1 os-wp-l-2701-10.doc pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 2701 OF 2010 Bharatiya Kamgar Sena through Union Secretary Mr. Babu Atmaram Kamtekar, Prafullaben Society, R.K. Vaidya Road, Dadar (West), Mumbai – 400 028. ...Petitioner Versus 1. Union of India, Ministry of Labour, To be served through the Secretary, Law Department, Aayakar Bhavan, New Marine Lines, Munbai 400 020. 2. The Head-HR, ICICI Bank Ltd. Corporate Office, ICICI Tower, Bandra Kurla Complex, Bandra, Mumbai – 400 051. 3. M/s. George Maintenance Services Pvt. Ltd., 512, 5th floor, Prospect Chambers, Opposite Thomas Cook, Fort, Mumbai – 400 001. ...Respondents Mr. Neel G. Helekar for petitioner. Mr. H.V. Mehta for respondent no.1. Mr. J.P. Cama, Senior Advocate with Mr. R.S. Pai i/by Sanjay Udeshi and Co. for respondent no.2. 2 os-wp-l-2701-10.doc CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE, JJ. August 18, 2011. P.C. 1. Heard Mr. Helekar, the learned counsel for the petitioner. 2. Rule. 3. Respondent nos.1 and 2 waive service. Respondent No.3 is a formal party. By consent of the parties, the petition has been heard finally and more so when respondent no.2 has filed affidavit-in-reply. 4. The petitioner is a Trade Union registered under the Trade Unions Act, 1926. Respondent No.2 is a bank and the petitioner claims to represent the employees working in the said bank. The petitioner seeks to challenge the order dated 14/9/2010 passed by the Desk Officer in the Ministry of Labour, Government of India, thereby refusing to refer the demand for adjudication under the Industrial Disputes Act, 1947. The 3 os-wp-l-2701-10.doc demand raised by the petitioner – Union was for permanency of Shri Babu Atmaram Kamtekar and 119 others. By the said order, the Labour Ministry refused to make the reference for adjudication for the following reasons:- “As there is no employer and employees relationship, hence the dispute is not found fit for reference for adjudication.” 5. It was submitted by the learned counsel for the petitioner that the issue of employer-employee relationship is required to be adjudicated before the Tribunal on a reference being made and it was not permissible for the Labour Ministry to adjudicate upon the same and reject the reference. Our attention has been invited to the following decisions of the Supreme Court:- (i) Telco Convoy Drivers Mazdoor Sangh and anr. vs. State of Bihar and ors. [(1989) 3 SCC 271]. (ii) Sarva Shramik Sangh vs. Indian Oil Corporation Ltd. And ors. [(2009) 11 SCC 609]. 4 os-wp-l-2701-10.doc 6. Mr. Cama, the learned Senior Counsel appearing for respondent no.2 – bank, on the other hand, submitted that a mandamus cannot be issued directing to make a reference on the demand raised by the Union and even otherwise, the Labour Ministry was justified in coming to the conclusion that the 120 workmen for whom the reference was sought to be made were, in fact, the employees of respondent no.3 – contractor and on termination of his contract with the respondent no.2 – bank, his employees could not be continued by the bank. Mr. Cama relied upon the decision in the case of The Govind Sugar Mills Ltd. and anr. vs. Hind Mazdoor Sabha and ors. [(1976) 1 SCC 60] and more particularly the following observations:- “We think what was meant to be conveyed by the sentence aforesaid was that the party would be entitled to move the High Court for interfering with the order of the Government and not necessarily for the issuance of a writ of mandamus to direct the Government to make a reference. The mandamus would be to reconsider the matter. It does not seem to be quite reasonable to take the view that after the 5 os-wp-l-2701-10.doc refusal of the Government to make a reference is quashed a writ of mandamus to make a reference must necessarily follow. The matter has still to be left for the exercise of the power by the Government on relevant considerations in the light of the judgment quashing the order of refusal.” 7. There is no dispute that the petitioner – Union had submitted a charter demand, claiming the status and benefits of permanency to Shri Babu Atmaram Kamtekar and other 119 workmen with consequential benefits and raised a dispute vide its letter dated 5/11/2008 against the respondent no.2- bank. It was stated that the 120 workmen were woking for more than 10 years with the respondent – bank and they were, only for the convenience of the bank, shown to be the contract labour engaged through different contractors in as much as every time the contract was renewed, but the workmen continued to work for the bank. In short, it was claimed that the contractor was only for the name’s sake and the supervision and control over these 120 workmen was that of the bank through its officers and the contractor was a facade. It was an artificial arrangement only to deprive the status of permanency and other consequential benefits to these workmen. The Conciliation Officer in his 6 os-wp-l-2701-10.doc failure report dated 7/12/2009 elaborately recorded the contentions of the Union. He noted, “During the conciliation proceeding held on various dates from 23/12/2008 and 19/8/2009 joint discussions were held in detail and guidelines and suggestions were given to both the parties to resolve the dispute amicably. During the conciliation proceedings held on 19/8/2009 the representative of the workmen present reiterated that the workmen mentioned in the list submitted by the MNKS who are the members of their body or association at present have been working in various branches of ICICI Bank at Bombay since more than eleven years. The contractor remained the same company though the agreement must have been renewed frequently as stated by the Management, no regular supervisor was there as they used to take instructions from the Bank to carry out the work. In view of the regular work performed by them and long service rendered by them, under the same contractor and 7 os-wp-l-2701-10.doc principal employer, they demanded that their services should be regularized by the Principal Employer.....” 8. It is well settled that the employer – employee relationship is a mixed question of facts and law, which needs to be decided by adjudication before the Industrial Tribunal/Labour Court on a reference being made and it is not permissible for the competent authority under the Industrial Disputes Act to adjudicate upon the same while passing an administrative order on the conciliation failure report. Making a reference is an administrative decision and the competent authority has no powers to decline to make a reference for the reasons which are required to be adjudicated by adducing evidence before the Tribunal/Court. We have no doubt in our mind that the Labour Ministry exceeded its powers in rejecting to make the reference for the reasons stated in the impugned order. The reason given has amounted to an adjudication of the employer – employee relationship, which power is not available with the referring authority. Hence, the reason for declining to make the reference is unsustainable. 9. In the case of Sarva Shramik Sangh (Supra), the Supreme 8 os-wp-l-2701-10.doc Court, after referring to a host of its earlier judgments stated in para 37 as under:- “37. Thus it can safely be concluded that a writ of mandamus would be issued to the appropriate Government to reconsider the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate Government examining the merits of the dispute and prejudging/adjudicating/determining the dispute; (iii) the refusal is mala fide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the Failure Report of the Conciliation Officer or is not supported by any reason.” In the instant case, the refusal is a result of appropriate Government examining the merits of the dispute and prejudging/adjudicating/determining the dispute and, therefore, the impugned order is required to be set aside. 9 os-wp-l-2701-10.doc 10. Hence, the petition succeeds and the impugned order dated 14/9/2010 is hereby quashed and set aside. The Referring Authority has no jurisdiction/powers to reject the reference for the reason that there is no employer-employee relationship and the same issue has to be decided by the Industrial Tribunal/Labour Court in the reference to be made on the charter of demands. The Ministry of Labour, Government of India is, therefore, directed to reconsider the Failure Report dated 7/12/2009 and pass a fresh order as per law as expeditiously as possible and preferably before 31st October, 2011. 11. Rule is made absolute accordingly, but without any order as to costs. (SMT. NISHITA MHATRE J.) (B. H. MARLAPALLE, J.)