IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.8.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8305 of 2009 NTPC Limited Government of India Enterprise NTPC Bhawan, Scope Complex 7, Institutional Area Lodi Road New Delhi – 110 003. .. Petitioner Vs. 1. The Union of India rep. by its Secretary Ministry of Labour New Delhi. 2. The Presiding Officer Central Government Industrial Tribunal cum Labour Court 1st Floor 'B' Wing, Shastri Bhavan 26, Haddows Road Chennai – 600 006. 3. The General Secretary Power Grid National Workers Union (SR) 400 KV Sub-Station Kannimangalam Via Chekkanurani Madurai – 625 514. 4. The Chairman-cum-Managing Director Power Grid Corporation of India Ltd. No.9, Institutional Area Katwaria Sarai, New Delhi – 110 016. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records on the file of the first respondent herein culminating in the impugned order No.L- 42011/64/2008-IR(DU), dated 9.2.2009 and quash the same. For Petitioner : Mr.V.T.Gopalan, Sr.Counsel assisted by Mr.M.Vijayan for M/s.King and Partridge https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.Velayutham Pichaiya,CGSC for 1st respondent Mr.J.Ramakrishnan for 3rd respondent M/s.Aiyar and Dolia for 4th respondent ORDER The petitioner is the NTPC Limited, which is a Government of India enterprise. They have come forward to file the present writ petition seeking to challenge an order of reference made by the Union of India, represented by the Secretary to Government, Ministry of Labour, dated 9.2.2009. By the impugned order, the first respondent/Central Government referred an industrial dispute raised by the third respondent/ Trade Union by exercising the power under Section 10(1)(d) of the Industrial Disputes Act, 1947 (for short, "the ID Act"). The terms of reference, as found in the impugned order, read as follows: "Whether the demand of the Powergrid National Workers Union (SR) for the additional payment to the employees for the alleged additional work of 52 days per year by the management of M/s.Power Grid Corporation of India Ltd., and M/s.National Thermal Power Corporation Ltd. is legal and justified? If yes, to what relief the workmen are entitled to?" It is surprising that a public sector corporation like the petitioner, owned by the Central Government, has challenged an order of reference made by the Central Government. 2. The writ petition was admitted on 29.4.2009. Pending the writ petition, this Court granted interim stay. Subsequently, when a vacate stay petition was filed by the third respondent/union in M.P.No.1 of 2010, this Court rejected their plea for vacating the stay and made the stay absolute vide order dated 18.8.2010. On behalf of the fourth respondent, viz., Power Grid Corporation of India Limited, another public sector enterprise, a counter affidavit dated 1.11.2010 was filed. The first respondent/Union of India had also filed a counter affidavit dated nil. 3. Heard the arguments of Mr.V.T.Gopalan, learned Senior Counsel appearing for M/s.King and Partridge, Mr.Velayutham Pichaiya, learned Central Government Standing Counsel for the first respondent, Mr.J.Ramakrishnan for the third respondent/trade union and M/s.Aiyar and Dolia for the fourth respondent/Corporation. https://hcservices.ecourts.gov.in/hcservices/ 4.1. The facts leading to the case are as follows: The petitioner/ NTPC claim they are the largest power company under the public sector installed in the year 1975 and at the moment they have 15 coal based and 7 gas based power stations and 4 joint ventures. Apart from the generation of electricity, they are also in the business of consultancy, power trading, ash utilization and coal mining. 4.2. Pursuant to the decision of the Government of India to switch over to 5 day week in the administrative office of the Central Government, the petitioner also followed the same pattern in their Central Head Quarters, Regional Head Quarters at Hyderabad, Patna, Allahabad and Nagpur as well as in the Metropolitan cities of Bombay, Kolkata and Chennai. This fact was also communicated to the employees by circular dated 2.8.1995. But it was made clear that the said 5 day week system will not apply to the plants and power generation stations. 4.3. After the introduction of the 5 day week, the petitioner company as well as the workers had various consultations and entered into a Memorandum of Conclusion dated 17th and 18th September, 1985. While the trade unions wanted 5 day week in all other units, the management did not accept the said request. The stand of the management was also recorded in paragraph [5] of the Memorandum of Conclusion. After the negotiated settlement dated 12.8.1983 got expired on 31.12.1986, all the trade unions submitted a fresh charter of demands and bipartite negotiations were also held. The settlement was signed on 19.7.1989 for the period from 1.1.1987 to 31.12.1991. Under paragraph [9.3] of the settlement, all the demands were agreed to be settled. Under paragraph [9.2], except what has been agreed, the rest of the service conditions were to be continued, which means that the 5 day week issue has been concluded. After the said settlement dated 19.7.1989, another bipartite settlement was signed on 27.5.1995 for the period from 1.1.1992 to 31.12.1996. Thereafter, another bipartite settlement was signed on 25.1.2001 for the period from 1.1.1997 to 31.12.2006. 4.4. It is at this stage, the Central Government promulgated an Ordinance known as the National Thermal Power Corporation Limited, The National Hydro Electric Power Corporation Limited and the North Eastern Electric Power Corporation Limited (Acquisition and Transfer of Power Transmission Systems) Ordinance, 1993 for the acquisition and transfer of the power transmission system of the three companies and the right, title and interest of those companies in the power transmission system to develop the National Power Grid. Under Section 3(2) of the Ordinance, the power transmission system vested with the Central Government was https://hcservices.ecourts.gov.in/hcservices/ transferred to the fourth respondent/Power Grid Corporation of India Limited. 4.5. It is claimed that as per the said Ordinance the services of all the employees/workmen in the power transmission system stood transferred to the fourth respondent with effect from 1.4.1992 and there was no employer employee relationship between those workers and the petitioner/management. 4.6. The third respondent on 20.4.2007 raised a dispute before the Assistant Labour Commissioner (Central), Chennai against the petitioner and the fourth respondent. In that representation, they demanded 5 day week and the Conciliation Officer initiated conciliation proceedings and notice was issued to the petitioner. The petitioner claimed that they have been unnecessarily summoned and there is no dispute between them and the third respondent. Notwithstanding the same, the Conciliation Officer sent a failure report dated 29.10.2008. The first respondent/Central Government, on receipt of the said failure report, referred the dispute, as noted already, for adjudication by the Central Government Industrial Tribunal-cum-Labour Court, Chennai. Even before the dispute could be taken up on file and matter could be adjudicated, the petitioner/ Corporation has rushed to this Court challenging the order of reference. 4.7. The contention raised by the petitioner was that the issue relating to 5 day week has been concluded by the Memorandum of Conclusion and the subsequent settlements and there was no justification for the third respondent to raise a dispute after two decades. The first respondent did not have any material to refer the dispute and there was total non application of mind, this is especially in the context that there was no employer employee relationship between the petitioner/ Corporation and the workmen since 1.4.1992 and it is on that date, by virtue of the Ordinance, the services of the employees working in the power transmission system stood transferred to the fourth respondent and the Central Government had failed to take note of the same. 4.8. With reference to the jurisdiction of this Court to go into an order of reference, the learned Senior Counsel referred to the judgment of the Supreme Court in National Engineering Industries Limited v. State of Rajasthan and others, [2000] 1 SCC 371. In that case, the Supreme Court held that an Industrial Tribunal, as it is a creation of a statute and gets jurisdiction only on the basis of reference, cannot go into the validity of the reference and therefore, the issue relating to lack of jurisdiction can be raised in a writ petition filed under Article 226 of the Constitution of India. In paragraph [24], it was observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "24. It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject- matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction." 5.1. Resisting the stand of the petitioner, the first respondent/ Central Government, in their counter affidavit, stated that the demand for reduction of the working days or in essence additional payment for the additional work of one day per week can certainly be an industrial dispute between the parties. 5.2. It is also stated that an order of reference is not a quasi-judicial order and one of administrative action by the Central Government, for which reliance was placed upon the judgment of the Supreme Court in Western India Match Co. Ltd. v. Workers Union, [1970] 1 SCC 225 : [1970] 2 LLJ 256 and Ram Avtar Sharma v. State of Haryana, [1985] 3 SCC 189 : [1985] 2 LLJ 187. 5.3. As to the sufficiency or satisfaction of the material placed before the Central Government reliance was placed upon the judgment of the Supreme Court in Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana, [1979] 1 SCC 1 : [1979] 1 LLJ 1 and it was contended that if a dispute was an industrial dispute, its factual existence and expediency of making the reference in the circumstances of a particular case are the matters entirely for the government to decide and it will not be competent for the court to hold that the reference was bad and quash the proceedings for want of jurisdiction merely because in the opinion of the court there was no material before the Government which could have made it to come to an affirmative conclusion. 5.4. It was also stated that in the absence of any settlement under Section 12(3) of the ID Act, the Government is competent to make a reference. 5.5. It was further stated that after the receipt of the failure report, the Government of India requested the Ministry of Power to advise the respective management to settle the dispute amicably by discussion with the union concerned and also to furnish their comments to the Government of India within a period of 60 days and it was indicated that if there was no remark, it https://hcservices.ecourts.gov.in/hcservices/ will be presumed that they had no valid objection for the matter being referred for adjudication and, therefore, since the dispute was not settled amicably, the Government, on perusal of the report along with the representation and replies submitted by all parties, referred the dispute. 5.6. A preliminary objection was also raised that a public sector undertaking should not come to the Court challenging another order passed by another wing of the Government and in such cases, unless the opinion of the High Power Committee for initiating the litigation between the inter-ministerial departments is obtained, the Court should not entertain any litigation. 6. The fourth respondent contended that the persons who are working in the site and projects were paid special compensatory allowances. Though the trade union had agreed to withdraw the dispute, they did not withdraw the same. The dispute raised after a period of two decades was unjustified and after the acquisition of the manpower and assets, the fourth respondent had entered into three bipartite settlements relating to the service conditions and hence, the reference was bad in law and they also supported the stand of the petitioner. 7.1. The third respondent/Union, in their counter affidavit, contended that while the 5 day week system was introduced selectively to the offices, the workers of the power generation unit were working round the clock under three shift duty system. While the offices function from 9 a.m. to 5.30 p.m. with ½ an hour break and also had every second and last Saturdays as closed holidays before the introduction of the 5 day week, the power generation unit worked round the clock and there is a gross exploitation of the workers. 7.2. The settlements, which are referred to, are not applicable to be case on hand. Since the workmen in the projects and the power generation units are working extra 52 days per annum for the very same salary, even the principle of equal pay for equal work was flouted and the action of the petitioner is arbitrary and violative of Article 14 of the Constitution of India. 8. However, this Court is not inclined to go into the merits of the case, since the first respondent/Central Government has filed a counter affidavit and had stated that it was fully satisfied with the existence of a dispute and also made a reference on the basis of relevant materials. This Court cannot go into the sufficiency or otherwise of the said materials, https://hcservices.ecourts.gov.in/hcservices/ especially when the order of reference only enables the adjudicating authority to adjudicate the dispute between the parties. 9. It must be noted that an industrial dispute under the ID Act can be resolved only by two methods – one by conciliation and other by adjudication. In case of failure of conciliation, certainly it is open to the Government to refer the dispute for adjudication under the belief that an award passed by the adjudicating authority can bring industrial peace. Even assuming that the issue is covered by either a bipartite settlement or memorandum of conclusion, that is a matter which will have to be pleaded before the Tribunal for its acceptance. 10. The plea of estoppel is essentially a question of fact which will have to be pleaded in the counter pleadings made by an employer before the Tribunal and what is the best defence of the employer cannot be made use of to set aside a reference. Ultimately, the industrial tribunal is competent to decide the question as to whether the matter was covered by any settlement. 11. The Supreme Court vide judgment in Government of Gujarat (Fisheries Terminal Department) v. Bhikubhai Meghajibhai Chavda, [2010] 1 SCC 47 has held that if the workmen approach the Conciliation Officer and thereafter move the court for adjudication, the delay cannot be held to be fatal. In paragraph [22], it was observed as follows: "22. It is also the case of the appellant that there is unexplained delay in approaching the Labour Court in adjudicating the imaginary grievance by the respondent workman. In our view, there is no merit in this contention. The workman had approached the Conciliation Officer for resolving the dispute between the employer and the employee and it is only when the conciliation proceedings failed that the matter was referred to the Labour Court for final adjudication." Therefore, this Court is not inclined to interdict the order of reference at the threshold, even before effective adjudication. 12. The learned Senior Counsel also submitted that since by virtue of the Ordinance they were divested with all the assets in respect of the power generation employees, any liability can be only fastened on the fourth respondent and not on the petitioner. It was submitted that the fourth respondent is the successor in interest to the petitioner/ Corporation. However, these are all matters which the Tribunal will have in mind and in case it decides to grant relief to the workmen, it will also decide the https://hcservices.ecourts.gov.in/hcservices/ question of fixing the liability on the appropriate employer. On this score, the reference cannot be held to be bad in law. 13. Before concluding, it must also be noted that even the Government of India has raised objection about the maintainability of the writ petition at the instance of the petitioner in the absence of the petitioner getting approval from the High Power Committee for filing the writ petition against the very same Government of India which had created the petitioner/Corporation. Anyhow, it is a matter which the petitioner/Corporation will have to ponder over. Since this Court has dismissed the writ petition on other grounds, it is unnecessary to go into the objection raised by the Government of India. In view of the above, the writ petition stands dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sasi To: 1. The Secretary Ministry of Labour Union of India New Delhi. 2. The Presiding Officer Central Government Industrial Tribunal cum Labour Court 1st Floor 'B' Wing, Shastri Bhavan 26, Haddows Road Chennai – 600 006. 3. The General Secretary Power Grid National Workers Union (SR) Chekkanurani Madurai https://hcservices.ecourts.gov.in/hcservices/ 4. The Chairman-cum-Managing Director Power Grid Corporation of India Ltd. New Delhi – 110 016. 1 cc to M/s. King and Partridge, Advocate, Sr. 51981 1 cc to Mr.J.Ramakrishnan, Advocate, Sr. 51566 W.P.No.8305 of 2009 RSY (CO) kk 29/8 https://hcservices.ecourts.gov.in/hcservices/