s!^sw y^ HI©HCOURT OF CHHATTISGARH: BILASPUR A^ "p —s: u/ WritPetition (LlNo.3879of 2007 Ghanshyam Prasad Jaiswd, Vs. Union of India, through Desk Officer, Govt of India Ministryof Labour and others. Post for pronouncement ofjudgment aml order on 30-3-2009 Sd/- Satish K. Agnihotn Judge Petitioner Respondents HIGH COURT OF CHHATTISGARH: BILASPUR WritPetition (UNo. 3879 of 2007 Ghanshyam Prasad Jaiswal, s/o. Shri Hetram, Age about 37 years, Village Chapora, Tah - Ratanpur, Distt. Bilaspur (CG). Versus 1. Union of India, through Desk Officer, Govt. of India, Ministry of Labour, Rafi Marg, New Delhi. 2. Assistant General Manager, State Bank of India, Region -5, Barron Bazaar, Raipur (CG). 3. Branch Manager, State Bank of India, Kusmunda Branch, P.0. Kusmunda, Distt. Korba (CG). (Writ Petition underArticle 226/227 ofthe Constitution of India) SB: Hon'ble Mr. Satish K. Agnihotri, J. .Present: Mr. S.P. Kale, Advocate with Mr. Vinod Deshmukh, Advocate forthe petitioner. Mr. Ajay Barik, Advocate for the respondent No.1. Mr. Sanjay K. Agrawal, Advocate for the respondents No. 2 & 3. (Passed on this J o 'day of IVIarch 2009) Challenge in this petition is to the order dated 2-3-2007 (Annexure P/3), whereby the Government of India, Ministry of Labour has declined to refer the dispute raised by the petitioner for adjudication. 2) The brief facts, in nutshell, as projected by the petitioner are that the petitioner was appointed on the post of Labour and Canteen boy on 2-10-1994 in the State Bank of India, Kusumunda Branch, District Korba. He worked continuously from 2-10-1994 to September, 2005 at about 12 years. The petitioner after having completed 12 years of seii/ice, made an application to the respondent authorities for regularization. The petitioner moved an application before the Assistant Labour Commissioner (Central) forconciliation. V The Assistant Labour Commissioner (Central) submitted failure report to the Secretary, Government of India, Ministry of Labour on 10-5-2006 (Annexure P/2). On consideration of the facts, the Central Government declined to make a reference for adjudication to the Labour Court by order dated 2-3-2007 (Annexure P/3). Thus, this petition. 3) Mr. S.P. Kale, learned Advocate with Mr. Vinod Deshmukh, learned Advocate appearing for the petitioner would submit that the petitioner was engaged as labour by the State Bank of India, Kusumunda Branch, Dist. Korba, to work in Canteen run by the Local Implementation Committee. Thus, the disputed question arises for adjudication asto whether the petitioner is an employee of the Local Implementation Committee and the Bank or of the Canteen. The appropriate Government i.e., the Central Government without applying its mind to the dispute rejected the application for the following reasons: "The applicant was working as canteen boy in the canteen run by the Local Implementation Committee and the Bank management has no control for engage and disengage the workers in the canteen, hence, no dispute subsists." 4) Per contra, Mr. Sanjay K. Agrawal, learned counsel appearing for the respondents No.2 and 3 would submit that the petitioner was an employee of the canteen as it has been held by a catena of decisions in State Bank of India and others vs. State Bank of India Canteen Employees' Union (Bengal Circle andothers) , Canteen IVIazdoorSabha vs. IVIetallurgical and Engineering Consultants (India) Ltd. and others and Rashtriya Chemicals & Fertilizers Ltd. and another vs. General Employees' Association and others . The petitioner could not be treated as an employee of the respondent/ Bank. ' {(2000)58cc 531 ; 2{(2007)7SCC710} ' { (2007) 5 SCC 273 } ^" 5) I have heard learned counsel for the parties, perused the pteadings and documents appended thereto. 6) The question which has been settled by the above stated judgments and orders of the Supreme Court, an employee of the canteen is not an employee of the Bank or the establishment, but the question arises for consideration in this case is asto whether the petitioner is an employee of the canteen or of the Local Imptementation Committee and the Bank. This raises a dispute which cannot be decided by the appropriate Government as it requires proper adjudication for which materials including oral and other evidences have to be considered. It appears that the appropriate Government has not applied its mind that the dispute with regard to the fact of the employer cannot be adjudicated upon by the appropriate Government. The only forum available is the Labour Court. 7) In State Bank of India and others (supra), the question involved was whether the canteen workers are employees of the Bank. Having considered the facts of the said case, the Supreme Court obsen/ed that "there was no obligation to run canteen by the Bank and further that canteen run at various branches by the Local Implementation Committee as per the welfare scheme framed by SBI would not become employees of the Bank as the Bank is not having any statutory or contractual obligation or obligation arising under the ' award to run such canteen." 8) In Canteen Mazdoor Sabha (supra) again the Supreme Court has considered the facts involved therein asto who was the employer. In Rashtriya Chemicals & Fertilizers Ltd. and another (supra) the Supreme Court observed in para 8 & 9 as under: "8. It is now well settled that the High Courts will not straightaway direct the appropriate Government to refer the dispute. It is for the appropriate Government to apply its mind to relevant factors and satisfy itself as to the existence of a dispute before deciding to refer the dispute. We may refer to the following observations of this Court in Steel Authority of India Ltd. v. Union of India (Second SAIL) case, CLR p. 667,para 18) "For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of Judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as thecase may be. While doing so, it may be inappropriate for the same authority on the basisof the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of Section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to a Labour Court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute asto whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court. We would, however, hasten to add that this judgment shall not come in the way of the appropriate Government to apply its mind for the purpose of issuance of a notification under Section 10 ofthe 1970 Act." 9. The exception to the above is, when the court finds that the appropriate Government refuses (sic refusal) to make a reference of a dispute, is unjustified. In such circumstances, the court may direct the Government to make a reference (Sankari Cement Alai Thozhilalar Munnetra Sangam v. Govt. of T.N,, V. Veerarajan v. Govt. of T.N. and TELCO Convoy Driver's Mazdoor Sangh v. State of Bihar)." 9) In Sharad Kumarvs. Govt. of NCT of Delhi and others the Supreme Court observed in para 31 as under: "31. Testing the case in hand on the touchstone of the principles laid down in the decided cases, we have no hesitation to hold that the High Court was clearly in error { (2002) 4 SCC 490 in confirming the order of rejection of reference passed by the State Government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by' the appellant with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation ofthe post held by him, which is extraneous to the matters relevant for the purpose. From the appointment order dated 21-4-1983/22-4-1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of Section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or the Labour Court on the basis of the materials to be placed before it by the pari:ies. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable." < 10) In State Bank of India and others (supra), the dispute arose for consideration of the facts by the Labour Court. In Canteen IVIazdoor Sabha (supra) again the dispute arose from the Labour Court after the facts were decided. The issue asto under what consideration the matter may be referred to the Labour Court for adjudication was discussed in Rashtriya Chemicals & Fertilizers Ltd. and another (supra) and in Sharad Kumar (supra). 11) A common thread running into the above stated cases is if there is a dispute wherein materials, oral and documentary evidences are required, the dispute cannot be decided by the appropriate Government, but the matter may be referred to the Labour Court for adjudication. f .S 12) Applying the well settled principles of law to the facts of the case wherein this very issue as raised by the petitioner before the Central GovernmentGame up for consideration before the Supreme Court in State Bank of India and Others (supra), the Supreme Court after having considered all the awards and the case from all angles held as under: "39. We, therefore, hold that employees of the canteens which are run at various branches by the Local Implementation Committees as per the welfare scheme framed by SBI would not become employees of the Bank as the Bank is not having any statutory or contractual obligation or obligation arising underthe award to run such canteens....." Thus, the dispute raised in the petition on hand is no longer res integra and, assuch, the impugned order dated 2-3-2007 passed by the Central Government is just and proper. 13) For the reasons mentioned hereinabove, this petition is liable to be and isaccordinglydismissed.Costseasy. j i Satish K. Agnihotri Judge - Raju