Madras High Court
Cheran Transport Employees' Union vs Government Of Tamil Nadu And Anr. on 25 June, 1999
Equivalent citations: (2000)ILLJ1206MAD
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the order of the first respondent-Government of Tamil Nadu refusing to refer Industrial Dispute for adjudication under Section 10(1) of the Industrial Disputes Act, 1947, Cheran Transport Employees Union has filed the above writ petition on various grounds. Since the issue involved in the writ-petition is one and the same in the other writ petitions, they are being disposed of by the following common order.
2. For the convenience I shall refer the case of the parties in W.P. No. 9439/1992. One Kumaresan who is employed as a conductor in the second respondent-Transport Corporation, was issued with Charge-sheet dated February 25, 1987 stating that he had committed misconduct as per Standing Order 14(d)(ab). It, is further stated that the 2nd respondent without holding enquiry, by an order dated February 20, 1988 imposed punishment of suspension for three days. On behalf of the said workman, the petitioner Union took up the matter before the Conciliation Officer at Coimbatore. The conciliation ended in failure and the Conciliation Officer gave his failure report dated February 25, 1991. Finally, the first respondent Government, by the impugned order dated June 18, 1991 declined to refer the said dispute for adjudication. Though the first respondent Government have filed a counter- affidavit in some cases wherein similar orders have been passed, no counter-affidavit has been filed by them in this writ petition. In the impugned order, the reason for rejection of the reference is stated that the punishment was imposed after getting explanation and that the dispute was raised about 2 years after the punishment.
3. I have heard Mr. K. Chandru, learned senior counsel for the petitioner, learned Government Advocate for first respondent Government of Tamil Nadu and S. Jeyaraman, R. Viduthalai, Sanjay Mohan, M.S. Krishnan, Ms. Kala Ramesh, Vivekananda-moorthy, S. Swaminathan, T. Dhanyakumar, T. Arulraj, C. Ravichandran, V. Radhakrishnan, R.P. Kapilan, R.S. Ramanathan, R. Thirugnanasambandam and Jayesh Doha for Aiyar and Dolia and Rengantha Reddy for King and Patridge.
4. The only point for consideration is whether the Government is justified in declining to refer the dispute for adjudication before the Labour Court/Industrial Tribunal under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act").
5. As stated earlier, the workman, namely, Kumaresan, who is employed as a conductor in the 2nd respondent Corporation, for certain omissions and commissions, was charge-sheeted and a Memo was served on him for committing misconduct as per the Standing Order. According to the petitioner Union, since the second respondent without holding any enquiry, has imposed a punishment of suspension for 3 days by order dated February 20, 1988, they have taken up the matter to the Conciliation Officer. On failure of the conciliation, the matter has been referred to the Government, first respondent herein for referring the same before the Labour Court for adjudication. Among other provisions in the Industrial Disputes Act, 1947, we are concerned with Section 12(4) and (5) of the Act which runs as follows:-
Duties of conciliation officers 12(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor."
It is clear from Sub-section (5) of Section 12 that on receipt of the report referred to in Sub-section (4) if the Government is satisfied that there is a case for reference to the Labour Court, Tribunal, it may make such reference. It is also clear that when the appropriate Government does not make such a reference, it shall record its reasons and communicate the same to the parties concerned. Before considering the reasons given by the Government in the impugned order, it is useful to refer various decisions of this Court as welt as the Apex Court regarding the power of the appropriate Government in this regard.
6. In the case of Workmen, Syndicate Bank v. Government of India, (1985-I-LLJ-93) the Hon'ble Supreme Court, after considering; the order of the Government refusing to make a reference on the ground that the enquiry was proper and as per procedure, has concluded thus at page 94:-
"We are of the view that the ground on which the Government of India has refused to refer the dispute relating to the imposition of punishment of stoppage of three increments on Shri Murugavelu to the Industrial Tribunal is not a valid ground. It would hot be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental inquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible "it would be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker of the opportunity of having the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fides or even if the penalty imposed on the worker was totally disproportionate to the offence said to have been proved. The management has simply to show that it has held a proper inquiry after complying with the requisite procedure and that would be enough to defeat the worker's claim for adjudication. Such a situation cannot be countenanced by law. We must, therefore, set aside the order dated April 2, 1981 passed by the Government of India declining to make a reference of the industrial dispute for adjudication to the Industrial Tribunal. We would direct the Government of India to reconsider the question of making reference of the industrial dispute for adjudication without taking into account the aforesaid irrelevant ground which seems to have prevailed with them in declining to make the Reference. If the Government of India yet declines to make a Reference and the ground on which such Reference is declined is improper or irrelevant, it would be open to the appellants to make an application to the Court under this appeal and for this purpose, we give liberty to the appellants to apply. The Government of India will give its decision on the question whether the industrial disputes should be referred or not within 45 days from today."
7. In the case of M.P. Irrigation Karamchari Sangh v. State of M. P. reported in (1985-I-LLJ-519) (SC), a three Judges Bench of the Hon'ble Supreme Court has made the following conclusion at page 522:-
"7. There may be exceptional cases in which the State Government may, on a proper examination of the demands, 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 Industrial Disputes Act nugatory."
8. We have no hesitation to hold that in this case, the Government had exceeded its jurisdiction in refusing to refer the dispute to the Tribunal by making its own assessment unilaterally of the reasonableness of the demands on merits. The High Court erred in accepting the plea of the Government that refusal to refer the demands in this case was justified. The demands raised in this case have necessarily to be decided by the appropriate Tribunal on merits.
9. In the result, we set aside the Judgment of the High Court, allow this appeal and direct the State Government to refer all the questions raised by the appellant to the appropriate Tribunal......"
8. In the case of Ram Avtar Sharma v. State of Haryana reported in (1985-II-LLJ-187) (SC), while considering the power and functions of the Government making or refusing to make a reference under Section 10(1) of the Act, the observation of the Supreme Court is in the following manner at page 191:-
"6. Now if the Government performs and administrative act while either making or refusing to make reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or putforth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on the irrelevant, extraneous grounds not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. In State of Bombay v. K.P. Krishnan, (1960-II-LLJ-592) (SC), it was held that a writ of mandamus would lie against the Government if the order passed by it under Section 10(1) is based or induced by reasons as given by the Government are extraneous, irrelevant and not germane to the determination. In such a situation the Court would be justified in issuing a writ of mandamus even in (sic.) of an administrative order. May be, the Court may not issue writ of mandamus, directing the Government to make reference but the Court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and men can direct the Government to reconsider the matter. This legal position appears to be beyond the pale of controversy.
7. Accordingly, it is necessary to examine the reasons given by the Government to ascertain whether the determination of the Government was based on relevant consideration or irrelevant, extraneous or considerations not germane to the determination.
Re: Writ Petition Nos: 16226-29/1984: The reasons assigned by the Government for refusing to make a reference are to be culled out from the letter Annexure 'A' dated September 1, 1984 sent by the Joint Secretary, Haryana Government, Labour Department to the petitioners. It is stated in the letter that: "the Government does not consider your case to be fit for reference for adjudication, to the Tribunal as it has been learnt that your services were terminated only after charges against you were proved in a domestic enquiry". The assumption underlying the reasons assigned by the Government are that the enquiry was consistent with the rules and the Standing Orders, that it was fair and just and that there was unbiased determination and the punishment was commensurate with the gravity of the misconduct. The last aspect has assumed considerable importance after the introduction of Section 11A in the Industrial Disputes Act by Industrial Disputes (Amendment) Act, 1971, with effect from December 15, 1971. It confers powers on the Tribunal not only to examine the order of discharge or dismissal on merits as also to determine whether the punishment was commensurate with the gravity of the misconduct charged. In other words, Section 11A confers power on the Tribunal/Labour Court to examine the case of the workman whose service has been terminated either by discharge or dismissal qualitatively in the matter of nature of enquiry and quantitatively in the matter of adequacy or otherwise of punishment. The workman questioned the legality and validity of the enquiry which aspect the Tribunal in a quasi-judicial determination was required to examine. A bare statement that a domestic enquiry was held in which charges were held to be proved, if it is considered sufficient is not exercising power of making a reference under Section 10(1), almost all cases of termination of services cannot go before the Tribunal. And it would render Section 2A of the Act denuded of all its content and meaning. The reasons given by the Government would show that the Government examined the relevant papers of enquiry and the Government was satisfied that it was legally valid and that there was sufficient and adequate evidence to hold the charges proved. It would further appear that the Government was satisfied that the enquiry was not biased against the workman and the punishment was commensurate with the gravity of the misconduct charged. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In other words, the reasons given by the Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. Therefore if the grounds on which or the reasons for which the Government declined to make a reference under Section 10 are irrelevant, extraneous or not germane to the determination, it is well settled that the party aggrieved thereby would be entitled to move the Court for a writ of mandamus. (See Bombay Union of Journalists v. The State of Bombay) (1964-I-LLJ-351) (SC). It is equally well-settled that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Government to reconsider its decision. In this case a clear case for grant of writ of mandamus is made out."
9. In the case of Telco Convoy Drivers M.S. Sangh v. State of Bihar, (1989-II-LLJ-558) (SC), Their Lordships of the Supreme Court have held as follows at page 560:-
" 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 dispute 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 dispute 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 (supra), M.P. Irrigation Karamchari Sangh v. State of M.P. (supra), Shambu Nath Goyal v. Bank of Baroda Jullunder, (1978-I-LLJ-484) (SC).
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 valid disputes, and to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory."
10. In Shaw Wallace Co. v. Tamil Nadu represented by C and S Labour Department, (1988-I-LLJ-177), a Division Bench of this Court, while considering some earlier decisions of the Hon'ble Supreme Court as well as Sections 2A, 10(1), 11A and 12(5) has formulated certain principles. As their Lordships have analysed the entire case laws and formulated certain principles, it is but proper to refer the same:-
"On a final analysis, the following principles emerge-
(1) The Government would normally refer the dispute for adjudication; (2) The Government may refuse to make reference, if -
(a) the claim is very stale;
(b) the claim is opposed to the provisions of the Act;
(c) the claim is inconsistent with any agreement between the parties;
(d) the claim is patently frivolous;
(e) the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse;
(f) The person concerned is not a workman as defined by the Act; (3) The Government should not act on irrelevant and extraneous considerations; (4) The Government should act honestly and bona fide;
(5) The Government should not embark on adjudication of the dispute; and (6) The Government should not refuse reference on the ground that domestic enquiry was fairly and properly held and punishment awarded was appropriate."
11. By pointing out the above decisions of the Supreme Court and the Division Bench decision of this Court in the Shaw Wallace, case, (supra), Mr. K. Chandru, learned senior counsel, has contended that whenever a reference is made to the Government, the normal rule is to refer the same for adjudication and only in exceptional case, it is open to it to reject the same. It is also pointed out that it is not open to the Government to adjudicate the rival claims since the same have to be considered only by the Labour Court/Industrial Tribunal. As already stated by me, in the impugned order in W.P. No. 9439/1992, it is stated that the punishment was imposed after getting explanation from the workman and the dispute was raised after two years of the punishment. The said two reasons have been mentioned in the order impugned by the Government for rejecting the reference for adjudication. It is clear that the first respondent Government has really adjudicated the matter for which it has no jurisdiction. As observed in the Shaw Wallace case (supra), it is not open to the Government to adjudicate the claim of both parties. As rigthly contended by the learned senior counsel for the petitioner, mere getting explanation would not be sufficient not inflict penalty of suspension without a proper enquiry. All those aspects have to be considered only by the Judicial Authorities, namely, Labour Court/Industrial Tribunal. The other ground for rejection is limitation. Here again, the conclusion of the Government is contrary to the decision of mis Court in Shaw Wallace ease, (supra) and Division Bench decision of this Court in Indian Oxygen Employees' Union v. State of Tamil Nadu (1992-I-LLJ-583) (Mad-DB).
12. On the other hand, Mr. S. Jeyaraman, learned counsel appearing for the management-Transport Corporation in some of the writ petitions, contended that the Government is justified in rejecting the reference since the management has established the charges made against the workman. He also contended that as per Section 12(5) of the Act, the Government is competent to reject the reference if it is satisfied and only thing is it has to give reason/reasons for its conclusion. He further contended that since the same has been complied with, no interference is required. I am unable to accept the said contention. I have already extracted various decisions of the Apex Court as well as this Court which are directly on the point. It is also clear from the said decisions that it is not open to the Government to adjudicate the rival claims while passing administrative orders. Likewise, the other reason that the dispute has been made after a period of two years is also not acceptable. As stated in the said decisions, in the absence of any prescribed period in the Statute, merely on the ground of delay, it is not open to the Government to reject the reference for adjudication. Even though Mr. S. Jeyaraman has contended that in some cases, the management has imposed minor punishments such as suspension for three years, stoppage of increment for one year or two years and hence in those cases references are not required, I am unable to accept the said contention. Further, the claim of the workman cannot be rejected as "very stale", or opposed to the provisions of the Act, or inconsistent with any agreement between the parties or patently frivolous. Likewise, it is not the apprehension of the management that the claim of the workman would affect the general relations between the employer and the employees. As a matter of fact, as per the Division Bench decision of this Court in Shaw Wallace case (supra), it is not open to the Government to refuse reference merely on the ground that the domestic enquiry was held fairly and properly and the punishment awarded was appropriate.
13. Mr. R. Viduthalai, learned counsel appearing for the management in some writ petitions, would contend that after introduction of Section 2-A(2) of the Act by way of amendment, it is open to the aggrieved workman to approach the Labour Court/Industrial Tribunal without reference to the Government. As rightly contended by the learned senior counsel for the petitioner, the provision contained in Section 2-A(2) is not applicable to the matters relating to the Central Government. In such circumstance, I am unable to appreciate the said contention of Mr. R. Viduthalai. Further, by relying on a decision reported in Workmen of Sundaram Industries Ltd. v. Sundaram Industries Ltd., (1997-II-LLJ-1090) (Mad), he would contend that the Government has ample power to refer or refuse an Industrial Dispute. He very much relied on para 14 of the said decision which is as follows at p. 1096:-
"14. We are also unable to accept the contention of Mr. Prakash stating that the Government cannot decline to refer the dispute for adjudication by giving reasons which determine the lis between the parties and that the power under Section 10(1) is an administrative power and the Government cannot adjudicate the dispute. We are unable to accept this contention. While coming to the conclusion for not referring the dispute for adjudication, the Government has to necessarily refer the reasons thereof. Merely disclosing the reasons for declining reference which is incumbent on the Government cannot be equated with and compared with adjudication. Section 10 read with Section 12(5) of the Act confers very wide discretion on the appropriate Government either to refer or refuse to refer an industrial dispute. In this case the Government have bona fidely exercised its discretion and had decided to decline reference. While passing the administrative orders under Section 12(5) of the said Act, the Government is not prevented from considering the merits of the dispute raised by the workmen prime facie. Section 12(5) of the Act does not make it obligatory on the part of the Government to make reference of all disputez raised by workmen automatically. It has got discretion to refer or not to refer the dispute. Therefore, while considering the prima facie case on merits, the Government has found that the reasons for transfer of the workmen are genuine, business reasons and has thus disclosed the reasons relevant to the dispute. This would not tantamount to adjudication, as alleged by the appellant union. On proper consideration of the facts of the dispute, the Government, in our view has exercised its power vested in them under Section 10 read with Section 12(5) of the Act. The workmen of the appellant union have not made out a case for issue of Mandamus as prayed for ........"
There is no dispute and it is also not denied that in an appropriate case it is open to the Government either to refer or refuse to refer an industrial dispute. But, merely on the basis of the failure report of the conciliation officer, it is not open to the Government to adjudicate the rival claims and also commend the penalty imposed. Accordingly even if the Division Bench judgment in Sundaram Industries case, (supra) is applied, in the light of the various decisions of (he Supreme Court referred to above coupled with the principles laid down in Shaw Wallace case (supra), I am unable to sustain the reasons mentioned in the impugned order.
14. Mr. Sanjay Mohan, learned counsel appearing for the management in W.P. Nos. 13746 and 13747 of 1995, would contend that if this Court is inclined to issue direction to the Government for reference for adjudication, similar direction to the Labour Court/Industrial Tribunal may be issued to consider all the objections of the management. It is needless to mention that once the matter is referred to the Labour Court/Industrial Tribunal, it is open to both parties concerned to raise their contentions before it which are permissible under law. In such a situation, I am of the view that no specific direction is required as claimed by him.
15. Mr. T. Arulraj, learned counsel appearing for the management in some of the writ petitions, contended that inasmuch as private settlements have been arrived, it is unnecessary to refer the matter for adjudication. Here again, as stated earlier, it is for the competent Labour Court/Tribunal to consider those aspects and not for the Government to adjudicate the questions of law and the facts. Hence, the said contention is also liable to be rejected.
16. It is also clear that if a bare statement that a domestic enquiry was held in which charges were held to be proved is considered sufficient for not exercising power of making a reference under Section 10(1), almost all cases of termination of services cannot go before the Tribunal as observed by their Lordships of the Supreme Court in (1985-II-LLJ-187) (supra). In such circumstances, it would render Section 2A of the Act denuded of all its content and meaning. The reasons given by the Government would show that the Government examined the relevant papers of enquiry and the Government was satisfied that it was legally valid and that there was sufficient and adequate evidence to hold the charges proved. Further it would appear that the Government was satisfied that the enquiry was not biased against the workman and the punishment was commensurate with the gravity of the misconduct charged. All these relevant and vital aspects have to be examined and considered by the Labour Court or Industrial Tribunal while adjudicating upon the reference made to it In other words, the reasons given by the Government would tantamount to adjudication which is impermissible under law that is the function of the Tribunal/Labour Court and the Government cannot arrogate to itself that function. Therefore if the grounds on which or the reasons for which the Government declined to make a reference under Section 10 are irrelevant, extraneous or not germane to the determination, it is well settled that the party aggrieved thereby would be entitled to move the Court for a writ of Mandamus. Inasmuch as the dispute is pending for nearly 10 years, in some cases more than 10 years and the Government is not competent to adjudicate the rival claims even though they are entitled to refuse reference in exceptional cases, in view of the long delay, it it possible for this Court to issue Mandamus to the State/Central Government to refer all the questions raised by the workman/petitioner herein to the appropriate Labour Court/Industrial Tribunal instead of making an observation to reconsider the matter once again. The above view of mine is supported by the decisions of the Hon'ble Supreme Court in (1985-I-LLJ-519) (SC) (supra) and (1989-II-LLJ-558) (supra). For the reasons mentioned above, the impugned order of the first respondent dated June 18, 1991 in W.P. No. 9439/1992 is liable to be quashed.
W.P. Nos. 15254/1992, 17296, 17347, 18048, 18046, 19075, 20106, to 20137/1992, 69/1993 to 71/1993 and 19328/1992.
17. In all the above cases, the impugned order states that the enquiry was conducted properly and charges were proved in the properly conducted enquiry and therefore, the punishment imposed need not be referred for adjudication. For the reasons mentioned above, \ am of the view that the first respondent has exceeded its jurisdiction in passing the impugned orders. The first respondent while exercising the administrative powers under Section 10(1) of the Act cannot adjudicate the dispute. As rightly stated that the first respondent had in fact adjudicated the matter by holding that the enquiry was proper, the charges were proved and the punishments were justified. The reasons and the conclusions arrived at by the Government are directly opposed to the Division Bench decision of this Court reported in Shaw Wallace case, (supra). It is also brought to my notice that even though in all the impugned orders a reference has been made to the order dated March 21, 1991 of the Commissioner of Labour. According to them, the petitioners were not aware of any such report of the Commissioner of Labour. For the very same reasons and the reasons mentioned above, all the impugned orders passed by the Government are liable to be quashed.
W.P. No. 10704 of 199218. In this case, the reference was rejected by the Government of India, first respondent herein, on the ground that the workman could not prove the employer-employee relationship between him and the Oil and Natural Gas Commission management. Learned senior counsel appearing for the petitioner has brought to my notice a letter dated April 4, 1990 issued by the Deputy General Manager (E and C), Madras - 35, in which the Deputy General Manager certified that the petitioner was employed by the Oil and Natural Gas Commission. This aspect has to be considered by the appropriate Court on the basis of the oral and documentary evidence to be let in. Accordingly, while exercising administrative functions under Section 10 of the Act, the first respondent cannot decide such a question. The Tribunal alone on considering both the oral and documentary evidence has to decide the issue on merit. Accordingly the learned senior counsel for the petitioner is justified in contending that the first respondent has not considered the relevant factors such as the certificate issued by the Deputy General Manager (E and C Divisions). For this reason and for the reasons mentioned above, the impugned order is liable to be quashed.
W.P. No. 15309 of 199219. In this case, the first respondent/Government of Tamil Nadu declined to refer the matter for adjudication only on the ground that the dispute has been raised after 15 years. It is also stated that it is a stale claim. First of all, there are no details to hold that the claim of the workman is stale. Further, I have already observed that there is no prescribed limitation for raising a dispute in the Statute. In this regard, it is worthwhile to refer a recent decision of the Supreme Court reported in Ajaib Singh v. Sirhind Co-op. Marketing-cum- Processing Service Society Ltd., (1999-I-LLJ-1260) (SC). Their Lordships of the Supreme Court, after referring to Article 137 of the Schedule to Limitation Act, 1963, in para 10 have concluded thus at Page 1264:
"It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or Board, dealing with the case can appropriately mould the relief by declining to grant backwages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the backwages instead of full backwages...."
After holding so, their Lordships have not approved the observation made by the Full Bench decision of Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana, 1999 (1) SCT 141, stating that five year period would be reasonable and after expiry of the five year period, it is open to the Government to refuse to make a reference. In the light of the law laid down by the Apex Court, even if there is any delay, that can be compensated by moulding the relief by the appropriate Labour Court/Tribunal. It is not open to the Government to reject the reference on the ground of delay. Accordingly both the grounds assigned by the Government are unsustainable. Hence, the impugned order of the first respondent is liable to be quashed.
W.P. No. 235 of 199320. A reading of the impugned order of the Government dated July 28, 1992 shows that it has gone into the claims of both parties. In other words, it has adjudicated the issue which is impermissible. It is also seen that the impugned order states that the Union has not proved by way of documents as to whether it has been authorised to raise the dispute. As already contended, such statement also amounts to adjudicating the dispute. It is the case of the Union that the management has never stated that the Union has authorised to raise the dispute. Likewise, the conciliation officer has also not stated that the Union is not authorised to raise a dispute. The reason mentioned in the impugned order is opposed to the decision in Shaw Wallace (supra). Hence, the impugned order is liable to be quashed.
W.P. No. 20489 of 199321. In the impugned order it is stated that since the workman Appukkuttan Nair did not participate in the enquiry, he failed to avail the opportunity and hence the dispute could not be referred for adjudication. It is not clear why the workman did not appear and the Government have also not assigned any other reason except stating that the workman did not participate in the enquiry. On the other hand, if the matter is referred for adjudication, it is open to the workman to adduce evidence as regards his non- participation in the enquiry and there will be possibility for the Court to consider whether the management has established the charge levelled against the workman. For this reason and for the reasons mentioned earlier, the impugned order is liable to be quashed.
W.P. No. 15589 of 199422. In the impugned order, it is stated that there is no substance in the demand of the Union and the service of the workman was also not satisfactory. As observed in the above referred decision, such aspects would only be gone into by the Labour Court/Tribunal and not by the first respondent-Government. By stating the aforesaid reasons, it has adjudicated the matter for which it has no power and jurisdiction under Section 10 of the Act. This is also opposed to the decision rendered in Shaw Wallace case, (supra). For this reason and for the reasons mentioned above, the impugned order is liable to be quashed.
W.P. No. 2285 of 199623. A perusal of the impugned order dated October 10, 1995 shows that the first respondent Government has conducted a full-fledged enquiry. In other words, it had adjudicated the claims made by both parties which is impermissible while exercising its administrative power under Section 10(1) of the Act. The said conclusion is contrary to the decision rendered by a Division Bench decision of this Court reported in Shaw Wallace case, (supra). For this reason and for the reasons mentioned above, the impugned order dated October 10, 1995 is liable to be quashed.
W.P. Nos. 11615/1997, 11616/1997 and 2043/1998
24. A perusal of the impugned orders in the above cases clearly shows that the first respondent-Government has exceeded its jurisdiction in declining to refer the adjudication, since it really adjudicated the matter on merits. The reasons given by the first respondent in the impugned order are that the charges were proved in the enquiry and the punishment was proper and was not excessive. As stated earlier, they are all matters to be considered by the Adjudicating Authority, namely, Labour Court/Industrial Tribunal. The Government has no power to adjudicate the claim while exercising administrative power under Section 10 read with Section 12(5) of the Act. This is also contrary to the Division Bench decision of this Court in Shaw Wallace case (supra). For this reason and for other reasons mentioned above, all the impugned orders are liable to be quashed.
W.P. No. 1885 of 199825. A perusal of the impugned order clearly shows that the first respondent-Government in the guise of refusing to refer to the dispute has usurped the power of adjudicating authorities, by going into the merits of the demands raised by the Union. It is also seen from the impugned order that out of several demands made by the petitioner Union, the first respondent had declined most of the demands on the ground that either it was a managerial function and the Trade Union cannot make such demand or that the matter was under consideration by the second respondent or that the petitioner Union had not justified the demand by giving necessary details. The conclusion arrived at by first respondent is also against the Division Bench decision of this Court in Shaw Wallace case, (supra). Accordingly, the impugned order is liable to be quashed.
W.P. No. 14463 of 199226. After going through the particulars furnished in the affidavit filed in support of the above writ petition, 1 am unable to accept the reason furnished by the Government for rejecting the reference. As rightly contended, while considering the report of the Conciliation Officer, the first respondent had considered the undisclosed materials sent by the Commissioner of Labour dated January 14, 1992. The information sent by the Commissioner of Labour is not clear. Since the matter required a detailed adjudication by the competent forum, the Government ought to have exercised its power as per Section 10(1) of the Act by referring the dispute. For this reason and for the reasons mentioned above, the impugned order declining to refer the dispute is liable to be quashed.
W.P. No. 961 of 199327. A perusal of the impugned orders shows that the first respondent-Government had declined to make a reference on the ground that certain issues were within the managerial powers. Since the first respondent on the basis of the claims made by both parties, adjudicated the dispute, the same cannot be done while exercising administrative power under Section 10(1) of the Act. The reasoning of the first respondent is also contrary to the decision of the Division Bench of this Court in Shaw Wallace case, (supra). For this reason and for the reasons mentioned above, the impugned orders are liable to be quashed.
W.P. Nos. 12399/1993, 3278/1995, 14523/1996, 14548/1996 and 15570/1996
28. In all these cases, the first respondent Government of Tamil Nadu refused to refer the matter for adjudication only on the ground that charges are in respect of Settlement under Section 12(3) of the Act. It is stated by the learned senior counsel for the petitioner that the said Settlement under Section 12(3) of the Act is under challenge at the instance of the petitioner Union in Writ Petition No. 68/1993. It is further stated that the said writ petition was admitted on January 6, 1993 and Notice was ordered in the W.M.P. No. 111/1993 seeking direction to the Assistant Commissioner of Labour (Conciliation) to send failure report to the first respondent-Government. In view of the allegation made against the management, and in view of the fact that Settlement under Section 12(3) of the Act is under challenge before this Court, I am of the view that the first respondent ought to have referred the matter for adjudication. It is further stated that even though the management and the Government were aware of the pendency of the earlier proceedings, they have not chosen to refer the same. In a matter like this, the appropriate Statutory Authority has to consider the claim of both parties based on oral and documentary evidence; accordingly the orders of the first respondent declining to refer the matter for adjudication cannot be sustained. For this reason and for the reasons mentioned above, the impugned orders are liable to be set aside.
W.P. No. 12967 of 199329. While rejecting the reference, the first respondent- Government of India has stated that the workman has to take up the matter with the appropriate Labour Court under Section 33-C(2) of the Act. It is seen from the records that the entitlement of the workman was disputed by the second respondent-management. In such a situation, the first respondent failed to note that the forum under Section 33-C(2) of the Act is not proper and appropriate. It is also brought to my notice that the earlier order passed by this Court in W.P. No. 7132/87 (R. Sivanandam v. The Union of India) dated June 26, 1991, which clearly states that the workman had to invoke the adjudicating machinery. While dismissing the said writ petition (W.P. 7132/87), RAGU J., (as His Lordship then was) has observed as follows:-
"........ Mr. A.L. Somayaji, learned counsel appearing for the respondents 2 and 3 submits that the only course open to the petitioner is to raise an Industrial Dispute and have his claims adjudicated. Sustaining the objection in this regard made on behalf of the respondents 2 and 3, the writ petition is ordered to be rejected. But it is made clear that the dismissal of the writ petition shall not stand in the way of the writ petitioner moving the appropriate forum under the Industrial Disputes Act to vindicate his rights on any of the grounds raised before this Court and such further or other grounds that are open to him under law......"
In the light of the direction given in the earlier proceedings, the first respondent is not justified in asking the petitioner Union to take up the mater with the appropriate Labour Court under Section 33-C(2) of the Act. The proper course would be to refer to the appropriate Court for adjudication. For this reason and for the reasons mentioned earlier, the impugned order is liable to be quashed.
W.P. No. 17007 of 199330. A perusal of the impugned order clearly shows that the first respondent-Union of India had adjudicated upon the dispute raised which cannot be done and the same is also inconsistent with Section 10(1) read with Section 12(5) of the Act. In the light of information furnished and after hearing the learned counsel for the petitioner as well as Mr. D. Krishnan, learned counsel for the 2nd respondent Bank, I am of the view that inasmuch as the action that was complained of was due to a peculiar situation arose in the 2nd respondent Bank, the same can be resolved only by a proper adjudication and it cannot be rejected summarily as done by the first respondent. For this reason and for the other reasons mentioned earlier, the impugned order is liable to be quashed.
W.P. No. 5318 of 199431. While rejecting the reference, the first respondent- Government of Tamil Nadu had stated that it is frivolous and stale claim. As rightly contended by the learned senior counsel for the petitioner Union, if such a course of action is adopted by the first respondent, then no dispute can be taken up by the adjudicating forum constituted under the Industrial Disputes Act. Even otherwise, the reason mentioned in the impugned order that the claim of the Union is frivolous and stale cannot at all be accepted since it requires more adjudication in the form or oral and documentary evidence. It is also stated that against the punishment imposed, the concerned workman has preferred an appeal as provided under the Standing Order, and according to him, there was no response from the management and the Union sponsored his case and raised a dispute in the early 1991. The reasons furnished in the impugned order are contrary to the Division Bench decision of this Court in Shaw Wallace case, (supra) and the same cannot be sustained. For this reason and for the other reasons mentioned above, the impugned order is liable to be quashed.
W.P. No. 5227 of 199532. In the impugned order dated May 24, 1993, the first respondent Government of Tamil Nadu has stated that the claim made by the Union was frivolous. It is clear from the materials placed that the workman was reverted to a lower post and his scale of pay was also reduced for a period of one year by way of punishment. Since the charges and the ultimate order are under dispute, it requires proper adjudication on merits by way of oral and documentary evidence. The rejection of the reference by exercising power under Section 10(1) of the Act on the ground of frivolous claim would amount to denial of workman's right to have his claim adjudicated before the statutory forum. For this reason and for the reasons mentioned above, the impugned orders dated May 24, 1993 and March 7, 1995 are liable to be quashed.
W.P. No. 5938 of 199533. While rejecting the claim for reference, the Government have stated that the claim is stale and frivolous. Learned senior counsel for the petitioner demonstrated that the issue relating to the workman Ganesan was not stale, because immediately after his restoration to service and the impugned punishment, the petitioner Union raised a dispute. According to him, it was the Labour Department which was protracting its proceedings for over two years even to send a Failure Report. Whether the punishment given to the workman was herein, unjust or legally acceptable could not be decided by only a Labour Court by way of oral and documentary evidence. Such adjudication cannot be done by the Government by passing administrative orders. I have already referred to the reasoning of the Supreme Court stating that it is not open to the Government to reject the reference merely on the ground of delay, since the same can suitably be considered by the appropriate legal forum while passing Award. For this reason and for other reasons mentioned above, the impugned orders dated May 24, 1993 and February 22, 1994 of the first respondent are liable to be quashed.
W.P. No. 13743 of 199534. The particulars furnished clearly show that whether the workman prevented from reporting to work or whether he was unjustifiably stopped from reporting to work is essentially a dispute which will have to be gone into only by the forum created for adjudication under the Industrial Disputes Act and it will not be open to the first respondent to reject the reference with the limited powers conferred under Section 10(1) of the Act. Since the matter has to be considered in depth on the basis of the oral and documentary evidence, undoubtedly it is for the forum constituted under the Industrial Disputes Act to decide the same and not by the Government as done in this case. For this and for the other reasons mentioned above, the impugned order is liable to be quashed.
W.P. No. 13734 of 199535. The reason given by the first respondent, Government of India for rejecting the reference is that the dispute was raised by the Union belatedly. It is stated that there was no delay either on the part of the workman or on Union. It is further stated that the workman was not informed of the date of entry in the Form B Register that the workman had produced a Birth Certificate, which is the only authentic document, and that the 2nd respondent cannot deny employment to him. In any event, with the limited power vested on the first respondent under Section 10(1) of the Act, they cannot, adjudicate on the merits of the dispute. The matter requires more adjudication by way of oral and documentary evidence and the same has to be done only by the forums constituted under the Act. I have already referred to the decision of the Supreme Court that reference cannot be rejected merely on the part of delay. For this reason and for the reasons mentioned above, the impugned order of the first respondent is liable to be quashed.
W.P. Nos. 13746 and 13747 of 1995
36. It is seen from the arguments of the learned senior counsel for the petitioner that the 2nd respondent did not employ some workmen on the ground that they did not provide their identity to the satisfaction of the second respondent. It is also stated that since retrenchment had taken place 16 years before, they did not have any document to show their identity. It is further stated that even though the management had accepted Indemnity Bonds executed by permanent employees on behalf of some of the workmen, according to the petitioner Union, the management refused to manage the same in respect of some other workmen. In such circumstance, the Union had raised a dispute before the Assistant Commissioner (Central) at Trivandrum by a letter dated September 30, 1986. In the light of the above factual position, I am of the view that the matter has to be considered by the forums constituted under the Act and not by the first respondent by way of administrative orders. For this and for the other reasons mentioned above, the impugned orders in both the above writ petitions are liable to be quashed. As mentioned above, even though Mr. Sanjay Mohan, learned counsel for the 2nd respondent- management has prayed for an observation permitting the management to raise all objections including the delay etc., I am of the view that the observation is unnecessary, since it is always open to the parties to the reference to raise all other allowable contentions before the concerned Court.
W.P. No. 17236 of 199537. After going through the impugned order, as rightly contended by the learned counsel for the petitioner in the guise of exercising power under Section 10(1) of the Act, the first respondent-Government of Tamil Nadu had virtually adjudicated the dispute which is impermissible under the Act. The other reasoning of the first respondent that the relief can be claimed either under the Payment of Wages Act or under Section 33-C(1) of the Industrial Disputes Act is unsustainable because the power under Section 33-C(1) and the Payment of Wages Act given to appropriate competent authorities are very limited and that when there is a dispute it could be resolved only by way of regular dispute. In regard to the reasoning mentioned with regard to Mariappan and one Dhanpal according to the learned counsel for the petitioner, the Government had taken note of irrelevant factors into consideration and the same cannot be accepted. Hence, I am of the view that it requires more adjudication before the statutory forum under the Act. For this, reason and for the other reasons mentioned above, the impugned order of the first respondent is liable to be quashed.
W.P. No. 15268 of 199638. A reading of the impugned order clearly shows that that the first respondent had exercised its power conferred on the adjudicating authority. According to the learned senior counsel for the petitioner, the petitioner union is concerned with demand No. 2 relating to regularisation of contract workers who were working for many years. In the impugned order of the first respondent, it was stated that the regularisation of contract workers by the 2nd respondent was covered by Khalid Commission Report and the question of regularisation of remaining contract workers can be taken up only after the implementation of the Award. It is brought to my notice that the said conclusion is unsustainable as Khalid Commission dealt with only a specified number of contract workers and the Hon'ble Supreme Court reserved the right of other workmen to take appropriate proceedings. If that is so, it is but proper the claim of the employees have to be considered by the judicial forum with reference to oral and documentary evidence. For this reason and for the other reasons mentioned above, the impugned order insofar as it went against the petitioner Union is liable to be quashed.
W.P. No. 830 of 199739. In the light of the question raised, I am of the view that first respondent has failed to note that the Labour Court alone is competent to decide the question of regularisation and its powers are not circumscribed by any norms fixed by the Government. Hence, I am of the view that the matter has to be considered by the appropriate Labour Court with reference to oral and documentary evidence. For this reason and for the other reasons mentioned above, the impugned order of the first respondent is liable to be quashed.
W.P. No. 832 of 199740. After going through the order of the first respondent and particularly with regard to the reasoning that there is no employee-employer relationship and that the workmen are contract workers, I am of the view that these issues cannot be decided by the Government while passing orders under Section 10(1) read with Section 12(5) of the Act. Such issues will have to be gone only by the competent forums constituted under the Act with reference to oral and documentary evidence. In the light of the claim made by the workmen and in view of the stand taken by the 2nd respondent- management, I am of the view that it requires more detailed adjudication by the judicial forum. For this reason and for the other reasons mentioned above, the impugned order of the first respondent is liable to be quashed.
W.P. No. 5200 of 199741. It is seen from the impugned order that the Government have rejected the reference on the ground that the Union had failed to place documentary evidence and regarding non-payment of wages, they have to approach the authority under the Payment of Wages Act. With regard to the first reason for rejection, it is brought to the notice of this Court that the denial of work to the workers was on oral orders and hence according to them, they were not able to file documents in order to establish their claim. As regards the second reason, as rightly contended by the learned counsel for the petitioner, if there is a dispute with reference to entitlement of wages, the jurisdiction of the authorities under the Payment of Wages Act is restricted and the only proper course is to go before the adjudicating forums. These aspects have not been considered by the first respondent. For this and for the other reasons mentioned above, the impugned order is liable to be quashed.
W.P. No. 16605 of 199742. The impugned order shows that the services of the petitioner were terminated in accordance with the terms and conditions of employment. It further shows that the first respondent has passed the said order by going into the merits of the dispute which is impermissible and the learned counsel for the petitioner is right in contending that they have usurped the jurisdiction conferred on the adjudicating authorities under the Act. It is also brought to my notice that after introduction of Section 2A of the Act, every dispute of a workman is bound to be referred and there is no discretion vested on the first respondent for refusing the same. Though in exceptional cases, it is open to the Government to decline reference. In the light of the particulars furnished before this Court, I am satisfied that the matter requires a detailed adjudication before a forum constituted under the Act by way of oral and documentary evidence. For this reason and for the other reasons mentioned above, the impugned order is liable to be quashed.
W.P. No. 13559 of 199243. After taking me through the impugned order, the learned counsel for the petitioner would contend that while passing the order, the first respondent has not applied its mind, as it has totally confused the whole issue of halting allowance with the nature of payment viz., vertime allowance that has been made in the case of the workman Arumugham. It is also pointed out that the duties of a person accompanying the treasure (designated as Potdars) are set out by the Reserve Bank of India guidelines and also by the Memorandum of instructions issued by the Indian Bank. According to him, the person (Potdar) (accompanying the treasure) has to be present constantly along with the treasure and he cannot move out of the place and the nature of duties are so onerous. He has to perform his duties even on journeys accompanying the treasure. In the light of the factual position, I am of the view that the matter requires more adjudication by the judicial forum with reference to oral and documentary evidence. For this and other reasons mentioned above, the impugned order is liable to be quashed.
W.P. No. 19997 of 199844. While rejecting the reference, the first respondent has assigned the following reason:-
"It is established law that Appraisers engaged by the Bank to appraise the quality, purity and value of the ornaments will not be considered as workman as there is no relationship of master and servant. The dispute raised is, therefore, not maintainable."
45. I have already referred to the decision of the Supreme Court in Telco Convoy driver's case (supra) where in the Hon'ble Supreme Court has held that whether the appraiser is a workman or not cannot be decided by the Government and it has to be decided only by the Industrial Tribunal by way of adjudication. Apart from the above legal position, the learned senior counsel for the petitioner has also referred to various orders passed by this Court on this aspect in respect of his claim. In such circumstances, it is but proper the matter has to be considered only by the judicial forum constituted under the Act. For this and for the other reasons, mentioned above, the impugned order is liable to be quashed.
46. Net result, all the writ petitions are allowed. No costs in all cases. The State/Central Government is directed to refer the dispute for adjudication to the respective Labour Court/Industrial Tribunal within a period of four months from the date of receipt of a copy of this order. All the W.M.Ps., are dismissed.