Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 1734 (RAJ)

Babu Khan v. Union of India

2004-12-03

SUNIL KUMAR GARG

body2004
Honble GARG, J.–Both these writ petitions are being decided by this common order as in both of them common question of law is involved. FACTS OF WRIT PETITION NO. 3934/2002 (2). The present writ petition has been filed by the petitioner against the order dtd. 7.7.2000 (Annex.9) passed by the Desk Officer, Ministry of Labour, Government of India, New Delhi by which the dispute raised by the petitioner was not referred to the Labour Court for adjudication be quashed and set aside. (3). It arises in the following circumstances: i) That the petitioner is holding a driving licence (Annex.1), issued by the competent authority. ii) Further case of the petitioner is that through interview letter dtd. 22.4.1992 issued by the respondent No. 3 (Installation Officer, Television Project, T.V.H.P.T., Ramgarh), the petitioner was called for interview for appointment on the post of driver. iii) Further case of the petitioner is that after interview through order dtd. 9.10.1992 (Annex.3) passed by the Chief Engineer (Northern Zone), Akashwani and Doordarshan, New Delhi (respondent No. 2), he was appointed as driver at Doordarshan, Ramgarh for a period of three months. iv) Further case of the petitioner is that in pursuance of appointment order dtd. 9.10.1992 (Annex.3) passed by the respondent No. 2 (Chief Engineer), the petitioner joined his duties as driver on 15.10.1992. v) Further case of the petitioner is that services of the petitioner were extended upto 3.12.1992 vide order dtd. 23.11.1992 (Annex.4) passed by the respondent No. 2 (Chief Engineer). Thereafter services of the petitioner were further extended from time to time and vide order dtd. 13.10.1994 (Annex.5) passed by the respondent No. 2 (Chief Engineer) the services of the petitioner were extended upto 15.11.1994. vi) Further case of the petitioner is that all of a sudden vide order dtd. 20.10.1994 (Annex.7) passed by the respondent No. 2 (Chief Engineer), the services of the petitioner were terminated. vi) Further case of the petitioner is that against the illegal termination of his services through order dtd. 20.10.1994 (Annex.7), the petitioner raised an industrial dispute and moved an application before the Conciliation Officer (Asstt. Labour Commissioner (Central), but the conciliation proceedings failed and the Conciliation Officer submitted its failure report through letter dtd. 29.5.2000 (Annex.8) to the Secretary, Ministry of Labour, Government of India, New Delhi. 20.10.1994 (Annex.7), the petitioner raised an industrial dispute and moved an application before the Conciliation Officer (Asstt. Labour Commissioner (Central), but the conciliation proceedings failed and the Conciliation Officer submitted its failure report through letter dtd. 29.5.2000 (Annex.8) to the Secretary, Ministry of Labour, Government of India, New Delhi. vii) Further case of the petitioner is that Desk Officer, Ministry of Labour, Government of India, on behalf of respondent No. 1 (Secretary, Ministry of Labour, Government of India) sent a letter dtd. 7.7.2000 (Annex.9) to the petitioner stating that prima facie the Labour Ministry did not consider this dispute fit for adjudication for the following reason: ``It is reported that the workman was employed as a work charge Motor Driver on temporary basis for the period of the project which was completed on 15.11.1994 Admittedly, due compensation has been paid to the worker. No ID subsists ii) In this writ petition the order dtd. 7.7.2000 (Annex.9) has been challenged by the petitioner on various grounds. (4). In this writ petition, the main submission of the learned counsel for the petitioner is that once the failure report (Annex.8) was received, it was obligatory part of the respondent No. 1 (Secretary to the Government of India, Ministry of Labour, New Delhi) to refer the matter to the Labour Court for adjudication because the respondent No. 1 (Secretary, Ministry of Labour, New Delhi) had no power to decide the matter on merits and hence, the order dtd.7.7.2000 (Annex.9) passed by the Desk Officer, Ministry of Labour, Government of New Delhi on behalf of respondent No. 1 (Secretary, Ministry of Labour, New Delhi) should be quashed and set aside and this writ petition should be allowed. (5). Reply to the writ petition was filed by the respondents and it has been submitted by the learned counsel for the respondents that the competent authority was required to see as to whether prima facie industrial disputes exists or not and since in the present case, the competent authority did not any case in favour of the petitioner, therefore, the matter was not referred to the Labour Court and hence no interference be called for in the order dtd. 7.7.2000 (Annex.9) and the present writ petition deserves to be dismissed. (6). Heard. (7). A bare perusal of the order dtd. 7.7.2000 (Annex.9) and the present writ petition deserves to be dismissed. (6). Heard. (7). A bare perusal of the order dtd. 7.7.2000 (Annex.9) reveals that the matter was not referred to the Labour Court for the reason that the petitioner was employed as a work charge motor driver on temporary basis for the period of project which was completed on 15.11.1994 and admittedly due compensation had been paid to the worker and hence no Industrial dispute subsisted. (8). The question which arises for consideration is whether in the facts and circumstances of the present case, the order dtd. 7.7.2000 (Annex.9) passed by the respondent No. 1 (Secretary, Ministry of Labour, Government of India, New Delhi) on the above ground, can be sustained or not? (9). In the case of Bombay Union of Journalists and Ors. vs. State of Bombay and Another (1), the main contention raised before the Apex Court was that the reasons given by the appropriate Government for refusing to make reference considering the merits of the dispute was not proper. In Bombay Union of Journalists 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. (10). The Honble Supreme Court in the case of Ram Avtar Sharma vs. State of Haryana (2), has observed that though the Government can examine frivolousness of the demand in order to reach to a prima facie conclusion, it is not competent to assume quasi- judicial function of Tribunal by going into merits of the demand to decide whether or not to make a reference. (11). In the case of Telco Convoy Drivers Mazdoor Sangh and Another vs. State of Bihar and Ors (3), the Honble Supreme Court held that refusal to make reference on the part of the appropriate 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. (12). In the case of Dhanbad Colliery Karamchari Sangh vs. Union of India and Ors (4), the Honble Supreme Court has clearly held that the Government itself cannot decide the dispute. (13). (12). In the case of Dhanbad Colliery Karamchari Sangh vs. Union of India and Ors (4), the Honble Supreme Court has clearly held that the Government itself cannot decide the dispute. (13). Similarly, the Division Bench of this Court in the case of Bhika Ram vs. State of Rajasthan (5), has held as under:- ``Industrial Dispute Act, 1947. Sec. 10 and 25F-Power of Govt. to refuse to make reference, limited-Govt. has no jurisdiction to decide as to whether the workman completed 240 days or not and cannot refuse to make reference by concluding that workman has failed to prove that he had worked for 240 days in a calendar year-it is only Labour Court or the Industrial Tribunal which is competent to decide whether there is any dispute or not and whether the retrenchment was right or wrong. (14). Thus, from the law laid down in the above authorities, it is clear that the appropriate government is not entitled to adjudicate the dispute itself on merits as the Governments function under Section 10(1) of the Act of 1947 is purely administrative in nature. (15). In the present case, the impugned order dtd. 7.7.2000 clearly reveals that the Desk Officer, Ministry of Labour, Government of India, New Delhi had decided the matter on merits by holding that the petitioner was employed as a work charge motor Driver on temporary basis for the period of the project which was completed on 15.11.1994 and admittedly due compensation had been paid to the petitioner, which the Desk Officer had no power to decide and hence the order dtd.7.7.2000 (Annex.9) cannot be sustained as it was passed without jurisdiction. (16). Apart from above, when the compensation was paid to the petitioner by the respondents, meaning thereby that the petitioner had some case in his favour and from that point of view also, it can easily be held that the matter was decided by the respondent No. 1 (Secretary, Ministry of Labour, Government of India, New Delhi) on merits, which he could not do so and for this reason also, the impugned order dtd. 7.7.2000 (Annex.9) is liable to be quashed and set aside. (17). For the reasons mentioned above, the impugned order dtd. 7.7.2000 (Annex.9) passed by the Desk Officer, Ministry of Labour, Government of India, New Delhi) is liable to be quashed and set aside and this writ petition deserves to be allowed. 7.7.2000 (Annex.9) is liable to be quashed and set aside. (17). For the reasons mentioned above, the impugned order dtd. 7.7.2000 (Annex.9) passed by the Desk Officer, Ministry of Labour, Government of India, New Delhi) is liable to be quashed and set aside and this writ petition deserves to be allowed. Accordingly, the present writ petition No. 3934/2002 is allowed and the order dtd. 7.7.2000 (Annex.9) passed by the Desk Officer, Ministry of Labour, Government of India, New Delhi is quashed and set aside and the respondent No. 1 (Secretary, Ministry of Labour, Government of India, New Delhi) is directed to make reference under Section 10(1) of the Industrial Disputes Act, 1947 of the dispute raised by the petitioner to an appropriate Industrial Tribunal within one months from today. No order as to costs. FACTS OF S.B. CIVIL WRIT PETITION NO. 3523/2002 (18). Since this writ petition petition also raises the same controversy and points which have been decided above while deciding S.B. Civil Writ Petition No. 3934/2002, therefore, for the reasons given above while deciding writ petition No. 3934/2002, the present writ petition No. 3523/2002 also deserves to be allowed and the impugned order dtd. 21.5.2002 (Annex.2) passed by the Secretary, Ministry of Labour, Government of India, New Delhi (respondent No. 1) is liable to be quashed and set aside. Accordingly, the present writ petition No. 3523/2002 is allowed and the order dtd. 21.5.2002 (Annex.2) passed by the Secretary, Ministry of Labour, Government of India, New Delhi (respondent No. 1) is quashed as set aside and the respondent No. 1 (Secretary, Ministry of Labour, Government of India, New Delhi) is directed to make reference under Section 10(1) of the Industrial Disputes Act, 1947 of the dispute raised by the petitioner to an appropriate Industrial Tribunal within one month from today. No order as to costs.