1 S.B.CIVIL WRIT PETITION NO.4124/2002 Nand Lal Vs. Union of India & Ors. Date of Order :: 23.7.2008 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. Girish Sankhla, for the petitioner. Mr. Vijay Bishnoi, for the respondents. ... By this petition for writ a direction to quash decision of the appropriate government for not making reference of the dispute raised by the petitioner workman is challenged. In brief facts of the case are that the petitioner was engaged as a daily wage worker in the Department of Telecommunication, Sub Division II, Jodhpur. From 1.10.1984 his name was struck of from the roll, therefore, an industrial dispute was raised that came to be answered by the Central Industrial Tribunal, New Delhi vide the award dated 15.11.1989. Learned Central Industrial Tribunal held that the workman did not complete continuous service as defined under Section 25B of the Industrial Disputes Act, 1947, thus, striking of his name from the roll was not retrenchment as defined under Section 2(oo) of the Act of 1947. A specific finding was also given by learned Central Industrial Tribunal that the employer was not required to adhere the provisions of Section 25H of the Act of 1947 in view of the fact that he workman did not complete one year continuous service. By way of filing an original application a challenge 2 to the award aforesaid was given by the petitioner before the Central Administrative Tribunal, Jodhpur and the application aforesaid came to be disposed of by the judgment dated 6.1.1994. Learned Central Administrative Tribunal affirmed the award passed by the Central Industrial Tribunal with a direction to the respondents that, “subject to availability of vacancy and if applicant is found suitable he may be given an opportunity of employment as a fresh casual labour as per his seniority in the waiting list.” After disposal of the original application, a miscellaneous petition was filed by the workman before the learned Central Administrative Tribunal, Jodhpur stating therein that in the year 1997 certain appointments were made ignoring claim of the petitioner regarding re-employment. The application aforesaid came to be rejected on 21.12.2000 in following terms: “Even otherwise on merit also, we find that the applicant's termination stood confirmed by an award of the Central Industrial Tribunal, by passing a speaking order. This Tribunal cannot sit as an appellate Court against the order of the Central Industrial Tribunal under the Act. In these circumstances, it is difficult for us to direct the respondents to appoint the person, who has already been terminated, and such termination has been confirmed by the Central Industrial Tribunal. However, the direction issued by this Tribunal vide order dated 06.01.94 in O.A. No.136/91, stood exhausted. Having regard to these circumstances, we find that the O.A. Cannot be entertained. Accordingly, we pass the order as under:- The M.A. No.141/99 is dismissed. Consequently, the O.A. No.223/99 also stands dismissed. But in the circumstances, without costs.” 3 The petitioner, then, submitted an application before the Assistant Labour Commissioner, Government of India, Ajmer to initiate conciliation proceedings on the count that the employer after disposal of the original application continued in service 12 workmen viz. Brahmanand, Kanaram, Rawatram, Bhanwarlal, Ushman Khan, Karim Khan, Vijay Singh, Ramkumar Patel, Samshuddin, Ramchandra, Shivram Pal and Shivbux. All those persons, as per the petitioner were continued in service without adhering the principle of last come first go. From perusal of the application submitted by the petitioner before the Conciliation Officer it appears that the petitioner as a matter of fact was making complaint for non-compliance of the provisions of Section 25G of the Industrial Disputes Act, 1947, though in the instant writ petition claim is made on basis of Section 25H of the Act of 1947. The Conciliation Officer submitted a failure report to the appropriate government on 3.12.2001. The appropriate government after considering the failure report refused to refer the dispute being already undergone judicial scrutiny by Central Industrial Tribunal in ID No.73/86 decided on 12.12.89 by the Central Administrative Tribunal in OA No. 136/91 and Misc application No.141/99 reference of those is already given in preceding paras. While challenging decision of the appropriate government as 4 communicated to the petitioner on 21.5.2002 the contention of learned counsel for the petitioner is that under sub-section (5) of Section 12 of the Industrial Disputes Act the appropriate government is having very limited jurisdiction for examining nature of the dispute and in the present case the issue regarding non-compliance of the provisions of Section 25H was open and that was never adjudicated by Central Industrial Tribunal and Central Administrative Tribunal, therefore, a reference should have been made by the appropriate government. Reliance is placed by learned counsel for the petitioner upon a judgment of this Court in Rajendra Kumar Vs. The Union of India & Ors. reported in 2005(4) WLC (Raj.) 459 holding therein that the question whether the workman had completed 240 days of service or not is a question of fact and same needs to be decided by recording evidence, which is in sole domain of labour court and also the question relating to Section 25H of the Act of 1947 could have not been decided by the appropriate government, and therefore, no refusal of the dispute should have been made. Per contra as per respondents the issue regarding non-compliance of the provisions of Section 25H was considered by the Central Industrial Tribunal in specific terms and the petitioner as a matter of fact want to re-agitate a question that was already settled by Central Industrial Tribunal and affirmed by the Central Administrative Tribunal. Learned 5 counsel for the respondents read in extenso the award dated 15.11.1989 wherein the dispute of the workman relating to adherence of the provisions of Section 25H of the Act of 1947 was considered. Learned counsel for the respondents also travelled through the order passed by the Central Administrative Tribunal on 6.1.1994 while deciding the original application and also the order dated 21.12.2000 passed in Misc Application preferred by the petitioner. Heard counsel for the parties. I have examined the application submitted by the petitioner before the Assistant Labour Commissioner (Central) raising the industrial dispute that was ultimately refused for making reference by the appropriate government. In the application the petitioner has given name of 12 workmen with specific assertion that they were continued in service by not adhering the principles of Last Come First Go. It is also stated in the application that the persons junior than the petitioner were confirmed in service. It is no where stated relating to the twelve workmen named in para 6 of th application aforesaid that they were employed after decision of the original application, as such, the case of the petitioner was not at all for the non-compliance of the provisions of Section 25H of the Industrial Disputes Act. The petitioner also never raised dispute for non-compliance of the directions given by the Central 6 Administrative Tribunal by the order dated 6.1.1994 for re-employment of the petitioner on availability of vacancy. As a matter of fact, whatever dispute raised by the petitioner was already examined and settled by the Central Industrial Tribunal in its award dated 21.12.2000, thus, the law laid down by this Court in the case of Rajendra Kumar (supra) is having no application in the present controversy. I am having no doubt that the disputed facts and disputed questions of law can not be examined by the appropriate government, therefore, no refusal for reference on that count could have been made by the appropriate government but that is not the position in the present case. Here whatever dispute the workman wants to raise is non-existent. For the reasons given above, I do not find any wrong with the decision of the appropriate government for not making reference of the dispute sought to be adjudicated by the workman under the application dated Nil Annexure-3. The writ petition, therefore, is dismissed. (GOVIND MATHUR), J. Jgoyal