Allahabad High Court
Irfan Ahmad vs State Of U.P. And Others on 7 October, 1998
Equivalent citations: 1998(3)AWC2229, [1998(80)FLR859]
JUDGMENT Aloke Chakrabarti, J.
1. The Personal Manager of Geep Industrial Syndicate, the respondent No. 5 terminated the services of 33 workmen and the attempt to get the dispute arising therefrom to be referred under the U. P. Industrial Disputes Act, was refused only stating the ground for refusal that the said dispute does not come within the definition of Industrial Disputes Act as per Sections 2 (e) and 2 (z) of U. P. Industrial Disputes Act. Challenging the aforesaid two orders this writ petition was filed.
2. Learned counsel for the petitioner contends that the impugned order refusing reference is illegal as the concerned authority entered into the merits of the dispute although he is not entitled to do so. It is contended that under the relevant provisions for, reference under Section 4K of the U. P. Industrial Disputes Act, the authority concerned was only to come to a finding as to whether there was any dispute existing or apprehended and nothing else and therefore the impugned order is bad in law.
3. Learned standing counsel as also Mr. V. R. Agarwal, learned counsel for the respondent-employer contended that while finding existence of any dispute In the industry, a finding has to be arrived at as to whether the establishment concerned is an industry or not and the employee concerned is workman or not within the meaning of Section 2 (z) of the said Act. In support of such contention on behalf of the employer reference was made to the case of Miss. A Sundarantbala v. Government of Goo, Daman & Diu and others, 1983 (II)LLJ 491, wherein the Bombay High Court has held that if the appropriate Government is of the opinion that the dispute is not concerning workman, it may refuse to refer the dispute. Reference was also made to the case of Hypower Mazdoor Welfare Union v. Secretary and Commissioner, Social and Welfare Department, Bangalore and another, 1996 Lab 1C 107, decided by Karnataka High Court holding that the Government is not to act mechanically or like a post office or a conveyor belt and refer every case for adjudication in which conciliation has failed and it has to apply its mind and to come to a conclusion on the question of propriety of making a reference.
4. Law has been referred to on behalf of the petitioner also as decided in several cases.
5. After considering the aforesaid contentions of the respective parties and the law referred to by them, it appears that there is no dispute as regards facts involved in the present case. Admittedly, the petitioner's service was terminated by order dated 19.10.1993 alongwith several other persons. On a petition filed by the petitioner, the Conciliation Officer, Allahabad sent to the State Government for consideration of reference of the said dispute as no solution was available. The opposite party No. 1 by the impugned order refused to refer the dispute on the ground that the present dispute does not come within the definition of Industrial dispute in view of the provisions of Sections 2 (t) and 2 (z) of U. P. Industrial Disputes Act.
6. Law has been referred to as decided in the case of Bombay Union of Journalists and others v. State of Bombay and another, AIR 1964 SC 1617. In the said case, when the Conciliation Officer reported failure to the State Government, the reference was refused on the ground that it was not necessary to refer the dispute to a Tribunal under Section 12 (5) of the Central Act. The writ petition and appeal of the workman were dismissed and then the matter reached the Apex Court. On the contention that the reason given for refusal amounted to consideration of the dispute on merit, it was held that when the appropriate Government considers the question as to whether a reference should be made under Section 12 (5) ; it has to act under Section 10 (1) of the Act which confers discretion on the, appropriate Government either to refer the dispute, or not to refer it. The appropriate Government should not purport to reach a final decision if the dispute raises questions of law or disputed questions of facts. The further findings of the Apex Court was as follows :
"But It would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question 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 clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that Iinto account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under Section 10 (1), and so, the argument that the appropriate Government exceeded Its jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be accepted."
7. The next case referred to was Nirmal Singh v. State of Punjab, AIR 1984 SC 1619, wherein opinion was expressed that the Labour Commissioner ought to have given reasons when he came to a conclusion that the appellant is not a workman within the meaning of Section 2 (s) of the Central Act while refusing to refer the dispute regarding dismissal on the ground that the appellant was a workman. The next case referred to was the case of Telco Convoy Drivers Mazdoors Songh v. State of Bihar, AIR 1989 SC 1565. In the said case, the dispute itself was as to whether the Convoy drivers are employees or workmen of the employer and the authority concerned refused to refer the dispute on the ground that there was no relationship of master and servant and convoy drivers did not come within the purview of the Act. In such factual background, it was held that in performing this administrative function, the Government cannot delve into the merits of the dispute and take upon itself the determination of the list.
8. In the case of Mahabir Jute Mills v. Shibban Lal, AIR 1975 SC 2057, referred on behalf of the employer, the relevant findings run as follows :
"In a diverse society such as ours the Government has to work through several administrative agencies which have got a very wide sphere and if every administrative order is required to give reasons it will bring the governmental machinery to a stand-still. It is well-settled that while the rules of natural justice would apply to administrative proceedings, it is not necessary that the administrative orders should be speaking orders unless the statute specifically enjoins such a requirement. But we think it desirable that such orders should contain reasons when they decide matters affecting rights of parties."
9. The next case referred by the employer was between Miss. A. Sundarambala v. Government of Goa, Daman & Diu and others, 1983 (II) LLJ 491, decided by the Bombay High Court as follows :
"It must, therefore, be held that the appropriate Government can, if it is of the opinion that the dispute is not between an employer and his workman, refuse to refer that dispute for adjudication under Section 10 of the Industrial Disputes Act."
10. This aspect has been also considered in the case of M. P. Irrigation Karmachari Sangh v. State of M. P., AIR 1985 SC 860 and the case of Ram Avtar Sharma v. State of Haryana, AIR 1985 SC 915.
11. The decision in the case of Miss. A. Sundarambala (supra) was confirmed by the Apex Court by its Judgment in the case of Miss. A. Sundarambala v. Government of Goa. Daman & Diu and others. AIR 1988 SC 1700.
12. Law as discussed herein above shows that while exercising the power for reference of a dispute, the Government exercises its administrative power. As regards giving reasons though it has been held in the case of Mohabir Jute Mills (supra) that the order need not be a speaking order unless the statute specifically enjoins such a requirement. It has been held to be desirable that such orders should contain reasons when they decide matters affecting rights of parties. The Bombay High Court while deciding the case of Miss. A. Sundarombala (supra) also held that the Government can refuse to refer a dispute if it is of the opinion that the dispute is not between the employer and his workman and, therefore, it can be concluded that for formation of necessary opinion it has to be decided as to whether the concerned employee is a workman or not. This view also gets support from the cases of Telco Convoy Drivers Mazdoor Sangh (supra) and Ram Avtar Sharma (supra).
13. Therefore, in view of above position in law, the appropriate Government is entitled to decide as to whether concerned employee is a workman or not and a refusal of reference is permissible on a finding that the concerned employee is not a workman. But such a decision cannot be taken by the appropriate Government at the stage of reference when the dispute itself is as to whether concerned employee is a workman or not.
14. The power of the appropriate Government is not to decide the dispute itself but to decide the question of reference if an Industrial dispute exists or apprehended, inter alia, between an employer and its workman. This view gets support from the case of Telco Convoy Drivers Mazdoor Sangh (supra).
15. A further question comes up for consideration is as to while refusing reference deciding whether the employee is a workman or not, the appropriate Government is required to give reasons, in view of the observations made in the case of Mahabir Jute Mills (supra), I am of the opinion, that as the same decided the matter affecting the rights of the parties, such order should contain reason. This view is also supported by the observations made in the case of Nirmal Singh (supra).
16. In view of the aforesaid findings. It is found that by the impugned order reference has been refused upon a finding that In view of the provisions contained in Sections 2 (l) and 2 (z) of U. P. Industrial Disputes Act, as the petitioner was held not to be a workman and the establishment was not an industry. As such findings affect the rights of the parties, reasons were required to be given for such findings.
17. As the impugned order did not disclose any reason for such a conclusion, the same is liable to be quashed. Therefore, this writ petition is allowed. The impugned order dated 15.7.1994 at Annexure-13 to the writ petition is hereby quashed. The appropriate authority is directed to decide the question of reference afresh in accordance with law within a period of three months from the date of production of a certified copy of this order.