Gujarat High Court
Rashtriya vs Union on 25 June, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/24358/2007 14/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 24358 of 2007
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RASHTRIYA
MAZDOOR UNION - Petitioner(s)
Versus
UNION
OF INDIA & 2 - Respondent(s)
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Appearance
:
MR
RAJESH P MANKAD for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1,
MR RR
MARSHALL for Respondent(s) : 2,
RULE NOT RECD BACK for
Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 25/06/2010
ORAL
ORDER
1. Heard learned advocate Mr.R.P.Mankad for petitioner and learned Senior Advocate Mr.R.R.Marshall for respondent No.2.
2. Rule is not received back for respondent No.3 and Rule is served to respondent No.1 but, no appearance is filed by him.
3. In present petition, petitioner has challenged order passed by respondent No.1 dated 14.2.2007 (Annexure-A) to this petition. The respondent No.1 come to conclusion having prima facie opinion that industrial dispute which has been raised by petitioner Union does not consider fit for adjudication for following reasons :
The workmen were not appointed by the Management of ONGC but, employed by the contractor. The activities in which the workmen were engaged are not prohibited under the Contract Labour Regulation and Abolition Act.
4. The dispute which has been raised by petitioner Union on 20.12.2005, is quoted as under :
The 23 contract employees whose details are as shown in the attached list are working for you since last 2 to 5 years. They are being paid minimum wages and in many case less than minimum wages and with no other benefits. They are working on perennial nature jobs and directly under the supervision and control of the principal employer.
Their services are continuous without any break and their past records of service are clean and blotless. They have completed more than 240 days attendance every year.
However, you have not regularized their services, even after 2 to 5 years of continuous services and continue to exploit them by paying meager wages and denying other benefits, which is not just and fair.
It is therefore, demanded that their service be regularized from completion of one year's continuous service, or be paid equal remuneration as are being paid to the permanent U/S, S/S and skilled employees of the company.
5. Thereafter, intervention letter has been addressed to Assistant Labour Commissioner (Central) by petitioner Union on 10.1.2006. Thereafter, conciliation proceeding has been commenced and on 11.8.2006, failure report has been submitted by conciliation officer to respondent No.1 under Section 12(4) of the I.D.Act,1947.
5.1 According to Conciliation Officer (Central) in spite of best possible efforts made by him but, the dispute could not be resolved amicably as both the parties having diversion views and opinion. The petitioner Union has submitted decision in support of their demand which is at Page-29, which is quoted as under :
The union submits its justification in the above matter as follows :
1. The workmen whose details are shown in the list with the demand are working ONGC Ltd., Ankleshwar Project, since last 3 to 7 years. Their services are continuous and uninterrupted. They have put in more than 240 days of attendance in each of the years.
2. That the nature of work they perform are of perennial nature and it is indisputable of the whole asset of Ankleshwar Project of ONGC Ltd.
3. That the so called contractor has not recruited these workmen. The contractors are change periodically, but these workmen are continuing on the job of ONGC Ltd.
4. That the so called Labour supply contract is sham and bogus and devised to exploit the labour, which has no justification continue. Hence, their services should be regularized.
5. That these workmen are paid Rs.3,500/- approx. only per month as against Rs.15,000/- plus perks paid to regular class IV employees of ONGC Ltd.
6. That the supervision and control of their work is entirely in the hands of officers and Managers of ONGC Ltd.
7. That, further most of them are landloosers, they have lost their family land to ONGC Ltd., which has affected their agricultural income adversely permanently. So they have a first claim for employment in ONGC Ltd.
8. That even if continuation of contract is necessary at this juncture of time, Equal Remuneration for Equal Work is applicable and equal pay at par with regular class IV employees has to be paid to these workmen.
5.2 Similarly, respondent No.2 ONGC also made their submissions on 12.4.2006 before the Conciliation Officer. Thereafter, rejoinder is filed by petitioner Union (page-38) before the Conciliation Officer on 26.5.2006.
6. The justification filed by petitioner Union on 24.3.2006. After decision taken by respondent No.1 (Annexure-A) dated 14.2.2007, on 31.3.2007 a representation has been made by petitioner Union to respondent No.1 (Page 41 to 45). But, decision has not been re-considered by respondent No.1. Therefore, present petition is filed.
7. It is necessary to note that no appearance is filed on behalf of respondent No.1 and no affidavit is filed by him. The respondent No.2 has also not filed any affidavit-in-reply against present petition before this Court. Therefore, I have heard learned advocate Mr.R.P.Mankad on behalf of petitioner and learned Senior Advocate Mr.R.R.Marshall on behalf of respondent No.2.
7.1 Learned advocate Mr.R.P.Mankad has relied upon Ground A to C in support of his submissions. Same are quoted as under :
A. That the Government has no authority or jurisdiction to withhold reference of an industrial dispute which existed or apprehended and in fact the authorities are bound to refer such a dispute under Section 10 of the I.D.Act. This Hon'ble Court and Hon'ble Supreme Court has time and again held that the function of the Government in making reference is administrative and not adjudicatory. This view of the Supreme Court (Coram : D.A.Desai, V.B.Eradi and V. Khalid JJ) in case of MP Irrigation Kamchari Sangh v. State of M.P. is mentioned in AIR 1985 SC 860. The relevant portions of page 864 runs as under :
'6. Same is the case with the conclusion arrived at by the High Court that the employees were not entitled to the Chambal allowance as the same was included in the consolidated pay. This question, in fact, relates to the conditions of service of the employees and in what manner their conditions of service could be improved are matters which are the special preserve of the appropriate Tribunals to be decided in adjudicatory processes and are not ones to be decided by the Government on a prima facie examination of the demand. This demand again can never be said to be either perverse or frivolous.
7. There may be exceptional cases in which the State Government may, on a proper examination o the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the I.D.Act nugatory.
It may be further noted that this view was reiterated by another bench (consisting of DA Desai and Rangnath Misra, JJ) in the case of RA Sharma v. State of Haryana reported in AIR 1985 SC 915. This Hon'ble Court has also delivered several judgments on these lines. One of the reported case is that of Woollen Mill Karmachari Sangh v. State of Gujarat (Coram : JB Mehta, Act. C.J. And M.P.Thakkar,J) (as he then was) reported in 1978 GLR 373. In this case also the Court has observed in Para.5 as under :
Therefore, this decision settles the whole question that the Government has no business to consider the merits of the dispute and dispose of the question of law or the disputed question of facts which lies really within the province of the Industrial Tribunal to whom the legislature has left the task of adjudication of industrial disputes.
In view of this legal position the petitioner union submits that here in fact a real dispute is in existence and in fact the important question of life and liberty of the citizen has been arisen and in fact a complicated question of law and fact is required to be decided by the competent Court to the effect that terms and conditions of the employment is against the public policy, public conscience and/or against the provision of Section 23 of the Contract Act and also the law declared by the Hon'ble Supreme Court and this Hon'ble Court on this issue and if so, petitioner workmen are required to be treated as regular workmen from the date they completed 240 days of service or not and after applying the various labour laws like the provisions of Employment Standing Orders Act, 1946 and Model Standing Orders framed thereunder and provisions of I.D.Act,1947 and/or provisions of Shops & Establishments Act, 1948 to the present facts of the case of affected workmen, members of the petitioner union employed by respondent Nos.2 and 3 are required to be regularized or not or that they are entitled to equal wages as being paid to other regular workmen or not cannot be decided by not making the reference by the Government, as this type of duties and responsibilities have been cast upon the competent Forum i.e. Labour Court / Industrial Tribunal under the I.D.Act,1947, while exercising an administrative function under Section 10 of the ID Act while making the reference. In fact, in this case Government has refused the reference which was not in fact the issue raised by the respondent Corporation and in fact tat issue itself is in non-existence and therefore, there was no issue which required to be proved by the documentary evidence and/or any other evidence, and that too, before the RLC and/or any other administrative authority. It is completely without application of mind and in fact non-application of mind, based on extraneous considerations, malafide with ulterior motives only to refuse the reference, completely concocted grounds have been made out, and therefore, in complete violation of Articles 14, 16 and 21 of the Constitution of India as well as the directive principles of the Constitution of India and also against the las laid down by the Hon'ble Supreme Court of India and this Hon'ble Court. The petitioners submit that in fact scope and jurisdiction of the Government under section 10 of the ID Act and/or section 10 read with section 12 of the ID Act has been laid down by several decisions of the Hon'ble Supreme Court of India and this Hon'ble Court also. In fact, it can be summarized as follows:
The section requires four conditions to be fulfilled before adjudication process can begin: one is the appropriate Government must come to an opinion, that means it must apply its mind; (2) as to whether a dispute which comes within the definitions of Industrial Disputes Act, (3) has come into existence, and once it comes to such a decision; (4) it may make a reference of the dispute to any of the authorities enumerated in section 1091)(a) to section 10(1)(d).
B. The forming of an opinion is an administrative act on the part of the appropriate Government. Hence, a minute study of the facts and circumstances of a case is not expected while forming an opinion. An interpretation of law or of facts is outside the scope of opinion formation. Only a prima facie determination about the factual existence or apprehension of an industrial dispute is all that an appropriate Government is expected or required to do before exercising power under section 10(1) of the Act. The scope of opinion an appropriate Government may form was explained by the Supreme Court in Bombay Union of Journalists V. State of Bombay, AIR 1964 SC 1617 in the following words:
When the appropriate Government consider the question as to whether a reference should be made under section 12, it has to act under section 10(1) of the Act, and section 10(1) confers discretion on the appropriate Government either to refer the dispute or not to refer it for industrial adjudication accordingly as it is of opinion that it is expedient to do so or not. It is true that if the dispute in question raises questions of law the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, no appropriate Government can purport to reach final conclusions for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie merits of the dispute when it decides the questions as to whether its power to make a reference should be exercised under section 10(1) read with section 12(5) or not. If the claim made is patently frivolous, or is already belated, the appropriate Government may refuse to make a reference.
In view of the aforesaid judgment of the Hon'ble Supreme Court, it is submitted that refusal to make reference in our case is completely on untenable reason and outside the scope and jurisdiction of the Government.
C. The petitioners submit that in the matter of Telco Convoy Drivers reported in 1985(50) FLR 422 = 1989 2 CLR 699, the Hon'ble Supreme Court has held that it is not the function of the Government to adjudicate the Dispute on merits as the same is entrusted to the competent forum under the ID Act i.e. Labour Court and Industrial Tribunal. The Government has no authority to decide the merit of the case. In view of this decision also the petitioners submit that as the reference was refused on non-existence issue and without prejudice to this fact it is submitted that ultimately to take documentary evidence on record as well as consideration and to apply the law applicable to the facts and circumstances of the case is the duty cast upon the Tribunal/Labour Court created under the ID Act, 1947. In view of this also the petitioner submits that refusal of reference in the present industrial dispute is completely unjust, improper, without application of mind, without jurisdiction and against the provisions of Section 10 of the ID Act, 1947 and against the law declared by the Hon'ble Supreme Court. The petitioner union further submits that the Hon'ble Supreme Court has directed the Government to make a reference. Similarly, in the Contract Labour matter Division Bench of this Hon'ble Court in the case of NDDB Employees Union v. State of Gujarat reported in 1994 II CLR Page 616 has held that whether the contract labour are workmen and/or employees of the principal employer i.e. NDDB or not cannot be decided by the government, and therefore, refusal to make reference on this ground is illegal, and therefore, Government was directed to make the reference.
The petitioner further submits that in fact the members of the petitioner Union for whose benefit demands were raised are working under direct control and supervision of the officials of respondent ONGC, and therefore, the refusal of reference on this ground is not maintainable and/or sustainable for a moment. The petitioner Union submits that the members of the petitioner Union and concerned affected workmen have in fact discharged the regular function and duties of security guards, which clearly involves manual, unskilled, skilled, technical, operation and clerical nature of job/work and therefore also they are workmen, and therefore, their demand is required to be referred before the appropriate authority under the ID Act, 1947 instead of deciding by the Government itself.
8. The question is that the decision which has been taken by respondent No.1 under Section 12(5) of the I.D.Act,1947, not to refer industrial dispute for adjudication on the reasons given in the order dated 14.2.2007, can be considered to be an adjudication of dispute on merits or not. The respondent No.1 being an appropriate Government has no jurisdiction to decide merits of industrial dispute raised by petitioner Union. The industrial dispute has been raised by petitioner Union on 20.12.2005 on the ground that 23 contract employees whose details are working in ONGC since last 2 to 5 years and they are working on perennial nature jobs and directly under the supervision and control of the principal employer. Therefore, their services be regularized from completion from one year's continuous service, or be paid equal remuneration as are being paid to the permanent employees of respondent No.2 and skilled employees of respondent No.2. In spite of specific dispute has been raised, even though decision has been taken by respondent No.1 that workmen were not appointed by management of ONGC but, employed by the contractor and activities in which the workmen were engaged are not prohibited under the Contract Labour Regulation and Abolition Act. Therefore, industrial dispute is not referred for adjudication. Said dispute is clearly deciding the issue raised by petitioner Union. The respondent No.1 being an appropriate Government has no jurisdiction to examine the merits of industrial dispute. If the contract workers are working with principal employer, then that workmen are entitled to raise industrial dispute to be considered as a employee of principal employer, though in fact they were working under labour contract. The industrial dispute which has been raised by petitioner union is covered by definition of Section 2(k) of the I.D.Act,1947. If any industrial dispute exists or apprehended, then it is a legal obligation upon appropriate Government to refer such dispute for adjudication to Industrial Tribunal but, not to examine lis between both parties. Therefore, this aspect has been examined by Apex Court in case of Telco Convoy Drivers Mazdoor Sangh and Another v. State of Bihar and Others, reported in (1989) 3 SCC 271. Relevant observations are in Para.11, 12, 13 and 16 which are quoted as under :
11.
It is true that in considering the question of making a reference under Section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhusan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is, undoubtedly not permissible.
12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are workmen, there cannot be any existence of industrial dispute within the meaning of the term as defined in Section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the Government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in Section 2(k) of the Act.
13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 :
(AIR 1985 SC 915) ; M.P. Irrigation Karamchari Sangh v. State of M.P., (1985) 2 SCR 1019 : (AIR 1985 SC 860) ; Shambu Nath Goyal v. Bank of Baroda, Jullundur, (1978) 2 SCR 793: (AIR 1978 SC 1088).
16.
It has been already stated that we had given one more chance to the Government to reconsider the matter and the Government after reconsideration has come to the same conclusion that the convoy drivers are not workmen of TELCO thereby adjudicating the dispute itself. After having considered the facts and circumstances of the case and having given our best consideration in the matter, we are of the view that the dispute should be adjudicated by the Industrial Tribunal and, as the Government has persistently declined to make a reference, under Section 10(1) of the Act, we think we should direct the Government to make such a reference. In several instances this Court had to direct the Government to make a reference under Section 10(1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhiladar Munnetra Sangam v. Govt. of Tamilnadu, (1983) 1 Lab LJ 460; Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 : (AIR 1985 SC 915); M. P. Irrigation Karamchari Sangh v. State of M. P., (1985) 2 SCR 1019: (AIR 1985 SC 860); Nirmal Singh v. State of Punjab, (1984) 2 Lab LJ 396 : (AIR 1984 SC 1619).
(See : 2009 AIR SCW 3174, 2008 (4) GLR 284 (Gujarat High Court), 2009 Lab.I.C. 2010.
9. Recently, same aspect has been examined by the Division Bench of the Calcutta High Court in case of Manmatha Kumar Jena and Others v. Union of India and Others, reported in 2010-II-LLJ-254(Cal.). Relevant observations are in Para.7 to 16 which are quoted as under :
7. Learned counsel for the appellants submits that it is true that Writ Court should not interfere with the reasoning of the administrative order, but if the reasons patently appear to be nothing but an adjudication of the dispute itself between the parties then it is not reason and the Court will certainly interfere in a case of such nature.
According to him, the appropriate Government has taken the role of adjudicator by accepting the view and the case of the management put forward in the conciliation proceedings. When such an exercise is done, it is not a lawful order of rejection. In support of his submission, he has relied on the decisions (1989) 3 SCC 271 and AIR 2002 SC 1724
8. Mr. Pal, appearing on behalf of the respondent company on the other hand contends that the order of rejection in this case is an administrative one and has been passed with reasons and the Court should not interfere with the same. In support of his submission, he has relied on the decisions AIR 2000 SC 915. The latter decision has been relied on the proposition of law that High Court can not direct to pass an order of reference.
9. We have heard the respective contentions of the learned counsels and have carefully gone through the reasons for refusal to refer the dispute and also the findings of the learned trial Judge. Section 12 of the Industrial Dispute Act has provided the methodology for referring a dispute by the appropriate Government. The methodology mentioned in the said Section appears to have been bifurcated in two different stages. The parties concerned will approach the Conciliating Officer first, who will investigate in the matter and dispute. He will make an endeavour to bring about a settlement. While doing so, he shall record the case of both the sides. In process, if the conciliation is possible, he shall record such conciliation and if it is not possible, then he will refer the same to the appropriate Government.
10. It appears from the report of the Conciliating Officer that in this case, nowhere he has concluded and decided or came to finding that master servant relationship between the appellants and the Coal India Limited did not exist. He has merely recorded the submission of both the parties. On receipt of his report, the appropriate. Government, on consideration of the same and the same alone, nothing else, is to take decision whether the matter should be referred for adjudication or not.
11. According to us, the appropriate Government can not take note of any other things apart from the report. The Supreme Court decision (1989) 3 SCC 271, on summation of paragraphs 11 and 13 thereof, clearly rules that in the name of reasons, appropriate Government can not take the role of adjudicator, as it is essentially administrative function of administration not the function of quasi judicial authority and it can not take note of any other irrelevant matters.
12. The same view has been taken in the latter decision of Supreme Court AIR 2002 SC 1724. In the decision AIR 2000 SC 915 (relevant paragraph
6), cited by Mr. Paul it has also been recorded that this order is an administrative one and is made on the subjective satisfaction of the Government. If it appears from the reasons, that the appropriate Government took into account any irrelevant or foreign material, the Court may in a given case consider the case for issue of writ of mandamus. Even in the recent decision of Supreme Court 2008 AIR SCW 2711 in paragraph 4 it is observed that except in certain unexceptional cases Court should not direct reference to be made.
13. Thus, on careful study of all those decisions of the Supreme Court, cited at the Bar, proposition of law, according to us, the Writ Court can interfere with this sort of order (i) when order of refusal to refer the dispute appears to have been passed on adjudication of the dispute itself; and (ii) if any material is taken other than a report of the Conciliating Officer while passing order of refusal to refer. That apart, the Writ Court can not have any jurisdiction to interfere.
14. It has to be examined in this case whether the problem before us falls within the aforesaid two categories or not. Before that, it would be appropriate to elucidate what is the meaning of the word 'dispute'. The plain meaning of 'dispute', mentioned in the OXFORD DICTIONARY and also in legal parlance is that dispute means assertion of fact by one party and denial of such fact by other party. Here, the appellant claim that they were really employed by the Coal India Limited and according to their stand, the appellants were engaged on voluntary basis through contractor for maintenance and beautification of a garden owned by the Kolkata Municipal Corporation.
15. It appears from the order of rejection that the appropriate Government has decided in the, order itself that Desh Bandhu Park is owned by Kolkata Municipal Corporation which was adopted for maintenance and beautification by the management of Coal India Limited and the work was carried out through contract workers employed by the different contractor. It is thus clear that the version of the management of Coal India has been accepted and thereby the appropriate Government has adjudicated the matter in favour of the management; to put it differently, the case of the appellants by necessary implication, has been rejected.
16. According to us, the aforesaid reasoning is nothing but an adjudicatory exercise which is not vested in it under the law and the decision has to be taken in the administrative side. Honourable Supreme Court has ruled and also the basic feature of our Constitution is that Administrator can not creep in the field of judicial and quasi judicial function unless specifically authorized by law. We, therefore, respectfully following the ratio laid down in the aforesaid decisions of the Honourable Supreme Court, hold that the order of rejection is without jurisdiction. Hence it is an unexceptional case for interference. We think with respect that the learned trial Judge should have gone into this matter in the above direction. Unfortunately, the learned trial Judge was not assisted properly to enquire into the matter in the above manner.
10. In view of above observations made by Apex Court in number of cases as well as recent decisions on the same subject and considering reasoning given by respondent No.1 in order dated 14.2.2007, according to my opinion, it amounts to adjudication of industrial dispute itself. For that, respondent No.1 has no jurisdiction to examine such dispute between parties but, it is within jurisdiction of Industrial Tribunal. Therefore, the order passed by respondent No.1 dated 14.2.2007 is required to be quashed and set aside. Accordingly, order dated 14.2.2007 is hereby quashed and set aside with a direction to respondent No.1 to re-consider the decision dated 14.2.2007 in response to representation made by petitioner Union dated 31.3.2007 and thereafter, refer the industrial dispute for adjudication to Industrial Tribunal (Central) Bhavnagar, within a period of 3 months from date of receiving copy of present order. Accordingly, Rule is made absolute with no order as to costs.
(H.K.RATHOD,J.) (vipul) Top