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2008 DIGILAW 1129 (ORI)

Dhenkanal Mehentar Sangha v. State of Orissa

2008-12-12

P.K.TRIPATHY, R.N.BISWAL

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JUDGMENT Per R.N. BISW AL, J. The petitioner, Dhenkanal Mehentar Sangha, being represented by its General Secretary, has filed this writ petition as the Opposite Parties, particularly Opposite Party No. 1 did not refer three of the demands raised by it to the proper adjudicating authority under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as "I.D. Act"). 2. As per the case of petitioner, it submitted a charter of demands before the Management of Dhenkanal Municipality on August 16, 1993 with copy to District Labour Officer, Dhenkanal. In the charter, there were 18 demands. Pursuant to such demands, the matter was enquired into and on being satisfied about the existence of industrial disputes, it was admitted by the Conciliation Officer, Opposite Party No.2, on December 10, 1993. On conciliation, all but five demands could not be settled and accordingly Opposite Party No.2 submitted his failure report vide Annexure-l to Opposite Party No. 1 on September 26, 1994, out of which, Opposite Party No.1 found only two demands to be fit for reference under Section 10 of the I.D. Act and accordingly referred the same for adjudication on June 21, 1995 vide Annexure-2. The petitioner, claimed that the fol1owing three more demands ought to have been referred to the proper authority for adjudication: (1) "Creation of one post of Jamadar in each three wards and to fill up such posts from amongst the sweepers on priority basis and creation of Sanitary Supervisor to be filled up from amongst the suitable Jamadars on promotion; (II) There should be promotional avenue for Jamadars, who have been working for long years and the Management, should create the posts of Sanitary Supervisor and fill up the same from amongst the Jamadars on promotion basis. (Ill) Engagement of 200 additional sweepers to meet the need of the said o Municipality i.e. the Dhenkanal Municipality of Dhenkanal." According to the petitioner, the demand for manning an industry is an industrial dispute as per the definition of Section 2(k) of I.D. Act. Hence the writ petition. 3. Opposite Party Nos. (Ill) Engagement of 200 additional sweepers to meet the need of the said o Municipality i.e. the Dhenkanal Municipality of Dhenkanal." According to the petitioner, the demand for manning an industry is an industrial dispute as per the definition of Section 2(k) of I.D. Act. Hence the writ petition. 3. Opposite Party Nos. 1 and 2 in their joint counter affidavit contended that after failure of the conciliation, a report to that effect was submitted to the Government, on receipt of which, the matter was examined and the Government referred two demands which formed industrial dispute in terms of Section 2(k) (wrongly typed as 2-s) of the I.D. Act. All other demands being beyond the purview of Section 2(k) of the I.D. Act were not referred. According to the Management of Dhenkanal Municipality, Dhenkanal, Sweepers working at the relevant point of time were quite sufficient in number to cater to the needs of the municipality, as such, additional posting was not felt warranted. It was also submitted by the Management that while the sanctioned strength of the sweepers was 65, in fact 76 sweepers were working by that time; moreover, no allegation was ever received from the petitioner relating to over pressure to its members. So these Opposite Parties prayed to dismiss the writ petition. 4. As per the Counter Affidavit filed on behalf of Opposite Party No.3, the claim of the petitioner for creation of posts, engagement of additional workmen, and promotional avenue are not industrial disputes. The question, whether there exists or not any industrial dispute between the parties, it is the subjective satisfaction of the Government. In the present case, since the Government felt that the demands sought to be referred to the adjudicating authority were not industrial disputes and as such not fit for reference, the action of the Government cannot be challenged. So, this Opposite Party prayed to dismiss the writ petition. 5. Learned Addl. Government advocate and the learned counsel appearing for Opposite Party No.3 submitted that since the demands sought for reference to the appropriate authority do not fall under any of the Items contained in Second and Third Schedule of the I.D. Act, Opposite Party No.1 rightly repudiated to refer the same for adjudication. 5. Learned Addl. Government advocate and the learned counsel appearing for Opposite Party No.3 submitted that since the demands sought for reference to the appropriate authority do not fall under any of the Items contained in Second and Third Schedule of the I.D. Act, Opposite Party No.1 rightly repudiated to refer the same for adjudication. Per contra, learned counsel for the petitioner contended that earlier in Labour and Employment Department Notification No. 7379 dated June 2, 1989, the following dispute which was similar to dispute 45 No. III of the present case was referred for adjudication. "Whether Jajpur Municipality is required to appoint more number of scavengers over and above the existing strength of 58 scavengers? If so, what should be the strength of total number of scavengers." Likewise another similar dispute under Annexure-4 as quoted below was referred by the Government to Presiding Officer Industrial Tribunal, Bhubaneswar for adjudication. "Whether the present workload of the Cuttack Municipality justify engagement of 300 or more or less additional Mehentars and Majdoors. If so, what direction is necessary in this regard?" So, now the Government cannot say that the demands sought to be referred to the adjudicating authority do not come under the definition of industrial dispute. The main objective of the I.D. Act is to settle the disputes between the employer and its workmen amicably so as to bring peace and harmony between the working force and the employer. Another objective is to dispose of the industrial dispute cases speedily and with less expense. The Government should be fair and impartial, even if it is a party to the proceeding while dealing with the disputes for reference. When in the case of Jajpur Municipality, it held that the demand for increasing the labour force came within the fold of industrial dispute, it ought not have refused to hold so in respect of at least demand No. III of the present case. It cannot blow hot and cold at the same breath. Moreover, Item No.6 of the Second Schedule, which envisages that all matters other than those specified in the Third Schedule are industrial disputes, covers the disputes sought to be referred. So, we are not in one with the submission of learned counsel for the Opposite Parties in this regard. 6. It cannot blow hot and cold at the same breath. Moreover, Item No.6 of the Second Schedule, which envisages that all matters other than those specified in the Third Schedule are industrial disputes, covers the disputes sought to be referred. So, we are not in one with the submission of learned counsel for the Opposite Parties in this regard. 6. Learned counsel for the petitioner further submitted that once the Conciliation Authority found the demands in question to be industrial disputes, Opposite Party No. 1 could not have come to a different conclusion and denied the same for being referred to the appropriate adjudicating authority. On the other hand, learned counsels for the Opposite Parties contended that it is the discretion of Opposite Party No. 1, whether or not to refer a particular demand to the adjudicating authority under Section 10 read with Section 12(5) of the I.D. Act. In support of their submission, learned counsels for the Opposite Parties relied on the decisions in the case of State of Bombay (now Maharastra) v. K.P. Krishnan, AIR 1960 SC 1223 : 1960-II-LLJ-592 and Bombay Union of Journalists and Others v. State of Bombay and Another AIR 1964 SC 1617 : 1964-I-LLJ-351. It was held in both the cases that when the appropriate Government considers the question as to whether a reference should be made under Section 12(5), it has to act under Section 10 of the I.D. Act and Section 10(1) confers discretion on the appropriate Government whether or not to refer a dispute, for adjudication. But Section 12(5) of the I.D. Act lays down that when the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefor. In the present case, Opposite party No. 1, the State Government has not given any reason for refusing the disputes in question to be referred to the adjudicating authority, except stating that the so-called disputes do not constitute industrial dispute (Annexure-1). The reason for which the same would not fall within the ambit of industrial disputes has not been given. Moreover, as held earlier, the view of the Government that the disputes in question do not come within the ambit of industrial dispute is not correct. So, the two decisions cited on behalf of the Opposite Parties would not be helpful to them. 7. Moreover, as held earlier, the view of the Government that the disputes in question do not come within the ambit of industrial dispute is not correct. So, the two decisions cited on behalf of the Opposite Parties would not be helpful to them. 7. Relying on the decisions in the case of Secretary, State of Karnataka and Others v. Umadevi (3) and Others AIR 2006 SC 1806 : (2006) 4 SCC 1 : (2006) 2 MLJ 326 : 2006-I1-LLJ-722 and Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and, Pharmaceuticals Ltd. (2007) 1 SCC 408 : 2007-I-LLJ-580, learned Addl. Government advocate and learned counsel for Opposite Party No.3, at last submitted that Courts and Tribunals cannot direct the Government for creation of posts, appointment to the posts, promotion etc., all of which are executive or legislative functions and that in the present case, since the demands sought for to be referred' to the adjudicating authority are for creation of posts and promotion, even if the disputes are referred to the adjudicating machinery, still then it cannot allow such prayer, as such, Opposite Party No. 1 rightly refused to refer those demands for adjudication. Learned counsel for the Opposite Party No.3 and learned Addl. Government advocate further submitted that Government can refuse to refer any demand to the adjudicating authority, if it is not appropriate in the context of its financial condition. 8. In the case at hand, as stated earlier, the demands of the petitioner were refused to be referred to the adjudicating authority, because those demands do not fall within the ambit of Section 2(k) of the I. D. Act and, not for financial constraint. Moreover, it is the established principle of law that Government cannot make any decision at the referral stage, affecting the merits of an industrial dispute. It is only to decide whether an industrial dispute exists and if so, whether it should be referred to the adjudicating authority. It cannot usurp the function of the Labour Court or Industrial Tribunal as the case may be and decide a dispute on merit. The decisions in the case of Secretary, State of Karnataka and Others v. Umadevi (3) and Others (supra) and Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and, Pharmaceuticals Ltd. (supra) relate to adjudicating stage and not the referral stage. The decisions in the case of Secretary, State of Karnataka and Others v. Umadevi (3) and Others (supra) and Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and, Pharmaceuticals Ltd. (supra) relate to adjudicating stage and not the referral stage. In our considered opinion those decisions would be of no help to the Opposite Parties. 9. Therefore, under such premises, the writ petition is allowed and the three demands sought by the petitioner to be referred to the adjudicating authority shall be examined by the Opposite Party No. 1 afresh, in the light of discussion made above and take a decision whether or not to refer those demands to the adjudicating authority, within a period of two months hence. No cost. Per P.K. TRIPATHY, J. 10. I agree. Petition allowed.