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2007 DIGILAW 1334 (DEL)

PREM CHAND v. UOI

2007-07-09

HIMA KOHLI

body2007
HIMA KOHLI, J. ( 1 ) THE present writ petition has been filed by the petitioner assailing the order dated 7. 7. 2005 passed by the respondent No. 1 refusing to refer the disputes between the petitioner and the respondent No. 2 for adjudication. The reasons given for refusing reference of the disputes for adjudication are as below : "it is seen that the workman in respect of whom the dispute was raised were engaged by M/s Reliance Security Services, an agency sponsored by directorate General of Rehabilitation for development of security personnel at the LPG Bottling Plant in Piyala, Distt. Ballabhgarh. As per the directive of ministry of Petroleum and Natural Gas, the management of BPCL is required to engage security personnel only through Directorate General of Rehabilitation sponsored agencies. On expiry of the period for which M/s Reliance Security services was engaged as the Directorate General of Rehabilitation did not renew the sponsorship, the security management of M/s Reliance Security Services came to an end and the agency withdrew the workmen engaged by them. As the withdrawal of the workmen from the premises of BPCL by M/s Reliance Security services was due to non-renewal of sponsorship by Directorate General of rehabilitation, the industrial dispute raised against the management of BPCL does not subsist. " ( 2 ) IT is submitted by the learned counsel for the petitioner that the respondent No. 1 does not have the power to adjudicate upon the disputes in respect of question of facts and law and that the same is purely within the domain of the Central Government Industrial Tribunal/labour Court. In this regard, counsel for the petitioner seeks to place reliance on the following judgments : 1]. Sharad Kumar v. Govt. of NCT of Delhi and Ors. 2002 LLR 545; 2]. Sanjay Kumar v. UOI and Ors. Landsjr 2004 (1) 299; 3]. Khushi Ram v. UOI and Anr. 2005 LLR 389; ( 3 ) LEARNED counsel for the respondent No. 1 fairly admits that as per the settled law, the appropriate Government is not expected to give any finding on merits while considering whether a case is fit for being referred for adjudication to the Labour Court/industrial Tribunal or not. ( 4 ) I have heard the counsels for the parties and have perused the records including about:blank the impugned order passed by the respondent No. 1. ( 4 ) I have heard the counsels for the parties and have perused the records including about:blank the impugned order passed by the respondent No. 1. The only issue that needs consideration of this Court in the present case is as to whether the respondent no. 1. could have refused to refer the dispute for adjudication by the Industrial Tribunal or the Labour Court. In other words, the limited issue that needs to be dealt with is that whether the Appropriate government, in exercise of its powers under Section 10 (1) of the Act, can itself reject a claim petition on the grounds as reproduced hereinabove. ( 5 ) THE issue that arises for consideration here is no longer res integra. The law regarding the ambit and scope of the powers of the appropriate government to make or decline a reference under Section 10 (1) (c) of the Act, was considered at great length by this Court in the case of Shr. Subhash Chand (supra), wherein the learned Single Judge took into consideration a catena of judgments on the said issue including the following:- (i) State of Madras Vs. C. P. Sarathy, 1953 SCR 334 . (ii) State of Bombay Vs. K. P. Krishnan and Ors. , AIR 1960 SC 1223 . (iii) Bombay Union of Journalists and others Vs. The State of Bombay and another, AIR 1964 SC 1617 . (iv) Western India Match Co. Ltd. Vs. Western India Match Co. Workers Union, (1970) 3 SCR 370 . (v) Shambhu Nath Goyal Vs. Bank of Baroda, Jullundur, (1978) 2 SCR 793 . (vi) The M. P. Irrigation Karamchari Sangh Vs. State of M. P. and another, AIR 1985 sc 860 . (vii) Ram Avtar Sharma and Others Vs. State of Haryana and Anr. AIR 1985 SC 915 . (viii) Workmen of Syndicate Bank, Madras Vs. Government of India and another, air 1985 SC 1667 . (ix) Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others, AIR 1989 SC 1565 . ( 6 ) AFTER having referred to various decisions of the Supreme Court and High Courts on the issue and after having traced the development of law in this regard, it was observed as under: "20. Reading of the above judgments of the highest Court of the land shows that provisions of Section 10 of the Act were construed not quite liberally. Reading of the above judgments of the highest Court of the land shows that provisions of Section 10 of the Act were construed not quite liberally. The jurisdiction of the State Government was stated to be an administrative function and not a judicial or quasi judicial function. Formation of an opinion under section 10 (1) of the Act was relatable to whether an industrial dispute existed or is apprehended 'it was not the same thing as to adjudicate the dispute itself on merits'. In other words, the appropriate Government was not competent to travel beyond the limits of forming a prima facie opinion with regard to existence of the dispute or that an industrial dispute was apprehended. The government was not competent to directly or indirectly determine the merits of the dispute. Formation of an opinion without encroaching upon the domain of adjudication was the essence of powers vested under Section 10 (1) of the Act. 21. The Industrial Law, developed as a result of subsequent amendments to the act as well as by judicial pronouncements by different Courts, is having far reaching effects on the various facets of this law. Section 11a was incorporated in the Act by Section 3 of the Industrial Disputes Amendment Act, 1971 with effect from 15th December, 1971. The purpose of this amendment was primarily to enlarge the scope of the adjudication process before the Industrial Court or tribunal and vest powers of wider magnitude in the Courts. The basic intent was to prevent the unfair labour practice by the Management and to ensure that the workman was not subjected to victimisation. This Section really did not effect the power of the Government under Section 10 (1) of the Act in relation to refer or not to refer the industrial dispute to the Labour Court or Tribunal in exercise of its administrative power. One obvious conclusion of this amendment is that a workman can also claim a reference even with regard to the quantum of punishment even in a case of proven misconduct. He could raise an issue that the punishment inflicted upon him was ex-facie disproportionate to the gravity of the misconduct. The Government would have hardly any jurisdiction to decline a reference even of this kind within the purview and scope of the provisions of section 10 of the Act. 25. He could raise an issue that the punishment inflicted upon him was ex-facie disproportionate to the gravity of the misconduct. The Government would have hardly any jurisdiction to decline a reference even of this kind within the purview and scope of the provisions of section 10 of the Act. 25. 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 in 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 to result in unfair unjust advantage to the workman and would 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. " ( 7 ) RELIANCE has been rightly placed by the counsel for the petitioner on the judgment of the Supreme Court in the case of Sharad Kumar (supra), wherein while dealing with the question as to whether the appropriate government could refuse to refer a dispute for adjudication on the ground that the petitioner therein was not a workman within the meaning of Section 2 (s) of the Act, the Apex Court held as under : "27. . . . . . . We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2 (s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the state Government is clearly erroneous sand the order passed by the High Court maintaining the same is unsustainable". Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the state Government is clearly erroneous sand the order passed by the High Court maintaining the same is unsustainable". ( 8 ) SIMILARLY, in the case of Khushi Ram (supra), following the judgment of the Supreme Court in the case of Sharad Kumar (supra) amongst others, a Single Judge of this Court held that it is well settled that it is not for a referral authority to delve into the merits of the matter, which function is exclusively within the domain of the Industrial Tribunal. ( 9 ) WHAT flows from the above mentioned cases is that, while exercising powers under Section 10 (1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function, the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the powers conferred on it by Section 10 of the Act. ( 10 ) IN the present case, refusal by respondent No. 1 to refer the dispute for adjudication on the ground that since the withdrawal of the workmen including the petitioner by the respondent No. 3 was due to non-renewal of sponsorship by the Directorate General of Rehabilitation, therefore, the industrial dispute raised against the respondent No. 2 does not subsist, certainly amounts to going into the merits of the matter, which is beyond the scope of powers conferred on the respondent No. 1 under Section 10 of the Act. ( 11 ) FOR the reasons stated hereinabove, the impugned order dated 7. 7. 2005 is quashed and the respondents are directed to re-consider the matter in the light of the aforementioned judgments within a period of 8 weeks and to convey the said decision to the petitioner immediately thereafter under written intimation. In terms of the aforesaid order, the writ petition stands disposed of.