IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 26-04-2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.45446 of 2006 Rajiv Gandhi ONGC (Con) Workers Welfare Association, rep. By its General Secretary, 56, V.V.Koil Street, Kosapet, Chennai-600 012. .. Petitioner. Versus 1. Government of India, Rep. By its Secretary to Government, Ministry of Labour, New Delhi. 2.The Chairman and Managing Director, Oil and Natural Gas Corporation, Jeevan Bharathi Towers, 124, Indira Chawk, Cannaught Circus, New Delhi-110 001. 3. Executive Director, Oil and Natural Gas Corporation, No.8, C.M.D.A. Building, Gandhi-Irwin Road, Egmore, Chennai-600 008. .. Respondents. Prayer: Petition filed seeking for a Writ of Certiorarified Mandamus, calling for the records of the first respondent pertaining to the order of decline to refer the dispute of the petitioner Union, dated 30.1.2006, and quash the said order, dated 30.1.2006 and consequently, direct the first respondent to refer the dispute to appropriate Central Government Tribunal. (Prayer amended as per order dated 5.1.2011 in MP.1 of 2010) For Petitioner : Mr.V.R.Kamalanathan for Mr.V.G.Anbarasu https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.K.Gunasekaran (ACGSC) (R1) for Mr.G. Masilamani Senior Advocate Mr.M. Vijayan for M/s. King and Partridge for R2 & 3 O R D E R This writ petition has been filed challenging the order of the first respondent refusing to refer the dispute raised by the petitioner Union for adjudication, under Section 10A of the Industrial Disputes Act, 1947, for adjudication. 2. The first respondent had passed the order, dated 30.1.2006, declining to refer the dispute for adjudication stating as follows: "Decision of Government in the matter communicated earlier vide Ministry's letter No.L-20012/9/95, dated 19.9.1995. The Contract under which the workmen were engaged by the contractor had come to an end and all work ceased w.e.f. 5.1.1995." 3. The main contention of the learned counsel for the petitioner Union is that its members have been employed under the direct and effective control of the management of the Oil and Natural Gas Corporation Limited. In fact, they are not contract workers. Even though the nomenclature used to describe them is `contract workers’, they are not contract workers, as alleged by the management of the Oil and Natural Gas Corporation Limited. 4. It has also been stated that the members of the petitioner Union, which is registered under the Trade Unions Act, 1926, had been continuously employed by the Oil and Natural Gas Corporation Limited, Chennai, in various works, which were perennial in nature. However, the Oil and Natural Gas Corporation Limited had denied employment to the members of the petitioner Union, abruptly, in the year 1995. 5. Aggrieved by the arbitrary action of the second respondent, the petitioner Union had filed a writ petition before this Court, in W.P.No.12803 of 1997. By an order, dated 12.9.2002, this Court had directed them to move the appropriate forum. Therefore, the petitioner Union had approached the Conciliation Officer concerned. Since, the conciliation proceedings between the petitioner Union and the second respondent had failed, a failure report, dated 30.1.2006, had been submitted before the first respondent, under https://hcservices.ecourts.gov.in/hcservices/ Section 12(4) of the Industrial Disputes Act, 1947. However, the first respondent had passed an order, dated 30.1.2006, declining to refer the dispute raised, under Section 2(k) of the Industrial Disputes Act, 1947, for adjudication before the appropriate forum. 6. The first respondent had refused to refer the dispute, for adjudication, arbitrarily, without applying its mind to the issues involved in the matter. It had also been submitted that the role of the first respondent is only administrative in nature. However, it had acted as a quasi judicial authority, erroneously, contrary to the provisions of the Industrial Disputes Act, 1947, and the various decisions of the courts of law. 7. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions raised in describing the role of the appropriate Government in deciding, as to whether a dispute is to be referred for adjudication or not, under Section 10A of the Industrial Disputes Act, 1947, as well as in support of his various other contentions: 7.1 In Shaw Wallace Co. V. T.Nadu Rept. By C & C., Labour Department and Ors. (1987 (1) LLJ 177), it had been held as follows: "In cases falling under Section 2-A of the Industrial Disputes Act, the question of formation of opinion by the Government under Section 10(1) of the Act that an Industrial dispute exists or is apprehended cannot arise. Since the provisions of Section 10 and 12 (5) of the Act continue to be unaltered even after the introduction of Section 2-A of the Act, the appropriate Government has the discretion to decide whether a reference should be made or even in cases where industrial dispute exists or is apprehended. Discretion given in Section 10(1) read with Section 12(5) has to be exercised in such a manner that it would not exceed the limits prescribed for the sphere of reference and enter into the territory of adjudication. What the Government is expected to decide before making a reference iw whether on a prima facie examination of the facts of the ase there is a dispute which requires a trial or adjudication by a tribunal or a Court. Government cannot take the function of adjudication. If the claim is patently frivolous or if the admitted facts are so glaringly against workmen not warranting trial or adjudication by tribunal or Court, then the Government https://hcservices.ecourts.gov.in/hcservices/ would be justified in refusing to make a reference. If the claim is stale and belated it need not be referred for adjudication. Where a reference would not be conducive to industrial peace in the region or would have an adverse impact on the general relation of employer and employee the Government would be justified in such cases to refuse to make reference. On an analysis of the various decisions of the Supreme Court and the other cases, the following principles emerged:- (1) The Government would normally refer the dispute for adjudication. (2) The Government may refuse to make reference, if (a) the claim is very sale (b) the claim is opposed to the provisions of the Act; (c) the claim is inconsistent with any agreement between the parties; (d) the claim is patently frivolous; (e) the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse; (f) the person concerned is not a workman as defined by the Act; (3) The Government should not act on irrelevant and extraneous consideration; (4) The Government should act honestly and bonafide; (5) The Government should not embark or adjudication of the dispute; and (6) The Government should not refuse reference on the ground that domestic enquiry was fairly and properly held and punishment awarded was appropriate." 7.2. In N.Durairajan Vs. Union of India and another (1990(2) LLJ 147), it had been held as follows: "It is obligatory on the part of the appropriate Government to record the reasons for declining to make a reference under Section 10 of the Industrial Disputes Act and communicate them to the parties. The reasons given by the Government for declining to make the reference would https://hcservices.ecourts.gov.in/hcservices/ be subject to judicial review. The Government while exercising the said administrative function cannot delve into the `merits' of the `dispute' and determine the lis or any part thereof." 7.3. In Cheran Transport Emp. Union Vs. Government of Tamilnadu (1999(3) LLN 294), it had been held as follows: "There is no dispute and it is also not denied that in an appropriate case it is open to the Government either to refer or refuse to refer an industrial dispute. But, merely on the basis of the failure report of the Conciliation Officer, it is not open to the Government to adjudicate the rival claims and also commend the penalty imposed. Accordingly, even if the Division Bench judgment in Sundaram Industries case (1997(3) L.L.N. 346), is applied, in the light of the various decisions of the Supreme Court coupled with the principles laid down in Shaw Wallace case (1988 (1) L.L.N. 172), the reasons mentioned in the impugned order cannot be sustained. Once the matter is referred to the Labour Court/Industrial Tribunal, it is open to both parties concerned to raise their contentions before it which are permissible under law. In such a situation, `no specified direction is required to be given to Labour Court to consider all the objections of the management." 7.4 In Sharad Kumar V. Government of NCT of Delhi (2002(2) LLJ 275), it had been held as follows: "In this judgment the Supreme Court draw as it were, the contours of the appropriate Government's power to refer or not to refer a dispute for adjudication under Section 12(5) read with Section 10(1) of the Industrial Disputes Act, 1947. It was called upon to decide the refusal by the government of National Capital of Delhi (NCT of Delhi) to refer a dispute raised by the appellant herein, to the Industrial Tribunal/Labour Court on the sole ground that he was not a `workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, as justified or not. It observed that the impugned refusal was erroneous, as the concerned Government could not arrogate to itself the power to adjudicate the question, involving as it did examination of factual matters for which materials including oral evidence would have to be considered. The High Court too was clearly in https://hcservices.ecourts.gov.in/hcservices/ error in confirming the order of rejection of reference passed by the State Government merely by taking note of the designation of the appellant as `Area Sales Executive'. The question depended on the duties assigned to, or discharged by, the employee and not merely on the designation of the post held by him. The Supreme Court made it clear that the jurisdiction vested in the appropriate Government under Section 12(5) of the Industrial Disputes Act, 1947, to make or refuse a reference was administrative in nature." 7.5. In MGR Transport Corpn. Emp. Union V. State of T.N. (2004 (3) L.L.N. 322), it had been held as follows: "It is settled proposition of law that the Government has little or no discretion in the matter of reference of disputes before the Labour Court except in rare cases where a claim of the worker is glaringly frivolous or repeated references are sought to be made on the same issue. The question as to whether the dispute raised by the worker is justified or not is a matter for the Labour Court and not to be rejected by the Government at the stage of reference. When such is the legal position, it is a matter of regret and surprise that there could be a printed format for rejection (not for making reference). Right to have the dispute adjudicated by the Labour Court is a basic right of the employee and such a right cannot be rejected at the threshold by the Government. The observation that the employee had caused the death of a passenger and that the punishment was justified is an issue which has to be decided by the Court on proper materials." 7.6. In Sudalai Andi M. V. Government of India (2006-III-LLJ 679), it had been held as follows: "The High Court observed the first respondent was bound, upon the failure report of the conciliation officer, to refer the disputes for adjudication." 7.7. In O.N.G.C.Madras Port Contract Employees' Union V. The Management of Oil and Natural Gas Corporation Ltd., (2005(2) CTC 1), it had been held as follows: "However, the law is now well settled that even an administrative order is subject to judicial review, though on much more limited grounds than a quasi-judicial https://hcservices.ecourts.gov.in/hcservices/ order. In other words, the grounds for challenging an administrative order are much narrower than the grounds available for challenging a quasi-judicial order. However, it cannot be said that an administrative order can never be challenged at all." 7.7. In G.S.ICF Labour Union/IR V. Government of India (2006 (4) M.L.J. 16) it had been held as follows: "Once the Regional Labour Commissioner had submitted the failure report, the Government was bound to refer the dispute, since the Industrial Tribunal alone can decide the dispute, in terms of the Industrial Disputes Act, 1947." 7.8. In Sudalai Andi M. V. Government of India (2006-III-LLJ 679), it had been held as follows: "The High Court observed the first respondent was bound, upon the failure report of the conciliation officer, to refer the disputes for adjudication." 7.9. In Philips India Ltd. V. P.N.Thorat, Asst. Commr. (2006 (2) L.L.N. 604), it had been held that in the given the facts of the case it had emerged that there were serious triable issues which required a decision by the Industrial Adjudicator by recording of evidence. It had also been held that the petitioner would have the right to raise all the issues before the Industrial Tribunal to which the reference is made. 7.10. In J.L.Araujo V. Allahabad Bank (2006(2) L.L.N. 608), it had been held that the dispute involving factual details cannot be gone into by the Government. It was for the industrial Tribunal or the labour Court to adjudication on such issues based on the materials placed before it. 7.11. In G.M.ONGC, Shilchar V. ONGC Contractual Workers Union (2008(3) L.L.N. 490), it has been held as follows: "It is true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the https://hcservices.ecourts.gov.in/hcservices/ nature of employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it." 7.12. In Hindustan Petroleum Corporation Limited V. P.O., Central Government, L.C.-cum-I.T (2008(4) L.L.N. 254), it had been held as follows: "Though the learned Advocate-General tried to contend that there is no statutory bar for engaging labour on contract and outsourcing is the modern trend in employment, it must be stated that under the existing law, there are limitations in doing so. The workmen in HPCL are governed by Certified Standing Orders (CSO) framed under the Industrial Employment’ (Standing Orders) Act, 1946. In that CSO, there is no provision to engage any contract labour and Courts have held that any contract in violation of Certified Standing Orders will be void. Further, "unfair labour practice" in any forum is prohibited under S.25T of the I.D. Act and violation of which is punishable under S. 25U of the said Act. The term "unfair labour practice" is defined under S.2(ra) read with V Schedule to the I.D.Act. Part I of the V Schedule lists out the unfair labour practices prohibited to be committed by an employer. Item (10) of Part I reads as follows: "to employ workmen as `badlis,' casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen." 7.13 In the case decided in W.P.No.6582 of 2001, dated 25.6.2009, this Court had held that the refusal of the Government to refer the dispute for adjudication is not sustainable. The adjudication of issues must be left to the Labour Court and therefore, the Government cannot decide on such issues and reject the request for reference. 7.14. In Kuldeep Singh V. G.M.Instrument Design d & F Center and another (2011(1) LLN 1 (SC), it had been held as follows: “Real test for making reference is whether at the time of reference, dispute exists or not and when same is made, it is presumed that State Government is https://hcservices.ecourts.gov.in/hcservices/ satisfied with ingredients of provision. Labour Court cannot go behind reference. Government cannot go into merits of dispute and once it is found that there is dispute, Government ought to make reference. Government ought to make reference. Satisfaction of Appropriate Authority under Section 10(1) is subjective satisfaction. If adequate reasons are found Government has to refer dispute and must not decline on ground of laches. Though there is no limitation prescribed, reference has to be sought within reasonable time.” 8. In the counter affidavit filed on behalf of respondents 2 and 3, it has been stated that Oil and Natural Gas Corporation Limited, is a public sector corporation, which is engaged in exploring for oil and natural gas. In the month of January, 1995, it was found that no oil and natural gas was available, offshore, near Chennai. Hence, the exploration activities had been wound up. During the exploration activities conducted by the Oil and Natural Gas Corporation Limited it had to transport materials and other supplies to the place of its offshore operations. For such purpose, contracts for stevedoring, shipping services, loading and unloading of materials etc. were entered into with the contractor, namely, M/s.Pandian Transports. The said contractor had engaged dock workers, who were covered by the Dock Workers (Regulation of Employment) Act, 1948. However, the contracts had been terminated, with effect from 4.1.1995. 9. It had also been stated that the Dock workers engaged by the contractor had raised an industrial dispute alleging that Oil and Natural Gas Corporation Limited had terminated the contract, without any rhyme or reason. On the failure of the conciliation proceedings, the Central Government, had by its order, dated 17.11.1999, referred the matter for adjudication, under Section 10 (1) of Industrial Disputes Act, 1947. The issue referred for adjudication before the industrial Tribunal is `whether the demand of Oil and Natural Gas Corporation Limited Madras Port Contract Employees Union for regularization of 42 contract labourers listed in Arbitration-A is justified, if so, to what relief the workmen are entitled'. 10. By a subsequent corrigendum, dated 13.10.2000, the number of contract labourers had been increased to 54 from the 42, mentioned earlier. The said reference had been challenged by the Oil and Natural Gas Corporation Limited, before this Court, in W.P.No.21407 of 2000. By an order, dated 19.4.2002, this Court was https://hcservices.ecourts.gov.in/hcservices/ pleased to quash the reference holding that the reference made by the Central Government had been made, without proper application of mind. The writ appeal filed against the said order, in W.A.No.3622 of 2002, had been dismissed, by an order, dated 28.2.2005. 11. It had been further stated that the petitioner Union had filed a writ petition, in W.P.No.12803 of 1997, for the issuance of an appropriate writ prohibiting the engagement of contract labourers and to consequently, direct the Oil and Natural Gas Corporation Limited to absorb the contract labourers. Thus, there was a clear admission that the workers in question were contract labourers and that they had claimed absorption in regular service. 12. By an order, dated 12.9.2002, this Court was pleased to direct the petitioner Union to submit their representation to the Central Government, following the decision of the Supreme Court, in Steel Authority of India V. National Union Water Front Workers Union (2001 (4) CTC 48). Thereafter, the Ministry of Labour, Government of India, having considered all the issues arising for its consideration, had passed an order, dated 27.11.2003, holding that prohibition of Contract Labour System, under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, did not arise, as the entire operations had been closed down, from 5.1.1995. The said order, refusing to prohibit the Contract Labour System, had not been challenged and thus, it had attained finality. In spite of the earlier orders passed by this Court the petitioner has preferred the present writ petition before this Court making various claims, which are unsustainable in the eye of law. Therefore, the writ petition is devoid of merits. 13. The learned counsel appearing on behalf of respondents 2 and 3 had submitted that the Oil and Natural Gas Corporation Limited had been engaging certain workers for their off shore oil exploration activities, through contractors. Therefore, there was no privity of contact between the Oil and Natural Gas Corporation Limited and the petitioner association. The off-shore activities of the Corporation had come to an end in the year, 1995. Thereafter, it had no occasion to engage workers for such activities. 14. It had been further submitted that the issue relating to the non employment of the workers had been raised, belatedly, only in the year, 2004. As such, the claims raised on behalf of the members of the petitioner Union had become stale. It had also been submitted that the Government concerned would have an obligation to refer a matter for adjudication, only if the existence of a prima https://hcservices.ecourts.gov.in/hcservices/ facie dispute is established. The petitioner Union has not been in a position to show that its members, on whose behalf the present writ petition has been filed, had been continuously engaged by the Oil and Natural Gas Corporation Limited, to raise the issue regarding non-employment. 15. It has also been submitted that it is an admitted fact that the members of the petitioner Union are contract workers, as seen from the claims made by the petitioner Union, in the writ petition, in W.P.No.12803 of 1997, praying for the issuance of an appropriate writ prohibiting contract labour engagement and to consequently, direct the Oil and Natural Gas Corporation Limited to absorb the contract labourers. 16. By an order, dated 12.9.2002, made in W.P.No.12803 of 1997, by following the decision of the Supreme Court in Steel Authority of India Vs. National Union Water Front Workers Union (2001(4) CTC 48), this Court was pleased to direct the petitioner Union to submit its representation to the Central Government, to be considered, under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. Pursuant to the said order the Ministry of Labour, Government of India, had considered the entire issue and had held, by an order, dated 27.11.2003, that prohibition of Contract Labour System, under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, does not arise as the entire operation had been closed down, from 5.1.1995. 17. The learned counsel had also submitted that the earlier reference made by the Central Government, by its order, dated 17.11.1999, under Section 10(1) of the Industrial Disputes Act, 1947, had been challenged by the Contract Labour (Regulation and Abolition) Act, 1970, in W.P.21407 of 2000. By an order, dated 19.4.2002, this Court was pleased to quash the reference, holding that the reference made by the Central Government had been made without proper application of mind. The writ appeal filed by the petitioner Union in W.A.No.3622 of 2002, had been dismissed, by an order, dated 28.2.2005. Since, the said order, dated 28.2.2005, had not been challenged it had become final. 18. The petitioner Union has filed the present writ petition, attempting to espouse the cause of the contract labourers, after a delay of nearly nine years, in spite of the fact that the decision of this Court, in the W.A.No.3622 of 2002, dated 28.2.2005, had become final. It had also been submitted that the members of the petitioner association had not been in continuous employment and they had never been employed by the Contract Labour (Regulation and Abolition) Act, 1970, under their direct control and supervision. https://hcservices.ecourts.gov.in/hcservices/ They were only contract labourers, who had been engaged by various contractors, by way of contractual agreements. Therefore, the question of the members of the petitioner Union having been employed by the Contract Labour (Regulation and Abolition) Act, 1970, does not arise. 19. It had been further submitted that the Central Government cannot act, merely, as a post office, in making references of disputes. On application of mind, the Central Government had declined to refer the alleged dispute for adjudication. The decision of the Central Government cannot be held to be arbitrary or invalid. It had rightly held, by its impugned order, dated 30.1.2006, that the contract, under which the workmen had been engaged by the contractors, had