IN THE HIGH COURT OF CH}%TTISGARH AT BILASPUR W.P ‘* . NO.13% OE 2 003 PETITIONBRS 1. Shri K.C.G.K.. Nair, Son @f late shri K.’ Madhavan Nair, aged abaut 68 years, i R/a. J J Niwas, Near Llc colony, Hespital Sectar, Dalli Rajhara. Distt : Burg (CG). 2. shri K.A. RajuwSon ef shri : l K.S.B.B. Raju,"‘{’aged 69 years R/a. Near Nirmala S¢hool, Dalli Ra jharaw. _ Distt ( c G : ) .Durg 3. shri Pram shankar singh. Son af Shri ms. singh, aged 33 years, R/e; Near Shitala Man&ir, Main Read, Dalli Rajhara, Distt : Durg ( c G ) \k 4. ahri C.L. Bharadwaj, son 9f late Shriks.s. Bharadwaj aged 67 years, R/a. Indira Calwty, Dalli Rajhara, Distt : Durg (CG ). 5. Shri Zaffer Iqbal, sen @f Shri Mahd. Qureshi, aged 3O years, R/e. Block 41-3. Nirmala Sectar, Dalli .Rajhara, Dis tt : Durg (CG) VERSUS The Unian @f In§ia, Ministry @f Labour & Emplwyment, Gait. of India, New Delhi. RESPONDENTS Qwr;& Paw“ Um. QéG/22¢'?/cF m ConsHhdv‘on of ham.g } l‘ , 1 ’/ PETITIONERS RESPONDENT wmr eETmou uuugn ”mew mam? m: THE consiruriou OF Iifpm Present: - Shn V G Tamaskar, counsel for the petitioners Shn Anand Verma, Standmg counsel for ths respandent y”! QRDEB (Passed on ....€.‘E‘.~September, 201 0) Petitioners,'by this petition havocassalled Iegality andvaudny dam dated 8I7i2003 (Annexure P12) by whmhmonppmpdate @ovommont haa refused to make referonoe to the lndu3trial TribunaL 2. Petitioners, claiming to the representativeeofrw workers aiiegedm'te be r employed by the management of theBhiilai Steel Piant raised a disputetbefore v i the Assistant Labour Commissioner Centre! Reipur submitting that the l management of the Iron ore group of mines of Bhiiai 8tool Plant engaged 208 persons as unpaid trainee but instead of impartingimining they were engaged in - i the production job along with production stafiand by virtue of such engagement, z‘ they became workmen and their namesrwereumgistered in statubry form B Q register. It was alleged that aftertabout 18 months, drelrvrsewioee were i terminated by thezmanagemeni. Facts necessary fordecision ofhe present case areas beiew: ' On application fer. conciliation made before the oonciliation authority v namely Assistant Labour Commissioner, Centrai Raipur meiiiatien procaedings were drawn and the management in their‘repiy in the conciliation proeeedings contended that the tepresented wolkman did not fali wimin the definition of workman and that the dispute itself was raised after a lapse of 10 yeals. ‘ The management also did not agree for voluntary arbitration as‘ provided. under « Section 10 A of the lnduskiaiv Disputes Aot and finally the :‘égnoiiiation proceedings resulted in failure. ”A report of failure of oonciiiation was accordingly sent by the conciliation officer I Assistant lahour Commissioner, €enhai Raipur to the Govemment of India in the Ministry‘of Labour, vide failure report dated 9.02/25.03.2003 (Annexure PI1). The Govemment of indie however vide impugned order dated $6103 (Annexure Pl2) communicated to the representative of the workman that the Govemment does not consider the dispute fit foradjudication. The masons 1 assigned for such refusal contained under impugned order dated 817m are as 1 below :- "The workmen in respect of whom the disputewas raised joined the training programme devised bythe managemert- of Bhiiai Steel Plant to impart vocational training to the wards, of employees to develop their technical skill. They could [not produce any documentary evidence to show that they werex appointed by the managementof Bhilai SteelPiant." . ; 4. Learned counsel for the petitioner submiwed that the impugned. order a , rejecting me reference is illegal and. unsushinabie in law because the Govemment while considering the reference ofa dispute under Section 10 of the Industrial Disputes Act could not have arrogaN to itself the adjudicatory emotion i which lies exclusively within die domain of jurisdiction of the Labour \\ xx Courtllndustrial Tribunal. Leamad counsml for the petitionar contended that the powers of'the Central Government in making reference Is adminisuative in nature and no adjudicatory role can be played to decide the matter en merits and therefere the deciSion by which the reference has been refused is completeiy misdirected. Learned counsel for the petitioner argued that from the perueal of the failure report dated 9.2/25.3.03 of the Assistant Labour Commissioner t :z’ri" Central Raipur, it is clear that there did exist an industrial dispute, 3s detined in Section 2k of the lndustriat Disputes Act. 1947 (hereinafter referredto as Act of / 1947). Learned counsel for the petitioners further argued that once it is raised as dispute by or on behalf of persons claiming to be workmen then even if there is denial by the management with regard of the status of workman, this itself becomes a matter of adjudication by the industrial Tribunal and it was beyond the jurisdiction of the Govemment to usurp such adjudicatory function and to come to the conclusion that the persons represented by the representadve‘were'not workmen. In support of his arguments, leam£acounsel for the petitioner pieced reliance upon the judgment of‘this Court in the case of Prabhakar Mohiniear v. iil"r Union of lndia in W.P.No.71 [01 decided on 8112I06. 5. Per contra, learned counsel for the respondent would submit that the order dated 816/03 has been passed in due exercise of statutory power under $ectlon l 10 of the Industrial DisputesAct. lt is submitted that decision ofthe Government, not to make reference is based on relevant andxvalid reasons. He argued that upon taking intooensideratio’n the facts of the case it was found that the l workman In respect of whom the dispute was raised joined the'training . ‘ programme devised by the management of Bhilai Steel Plant to impart vocational l l J \ ‘, 41%? training to the wards of empbyees to develop their toehniaal skin. The order of refusing reference aiso shows that the Government iook into consideration relevant circumsmnces that those aliegad workmen couid not produce any documentary evidence that they were appointed by the management of the Bhilai Steel Plant. Learned counsel for the respondent contended that the statutory ' order of the Government ts based on due and proper assessment of materiai obtaining on record and decision of the Govemment cannot be said'ifoxbe either perverse or in any manner suffering from any illegality so as to wrrant interference by this Court under Article 226 of the Constituh‘on of Indie. The opinion that the so calied workmen were appointed as tainee and not aeworker ie therefore based on material on record and it waswell within the jurisdiedon‘of the Govemment while exercising its powerunder Section 10 ofthe industriai Disputes Act to go into such aspect es the Government is fuliy tustitied in refusing Itoxmalre reference'hevlng'found the subject matterfrivoious and based on no material, warranting adjudicadon by the lndustrial Tribunal. Tosupport his submissions, learned counsel for the respondents roiled upon Assistant Engineer, C.A.D.. Kota v. Dhan Kunwar‘ 2006 AIR SCW 3571 . All' 6. l have heard the teamed counsel for the parties and perused the record. 7. From the perusal of Failure of Conciliation (FOG) report dated i 92125032003 (Annexure P11) it is revealed that the representative of the so called workmen raised dispute that the ‘managementot' the Iron Gre group of mines of Bhilai Steei Plant had engaged in all 208 employees being his unpaid trainees in the name of job training ln the year 1991. A bondwassexeeued by the trainee for thesame. "The manegementtassured oratiythat all those employees wilt bezabsorbedaftercompletien ofrstatutorysperiod of‘training of 3 \ \. \ years. It was fumwrmuoged that instead of imparting training, those persons were utilised in the production iobs along with production staff due to their production skill and capability and their names were also registeredh the Form B register. Later on, rafter about 18 months, it is alleged that those workmen were terminated by the management. Thus. the dispute on behalf of these persons was raised en an asserh‘on that though me workmen were to be imparted training. infact they were engaged to work in the producthEiGeb along with production staff. It is thus clear that those workmen claim to be workmen as dehned under the provisions ol' the industrial Disputes Act The management disputed and stand: before the conciliation omcor that they did not fall within the delinition of the workman. A perusal of failure of conciliation report mar shows that management was asked to produce Form-B register, which the Manager did not produce taking a plea that me concemed Form-B register is not traceable. The report: also stated that the management did not deny mat the names of the trainees were written in the Form-B register. lll'e 8. The basis for denial to make reference is borne out from themtutoryu ' order that the Govemment formed an opinion that the Women were not appointed by the management of Bhilai Steet Fiant but they were engaged as 1 ‘ “trainee. Thus, themanagement an'ogated to itself adjudicatory function to decide a dispute which requires proper adjudication after consideradon of pleadings and enquiry into the dispute through oral and documentary evidence. The respondent therefore clearly exceeded its jurisdiction. lt is not a case whore the representatives of the workmen sought» reference of dispute only on the assertion ‘ of fact that me persons alleged to be workmen were engaged only as trainee. The dispute was btought befom the conciWon omcer on the dalmhat though the workmen were engaged as vain», their services were utilized in the production jobs along with the production staff. Therefore, it was clearly a matter which required adjudication. 9. in the considered opinion of his .eourti "indusiriai vdispuie" as dohned under Section 2m) of theAct of 1947 cannot be given such a restn'ged meaning: ‘ v; as to exclude from its purview those cases where me management denies appointment of the persons as workmen A dispute whether persons oiaimmg reinstatement are workmen as dehned under the industrial Disputes Act iEeif: would constitute a dispute within the meaning of words industrial dispute as dehned under Section 2(k) of the Act of‘1r947. In me case ofSharad Kumar v. Government of-NCT of Delhi and others (2002) 4 $00 490, Supreme Gourt considered the scope and ambit of the power of the appropriate Govemment under Section 10 of the industrial Disputes Act. 1,947. it was held- "27. in the case of Telco Convoy Driwrs Mezdoor Sengh v. Stale of BiharlQ this Court construing-the provision of section 10(1) held astoilows: (SCC p. 276, paras 13—1 4) “13. Attractive though the contention is, we regret. we are unable to accept‘the same. It is new well settiad that, while exercising power under Section 10(1) of the Act, the function of the appropriate government is an Wadmmirative function and notesjudcial, orquesHudicial fmcii'on, and ihetin performing this administraiiw functbnme Governmentcennot delve into the mam of ibedispuie and take uponitseifihe detennlnedon of the [is which would certainly be in excess of the power conferred on Itby Section 10 oflhe Act See Mm; Avior Shanna v State of Herpno‘ii MP lmgobon \I/‘. r Karamchan’ sangh v. Stata of M.P..L2.; Shambu Math Goya! v. Bank ofBarodali 14.'Applying (he principls Ieu' down by this Court in me above“ decisions, them can be no doubt that the Gowmmmtwas not justiiied in deciding‘the dispuw. Where, as in mo inshnt caso, , the dispute Is whether the persons raising the dispute ar workmen or not, the same cannot be decided :by the Government inexercise of m administrative tunetionvunder Section 10(1) of the Act. As has beenvheld In MP. lmgetion r Karamchari Sangh case”; thetemay be-exoeptionatcases in which the State-Government may.>on a owner examination o'f the demand, come to a oonoiusion that-the demandeareeither peiverse or fdvolous and do not merita reference; FultherJhe". Government should‘be veryslow to attempt an examination of ” the demand with a view to declining referenoe andoouris‘wiil. aiways be vigiiant whenever the Government attempts to v usurp the powers of the Tribunal to! [adjudication of valid i disputes, anew to allow the Government to do so would be to tender‘Sechon 10 and Section 12(5) of the Act nugetory." (emphasissupplied) 28. in M.P. Inigaiion Karamhan sangn v. State-one” > taking note of thedeoision in the case of Bombay Union of Joumaiists v. State of BomyH wherein it was held that the a 3 appropriate govemment is precluded from oonsidering even prime facie the meme of the dispute when itdecides me f question as to whether its power to make a retemneeshouid . \ be exercised under $eciion 10(1) read with $eotion‘ 12(5)», or- not, this Court held that the Court had made it clearain the same judgmentthat it was a province of the industrial Tribunal . . to decide me disputedquestions of facts. This Court madethe ‘ following observations: (SOC pp. 108-09, para 5) "5. Therefore, while oonoed’ng a very Iimibdjun‘sdcirbn h the State Govemment‘ to examine patent-i fiivoiousness of: the " dl/' . .. e ‘ A44*n A A v demands, it is to be understood as a Ma, that adjuWcalion of demands made by workmeh shouldbe Iemé the Tribunam deci$. Section 10 permits approptiate govarnment to determine whether dispute ‘exi3is or is apprehended' and then refer it for adjudication on mems. The demamated tunctions ., are (1) reference, (2) adjudieetion. When a . reference is rejected on the specious plea that the Govemment cannot“; bear the additionat burden, it constitutes adjudicaeon and .thereby usurpation of the power of a quasi-judicial Trihpiiéi by, an administrative authority namely the appropriate Wigovemment. in our opiniom the reasons given by the State Govemment to decine reference as beyow the powers of the Govemment under the rebVant sections of the Industrial Disputes Act. What the State Government has done in this case is not a prime mie examinea‘on of the merits of the question involved. To say that granting of deomess elbwanoe equeltothetoftheemployeesoftheCentrafGovermnent wouu cost awm‘onet financial burden on the Govemmont is to make a unibterei decision without necessary ew'dence aw without giving an opportunity to the workmen to rebut this i conclusion. This virtually amounts to a nnai adiudicatian or the demand itself. The demand can never be characmrized as either perverse or frivolous. The conciusion so'arrivod at robs the employees of an opportunity to place evidence before the Tribunal an to substantiate the reasonableness of the demand.” 10. 0n a fair and iogicai reading lot the provisions contained inSection 2 (s), of the Act of 1947, it is clear that " workman“ means any person, employed in any i industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory‘work for hire or reward including any such person who has mu dismissed, discharged or retrenched. Therefore, ii the workmen plea and tassert that meir services were uh'lizd in the production jobs , d along with production staff, they have a prima facie case to‘ claim that they ars workmen as defined under the Act of 1947. 11. The Govemment has stated in the impugned order that the workmen were engaged to impart training as unpaid trainee and that there is no documentary evidence to show that they were appointed. The Government rejected such a claim without there being any enquiry into this aspect and which cleagéiy‘wml within the scope of quasi judiciai enquiry before the industrial Tribunal. The power vested under Section 10 of the Act of 1947 is administrative and neither judiciai nor quasi iudicial. lt is beyond the scope of authority of the Govemment to delve into the merits of the dispute and take upon itself the determination of the lis. Thus the Government exceeded its power conferred on it by Section 10 of the Act in refusing to make reference by forming an opinion that - mw l {7“ a) The workmen joined the training programme organized by me Bhiiai Steel Plant to impart vocational training to the wards of the employees to develop their technical skill. b) They could not produce any documentary evidenceto showthetthey were appointed by the management ofBhliaiSteei Plant. f 12. For the reasons stated above, this Court comes to the conciusion that the impugned order dated 8/712003 was clearly in excess of jurisdiction and therefore unsustainable in law. 13. The two submissions made by learned counsel for respondents though: r not raised in the repiy are required to be answered by this Court. it was 7 10 tll'e submitted that the Govemment was justitied in {Musing to make reference which was highly belated. The said contention deserves rejaction. Firstly, for the reason, it dues not find place in the impugned order as basis to form opinion, refusing to make reference. it is well settled that the validity of tatutory rder is to be judged on he basis of reasons ecorde i the s o t rd n order itself. Pase see . AIR 1978 $upmou 5 . Secondly, there is o period of limitation as such prescred for akin reference. In the case grocessing service sociey Limited and another £1999} 6 SOC 82, the Supreme Court observed thus "to. it follows, merefore, that the provisions of Article 137 of me Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately , mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his iltegal ‘ l retrenchmentftennination or dismissal. The court may also in appropriate cases direct the payment of part of therback wages instead of full back wages. Reliance of the teamed counsel for the respondent management on the Full Bench judgment of me Punjab and Haryana High Court in Rem Chander Marya v. State cf Haryanag is also of no help to him. in that case, the High Court nowhere held that the provisions of Article 137 of die Limitation Act were applicable in the proceedings under the Act. le Mohinder Siggh Gill and another v. The chief Eiection Commissioner, New Delhi and others, higan 81 n ib mg of Aiaib singh v. Sirhind cgerative Markettingwm- - $\ ll The Court spaciflcauy held "naither any limitation has bsen provided nor any guidelines to determine as tewhat shali be the pen'od of iimitation in such cases". However, it went on further to say that “reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the Government can refuse to make a reference on the ground of delay and laches if there ieégo explanation to the delay“. We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 33-0 of the Act to be adjudicated. it is not the function of the court to prescribew the limitation where the legislature in its wisdom had thought'it tit not to prescribe any period. The couIE admittedlyinterpret law and do not make laws; Personai views of the Judges presiding over the Court cannot be stretched to authorise them to interpret law in such E 9‘a manner which would amount to legislation intentionally left over by the legislature. The judgment of the Full Bench of’the Punjab and Haryana HighCourt has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the pumms’ of invoking the jurisdiction of the courtslboards and tribunal under the Act." lll‘r The rati laid own in he foresai udgmenti ubsequently eiterate n o d t adjs s rd i he ase ‘ Morverin the ease f c of Gurmail Singh v. Princigj, Government College ofEducation and others (2000} 9 SCC 496 and S.M. Nilajkar and others v. Telecom District Manager, Kamataka (20031 4 scc 27. eo, o Hamana LandReclarnation and Develogment Gmration Ltd. v. Nirmal Kumar (2008! 2 scc 366 and Assistant Engineer, c.A.D Kata v. Dhan 12 seeking reference is concemed. no formula of universal application can be laid down andit would depend on the facE of each individual case. 14. The other submission of leamed counsel for the respendent is that the petitioners have no locus standi to me the petition. The contention is clearly misconoeived in law as well as on facts. The dispute was raised by the representatives of the workmen which is clear from the opergng’mrds of conciliation failure report (Annexure Pl‘i), the report refers to the petitioner no.1 as workmen representative. There is nothing on record to show that the management ever raised any dispute before the conciliation ofiicer that the petitioner no.1 could not have represented the cause of me workmen. in the petition also, it has been categoricaily averred that the petitioners are authorized representahves of the terminated workers I trainees of the Bhilai Steei Plant and ‘ that they raised dispute in that wpacity. The aforesaid assertion of tact has not been denied by the respondents in their return and ail that has been stated in me parawise reply is that- it being formal, needs no reply. 5ection 36 of the Act of 1947 entitles a workman to be represented by persons enumerated in clauses a. b and c of Sub Section 1 of Section 36. in the absence of more being specific reply by the respondents, such an objectlon taken during the course of arguments does not warrant any indulgence. 15. Consequently, the impugned order dated 8I7I200$ (Annexure Pl2) is declared illegal and is set aside and the respondent is directed to make reference of the dispute to the Industrial Tribunal by framing appropriate terms of reference in accordance with law. The petition is accordingly allowed. emu