Gujarat High Court
Golden vs Learned on 19 April, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/4032/2011 57/ 57 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4032 of 2011
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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GOLDEN
JUBILEE CO-OPERATIVE CREDIT SOCIETY - Petitioner(s)
Versus
LEARNED
ASSISTANT LABOUR COMMISSIONER & 2 - Respondent(s)
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Appearance
:
MR
ANAND B GOGIA for
Petitioner(s) : 1,MR RB GOGIA for Petitioner(s) : 1,
None for
Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/04/2011
ORAL
ORDER
1. Heard learned advocate Mr.Anand B. Gogia for petitioner - Society.
2. In present petition, petitioner has challenged order passed by Assistant Commissioner of Labour, Junagadh under Section 10(1) of I.D.Act,1947, dated 10.1.2011 wherein powers have been exercised by Assistant Commissioner of Labour, Junagadh under Section 10(1)(c) of I.D.Act,1947 referring industrial dispute in relation to termination for adjudication to Labour Court, Junagadh. The Labour Court has also issued notice for filing statement of claim as well as calling other side to file written statement(Page-19) being a Reference No.3 of 2011. This notice has been produced on record by petitioner.
3. Learned advocate Mr.Gogia has raised contention before this Court that respondent No.3 workman submitted resignation letter dated 13.3.2009 addressed to Chairman and Managing Committee of petitioner - Society and said resignation was placed before Executive Committee which considered his request and took the sympathetic view of accepting his resignation and did not proceed for taking disciplinary and criminal action and thereafter, all dues paid to respondent No.3 on 14.3.2009 totalling to Rs.2,45,284/-. The relevant vouchers signed by respondent No.3 has been produced on record. The respondent No.3 has raised industrial dispute after 14 months while giving notice dated 10.5.2010 through his Advocate, alleging that his services were terminated without inquiry by obtaining resignation by duress from him which letter was replied on 20.5.2010 by petitioner through Advocate explaining facts that client had tendered resignation which was accepted by Managing Committee. In response to aforesaid dispute through notice dated 10.5.2010 raised by respondent No.3 and for that, Assistant Commissioner of Labour has initiated conciliation proceedings and after calling petitioner and giving opportunity of hearing, the Assistant Commissioner of Labour come to conclusion that industrial dispute exists between both parties, which referred for adjudication to Labour Court, Junagadh. The contention raised by learned advocate Mr.Gogia that aforesaid order of reference passed by respondent No.2 without application of mind and contrary to record and therefore, it has been considered to be a perverse on the face of it. He also raised another contention that procedure under Section 12(5) of the I.D.Act,1947 has not been followed by Assistant Commissioner of Labour and therefore, order of reference is bad. He also raised contention that reference has been made mechanically without reading and appreciating relevant material made available before Assistant Commissioner of Labour by petitioner - society.
4. I have considered aforesaid contentions raised by learned advocate Mr.Gogia for petitioner. Section-10 of I.D.Act,1947 gives powers to appropriate Government when he is of opinion that any industrial dispute exists or his apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with or relevant to dispute if it relates to any matter specified in second schedule to Labour Court for adjudication. The Second Schedule of I.D.Act,1947 under Section 7 of I.D.Act,1947 where it is specified that matters within jurisdiction of Labour Court and Item No.3 provides discharge or dismissal workman including reinstatement of, or grant of relief to, workmen wrongfully dismissed, is covered by Second Schedule. Accordingly, industrial dispute raised by workman which has been referred for adjudication to Labour Court, Junagadh. The schedule of industrial dispute suggests that whether order of termination dated 13.5.2009 is legal or not and whether workman is entitled relief of reinstatement with back wages of interim period or not. Therefore, contention raised by learned advocate Mr.Gogia cannot be accepted in light of facts that industrial dispute has been raised against so called resignation which has been obtained by petitioner while serving notice through Advocate by workman where a specific contention has been raised that resignation has been obtained by adopting coercive measure and by duress and that fact cannot be examined by Assistant Commissioner of Labour while exercising powers under Section 10(1) (c) of I.D.Act,1947. The view taken by Apex Court in case of Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Others, reported in AIR 1989 SC 1565, that while considering industrial dispute raised by workman, merits cannot be examined by appropriate Government. Therefore, in facts of this case also, Assistant Commissioner of Labour, Junagadh has considered merely an industrial dispute raised by workman against his so called resignation and that considered to be an industrial dispute exists between parties and accordingly, with application of mind industrial dispute has been referred for adjudication by appropriate Government to Labour Court, Junagadh. The contention raised by learned advocate Mr.Gogia that proceedings under section 12(5) of I.D.Act,1947 has not been initiated or followed by Assistant Commissioner of Labour, cannot be accepted because this industrial dispute raised by workman under Section 2A of I.D.Act,1947 being an individual dispute against termination, for which a detailed proceedings or procedure as contemplated under Section 12 of I.D.Act,1947 is not necessary to be followed because it is an individual industrial dispute raised by workman under Section 2A of I.D.Act,1947. For that, conciliation proceedings have been commenced before Assistant Commissioner of Labour and thereafter, both parties are not agreed for settlement and ultimately, this dispute remained in existence after conciliation and therefore, it has been referred for adjudication to Labour Court, Junagadh. Section-2A of I.D.Act,1947 provides that where any employer discharged, dismissed, retrenched or otherwise terminates services of an individual workman, any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding with any other workman nor any Union of workman is party to dispute. Therefore, steps to make statutory provisions enabling workman to approach Labour Court or Industrial Tribunal directly without requirement of reference by Government in case of dispute governed by Section 2A was held to be appropriate by Apex Court in case of Hospital Employees Union v. Union of India, reported in 2003 I LLJ (SC) 1127. Therefore, as per Section-12, detailed procedure is not required to be followed because that procedure is required to be followed when industrial dispute raised by number of workmen and not by an individual workman or it has been espoused by Union including strike notice given under Section 22 of I.D.Act,1947 in case of public utility service. Therefore, contention raised before this Court for first time by learned advocate Mr.Gogia which was not raised before Assistant Commissioner of Labour, cannot be accepted and such contention cannot be entertained by this Court. Otherwise also, legal procedure has been followed by Assistant Commissioner of Labour for making reference of industrial dispute which was exist between both parties and specifying requirement of Section 2A of I.D.Act,1947 and therefore, according to my opinion, Assistant Commissioner of Labour has applied mind and considered notice (page-62) dated 10.5.2010, served by workman through Advocate, challenging so called resignation which has been obtained by petitioner. Therefore, contention which has been raised by learned advocate Mr.Gogia cannot be accepted.
4.1 The difference between proceedings filed by workman under Section 2A being an individual dispute and industrial dispute raised by Union, for both a separate machinery has been provided by statutory provisions under I.D.Act,1947. This aspect in detailed has been examined by this Court in case of Ravjibhai Khodabhai Devara v. Union of India, reported in 2008 (17) GHJ 452. Relevant discussion made in aforesaid judgment are in Para.17 to 19, 21 to 32, 38 to 40, 45, 55 to 57, 59 to 63 are quoted as under :
"17. Now, considering the definition of Industrial Dispute u/s.2(k) means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any persons. Therefore, if complaint u/s. 2A is filed by workman under the provision of I.D. Act, then, appropriate Government has to consider whether such complaint is satisfied requirement of Industrial Dispute or not, and if appropriate Government is having opinion that industrial dispute exists or is apprehended, then he shall have to refer for adjudication to Labour Court/Industrial Tribunal subject to that employer covered by definition of "Industry". So, whatever opinions are necessary for complaint filed by workman, who satisfied requirement of Section 2(s) in respect to industrial dispute must have to be satisfied requirement of Section 2(k) and against whom dispute is raised, he must have to be satisfied that it is covered by definition of Industry under Section 2(j).
18. Therefore, appropriate Government should not have to go into the detailed procedure after conciliation proceeding is come to an end to submit failure report u/s.12(4) and thereafter, appropriate Government has to formed the prima facie opinion or to satisfy whether dispute can be referred for adjudication or not. The definition of employer is given u/s 2(g).
19. In this case, what happened that appropriate Government has followed procedure u/s.12, which is not necessary in accordance with law. The section 12, duties of Conciliation Officer, where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice u/s.22 has been given, shall, hold conciliation proceedings in the prescribed manner. So, subsection 1 of Section 12 suggest that whether any industrial dispute exists or is apprehended, where the dispute relates to public utility service and notice u/s 22 has been given, otherwise to power u/s 12 should not have to be exercised by appropriate Government including Conciliation Officer. Under Section 12, the separate detail procedure prescribed, there is a purpose behind it that industrial dispute exists or apprehended in respect to public utility service and strike notice u/s 22 is given by Union, then, only detailed procedure is to be followed by Conciliation Officer. The Section 12 suggests that Union shall have to espouse the cause of dispute. The individual employee has not to give strike notice u/s 22 in respect to public utility service.
21. There is a one order of appropriate Government u/s 12(5) and there is one order of appropriate Government u/s 10(1), both are having separate details and independent procedure, is to be followed by appropriate Government when such dispute raised by Union and workman.
22. In this case, after filing complaint by workman, which is at page 18 and 19 dated 21/10/1999, it is not the industrial dispute raised by workman relating to public utility service given strike notice u/s 22, but it was the dispute by way of filing complaint under section 2A raised by workman in respect to his termination. Even though, the procedure was followed by appropriate Government u/s 12 of I. D. Act 1947, which is not appropriate procedure is to be followed by appropriate Government because it is not the dispute raised by Union in respect to public utility service give strike notice u/s 22 of the I. D. Act 1947.
23. Therefore, entire procedure, which has been followed by appropriate Government after receiving complaint from workman sending failure report u/s 12(4) by Conciliation Officer to the Secretary, Government of India, Ministry of Labour dated 25/10/2000 and thereafter, appropriate Government has decided that prima facie, this Ministry does not consider this dispute fit for adjudication.
24. Under section 10(1), the appropriate Government has no power to consider the case for prime facie opinion or there is no necessity for appropriate Government to arrive satisfaction.
25. Therefore, according to my opinion, the order passed by appropriate Government dated 30/1/2001 rejecting to refer the industrial dispute for adjudication while exercising power u/s 12(5) of the I. D. Act 1947 is without jurisdiction, but appropriate Government has to consider the complaint u/s 2A while exercising the power u/s 10 subsection 1 of I. D. Act 1947.
26. This is the basic difference not properly followed procedure by appropriate Government being Central Government. Since many years the appropriate Central Government is understood that any kind of industrial dispute whether it cover termination, discharge or dismissal or not even though they should have to follow the procedure as required u/s 12 of I. D. Act 1947. That concept and opinion is wrong amounts to misconception of law by appropriate Government being Central Government.
27. Therefore, according to my opinion, the order passed by appropriate Government dated 30/1/2001 is without jurisdiction required to be set aside now only on the ground that different procedure has been followed by appropriate Government being Central Government.
28. Now, second question is that though it is not necessary to deal with but also dealt with it, because it has been raised before this Court. Learned advocate Mr. Malkan in SCA No.7155/2002, dated 19/10/2002 has relied upon the decision of Apex Court wherein, the Apex Court has considered the case of Secretary Indian Tea Association v. Ajit Kumar Barat and Others reported in AIR 2000 SC 915.
29. Therefore, question is that whether appropriate Government can decide the merits/dispute while arriving prima facie opinion or not and what is the meaning of prima facie opinion and what is the meaning of satisfaction. These are not discussed in aforesaid decision.
30. Section 12(5), not suggests the prima facie opinion, but section suggest satisfaction. Therefore, in light of this, the reason, which has been given by appropriate Government in facts of present case can be considered to be merely opinion or prima facie observations or satisfaction of the appropriate Government. The appropriate Government has used to give reason on prima facie as it has been used in Apex Court decision as referred above case in the Secretary, Indian Tea Association (supra).
31. The Industrial dispute raised by workman or Union if appropriate Government is having power in light of the satisfaction to decide the dispute, then, there is no need to constitute Labour Court or Industrial Tribunal under the Provisions of I. D. Act 1947. The power to adjudicate the dispute is within the jurisdiction of Labour Court/Industrial Tribunal. A moment, the appropriate Government comes to conclusion that workman has failed to establish his case of continuous employment during the relevant period or to disprove the fact that he has self employed, these are the clear finding of fact to have decision on merits as if that appropriate Government has adjudicated the dispute like Labour Court. It is not the prima facie opinion, it is not remained up to prima facie opinion, but appropriate Government has given further extend his jurisdiction to decide the dispute being adjudication, which amounts against the principal of natural justice because while passing such kind of order declined to refer such dispute the right of workman or Union is come to end to have further machinery under the provisions of I. D. Act 1947.
32. Therefore, under statutory provisions, the legislation by his wisdom not given power to appropriate Government to adjudicate the dispute. Merely, appropriate Government has power to seen whether industrial dispute is exists or not if there is a dispute between employer and employee, it covers the difference of opinion, relating to employment/non employment or conditions of service is enough to refer the dispute for adjudication. No further elaborate inquiry or determination of dispute is necessary.
38. I have considered their submissions and I have also considered the decision given by this Court (Coram : Honourable Mr. Justice Ravi R. Tripathi) in SCA no. 7155/2002 dated 19/10/2002. Heavy reliance is placed by both the learned advocates on Apex Court decision in case of the Secretary, Indian Tea Association Vs. Ajit Kumar Barat reported in AIR 2000 SC 915, where first time Apex Court has considered that appropriate Government can consider the dispute on prima facie whether dispute is an industrial dispute or not or whether workmen is workmen or not within the meaning of Section 2(s) of I. D. Act 1947. I have gone through the aforesaid decision, where Apex Court has come to conclusion that whether dispute raised by workman is workman or not.
39. According to Apex Court decision, the appropriate Government has to form the opinion whether the employee is workman or not and thereafter, has to consider whether an industrial dispute exists or is apprehended or not. Relevant para 11 is quoted as under:
"11. From the order of the State Government we find that while deciding the question whether respondent NO.1 as a workman, it took into consideration the salary and allowances of respondent No.1 drawn at the relevant time and also the nature of work. Respondent No.1 who has appeared in person did not dispute the salary and allowances etc., as indicated in the order of the Government but urged that his responsibilities were neither supervisory nor managerial in nature."
40. The bare perusal of para 11 as referred above in respect to salary and allowances of respondent no. 1 workman drawn at the relevant time and also nature of work. The respondent no. 1, who is appeared in presence of officer did not dispute the salary and allowances as indicated in the order of Government, but dispute is responsibility where neither supervising nor managerial in nature. The para 12 is also equally relevant which is quoted as under:
"12.
Mr. Gupta, learned senior counsel appearing for the appellant has drawn out attention to the circular dated 30th March; 1994 issued by the appellant-association. This circular indicates duties of respondent No. 1 who was functioning as a Joint Secretary at the relevant time and we find his duties were to deal with all legal matters and Court proceedings, labour and land laws and publications (Labour legislations Labour welfare). We also find from the records that respondent No. 1 had power to sanction expenses incurred in litigation by the appellant. On the above materials on record the State Government rightly formed the opinion that respondent No. 1 was not a workman."
45. Recently, the Division Bench of the Bombay High Court in case of Bhartiya Janata Kamgar Mahasangh, Maharashtra, Nagpur v. Government of India, Under Secretary, Ministry of Labour, Delhi and Another reported in 2008 (1) LLJ page 298. In this case Central Government has decided that there was no relationship of employer and employee between party concerned. The Court held that it was only an Industrial Tribunal/Court that could determine whether contractor through the each workman were engaged was mere ruse/camouflage to evade compliance with various beneficial Labour legislations. The Division Bench of Bombay High Court has considered various decision on the subject including the Secretary Indian Tea Association (supra) case. Relevant para 8 and 9 are quoted as under:
"8. We have carefully considered the submissions made by the learned counsel for the parties and perused the records and the judgment to relied upon by the respective counsel. It is well settled by catena of decisions of the Apex Court that the appropriate Government exercises administrative function under Section 10(1) of the Act and the function is neither judicial nor quasi judicial. Under Section 12(5) of the Act the appropriate Government can refuse to make reference. On a consideration of report under sub Section 4 of Section 12 of the Act if the appropriate Government is satisfied that there is a case for reference to Labour Court or Tribunal as the case may be, it may make such reference. Where the appropriate government does not make a reference it has to record and communicate the reasons thereof to the parties concerned. No doubt, if on the basis of the material before the appropriate Government the appropriate Government comes to the conclusion that there is no industrial dispute and upon admitted facts the reference is not warranted the appropriate Government would be within its jurisdiction to refuse to make reference and refuse to make reference by giving reasons in terms of Section 12(5) of the Act.
9. In the present case perusal of the records and more particularly failure report submitted by the conciliation officer discloses that according to the petitioner the contractor entered into between the respondent No.2 and the contractor was sham and bogus and was entered into only to defeat the legitimate claims of the seven workmen. According to the petitioner, since the contract was sham and bogus the seven workmen were deemed to be regular employees of respondent No.2 and, therefore, their termination was illegal. In the case of Telco Convoy Drivers Mazdoor Sangh and Another v. State of Bihar and Others (supra) the appellant raised dispute that 900 convoy drivers should be made permanent by the management and they should be given all facilities as were available to the permanent employees of Telco. The said demand proceeded on the basis that the convoy drivers were all workmen of Telco. The appropriate Government refused to make reference on the ground that there was no relationship of master and servant between the said convoy drivers and the Telco. The appellant challenged the action of the Government of refusing to make reference on the ground that the appellant had filed to satisfy that they were employed either by Telco or by Telco Contract Association. In this factual back ground the Apex Court while allowing the appeal filed by the Appellate Telco Convoy Drivers Mazdoor Sangh and Another observed in paragraphs 13 and 14 as under :
"13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See : Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 : (AIR 1985 SC 915) ; M.P. Irrigation Karamchari Sangh v. State of M.P., (1985) 2 SCR 1019 : (AIR 1985 SC 860) ; Shambu Nath Goyal v. Bank of Baroda, Jullundur, (1978) 2 SCR 793: (AIR 1978 SC 1088).
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 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."
In Steel Authority of India Ltd., and Others v. National Union Waterfront Workers and Others (supra), the Apex Court in paragraphs 119(5) and 126 of the judgment observed thus 2001-II-LLJ-1087 at p.1132 :
"119(5).
On issuance of prohibition notification under S. 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned establishment subject to conditions as may be specified by it for that purpose in the light of para 6 hereunder.
120. We have used the expression "industrial adjudicator" by design as determination of the questions aforementioned requires inquiry into disputed question of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Art. 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be Industrial Tribunal / Court whose determination will be amenable to judicial review."
55. Section 12 is having come into effect only in case of industrial dispute espouse by Union relates to public utility service and receiving strike notice u/s 22 of I. D. Act 1947. The Section 12 subsection 1 is very clear, even though, the individual complaint of workman relates to dismissal, discharge and termination, no conciliation proceeding is required by appropriate Government except to see that whether industrial dispute is exists or not and is there any apprehended dispute then dispute must have to be referred for adjudication. No reason is necessary for referring dispute for adjudication.
56. In fact of this case, though industrial dispute was raised by workman against termination even though power has been exercised u/s 12 by initiating conciliation proceedings, which is without jurisdiction. The State Government has rightly followed the procedure after receiving the complaint against dismissal, discharge and termination. After receiving complaint by Assistant Commissioner of Labour, who is having power, which has been delegated by State Government to refer the dispute for adjudication to Labour Court. Therefore, appropriate Government being Central Government has to consider the defect remaining in following procedure in case of dismissal, discharge and termination. The decision, which is under challenged, where Central Government being appropriate Government has decided the merits, for which appropriate Government has no jurisdiction to adjudicate the dispute and to give finding on merits.
57. The view taken by Apex Court in case of Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and Others, reported in AIR 1989 SC 1565 is binding to Central Government.
59. Considering the aforesaid sections, dispute relating to termination is covered by Section 2k being Industrial Dispute. Section 2A is that individual workmen have right to raise dispute against termination without the help of Union by way of filling individual complaint before Conciliation Officer.
60. Section 10 provides the power of appropriate Government to refer the industrial dispute if it exists or apprehended and section 12, provide the detailed procedure when strike notice given by Union in respect to industrial dispute relating to public utility service.
61. In this case, present respondent Bank is not public utility service. Therefore, complaint u/s 2A was filed by workman. It is not a general industrial dispute which covered or concerned with the workmen working with Industry. Therefore, Section 12 is not applicable to the fact of this case, even though, appropriate Government has followed procedure u/s 12, which is without jurisdiction and therefore, decision taken u/s 12 subsection 5 is also without jurisdiction.
62. It is necessary to consider the legal harassment which has been made to concerned petitioner by appropriate Government while adopting wrong procedure resulted into wrong order. The service of petitioner was terminated on 11st August 1999. He raised industrial dispute on 4th October 1999 and appropriate Government decided on 30th January 2001 having the opinion not to refer the industrial dispute for adjudication. The petition is filed before this Court in the year 2001 which is remained pending before this Court for about seven years and now, today, this Court has decided the petition. Therefore, a petitioner who has to wait because of legal fight for a period of more than eight years, till date, whether his termination is legal or not, that question is not referred for adjudication remained without decision. The delay caused by appropriate Government while adopting wrong procedure and forming an opinion as if adjudicating the dispute and thereafter, matter remained pending before this Court. A poor employee is a sufferer who is without work remained unemployed for a period of more than eight years. After dispute will refer for adjudication to Industrial Tribunal, when question of granting the back wages arise for interim period, whether at that occasion, Labour Court grant it or not because of delay in referring the dispute to the Labour Court. Ultimately, sufferer is a poor casual employee who remained without work and wages for a period of more than eight years. The appropriate Government has to think twice before refusing to refer the industrial dispute when it relates to dismissal/discharge and termination, because, ultimately, not to refer the dispute amounts to deny the remedy to the concerned workman. If dispute is not referred, then, workman remained without remedy because Civil Court has no jurisdiction when order of termination passed under the provisions of service rules. No other Court has jurisdiction which gives remedy to the workman to challenge his termination. Therefore, in such circumstances, normally, unless dispute is raised a totally frivolous one ex facie, otherwise, rule is to make a reference. The Apex Court had considered the scope of power of appropriate Government under the provisions of Industrial Disputes Act, 1947 in case of Rajasthan State Road Transport Corporation and Another etc., v. Krishna Kant etc., reported in 1995-II-LLJ-728. This decision is given by Hon'ble bench consisting of three judges of Apex Court. In the said decision, the Apex Court has command to the Parliament and the State Legislature to make the provisions enabling a workman to approach the Labour Court, Industrial Tribunal directly i.e. with the requirement of a reference by the Government in case of industrial disputes covered by Section 2A of the Industrial Disputes Act, 1947. This would give a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the industrial Disputes Act. The recommendations made by Apex Court in the year of 1995 after a period of more than 12 years, Central Government and State Legislature having no time to make the amendment in the Industrial Disputes Act which facilitate the remedy to the workman against dismissal/discharge and termination, so, unnecessary time may not be consumed in conciliation proceedings and workman can straightway approached the Labour Court and challenge the termination or dismissal. In Bombay Industrial Relation Act, 1946, under Section 78/79, an employee who governed by BIR Act, 1946 entitled to challenge termination straightway by filing an application before the Labour Court. The purpose behind it that time consuming by appropriate Government for taking decision to refer or not to refer the dispute is more than one year period and in case if dispute is more than one year period and in case if dispute is not referred, then, it will be more than five to ten years for deciding the decision of appropriate Government. This recommendations of Apex Court as referred above require immediate action by appropriate Government either Central Government or State Government. The relevant discussion of Apex Court making certain observations about power of appropriate Government in respect to industrial dispute under Section 2A are relevant, therefore, the same are quoted as under :
"18.
The expression "Industrial Dispute" is defined in Section 2(k) to mean any dispute or difference (i) between employers and employers; (ii) between employers and workmen; and (iii) between workmen and workmen, provided such dispute is connected with the employment, non-employment, terms of employment or conditions of labour of any person. It is well settled by several decisions of this court that a dispute between the employer and an individual workman does not constitute an industrial dispute unless the cause of the workman is espoused by a body of workmen [See Bombay Union of Journalist v. "The Hindu", (1961)2 Lab LJ 436 : (AIR 1963 SC 318)]. Of course, where the dispute concerns the body of the workers as a whole or to a section thereof, it is an industrial dispute. It is precisely for this reason that Section 2-A was inserted by Amendment Act 35 of 1965. It says, "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute". By virtue of this provision, the scope of the concept of industrial dispute has been widened, which now embraces not only Section 2(k) but also Section 2-A. Section 2-A, however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of services of an individual workman and not other matters, which means that - to give an example - if a workman is reduced in rank pursuant to a domestic enquiry, the dispute raised by him does not become an industrial dispute within the meaning of Section 2-A. (However, if the union or body of workmen espouses his cause, it does become an industrial dispute.) We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2-A. It is obvious that in all such cases, the remedy is only in a Civil Court or by way of arbitration according to law, if the parties so choose. The machinery provided by the Industrial Disputes Act for resolution of disputes (in short, Section 10 or 12) does not apply to such a dispute.
27. But then it is argued that while a person can go and file a suit straightway, he cannot resort to the forums under Industrial Disputes Act directly and that access to these forums is premised upon the appropriate government referring the dispute to them. The submission is no doubt attractive ex facie but not on deeper scrutiny. Firstly, the discretion to refer is not arbitrary. It has to be exercised to effectuate the objects of the enactment. An arbitrary refusal to refer is not un-challengeable. The Courts normally lean in favour of making a reference rather than the other way. In view of the manner in which the several governments have been acting over the last several decades there seems no basis for the apprehension that this power will be exercised arbitrarily. The circumstance suggested cannot, therefore, militate against the view taken by us herein.
32(4). It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
32(5). Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the Government - in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
32(7). The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute."
63. Therefore, according to my opinion, appropriate Government has exceeded in jurisdiction and dispute raised u/s 2A, the appropriate Government has no jurisdiction to examine the matter u/s 12. On both ground, this order dated 30/1/2001 passed without jurisdiction required to be quashed and set aside."
5. It is also necessary to note that petitioner having a remedy before Labour Court to raise all contentions which are raised before this Court in present petition at the time of filing written statement and also petitioner is having a remedy to lead oral evidence to prove their case that resignation which was given by workman being a voluntary and accepted amounts after sanctioning resignation from employer. Therefore, petitioner is having ample opportunity as well as complete remedy to raise all these contentions before Labour Court during pendency of reference and therefore also, this being a second ground not to entertain petition filed by petitioner before this Court challenging order of reference made by Assistant Commissioner of Labour, Junagadh.
6. It is also necessary to note that by referring dispute under Section 10(1)(c) of I.D.Act,1947, the appropriate Government or Assistant Commissioner of Labour has not decided industrial dispute between either of parties. Therefore, rights of either parties merely referring dispute is not decided by Assistant Commissioner of Labour, Junagadh. Therefore also, challenge to such order being an administrative order, this Court should not entertain or encourage such challenge which would stall the proceedings pending before Labour Court and avoid decision on merits.
7. This aspect has been in detail considered by this Court in case of Apollo Tyres Limited v. Commission of Labour and Anr., reported in 2008-II-LLJ-184 where petitioner company challenged a reference made to Industrial Tribunal for adjudication on the ground inter-alia that it was an individual, not industrial dispute and that union which raised it was not representing substantial number of workmen. Relevant observations made in aforesaid judgment are in Para.4 to 10, which are quoted as under :
"4. I have considered the submissions made by the learned Advocate Mr. KC Raval before this Court. Considering the submission of learned advocate Mr. Raval that the order of reference is bad, learned advocate Mr. Raval has not been able to point out as to which right of the company is violated by respondent no.1 by making an order of reference. Unless and until it is successfully demonstrated by the party challenging an order of reference that it is violative of any right of the petitioner, such party cannot be permitted to challenge the order of reference only on the ground that the reference is bad. Even if it is believed that the order of reference is bad, then also,that would, ipso-facto, not entitle such party to challenge the same before the higher forum.So long as the right of the petitioner company not adversely affected by the respondent no.1 while passing the order of reference,t his court cannot entertain the petition only on that ground. Writ petition is maintainable only when right of the parties are adversely affected by the action or order of the State Authority. Learned Advocate Mr. Raval has not been able to point out before this court that because of the order of reference made by respondent no.1, any right of the petitioner has been adversely affected. Therefore, on this count, writ petition is not maintainable. Apart from that, whatever contentions raised by the petitioner in this petition before this court can be raised by the petitioner even before the industrial tribunal as well while participating in the reference proceedings and the petitioner can participate in the reference proceedings without prejudice to his rights and contentions to challenge the order of reference if the ultimate orders of the tribunal are adverse to the petitioner, then same can be challenged therefore, on that ground also, writ petition challenging order of reference is not maintainable. Therefore, according to my opinion, petitioner is having alternative effective remedy to raise all these contentions before the industrial tribunal and the tribunal is competent enough to adjudicate or decide it on the basis of the record which can be produced by the respective parties before the tribunal. So, the petitioner is having alternative equally efficacious remedy to raise all these contentions before the industrial tribunal and therefore also this petition is not maintainable because petitioner has not been able to point out that any right of the petitioner has been adversely affected by order of reference.
5. Further, whether the union is representing substantial number of workmen or not; whether the individual dispute under section 2A is to be converted into a dispute under section 2K or not; in respect of the settlement, whether that settlement has been accepted by each workman or not and whether the union which has raised dispute is entitled to raise the dispute in respect of suspended employees or not and whether all these contentions raised by the petitioner in this petition for challenging order of reference were raised by the petitioner in conciliation proceedings or not, all these are the disputed questions of fact which cannot be appropriately dealt with and decided by this court in a petition under Article 226 of the Constitution of India. There is nothing on record to show that the petitioner has raised any of such contentions before the conciliation officer. All these are the disputed questions of fact requiring appreciation of evidence and the petitioner is having ample opportunity to raise preliminary contention before the industrial tribunal in respect of whatever contention raised before this court and the industrial tribunal can, on the basis of the evidence and record produced by the parties, examine the same but this court cannot examine all these disputed questions of fact in a petition under Article 226 of the Constitution of India.
6. In Philips India Limited and Another And P.N. Thorat, Asstt. Commissioner of Labour and Conciliation Officer and others, reported in 2006-I-LLJ page 1013, order of reference was challenged by the employer before the Division Bench of Bombay High Court. Workmen were contending fraud committed by employer in implementing settlement for Voluntary Retirement Scheme. It was held that the dispute involved triable issues requiring evidence to be led and, therefore, employer's challenge was held to be not sustainable. Relevant observations made by the Division Bench of the Bombay High Court in the said decision in para 12 are reproduced as under:
"12. From the above, what emerges is that there are serious triable issues. The contention of the Union and the workmen is that fraud has been practised upon them. If the workmen are able to succeed in proving that the agreement was entered into by playing fraud, it will be open for them to avoid the settlement. This issue cannot be answered by this court at this stage as it would require evidence to be led. Prima facie a Division Bench of this Court in the very proceedings has taken note that the employees involved in both the writ petitions would be workmen. The Apex Court, however, left that question to be decided. At any rate the expression workmen considering section 2(s) of the ID Act would include ex-workmen. That contention of the management that they are not workmen would require adjudication of facts. Based on these findings and the issue of pensionary benefits under VRS it will have to be considered whether the dispute partakes of an industrial dispute. This again would be premature for this Court to decide at this stage and it will be open to the petitioners to raise all issues before the Industrial Tribunal to which the reference is made. Similarly the contention of the employer that they have complied with the terms of the settlement and consequently there is no industrial dispute and that the employees cease to be workmen will have to be adjudicated upon by the Tribunal. "
7. Similar question has been examined by the Division Bench of Delhi High Court in DD Gears v. Secretary (Labour) and others, reported in 2006 Lab. IC 1462 wherein reference of an industrial dispute to the industrial tribunal was challenged. It was held that no writ petition should be entertained against a mere reference as not affecting rights of the parties. It was held in para 19, 20, 21 and 22 of the said judgment as under:
"19.The learned Single Judge rejected the Writ petition and hence this appeal.
20. In our opinion, we cannot interfere with the reference order under section 10 (1) of the Industrial Disputes Act because that order does not affect the rights of the parties. Hence the Writ petition against that order is liable to be dismissed.
21. It is well settled that a writ petition lies only when the rights of some party has been adversely affected. A mere reference under section 10(1) of the Industrial Disputes Act does not effect any one, rights and hence no writ petition should ordinarily be entertained against a mere reference under section 10(1), as such a petition is premature.
22. It is only when an a ward is given by the Labour Court or Tribunal that a writ petition should be entertained."
8. In the instant case also, mere reference has been made by respondent no.1 and petitioner is unable to point out how it is adversely affecting the rights of the company. Petition is also involving disputed questions of fact which cannot be appropriately dealt with and decided in a writ petition under Article 226 of the Constitution of India. Therefore, in view of the aforesaid two decisions, petition is not sustainable in law.
9. In Sanjay Sitaram Khemka versus State of Maharashtra and others reported in (2006) 5 SCC 255, maintainability of petition involving questions of fact was considered by the apex court. It was held that the matter involving disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. Relevant observations made in para 8 and 9 of the judgment by the apex court are reproduced as under:
"8.Having regard to the allegations and counter allegations made by the parties before us, we are of the opinion that no relief can be granted to the petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact.The petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law.
9. A writ petition, as has rightly been pointed out by the High Court, for grant of said reliefs,was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of controversy, as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the petitioner at this stage. We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this court in exercise of its jurisdiction under Article 136 of the Constitution."
[See : 2007 (6) MLH 406]
10. Therefore, in view of the above observations made by the Supreme Court, Bombay High Court, as well as the Delhi High Court as referred to above, and also considering the facts of the present case which involves disputed questions of fact and also considering the fact that the petitioner is not able to contend that the order of reference is adversely affecting its right, according to my opinion petition is not maintainable against order of mere reference made by respondent no.1 as petitioner is having specific remedy before the industrial tribunal to raise all the contentions raised in this petition before the tribunal because the questions raised in this petition are such which would require evidence to be led and appreciation thereof. According to my opinion, petitioner herein is having several causes of action for which petitioner is required to pursue specific remedy before the tribunal and this court cannot decide such disputed questions of fact in exercise of the powers under Article 226 of the Constitution of India. It is more so when the petitioner is not alleging any mala fides against respondent no. 1. Further, it is not the case of the petitioner that the industrial tribunal is not having power to examine the preliminary contention which may be raised by the petitioner in respect of the contentions raised by the petitioner in this petition before this court, meaning thereby, tribunal is having powers under section 10(1) and 10(4) of the ID Act, 1947,so, tribunal is competent to decide all the contentions that may be raised by the petitioner before it including the preliminary contention as well and can participate in the reference proceedings without prejudice to its rights and contentions in respect of the preliminary contention and if the ultimate outcome is adverse to the petitioner, then, petitioner can challenge the same on all grounds available to him including the contentions raised by petitioner before this court against the order of reference. In view of that also, this petition is not maintainable in law."
8. Similar aspect considering legal consequences in such type of challenge by employer has been also deprecated by this Court in case of Indian Potas Ltd. v. Gujarat Mazdoor Panchayat & Anr., reported in 2006 II CLR 1051. Relevant observations made in aforesaid judgment are in Para.9 to 13, which are quoted as under :
"9. The third order that is the order of reference made by appropriate Government dated 27th February 2003. This Court cannot entertain such petition wherein the order of reference is challenged by the employer. This Court cannot go into the disputed question of facts and triable issues raised by the petitioner in the present petition. The petitioner having full opportunity of hearing to raise all the contention which has been raised before this Court in pending reference before the Labour Court. Therefore, this Court should not have to entertain the petition filed by the petitioner challenging the order of reference. Such petition should not have to be entertained by this Court and that view has been taken by Delhi High Court in case of D.D. Gears Ltd. v. Secretary (Labour) and others reported in 2006 LAB.I.C. 1462. The relevant Para 21 is as under :
" Para 21 : It is well settled that a Writ Petition lies only when the rights of some party has been adversely affected. A mere reference under Section 10(1) of the Industrial Disputes Act does not effect anyone,, rights, and hence no Writ Petition should ordinarily be entertained against a mere reference under Section 10(1), as such a petition is premature."
10. The above view has also been taken by Bombay High Court in case of in case of Philips India Limited and Another v. P.N. Thorat, Asst. Commr. Of Labour and Conciliation Officer and Others reported in 2006-I L.L.J. 1013. The relevant Para 12 and Para 13 are as under :
" Para 12 : From the above, what emerges is that there are serious triable issues. The contention of the Union and the workmen is that fraud has been practised upon them. If the workmen are able to succeed in proving that the agreement was entered into by playing fraud it will be open to them to avoid the settlement. This issue cannot be answered by this Court at this stage as it would required evidence to be led. Prima facie a Division Bench of this Court in the very proceedings has taken note that the employees involved in both the writ petitions would be workmen. The Apex Court, however, left that question to be decided. At any rate the expression workmen considering Section 2(s) of the I.D. Act would include ex-workmen. That contention of the management that they are not workmen would require adjudication of facts. Based on these findings and the issue of pensionary benefits under VRS it will have to be considered whether the dispute partakes of any industrial dispute. This, again would be premature for this Court to decide at this stage and it will be open to the petitioner to raise all issues before the Industrial Tribunal to which the reference is made. Similarly, the contention of the employer that they have complied with the terms of the settlement and consequently there is no industrial dispute and that the employees cease to be workmen will have to be adjudicated upon by the Tribunal.
Para 13 : Considering the above, in our opinion, this would not be a fit case where this Court should exercise its extraordinary jurisdiction. In the light of that both the petitions stand dismissed. In the circumstances of the case, there shall be no order as to costs."
11. The above view has also been taken by this Court in case of in case of Indian Institute of Management v. Gujarat Majdoor Sabha & Ors. (Ahmedabad) reported in 2006 (2) G.C.D. 1227 (Gujarat).
12. In light of this, according to my opinion, petition against the challenge of order of reference is not maintainable because petitioner having a full opportunity to make their submission or to raise contention before the Labour Court which are raised before this Court against the order of reference. This Court cannot examine the disputed question of facts while exercising the power under Article 226 and 227 of the Constitution of India. Therefore, against that challenge, petition should not be entertained by this Court, accordingly, not entertained.
13. In light of the above observation made by this Court and this Court having a limited power to scrutinize the orders are in question while exercising the power under Article 227 of the Constitution of India. The view express by Apex Court in case of Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh pardeshi reported in (1995)6 SCC 576.
The following observations are relevant which are quoted as under :
"The High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave in justice would be done unless the High Court interferes."
9. This question is also considered by Apex Court in case of AMZ Grindlays Bank Ltd. v. Union of India, reported in AIR 2006 SC 296, wherein Apex Court has observed that it is true that normally, a writ petition under Article 226 of Constitution of India should not be entertained against an order of appropriate Government making a reference under Section 10 of Act as the parties would get opportunity to lead evidence before Labour Court or Industrial Tribunal and to show that claim made is either unfounded or there was no occasion for making a reference. Relevant observations made in aforesaid judgment are in Para.13, which are quoted as under :
"13. Mr. Bhat, learned counsel for the second respondent, has submitted that this Court should not interfere with the order of the Central Government making a reference under Section 10 of the Act, as the appellant can ventilate its grievances before the Industrial Tribunal itself and if the decision of the tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned counsel the writ petition is pre-mature as the appellant has got a remedy before the Tribunal to show that the reference is either bad in law or is uncalled for. We are unable to accept the submission made. It is true that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of the appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was no occasion for making a reference. However, this is not a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in proceedings under Article 226 of the Constitution as no evidence is required to be considered for examining the issue raised."
9.1 In facts of this case, petitioner is not able to point out before this Court that reference which has been made by appropriate Government is in futility and can be demonstrated from bare reading of terms of reference and this being an admitted facts. These are not facts before this Court because so called resignation which has been obtained by petitioner and payment was made, that has been challenged or disputed by workman while serving notice (Page-62) dated 10.5.2010 that itself is enough not to cover case based on admitted facts. Therefore, once dispute has been raised and it was not an admitted facts between parties, then Assistant Commissioner of Labour, Junagadh has no jurisdiction to decide merits of industrial dispute but, it has a limited jurisdiction to consider as to whether industrial dispute exists between parties or not and if he satisfied while considering legal notice dated 10.5.2010 (Page-62) that there is a genuine dispute raised by workman challenging so called resignation then it is enough for satisfying requirement of Section 10(1)(c) of I.D.Act,1947 to refer such dispute for adjudication to Labour Court as covered by Item No.3, second schedule under Section-7 of I.D.Act,1947.
10. Therefore, in light of this background, such challenge made by petitioner having a complete remedy to raise all these contentions before Labour Court but to see that by challenging such type of order of reference to curtail further hearing of reference which has been referred for adjudication by appropriate Government. Such challenge by employer cannot be encouraged by this Court when employer having complete opportunity to raise all these contentions before Labour Court, then to entertain such petition it amounts to encouraging employer to challenge such type of order of reference so that workman may not be able to get right of adjudication before appropriate forum which has been prescribed under provisions of I.D.Act,1947. In I.D.Act, particular forum is prescribed for resolving the industrial dispute between parties and for that, Assistant Commissioner of Labour, Junagadh has referred dispute to decide dispute between parties, at that occasion challenging order of reference apparently it is nothing else but a clear case of mala fide of petitioner to avoid decision on merits and to get stay against proceedings pending before Labour Court, Junagadh. Such type of attempt and efforts made by employer, this Court cannot encourage such type of challenge, otherwise whole machinery is to be considered stand still if such challenge is entertained by this Court while exercising powers under Article 226/227 of Constitution of India. It is necessary to note that workman has no other remedy to challenge such dispute in any other statutory forum. The workman cannot challenge such dispute in civil court and even not able to challenge disputed facts in this Court under writ petition under Article 14, 16 and 226 of the Constitution of India. So only statutory forum under provisions of I.D.Act,1947 is available except that no forum is available to such dispute can be resolved by independent statutory authority. Therefore, if such challenge by employer, order of reference before this Court if encourage then workman remained without remedy. The workman may not able to get adjudication about his dispute that so called resignation was obtained by the employer under duress and adopting coercive steps against workman. This being very vital and important issue must have to keep in mind by this Court when order of reference challenged by employer based on disputed facts and not based on admitted facts. I have also considered one important fact that merely order of reference made by appropriate Government (Assistant Commissioner of Labour, Junagadh) to Labour Court, Junagadh, that itself not violated any legal rights of petitioner. So when by order of reference, right of petitioner is not violated or having any adverse effect to his right, then writ petition is not maintainable under Article 226 / 227 of the Constitution of India. The Assistant Commissioner of Labour, Junagadh has not decided right of either parties which referring merely industrial dispute to Labour Court, Junagadh. It is open for petitioner to raise all contentions before Labour Court, Junagadh and even if it decides against the petitioner, then petitioner can challenge award which may be passed by Labour Court, Junagadh to higher forum. So right of petitioner is remained intact and fully safeguard under machinery of I.D.Act,1947 during pending reference and even after award is passed against petitioner, this being good ground not to entertain such petition filed by petitioner, challenging order of reference before this Court. This aspect recently examined by Division Bench of this Court in case of Thakor Nagjibhai Bhailal v. IPCL, Now Amalgamated with Reliance Inds.Ltd & Ors., reported in 2011 I CLR 183. Relevant observations of aforesaid decision are in Para.12, 12A, 20, 20A, 21 to 24, 26, 27, 35 and 36, which are quoted as under :
"12. The management has taken almost similar plea before us. The learned counsel for the management would contend that the appellants - workmen had ceased to be workmen within the meaning of Section 2(s) of the ID Act and, therefore, on cessation of employment pursuant to their applications under the Voluntary Separation Scheme, there is no industrial dispute within the meaning of Section 2(k) of the ID Act, which can be referred under Section 10(1). Reliance was also placed on Section 2(k) of the ID Act, which reads as under :-
"2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"
12A. He would contend that for the purpose of qualifying as an industrial dispute, the dispute or difference has to be between the employer and the workmen and in the present case, the appellants having been separated themselves from the services of the Company and as they were no longer workmen of the Company from the date of acceptance of voluntary retirement, the alleged dispute or difference between the appellants and the management Company cannot be termed as an 'industrial dispute' for reference under Section 10 of the ID Act.
20. In the case of Sarva Shramik Sangh vs. Indian Oil Corporation Ltd., reported in (2009) 11 SCC 609, the Supreme Court observed as follows :-
"29. It is true that making a reference under Section 10(1) of the ID Act is within the discretion of the appropriate Government. Referring to the unamended Section 10(1) of the ID Act this Court in State of Madras vs. C.P. Sarathy, AIR 1953 SC 53 laid down the following principles :-
(i) The Government should satisfy itself, on the facts and circumstances brought to its notice, in its subjective opinion that an "industrial dispute" exists or is "apprehended".
(ii) The factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the Government to decide.
(iii) The order making a reference is an administrative act and it is not a judicial or a quasi-judicial act.
(iv) The order of reference passed by the Government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution, to see if the Government had material before it to support the conclusion that the dispute existed or was apprehended."
20A. In Rohtas Industries Ltd. vs. S.D. Agarwal, reported in (1969) 1 SCC 325, the Supreme Court held as follows :-
"7. ....
This interpretation of Section 10(1) is based on the language of that provision as well as the purpose for which the power in question was given and the effect of a reference. That decision cannot be considered as an authority for the proposition that whenever a provision of law confers certain power on an authority on its forming a certain opinion on the basis of certain facts the courts are precluded from examining whether the relevant facts on the basis of which the opinion is said to have been formed were in fact existed."
21. Whether the Government can go into the merits of the dispute was the question raised before the Supreme Court in Western India Match Co. Ltd. vs. Western India March Co. Workers' Union, reported in (1970) 1 SCC 225. Therein, at para 9, the Supreme Court observed as under :-
"9. ...
the Government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication so that the industrial relations between the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible."
22. If the appropriate Government refuses to make a reference for irrelevant considerations, on extraneous grounds or acts mala fide, a party would be entitled to move the High Court for a writ of mandamus. This was the view of the Supreme Court in Hochtief Gammon vs. State of Orissa, reported in (1975) 2 SCC 649, wherein the Supreme Court made the following observations :-
"13. The executive has to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the executive acts lawfully. It is no answer to the exercise of that power to say that the executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts."
23. Section 10(1) of the ID Act confers a discretionary power and is exercised on being satisfied that an industrial dispute exists or is apprehended. There may be some material before the Government on the basis of which it forms an opinion. The adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the reference is impugned by a party, it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the award but if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for Government to decide upon, and it will not be competent for the court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters. Such was the finding of the Supreme Court in Avon Services Production Agencies (P) Ltd. vs. Industrial Tribunal, reported in (1979) 1 SCC 1.
In the very same case, however, the Supreme Court held that "....merely because the Government rejects a request for a reference or declines to make a reference, it cannot be said that the industrial dispute has ceased to exist. ..... The industrial dispute may nonetheless continue to remain in existence and if at a subsequent stage the appropriate Government is satisfied that in the interest of industrial peace and for promoting industrial harmony it is desirable to make a reference, the appropriate Government does not lack power to do so under Section 10(1), nor is it precluded from making the reference on the only ground that on an earlier occasion it had declined to make the reference."
24. In Ram Avtar Sharma vs. State of Haryana, reported in (1985) 3 SCC 189, the Supreme Court considered a refusal by the Government which has decided on merit. That was the case where the services of the employee were terminated after charges against him were proved in a domestic enquiry. In the said case, the Supreme Court observed as follows :-
"....
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 appeal 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 .. ... 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."
26. When similar matter fell for consideration before the Supreme Court in Sharad Kumar vs. Govt. of NCT of Delhi, reported in AIR 2002 SC 1724, the Supreme Court observed that where determination of the question required examination of factual matters for which materials including oral evidence will have to be considered, in such matters, the State Government could not arrogate on to itself the power to adjudicate on the question.
27. In the present case, there is a disputed question of fact whether the workmen had withdrawn their offers for voluntary retirement prior to the order of acceptance of such voluntary retirement or prior to their relieving. The management has taken a plea that the circulars were displayed on the notice board on 21.3.2007, but also accepted that the letters of voluntary retirement were issued in the end of March, 2007. The management has also accepted that pursuant to the VRS on or about 3.4.2007, 455 persons were relieved and 7 persons were relieved on 30.4.2007 and 2 persons were relieved on 31.5.2007. Therefore, the question as to whether one or the other workmen had withdrawn their prayer for voluntary retirement prior to issuance of their relieving order or prior to their relieving is one of the questions which requires determination to adjudicate whether the relationship of employer and employees ceased because of the voluntary retirement or they were forcibly retired from the service amounting to retrenchment.
35. We have noticed that this Court cannot sit in appeal over a finding of the State. The determination of the question which requires examination of factual matters, for which material including oral evidence is required to be considered, such matter cannot be arrogated to by the State which will amount to adjudication of the question.
36. In the present case, it will be evident that the workmen also moved before this Court in Special Civil Application No. 20727 of 2007 and in analogous cases. Therein, this Court by order dated 22.8.2007 after considering the submissions made by the learned counsel for the parties, having noticed that a number of disputed questions are raised in the aforesaid group of petitions, which require some evidence to be taken before the appropriate authority, allowed the parties to move before the State. Thereafter, the workmen moved before the respondent - State for reference under Section 10(1) of the ID Act. Such observations having already made, the matter having remitted at the instance of the parties including the management, when the question of deciding the disputed fact was required to be determined on the basis of the evidence, we are of the view that the respondent - State or its authority could not have arrogated on itself the power to adjudicate on the question whether the relationship between the management and the workmen ceased because of voluntary retirement or they were retrenched. In view of the Supreme Court decisions as referred to above, we also hold that the respondent - State and the Assistant Labour Commissioner, in particular, had no jurisdiction to look into the evidence to adjudicate on the question which was required to be determined by the Tribunal in a reference, if it would have been made under Section 10(1) of the ID Act."
[See :United Phosphorus Ltd. v. Commissioner of Labour & Anr., reported in 2011 Lab.I.C. 1006, decided on 26.4.2010 (Coram :
H.K.Rathod,J.)]
11. Recently, Apex Court has examined question how to exercise the powers by High Court under Article 226 / 227 of Constitution of India and even while exercising such powers, what are fundamental principles is to be considered by High Court in case covered under provisions of Industrial Law. That has been considered in detail by Apex Court in case of Harjinder Singh v. Punjab State Warehousing Corporation, reported in 2010 (1) Scale 613. Relevant observations made in aforesaid judgment are in Para.10, 11, 26 to 44, which are quoted as under :
"10. We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution - Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003 (6) SCC 675. In Syed Yakoob's case, this Court delineated the scope of the writ of certiorari in the following words:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955 (1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168).
It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
11. In Surya Dev Rai's case, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions:
"(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction I.e. when a subordinate court is found to have acted (I) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (I) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident I.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the corporation that termination of the appellant's service falls within the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of corporation was contrary to Section 25G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs.87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family.
26. Judges of the last Court in the largest democracy of the world have a duty and the basic duty is to articulate the Constitutional goal which has found such an eloquent utterance in the Preamble. If we look at our Preamble, which has been recognised, a part of the Constitution in His Holiness Kesavananda Bharati Sripadagalvaru and others vs. State of Kerela and another - [1973 SC 1461], we can discern that as divided in three parts. The first part is a declaration whereby people of India adopted and gave to themselves the Constitution. The second part is a resolution whereby people of India solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic. However, the most vital part is the promise and the promise is to secure to all its citizens:
" JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;"
[See Justice R.C. Lahoti, Preamble- The Spirit and backbone of the Constitution of India, Anundoram Barooah law Lectures, Seventh Series, Eastern Book Company, 2004, at p. 3]
27. Judges and specially the judges of the highest Court have a vital role to ensure that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the Preambular promise a reality, they fail to uphold and abide by the Constitution which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this Court.
28. As early as in 1956, in a Constitution Bench judgment dealing with an Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the Constitution, posed the following question:
"After all, for whose benefit was the Constitution enacted?"
[Bidi Supply Co. vs. Union of India and others - AIR 1956 SC 479 at Para 23, pg. 487]
29. Having posed the question, the Learned Judge answered the same in his inimitable words and which I may quote:
"I am clear that the Constitution is not for the exclusive benefit of Governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the "butcher, the baker and the candlestick maker". It lays down for this land a "rule lof law"
as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all."
[Ibid, Emphasis supplied)
30. The essence of our Constitution was also explained by the eminent jurist Palkhivala in the following words:
"Our Constitution is primarily shaped and moulded for the common man. It takes no account of "the portly presence of the potentates, goodly in girth". It is a Constitution not meant for the ruler "but the ranker, the tramp of the road, The slave with the sack on his shoulders pricked on with the goad, The man with too weighty a burden, too weary a load.""
[N. A. Palkhivala, Our Constitution Defaced and Defiled, MacMillan, 1974, p. 29] 31 I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist.
32. In this context another aspect is of some relevance and it was pointed out by Justice Hidayatullah, as His Lordship was then, in Naresh Shridhar Mirajkar and others vs. State of Maharastra and Anr.
- [AIR 1967 SC 1]. In a minority judgment, His Lordship held that the judiciary is a State within the meaning of Art. 12. [See paras 100, 101 at page 28, 29 of the report]. This minority view of His Lordship was endorsed by Justice Mathew in Kesavananda Bharati (supra) [at page 1949, para 1717 of the report] and it was held that the State under Article 12 would include the judiciary.
33. This was again reiterated by Justice Mathew in the Constitution bench judgment in the case of State of Kerela and another vs. N. M. Thomas and others [AIR 1976 SC 490] where Justice Mathew's view was the majority view, though given separately. At para 89, page 515 of the report, his Lordship held that under Article 12, `State' would include `Court'.
34. In view of such an authoritative pronouncement the definition of State under Article 12 encompass the judiciary and in Kesavananda (supra) it was held that "judicial process" is also "state action" [Para 1717, pg. 1949]
35. That being the legal position, under Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
"The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life."
This is echoing the preambular promise
36. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made clear in Kesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive Principles nevertheless are:
"...fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience."
37. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother J. Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above.
38. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
39. Commenting on the importance of Article 38 in the Constitutional scheme, this court in Sri Srinivasa Theatre and Others vs. Government of Tamil Nadu and others [(1992) 2 SCC 643], held that equality before law is a dynamic concept having many facets. One facet- the most commonly acknowledged- is that there shall be not be any privileged person or class and that none shall be above the law. This Court held that Art 38 contemplates an equal society [Para 10, pg. 651].
40. In Indra Sawhney and Others vs. Union of India and Others [1992 Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that:
"The content of the expression "equality before law" is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39-A, 41 and
46."
[at Paras 643, pg. 633]
41. Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others - [(1979) 3 SCC 466], while interpreting the land reforms Act, that beneficial construction has to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court, made it very clear that even though the judges are "constitutional invigilators and statutory interpreters" they should "also be responsive to part IV of the Constitution being "one of the trinity of the nation's appointed instrumentalities in the transformation of the socio-economic order". The Learned Judge made it very clear that when the Judges "decode social legislation, they must be animated by a goal oriented approach" and the Learned Judge opined, and if I may say so, unerringly, that in this country "the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme." [Para 1, p. 468]
42. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
43. I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so called trends of "Globalisation", may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. Here if we may remember Tagore who several decades ago, in a slightly different context, spoke of eventualities which may visit us in your mad rush to ape western ways of life. Here if I may quote the immortal words of Tagore:
"We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed. We agreed to acknowledge that this chariot-drive was progress, and the progress was civilization. If we ever ventured to ask "progress toward what, and progress for whom", it was considered to be peculiarly and ridiculously oriental to entertain such ideas about the absoluteness of progress. Of late, a voice has come to us to take count not only of the scientific perfection of the chariot but of the depth of the ditches lying in its path."
44. How stunningly relevant are these words and how deep are the ditches created in our society by the so called advance of globalization."
12. The Apex Court, in case of Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Others, reported in AIR 1989 SC 1565, observed in Para.11 to 16 as under :
"11.
It is true that in considering the question of making a reference under Section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhusan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is, undoubtedly not permissible.
12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are workmen, there cannot be any existence of industrial dispute within the meaning of the term as defined in Section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the Government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in Section 2(k) of the Act.
13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 :
(AIR 1985 SC 915) ; M.P. Irrigation Karamchari Sangh v. State of M.P., (1985) 2 SCR 1019 : (AIR 1985 SC 860) ; Shambu Nath Goyal v. Bank of Baroda, Jullundur, (1978) 2 SCR 793: (AIR 1978 SC 1088).
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 exceptionl 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.
15. We are, therefore, of the view that the State Government, which is the appropriate Government, was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner acting on behalf of the Government and that of the Government itself cannot be sustained.
16. It has been already stated that we had given one more chance to the Government to reconsider the matter and the Government after reconsideration has come to the same conclusion that the convoy drivers are not workmen of TELCO thereby adjudicating the dispute itself. After having considered the facts and circumstances of the case and having given our best consideration in the matter, we are of the view that the dispute should be adjudicated by the Industrial Tribunal and, as the Government has persistently declined to make a reference, under Section 10(1) of the Act, we think we should direct the Government to make such a reference. In several instances this Court had to direct the Government to make a reference under Section 10(1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhiladar Munnetra Sangam v. Govt. of Tamilnadu, (1983) 1 Lab LJ 460; Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 : (AIR 1985 SC 915); M. P. Irrigation Karamchari Sangh v. State of M. P., (1985) 2 SCR 1019: (AIR 1985 SC 860); Nirmal Singh v. State of Punjab, (1984) 2 Lab LJ 396 : (AIR 1984 SC 1619)."
13. In light of aforesaid observations made by Apex Court as well as this Court and considering such challenge, for that petitioner is having alternative remedy to raise all these contentions before the Labour Court. Such challenge cannot be entertained or encouraged by this Court while exercising discretionary powers being extraordinary jurisdiction of this Court under Article 226/227 of Constitution of India. Therefore, contentions raised by learned advocate Mr.Gogia cannot be accepted. Therefore, there is no substance in present petition. Accordingly, present petition is dismissed summarily.
[ H.K.RATHOD, J. ] (vipul) Top