SCA/5939/2001 1/72 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5939 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?YES 3 Whether their Lordships wish to see the fair copy of the judgment ?YES 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= RAVJIBHAI KHODABHAI DAVERA - Petitioner(s) Versus UNION OF INDIA & 3 - Respondent(s) ========================================================= Appearance : MR MURALI N DEVNANI for Petitioner(s) : 1, MR SAMIR J DAVE for Respondent(s) : 1 - 2. MR PURVISH J MALKAN for Respondent(s) : 1 - 2. RULE SERVED for Respondent(s) : 2 - 4. MR PS CHARI for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 28/02/2008 ORAL JUDGMENT 1. Heard learned advocate Mr. M.N. Devnani on SCA/5939/2001 2/72 JUDGMENT behalf of petitioner, learned advocate Mr. PJ Malkan appearing for respondent no. 1 and 2 and learned advocate Mr. PS Chari appearing for respondent no. 3 and 4. 2. In the present petition, petitioner has challenged the order passed by respondent no. 1 dated 30/1/2001, where the Government thought it fit not to refer industrial dispute for adjudication on the ground that workman was engaged against leave vacancies or due to temporary increase in work on casual basis. The workman failed to establish his case prima facie of continuous employment during the relevant period or to disprove the fact that he has self employed after obtaining loan of Rs. 95,000/- from the Bank and left casual work on the bank on his own. 3. Learned advocate Mr. Devnani submitted that on 11/8/1999, service of workman was terminated by the Bank without following any legal SCA/5939/2001 3/72 JUDGMENT procedure. Therefore, dispute was raised on 4/10/1999. Thereafter, a letter written to Assistant Commissioner of Labour, Central on 21/10/1999 filing a complaint before him u/s 2A of I. D. Act 1947. It is necessary to note that complaint filed by workman u/s 2A, which is at page 19 giving the details of service and also reason for termination and date of termination. 4. Thereafter, the respondent Bank has filed reply on 4/7/2000 raising the objection against complaint filed by workman. The rejoinder was filed by workman. In this proceedings, cause has been espoused of the workman by Saurashtra Kutch Majoor Sangh, Rajkot. Then, on 25/10/2000, conciliation has failed. Therefore, failure report submitted by Conciliation officer to respondent no. 1, Secretary, to the Government of India, Ministry of Labour. This failure report submitted u/s 12 subsection 4 of the I. D. Act 1947. After considering the failure report respondent no. 1 decided not to refer the dispute SCA/5939/2001 4/72 JUDGMENT for adjudication. 5. Learned advocate Mr. Devnani submitted that reason given by appropriate Government, it amounts to clear case of adjudication of the dispute on merits. He pointed out that this can not considered to be prima facie opinion of the appropriate Government. He also pointed out that prima facie opinion is merely given some details about the facts, but no determination is necessary and for that appropriate Government is not authorized or empower to decide merits between parties while making the decision u/s 12 subsection 5 of I. D. Act 1947. 6. He relied upon one decision of this Court in case of Mr. M. S. Pathan Vs. Union of India in SCA no. 4445/2003 dated 30/4/2003 and another decision in case of Kantilal Bhovabhai Butani Vs. Union of India & Ors reported in 2001 (1) GLR page 639. SCA/5939/2001 5/72 JUDGMENT 7. Learned advocate Mr. Chari appearing for respondent Bank submitted that detailed affidavit is filed by respondent Bank, which is at page 37. 8. Learned advocate Mr. Chari submitted that appropriate Government has rightly examined the matter within his purview. For that, appropriate Government is entitled to take decision that dispute was not fit for adjudication. He relied upon the decision of Apex Court in case of the Secretary, Indian Tea Association Vs. Ajit Kumar Barat reported in 2001 LLJ page 811. 9. Learned advocate Mr. Chari submitted that after relying upon aforesaid decision of Apex Court that this being administrative order and not judicial order, the limited jurisdiction of this Court does not sit in Appeal and is not entitled to consider the propriety or satisfactory characters of the reason. 10. In the affidavit in reply, the merits SCA/5939/2001 6/72 JUDGMENT have been discussed as if that Bank wants to justify their action of termination. 11. On behalf of respondent no. 1, no affidavit in reply is field, but learned advocate Mr. Malkan relied upon one decision of this Court in SCA no. 7155/2002 in case of Mukeshgiri Himatgiri Goswami Vs. Sub Post Master I. E. Post Office, dated 19/10/2002, where he submitted that this Court has decided after considering various decision including the Secretary, Indian Tea Association Vs. Other reported in 2000 (1) SCALE page 515. 12. Ultimately, this Court has observed after considering various decision on this issue, relevant para 5 and 6 are quoted as under: “5. In the present case the petitioner has filed a complaint before the Assistant Labour Commissioner (Central) on 5.7.2002. In the said application except averments to the effect that, "the petitioner was employed as a "daily wager outsider" in 1989 SCA/5939/2001 7/72 JUDGMENT along with two other employees by opponent no.1 at Odhav; that he had discharged his services as a daily wager continuously from the appointment date (in fact in the entire complaint the date of appointment is nowhere mentioned); that he completed more than 240 days continuously in each year; that his presence was marked in the Muster Roll;and that his last drawn salary was Rs.2000/-, P.M., the petitioner has not given any other details not only that he has not produced even an iota of evidence. 6. What is more important is that after this complaint when the Ministry of Labour, Govt. of India declined to make a reference on the ground that, "It is reported that the workman has not worked for 240 days in any year", the petitioner ought to have come forward with necessary material in support of his averments to satisfy the conscience of the Court, on which if the Court was satisfied that there is material to hold that there existed a "dispute" the Court could have remanded the matter to the Government to consider the case of the petitioner afresh and satisfy itself that there exists an industrial dispute or apprehended industrial dispute. The petitioner has not chosen to do so. What the petitioner has done is, "para 1" of the complaint is produced as "para 3" of the petition. No other detail/s worth name is placed on record in the petition. In view of that this Court is SCA/5939/2001 8/72 JUDGMENT of the opinion that the order passed by the Ministry of Labour, is an administrative order and it is neither a judicial nor a quasi judicial one. Therefore, the Court is not required to examine the order declining reference to see as to whether there was any material before the Govt. to support its conclusion as held by the Honourable the Apex Court in the matter of The Secretary, Indian Tea Association (supra).” 13. I have considered the submissions made by all the learned advocates appearing for respective parties. 14. The first thing is to be considered whether while filing complaint u/s 2A, challenging termination order by workman whether such detailed procedure of conciliation and failure report and then decision is necessary or not. This question is raised by this Court, the reason behind it that Section 10 subsection 1, give power to appropriate Government which delegated to Assistant Commissioner of Labour in case when industrial dispute exists or apprehended, then Assistant Commissioner of SCA/5939/2001 9/72 JUDGMENT Labour have power to refer such dispute to Labour Court/Industrial Tribunal for adjudication. 15. In this case, complaint was filed by the workman u/s.2A, where any employer discharge, dismissal, retrenchment or otherwise, termination of service of individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute. Notwithstanding that no other workman nor any Union of workman is party to the dispute. 16. The section 10(1), where, the appropriate Government is of the opinion that any dispute exists or is apprehended it may at any time by order in writing to refer the dispute to Labour Court or Industrial Tribunal for adjudication. Therefore, Section 10 subsection 1, suggest merely opinion not suggest prima facie opinion, which makes difference between two things. SCA/5939/2001 10/72 JUDGMENT 17. Now, considering the definition of Industrial Dispute u/s.2(k) means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any persons. Therefore, if complaint u/s. 2A is filed by workman under the provision of I.D. Act, then, appropriate Government has to consider whether such complaint is satisfied requirement of Industrial Dispute or not, and if appropriate Government is having opinion that industrial dispute exists or is apprehended, then he shall have to refer for adjudication to Labour Court/Industrial Tribunal subject to that employer covered by definition of “Industry”. So, whatever opinions are necessary for complaint filed by workman, who satisfied requirement of Section 2(s) in respect to industrial dispute must have to be satisfied requirement of Section SCA/5939/2001 11/72 JUDGMENT 2(k) and against whom dispute is raised, he must have to be satisfied that it is covered by definition of Industry under Section 2(j). 18. Therefore, appropriate Government should not have to go into the detailed procedure after conciliation proceeding is come to an end to submit failure report u/s.12(4) and thereafter, appropriate Government has to formed the prima facie opinion or to satisfy whether dispute can be referred for adjudication or not. The definition of employer is given u/s 2(g). 19. In this case, what happened that appropriate Government has followed procedure u/s.12, which is not necessary in accordance with law. The section 12, duties of Conciliation Officer, where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice u/s.22 has been given, shall, hold conciliation proceedings in the SCA/5939/2001 12/72 JUDGMENT prescribed manner. So, subsection 1 of Section 12 suggest that whether any industrial dispute exists or is apprehended, where the dispute relates to public utility service and notice u/s 22 has been given, otherwise to power u/s 12 should not have to be exercised by appropriate Government including Conciliation Officer. Under Section 12, the separate detail procedure prescribed, there is a purpose behind it that industrial dispute exists or apprehended in respect to public utility service and strike notice u/s 22 is given by Union, then, only detailed procedure is to be followed by Conciliation Officer. The Section 12 suggests that Union shall have to espouse the cause of dispute. The individual employee has not to give strike notice u/s 22 in respect to public utility service. 20. Therefore, Section 12(5), the appropriate Government after receiving the failure report u/s 12 subsection 4 is satisfied that there is case SCA/5939/2001 13/72 JUDGMENT for reference to a Board/Labour Court/Tribunal or national Tribunal, it may make such reference. Where appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore. 21. There is a one order of appropriate Government u/s 12(5) and there is one order of appropriate Government u/s 10(1), both are having separate details and independent procedure, is to be followed by appropriate Government when such dispute raised by Union and workman. 22. In this case, after filing complaint by workman, which is at page 18 and 19 dated 21/10/1999, it is not the industrial dispute raised by workman relating to public utility service given strike notice u/s 22, but it was the dispute by way of filing complaint under section 2A raised by workman in respect to his termination. Even though, the procedure was followed by appropriate Government u/s 12 of I. SCA/5939/2001 14/72 JUDGMENT D. Act 1947, which is not appropriate procedure is to be followed by appropriate Government because it is not the dispute raised by Union in respect to public utility service give strike notice u/s 22 of the I. D. Act 1947. 23. Therefore, entire procedure, which has been followed by appropriate Government after receiving complaint from workman sending failure report u/s 12(4) by Conciliation Officer to the Secretary, Government of India, Ministry of Labour dated 25/10/2000 and thereafter, appropriate Government has decided that prima facie, this Ministry does not consider this dispute fit for adjudication. 24. Under section 10(1), the appropriate Government has no power to consider the case for prime facie opinion or there is no necessity for appropriate Government to arrive satisfaction. 25. Therefore, according to my opinion, the SCA/5939/2001 15/72 JUDGMENT order passed by appropriate Government dated 30/1/2001 rejecting to refer the industrial dispute for adjudication while exercising power u/s 12(5) of the I. D. Act 1947 is without jurisdiction, but appropriate Government has to consider the complaint u/s 2A while exercising the power u/s 10 subsection 1 of I. D. Act 1947. 26. This is the basic difference not properly followed procedure by appropriate Government being Central Government. Since many years the appropriate Central Government is understood that any kind of industrial dispute whether it cover termination, discharge or dismissal or not even though they should have to follow the procedure as required u/s 12 of I. D. Act 1947. That concept and opinion is wrong amounts to misconception of law by appropriate Government being Central Government. 27. Therefore, according to my opinion, the order passed by appropriate Government dated SCA/5939/2001 16/72 JUDGMENT 30/1/2001 is without jurisdiction required to be set aside now only on the ground that different procedure has been followed by appropriate Government being Central Government. 28. Now, second question is that though it is not necessary to deal with but also dealt with it, because it has been raised before this Court. Learned advocate Mr. Malkan in SCA No.7155/2002, dated 19/10/2002 has relied upon the decision of Apex Court wherein, the Apex Court has considered the case of Secretary Indian Tea Association v. Ajit Kumar Barat and Others reported in AIR 2000 SC 915. 29. Therefore, question is that whether appropriate Government can decide the merits/dispute while arriving prima facie opinion or not and what is the meaning of prima facie opinion and what is the meaning of satisfaction. These are not discussed in aforesaid decision. SCA/5939/2001 17/72 JUDGMENT 30. Section 12(5), not suggests the prima facie opinion, but section suggest satisfaction. Therefore, in light of this, the reason, which has been given by appropriate Government in facts of present case can be considered to be merely opinion or prima facie observations or satisfaction of the appropriate Government. The appropriate Government has used to give reason on prima facie as it has been used in Apex Court decision as referred above case in the Secretary, Indian Tea Association (supra). 31. The Industrial dispute raised by workman or Union if appropriate Government is having power in light of the satisfaction to decide the dispute, then, there is no need to constitute Labour Court or Industrial Tribunal under the Provisions of I. D. Act 1947. The power to adjudicate the dispute is within the jurisdiction of Labour Court/Industrial Tribunal. A moment, the appropriate Government comes to conclusion that workman has failed to establish his case of SCA/5939/2001 18/72 JUDGMENT continuous employment during the relevant period or to disprove the fact that he has self employed, these are the clear finding of fact to have decision on merits as if that appropriate Government has adjudicated the dispute like Labour Court. It is not the prima facie opinion, it is not remained up to prima facie opinion, but appropriate Government has given further extend his jurisdiction to decide the dispute being adjudication, which amounts against the principal of natural justice because while passing such kind of order declined to refer such dispute the right of workman or Union is come to end to have further machinery under the provisions of I. D. Act 1947. 32. Therefore, under statutory provisions, the legislation by his wisdom not given power to appropriate Government to adjudicate the dispute. Merely, appropriate Government has power to seen whether industrial dispute is exists or not if there is a dispute between employer and SCA/5939/2001 19/72 JUDGMENT employee, it covers the difference of opinion, relating to employment/non employment or conditions of service is enough to refer the dispute for adjudication. No further elaborate inquiry or determination of dispute is necessary. 33. Therefore, the decision which is under challenged at page 13 and 14 is quoted as under: “It is reported that the disputant was engaged against leave vacancies or due to temporary increase in work on casual basis. The disputant failed to establish his case, prima facie, of continuous employment during the relevant period or to disprove the fact that he is self employed after obtaining loan of Rs.95,000/- from the bank and left the casual work of the bank on his own.” 34. According to my opinion, it is not the prima facie opinion, but it is the decision of appropriate Government on merits, for which appropriate Government has no jurisdiction to enter into the dispute or merits while exercising the power u/s 10(1) or u/s 12(5) of I.D. Act SCA/5939/2001 20/72 JUDGMENT 1947. Therefore, on second ground also the reason can not considered to be prima facie opinion or it is not remained up to suggestion of prima facie but it is gone beyond it up to determination of dispute. 35. Therefore, the decision, which has been relied by learned advocate Mr. Malkan is not applicable to the fact of this case, because there is vast different of prima facie opinion to the satisfaction of appropriate Government, which have some limit to observe the facts as it is not gone beyond it to decide the merits of the matter. 36. Learned advocate Mr. Malkan appearing for respondent No.1 and 2 submitted that recently the decision of this Court in SCA No.7155/2002 dated 19/10/2002, where this Court has considered, in detail, the decision of Apex Court in case of the Nedungadi Bank Ltd., Vs. K.P. Madhavankutty and others reported in 2000 (1) SLR page 636 and (ii) SCA/5939/2001 21/72 JUDGMENT The Secretary, Indian Tea Association Vs. Ajit Kumar Barat & Other reported in 2000 (1) SCALE 515. According to his submissions that appropriate Government can consider the industrial dispute raised by workmen on having prima facie opinion whether dispute is exists or apprehended or not. According to his submissions, the appropriate Government has rightly refused to refer the dispute for adjudication. 37. Learned advocate Mr. Chari appearing for respondent No.3 and 4 also supported the submissions made by learned advocate Mr. Malkan and also relied upon the affidavit in reply filed by respondent Bank. Both the learned advocates supported the order of appropriate Government and submitted that petition may be dismissed. 38. I have considered their submissions and I have also considered the decision given by this Court (Coram : Honourable Mr. Justice Ravi R. Tripathi) in SCA no. 7155/2002 dated 19/10/2002. SCA/5939/2001 22/72 JUDGMENT Heavy reliance is placed by both the learned advocates on Apex Court decision in case of the Secretary, Indian Tea Association Vs. Ajit Kumar Barat reported in AIR 2000 SC 915, where first time Apex Court has considered that appropriate Government can consider the dispute on prima facie whether dispute is an industrial dispute or not or whether workmen is workmen or not within the meaning of Section 2(s) of I. D. Act 1947. I have gone through the aforesaid decision, where Apex Court has come to conclusion that whether dispute raised by workman is workman or not. 39. According to Apex Court decision, the appropriate Government has to form the opinion whether the employee is workman or not and thereafter, has to consider whether an industrial dispute exists or is apprehended or not. Relevant para 11 is quoted as under: “11. From the order of the State Government we find that while deciding the SCA/5939/2001 23/72 JUDGMENT question whether respondent NO.1 as a workman, it took into consideration the salary and allowances of respondent No.1 drawn at the relevant time and also the nature of work. Respondent No.1 who has appeared in person did not dispute the salary and allowances etc., as indicated in the order of the Government but urged that his responsibilities were neither supervisory nor managerial in nature.” 40. The bare perusal of para 11 as referred above in respect to salary and allowances of respondent no. 1 workman drawn at the relevant time and also nature of work. The respondent no. 1, who is appeared in presence of officer did not dispute the salary and allowances as indicated in the order of Government, but dispute is responsibility where neither supervising nor managerial in nature. The para 12 is also equally relevant which is quoted as under: SCA/5939/2001 24/72 JUDGMENT “12. Mr. Gupta, learned senior counsel appearing for the appellant has drawn out attention to the circular dated 30th March; 1994 issued by the appellant-association. This circular indicates duties of respondent No. 1 who was functioning as a Joint Secretary at the relevant time and we find his duties were to deal with all legal matters and Court proceedings, labour and land laws and publications (Labour legislations Labour welfare). We also find from the records that respondent No. 1 had power to sanction expenses incurred in litigation by the appellant. On the above materials on record the State Government rightly formed the opinion that respondent No. 1 was not a workman.” 41. In the aforesaid para 12, where one circular dated 30/3/1994 issued by the appellate association which circular indicates the duties of workman who was functioning as Joint Secretary at the relevant time and according to that SCA/5939/2001 25/72 JUDGMENT workman has to deal with all legal matters and Court proceedings Labour, and Land Laws, communication, Labour Legislation. From the aforesaid record, workman had power to sanction expenses incurred in litigation by Appellate association. So, on this material, it has not disputed by workman before appropriate Government. Therefore, appropriate Government has considered undisputed fact while forming opinion that respondent no. 1 is not workman. 42. Therefore, this decision of Apex Court merely based on facts and not laid down any ratio for forming an opinion in each and every industrial dispute in respect to merits of the matter. The appropriate Government has only to see whether industrial dispute exists or is apprehended or not, but undisputed fact between parties may form the opinion that dispute raised by person who is not covered by definition of workman u/s 2(s). Therefore, this decision is not applicable to the fact of this case, because SCA/5939/2001 26/72 JUDGMENT in this case, reasoning given by appropriate Government on prima facie based that workman was engaged against leave vacancies or due to temporary increase in work on casual based and workman has failed to establish his case prima facie of continuous employment during the relevant period or to disprove the fact that he is self employed after obtaining loan of Rs. 95,000/- from the Bank and left the causal work of the Bank on his own. 43. So, in light of comparing the facts of this case with the Secretary of Indian Tea Association Vs. Ajit Kumar Barat,