ivil Appeal No 2534 of 1989
From the Judgment and Order dated 1511988 of the High Court in CWJC No 1852 of 1987
GB Pai SK Sinha for the Appellants
Shanti Bhushan section Sukumaran DN Misra SB Upadhyay and BB Singh for the Respondents
The Judgment of the Court was delivered by DUTT J
Special leave is granted
Heard learned Counsel for the parties
The appellants Telco Convoy Drivers Mazdoor Sangh Jamshedpur and another have preferred this appeal against the judgment of the Patna High Court whereby the High Court dismissed the writ petition of the appellants challenging the order of the State of Bihar refusing to make a reference of the disputes raised by the appellants to the Industrial Tribunal under section 10 of the  hereinafter referred to as the Act
The appellant Sangh represents about 900 convoy drivers
By a 805 letter of demand dated October 16 1986 addressed to the General Manager of the Tata Engineering  Locomotive Co Ltd Jamshedpur for short TELCO the Sangh demanded that permanent status should be given by the management to all the convoy drivers and that they should also be given all the facilities as are available to the permanent employ ees of TELCO on the dates of their appointment
The said demand proceeds on the basis that the convoy drivers are all workmen of TELCO
The dispute that has been raised in the said letter of demand is principally whether the convoy drivers are workmen andor employees of TELCO or not
In other words whether there is relationship of employer and employees between TELCO and the convoy drivers
The Deputy Labour Commissioner by his letter dated February 26 1979 informed the appellant Sangh that in view of the opinion of the Law Department of the year 1973 to the effect that there was no relationship of master and servant between TELCO and the convoy drivers the demands of the convoy drivers did not come within the purview of the Act and accordingly it was not possible to take any action in regard to the dispute of convoy drivers under the Act
The appellant Sangh being aggrieved by the said refusal to make a reference under section 101 of the Act moved before the Ranchi Bench of the Patna High Court a writ petition praying for a writ of mandamus commanding the State of Bihar to refer the dispute under section 101 of the Act
A learned Single Judge of the High Court who heard the writ petition took the view that the letter of the Deputy Labour Commis sioner only referred to the Law Department s opinion of the year 1973 without indicating in what context and under what circumstances he rejected the demand for a reference
In that view of the matter the learned Judge granted liberty to the Sangh to reagitate the mater before the appropriate Government and expressed the hope that the appropriate Government would consider the matter in a proper perspective in the light of the documents and the materials that would be placed by the Sangh in accordance with law
The writ petition was dismissed subject however to the observation and direction mentioned above
Pursuant to the liberty granted by the High Court the Sangh made a representation to the Government for a refer ence of the dispute under section 101 of the Act
The Deputy Labour Commissioner Jamshedpur by his letter dated November 6 1986 gave the same reply and refused to make a reference
806 Again the appellant Sangh moved a writ petition before the High Court and as stated already the High Court sum marily dismissed the same holding that the appellants had failed to prima facie satisfy that they were employed either by TELCO or by the Telco Contractors  Association
Hence this appeal
It has been urged by Mr Pai learned Counsel appearing on behalf of the appellants that the Government exceeded its jurisdiction in purporting to decide the dispute raised by the appellant Sangh in the said letter of demand
Counsel submits that in the facts and circumstances of the case the Government should have made a reference to the Industrial Tribunal under section 101 of the Act for the adjudication of the dispute of the convoy drivers and should not have embarked upon the task of deciding the dispute on its merits through the Deputy Labour Commissioner
On the other hand it has been vehemently urged by Mr Shanti Bhusan learned Counsel appearing on behalf of TELCO that the Government has the jurisdiction to consider whether any industrial dispute exists or not and in considering the same as the Government found that the convoy drivers were not even workmen of TELCO or in other words there had been no relationship of master and servants between TELCO and the convoy drivers the Government refused to make a reference of the dispute under section 101 of the Act
It is submit ted that the refusal by the Government to make a reference was perfectly within its jurisdiction inasmuch as in the opinion of the Government there was no existence of any industrial dispute
After conclusion of the hearing we took the view that the Government should be given one more chance to consider the question of making a reference and accordingly we by our order dated March 30 1989 directed the Government to reconsider the question of referring the dispute raised by the convoy drivers to the Industrial Tribunal under section 10 of the Act keeping the appeal pending before us
The learned Counsel appearing on behalf of the Govern ment has produced before us an order dated April 13 1989 of the Government whereby the Government has upon a recon sideration of the matter refused to make a reference under section 101 of the Act
In refusing to make a reference the Government has adjudicated the dispute on its merits
807 It is true that in considering the question of making a reference under section 101 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 refer should be made or not the Deputy Labour Commissioner andor the Government have held that the convoy drivers are not workmen and accordingly no refer ence can be made
Thus the dispute has been decided by the Government which is undoubtedly not permissible
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 work men there cannot be any existence of industrial dispute within the meaning of the term as defined in section 2k 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 2k of the Act
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 101 of the Act the function of the appropriate Government is an administrative function and not a judicial or quasijudicial function and that in performing this administrative function the Govern ment cannot delve into the merits of the dispute and take upon itself the determination of the lis which would cer tainly be in excess of the power conferred on it by section 10 of the Act
See Ram Avtar Sharma vs State of Haryana   MP Irrigation Kararnchari Sangh vs The State of MP  and Shambhu Nath Goyal vs Bank of Baroda Jullundur  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 808 whether the person raising the dispute are workmen or not the same cannot be decided by the Government in exercise of its administrative function under section 101 of the Act
As has been held in MP 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 Govern ment should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid dis putes and that to allow the Government to do so would be to render section 10 and section 125 of the Act nugatory
We are therefore of the view that the State Govern ment 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 ac cordingly the impugned orders of the Deputy Labour Commis sioner acting on behalf of the Government and that of the Government itself cannot be sustained
It has been already stated that we had given one more chance to the Government to reconsider the matter red the Government after reconsideration has come to the same con clusion that the convoy drivers are not workmen of TELCO thereby adjudicating the dispute itself
After having con sidered 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 Industri al Tribunal and as the Government has persistently declined to make a reference under section 101 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 101 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 Thozhilalar Munnetra Sangam vs Govern ment of Tamil Nnadu  Ram Avtar Sharma vs State of Haryana   MP Irrigation Karam chari Sangh vs The State of MP  and Nirmal Singh vs State of Punjab 1984 2 LLJ396
In the circumstances we direct the State of Bihar to make a reference under section 101 of the Act of the dispute raised by the 809 Telco Convoy Drivers Mazdoor Sangh by its letter dated October 16 1986 addressed to the General Manager TELCO Annexure R 41 to the Special Leave Petition to an appro priate Industrial Tribunal within one month from today
The appeal is allowed and the judgment of the High Court and the impugned orders are set aside
There will however be no order as to costs
TNA Appeal allowed


Summary:
The respondent inherited tenancy of the demised premises alongwith his mother brothers and sisters from their fa ther
A notice under section 106 of the terminating the tenancy was served on him
It was followed by a suit for ejectment against him
Upholding the validity of the said notice the trial court took the view that the heirs of the original tenant held the tenancy as joint tenants and therefore notice to one of the defendants was sufficient to determine the tenan cy
Allowing the appeal therefrom the High Court took the view that as heirs of the deceased tenant they held the tenancy as tenants incommon and not as joint tenants
There fore the notice to quit should have been served on each one of the successor tenants
Allowing the appeal by special leave the Court HELD The notice under section 106 of the Transfer of Proper ty Act served by the appellant on the respondent was a valid notice
771E On the death of the original tenant subject to any provi sion to the contrary either negativing or limiting the succession the tenancy rights devolve on the heirs of the deceased tenant
The incidence of the tenancy are the same as those enjoyed by the original tenant
It is a single tenancy which devolves on the heirs
There is no division of the premises or of the rent payable therefor
The heirs thus succeed to the tenancy as joint tenants
771C In the instant case the respondent acted on behalf of the tenants he paid rent on behalf of all and accepted notice also on behalf of all
In the circumstances the notice served on the respondent was sufficient
The suit must therefore succeed
771D 770 Shrimati Vishnawati vs Bhagwat
Vithu Chowdhry  affirmed
Ramesh Chand Bose vs Gopeshwar Prasad Sharma AIR 1977 Allahabad 38 overruled