CWP No. 8114 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8114 of 1993 Date of Decision: 19.07.2011 Man Singh & Ors. ...Petitioners Vs. State of Haryana & Ors. ...Respondents CORAM Hon'ble Mr. Justice A.N.Jindal, Present: Mr.M.S.Joshi, Advocate, for the petitioners. Ms.Anjum Ahmad, Addl.A.G., Haryana. Mr.Ravinder Kumar, Advocate, for Mr.Manu Bhandari, Advocate, for respondent No.3. -- A.N.Jindal, J . (Oral) The petitioners claiming themselves to be the employees of M/s Escorts India Limited (Motor Cycle and Scooter Division),19/6, Mathura Road, Faridabad, have challenged the order dated 13.11.1992 declining to make a reference, Annexure P.4 passed by the Joint Secretary to the Government of Haryana, Labour Department, Civil Secretariat, Haryana, Chandigarh (hereinafter CWP No. 8114 of 1993 2 referred to as respondent No.2), The petitioners have given details of their appointment with termination and representations made to respondent No.3, as under: Name of employee Appointed on by Escorts Ltd. Termination Representation made on Parshotam July, 1988 01/05/92 20.05.1992 Mani Ram 1986 01/05/92 20.05.1992 Lok Pal May, 1980 01/05/92 20.05.1992 Man Singh May, 1982 01/05/92 20.05.1992 Lachhman dass May, 1980 01/05/92 20.05.1992 Dalbir Singh May, 1979 01/05/92 20.05.1992 Rachhpal Singh May, 1990 01/05/92 20.05.1992 The petitioners have submitted that they being the employees of respondent No.3 had been registered with it i.e. E.S.I. Corporation and were issued Identity Cards. The employer's code No.12/5814/74 as mentioned on the Identity Cards is of respondent No.3. Respondent No.3 has also been deducting Provident Fund from their respective salaries and also depositing his share of contribution. However, respondent No.3 terminated their services illegally and arbitrarily on 1.5.1992 without notice or payment of retrenchment compensation which is in clear violation of the provisions of Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The petitioners raised an industrial dispute and served a notice under section 2-A of the Act on 20.5.1992 against illegal CWP No. 8114 of 1993 3 termination of their services. Demand notice is Annexure P.3. However, respondent No.2 illegally and arbitrarily refused to make reference under the Act, vide (Annexure P.4). It was further averred that in case of dispute between the employer and employees as per Section 2-A (c) of the Act, respondent No.2 was bound to make a reference and it was the Labour Court who was to decide any question into controversy which accrued between the parties. Reply to the petition has been filed by respondent No.3, wherein it was averred that the petition is not maintainable because the petitioners are not its employees as such no relationship of master and servant exists between them. Respondent No.3 has its own workmen to carry out its normal and regular activities. However, in certain exigencies some work is given by this company on contract for which a contractor is appointed duly registered under the Contract Labour Act, 1970, who gives jobs to be done on contract basis. Respondent No.3 had entered into an agreement on 9.9.1990 with respondent No.4 under whom he may be working. No salary was paid to the petitioners by respondent No.3. The contention of the claimants regarding ESI membership is of no consequence. It was done as an abundant caution to comply with the requirements in letter and spirit of the “ESI Act” and in order to ensure that the employees of the contractors were not denied their benefits. Contributions were paid by and on behalf of the contractors who was their employer. The claimants are not workmen as defined in Section 2(5) of the Act as such no reference could be made to the Labour CWP No. 8114 of 1993 4 Court. Some evidence has been led by the petitioners in order to prove that they are the employees of respondent No.3, yet it remains to be decided whether the Government could decide the question with regard to relationship of master and servant and refuse the reference. Both the parties have levelled allegations and counter allegations. The petitioners claim themselves to be the servants under respondent No.3, whereas respondent No.3 is denying the same. Therefore, in such a situation reference could not be declined that too by a non speaking order. Similar observations were made by this court in the case of Ishwar Singh Vs. The State of Haryana, 1992 (1) SCT 204: 1992 (1) Cur.LJ 241, wherein it was observed as under:- “4. After giving my thoughtful consideration to the submission of the parties, I am of the view that this petition deserves to succeed. From Annexure P-10 it is clear that the petitioner as well as the management had taken diametrically opposite stands with regard to the circumstances in which the services of the petitioner had been terminated. It was only the Labour Court which could, after going into the matter and examining the evidence adduced by the parties, record a finding as to which of two versions was the correct one. It has been observed by the Supreme Court in M.P. Irrigation Karamchari Sangh v. State of M.P., 1985 (2) S.C.C. 103 CWP No. 8114 of 1993 5 that in exceptional cases that the state Government may on a proper examination of the demand, come to the conclusion that the demands are either perverse or frivolous and do not warrant a reference but as a rule, adjudication of demands made by the workman should be left to the Labour Court to decide. It has also been observed in the aforesaid judgment that the government should be very slow to attempt an examination of the demands with a view to decline the reference and the courts would be vigilant whenever an attempt is made by the Government to usurp the powers which should be properly left to the Labour Court.” Again a Division Bench of this Court in the case of Manjit Singh Vs. state of Punjab, 1994 (2) S.C.T. 282 observed that when the facts set out show that a disputed question has arisen then the appropriate government cannot adjudicate upon the merits of the dispute between the workman and the management. The role to be played by the appropriate Government is to see whether a dispute exists between the parties. Not only this, in the case of Hindustan National Glass & Industries Ltd. thro' its Authorised Signatory S.K.Singh And Dy.Labour Commissioner, Garhwal Region, Dehradun and Anr., 2011-I LLJ 244, (Uttar)Division Bench of Uttrakhand High Court of which Hon'ble Justice J.S.Khehar, (Chief Justice of that High Court) CWP No. 8114 of 1993 6 was the member, in the similar circumstances of the case, approved the view that in case of controversy with regard to the relationship of workman and management, the government has no power to refuse the reference. After discussing many judgments their Lordships observed as under:- “5. We have minutely examined the consideration of the matter at the hands of the Deputy Labour Commissioner, to which our attention has been invited by the learned counsel for the appellant. The Deputy Labour Commissioner has not recorded any express finding to the effect that respondent No.2 was employed mainly in a managerial or administrative capacity, nor has any finding been recorded therein, that respondent No.2 was employed in a supervisory capacity. Merely because respondent No.2 had sanctioned leave in one case, or some other such trivial matter, cannot in our view constitute the basis of inferring the respondent No.2 was discharging duties in a supervisory capacity. In view of the above, we are satisfied that the learned single Judge was fully justified in directing the State Government to make a reference of the dispute raised by respondent No.2 to an appropriate Labour Court-cum-Industrial Tribunal.” In another petition bearing CWP No.594 of 1996 titled Punjab Anand Lamp Employees Union, Mohali V. M/s Punjab CWP No. 8114 of 1993 7 Anand Lamp Industry Ltd., Mohali and Anr., a Division Bench of this Court issued detailed guide-lines by answering various propositions. Relevant guide-lines are reproduced as under:- “6. The Government cannot refuse to make a reference merely because the employer pleads that the relations between the parties are strained. This is again an issue which has to be examined by the Labour Court/Industrial Tribunal while considering the question of relief to be granted to the workman in case the action of the employer is found to be illegal or unjustified. 7. The Government is duty bound to apply its mind to the demand made by the workman, the reply of the employer and the failure report and is under a statutory obligation to record reasons and communicate the same to the parties where it declines to make reference and if the Court finds that the reasons are extraneous or irrelevant, the decision of the Government will be liable to be nullified.” In the instant case, though the government has passed the order refusing reference yet the same appears to be clearly arbitrary, result of non-application of mind and non-speaking. Such order could not be passed by the Government and this question was required to be left with the Labour Court to decide as such the order Annexure P.4 is liable to be set aside. CWP No. 8114 of 1993 8 Resultantly, I allow the writ petition, set aside the impugned order dated 13.11.1992, Annexure P.4 and remit the case to the Government/Respondent No.3 to issue appropriate orders in the light of the aforesaid observations and to refer the dispute between the petitioners and respondent No.3 for adjudication to the competent court within a period of two months from today. Parties to bear their own costs. (A.N.Jindal) 19.07.2011 Judge rp