1 W.P.NO.152.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.152 OF 2010 Amol S/o Sanjay Sarwade, Aged about 27 years,Occupation Service, R/o Mukundraj Colony, Behind Police Station, Ambejogai,Taluka Ambejogai, District Beed. ...PETITIONER. VERSUS 1. Union of India, Through its Secretary, Ministry of Labour, New Delhi. 2. The Assistant Labour, Commissioner (Central)and Conciliation Officer, Block-”C” First Floor, C.G.O. Complex, Seminary Hills, Nagpur 440006. 3. Life Insurance Corporation of India,through the Manager, “Jeevan Prakash”,Adalat Road, Aurangabad,Taluka and District Aurangabad. 4. The Branch Manager, Life Insurance Corporation of India,Ambejogai Branch Ambejogai, Taluka Ambejogai,District Beed ...RESPONDENTS. ... Shri. Sachin Deshmukh,Advocate for Petitioner. Shri.N.S.Chouhdary,Advocate for Respondent Nos. 1 and 2. Shri S.L.Kulkarni, Advocate for Respondent No.3 ... 2 W.P.NO.152.10 CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 10TH AUGUST, 2010. ORAL JUDGMENT :( PER : K.K.TATED, J.) 1. Rule. 2. Rule made returnable forthwith. 3. By consent of the learned counsel for the parties, petition is heard and finally decided at the stage of admission. 4. By this petition under Article 226 and 227 of the Constitution of India, the petitioner challenges communication dated 25th May, 2009 issued by respondent No.1, whereby respondent No. 1 has refused to make a reference under section 10 of the Industrial Disputes Act, 1947 (Hereinafter referred to as “the said Act” for short) on the ground that the petitioner was appointed as sub- staff on purely temporary basis for a specific 3 W.P.NO.152.10 period, and as such, on completion of said period his service come to an end. The Conciliation Proceedings were held by Assistant Labour Commissioner (Central) Nagpur and Conciliation Officer submitted its report under section 12 of the Act 1947. However, respondent No.1 by order dated 25th May, 2009 refused to make a reference on the ground stated above. 5. The Factual Backdrop of the case relevant for appreciating the questions raised in the case may be stated thus: 6. The petitioner has passed S.C.C. and agricultural diploma and registered his name in the office of the Employment Exchange, Beed. The respondent No.4 called the names of eligible candidates from the Employment Exchange Office for the vacant post of Sub-Staff. Accordingly, the name of petitioner was recommended by Employment Exchange Office. On completion of procedure, as required by rules and regulations, respondent No.4 4 W.P.NO.152.10 selected the petitioner as temporary sub-staff by order dated 16th April, 2007, on the salary of Rs.4,105/-(Rupees Four Thousand One Hundred and Five only) per month. 7. Appointment order dated 16th April,2007 was for the period from 16th April, 2007 to 09th July, 2007, on the salary of Rs.4,105/-(Rupees Four Thousand One Hundred and Five only) per month. Accordingly, the petitioner worked with respondent No.4. Thereafter, since 10th July, 2007 to 30th August, 2007 the petitioner was on daily wages of Rs.50/-in the office of respondent No.4. Thereafter, by order dated 7th September, 2007, the respondent No. 4 have appointed petitioner for the period of 78 days on salary of Rs.4,105/-(Rupees Four Thousand One Hundred and Five only) per month. Again from 24th November, 2007 to 30th December,2007 the petitioner worked on daily wages of Rs.50/- per day with respondent No.4. In this way, the petitioner worked continuously in the office of respondent No.4 since 16th April, 2007 to 5 W.P.NO.152.10 30th December, 2007 without any break and accordingly the respondent No.4 paid salary. In this way, the petitioner worked continuously for 260 days from 16th April, 2007 to 30th December, 2007. In spite of that respondent No.4 terminated his service without any reason, though work was available in its office. 8. The petitioner submits that without giving any statutory notice of one month or notice pay in lieu of notice and retrenchment compensation, before the termination and without following mandatory provisions of section 25F of the Act, respondent No.4 terminated petitioner’s service. Therefore, petitioner issued demand notice dated 1st February, 2008 under section 2(a) of the said Act calling upon the respondents to recall the order of termination with immediate effect. The respondent No.4 by its reply dated 7th April, 2008 disputed the contents of the demand notice of the petitioner. In reply, the respondent No.4 stated that the petitioner worked with them only for 152 6 W.P.NO.152.10 days during the period from 16th April, 2007 to 30th December, 2007. As petitioner worked only for 152 days with them there is no question of following procedure as contemplated in Section 25(F), 25(G) and 25(H) of the said Act. 9. As respondent No. 4 failed to reinstate the petitioner, petitioner filed demand Notice dated 15th April,2008, under section 2(a) of the said Act in the office of Assistant Labour Commissioner and Conciliation Officer Government of India, Ministry of Labour, Regional Labour Commissioner (Central) at Nagpur. The petitioner has filed his statement of justification on 16th June, 2008 praying to direct the Branch Manager, Life Insurance Corporation of India, Ambjegaoi, District Beed to reinstate the petitioner with continuity of service and full back wages from the date of termination. 10. The Assistant Labour Commissioner(C) Nagpur and Conciliation Officer under Section 12(4) of 7 W.P.NO.152.10 the Industrial Disputes Act, 1947 submitted report of failure dated 19th December, 2008 of conciliation proceedings to the respondent No. 1. Thereafter, respondent No.1 issued impugned communication dated 25th May, 2009. 11. Mr. Deshmukh, learned counsel appearing on behalf of the petitioner submits that respondent No.1 failed to appreciate that they can not refuse to make a reference on merits. He submits that whether dispute exists within meaning of Industrial Dispute Act or not is to be decided by either Industrial Court or Labour Court. He submits that reading of Section 10(1) and Section 12(5) of the Act makes it clear that it would be open to the appropriate Government to form an opinion whether a dispute exists or is apprehended and thereafter, it may make a reference or refuse. The aforesaid decision is based on the subjective satisfaction of the Government. He submits that on the face of the record, an industrial dispute had arisen between the petitioner and the 8 W.P.NO.152.10 respondent No. 4 on account of illegal termination of the petitioner from the service without following due procedure laid down under section 25(F) of the Act. He further submits that respondent No.1 had rejected the application for reference made by the petitioner and declined to make a reference though Industrial Dispute between the petitioner and the respondent No.4 exists. On the failure of conciliation proceedings between the petitioner and the respondent No.4, the respondent No.1 arbitrarily and erroneously decided the matter on merits without making a reference to the Labour Court. He submits that the Government while considering the question whether reference should be made or not cannot delve into merits of dispute and determine the lis itself. In support of his submission he relied on judgment in the case of Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others reported in AIR 1989 Supreme Court 1565, wherein it is held: 9 W.P.NO.152.10 “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 refer, 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.” “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 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 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh's case (supra), 10 W.P.NO.152.10 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 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.” 12. The learned counsel appearing on behalf of the petitioner also relied on judgment in the case of Sharadkumar Vs. Govt of NCT of Delhi and others reported in 2002(4) Supreme Court Cases 490, wherein it is held that: 11 W.P.NO.152.10 “31.Testing the case in hand on the touchstone of the principles laid down in the decided cases we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State Government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose. From the appointment order dated 21/22 April 1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of the section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate 12 W.P.NO.152.10 on the question and hold that the respondent was not a workman within the meaning of section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable.” 13. On the other hand, the learned Counsel appearing on behalf of the respondents submits that the Government has jurisdiction to consider whether any industrial dispute exist or not and in considering the same as the Government found that the petitioner was appointed as Sub-Staff on purely temporary basis for a specific period and on completion of the period, his services came to an end and therefore, it is not necessary to make a reference under Section 10 of the said Act. He further submits that refusal by Government to make a reference was perfectly within its jurisdiction in as much as in the opinion of the Government, 13 W.P.NO.152.10 there was no existence of any industrial dispute. 14. We heard both the sides at length. 15. For the purpose of considering dispute, in the present matter, it is necessary to refer Section 10 of the said Act, which is as under : "10(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing - (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refers the dispute or any matter appearing to be 14 W.P.NO.152.10 connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second or the Third Schedule, to a Tribunal for adjudication." 16. Sub-section (1) is operative part of Section. It provides that where the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to one or other of the authorities mentioned in clauses (a) and (b). Clause (a) empowers the Government to refer the dispute to the Board for promoting settlements. Clause (b) empowers the Government to refer any matter appearing to be connected to a 15 W.P.NO.152.10 Court of inquiry. The Court of inquiry as provided in Section 14 of the Act shall inquire into the matters referred to it and report thereon. Clause (c) empowers the Government to refer the dispute or any matter appearing to be connected with or relevant to the dispute to the Labour Court. The jurisdiction of the Labour Court is confined to the matters specified in Second Schedule appended to the Act. Clause (d) empowers the Government to refer the dispute or any matter connected with, or relevant to the dispute, to the Tribunal for adjudication. The scope of jurisdiction of Tribunal is larger than that of the Labour Court, in as much as, the matter whether they relate to Second or Third Schedule fall within the purview of its jurisdiction. 17. In the present case, the respondent by its communication dated 25-05-2009 refused to make a reference on the ground that the petitioner was appointed as Sub-Staff on purely temporary basis 16 W.P.NO.152.10 for a specified period and on completion of the period, his services came to an end. This shows that respondent No.1 decided the petitioner's case on its own merits. 18. If we carefully consider Section 10 of the said Act, it appears from the plain reading of Section 10 that the discretion of the Government to exercise its powers to refer the dispute is very wide, so far as Sub-section (1) is concerned but it is limited, as provided in Second proviso so far as the public utility service matters are concerned and in as-much-as the use of the word 'shall' make it obligatory upon the appropriate Government to refer the dispute related to public utility services as provided in sub-section (1). 19. Therefore, it is crystal clear that in making reference under Section 10(1) of the said Act, the appropriate Government is doing administrative act. It is neither judicial nor quasi-judicial. The Apex Court in the matter of 17 W.P.NO.152.10 Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others (supra) held that the order of the Government refusing to refer the dispute on the ground that the persons raising the dispute are not workmen is liable to be set aside, as it is the duty of the Government only to do administrative work, they themselves cannot decide the matter on merits. 20. In similar way, the Apex Court in the matter of Sharadkumar (supra) held that it is not disputed that the jurisdiction vested in appropriate Government to make a reference or refuse to do so is administrative in nature and depends on the opinion formed by it on perusal of the report and material received from the Conciliation Officer. 21. In view of the law declared by the Supreme Court in the decisions referred to above the respondent No.1 could not refuse to make a reference, on deciding the dispute themselves on 18 W.P.NO.152.10 merits and hence respondent erred in referring to refer the dispute under section 10(1) of the said Act and as such the communication/Order dated 25.5.2009 is set aside and we direct the respondents to make a reference under Section 10(1) of the said Act to appropriate authority within two months from the date of this order. 22. Rule made absolute on the above terms. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK