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2009 DIGILAW 573 (CAL)

Manmatha Kumar Jena v. UNION OF INDIA

2009-07-31

ABDUL GHANI, KALYAN JYOTI SENGUPTA

body2009
Judgment :- (1) This appeal is against the judgment and order of the learned Trial Judge by which the writ petition has been dismissed. By the writ petition, the petitioners (appellants before us) approached for relief asking the appropriate Government viz. Central Government to refer the dispute. (2) The case of the appellants/writ petitioners is that they were engaged in doing perennial works for maintaining and beautification of a garden controlled by the Coal India Limited. It is true, their appointment was through contractor, but for long years they have been serving without any break and if it is examined properly then it will appear that they were actually maintained by Coal India Limited. Therefore, the matter was initially referred for conciliation proceedings. (3) The Conciliating Officer, after hearing both the Coal India Limited as well as the appellants before us. could not resolve the dispute and came to the finding that the dispute between the parties remained inconclusive. The Conciliating Officer has recorded that stand of the respondent Coal India Limited was that it did never engage the appellants gainfully, rather their service was voluntary in nature and that too through contractor. Moreover, the garden is owned by Kolkata Municipal Corporation and Coal India Limited has merely taken over it for maintenance and beautification. Therefore, there cannot be any master and servant relationship between the Coal India Limited and the appellants. (4) It appears from the report of the Conciliating Officer that he could not solve the dispute and accordingly reported to the Government for taking decision. It was also recorded by the Conciliating Officer that the appellants were willing to go to arbitration; however, Coal India management was not inclined to do so. (5) On receipt of the said report, the appropriate Government, by the impugned order of rejection, opined as follows : "It is reported that the Desh Bandhu Park is owned by the Kolkata Municipal Council, which was adopted for maintenance by the management of M/s. CIL under Community Development Programme. The work was carried out through contract workers (Shri Monmatha Jena and 18 others) employed by different contractors. The work was carried out through contract workers (Shri Monmatha Jena and 18 others) employed by different contractors. As such, no industrial dispute subsists." (6) The learned Trial Judge after considering all the aspects of the matter, came to the conclusion that since the order refusing to refer the dispute under section 12 subsection (5) of the Industrial Disputes Act is an administrative order, it cannot be interfered with, particularly when reasons have been assigned. The learned Trial Judge was of the view that when reasons are assigned, Writ Court should not interfere with the same. (7) Learned Counsel for the appellants submits that it is true that Writ Court should not interfere with the reasoning of the administrative order, but if the reasons patently appear to be nothing but an adjudication of the dispute itself between the parties then it is not reason and the Court will certainly interfere in a case of such nature. According to him, the appropriate Government has taken the role of adjudicator by accepting the view and the case of the management put forward in the conciliation proceedings. When such an exercise is done, it is not a lawful order of rejection. In support of his submission, he has relied on the decisions reported in 1989(3) SCC 271 and AIR 2002 SC 1722. (8) Mr. Pal, appearing on behalf of the respondent company on the other hand contends that the order of rejection in this case is an administrative one and has been passed with reasons and the Court should not interfere with the same. In support of his submission, he has relied on the decisions reported in AIR 2000 SC 915 and also AIR 2008 SCW 2711 . The latter decision has been relied on the proposition of law that High Court cannot direct to pass an order of reference. (9) We have heard the respective contentions of the learned Counsels and have carefully gone through the reasons for refusal to refer the dispute and also the findings of the learned Trial Judge. Section 12 of the Industrial Disputes Act has provided the methodology for referring a dispute by the appropriate Government. The methodology mentioned in the said section appears to have been bifurcated in two different stages. The parties concerned will approach the Conciliating Officer first, who will investigate in the matter and dispute. Section 12 of the Industrial Disputes Act has provided the methodology for referring a dispute by the appropriate Government. The methodology mentioned in the said section appears to have been bifurcated in two different stages. The parties concerned will approach the Conciliating Officer first, who will investigate in the matter and dispute. He will make an endeavour to bring about a settlement. While doing so, he shall record the case of both the sides. In process, if the conciliation is possible, he shall record such conciliation and if it is not possible, then he will refer the same to the appropriate Government. (10) It appears from the report of the Conciliating Officer that in this case, nowhere he has concluded and decided or came to finding that master-servant relationship between the appellants and the Coal India Limited did not exist. He has merely recorded the submission of both the parties. On receipt of his report, the appropriate Government, on consideration of the same and the same alone, nothing else, is to take decision whether the matter should be referred for adjudication or not. (11) According to us, the appropriate Government cannot take note of any other thing apart from the report. The Supreme Court decision reported in 1989(3) SCC 271 , on summation of paragraphs 11 and 13 thereof, clearly rules that in the name of reasons, appropriate Government cannot take the role of adjudicator, as it is essentially administrative function of administration not the function of quasi-judicial authority and it cannot take note of any other irrelevant matters. (12) The same view has been taken in the latter decision of Supreme Court reported in AIR 2002 SC 1722. In the decision reported in AIR 2000 SC 915 (relevant paragraph 6), cited by Mr. Paul it has also been recorded that this order is an administrative one and is made on the subjective satisfaction of the Government. If it appears from the reasons, that the appropriate Government took into account any irrelevant or foreign material, the Court may in a given case, consider the case for issue of writ of mandamus. Even in the recent decision of Supreme Court reported in 2008 AIR SCW 2711 in paragraph 4 it is observed that except in certain unexceptional cases Courts should not direct reference to be made. Even in the recent decision of Supreme Court reported in 2008 AIR SCW 2711 in paragraph 4 it is observed that except in certain unexceptional cases Courts should not direct reference to be made. (13) Thus, on careful study of all those decisions of the Supreme Court, cited at the Bar, proposition of law, according to us, the Writ Court can interfere with this sort of order (i) when order of refusal to refer the dispute appears to have been passed on adjudication of the dispute itself; and (ii) if any material is taken other than a report of the Conciliating Officer while passing order of refusal to refer. That apart, the Writ Court cannot have any jurisdiction to interfere. (14) It has to be examined in this case whether the problem before us falls within the aforesaid two categories or not. Before that, it would be appropriate to elucidate what is the meaning of the word dispute. The plain meaning of "dispute", mentioned in the Oxford Dictionary and also in legal parlance is that dispute means assertion of fact by one party and denial of such fact by other party. Here, the appellants claim that they were really employed by the Coal India Limited through contractor in a perennial job. But such fact has been denied and disputed by the Coal India Limited and according to their stand, the appellants were engaged on voluntary basis through contractor for maintenance and beautification of a garden owned by the Kolkata Municipal Corporation. (15) It appears from the order of rejection that the appropriate Government has decided in the order itself that Desh Bandhu Park is owned by Kolkata Municipal Corporation which was adopted for maintenance and beautification by the management of M/s. Coal India Limited and the work was carried out through contract workers employed by different contractors. It is, thus, clear that the version of the management of Coal India has been accepted and thereby the appropriate Government has adjudicated the matter in favour of the management; to put it differently, the case of the appellants by necessary implication, has been rejected. (16) According to us, the aforesaid reasoning is nothing but an adjudicatory exercise which is not vested in it under the law and the decision has to be taken in the administrative side. (16) According to us, the aforesaid reasoning is nothing but an adjudicatory exercise which is not vested in it under the law and the decision has to be taken in the administrative side. Honble Supreme Court has ruled and also the basic feature of our Constitution is that Administrator cannot creep in the field of judicial and quasi-judicial function unless specifically authorised by law. We, therefore, respectfully following the ratio laid down in the aforesaid decisions of the Honble Supreme Court, hold that the order of rejection is without jurisdiction. Hence it is an unexceptional case for interference. We think with respect that the learned Trial Judge should have gone into this matter in the above direction. Unfortunately, the learned Trial Judge was not assisted properly to enquire into the matter in the above manner. (17) This appeal, therefore, succeeds and the same is allowed, however, without any order as to costs. (18) We direct the appropriate Government to refer the dispute, as canvassed by the appellants before us. It will appear from our observations made above that there has been no adjudication by us which would be without jurisdiction because we are very conscious that even if it is done, we would fall into the same error which has been done by the appropriate Government. Appeal allowed.