IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.12.2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.7076 of 2003 & W.P.M.P.No.9131 of 2003 M.Prakash ..Petitioner Vs. 1. The Secretary to Government of India, Ministry of Labour, Shiram Shakthi Bhavan, Rafi Marg, New Delhi. 2. The Chief Engineer, O/o, The Chief Engineer, South Zone I (CPWD), G-Wing, Rajaji Bhavan, Guest House, Besant Nagar, Chennai - 90. 3. The Assistant Engineer (MIG), O/o. The Chief Engineer, G-wing, Rajaji Bhavan, Besant Nagar, Chennai - 90. 4. The Junior Engineer, C.C.S.D. 3/11/CPWD, Rajaji Bhavan, Besant Nagar, Chennai - 90. ..Respondents Petition filed under Article 226 of the Constitution of India praying for issue a Writ of Certiorarified Mandamus calling for the records pertaining to the order dated 05.12.2002 made in No-L- 42012/102/2002-IR (CM-II) passed by the first respondent and quash the same and further directing the first respondent to refer the dispute regarding non-employment raised by the petitioner to the Industrial Tribunal, Chennai for adjudication of the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Nagarathinam For Respondents : Mr.J.Ravindran Assistant Solicitor General. ORDER The petitioner has challenged the rejection order passed by the first respondent by which the petitioner's claim to refer the dispute to the Industrial Tribunal was rejected. 2. The case of the petitioner is that:- He was working from 10.11.1997 as Room Boy in the office of the second and third respondents and he was paid a monthly salary of Rs.1900/-. He was issued an identity card by the third respondent at the time of entry into the service. He, further contended that the job was permanent in nature. The petitioner submitted that the third respondent promised his service would be regularised very soon and he was continuously under the service of the respondents 2 to 4 and subsequently he was orally terminated on 05.11.2000. 3. The petitioner submitted that without any notice or any compensation as per the Section 25-F of the Industrial Dispute Act 1947, the petitioner was terminated. Hence he raised a dispute under Section 2A of the Industrial Disputes Act before the Regional Commissioner of Labour for reinstatement of the petitioner with continuity of service along with backwages and other attendant benefits. 4. The Conciliation Authority submitted a failure report on 31.01.2002 to the first respondent who refused to refer dispute to the industrial Tribunal for adjudication by an order dated 05.12.2002. The said order is impugned before this Court. 5. The learned counsel for the petitioner Mr.Nagarathinam submitted that the petitioner is a workman and the petitioner was issued Identity Card by the third respondent and the first respondent should refer the matter to the Industrial Tribunal and he should not go into the merits and it is only the Industrial Tribunal has got the jurisdiction to decide about the same. He relied upon the Judgment of the Division Bench of this Court in M/s.Shaw Wallace and Company Ltd., Vs. The State of Tamil Nadu, Represented by The Commissioner and Secretary, Labour Department and Others reported in 1987 II LLJ 177 in which it was held that the normal rule under Section 2A of the Industrial Disputes Act, the Government should refer the dispute for adjudication and only in exceptional cases alone it can decline. The learned counsel relied upon especially paragraph 32 of the Judgment where the exceptions are listed out. Relying upon the said Judgment, learned counsel submitted that it is only for the Tribunal to go into the issue not for the Government and the prayer for reference of https://hcservices.ecourts.gov.in/hcservices/ dispute for adjudication should have been made by the Government. Without referring the matter to the Industrial Tribunal, the first respondent decided the matter on merits and therefore he prayed for setting aside the order passed by the first respondent and to refer the matter to Industrial Tribunal for adjudication. 6. Mr.J.Ravindran, Learned Assistant Solicitor General submitted that the petitioner did not produce any document to show that he worked as workman under any of the respondents. Only on satisfaction about the status of the petitioner only the Government could refer to the matter for adjudication. In the absence of any acceptable documentary evidence on the part of the petitioner, the first respondent rightly declined to refer the matter for adjudication. Further, he submitted that the Identity Card was issued to have an entry into guesthouse and that itself would not make the petitioner as a workman. He relied upon the Judgment of the Hon'ble Supreme Court in Secretary, Indian Tea Association Vs. Ajitkumar Barat and others reported in 2000 (3) SCC 93. In that case it was held that for making a reference under Section 10 of the Industrial Disputes Act. The following pre-requisites should be present:- "1. Forming and opinion as to whether the employee concerned as a workman. 2. Considering as to whether an Industrial Dispute existed are so apprehend." By relying upon the said Judgment the learned counsel submitted that before taking a decision regarding reference, the first respondent has to decide the question as to whether the employee concern was a workman or not. In this case, the learned Assistant Solicitor General submitted that, the Government confirmed opinion that the petitioner was not a workman as there was no sufficient proof in this regard. Once the Government formed an opinion the same can not be interfere with. Another Judgment relied upon by the counsel is in Rashtriya Chemicals and Fertilizers Ltd., and Another Vs. General Employees Association and Others reported in 2007 (5) SCC 273. In that case it was held that the High Courts can not straight away direct the appropriate Government to refer the dispute and it is for the appropriate Government to apply its mind to relevant factors and satisfy itself as to the existence of a dispute before taking a decision to refer the dispute. 7. In this case the petitioner alleged in paragraph 2 of the affidavit that he was paid a monthly salary of Rs.1900/- If he was a workman under respondents 2 to 4, there should be cheque payment from respondents 2 to 4 or Government Officials and the petitioner could not have been paid in cash. Moreover the contention of the petitioner that he was appointed on 10.11.1997 as Room Boy and he was terminated orally on 05.11.2000 would remain only as an allegation unless he https://hcservices.ecourts.gov.in/hcservices/ proves the same documentary evidence. The documents called "entry pass" can not give the petitioner the status of workman. 8. The learned counsel for the petitioner submitted that the petitioner was a contract labour and he would be covered by under Section 25 definition of workman. Even then, the petitioner has to primafacie prove his status through document. In this case the petitioner miserably failed to prove as there was no such document showing that he was a workman. 9. The Government namely the first respondent applied its mind and formed an opinion stating that the petitioner could not produce any document to prove that he was appointed by the management of CPWD. Unless the petitioner proves his status as a workman, the appropriate Government can not for the sake of asking, refer the matter for adjudication. Unless, the petitioner proves that the first respondent failed to exercise his jurisdiction in a judicious manner, this Court can not interfere with the opinion formed by the first respondent. 10. Accordingly, this Writ Petition fails, the same is dismissed. Consequently, connected Miscellaneous Petition is closed. There will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar smn To 1. The Secretary to Government of India, Ministry of Labour, Shiram Shakthi Bhavan, Rafi Marg, New Delhi. 2. The Chief Engineer, O/o, The Chief Engineer, South Zone I (CPWD), G-Wing, Rajaji Bhavan, Guest House, Besant Nagar, Chennai - 90. https://hcservices.ecourts.gov.in/hcservices/ 3. The Assistant Engineer (MIG), O/o. The Chief Engineer, G-wing, Rajaji Bhavan, Besant Nagar, Chennai - 90. 4. The Junior Engineer, C.C.S.D. 3/11/CPWD, Rajaji Bhavan, Besant Nagar, Chennai - 90. + 1 c.c. to Mr. A. Nagarathinam, Advocate. S.R.No.68499. + 1 c.c. to Mr. J. Ravindran, Assistant Solicitor General of India. S.R.No.69337. W.P.No.7076 of 2003 and W.P.M.P.No.9131 of 2003 KSK (CO) GSK 24.02.2010. https://hcservices.ecourts.gov.in/hcservices/