Punjab-Haryana High Court
Sushila Mittal Alias Shila vs The Labour Commissioner And Ors. on 24 November, 1993
Equivalent citations: (1993)105PLR335
JUDGMENT N.K. Sodhi, J.
1. What is sought to be challenged in this petition under Articles 226 of the Constitution is an order dated October 24, 1986 passed by the Labour Commissioner, Punjab, exercising the powers of the State Government declining to refer the dispute for adjudication under Section 10(1) of the Industrial Disputes Act, 1947 (for short, 'the Act') on the ground that the petitioner was not a 'workman' as defined in Clause (s) of Section 2 of the Act.
2. When this petition came up for motion hearing on September 19, 1988 the same was dismissed in limine by a Division Bench of this Court and the learned Judges observed that there were no grounds to interfere with the order of the State Government. The petitioner filed Special Leave Petition (C) No. 2854 of 1989 in the Supreme Court and it was allowed on December 9, 1991 and the case remanded to this Court for disposal according to law after giving reasons. After remand, the writ petition was admitted to a regular hearing and that is how it has come up before me for final disposal.
3. It is not disputed that the petitioner was employed with the respondent-management and had more than 20 years of service to her credit. She claims that she applied for leave from December 3, 1984 to December 10, 1984 which was sanctioned and when she sought extension of the same upto 31.12.1984 the management refused to grant the same. It is also admitted by the petitioner that she submitted her resignation on 19.10.1984 though she alleges that it was not given voluntarily and that the same was obtained by the management by coercion and undue influence. It is further alleged that she withdrew her resignation as per communication dated 29.11.1984 much before the same was accepted and still the management did not permit her to continue in service. The management, on the other hand, pleaded that services of the petitioner were not terminated and she left on her own by submitting a written resignation on October 19, 1984. It was also pleaded that she was employed as 'Incharge Tufted Section' on a monthly salary of Rs. 2850/- and on this account it is averred that she was not covered by the definition of 'workman' as given in the Act as she was employed in a supervisory capacity. On receipt of a demand notice from the petitioner conciliation proceedings were held and both parties were issued notices to appear before the Conciliation Officer. The Conciliation Officer heard the parties on various dates as mentioned in his report and recorded their statements but despite his efforts to persuade the parties to come to an amicable settlement, the conciliation proceedings proved abortive and he consequently sent his failure report to the Labour Commissioner, Punjab who exercises powers of the State Government under Section 10(1) of the Act. On a consideration of the failure report and other material on the record, the Labour Commission declined to refer the dispute for adjudication as per order dated October 24, 1986 which when translated in English reads as under:-
" I am directed to invite your attention to the above demand notice, dated 25th October, 1985, and to say that your demand is not considered fit for being referred for adjudication as you were drawing a salary of Rs. 2850/- as Production Incharge in the above establishment and this being a supervisory post, you are not covered under the definition of workman as defined in section 2(s) of the Industrial Disputes Act, 1947."
4. It is this order that has been challenged in the present writ petition on the ground that the State Government usurped the powers of the adjudicating authority in recording a finding that the petitioner was not a workman and, therefore, acted illegally and beyond the scope of its powers. It was also contended that the question whether an employee is a workman or not is a mixed question of law and fact which ought to have been left for the adjudicating authority to decide. The management, on the other hand, contended that it was open to the State Government to prima facie examine the merits of the dispute before the same could be referred for adjudication under Section 19(1) of the Act. It was also submitted on its behalf that in view of the nature of duties performed by the petitioner which were brought to the notice of the State Government in the course of the conciliation proceedings it was justified to say that the petitioner was not a workman and that the reference was rightly declined. However, the question of resignation which was raised by the management was not adverted to by the State Government in the impugned order.
5. In view of the aforesaid stands taken by the parties, the sole question that arises for consideration in this case is as to whether it was open to the State Government to decline to refer the dispute for adjudication on the ground that the employee seeking the reference was not a workman within the meaning of Clause (s) of Section 2 of the Act. The matter is not res-integra. This question directly came up for consideration before the Supreme Court in Prem Kakkar v. State of Haryana,1, A.I.R. 1976 S.C. 1474. In this case the State Government had declined the reference after the conciliation proceedings had failed. The order of the State Government was to the following effect:
"The Government have not found your case fit for adjudication to a Labour Court because you were working as an Electrical Foreman in this concern, which was a supervisory job and your wages were more than Rs. 500/ per month. Therefore, your case is not covered by the definition of the terms "workman" given in the Industrial Disputes Act."
After referring to the decision of the Constitution Bench in State of Bombay v. K.P. Krishnan,2," A.I.R. 1960 S.C. 1223 which was followed in Bombay Union of Journalists and Ors. v. State of Bombay and Anr.,3, A.I.R. 1964 S.C. 1617, the learned Judges of the apex Court observed in paras 11 and 12 as under:-
"11. In the present case, the fact is that the Govt. found that the appellant was not a workman within the definition of workman in the Act, and, therefore, it was not a fit case for reference for adjudication.
12. The High Court rightly rejected the application. The appeal is, therefore, dismissed. Parties will pay and bear their own costs."
6. In Nirmal Singh v. State of Punjab and Ors.,4, A.I.R. 1984 S.C. 1619, the Labour Commissioner while exercising powers of the State Government declined to refer the dispute for adjudication on the ground that the delinquent, a bank employee, was not a 'workman' within the meaning of Section 2(s) of the Act. In this case the Labour Commissioner had given no reasons to justify that conclusion and all that he stated in the order was that the post held by the employee therein did not fall 'within the category of workman'. Their Lordships observed that this was the conclusion to which the Labour Commissioner came but no reasons had been given to justify that conclusion. Instead of remanding the matter to the Labour Commissioner requiring him to state reasons, the learned Judges directed that a reference be made. This case is, therefore, of no help in resolving the issue involved in the present case.
7. In Telco Convoy Drivers Mazdoor Sangh v. State of Bihar,5, AIR 1989 S.C. 1565 the appellant Sangh demanded that permanent status be given by the management to all the Convoy Drivers and they should also be given the same facilities as are available to the permanent employees to Telco. The management disputed the relationship of employer and employees between Telco and the Convoy Drivers. The Deputy Labour Commissioner formed an opinion that there was no relationship of master and servant between the parties and, therefore, the demands of the Convoy Drivers did not fall within the purview of the Act and accordingly declined to refer the dispute. On a writ petition filed by the Sangh the learned Single Judge of the Ranchi Bench of the Patna High Court disposed of the matter with liberty to the Sangh to reagitate the matter before the State Government and expressed the hope that the government would consider the matter in a proper perspective in the light of the documents and the material that would be placed by the Sangh. The Sangh approached the State Government and the Deputy Labour Commissioner again gave the same reply and refused to make the reference. Again, the Sangh filed a petition in the High Court which was dismissed summarily. While allowing the appeal their Lordships observed in para 14 of the Judgment as under:-
" 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 workman 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 the valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory."
The decision in Prem Kakkar's case (supra) does not seem to have been brought to the notice of the Hon'ble Judges.
8. It will be seen that their Lordships of the Supreme Court upheld the order of the State Government in Prem Kakkar's case (supra) declining the reference on the ground that the employee raising the dispute was not a workman. In Telco Convoy Drivers Mazdoor Sangh's case (supra) their Lordships have observed that unless the demands of the workman are patently frivolous or perverse, a reference should be made for their adjudication.
9. A Constitution Bench of the Supreme Court in K.P. Krishnan's case (supra) after examining the powers of the State Government under Section 10(1) read with Section 12(5) of the Act observed in para 11 of the Judgment as under:
"... There is no doubt that having regard to the background furnished by the earlier provisions of Section 12 the appropriate Government would naturally consider the report very carefully and treat it as furnishing the relevant material which would enable it to decide whether a case for reference has been made or not; but the words of Section 12(5) do not suggest that the report is the only material on which Government must base its conclusion. It would be open to the Government to consider other relevant facts which may come to its knowledge or which may be brought to its notice, and it is in the light of all these relevant facts that it has to come to its decision whether a reference should be made or not. The problem which the Government has to consider while acting under Section 12(5) is whether there is a case for reference. This expression means that Government must first consider whether a prima facie case for reference has been made on the merits. If the Government comes to the conclusion that a prima facie case for reference has been made then it would be open to the Government also to consider whether there are any other relevant or material facts which would justify its refusal to make a reference. The question as to whether a case for reference has been made out can be answered in the light of all the relevant circumstances which would have bearing on the merits of a case as well as on the incidental question as to whether a reference should nevertheless be made or not..."
10. In M.P. Irrigation Karamchari Sangh v. State of M.P.,6, A.I.R. 1985 S.C. 860 Justice V. Khalid speaking for the Court observed in paragraph 5 that "while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demand, it is to be understood as a rule, that adjudication of demands made by the workmen should be left to the Tribunal to decide." Even in Telco Convoy Drivers Mazdoor Sangh's case (supra) their Lordships after referring to M.P. Irrigation Karamchari Sangh's case (supra) observed that in exceptional cases the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and need not make a reference for adjudication.
11. After going through these judgments in the light of the observations made by the Constitution Bench in K.P. Krishnan's case (supra) it becomes clear that patent frivolousness or perversity can be looked into by the Government while considering the question as to whether a reference should be made or not. Patent frivolousness, in my opinion, can be examined only if the Government prima facie looks into the merits of the case as well, as observed by their Lordships in K.P. Krishnan's case (supra). Under the provisions of the Act as they stand, the State Government is not a mere post office and is not called upon to refer every dispute that is sought to be raised by the workman. It can examine prima facie the merits of the demands raised and if on a consideration of ail the relevant factors it comes to a conclusion that the demands do not merit adjudication it would be open to it to decline the reference. In the instant case, the management claimed that the petitioner was Incharge of tufted Section and was drawing a monthly salary of Rs. 2850/-and thereby performed supervisory duties. The Conciliation Officer recorded the statement of the parties and sent his failure report with the entire record to the Labour Commissioner who on examining the same formed a prima facie opinion that the petitioner was not a workman and, therefore, the demands raised do not merit reference. No fault can be found with the order of the Labour Commissioner. In a given case where the employer claims that the employee had resigned from his job and the factum of resignation is disputed by the employee and if a dispute was to arise as to whether the resignation was tendered or not it would be open to the Government to see the original resignation letter and if it prima facie bears the signatures of the workman it would be open to it to decline the reference. It cannot then be said that the State Government has decided a lis between the parties. It has only formed a prima facie opinion that the resignation was tendered and has, therefore, declined to refer the dispute for adjudication.
12. At any rate, the dispute herein regarding termination of services of the petitioner arose in the year 1984 and a demand notice was served in the year 1985 and almost nine years have since then gone by. In these circumstances, I am of the opinion that it would not be in the interest of industrial peace to allow the dispute to linger on further by directing the State Government to reconsider the matter. It is by now well settled that this court under Article 226 of the Constitution cannot compel the State Government to make a reference; it can only issue a direction to reconsider the matter in light of all the relevant factors. I have already observed earlier, that the State Government did take into account all relevant material on the record when it declined the reference in the instant case.
13. For the reasons recorded above, I find no merit in the petition and the same is dismissed leaving the parties to bear their own costs.