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2016 DIGILAW 609 (ORI)

Paresh Chandra Maiti v. Union of India

2016-08-08

S.N.PRASAD, SANJU PANDA

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JUDGMENT : S.N.Prasad, J. Petitioner has filed this writ petition against the order dated 18.1.1995 whereby and where under the appropriate Government has refused to refer the dispute to the Industrial Tribunal for adjudication on the ground that the workman could not produce documentary evidence in support of his claim. 2. Brief facts of the case of the petitioner that he was working as Watchman on 12.1.1980 in the company of the opposite party no.3 as a casual labourer, he continued as such till 1987, he was manhandled by the Supervisor of the concerned company and assaulted physically for the reason that some officers of the Labour Department of Government of India came and enquired into the problem of the workers in the company and ascertained whether the workers are properly paid with their dues and departmental dresses and shoes. The petitioner has informed the Labour Officer of the Government of India which has made an issue for which the petitioner was not allowed to enter into the get of the work site since 1987 till the date, finally on the basis of a false reason made by the conciliation officer on the failure report under section 12(4) of the Act (hereinafter referred to as the Act). Reference has been refused on the ground that the petitioner has failed to submit valid document in support of his claim. Case of the petitioner that while refusing to refer the dispute by order passed in this regard dated 31.7.1995 functionary of the Ministry of Labour, office of the Regional Labour Commissioner(C), Government of India has not followed the mandate to the effect that if any dispute has been raised by workman it has to be referred under the provision of Section 10 of the Act for its adjudication by Tribunal having its competent jurisdiction. 3. None appears to represent the opposite parties. Since the matter is of the year 1986, hence this Court has decided to dispose of the writ petition on the basis of the averments made in the writ petition as well as legal proposition. 4. Before answering he issue it would be appropriate to refer to the provision of Section 10 of the Industrial Disputes Act, 1947 which provides provision for making reference at any time where appropriate government is the opinion that any dispute exists or is apprehended. 5. 4. Before answering he issue it would be appropriate to refer to the provision of Section 10 of the Industrial Disputes Act, 1947 which provides provision for making reference at any time where appropriate government is the opinion that any dispute exists or is apprehended. 5. With respect to the issue involved in this case the proposition as laid down from the judgment rendered by the Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another –vs- State of Bihar and others reported in (1989)3 SCC 271 whereby and where under their Lordships have been pleased to held at para-11 that in considering the question of making a reference under Section 10(1), the government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended, but it is not entitled to adjudicate the dispute itself on merits. Further at paragraph-13 it has been held that while exercising power under Section 10(1) of the Act, function of the appropriate government is an administrative function and not a judicial or quasi-judicial function, and in performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the list, which would certainly be in excess of the power conferred on it by Section 10 of the Act and thereafter taking into consideration the judgments rendered by the Apex Court in the case of Ram Avtar Sharma –v- State of Haryana reported in (1985)3 SCC 189 ; M.P.Irrigation Karmchari Sangh –v- State of M.P. reported in (1985) 2 SCC 103 ; Shambhu Nath Goyal –vs- Bank of Baroda, Jullundur reported in (1978)2 SCC 353 , their Lordship in the case has been pleased to hold that the issue adjudicating the merit is to be adjudicated by making a reference before the Tribunal under section 10(1) of the Act. In another judgment rendered by the Apex Court in the case of Sarva Shramik Sangh –vs-Indian Oil Corporation Ltd. & ors, reported in AIR 2009 SC 2355 where relying upon the ratio laid down by the Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another –vs- State of Bihar and others(supra) their Lordships has been pleased to hold at paragraphs 13 and 15 which is being quoted below: “13. Thus it can safely be concluded that a writ of mandamus would be issued to the appropriate government to reconsider the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate government examining the merits of the dispute and prejudging/adjudicating/determine the dispute; (iii) the refusal is mala fide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the failure report of the Conciliation Officer or is not supported by any reason. 15. In view of the above we allow this appeal and direct the Central Government to reconsider the matter in the light of the observations above and take an appropriate decision on the request for reference of the dispute to the Industrial adjudicator. As and when the state government makes the reference, it is for the Industrial Tribunal to consider the dispute on merits, on the basis of materials placed before it, uninfluenced by the observations of the High Court or this Court.” Thus from the proposition laid down by the Hon’ble Apex Court there is no dispute about the fact that when any dispute exists or is apprehended, the matter is to be referred by the appropriate government in exercise of power conferred under section 10(1) of the I.D.Act. 6. So far as the case in hand is concerned, petitioner has raised a dispute regarding arrears of wages by filing an application under section 33-C(2) of the I.D. Act, the case was allowed exparte and the claim of the applicant was computed to Rs.10,872/- vide order dated 21.5.1990. Against this order, opposite party no.3 filed writ petition being O.J.C. No.966 of 1991 challenging the exparte order of the Labour Court and this Court has set aside the exparte order and the matter was remitted before the Labour Court for disposal of the Misc. petition. Petitioner had filed another Misc. petition under section 33-C(2) of the Act claiming Rs.27,718/- for the wages from 9.8.1989 to 30.11.1991 and accordingly I.D.Misc.Case No.337 of 1991 was registered and both the Misc.Cases, 2/1989 and 337 of 1991 were disposed of analogously on 30.3.1993, whereby and where under Labour Court has held that the claim of the petitioner for recovery of back wages from with effect from 9.8.1989 to 30.11.1991 for his duty was not based on any documentary evidence. The court, therefore, held that unless a reference is made under section 10 of the Act and award is passed, the computation is not possible. A conciliation proceeding was initiated by the Assistant Labour Commissioner(Central) directing the management to produce all the papers and the workman who was also called to produce all the papers, but the Conciliation Officer when called upon the document from the management he did not get anything and ultimately the conciliation failed, report of such failure of the conciliation was not communicated to the petitioner but the same was communicated to the Government of India for taking action. On receipt of the failure report No.8(29)/93-BDS dated 6.5.1994, Government of India decided not to refer the dispute as the workman could not produce any documentary evidence in support of his claim. The order passed by the Government of India dated 6.5.1994 which has been communicated to the petitioner has been challenged in this writ petition. 7. From the facts it is evident that the petitioner has made claim for arrears of wages and when it was disputed for release of back wages, petitioner filed Misc.Case for under section 33-C(2) of the Act against the management and the same was rejected on the ground that the dispute having not been made by the management, no order has been passed adjudicating the claim. However, it has been observed that the same can only be adjudicated by way of reference to be made by the appropriate Government under section 10(1) of the Act, but the appropriate Government has refused to refer the dispute on the ground that no documents in support of the claim of the petitioner has been produced. 8. Section 10 of the I.D. Act makes provision for making reference at any time where appropriate Government is of the opinion that any dispute is exists or is apprehended. The proposition laid down by the Hon’ble Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another –vs- State of Bihar and others (supra) which has been followed in the case of Sarva Shramik Sangh –vs-Indian Oil Corporation Ltd. & ors (supra) wherein it has been held that while exercising power 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. In performing this administrative function the government cannot delve in to the merits of the dispute and take upon itself the determination of the list, which would certainly be in excess of the power conferred on it by Section 10 of the Act. So far as the dispute about the fact that the petitioner is contesting his case for getting the dispute adjudicated and the matter was referred by the Conciliation Officer but on failure of the conciliation, failure report was submitted before the appropriate government to exercise power conferred under Section 10(1) of the Act, but on the garb of the ground that the workman could not produce documentary evidence in support of the claim, reference has been refused, but according to our conscious view, order passed by the appropriate Government is not sustainable in the eye of law for the reason that the authority, who is dealing with the matter, on an application filed y the petitioner under Section 33-C(2) of the Act, has observed that the dispute raised by the petitioner is fit to be adjudicated by making reference under section 10(1) of the Act. Thereafter the matter was placed before the Conciliation Officer, but conciliation failed and accordingly failure report was submitted before the appropriate Government, hence it cannot be said that for lack of document, reference will not be made. Accordingly, taking into consideration this aspect of the matter, order passed by the Regional Labour Commissioner(C), Bhubaneswar (Annexure-5) and order dated 18.1.1995(Annexure-4) are not sustainable and are hereby quashed. 9. In the result and applying the ratio of judgment of Hon’ble Supreme Court delivered in the case of Telco Convoy Drivers Mazdoor Sangh and another –vs- State of Bihar and others (supra) for the reason that the dispute is of the year 1995 and as such this matter is not being remitted before the authority having jurisdiction to pass fresh order otherwise it will take further time, hence we direct the Central Government to make reference under section 10(1) of the I.D. Act of the dispute raised by the petitioner to the appropriate Industrial Tribunal within three months from the date of receipt of copy of this order and thereafter it is for the Industrial Tribunal to consider the dispute on merit on the basis of materials placed before it. The writ petition stands disposed of.