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Rajasthan High Court · body

2005 DIGILAW 1248 (RAJ)

Shakti Singh v. Union of India

2005-04-27

R.P.VYAS

body2005
Honble VYAS, J.–The present writ petition has been filed by the petitioner against the order dtd. 13.8.2002 (Annex. 3) by which the appropriate Government refused to refer the matter to the Labour Court for adjudication on the ground that the petitioner has tendered resignation. (2). Brief facts of the case as narrated by the petitioner in the petitioner are that the petitioner was appointed as watchman after regular process of selection on temporary basis. (3). After the petitioner was so appointed, another employee of the Department started exerting pressure on the petitioner that in case he wants to be confirmed in service, he should pay a sum of Rs. 1,00,000/- else his services will be terminated during probation by holding that the certificate of Education submitted by the petitioner is forged. (4). It is also alleged in the petition that he was not having the amount as demanded by him, therefore, Shri Chachra obtained resignation letter from the petitioner in the month of October, 2000 and informed the petitioner that in case the petitioner does not pay the entire amount by December, 2000, his service will be dispensed with on the basis of aforesaid resignation letter. However, since the petitioner did not pay the amount demanded, the aforesaid resignation letter was submitted by Shri Chachra and same was immediately accepted. (5). Further case of the petitioner is that he immediately raised industrial dispute before the conciliation officer. The conciliation proceedings failed and the Conciliation Officer submitted failure report to the appropriate Government. The Appropriate Government, in turn vide order dtd. 13.8.2002 declined to refer the matter by going into merits of the case stating that the petitioner has submitted resignation letter which was duly accepted on 1.1.2001. (6). In this writ petition, the main submission of the learned counsel for the petitioner is that once the failure report was received, it was obligatory duty of the appropriate Government to refer the matter to the Labour Court for adjudication because the appropriate Government is required to examine whether the dispute is in existence or not. It is not open for the Appropriate Government to examine the merits of the case. It is not open for the Appropriate Government to examine the merits of the case. The learned counsel for the petitioner also submits that the petitioner has disputed submission of resignation and he has clearly stated that the same has been obtained by the employee of LIC under threat and duress and thus, the appropriate Government was not required to go into merits of the case and when the factum of submission of resignation has been disputed by the petitioner, the same was required to be established by tendering evidence and the appropriate Government has no jurisdiction to decline to refer the matter to the Labour Court and hence the order dtd. 13.8.2002 (Annex. 3) is without jurisdiction. It has also been submitted by the learned counsel for the petitioner that the Industrial Disputes Act, 1947 is benevolent legislation and the same has been enacted in order to protect the rights of the employees from mighty employer. Thus once the industrial dispute has been raised by the employee, the appropriate Government should refer the matter to the Labour Court for adjudication. (7). Reply to the writ petition was filed by the respondents and it has been submitted by the learned counsel for the respondents that the appropriate Government was required to see as to whether prima facie industrial disputes exists or not and since in the present case, the appropriate Government did not find 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 impugned order dtd. 13.8.2002 (Annex. 3). (8). Heard the learned counsel for the parties and examined and scanned the material available on record. (9). A bare perusal of the order dtd. 13.8.2002 (Annex. 3) reveals that the matter was not referred to the Labour Court for the reason that the petitioner himself has tendered resignation which was accepted on 1.1.2001 and hence no Industrial dispute subsists. (10). The question which arises for consideration is whether in the facts had circumstances of the present case, the order dtd. 13.8.2002 (Annex. 3) passed by the appropriate Government on the above ground, can be sustained or not? (11). In the case of Bombay Union of Journalists and Ors. (10). The question which arises for consideration is whether in the facts had circumstances of the present case, the order dtd. 13.8.2002 (Annex. 3) passed by the appropriate Government on the above ground, can be sustained or not? (11). In the case of Bombay Union of Journalists and Ors. vs. State of Bombay and another reported in AIR 1964 SC 1617 , the Honble Apex Court held that when the dispute raise question of law and facts, then the appropriate Government should not reach a final decision on the said question of law and facts because it lies within the domain of the Labour Court or the Industrial Tribunal. (12). The Honble Supreme Court in the case of Ram Avtar Sharma vs. State of Haryana reported in (1985) 3 SCC 189 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. (13). In the case of Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and Ors. reported in 1983 (3) SCC 271, 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. (14). In the case of Dhanbad Colliery Karamchari Sangh vs. Union of India and ors. reported in 1991 Supp (2) SCC 10, the Honble Supreme Court has clearly held that the Government itself cannot decide the dispute. (15). Similarly, the Division Bench of this Court in the case of Bhika Ram vs. State of Rajasthan reported in 2000(3) RLR 548 = (RLW 2000(4) Raj. 404)has held that appropriate Government 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. (16). 404)has held that appropriate Government 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. (16). 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. (17). In the present case, the impugned order dtd. 13.8.2002 clearly reveals that the appropriate Government had decided the matter on merits by holding that the petitioner himself has tendered the resignation which was accepted on 1.1.2001, hence, no industrial dispute subsists, whereas the petitioner has disputed submission of resignation and this fact can only be decided by leading evidence which can be led before the Labour Court. (18). For the reasons mentioned above the writ petition is allowed. The order dtd. 13.8.2002 (Annex. 3) is quashed and set aside and the appropriate Government 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 a period of two months from today. (19). No order as to costs.