IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.07.2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No. 26422 of 2009 Central organization of Tamil Nadu Water Supply and Drainage Board Employees represented by its General Secretary, No.27, Masoodhi Street, Chepauk, Chennai- 600 005. ... Petitioner Vs 1.The Secretary to Government, Labour and Employment (A1) Department, Fort St. Goerge, Chennai- 600 009. 2.The Management of Tamil Nadu Water and Drainage Board, 33, Kamaraj Salai, Chepauk, Chennai- 600 005. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, call for the records relating to the impugned order dated 06.08.2009 passed by the first respondent in G.O.(D) No.461, Labour and Employment Department, quash the same and consequently, direct the first respondent to refer the dispute relating to payment of maximum bonus of 20% and exgratia of 5% for the year 2005-2006. For Petitioner : Mr.M.Muthupandian For Respondents : Mrs.Lita Srinivasan, Government Advocate for R1 Mrs.S.Sudharshanan Sundar for R2 ORDER The petitioner is a Trade Union registered under the Trade Union Act. It is having substantial following among the workmen employed by the second respondent. The petitioner raised a dispute relating to bonus payable for the accounting year 2005-2006. They demanded 20% Bonus and 5% Ex gratia. According to the petitioner Union, the other State Agencies viz., Tamil Nadu Electricity Board, Transport https://hcservices.ecourts.gov.in/hcservices/ Corporations, Tamil Nadu Civil Supplies Corporation, Aavin and Tamil Nadu Poombukar Shipping Corporation and TAMIN have given 20% bonus besides 5% ex gratia to their workmen. The petitioner took up the dispute before the Conciliation Officer. The conciliation ended in failure and the Conciliation Officer submitted Failure Report under Section 12(4) of the Industrial Disputes Act to the first respondent. Thereafter, the first respondent passed the impugned order in G.O.(D) No.461, Labour and Employment Department, dated 06.08.2009, declining to refer the dispute for adjudication by the Industrial Tribunal. The present writ petition has been filed to quash the aforesaid order and for consequential direction to the first respondent to refer the dispute for adjudication by the Industrial Tribunal. 2.Notice of motion was ordered. 3.Heard Mr.M.Muthupandian, learned counsel appearing for the petitioner, Mrs.Lita Srinivasan, learned Government Advocate appearing for the first respondent and Mrs.S.Sudharshanan Sundar , learned counsel for the second respondent. 4.The learned Government Advocate as well as the learned counsel for the second respondent have made their submissions based on instructions. 5.The learned counsel for the petitioner submits that the first respondent has exceeded its jurisdiction by deciding the dispute while exercising its power under Section 10 of the Industrial Disputes Act. According to the learned counsel for the petitioner, while exercising its administrative power under Section 10 of the Industrial Disputes Act, the first respondent could not adjudicate the matter and come to the conclusion that whatever bonus paid to the workmen is fair and no adjudication is required. 6.The learned counsel appearing for the petitioner also relies on a decision of this Court dated 07.08.2009 in W.P.Nos.20435 of 2003 and 37484 of 2007. 7.On the other hand, the learned counsel for the respondent seeks to sustain the impugned order. 8.I have considered the rival submissions made on either side. 9.It is well settled by a catena of decisions of this Court that while exercising its administrative power under Section 10 of the Industrial Disputes Act, the first respondent cannot adjudicate the Industrial Dispute. In this case, the first respondent stated that the ceiling was relaxed beyond Rs.3,500/- and 8.33% bonus and 1.67% ex gratia was paid and hence the matter need not be referred for adjudication. The demand of Union and the reason for declining the reference is extracted here under: https://hcservices.ecourts.gov.in/hcservices/ t.vz; nfh.vz;. nfhhpf;if tpguk; kWg;g[f;fhd fhuzk; 1 1 jkpH;ehL FoePh; tofhy; thhpa CHpah;fs; midtUf;Fk; 2005-2006Mk; Mz;ow;F Cjpa cr;rtuk;gpd;wp 20% nghd!; kw;Wk; fUizj; bjhifahf 5% tH';f ntz;Lk; vdt[k; 2005-2006Mk; fzf;fhz;ow;F muR nghf;Ftuj;J/ kpd;rhuk;/ Efh; bghUs; thzpgf;fHfk;/ Mtpd;/ g{k;g[fhh; fg;gy; fHfk;/ jkpH;ehL fdpk epWtdk; Mfpa bghJj; Jiw gzpahsh;fSf;F tH';FtJ nghy jkpH;ehL FoePh; tofhy; thhpa CHpah;fSf;F 20% nghd!; kw;Wk; fUizj; bjhif 5% nrh;j;J tH';f ntz;Lk; vd nfhhpa[s;sJ. eph;thfk; 2005-2006Mk; Mz;ow;fhd jzpf;if mwpf;if jhf;fy; bra;Js;sjhft[k; mjd;go tuitf; fhl;oYk; bryt[ mjpfkhf bra;ag;gl;L ,Ug;gjhft[k; fzf;fha;t[ jiytuhy; jhf;fy; bra;ag;gl;l jzpf;if mwpf;if mDg;gg;gl;L;s;sjhft[k; Vw;fdnt nghd!; cr;rtuk;g[fis jfh;j;jp +.3500/- nky; rk;gsk; bgWk; rp kw;Wk; o gphpt[ gzpahsh;fSf;F 8.33% nghd!; kw;Wk; 1.67% fUizj; bjhif tH';f cj;jputplg; gl;Ls;sjhft[k; rkur mYtyh; bjhptpj;J cs;shh;. vdnt , j;jhthit bjhHpyhsh; ePjpkd;wj; jPh;g;g[f;F tplj; njitapy;iy. 10.The first respondent has really adjudicated the matter and came to the conclusion that the payment of 8.33% Bonus and 1.67% ex gratia was justified and the petitioner is not entitled to seek for 20% bonus and 5% ex gratia. Furthermore, the petitioner also demanded that since the other agencies of the State granted 20% bonus and 5% ex gratia to their workmen, the second respondent should pay the same. All these issues have to be adjudicated by the Industrial Tribunal. The first respondent cannot go into the merits of the issue and decide one way or other. The Division Bench of this Court in M/s. Shaw Wallace & Co. Ltd vs. State of Tamil Nadu (1987) 1 LLJ 177 held that the reference is a rule, non reference is an exception. The reference of dispute for adjudication could be declined only if the claim is patently a frivolous one or stale. The Division Bench categorically held that the first respondent cannot adjudicate the matter while exercising its power under Section 10 of the Industrial Disputes Act. Following the aforesaid Division Bench Judgment, this Court in W.P.Nos.20435 of 2003 and 37484 of 2007, dated 07.08.2009 quashed the order of the first respondent declining to refer the industrial dispute for adjudication, when the first respondent sought to adjudicate the matter. 11.Applying the law laid down by the aforesaid Division Bench Judgement and also the Judgment of this Court dated 07.08.2009 in W.P.Nos.20435 of 2003 and 37484 of 2007, the order of the first respondent is quashed and the first respondent is directed to refer the industrial dispute to the Industrial Tribunal within a period of six weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, this writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps To 1.The Secretary to Government, Labour and Employment (A1) Department, Fort St. Goerge, Chennai- 600 009. 2.The Management of Tamil Nadu Water and Drainage Board, 33, Kamaraj Salai, Chepauk, Chennai- 600 005. 1 cc To Mr.M.Muthupandian, Advocate, SR.52948. 1 cc To Mr.Sudharshana Sundar, Advocate, SR.52547. W.P.No. 26422 of 2009 MSM(CO) RVL 12.08.2010 https://hcservices.ecourts.gov.in/hcservices/