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2000 DIGILAW 1153 (RAJ)

Bhika Ram v. State of Rajasthan

2000-09-13

B.J.SHETHNA, SUNIL KUMAR GARG

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Honble SHETHNA, J.–This special appeal is arising out of the judgment and order dated 6.5.98 passed by the learned Single Judge of this Court dismissing the writ petition No. 2513/93 filed by the appellant/petitioner. (2). The appellant workman was appointed on muster-roll basis as a workman in the Public Works Department, Sirohi Division on 1.10.87. In the month of July, 91, his services were terminated by an oral retrenchment order. He, therefore, moved the Conciliation Officer and Labour Welfare Officer, Sirohi-respondent No.5 raising industrial dispute about his illegal retrenchment from service on the ground that he has completed 240 working days in a calender year with the respondent department. However, the respondent No.1 refused to refer the dispute to the Labour Court for its decision on the ground that the workman had not completed 240 working days in one calender year by his impugned order dated 16.4.93 (Annex.2 to the writ petition). Aggrieved of that order, the appellant filed the writ petition No. 2513/93 before this Court with a prayer to quash and set aside the oral retrenchment order passed in July, 1991. The learned Single Judge after hearing both the learned counsel for the parties dismissed the writ petition by holding that the workman failed to prove that he had completed 240 working days in a calender year, therefore, there was no violation of Section 25-F of the Industrial Disputes Act (for short `the Act). The learned Single Judge further held that the State Government had not committed any error in refusing to make the reference to the Labour Court for the correct adjudication of the dispute by the impugned order dated 16.4.93. Hence, this special appeal. (3). Under Section 10 of the Act, the appropriate Government has to make reference either to the Labour Court or the Industrial Tribunal if it is satisfied that there was a dispute between the parties. It appears from the impugned order dated 16.4.93 that the State Government itself undertook the exercise of deciding as to whether the workman has completed 240 days or not and arrived at the conclusion that the workman failed to prove that he had worked for 240 days in a calender year. In our considered opinion, the State Government had no jurisdiction. It had to only prima-facie satisfy as to whether there was a dispute between the workman and the other side. In our considered opinion, the State Government had no jurisdiction. It had to only prima-facie satisfy as to whether there was a dispute between the workman and the other side. Once it comes to the conclusion that there was a dispute, then it had to refer the dispute to the competent Labour Court or the Industrial Tribunal, as the case may be. It is only the Labour Court or the Industrial Tribunal which is competent to decide whether there was any dispute or not and the workman was rightly or wrongly terminated from service. (4). In case of Telco Convoy Drivers Mazdoor Sangh and anr. vs. State of Bihar and ors. (1), the Honble Supreme Court held that refusal to make reference on the part of the State Government was wholly unjustified. It had further held that such decision should not be based on merits of the dispute itself as the Governments function under Section 10(1) of the Act is purely an administrative function. (5). In case of Bombay Union of Journalists and ors. vs. State of Bombay and anr. (2), the main contention was raised before the Apex Court was that the reasons given by the State Government for refusing to make reference considering the merits of the dispute was not proper. In Bombay Unions case (supra), the Honble Supreme Court held that when the dispute raises question of law, then the appropriate Government should not reach a final decision on the said question of law because it lies within the domain of the Labour Court or the Industrial Tribunal. (6). In case of Laxman Singh vs. State of Rajasthan (3), the learned Single Judge of this Court (Shri J.C. Verma, J.) clearly held that the Government cannot refuse to make reference to the Labour Court on the ground that the workman had worked for less than 240 days or that dispute raised after inordinate delay. The learned Single Judge has clearly held that these questions are to be decided by the Labour Court after recording evidence and not by the State Government at the stage of deciding as to whether there was any dispute or not while making reference. The learned Single Judge has relied upon the judgment of the Honble Supreme Court in Bombay Unions case (supra). (7). The learned Single Judge has relied upon the judgment of the Honble Supreme Court in Bombay Unions case (supra). (7). There is yet another judgment of the learned Single Judge of this Court (Shri Ashok Parihar, J.) delivered in the case of Purshottam Nagar vs. Union of India and anr. (4), wherein on the same ground where the State Government refused to make the reference, the learned Single Judge held that it was for the Labour Court to take evidence and then decide and accordingly, a direction was given to the State Government to make reference. (8). However, we must state that another learned Single Judge of this Court (Dr. B.S. Chauhan, J.) in case of Rajendra Singh Gehlot vs. Union of India & ors. (5), held that it is not obligatory on the part of the Government to make reference in each and every case as it has to weigh the facts keeping in view of the objectives of industrial peace and smooth industrial relations between the parties. (9). We may state that the learned Single Judge in Rajendra Singhs case (supra) also considered the Honble Supreme Courts judgment in Bombay Unions case (supra). (10). The learned Single Judge has also relied upon the Honble Supreme Court judgment in the case of Workmen vs. I.I.T.I. Cycles of India Ltd. and ors. (6), wherein the Honble Supreme Court held that the State Government has to weigh the facts keeping in view of the objectives of industrial peace and smooth industrial relations between the parties. (11). There cannot be any quarrel with the law laid down by the Honble Supreme Court in I.I.T.I. Cycles case (supra). However, in our considered opinion, the view taken by the learned Single Judge in the case of Rajendra Singhs (supra) will have no bearing on the facts of the case because in this case, the State Government undertook the exercise of deciding as to whether the workman was able to prove that he had completed 240 days in a calender year. (12). In the case of Dhanbad Colliery Karamchari Sangh vs. Union of India and Ors. (7), the Honble Supreme Court has clearly held that the Govt. cannot itself decide the dispute. The said judgment in Dhanbads case (supra) is clearly binding on us. (13). (12). In the case of Dhanbad Colliery Karamchari Sangh vs. Union of India and Ors. (7), the Honble Supreme Court has clearly held that the Govt. cannot itself decide the dispute. The said judgment in Dhanbads case (supra) is clearly binding on us. (13). In view of the above, we are of the opinion that the State Government was wholly in error in passing the impugned order dated 16.4.93 and refused to make reference to the competent Labour Courts. (14). In view of the above discussion, this appeal is allowed and the impugned order dated 16.4.93 passed by the State Government refusing to make reference to the Labour Court is hereby quashed and set aside. (15). Before parting, we must state that the matter was argued before the learned Single Judge on merits as well and the learned Single Judge has arrived at the conclusion that the workman failed to establish that he worked for 240 days in a calender year. In our considered opinion, this issue could not have been gone into and decided by the learned single Judge in writ jurisdiction because it requires evidence which can only be led before the Labour Court. (16). Accordingly, while allowing this special appeal, we set aside not only the impugned order dated 16.4.93 (Annex. 2 to the writ petition) but also set aside the judgment and order dated 6.5.98 passed by the learned Single Judge dismissing the writ petition No. 2153/93 filed by the appellant. We accordingly, accept the writ petition to the extent that the impugned order dated 16.4.93 was bad. (17). We direct the State Government now to refer the dispute to the competent Labour Court as early as possible preferably within one month from the date of receipt of the copy of this order.