Bombay High Court
Vasudeo Mahadeo Ambre vs State Of Maharashtra And Ors. on 16 October, 1987
Equivalent citations: (1994)IIILLJ615BOM
JUDGMENT H.H. Kantharia, J.
1. In these two petitions under Article 226 of the Constitution, facts are common and the law points are the same and, therefore, they are being disposed of (by this common judgment.
2. The petitioners, in both the petitions, were employed by the Mill Mazdoor Sabha (the second respondent) which is a trade union registered under the Trade Unions Act, 1926. The services of the petitioners were terminated. They, therefore, raised industrial disputes and demanded reinstatement with continuity of service and full back wages. Conciliation proceedings were initiated and as the matter could not be settled, a failure report was submitted. Ultimately by identical orders, dated 31st May, 1982, the State of Maharashtra (the first respondent) declined to refer the disputes for adjudication to the Labour Court or Industrial Tribunal since in the opinion of the Government, the petitioners were not the workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The said orders of the Government are impugned in these two writ petitions.
3. Mr. Puri, learned Advocate appearing on behalf of the second respondent submits that it is for this Court to enquire into the activities of the second respondent to find out whether the second respondent is an industry and the petitioners are the workman as defined in the Act. Mr. Chougule, the learned Assistant Government Pleader appearing on behalf of the first respondent, concurs with the submission of Mr. Puri and urges that it is on the material before the Government that it came to the conclusion that the second respondent was not an industry and, therefore, the petitioners were not workmen and, therefore, these are not fit cases in which references should be ordered. In the alternative both Mr. Puri and Mr. Chougule submit that at the most this Court may direct the Government to reconsider the matter all afresh.
4. Now, after a Conciliation Officer submits a failure report under Section 12(4) of the Act, the appropriate Government is required to consider whether a reference should or should not be made to the appropriate authority. Sub-section (5) of Section 12 of the Act provides;
"If, on consideration of the report referred to in Sub-section (4), the appropriate 3 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 a it shall record and communicate to the parties concerned its reasons therefor".
It may be noted here that if the Government decides to make a reference it has to be done under Section 10(1) of the Act which provides:
"Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-
(a) refer the dispute to a Board for promoting a settlement thereof, or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c):
..... ..... ..... ..... .....
A plain reading of these provisions of law makes it clear that the powers vested in the Government to make a reference are discretionary. But when the Government chooses not to make a reference, it has to record reasons for not doing so and communicate the same to the concerned parties. This is a mandatory duty of the Government.
5. In our cases, the Deputy Commissioner of Labour (Conciliation), Bombay District, Bombay, passed identical orders which read as under:
"No. CL/IIE/AJB/2A/M-119(82)BY-II-A Office of the Addl. Commissioner of Labour, Bombay District Office, Commerce Centre, Tardeo, Bombay-400 034.
31 May 1982 From The Dy. Commissioner of Labour (Conciliation) Bombay District Office.
Bombay.
To The Gen. Secy., Mill Mazdoor Sabha Shram Sadhana, Shri V.D.Indulkar D.V. Pradhan Road, Vikas Co-Op. Housing Socy. Hindu Colony, Dadar, Bhavani Shankar Road, Dadar, Bombay-400 014. Bombay-400 028. Sub.: Dispute between M/s. Mill Mazdoor Sabha,
Bombay and Shri V.D. Indulkar, employed under it, over the latter's demand for reinstatement, etc. Sir, In exercise of the powers conferred on me by Government vide Government No tification, Industries, Energy and Labour Department No. IDA. 1379/3496 (i)/lab-9, dated 20th April, 1979 issued in supersession of Government Notification, Industries and Labour Department No. IDA / 1369 / 117365 / Lab-II, dated 9th April, 1969, I have to state that I have considered the report dated 19.2.1982 submitted to me by the Conciliation Officer, under Sub-section (4) of Section 12 of the Industrial Disputes Act, 1947 (XIV of 1947), in respect of the above dispute and I am satisfied that there is no case for reference thereof under Sub-section (5) of Section 12 for the reasons that the disputant Shri V.D. Indulkar is not a work man within the meaning of the Industrial Disputes Act vide Section 2(s).
Yours faithfully, sd/ Dy. Commissioner of Labour (Conciliation) Bombay District, Bombay".
Thus the impugned order shows that the Deputy Commissioner of Labour (Conciliation) did not give adequate and convincing reasons for refusing to make a reference. The functions which the Deputy Commissioner of Labour was exercising, having been invested with the powers of the appropriate Government, had to be exercised reasonably with utmost care and caution. While exercising such powers he should be slow in declining to make a reference because in doing so, he attempts to usurp the powers of the Labour Court or Industrial Tribunal in going into the merits of the matter. He should bear in mind that it is only when the Government is of the considered opinion and comes to the conclusion that the claims preferred by the workmen were perverse or frivolous or bogus or inordinately delayed that the Government may exercise its discretion and refuse to make a reference. All that the Deputy Commissioner of Labour here did was to peruse the failure report submitted by the Conciliation Officer under Section 12(4) of the Act and except stating that the petitioners are not the workmen within the meaning of Section 2(s) of the Act gave no reasons why he came to such a conclusion. In my opinion, this is not a good reason for refusing to make a reference. Thus, there is nothing in the impugned order to show whether the Deputy Commissioner of Labour had fully considered the matter and what exactly prevailed upon him to come to the conclusion that the disputes raised by the petitioners were not worth referring to the Labour Court or Industrial Tribunal. To say the least, the impugned orders are very much cryptic and appeared to have been passed mechanically without application of mind. The Deputy Commissioner of Labour should have made little more communicative orders so that one could know what persuaded him to decline reference. The discretion vested in the Government in this regard has to be exercised properly and with acceptable reasons for the decision. This law is now well settled by plentiful of judgments of the Supreme Court as also of this Court in cases of (i) Nirmal Singh v. State of Punjab and Ors. (1984 II LLJ 396), (ii) Workmen of Syndicate Bank, Madras v. Government of India and Anr. (1985 I LLJ 93), (iii) an unreported judgment of a Division Bench of this Court (Bharucha and Tipnis, JJ.) in Appeal No. 627 of 1981 decided on 27th August, 1987, (iv) The M.P. Irrigation Karamchari Sangh v. The State of Madhya Pradesh and Anr. (1985 I LLJ 519), (v) Bombay Union of Journalists and Ors. v. The State of Bombay and Anr. : 1964 (1) LLJ 351 and (vi) of this Court in case of Krishna Babu Ghadigaonkar and etc. v. State of Maharashtra and Ors. (1986 Lab IC 1664).
6. Making a reference rather than refusing the same has become all the more necessary in view of the introduction of Section 11A by Act 45 of 1971 which reads as under:
"Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceedings under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter".
Thus, the provisions of Section 11A of the Act give powers to the Labour Courts and the Industrial Tribunals to give appropriate relief, including the award of lesser punishment, to the dismissed or discharged workman and, therefore, it is all the more incumbent upon the Government to make a reference and not take away the powers of the judicial authorities by refusing to make the same.
7. Regarding the submission of Mr. Puri and Mr. Chougule that I may direct the Government to reconsider the matters, I am not able to persuade myself t6 agree with them in view of the law laid down by the Supreme Court in (i) Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamilnadu and Management of India Cements Ltd. v. S.C.A.T. (1983 I LLJ 460), (ii) Nirmal Singh v. State of Punjab and Ors. (1984 II LLJ 396), (iii) The M.P. Irrigation Karamchari Sangh v. The State of Madhya Pradesh and Anr. (1985 I LLJ 519), and this Court in Rohinton P. Daruwalla v. Dy. Commissioner of Labour (Conciliation) Bombay (1985) (1) CLR 126) and (v) Krishna Babu Ghadigaonkar and etc. v. State of Maharashtra and Ors. (1986 Lab IC 1664) directing the State Government to make a reference to the appropriate authority or forum under Section 12(5) of the Act. Similarly, the Gujarat High Court in Suresh Shantaram Joshi v. Regional Manager, Bank of Maharashtra, Baroda (1985 I Lab LJ 487) had directed the Central Government to make such a reference.
8. In the result, both the writ petitions succeed and the same are allowed. The impugned orders refusing to make references in these two matters are quashed and set aside. I direct the first respondent-State of Maharashtra to refer the disputes raised by the two petitioners to appropriate Labour Court or Industrial Tribunal under Section 10(1) read with Section 12(5) of the Act for proper adjudication within two weeks of the receipt of the writs.
9. Rule in each of the petitions accordingly made absolute but with no order as to costs.