which can lead to a correct answer to the question whether supervisory personnel are workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. These matters can only be decided by the Tribunal on the basis of the evidence to be laid before it.
In M/s. Aaj Kaal Publishers Pvt. Ltd. Vs. State of West Bengal & Ors. reported in CLT 1992(1) HC 446 it was held that an order of reference is open to judicial review if it is shown that an appropriate Government has not applied its mind to the material before it or has not taken into consideration certain important facts which it ought to have taken into consideration. The Government is required to take into consideration the relevant materials and formed its opinion on proper and meaningful considerations of such materials. However, subjective the satisfaction of the State Government may be, if the satisfactions or considerations not germane to the issue, then the opinion has to be interfered under Articles 226 and 227.
In Moolchand Kharati Ram Hospital K. Union Vs. Labour Commissioner & Ors. reported in 2000(2) LLJ 1411: 2001 Lab IC 2147 the Hon'ble Supreme Court held that even if it is assumed that the nature of the order making a reference is administrative in character, it is certainly open to the High Court to examine whether relevant considerations in making the reference had been taken note of or not.
In Secretary, Indian Tea Association Vs. Ajit Kumar Barat & Ors. reported in 2000 (3) SCC 93 it was held that the pre-requisites for making a reference by the appropriate Government under Section 10 of the Industrial Disputes Act are (i) forming an opinion as to whether the employee concerned was a workman, (ii) considering as to whether an industrial dispute existed or was apprehended.
In the aforesaid decision in Paragraph 7 the law on the subject has been summarized which are stated below:-
"7. The law on the point may briefly be summarised as follows:
1. The appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended and if such a reference is made it is desirable wherever possible, for the Government to indicate the nature of dispute in the order of reference.
2. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi-judicial one and the Court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial order.
3. An order made by the appropriate Government under Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government.
4. If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the court may in a given case consider the case for a writ of mandamus.
It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act." In Nedugadi Bank Ltd. Vs. K.P. Madhavankutty & Ors. reported in 2000 (2) SCC 455, the Hon'ble Supreme Court reiterated that although the order under Section 10 of the ID Act is an administrative order but the said order would be amenable to judicial review if it appears from a reading of the said administrative order that it has failed to take into consideration statutory requirements or travels outside its jurisdiction. The relevant observations of the Hon'ble Supreme Court are stated below:-
"8. It was submitted by the respondent that once a reference has been made under section 10 of the Act a Labour Court has to decide the same and the high Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its powers under Article 226 of the Constitution to consider the question of the very jurisdiction of the Labour Court. In National Engg. Industries Ltd. Vs. State of Rajasthan this Court observed:
"24. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference."
In Mecon Limited Vs. State of West Bengal & Ors. reported in 2001(1) LLJ 1383: 2001(1) CHN 333 a learned Single Judge while considering the scope of judicial review of an order of reference made under Section 10 of the Industrial Disputes Act, held that in making reference, the appropriate Government does an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative act. The Court, therefore, cannot canvass the order of reference closely to see if there was any material before the Government to support its conclusion as if it was a judicial or quasi-judicial determination. It was further held that the contention of the petitioner that there exists no relationship of employer and employee between the parties is a matter which has to be canvassed by the petitioner before the Tribunal and it is for the Tribunal to adjudicate such issue on the basis of the materials that would be placed before it.
In Bharat Coca-Cola Bottling South East Pvt. Ltd., Vs. Government of A.P. & Ors. reported in 2002(1) LLJ 753 it was held that if under circumstances the relationship of employer and employee cannot be presumed an industrial dispute would not be maintainable. In Bharat Coca-Cola (supra), the petitioner company impugned a reference by the State Government of an alleged industrial dispute concerning 61 piece rated and casual workers of another company whose business was purchased by the petitioner company. The High Court held that the impugned reference suffered from non-application of mind on the part of the Government in disregarding the fact that the Clause
(c) of the Proviso appended to Section 25-F would apply only in the event of a change of employer by reason of transfer. Section 25-F clearly postulated relationship between the workmen and transferor company. The transferor company was not made a party to the reference. The petitioner was also under no statutory or contractual obligation to take over the workmen of the transferor in its service. The Hon'ble Division Bench observed that the statutory functionary before exercising discretionary power must pose the right question so as to acquaint itself with the correct state of affairs with a view to reach a right conclusion failing which it would be guilty of committing a misdirection in law. What would constitute an error of law was discussed in Paragraph 27 and 28 of the said report which are stated below:-
"27. A Division Bench of the Calcutta high Court in Santiniketan Society v. State, 2001(1) ICC 449, has noticed what would constitute an error of law thus:
"In DE SMITH, WOOLF AND JOWELL ON JUDICIL REVIEW OF ADMINISTRATIVE ACTION, 5th Edn page 286, it is stated: The concept of error of law includes the giving of reasons that are bad in law of (where there is a duty to give reasons) inconsistent, unintelligible or substantially inadequate. It includes also the application of wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Error of law also includes decisions which are unreasonably burdensome or oppressive. Thus whether or not the drawing of an inference from the primary facts, or the application of a statutory term to the facts and inferences drawn therefrom, is held or assumed to be a matter of fact (or fact and degree) or a matter of law, the Court may still hold the decision erroneous in points of law if any of the above defects is present."
This aspect of the matter has also been considered in Sushil Kumar Sasmal v. State of West Bengal, reported in 1999(1)CHN 92, wherein it has been held:
"If a statutory authority takes into consideration irrelevant fact and fails to take into consideration relevant fact, an error on the fact of the record is committed. It is further well known that a statutory authority must pose unto himself the correct question so as to acquaint himself with the fact of the matter with a view to answer the jurisdiction question, failing which he would be guilty of commission of misdirection in law."
28. In Secretary of State v. Tameside, 1976 (3) All E R 665, it was held:
"Had there been factual foundation on the basis of which reasonable conclusion could be arrived at that the petitioners were guilty of actual misappropriation, it would have been a different matter. Here it appears that the authority passing the impugned order did not ask itself the right question and take reasonable step to acquaint itself with the relevant information to enable it to answer it correctly. This amounts to misdirection in law."
In ANZ Grindlays Bank Ltd. Vs. Union of India & Anr. reported in 2005 (12) SCC 738, the Hon'ble Supreme Court considering the scope of interference with an order of reference under Section 10 of the Act held as follows:-
"It is true that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of the appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was no occasion for making a reference. However, this is not a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in proceedings under Article 226 of the Constitution as no evidence is required to be considered for examining the issue raised.
In National Engg. Industries Ltd. v. State of Rajasthan (2000 (1) SCC
371) this Court held as under in para 24 of the Report:
"It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it."
In view of the discussions made above it is manifestly clear that there is no industrial dispute in existence nor is there any apprehended dispute between the appellant Bank and Federation (the second respondent) and as such there is absolutely no occasion for making any reference for adjudication by the Industrial Tribunal. The reference being wholly futile, the same deserves to be quashed."
In ANZ Grindlays (supra), a settlement was arrived at between the employer and majority union. The minority union was not a party to such settlement. The employer thereafter extended the benefits of such settlement to the members of the minority union but on giving of receipt in respect thereof. The appropriate Government made a reference under Section 10 raising an issue with regard to the validity of the said settlement and mode of its extension at the instance of the minority union. This reference was challenged by the management, namely, ANZ Grindlays Bank. The reference made by the appropriate Government reads as follows:-
"6. ..........................................................................................
"Whether the terms of the bipartite settlement dated 18-8-1996, between the management of ANZ Grindlays Bank Limited, and the All India Grindlays Bank Employees' Association which bound withholding of benefits of settlement to workmen who are not members of the All India Grindlays Bank Employees' Association until individual gives acceptance of the settlement in the given format is legal and justified? If not, to what relief are the workmen entitled to?"
Feeling aggrieved by the aforesaid reference made by the Central Government, ANZ Grindlays Bank filed a writ petition under Article 226 of the Constitution before the Bombay High Court for quashing and setting aside the same. The writ petition was dismissed by a learned Single Judge and the appeal preferred against the said decision before the Division Bench also failed."
The Hon'ble Supreme Court on construction of Section 18 of the Industrial Disputes Act held that since the said settlement finds only members of majority union in terms of Section 18(1) and there is nothing improper in making a demand of receipt from the members of minority union for availing benefit of the said settlement, the act of the management to demand receipt from the members of the minority union on the ground of such settlement would not give rise to any dispute between the employer of the minority union resulting an order of reference being made by the appropriate Government as mentioned hereinabove. It was held that employer extending benefits of the settlement arrived at between the employer of the majority union to the members of the minority union on terms is permissible and the employer was perfectly justified in asking for a receipt from those employees who were not members of majority union but wanted to avail benefits of the said settlement.
In Birla Corporation Ltd. Vs. First Industrial Tribunal & Ors. reported in 2006 (3) LLJ 84: 2006(2) CHN 13 a learned Single Judge of this Court has set aside the order of reference on the ground that an employer had unfettered right to select the place of business according to his choice and shifting itself could not constitute an industrial dispute. It was held that the invocation of jurisdiction for making a reference depends upon the formation of an opinion regarding the existence of an industrial dispute or apprehension thereof, the Court would, therefore, have to examine as to whether the dispute which was referred to the Tribunal by the order of reference amounts to an industrial dispute and if it is found on the face of the order of reference has no relation to an industrial dispute then the Court in its constitutional writ jurisdiction can certainly nip in the bud, the reference, at the initial stage as it would be without jurisdiction. The learned single Judge referred to and relied upon ANZ Grindlays (supra) in this regard. The said judgment was affirmed in appeal reported in 2008(4) CHN 592 (Birla Corp. Ltd. Unit Soorah Jute Mills' Shramik Union Vs. Birla Corp. Ltd. & Ors.). It was held that existence or apprehension of any industrial dispute is sine qua non.
In Rashtriya Chemicals & Fertilizers Ltd. & Anr. Vs. General Employees' Association & Ors. reported in 2007(5) SCC 273 after considering a catena of decisions on this point it was held that the appropriate Government would be required to apply its mind to relevant factors and satisfied itself as to the existence of a dispute before deciding to refer the dispute for adjudication.
The Hon'ble Supreme Court amongst others has referred to its earlier decision in Steel Authority of India Ltd. Vs. Union of India reported in 2006(12) SCC 233 where it was held that:-
"For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of Section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to a Labour Court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact no employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court.
We would, however, hasten to add that this judgment shall not come in the way of the appropriate Government to apply its mind for the purpose of issuance of a notification under Section 120 of the 1970 Act."
Thus to sum up, it can be said that the validity of reference under Article 226 of the Constitution of India can be examined, inter alia, among others, (i) when it is manifestly clear that there is no dispute and the futility of reference is evident from a bare reading of the terms of reference and admitted facts, as when the reference did not refer any dispute, existing or apprehended or did not refer any demand or claim by the federation. (ii) when the appropriate Government takes into consideration irrelevant facts and fails to take into consideration relevant facts in making the reference or the opinion formed by the appropriate Government suffers from non-application of mind (iii) if it does not take into consideration statutory requirements or travels outside the orbit of the Act or suffers from misconception of law as in the case of Bharat Coca Cola or the real dispute has not been referred because vital material produced by the management has not been taken into consideration.
When the referring authority while making the order of reference fails to consider the material placed before him on the point as to (I) the existence of industrial dispute; (ii) whether the claimants were prima facie 'not workman'; and (iii) whether it was expedient to make a reference, it would be a case of non- consideration or non-application of mind of relevant factors which are mandatory under the law in the face of the law laid by the Apex Court.
The High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and non apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal. It is a question of jurisdiction of the Industrial Tribunal which can be examined by the High Court in its writ jurisdiction. (See Law on Industrial Disputes by Vithalbhai B Patel, 4th Edn) The undisputed fact which emerge and needs no further elaboration is that the contractors have been employed by NTPC at various projects at its various sites and the said contractors are employing workmen for executing such work. Till 2009, several bipartite settlement has been arrived at between the contractors and their workmen. In 2009 a fresh agreement was arrived at. It is true that two officers of NTPC Ltd. has signed the said settlement of November 26, 2009 as witnesses but that does not mean that they became parties to the said settlement.
The Assistant Labour Commissioner (Central) Kolkata in his communication dated 11th November, 2010 has clearly acknowledged that no employer-employee relationship in the instant case exists between the contractors and their workmen. However, in order to investigate the factual position the NTPC was invited to participate in the joint discussion. NTPC has furnished the details as asked for. There is no finding even prima facie by the authorities concerned that the said employees are the employees of NTPC Ltd. There is not even a prima facie formation of opinion that NTPC has anything to do with the said bipartite settlement or the categorization of norms and non- norms categorization of which the respondent No.3 has alleged discrimination. The said respondent No.3 has not even contended before the Conciliation Officer or before any other authority that the said contract or contractors are camouflaged or ruse or artificial intermediary. The said respondent No.3 is not claiming any absorption. The materials on record clearly suggest that the said respondent no.3 and its members are not the employee or workmen of the petitioner's establishment. On the contrary the said respondents had submitted that they had been working continuously through the contractors engaged by NTPC for its various projects. The Conciliation Officer has also recorded that the NTPC has contended that the norms labour were paid higher benefits by their employer contractor on account of an agreement of November 26, 2009. It is clear from the documents disclosed in this proceeding that the dispute is essentially arising out of the implementation of the agreement between the contractor and a section of its employees.
On the basis of the aforesaid and various correspondences exchanged by and between the parties it appears to me that the appropriate Government has failed to apply its mind. While wording the said reference since any reasonable person conversant with such facts could not have couched the said reference in the manner in which it has been done. It is one thing to say that if the Labour Court considers that the presence of NTPC would be necessary for deciding the issue or for enforcement of an award it had ample opportunity to add or admit a party to the dispute but that does not mean that the order of reference would be couched in such a manner which would involve NTPC in the dispute, as if the real dispute is between that party and the respondent No.3. Curiously other unions are not contesting this writ petition save and except Respondent No.3. It is true that in the nature of things there can be no set form of the order of reference to be made. It must be couched in such a language which would reflect the real dispute between the parties. The reference as worded would indicate that the real dispute is between NTPC Ltd. and the workmen of the contractor. This is my view, could not have been done on the basis of the materials on record.
Mr. Dasgupta has referred to 2006 SCC (L&S) 577: 2006(3) SCC 674 (A.P. SRTC & Ors. Vs. G. Srinivas Reddy & Ors.) for the proposition that it is the duty of the industrial adjudicator to go into such question and decide whether NTPC is required and obliged as principal employer to pay wages to the workers of the contractors and the Writ Court will not interfere with such reference at this stage. However, on a reading of the said judgment, I am unable to agree with the submission to Mr. Dasgupta.
In APSRTC (supra), the Hon'ble Supreme Court held that if the persons employed as contract labour claims absorption, the only remedy is to approach the Industrial Tribunal and establish that the contract labour system under which they were employed was only a ruse/camouflage to avoid labour law benefits to them and that they were in fact the direct employees of the management. Moreover, the instant case does not relate to absorption inasmuch as no such claim was even made during conciliation. No plea regarding agreement/engagement of contract labour being sham or bogus raised before such authorities.
Mr. Ashish Kumar Roy, the learned Counsel representing the Union of India in W.P. 21716 (W) of 2013 submitted that the matter should be left to the Industrial Tribunal before whom NTPC can raise such point of demurer. The Union of India is not represented in the other matters. The respondent No.3 has not filed any affidavits. The said respondent has not produced any record or material to justify the order of reference. On the basis of the materials on record, in my view, the appropriate Government has not posed the right question unto itself.
However, this order of dismissal shall not preclude the respondent No.1 to make proper reference considering the nature of dispute existing between the respondent No.3 and the contractors employing them. It is also made clear that this order shall not prevent the Tribunal to order the presence of NTPC, if so required, since the law is well-settled in view of the decision of the Hon'ble Supreme Court in Hochtief Gamon Vs. Industrial Tribunal reported in AIR 1964 SC 1746. The respondent No.1 shall pass an appropriate order of reference within a period of four weeks from the date of communication of this order.
For the reasons recorded above, the writ petition succeeds. The order of reference dated Feb 28, 2013 is set aside. However, there shall be no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)