Madras High Court
N. Durairajan vs Union Of India And Another on 1 February, 1990
Equivalent citations: (1990)IILLJ147MAD
Author: A.S. Anand
Bench: A.S. Anand
JUDGMENT A.S. Anand, C.J.
1. The only point of law which arises for consideration in this writ appeal directed against the judgment of the learned single Judge in W.P. No. 261 of 1980 decided on 11th January 1980, dismissing the writ petition filed by the appellant herein is whether the appropriate Government was justified in declining to make a reference of an industrial dispute arising out of dismissal from service of the appellant herein.
2. The appellant, at the relevant time was working in the Lignite Project of the second respondent as Foreman Grade X (Electrical). He was at the time of his dismissal drawing more than Rs. 500 per month as his wages. It is not necessary for the purpose of deciding the question under consideration to recapitulate the facts leading to the dismissal of the appellant or the charges framed against him and we, therefore, refrain from doing so.
3. Consequent upon his dismissal, the appellant invoked the provisions of Section 2-A of the Industrial Disputes Act, 1947 and conciliation machinery was put in motion. It, however ended in failure and the Conciliation Officer - vide his communication dated 13th December 1976 - intimated to the appellant as well as to the second respondent the failure of the conciliatory proceedings. On the failure of the conciliatory proceedings, the matter went before the first respondent who, however declined to make a reference of the dispute to the Labour Court/Tribunal stating that the appellant was not a 'workman' - vide its order dated 8th September 1978 No. L-29012(9)/76-D-III(B)/D-IV(B). For facility of reference, that order is reproduced hereunder :-
"In continuation of this Ministry's letter N. L-29012(9)/76-D-IV(B), dated the 28th December, 1976, I am directed to say that Shri N. Durairajan is reported to have been performing duties of supervisory nature as Foreman Grade-I and was drawing more than Rs. 500 per month as his wages at the time of his alleged dismissal from service. He cannot therefore be deemed to be a workman within the definition of the terms as contained in Section 2(s) of the I.D. Act 1947. In view of this, it is not proposed to take any action on the report of the Assistant Labour Commissioner(C), Madras in the above mentioned dispute."
4. According to Mr. G. Venkataraman, learned counsel for the appellant, since the Management itself had accepted the appellant as enjoying the status of a 'workman' during the conciliation proceedings which is borne out from a perusal of the proceedings before the Conciliation Officer, it was not open to the first respondent to refuse to refer the dispute arising out of his dismissal to the competant forum under the Industrial Disputes Act. He urged that even otherwise the question as to whether the appellant was a 'workman' as defined under the Industrial Disputes Act, had to be decided on the basis of the nature of the duties attached to his office or the powers vested in him and it was a matter for adjudication by the Labour Court/Tribunal and the Government could not return a finding while considering the question of making a reference under Section 10(1) read with section 12(5) of the Industrial Disputes Act. Learned counsel went on to urge that the learned single Judge fell in complete error in dismissing the writ petition only on the ground that since the wages of the appellant were more than Rs. 500 per month, the first respondent was justified in declining to make a reference after arriving at the conclusion that the appellant was not a 'workman'.
5. Mr. Tamizhmani learned counsel for the Management second respondent did not dispute before this Court that its stand before the conciliatory proceedings had been that the appellant was a 'workman' and even now the Management was not resiling from that stand, particularly when it had sought to apply the Industrial Dispute (Standing Orders) Act to him. He however faintly submitted that it was within the discretion of the first respondent to refer or not to refer the dispute and since it had arrived at a conclusion that reference could not be made, the learned single Judge was justified in not interfering with that order which was a discretionary order.
6. Mr. A. R. Nagarajan learned counsel appearing for the first respondent, submitted that under Section 10(1) of the Industrial Disputes Act, the Government has the right to consider whether reference in a given set of circumstances was required to be made to the Labour Court or Tribunal or not, and unless the order of the appropriate Government was per se perverse, it did not call for interference in exercise of the jurisdiction under Article 226 of the Constitution of India. In the instant case since the appropriate Government came to the conclusion that the appellant was not a 'workman' as defined in Section 2(s) of the Act, it was justified to decline to make a reference and that the order of the Government was neither perverse not even illegal and no interference with the same was called for.
7. We have given our anxious consideration to the respective contentions raised at the Bar.
8. Under Section 10(1) of the Industrial Disputes Act, where the appropriate Government is "of the opinion that industrial dispute exists or is apprehended", it may refer the dispute of any matter appearing to be connected therewith or relevant to the dispute to a Court or Tribunal for enquiry. However, while forming that opinion, the appropriate Government must take into account relevant material and neither any irrelevant nor any extraneous matter should influence it to form its objective opinion. Implicit in the power of making reference is the existence of the satisfaction that what is referred to is an industrial dispute. It is now well-settled by a series of decisions of various High Courts in the country as well as the apex court that while exercising powers under Section 10(1) of the Industrial Disputes Act, the appropriate Government performs only on administrative act and not a judicial or quasi-judicial act. The fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its functions does not make it any less administrative in character. While deciding to make or refuse to make a reference the Government does not and cannot decide any disputed question of law or fact touching upon the merits of the dispute between the parties. Where, however the appropriate Government declines to make a reference, it must record its reasons therefor and communicate it to the parties. The reasons, of course would be subject to judicial review. Being an administrative function therefore, the Government cannot delve into the 'merits' of the 'dispute' and determine the list or any part thereof. In view of this settled legal position for which reference may be made with advantage to Shambu Nath Goyal v. Bank of Baroda Jallundur (1978-I-LLJ-484) and Ram Avtar Sharma & Anr. v. State of Haryana & Anr (1985-II-LLJ-187). The making of a reference by the appropriate Government appears to be the normal rule and its refusal, only an exception. The apex Court in Ram Avtar Sharma & Anr. v. State of Haryana & Anr (supra), at page 190 considered as to "what are the parameters of power of the appropriate Government under S. 10 while making or refusing to make a reference to an industrial court or tribunal for adjudication of an industrial dispute." After holding that the power exercised by the appropriate Government under Section 10(1) of the Act is only an administrative power and that the appropriate government while exercising the power does not perform a judicial or a quasi-judicial act the Court opined that Government cannot while considering the question of making or refusing to make a reference, delve into the merits of the dispute. After referring to its earlier decisions on the subject, the apex court went on to observe that if the reasons for which the Government declined to make a reference under Section 10 are irrelevant, extraneous or not germane to the determination, the aggrieved party would be entitled to move the court for a writ of mandamus. The Court further observed that where the appropriate Government while refusing to make a reference purports to give reasons which tantamount to "adjudication", the appropriate Government could be said to have acted on extraneous, irrelevant grounds not germane to the determination of the limited question before it and a writ of mandamus would lie.
9. A Division Bench of this Court in Shaw Wallace Co. v. T. Nadu rept. by C&S Labour Dept. & Ors (1988-I-LLJ-177), while dealing with the parameters of the powers of the appropriate Government while refusing to make a reference, observed thus (pp 185-186) :
"... The two functions viz., reference and adjudication are in two independent spheres under the control of different authorities. While the sphere of reference is controlled by the Government, the other sphere is controlled by the Courts and Tribunals prescribed by the Act. The Government again while acting within the sphere of reference should not transform it into a sphere of adjudication. The legislature expects the Government to carry out its functions assigned under the Act without in any manner trespassing on the field of adjudication allotted to the Court and Tribunals. The discretion given in Section 10(1) read with Section 12(5) of the Act has, therefore, to be exercised in such a manner that it would not exceed the limits prescribed for the sphere of reference and enter into the territory of adjudication. What the Government is expected to decide before making a reference is whether on a prima facie examination of the facts of the case, there is a dispute which requires a trial or adjudication by a Tribunal or a Court. If there is any matter which requires to be adjudicated, then the Government cannot take upon itself the function of such adjudication and refuse to refer the matter .."
10. In the light of the settled law, as noticed above, it would now be relevant to consider the reason given by the first respondent for declining to make a reference. The reason for declining to make a reference is - "that Shri N. Durairajan is reported to have been performing duties of supervisory nature as Forman Grade-I and was drawing more than Rs. 500/- per month as his wages at the time of his alleged dismissal from service. He cannot, therefore be deemed to be a workman within the definition of the term as contained in Section 2(s) of the I.D. Act 1947." In the first place, the use of the expression "is reported to have been performing duties ..." is a very vague expression. Keeping in view the stand of the Management during the conciliation proceedings that the appellant was a 'workman' even though he was drawing wages of more than Rs. 500/- per month and the fact that the appellant had also claimed to be 'workman' despite his wages being more than Rs. 500 per month, it was not open to the appropriate Government to return a finding contrary to the stand of the parties before it, without reference to any other material that the appellant was not a "workman" so as to hold that no industrial dispute existed which could be referred for adjudication. On what material did the first respondent hold that the appellant was performing duties which took him out of the category of 'workman' has not been indicated in the impugned order. Who 'reported' to it, about the nature of duties being performed by the appellant is not known. The order is singularly silent and learned counsel for the first respondent could also not enlighten us on that aspect. The report containing the failure of the conciliatory proceedings indeed did not mention any such fact. It is, therefore, a reason which, to say the least, is based on extraneous or irrelevant considerations. That apart, the question whether the appellant was a 'workman' or not is a question which was required to be decided by the adjudicatory machinery and not by the administrative machinery, after the parties were granted an opportunity to establish, by evidence in case there was a dispute between the appellant and the second respondent - Management on that aspect as to whether the appellant was or was not a 'workman' within the meaning of Section 2(s) of the Act. The Government in the order impugned in the writ petition has not given any valid reason to justify the conclusion it arrived at for refusing to make a reference. In all fairness, this question as to whether the appellant was a 'workman' or not, if it was a question at all in dispute, was required to be left to be decided by the Labour Court/Tribunal. It was wrong and improper for the first respondent to return a finding on that aspect. In Shaw Wallace Co. v. T. Nadu rept. by C&S Labour Dept. & Ors (supra), in paragraph 34 on page 196, the Bench, while dealing with Writ Appeal No. 255 of 1987, expressly held that the question whether the writ petitioner is a 'workman' as defined by the Act has to be decided on the basis of the nature of the duties attached to his office or the powers vested in him and it cannot be decided by the Government, it is a matter for adjudication by the Labour Court. The Bench observed :
"Both before the Labour Officer and this Court in the writ petition, it is the contention of the writ petitioner that though he was designated Supervisor by the Management, his duties are such that he falls within the definition of 'workman'. It is also contended by his that disciplinary action having been taken against him under the Standing Orders, it is not open to the management to contend that he is not a workman. No doubt, the management has been taking the stand that he is not a workman as he is employed in a supervisory capacity earning more than Rs. 2000 p.m. The question whether the writ petitioner is a workman as defined by the Act has to be decided on the basis of the nature of the duties attached to his office or the powers vested in him. As the facts are in dispute, the question cannot be decided by the Government. It is a matter for adjudication by the Labour Court. Hence order of the learned Judge setting aside the order of the Government has to be upheld. The writ appeal fails and is dismissed."
We are in respectful agreement. The appropriate Government in the facts and in the circumstances of the instant case had therefore exceeded the limits of its jurisdiction under Section 10(1) read with Section 12(5) of the Industrial Disputes Act by refusing to make a reference and returning a finding that the writ petitioner was not a 'workman. By doing so it had arrogated to itself the functions of the adjudicatory machinery, though it could only perform its functions as the administrative machinery. The answer to the question posed in the opening part of the judgment has therefore to be in the negative. The judgment of the learned single Judge upholding the order impugned in the writ petition thus cannot be sustained. The learned single Judge failed to consider the limits of the powers of the first respondent while refusing to make a reference as also the validity of the reason given by it to justify the refusal.
11. In view of our finding recorded above, the necessary corrollary would have been to remit the case to the first respondent for a fresh decision, but learned counsel for the appellant submitted that the wrongful dismissal of the workman had taken place in 1976 and since fourteen years had expired, this was a fit case in which this Court, instead of directing the Government to re-consider the matter, itself issues a direction to the Government to refer the dispute for adjudication to the competent court. Learned counsel relied upon two judgments of the Supreme Court in support of his submission.
12. In Sankar Cement Alai Thozhilalar Munnetra Sangam & Another v. Govt. T. N. & Another (1983-I-LLJ-460), where the State Government had refused to make a reference of the dispute for adjudication and it was found that the appropriate Government had failed to perform the duties imposed by the statute for reasons which were irrelevant, the Supreme Court gave a direction to the appropriate Government to make a reference of the industrial dispute to the appropriate tribunal considering the fact that the case was an old one. Their Lordships in paragraph 2 (pp 460-461) of the judgment observed.
"Petitioner sought reference of the industrial dispute arising from alleged invalid termination of the service of workmen mentioned in the petition under S. 10 of the Industrial Disputes Act. Having regard to all the relevant circumstances of the case, we are of the opinion that State Government failed to perform the duty imposed by the statute for reasons which are irrelevant. Accordingly Tamil Nadu Government is directed to make a reference of the said industrial dispute to the appropriate tribunal within four weeks from today. We hope that as the matter is an old one, the Industrial Tribunal and/or Labour Court to which reference would be made shall dispose it of as early as possible."
Again, in Nirmal Singh v. State of Punjab Ors (1984-II-LLJ-396), where the apex Court found that the Labour Commissioner had not even any reasons to justify his conclusion that the appellant in that case did not fall within the category of 'workman' and had declined to make a reference, instead of remanding the matter to the Labour Commissioner asking him to pass a fresh order, the apex Court found it "advisable from the point of view of not only the appellant but the Bank also that a reference is made either to the Labour Court or to the Industrial Tribunal" (p. 397) for adjudication of the question as to whether the dismissal of the appellant therein from the service of the Bank was legal and justified and the Bench accordingly directed the Labour Commissioner, Chandigarh, to whom the State Government had delegated its powers under Section 12 of the Act, to make a reference to either of the two authorities as he considered proper.
13. Learned counsel for the appellant also made an attempt to persuade us to decided the question as to whether or not the appellant was a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act ourselves. He submitted that having regard to the stand of the Management both before the Conciliation Officer and before this Court about the status of the appellant, we may ourselves decide the question as to whether the appellant is a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act. But, since a decision on the question may require evidence to be led in case a dispute about it should arise, we are of the opinion that on the basis of the material before us, it will not be either advisable or proper for us to decide that question which may be decided by the appropriate forum, if raised before it.
14. In the peculiar facts and circumstances of the case and considering that the matter has been pending for over a decade even in this Court itself, we consider it to be a fit case in which to issue a direction to the first respondent to make a reference of the dispute arising out of the dismissal from service of the appellant by the second respondent for adjudication.
15. In the result, the writ appeal succeeds and is allowed. The judgment of the learned single Judge is set aside. The order impugned in the writ petition is hereby quashed. The appropriate Government is hereby directed to make reference to the competent forum to adjudicate whether the dismissal of the appellant by the second respondent was legal and justified. The first respondent shall make the reference within for weeks from the date of receipt of a copy of this judgment and since the matter is an old case, we hope the Labour Court or the Tribunal to which reference is made would expeditiously dispose of the matter. It shall be open to the parties to raise all such pleas as are available to them before the Labour Court or Tribunal, as the case may be. No costs.