In the High Court of Judicature at Madras Date : 18..03..2010 Coram : THE HON'BLE MR. JUSTICE K. CHANDRU Writ Petition No: 4881 of 2010 C. Swamy Sundaram, Pannikkankudieruppu, Thengampudur Post, Kanyakumari District. ... Petitioner -vs- 1. Union of India, rep. by the Desk Officer, Ministry of Labour, Shram Mantralaya, New Delhi. 2. The Regional Labour Commissioner (Central) Office of the Regional Labour Commissioner, Shastri Bhavan, Haddows Road, Nungambakkam, Chennai – 600 006. 3. The Principal Post Master General, Tamil Nadu Circle, Chennai – 600 002. ... Respondents .. .. .. Writ petition under Article 226 of the Constitution of India praying for issuance of writ of certiorarified mandamus directing the first respondent to produce the records pertaining to the impugned order issued vide No: L-40011/7.2007 – IR (DU) dated 16.5.2007 by the Desk Officer, Ministry of Labour, Shram Mantralaya, New Delhi and to quash the same and to direct the first respondent to refer the case of the petitioner for adjudication before the Central Government Industrial Tribunal, Chennai. For petitioner : M/s. S. Jothivani For 1st respondent : Mr. M.A.Muthalakan .. .. .. https://hcservices.ecourts.gov.in/hcservices/ O R D E R Mr. M.A. Muthalakan, learned counsel takes notice for the 1st respondent. Heard both sides. The petitioner has challenged the order passed by the Government of India, Ministry of Labour, dated 16.05.2007. By the impugned order, the 1st respondent declined to refer the dispute raised by the petitioner and in the order dated 16.05.2006 passed under Section 10 (1) of the Industrial Disputes Act, 1947 it was stated as follows:- " The matter was proceeded in accordance with the provisions of the ED Agents (Conduct and Service) Rules, 1964 governing the discipline in the industry concerned, and therefore, the matter raised cannot be construed as an "industrial dispute". 2. The ground taken by the petitioner is that petitioner is an employee as defined under Section 2 (s) of the Industrial Disputes Act, 1947 and the third respondent Department of Posts is an industry within the meaning of 2 (j) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act) and as the dispute relate to non-employment, it fell squarely within the definition of Section 2 (k) of the I.D. Act. In so far as the Extra Departmental Agents are concerned, they are having a right to move either the forum provided under the Industrial Disputes Act or the Central Administrative Tribunal and therefore, the Government was wrong in refusing to refer the dispute. 3. The Larger Bench of the Supreme Court of India in the decision reported in Bangalore Water Supply Sewerage Board vs. A. Rajapa, reported in 1978 (1) L.L.N. 376 has settled the position with reference to the definition of the term "Industry" within the meaning of 2 (j) of the I.D. Act. Subsequently, a two Judge Bench of the Supreme Court in the case of Sub-Divisional Inspector of Post, Vaikam, vs. Thayyam Jaseph reported in 1996 (2) L.L.J. 230 doubted the application of the Industrial Disputes Act to the persons working in the department of posts. Similarly, another two Judge Bench in the case of Bombay Telephone Canteen Employees Association vs. Union of India – reported in 1997 (2) L.L.J. 647 held that the Department of Government is not exercising sovereign function and it cannot be held to be an industry within the meaning of 2 (j) of the I.D. Act. By a Three Judge Bench in the case of General Manager, Telecom, vs. Srinivasa Rao reported in Civil Appeal No: 7845 of 1997 dated 18.11.1997 has held that the decision of the Three Judge Bench was not appropriate and the decision rendered in Bangalore Water Supply and Sewerage Board case will apply even to departments of the Government running activities on par with the industry. Thereafter, in Chief Conservator of Forests vs. Jaganath Maruthi https://hcservices.ecourts.gov.in/hcservices/ Knondari reported in 1996 (1) L.L.J. 1223 it was held that the forest department cannot be held to be a part of the sovereign function of the State and, therefore, termination of service without complying with the provisions of the 25 (f) of the I.D. Act was invalid. 4. In the light of these developments, the impugned order passed by the 1st respondent Central Government is clearly illegal and when once a dispute relating to non-employment of a workman is raised, it goes without saying that it is an industrial dispute within the meaning of Section 2(A) of the I.D. Act and by virtue of the introduction of Section 2 (A) of the Act in the year 1968, a workman can raise a dispute without being backed by any union. In the case of an individual person, even otherwise whether the dispute raised by the individual was an industrial dispute and whether the issue is covered by the E.D. Agents Conduct and Service Rules, 1964 or whether the jurisdiction under the I.D. Act is available or not are all matters of fact which will have to be dealt with by the adjudicating forum provided under the Industrial Disputes Act. The Government in exercise of its power under Section 10 (1) of the Act cannot reach out a conclusion on merits and refuse to make a reference. In such circumstances, this Court can order directing a reference to be made as held by the Supreme Court in the case of The M.P. Irrigation Karamchari Sangh vs. State of Madhya Pradesh and another, reported in A.I.R. 1985 Supreme Court 860. The relevant paragraph reads asfollows:- " 5. ..... ..... .... In our opinion, the reasons given by the State Government to decline reference are beyond the powers of the Government under the relevant sections of the Industrial Disputes Act. What the State Government has done in this case is not a prima facie examination of the merits of the question involved. To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the Government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterised as either perverse or frivolous. The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand. 6. .... .... ... 7. .... .... ... 8. .... .... ... 9. In the result, we set aside the Judgment of the High Court, allow this appeal and direct the State Government to refer all the questions raised by the https://hcservices.ecourts.gov.in/hcservices/ appellant to the appropriate Tribunal. The appeal is allowed with costs to the appellant quantified at Rs 2500/-. " In yet another decision reported in A.I.R. 1985 S.C. 915 [ Ram Avatar Sharma and others vs. State of Haryana and another ], the Supreme Court held that, " 6. ..... ..... ..... In other words, the reasons given by the Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. Therefore if the grounds on which or the reasons for which the Government declined to make a reference under Section 10 are irrelevant, extraneous or not germane to the determination, it is well-settled that the party aggrieved thereby would be entitled to move the Court for a writ of mandamus. (See Bombay Union of Journalists v. State of Bombay5.) It is equally well-settled that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Government to reconsider its decision. In this case a clear case for grant of writ of mandamus is made out." 5. In the light of the above legal precedent and the factual matrix involved herein, the writ petition stands allowed. The impugned order of the Central Government, the first respondent herein dated 16.05.2007 stands set aside and the first respondent is directed to order reference on the dispute raised by the petitioner covered by the failure report sent by the Assistant Labour Commissioner, Madurai, in Report No: M.8/120/2006-A/M dated 07.02.2007 within a period of two months from the date of receipt of a copy of the order and communicate the order to the petitioner without fail. The writ petition stands disposed of accordingly. There shall be no orders as to the costs. gp Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Desk Officer, Union of India, Ministry of Labour, Shram Mantralaya, New Delhi. 2. The Regional Labour Commissioner (Central) Office of the Regional Labour Commissioner, Shastri Bhavan, Haddows Road, Nungambakkam, Chennai – 600 006. 3. The Principal Post Master General, Tamil Nadu Circle, Chennai – 600 002. + 1 cc to M/s. S. Jothivani, Advocate SR No.18586 W.P. No:4881 of 2010 RSN(CO) SR/6.4.2010 https://hcservices.ecourts.gov.in/hcservices/