Case: Prs Permacel Private Limited Vs. Johnson &amp; Johnson Employees Union (Permacel Division) &amp; Others

of caution here that if a worker or the union pleads/furnishes even a slightest explanation for delay in submitting his/its request to the appropriate Government for reference of his/its dispute to a Labour Court or the Industrial Tribunal then the appropriate government shall leave the determination of the question of belatedness to the labour Court or the Industrial Tribunal. It will then be the province of the Labour Court or the Industrial Tribunal to decide the question of reasonable delay in filing the application after taking into consideration the relevant material placed before it. Now we come to the individual cases.""37. It is a social welfare legislation and, in view of the above enunciated principle of law essentially should receive an interpretation which would help in achieving the object of the statute that is protecting the workman against exploitation and prolonged litigation.""38. It will be appropriate to conclude that the dimensions of the powers vested in the appropriate Government under Section 10(1)(c) of the Act are wide which require proper application of mind in consonance with the above enunciated principles but in no way the appropriate Government could usurp or abdicate to itself the powers of determination which are exclusively vested on the Labour Court/Tribunal. Long delays by itself may not be sufficient to deny the reference requested for by the workman unless it is so seriously prejudicial to the other party as to permit the workman to take undue advantage of his own conduct or the dispute is so belated and stale that in the eyes of law it has extinguished or lost its substance."13. The reliance is placed upon the case of National Engineering Company Ltd. by the learned counsel appearing for the petitioner does not really forward the case of the petitioner. The High Court has the jurisdiction to entertain a writ petition but this jurisdiction normally would not be used where the matter can appropriately be adjudicated upon by the Labour or Industrial Courts as the case may be. There is no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and Johnson & Johnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite production target.14. What is the effect of the orders passed by the courts, in previous litigation, can safely be considered by the Labour Court while adjudicating the reference made to it by the appropriate Government vide order dated 22nd June, 2007. The dispute referred has two facets. Firstly, with regard to the alleged lock out being illegal and secondly, the rights of the workmen to perform their duties without insisting upon the alleged undertaking as a condition precedent for performance of substitutes and resultantly, the wages and salaries which the workmen are entitled to. The reference made by the Government is so wide that the parties can safely adduced appropriate evidence to substantiate their respective trends, determination of which without such evidence is hardly possible. The exercise of jurisdiction by the appropriate Government, the parties could not have been asked to produce documentary and oral evidence. The controversies raised in the present writ petition are of such nature that it will not be just and fair to pronounce upon them without affording opportunities to the parties to lead evidence. In fact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. The petitioner-company has also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India.In fact, in Wyeth Employees Union v. M/s. Araine Orgachem Pvt.Ltd. And others, 2007 (1) CLR 315 , this court had directed the appropriate Government to consider making of a reference which it had felt on the ground that the workmen having taken the benefit of the various documents their existed no relationship of employer-employees between the parties. The workmen had taken up the ground of fraud and they were coerced into signing the scheme. It was held that the Government has to form an opinion as to the existence of employer-employee relationship and whether the dispute exists or is apprehended. Thus, the jurisdiction of the appropriate Government has limited scope. Of course, it is not to be exercised in a mechanical manner. In the case of National Organic Chemical Industries Ltd. (supra), in somewhat similar circumstances the court had dismissed the writ petition and directed that the matter may proceed before the appropriate Industrial/Labour Court which was further directed to determine the questions and controversies raised before it in accordance with law. In some cases, the Industrial Court, while answering the reference made to it by the appropriate Government under section 10, may have to decide ancillary questions and there will be no legal impediment in doing so.

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

Explanation:
0[ds]Despite giving such undertaking, the petitioner has not acted fairly. It is admitted that the demand letter was submitted to the Commissioner on 11.12.2006 as no conciliation was possible despite negotiations and keeping in view the stand of the company firstly, the matter remained under Personal Management Advisory Services which culminated into issuance of letter dated 11.2.2008 vide which the Assistant Commissioner of Labour refused to admit the matter in conciliation in regard to settlement between theregard to plea of fraud, they were granted liberty to take steps which they are entitled to. If the matter is before the Conciliation Officer, the Conciliation officer is bound to proceed in accordance with law. They have stated that they will continue to work as if the Petitioner is their employer as they have done continuously since 10th August 1999 but without prejudice to their plea in the other proceedings that they were and continue to be the employees of JohnsonJohnson Limited, as according to them, the transaction that took place was not legal. There are other legal proceedings pending between the parties before the appropriateis no ambiguity in the order of reference and the Industrial Court/Labour Court has to adjudicate the matter on merits and it will not be appropriate for this Court to examine the question of preliminary objection as regard to maintainability of reference before the Industrial Court particularly in facts and circumstances of the present case. Even when two fora are available, the Courts can certainly say which is the more appropriate forum to effectively get it adjudicated. There has to be, in reality, a relationship between employer and the complainants where they plead unfair labour practice.In the present Writ Petition, neither we are expected nor do we propose to deal with the merits of the various contentions raised in this Petition which are directly pending before the competent forum. The short question that we need to consider is whether the order of reference dated 22nd June 2007 suffers from such a legal error that it is palpably without jurisdiction or is legallyis no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and JohnsonJohnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite productionfact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. Thehas also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India.