Case: National Organic Chemical Industries Limited Vs. State of Maharashtra &amp; Others

law in this regard at great length. At the cost of repetition we may notice that these are unquestionable propositions of law. It is only their application to the facts of a given case that would resolve the controversy. The Government has formed an opinion and has made a reference satisfying itself that there is an industrial dispute in existence between the parties. Of course formation of such an opinion can be examined by the court under Article 226 of the Constitution but it certainly falls within the very limited ambit. The court cannot sit as a court of appeal or appellate authority to examine excess of jurisdiction of the appropriate Government. Unless and until the opinion is apparently without jurisdiction, in excess of jurisdiction or is based on no material as also inter alia do not satisfy the ingredients of section 10 of the Act, the court would be very reluctant to interfere in such a reference. The Legislature in its wisdom has provided special forum for settlement of an industrial dispute which is expected to be expedient and any attempt to throttle such a proceedings at the threshold has to be examined with great caution. On the one hand the petitioner company itself questioned the legality of the orders passed by the appropriate authority/forums on the complaints of the workmen in writ petitions and certain observations have come in those orders/judgments that the respondent-workmen were part and parcel of the frame work of the workmen of the petitioner company. Even if they were employed by the contractor as alleged by the company, still the labour court would have to examine the contentions of the workmen that the contract is sham and a camouflage to frustrate the legitimate claim of the workmen. The Government was obviously not competent to go into these niceties of law and evidence and then write a judgment. Such an approach would be an apparent contradiction to the concept of formation of an opinion, which is to be based on prima facie material. From the history of this case, right from the talks from the year 2002, when the company took a decision to declare closure under section 25(O) of the Act and thereafter the parties have been in continuous litigation before one authority or the other forum or court, we are really unable to appreciate the contention of the petitioner that there exists no prima facie case for reference to the industrial court. The parties are neither strangers to each other nor there is any conclusive findings recorded which has attained finality between the parties, answering the query whether there exists or not, relationship of employer-employee between the parties. This question itself has to be adjudicated upon though there is more than prima facie material before the appropriate Government to form an opinion for making a reference within the provisions of section 10 of the Act.48. Equally ill founded is the reliance placed by the learned counsel for the petitioner upon a judgment in the case of Nedungadi Bank Ltd. vs. K.P. Madhavankutty and ors, 2000 (l) LLJ 561 and Reserve Bank of India vs. Gopinath Sharma and anr, 2006 (6) SCC 221 to press the plea of delay and laches. In the present case if there is any delay it is on the part of the petitioner company. The workmen sincerely facing the prolonged litigation right from the year 2003 and some of the orders were passed in their favour while such orders were set aside by the High Court. The order of reference was made on 20th July 2006. The petitioner company in fact accepted the said order and participated in the proceedings before the labour court. They filed their reply to the statement of claim of the workmen, of course taking various objections. The parties have filed documents and now the reference is listed for recording evidence before that court. The petitioner company itself has acquiesced in the proceedings and has taken considerable time to file the present petition, which itself was instituted on 27th February 2007. There is no reasonable or proper explanation as to why the company has filed the present petition after such delay, particularly when the contention is that the action of the Government was in excess of jurisdiction vested in it under the provisions of section 10 of the Act.49. In the order passed in Complaint Nos 750 of 1997 and 622 of 1998 a definite direction was given to the petitioner company to regularize the services of the respondent-workmen at its head office and also pay them difference of wages besides restraining them from passing transfer orders and termination orders in case of the respondent-workmen. This entire proceedings would constitute more than sufficient material for expressing prima facie opinion in relation to the existence of an industrial dispute and for its appropriate reference to the court of competent jurisdiction. The record of the present petition clearly shows that there was persistent dispute between the workmen and the employer. The question in regard to the transaction being sham or otherwise has also been raised. If this court were to examine, all these questions of fact, which require proof by documentary or oral evidence, in our opinion, the court would exceed its jurisdiction under Article 226 of the Constitution of India and would practically answer the references, which have been made to the labour court in accordance with the provisions of the special statute.50. We may notice that in the case of Subhash Chand (supra), the court in fact had observed that the appropriate Government could not require the parties to produce documentary or oral evidence to satisfy the ingredients of section 10. The Government has to form an opinion, prima facie, in regard to the contents and essentials indicated in that judgment. Finding that prima facie there was material before the appropriate Government to consider the case, the Government was directed to consider the case of the workmen and make a reference in accordance with law.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]39. In support of its contention that there existed no industrial dispute at the time of reference, the petitioner referred to the receipt dated 15th December 1998 executed in favour of M/s Sadanand Caterers allegedly by the workmen stating that they had received a sum of Rs.2910/being retrenchment compensation and notice pay.Firstly, this receipt does not say that it is in full and final settlement of all claims of the workmen. Secondly, the order passed by the appropriate authority on the complaints of the workmen, it was directed that the compensation be returned by the workmen to the employer and it had also accepted the plea that the contractors agreement with the petitioner company deserves to be looked into. It is interesting to note that the Conciliation Officer in the proceedings recorded by him on 14th December 2005 had noticed that the management had taken up a plea that the workmen were the employees of the contractor and they cannot claim reinstatement in the company. He specifically noted that "the workmen accordingly have imp leaded the contractor as a party to this proceedings and due notice was sent to the contractor regarding this proceedings but nobody on behalf of the contractor appeared before the undersigned. The demand of the workmen for reinstatement with continuity of service and all back wages was admitted in conciliation on 10.8.2005 and the demand notices were duly served on the concerned parties. Since the management has denied therelationship between them and the workmen chances of amicably settling the dispute were remote and therefore the conciliation proceedings were concluded in failure and failure was recorded on 1.9.2005.40. The above pleadings clearly show that there existed a substantial dispute between the parties which prima facie satisfying the requirements of section 10 read with section 2(k) of the Act and the said dispute was incapable of being finally decided, without proper legal adjudicationin common parlance, the expression dispute connotes a controversy, a quarrel, even a disagreement between the management and the employee or any dispute which is capable of giving rise to an industrial action within the scope of Section 2 (k) of the Act. It can hardly be contended that the dispute involved in the present petition would not be covered under this definition. The parties have been litigating before different forums either in relation to determination, closure, entitlement of wages and/or even reinstatement. All these matters were seriously contested by the parties to the lis including thefacts of the present case clearly reflect that there was not only mere apprehended dispute but there existed an actual dispute which has been the bone of contention between the parties in different proceedings and over a prolonged period of time the workmen had been asserting their right of absorption as well as wrongful termination and that there was sham and camouflage transaction between the company and the contractor being intended to frustrate their claim. This of course was denied by the petitioner company. According to them the company had closed its unit with leave and paid retrenchment compensation to the workmen and as such no dispute existed. This was the controversial bone of the contention between the parties and in view of the fact that failure report was submitted by the Conciliation Officer on 14th December 2005, adjudication by the proper forum waspetitioner company itself questioned the legality of the orders passed by the appropriate authority/forums on the complaints of the workmen in writ petitions and certain observations have come in those orders/judgments that thewere part and parcel of the frame work of the workmen of the petitioner company. Even if they were employed by the contractor as alleged by the company, still the labour court would have to examine the contentions of the workmen that the contract is sham and a camouflage to frustrate the legitimate claim of the workmen. The Government was obviously not competent to go into these niceties of law and evidence and then write a judgment. Such an approach would be an apparent contradiction to the concept of formation of an opinion, which is to be based on prima facie material. From the history of this case, right from the talks from the year 2002, when the company took a decision to declare closure under section 25(O) of the Act and thereafter the parties have been in continuous litigation before one authority or the other forum or court, we are really unable to appreciate the contention of the petitioner that there exists no prima facie case for reference to the industrial court. The parties are neither strangers to each other nor there is any conclusive findings recorded which has attained finality between the parties, answering the query whether there exists or not, relationship ofbetween the parties. This question itself has to be adjudicated upon though there is more than prima facie material before the appropriate Government to form an opinion for making a reference within the provisions of section 10 of thethe present case if there is any delay it is on the part of the petitioner company. The workmen sincerely facing the prolonged litigation right from the year 2003 and some of the orders were passed in their favour while such orders were set aside by the High Court. The order of reference was made on 20th July 2006. The petitioner company in fact accepted the said order and participated in the proceedings before the labour court. They filed their reply to the statement of claim of the workmen, of course taking various objections. The parties have filed documents and now the reference is listed for recording evidence before that court. The petitioner company itself has acquiesced in the proceedings and has taken considerable time to file the present petition, which itself was instituted on 27th February 2007. There is no reasonable or proper explanation as to why the company has filed the present petition after such delay, particularly when the contention is that the action of the Government was in excess of jurisdiction vested in it under the provisions of section 10 of the Act.49. In the order passed in Complaint Nos 750 of 1997 and 622 of 1998 a definite direction was given to the petitioner company to regularize the services of theat its head office and also pay them difference of wages besides restraining them from passing transfer orders and termination orders in case of theThis entire proceedings would constitute more than sufficient material for expressing prima facie opinion in relation to the existence of an industrial dispute and for its appropriate reference to the court of competent jurisdiction. The record of the present petition clearly shows that there was persistent dispute between the workmen and the employer. The question in regard to the transaction being sham or otherwise has also been raised. If this court were to examine, all these questions of fact, which require proof by documentary or oral evidence, in our opinion, the court would exceed its jurisdiction under Article 226 of the Constitution of India and would practically answer the references, which have been made to the labour court in accordance with the provisions of the special statute.50. We may notice that in the case of Subhash Chand (supra), the court in fact had observed that the appropriate Government could not require the parties to produce documentary or oral evidence to satisfy the ingredients of section 10. The Government has to form an opinion, prima facie, in regard to the contents and essentials indicated in that judgment. Finding that prima facie there was material before the appropriate Government to consider the case, the Government was directed to consider the case of the workmen and make a reference in accordance with law.