IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22-01-2010 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.24349 of 2009 AND M.P.NOS.1 and 2 of 2009 New Democratic Employees Front-NCTPs Branch rep. By its General Secretary ...Petitioner Vs. 1.Government of Tamil nadu rep. By its Secretary Labour and Employment Department Fort St.George, Chennai 600 009. 2. Assistant Commissioner of Labour, (Conciliation) 2 Kuralagam 3rd Floor, Chennai 600 108. 3. North Madras Thermal Power Plant rep. By its Chief Engineer Tamil Nadu Electricity Board Athipet Chennai 600 120. 4. Management, Radha Engineering Works (P) Ltd., No.40, Sapthagiri Street, Jafferkhanpet, Chennai 600083. ...Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus forbearing the respondent Nos.3 and 4 from altering the service conditions of the members of the petitioner Union whose names are given in the annexure to this affidavit filed in support of the writ petition in any manner including discontinuance of the service without getting permission under Section 33 of the Industrial Disputes Act, 1947, in the Industrial Disputes raised by the petitioner which is pending https://hcservices.ecourts.gov.in/hcservices/ conciliation before the 2nd respondent as Dispute No.1370/2009 regarding regularization of the 261 employees who are members of the petitioner union and further direct the 2nd respondent to conciliate and effect settlement and if no settlement is forthcoming to submit failure report under Section 12(4) of the Industrial Disputes Act andin turn direct the 1st respondent to refer the dispute for adjudication before the competent Industrial Adjudicator. For Petitioner : Mr.Balan Haridas For Respondents 1 & 2:Mr.Arumugam Special Government Pleader For respondent No.3 :Mr.P.S.Raman Senior Counsel Advocate General for Mr.M.Vaidyanathan Fro respondent No.4: Mr.P.K.Rajagopal O R D E R Heard the arguments of Mr.Balan Haridas, learned counsel for the petitioner, Mr.Arumugam, learned Special Government Pleader for respondents 1 and 2, Mr.P.S.Raman, Advocate General representing Mr.M.Vaidyanathan appearing for the third respondent and Mr.P.K.Rajagopal, learned counsel appearing for the fourth respondent. 2. The prayer of the petitioner is for a direction to respondents 3 and 4 from altering the service condition of the members of the petitioner union whose names are given in the annexure to this affidavit filed in support of the writ petition in any manner including discontinuance of the service without getting permission under Section 33 of the Industrial Disputes Act, 1947,(In short the Act) which is pending conciliation before the second respondent, the Assistant Commissioner of Labour, Conciliation 2, Chennai. 3. When the matter came up on 12.10.2009, this Court passed the following order: "Let the conciliation proceedings before the second respondent be allowed to proceed. However, the third and the fourth respondents are directed to maintain status-quo in respect of the alteration of the service conditions, if any, of the petitioner union employees. https://hcservices.ecourts.gov.in/hcservices/ 2. Counsel for the respondents is directed to file counter within a period of two weeks." 4. Subsequently, after the representation made by the learned Advocate General, this Court modified its earlier order by order dated 22.12.2009 and it reads as follows: " After hearing the learned counsel for the petitioner and the learned Advocate General appearing for respondents 1 to 3 and Mr.P.K.Rajagopal, learned counsel appearing for 4th respondent, a point has been brought to the notice of this Court that the contract of the 4th respondent would expire on 26.12.2009 and, therefore, members of the petitioner does not have any right to continue or does not have right against the 3rd respondent. 2. In the light of the above submission, as the matter requires adjudication, the status quo order granted by this Court on 07.12.2009 is to continue till 05.01.2010. However, the continuance of status quo order in respect of the claim of the petitioner will be only upto 26.12.2009. Thereafter, they shall not claim any right against respondents 1 to 3 and it is made clear that this order shall not confer any right on the petitioner or its members". 5. When the matter came up on 6.1.2010, it was informed by the learned Advocate General that the petitioners are not in employment any more and the question of seeking approval for their alleged termination will not arise. He also stated that the existing vacancies will not be filled up by outsiders, but with the existing personnel. However, Mr. Balan Haridas, learned counsel for the petitioner trade union contended that the members of the petitioner Union cannot be left high and dry and in the absence of any petition under Section 33 of the Act, the issues raised before this Court should be adjudicated by a competent Tribunal. It is submitted that they have already raised a dispute before the Assistant Commissioner of Labour (Conciliation 2) vide their representation dated 19.11.2009.The conciliation officer by a proceedings dated 19.11.2009 directed both the parties to appear before him on 3.12.2009 and the matter is still pending conciliation. 6. Counter affidavits have been filed on behalf of the third and fourth respondents resisting the claim of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 7. However, this Court is not inclined to go into the merits of the claim made by the petitioner Union. This Court directed that the stand of the State Government must be obtained with reference to the desirability of sending the industrial dispute raised by the workmen for adjudication by a competent Tribunal, in the absence of relief being directly given by this Court. Pursuant to the directions passed, the learned Special Government Pleader produced a letter dated 13.1.2010 sent by the Principal Secretary to Government. It was stated that it is not within the purview of this Court to make any reference. The procedure for referring the dispute under Section 10(i) of the Act consisting of (a) conciliation proceedings (b) forwarding of final report under Section 12(4) of the Act and finally, the Government has to take a decision on the basis of such failure report. It is only the Government which is the competent authority to decide the merits of the case and the desirability of making reference for adjudication. 8. It is surprising to note that the Secretary to Government is giving his advice to this Court about the procedure in ordering a reference. Considering the fact that the issue involves non-employment of 261 members of the petitioner union, and until the conciliation proceedings are over, the workmen will have to wait for an appropriate forum to adjudicate their dispute, this Court wanted to know the stand of the State Government and their intention to refer the dispute. It is not as if this Court under Article 226 of the Constitution cannot direct the Government for making reference under Section 10(1) of the Act in an appropriate case and the necessary pleadings are placed before this Court, regarding the existence of an Industrial dispute is shown and when the issue should not brook any delay. 9. In the present case, the respondents 3 and 4 who are the employers are not inclined to consider the demand made by the petitioner union and therefore no purpose will be served in prolonging the conciliation proceedings. On a suggestion made by this Court, the learned Advocate General who is also representing the State is not averse advise the Government to refer the dispute for adjudication at an early date, though he had submitted that such an order will have to be passed only by the State Government, 10. Mr.Balan Haridas, learned counsel for the petitioner Union brought to the notice of this Court, the Judgment of the Supreme Court in Municipal Corporation of Greater Bombay Vs. K.V.Sharma and others reported in 2002 (4) Supreme 181. He referred to the following passage found in paragraphs 28 and 29 which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "As laid down in the Constitution Bench judgment, absorption of contract labourers cannot be automatic and it is not for the court to give such direction. Appropriate course to be adopted is as indicated in para 125 of the said judgment in this regard. Thus, having considered all aspects, we are of the view that the impugned judgment and order cannot be upheld. 29. In the result, for the reasons stated and discussion made above, the impugned judgment and order are set aside leaving it open to the Union to seek remedies available in terms of para 125 of the judgment of the Constitution Bench in SAIL aforementioned before the State Government or the Industrial Adjudicator as the case may be. In case, the Union moves the appropriate Government or the Industrial Adjudicator within four weeks from today, they shall consider the same and pass appropriate orders within a period of six months. The order to maintain status quo regarding the employment of the contract labourers to the extent indicated was passed in the writ petition on 20.4.1998 and even after disposal of the writ petition, the High Court stayed the order for a limited period and further this Court passed order to maintain the status quo on 26.10.1999 which is continuing. In these circumstances, the order of status quo shall continue for a period of six months. We also make it clear that this order does not prevent the State Government to proceed in accordance with law in the matter of abolition of contract labour system, The appeal is allowed accordingly in the above terms. No costs". (emphasis supplied) 11. Therefore, learned counsel prays for a similar relief. But, in the present case, since the State Government was advised to refer the dispute and also the fact that the petitioner workmen are not working and also the fact the Electricity Board had expressed its stand that the existing work will be done by their own personnel, this Court is not inclined to grant the order of status quo as ordered by the Supreme Court in the passage extracted above. On the contrary, the demand made by the petitioner union for the reference of their dispute, merits acceptance and the State Government need not wait for the failure report under Section 12(4) of the Act from the Conciliation officer. It has become unnecessary having regard to the stand taken by the third and fourth respondents before this Court. https://hcservices.ecourts.gov.in/hcservices/ 12. Further, the grievance of the petitioner union can only be resolved by an appropriate adjudication by a competent Industrial Tribunal. Therefore, keeping in view of the object of the Industrial Disputes Act and the time consuming process in making the entire proceedings to be gone through by the Conciliation, this Court is inclined to give appropriate direction to the State Government to make a reference of the dispute to the Industrial Tribunal, Chennai within a period of four weeks. 13. The issue that was to be referred as per the dispute raised by the petitioner union is as follows: "Whether the contract between Management of North Chennai Thermal Power Station, Tamil Nadu Electricity Board and M/s Radha Engineering Works (P) Ltd., with regard to employment of 261 workmen in coal handling shown in the annexure is sham, nominal and bogus? If yes, whether the action of North Chennai Thermal Power Station, Tamil nadu Electricity Board in not regularising the services of the 261 workmen whose names are shown in the annexure, but terminating their services with effect from 27.12.2009 when their claim for regularisation was pending is legal and justified? To what relief the said workmen are entitled to?" The names of workmen covered by the dispute may also to be included in an annexure as per the names of 261 workmen furnished. 14. Therefore, this Court hereby directs the first respondent State Government to make reference as set out above under Section 10(1) of the Industrial Disputes Act to the Industrial Tribunal, Chennai within a period of four weeks, together with an annexure containing the names of workmen. 15. The writ petition is disposed of with the above direction. Consequently, M.P.Nos.1 and 2 of 2009 are closed. No costs. VJY Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary, Labour and Employment Department Fort St.George, Chennai 600 009. 2. Assistant Commissioner of Labour, (Conciliation) 2 Kuralagam 3rd Floor, Chennai 600 108. 3. North Madras Thermal Power Plant rep. By its Chief Engineer Tamil Nadu Electricity Board Athipet Chennai 600 120. + 1 cc to Mr. Balan Haridas, Advocate SR.4046 + 1 cc to M. Vaidyanathan, Advocate SR.4159 + 1 cc to Mr.P.K.Rajagopal, Special Government Pleader SR.4214 + 1 cc to Mr.B. Maheswari, Advocate SR.4345. W.P.NO.24349 OF 2009 AND M.P.NOS.1 AND 2 OF 2008 TRM(CO) EU 3.02.2010. https://hcservices.ecourts.gov.in/hcservices/