C.W.P. No.17024 of 2000 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17024 of 2000 Date of Decision:05.09.2009 Birla Corporation Ltd Auto Trim Division Employees Union (Regd.) .....Petitioner Versus State of Haryana and others ...Respondents Present: Mr. Ashwani Bakshi, Advocate for the petitioner. Mr. D.S. Nalwa, Addl. A.G., Haryana. Mr. Arvind Seth, Advocate for Mr. Girish Agnihotri, Sr. Advocate for respondent No.3. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J.(ORAL) 1. The writ petition challenges the refusal of the Government to refer the industrial dispute raised by the workmen against the management. The dispute referred to 24 items of demands of which the Labour-cum-Conciliation Officer recommended that there existed a dispute only for certain of the demands namely demand Nos.1, 7 and 8. The other demands were found to be not justified. The demands that were rejected and the grounds of rejection as found in the letter of recommendation of the Labour-cum-Conciliation Officer are tabulated below:- C.W.P. No.17024 of 2000 -2- Demand No. Nature of Demand Ground of Rejection 2 All workers working in the factory be given dearness allowance as increased by Haryana Government from time to time and this dearness allowance be paid with the increased dearness allowance of January, 1999. The workers are already being paid minimum wages fixed by the Haryana Government in which D.A is also included. 3 (i) The conveyance allowance be increased by Rs.400/- per month per worker. This conveyance allowance be given in addition to the bus facility. (ii) The limit of bus facility already provided to the workmen be extended by 60 kms because despite the existing facility some of the workmen are facing difficulty. (iii) The monthly deduction of Rs.150/- being made from the wages of workers be reduced to Rs.50/-. (iv) A 24 hours ambulance facility be provided for all the workmen working in the factory for emergent occasions. This demand of yours does not seem to be genuine because in no other establishment of the same nature the traveling facility is provided. The increase of 60 kilometer in the bus facility is also not justified as the establishment is not in a condition to bear this financial burden. 4 & 5 Annual increment of Rs.1000/- be given in the basic pay of all the workers. All the workers be paid monthly house rent allowance 30% of basic pay or be paid actual house rent amount. The establishment is not in a position to bear the financial burden, therefore, your demand is not justified. 6 All the workers be paid City Allowance at the rate of Rs.400/- p.m. in view of rising prices. This facility is not being provided in any other establishment, therefore, this demand of yours does not seem to be justified. 9 All the workers be given 5 kg Jaggery (Gur) per month and 500 gm milk per day. The nature of work in the establishment does not require milk to be given to the workers, therefore, this demand has no justification. 10 All the workers be given heat allowance of Rs.300/- per month. According to the management the temperature in the factory is not above normal, therefore, there is no justification of demanding heat allowance. C.W.P. No.17024 of 2000 -3- Demand No. Nature of Demand Ground of Rejection 11 All the workers be paid children education allowance @ Rs.50/- per child and this allowance be paid per month. This is the duty of the workers themselves that they should provide education to their children from their salary. Therefore, there is no justification of this demand of yours also. 12 All the workers be paid Rs.150/- per month as newspaper allowance. This demand of yours is not justified. 13 All the workers be paid shift allowance @ Rs.50/- per day and the workers working in the night shift be paid shift allowance @ Rs.75/- per night. This is the responsibility of the workers that they should come on duty, for which they are paid. There is no justification of giving them shift allowance separately. 14 All the workers be paid medical allowance at the rate of Rs.500/- per month and in case of long treatment of the workers and his family members, the company should bear the complete expenses of the treatment. Management is already giving Rs.1500/- to the workers as medical allowance. Therefore, there is no justification in the demand of yours. Still for the implemention of this demand, it is being written to the ESI. 15 All the workers be paid Leave Travel Allowance (LTA) @ Rs.3000/- per annum and the company should arrange tour programme of at least 500 km distance, the entire expenses of which should be borne by the company. The workers and his family be allowed to go on such tour. There is no justification of this demand, keeping in view the economic condition of the company. 16 All the workers be paid production allowance of Rs.2000/- per month. According to the management incentive scheme is there on 150 sets, therefore, there is no justification of the demand of production allowance. 17 All the workers be paid bonus @ 20% per annum. There is just the beginning of the factory and the Bonus Act is not applicable on the factory till the required period is completed. C.W.P. No.17024 of 2000 -4- Demand No. Nature of Demand Ground of Rejection 18 All the workers be allowed 10 casual leaves, 10 sick leaves and 25 earned leaves per year. The casual leaves and sick leaves be not declared exhausted at the end of year and these leaves be added with the leaves of following years. 30 earned leaves should remain in the account of company and the earned leaves remaining unavailed beyond 30 should be encashed in the month of January of each year. The management is already giving lease fixed by the government, therefore, this demand of your does not seem to be justified. 19 & 20 All the workers be given 6 hours personal gate pass for every month, and workers should be given liberty to mutually change the shifts. The Union be provided office accommodation in the factory premises for running the union activities and the company should provide a free vehicle to the office bearers of the union. The union office bearers be given free gate pass and leaves. In addition, the union office bearers be posted in the general shift. There is no justification of these demands of yours. 21 All the terminated workmen should be reinstated with full back wages and continuity of service. If services of any workman are terminated by the management, then you may serve a demand notice under Section 2(A) of the Industrial Disputes Act as per law. Therefore, this demand of yours is not justified. 22 All the workers should be given gifts worth Rs.2000/- per year on the occasion of Dewali festival and one kg. sweets. To give gifts and sweets is management's choice for which they cannot be forced. C.W.P. No.17024 of 2000 -5- Demand No. Nature of Demand Ground of Rejection 23 All the workers be given loan facility in accordance with the schedule given below:- (i) Interest free loan of Rs.20,000/- at the time of marriage of brother- sister/son-daughter/self. Such loan be recovered from wages by way of easy intalments. (ii) All the workers be given interest free loan of Rs.1 lac for plot/house construction and this loan be recovered in easly instalments. (iii) All the workers who want to purchase scooter etc. be given interest free loan of Rs.30,000/- and this loan be recovered in easy instalments so that the workers are not burdened with any financial problem. Because the economic condition of the establishment is not good. Therefore, there is no justification of this demand of yours. 24 In case of sudden death of any workman, his family be given the aid of Rs.1,00,000/- and one member of his family be given permanent job. Such job be given according to the qualification of the person concerned. There is no justification of this demand of yours because in case of death of any worker, claim can be made under the Workmen's Compensation Act. 2. Learned counsel appearing for the workmen states that the power of the Government making a reference is not quasi-judicial but adminstrative in character. All that the Government was required to see was whether there existed an industrial dispute. It cannot join issues on the lis itself. The learned counsel refers to a decision of the Hon'ble Supreme Court in Ram Avtar Sharma and others Vs. State of Haryana and others (1950-1988) RSJ Vol.1 698; Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others 1993(3) SCC 271 and Sharad Kumar Vs. Govt. of NCT of Delhi and C.W.P. No.17024 of 2000 -6- others AIR 2002 SC 1724. All the above decisions underscore the power of the Government as administrative and not a quasi judicial function. If it were to be assumed that the Government performed quasi-judicial function and a Tribunal came to a conclusion that there was no merit in the dispute, a conflict of jurisdiction might emerge. In Ram Avtar Sharma's case, the Hon'ble Supreme Court referred to the consequence of the Government deciding to see whether there existed a merit in the demand and pointed out to the untenable situation that might emerge of a Government decision raising a fresh scope for a controversy. The demands which have been made and which were rejected are broadly on the grounds that some of them constituted undue financial burden to the management, some found to be unjustified when the workmen in the same place or in the same town were not granted such allowances and some dealt with pure legal issues such as, demand No.2 that workmen were being paid minimum wages and therefore, the rise in prices were factored already and a prayer for dearness allowance was not justified. 3. Learned counsel appearing for the State, Sh. Nalwa while supporting the order of the Court in restricting the scope of reference only to Demand Nos.1, 7 and 8, would refer to a Full Bench Decision of this Hon'ble Court in Radhey Sham Vs. State of Haryana 1992(2) RSJ 26. The learned counsel would submit that the position of the Government is not a post office to mere by transmit whatever it received from a workmen to be tried before the Labour court. The Full Bench enumerated in compendium the discussion that it had done in extenso in the following words:- "(1) The appropriate Government can go into the C.W.P. No.17024 of 2000 -7- merits of the dispute prima facie for the purpose of finding out whether an industrial dispute exists or is apprehended and whether the Government should make a reference or not. (2) But in doing so, the appropriate Government cannot delve into the merits of the dispute and take upon itself the determination of the lis. (3) If the claim is patently frivolous and vexatious then the appropriate Government may refuse to make the reference. (4) In deciding whether to make a reference or not, the Government may take into consideration whether the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse disturbing industrial harmony understood in its larger sense. (5) While the appropriate Government can examine the patent frivolousness of the demands, it shall not itself adjudicate on the demands made by the workmen, which should be left to the Labour Court/Tribunal concerned. The Government should be very slow to attempt an examination of the demand with a view to decline the reference......" 4. Learned counsel for the State would submit that the appropriate Government could go into the merits of the dispute prima facie and that was how the matter has been dealt with. The reference in the Full Bench ruling of the power of the Government to go into the C.W.P. No.17024 of 2000 -8- merits of the claims prima facie must be understood in the context of an appraisal for finding whether there existed a dispute or not. That examination shall not be done per se for finding whether it is justified or not. The decision will come through an industrial adjudication by the Labour Court and not by the Government. In fact in sub-para 5 in the Full Bench ruling, this Hon'ble Court reasoned that the appropriate Government would examine the patent frivolousness of the demand but it shall not itself adjudicate on the demand made by the workman which shall be left to Labour Court/Tribunal concerned. The Government was also advised through the judgment to be very slow in its attempt in examination of the demand with a view to decline the reference. The normal rule shall be to refer, subject to limitation as to when there existed no dispute at all. Beyond that, the Government shall not have any power. The elaborate reasons given by the Conciliation Officer and affirmed by the Government exceed the jurisdiction, in my view, of the power which is vested in the Government under Section 10 of the Industrial Disputes Act. The order of reference of the Government is, under the circumstances, modified and the Government shall, therefore, reconsider the issue in the light of the observations and consider the demands for a reference as required under Section 10 of the Industrial Disputes Act. 5. The writ petition is allowed in the above terms. (K. KANNAN) JUDGE September 05, 2009 Pankaj*