IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.17605 of 2009 United Labour Federation, rep. by its President, No.149, Thambu Chetty Street, 4th Floor, Chennai-600 001. .. Petitioner Vs. 1.Government of Tamil Nadu, rep. by by its Secretary, Department of Labour and Employment, Fort St. George, Chennai-600 009. 2.The Management of DCM Hyundai Limited, No.2, Ground Floor, Sriram Nagar, Prakash Nagar Main Road, Thiruninravur-602 024. Thiruvallur District. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent i.e. the Government of Tamil Nadu to refer the issue of illegal retrenchment of the workmen of DCM Hyundai Limited on 28.2.2008 for adjudication along with the issue of their illegal transfer already referred for adjudication in I.D.No.350 of 2008 before the Principal Labour Court, Chennai. For Petitioner : Mr.V.Prakash, SC for Ms.Rama Priya Gopalakrishnan For Respondents : Mr.R.Neelakantan, GA for R1 Mr.Sanjay Mohan for M/s.S.Ramasubramanian & Associates for R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER The writ petitioner is a Trade Union with registration No.2657/CNI. The said trade union challenged the order of the first respondent, dated 28.2.2008 and after setting aside the same, sought for a direction to the first respondent to refer the dispute of illegal retrenchment of employees for adjudication by the Principal Labour Court, Chennai, wherein an another industrial dispute in I.D.No.350/2008 is pending. 2.Before the petitioner union, another union by name Thiruvallur Mavatta Podhu Thozhilalar Sangam, (affiliated to the CITU), raised an industrial dispute by its letter, dated 13.11.2007 in transferring 15 workers including three office bearers to their factory at Faridabad. Those workers were denied employment at Chennai Office. Even during the pendency of the dispute before that Union, 54 workers were transferred. This was also informed to the Conciliation Officer, who was the Deputy Commissioner of Labour-2, Chennai. 3.In the meanwhile, the workers joined the petitioner Union and they addressed a letter, dated 8.4.2008 to the Conciliation Officer, seeking permission to prosecute the dispute. Thereafter a statement, dated 30.5.2008 was filed before the Conciliation Officer. The Conciliation Officer sent his failure report, dated 30.6.2008 expressing his opinion that no conciliation was possible between the petitioner and the second respondent. When the first respondent did not pass any order on that report, the petitioner Union filed a writ petition being W.P.No.16442 of 2008 before this Court, seeking for a direction to refer the industrial dispute relating to the legality and unjustifiability of the transfer of workers listed in the schedule to the writ petition as well as their subsequent retrenchment. 4.This Court, by an order, dated 14.8.2008, directed the State Government to consider the issue for adjudication by exercise of their power under Section 10(1) of the Industrial Disputes Act. It was thereafter, the State Government by its order in G.O.(D) No.519, Labour and Employment, dated 8.12.2008 referred the dispute for adjudication by the Labour Court at Chennai. But, in the annexure to the said order, the reference was made only in respect of the transfer of 15 workers on 2.11.2007 and 40 workers on 17.11.2007. The said dispute was taken on file by the Principal Labour Court, Chennai as I.D.No.350 of 2008 and it is pending. 5.The grievance of the petitioner Union was that subsequent to the transfer orders, the same workers were illegally retrenched. It was also the subject matter of industrial dispute, for which the petitioner union had made a representation before the Conciliation Officer on 30.5.2008. Bur for the reasons best known to them, the Conciliation Officer had not referred to the demand relating to their retrenchment. https://hcservices.ecourts.gov.in/hcservices/ 6.However when the matter came up before this Court earlier, this court in its order, dated 14.8.2008 in paragraphs 2 and 4 had directed as follows: "2.Prayer in this writ petition is to direct the first respondent to forward the conciliation failure report to the second respondent with further direction to the Government to refer the industrial dispute relating to the legality and justifiability of the transfer of workers listed in the Schedule in the writ petition and also relating to the legality and justifiability of their retrenchment thereafter. ..... 4.In the light of the submission of the failure report, the second respondent is directed to consider the issue as to whether reference should be made under Section 10 of the Industrial Disputes Act, 1947, or not and pass orders within four weeks from the date of receipt of copy of this order." (Emphasis added) 7.When the matter is seized by the Conciliation Officer, and it did not result in any settlement, in the absence of any other reason, the matter should have been referred for adjudication. 8.On notice from this Court, the second respondent Management has filed a counter affidavit, dated 5.10.2009. In paragraph 26 of the counter affidavit, it was stated as follows: "26.As regards the allegations in para 10, the respondent submits that mere perusal of the copy of the failure report dt.13.06.08 submitted by the Conciliation Officer to the Government clearly reveals that the conciliation took place only with regard to the issue of transfer and the discussions took place regarding the transfer. As such the Conciliation Officer had correctly submitted his failure report with regard to the transfer of workmen. The Respondent submits that if there is any grievance of the Petitioner regarding the retrenchment of 48 workmen it is for the Petitioner to raise a dispute before the Conciliation Officer on the specific issue of retrenchment and on the basis of the https://hcservices.ecourts.gov.in/hcservices/ conciliation report it is for the Government to consider taking further action." 9.This Court is unable to agree with the submissions made by the second respondent. It is not as if the issue relating to the illegal retrenchment was never raised before the Conciliation Officer. The letter, dated 30.5.2008 sent by the petitioner Union clearly refers to the action of the management as an illegal retrenchment of workers. It is also found reflected in the order passed by this court dated 14.8.2008 as extracted above. Therefore, the action of the Government in not taking note of the demand relating to illegal retrenchment while ordering a reference cannot be permitted. When the industrial dispute raised by the workers and the failure report was also received by the State Government, they should refer the issue for adjudication and set out points for consideration by a Labour Court in terms of Section 10(4) of the I.D. Act. In the absence of doing so, this court can give a direction to the State Government to make an appropriate reference. 10.In the present case, despite the order of this court, the State Government had not passed any order for making reference of the issue relating to retrenchment for adjudication by the Labour Court. Since already the petitioner union had one round of litigation, this court is not inclined to direct the State Government to consider the issue all over again. 11.The Supreme Court vide its judgment in M.P.Irrigation Karamchari Sangh Vs. State of M.P. And another reported in 1985 (1) LLJ (SC) 519 has held that this court can give positive direction when there was failure to exercise power by the Government. In paragraphs 7 and 9, the Supreme Court has held as follows: "7.There may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render S.10 and S.12(5) of the Industrial Disputes Act nugatory. ..... 9.In the result, we set aside the Judgment of the High Court, allow this appeal and direct the State Government to refer all https://hcservices.ecourts.gov.in/hcservices/ the questions raised by the appellant to the appropriate Tribunal..." 12.While this court is not inclined to direct the Government to refer the dispute as a part of I.D.No.350 of 2008, the Government is hereby directed to refer the dispute relating to retrenchment of workmen for adjudication by the very same Principal Labour Court, Chennai within a period of four weeks from the date of receipt of copy of this order. This writ petition stands allowed. No costs. vvk Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1.The Secretary, Government of Tamil Nadu, Department of Labour and Employment, Fort St. George, Chennai-600 009. 2.The Management of DCM Hyundai Limited, No.2, Ground Floor, Sriram Nagar, Prakash Nagar Main Road, Thiruninravur-602 024. Thiruvallur District. + 1 cc to M/s. Ramasubramanian, Advocate SR.55785 + 1 cc to M/s. Ramapriya Gopala Krishnan, Advocate SR.57286 W.P.NO.17605 OF 2009 BV(CO) EU 3.11.2009. https://hcservices.ecourts.gov.in/hcservices/