Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 879 (GAU)

Tarani Sarmah v. Numaligarh Refinery

2014-09-16

UJJAL BHUYAN

body2014
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. B. Sharma, learned Counsel for the applicant/respondent No. 3 and Mr. SN Sarma, learned Senior Counsel for opposite party/writ petitioner. This application has been filed by the applicant/respondent No. 3 for vacation of the order dated 07.02.2014 passed by this Court in WP (C) No. 628/2014. 2. Relevant portion of the order dated 07.02.2014 reads as under:- "The reference under challenge is in respect of the termination of the services of the private respondent, which took place in May, 2000 whereas the reference was made only in 2012. In view of the decision of the Apex Court in Reserve Bank of India v. Gopinath Sharma & Ors., reported in (2006) 6 SCC 221 , a prima facie case is made out by the petitioner for stay. Resultantly, the proceeding in Reference Case No. 15/2012 pending before the learned CGIT-cum-Labour Court, Guwahati shall remain stayed. It shall be open to the respondents to apply for modification and/or cancellation of this stay order." 3. Opposite party as the writ petitioner has preferred the related writ petition challenging the legality and validity of the order dated 09.12.2013 passed by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Guwahati in Reference Case No. 15/2012 rejecting the petition filed by the management (writ petitioner) challenging the maintainability of the order of reference. To be precise, the management wanted framing of a preliminary issue to decide maintainability of the reference proceeding which was turned down by the learned Labour Court. 4. Before referring to the relevant portion of the order of the Labour Court, the order of reference made by the appropriate Government may be noticed, which is as under- "Whereas the Central Government is of the opinion that an industrial dispute exists between the employers in relation to the management of M/s. IOC Ltd. and their workmen in respect of the matters specified in the Schedule hereto annexed; And whereas the Central Government considers it desirable to refer the said dispute for adjudication; Now therefore, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10of the Industrial Disputes Act, 1947 (14 of 1947) the Central Government hereby refers the said dispute for adjudication to the Cent. Govt. Indus Tribunal-cum-Labour Court, Guwahati. The said Tribunal shall give its award within a period of three months. Govt. Indus Tribunal-cum-Labour Court, Guwahati. The said Tribunal shall give its award within a period of three months. The Schedule Whether the action of the management of M/s. Numaligarh Refinery Limited, Guwahati in terminating the services of Shri Tarani Sarmah w.e.f. May, 2000 is legal and justified? What relief the workman is entitled to?" 5. Relevant portion of the order of the Labour Court reads as under:- "From the above discussion it is revealed that the vital issue for decision in this reference as to the relationship between the employer and employee and whether the alleged contract between the contractor and the principal employer was a sham and nominal, rather camouflage; and whether the dispute raised by the workman was not existed at the time of the reference and whether it is a state dispute which is liable to be rejected. Both the parties have taken the different pleas as mentioned above and in order to arrive at a just and reasonable decision on the above mentioned questions, the Court has to examine in details the evidence to be adduced by both the parties in order to substantiate their respective pleas, since the workman more particularly, relied upon some documents relating to Attendance Register of NRL, salary statement in respect of the workman. It is also required to examine the circumstances under which the workman raised this dispute at a belated stage. For which appreciation of evidence of the workman is necessary. In view of the above circumstances it is crystal clear that the instant petition filed by the management challenging maintainability of the proceeding involved both the question of law and facts and hence, in my opinion it will be a grave injustice to the workman if this reference is decided solely on the point of law at this stage. As such, I find it difficult to entertain the prayer of the Management for framing preliminary issue on the maintainability of the reference. Accordingly the petition is rejected. However, the question as to the maintainability of the proceeding on the ground raised by the Management will be taken up together with the other issues involved in this reference, at the time of passing the Award." 6. Accordingly the petition is rejected. However, the question as to the maintainability of the proceeding on the ground raised by the Management will be taken up together with the other issues involved in this reference, at the time of passing the Award." 6. A reading of Section 10(1) of the Industrial Disputes Act, 1947 would show that the appropriate Government is vested with the jurisdiction to make a reference to the Labour Court or to the Industrial Tribunal if in its opinion an industrial dispute exists or is apprehended. 7. It appears from the documents placed on record that the workman had a long standing litigation with the management and following the order dated 01.11.2006 passed by a Division Bench of this Court in W.A. No. 374/2006, recourse was taken to the provisions of the Industrial Disputes Act, 1947. Conciliation proceedings initiated between the workman and the management resulted in failure. Report of the Conciliation Officer was submitted on 29.08.2011 to the appropriate Government following which the reference was made. 8. It is true that a dispute which is state should not ordinarily be a subject matter of reference as held by the Apex Court in (2006) 6 SCC 221 (Reserve Bank of India Vs. Gopinath Sharma) but that does not appear to be the position in the present case. Failure report was submitted by the Conciliation Officer on 29.08.2011 and reference was made on 23.04.2012. 9. In my view, when the appropriate Government is of the opinion that an industrial dispute exists by making a reference under Section 10(1) of the Industrial Disputes Act, 1947 where it is clearly stated that the Central Government is of opinion that an industrial dispute exists between the employer and the workman, it would not be just and proper for the Writ Court to abort any possible adjudication of the industrial dispute by the statutorily recognized forum. 10. In 2014 (4) GLT 517: Writ Appeal No. 271/2010 (Secretary, Assam Tea Workers Union Vs. 10. In 2014 (4) GLT 517: Writ Appeal No. 271/2010 (Secretary, Assam Tea Workers Union Vs. Baghjan Tea Estate) decided on 03.05.2012, a Division Bench of this Court after observing that no period of limitation has been prescribed for making a reference under Section 10 of the Industrial Disputes Act, 1947, held that as long as in the opinion of the appropriate Government an industrial dispute exists or is apprehended, it would be within the competence of the appropriate Government to make a reference under Section 10. It was held as follows:- "26. Section 10 of the Act provides for making a reference of industrial disputes to a Board of Conciliation, Labour Court or Industrial Tribunal. To be more specific, Section 10(1)(c) says that where the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with or relevant to the dispute to a Labour Court for adjudication. A careful reading of the said provision would show that no period of limitation has been prescribed for making a reference u/s. 10 of the Act. The phrase "at any time" appearing in that section is co-relatable to the existence or apprehension of an industrial dispute in the opinion of the appropriate Government. Therefore, as long as in the opinion of the appropriate Government, an industrial dispute exists or is apprehended, it would be within the competence of the appropriate Government to make a reference under Section 10 of the Act. 27. The primary focus of the said section or rather of the Act as a whole is the existence or apprehension of an industrial dispute, which is the sine qua non for making the reference, without any limitation of time. Therefore, the legislature has purposefully used the words "at any time" which would mean that a long as an industrial dispute exists or is apprehended, the referral order can be made. ********** 32. Learned Single Judge is right in observing that industrial disputes are not expected to linger indefinitely and should be concluded within reasonable time and that state and belated claims should not be entertained. But at the same time, it must be borne in mind that under the scheme of the Act, the primary focus is on the existence or apprehension of the industrial dispute. But at the same time, it must be borne in mind that under the scheme of the Act, the primary focus is on the existence or apprehension of the industrial dispute. Once this primary jurisdictional fact is ascertained/decided in the affirmative, the delay, if any, in making the reference or in seeking to revive the reference or in making the second reference (when the reference was earlier not adjudicated on merits) becomes immaterial. The question of delay and the effect of such delay on the adjudication of the industrial dispute or the prejudice caused to either of the parties on account of the delay are matters to be gone into by the Labour Court at the time of adjudication of the industrial dispute. But this could not be the ground for aborting the reference proceeding on the hypothetical assumption that it would result in non-availability of relevant witness. As pointed out above, that is a matter for the adjudicatory authority to decide. 33. When the appropriate Government is of the view that the industrial dispute exists and should be decided on merits, which presumption stood fortified by the decision of the learned Labour Court, it would not be proper for the writ Court to step in and prevent the Labour Court from adjudicating on it on the assumption that because of delay the industrial dispute has ceased to exist. Had the appropriate Government declined to make the revival order on the ground of delay or the learned Labour Court declined to adjudicate on the reference on the ground that because of the delay, the industrial dispute has ceased to exist, the matter would have been altogether different. But that is not the case here. 34. The fight between the workman and the management is a fight of unequals. The Act seeks to rectify the situation by putting the two on equal footing. The object of the Act, as has been noticed above, is not only confined to the resolution of the dispute between the two warring groups but to achieve industrial peace and harmony which will result in increased industrial productivity and in the ultimate analysis lead to prosperity of the country. The object of the Act, as has been noticed above, is not only confined to the resolution of the dispute between the two warring groups but to achieve industrial peace and harmony which will result in increased industrial productivity and in the ultimate analysis lead to prosperity of the country. The Act is a social piece of legislation intended to safeguard the interest of the vulnerable workman but at the same time to ensure that there is no dislocation in the industry where the labour is also an equally important stake holder. Keeping the above in mind, the version of the workmen explaining the delay needs to be considered and appears to us to be a plausible one. The dismissed workmen belong to the tea tribe community which is one of the most marginalized sections of the society. Their appalling living condition is well documented and needs no reiteration. For them it is a daily grind for survival. In this case, they were initially represented by the proforma respondent which badly let them down. In the meanwhile, they were defending themselves in the related criminal case from which they were ultimately acquitted in 1998. But their acquittal did not help them to get back their job when they realized what had happened before the Labour Court. It was at that stage that the appellant union stepped in and filed the writ petition in the year 2000. 35. No doubt there is delay. But when the appropriate Government is of the opinion that the industrial dispute exists, when the learned Labour Court has recorded a finding of jurisdictional fact that the industrial dispute exists and should be adjudicated upon and when the workmen have asserted that the industrial dispute exists, there would be no justification to assume that because of the delay, the industrial dispute has ceased to exist." 11. This Court is, therefore, of the view that the interim order passed by this Court on 07.02.2014 is required to be vacated to enable the Labour Court to proceed with the reference. 12. However, learned Senior Counsel appearing for the management has submitted that the preliminary issue raised by the management goes to the root of the entire dispute and may be decided first. Learned Counsel for the workman does not seriously object to the submission so made. 13. 12. However, learned Senior Counsel appearing for the management has submitted that the preliminary issue raised by the management goes to the root of the entire dispute and may be decided first. Learned Counsel for the workman does not seriously object to the submission so made. 13. Let the Labour Court frame the issue of maintainability raised by the management as a preliminary issue and decide the same in accordance with law at the earliest, if necessary by allowing both the parties to adduce evidence in support of their respective stand. 14. Interim order passed on 07.02.1014 accordingly stands vacated. In view of above, misc. case is disposed of.