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2016 DIGILAW 924 (ORI)

Suresh Kumar Pradhan v. Union of India

2016-10-06

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. The writ petition has been filed for issuance of direction upon the opposite parties to act as per Section 12(5) of the Industrial Disputes Act, 1947 and to refer the existing industrial dispute for adjudication. 2. Fact of the case of the petitioner is that he was engaged as Electrical Helper under the opposite parties in the year 1988 and continued till 1995 continuously and was getting Rs.1200/- per month as wages/salary but his services has been discontinued after allowing him to render service for a period of 8 years, petitioner being aggrieved wih such illegal action made representation to the Superintending Engineer, Regional Research Laboratory, Bhubaneswar but however to no effect having no option the petitioner raised a dispute before the Assistant Labour Commissioner(Central), Bhubaneswar who has called upon the parties to participate in the conciliation proceeding but conciliation failed, as such the Conciliation Officer has submitted his reply under Section 12(4) of the Industrial Disputes Act, 1947 to the Central Government but the Central Government while exercising power under section 12(5) of the Industrial Disputes Act has refused to make reference to the Central Tribunal, against which this writ petition has been filed. 3. Counter affidavit has been filed by the opposite party-Union of India, inter alia therein it has been stated that the Regional Research Laboratory, Bhubaneswar is a constituent establishment of Council of Scientific & Industrial Research and as such is not amenable to writ jurisdiction since it is not coming in fold of Article 12 of the Constitution of India. The petitioner was never recruited nor any interview was conducted for any post. He was never issued appointment letter rather he had been engaged for some specific petty job works against specific sum of amount for a specified time, as such he cannot claim to be retained in service and as such it has been stated that the appropriate Government has rightly passed order impugned by not referring the dispute before the Central Tribunal. It is evident from the averments made in the counter affidavit filed by the Union of India who has disputed that the petitioner has not been engaged under regular establishment rather he has been engaged to perform a specific work, meaning thereby the factual aspect which the petitioner is raising, has been disputed by the opposite party no.3. It is evident from the averments made in the counter affidavit filed by the Union of India who has disputed that the petitioner has not been engaged under regular establishment rather he has been engaged to perform a specific work, meaning thereby the factual aspect which the petitioner is raising, has been disputed by the opposite party no.3. In this pretext, adjudication of the fact is warranted. 4. We have heard learned counsel for the parties and perused the documents available on record. We, before appreciating rival submissions, have gone through the statutory provision as contained in Section 12(5) of the Industrial Disputes Act, 1947 which stipulates a provision that if, on consideration of the report referred to in sub-section(4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reason therefore. Provision as contained in Section 12(5) authorizes appropriate Government to make reference and power to refuse to make reference. The first of the statute speaks of the power of the appropriate Government to make a reference lays down that if on a consideration of the report under sub-section(4), the appropriate Government is satisfied that there is a case for reference. The first part of the sub-section has to be read as part of sub-section(1) of Section 10 which empowers the appropriate Government to make a reference of the dispute. The combined effect of these provisions is that ordinarily the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. It is evident from the statutory provision that the Government is bound to refer the dispute to the appropriate court or forum for adjudication. However, policy of the industrial adjudication is that very stale claims should not be generally encouraged or allowed unless there is satisfactory explanation for delay, as, apart from the obvious risk to industrial peace from entertaining the claims after long lapse of time. In the case of Shalimar Works Ltd. vrs. However, policy of the industrial adjudication is that very stale claims should not be generally encouraged or allowed unless there is satisfactory explanation for delay, as, apart from the obvious risk to industrial peace from entertaining the claims after long lapse of time. In the case of Shalimar Works Ltd. vrs. Their Workmen reported in AIR 1959 SC 1217 , the Hon’ble Supreme Court has pointed out that though there is no limitation prescribed in making a reference of disputes to Industrial Tribunal under Section 10(1) even so it is only reasonable that disputes should be referred as soon as possible after it has arisen and after conciliation proceeding have failed. In another judgment rendered by the Hon’ble Supreme Court in the case of Mahavir Singh Vs. U.P. State Electricity Board and another reported in (1999) 9 SCC 178 , it has been held that merely on the ground of delay of 9 years, reference cannot be denied and that mere delay does not cease the dispute. In the case of Telco Convoy Drivers Mazdoor Sangh and another Vrs. State of Bihar and others reported in (1989) 3 SCC 271 whereby and where under their Lordships have been pleased to hold 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 lis, 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 vrs. State of Haryana reported in (1985) 3 SCC 189 ; M.P. Irrigation Karmachari Sangh Vrs. State of M.P. reported in (1985) 2 SCC 103 ; Shambhu Nath Goyal Vrs. State of Haryana reported in (1985) 3 SCC 189 ; M.P. Irrigation Karmachari Sangh Vrs. State of M.P. reported in (1985) 2 SCC 103 ; Shambhu Nath Goyal Vrs. Bank of Baroda, Jullundur reported in (1978) 2 SCC 353 , their Lordships in these cases has been pleased to hold that the issue regarding 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 Vrs. 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 Vrs. 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.” The Hon’ble Apex Court in the case of Kuldeep Singh Vs. G.M., Instrument design Development & Facilities Centre & anr., reported in AIR 2011 SC 455 has been pleased to hold at paragraph-21 which is being quoted herein below: “In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. G.M., Instrument design Development & Facilities Centre & anr., reported in AIR 2011 SC 455 has been pleased to hold at paragraph-21 which is being quoted herein below: “In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government "at any time" refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for latches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. xxx” 5. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. xxx” 5. So far as fact of the case in hand is concerned, it is not in dispute that the petitioner was working under the management although not under permanent establishment rather for a specific period on a specific remuneration in which he has continued for a period of 8 years and when terminated he has raised a dispute before the Asst. Labour Commissioner(Central) who has invited meeting for conciliation of the dispute but ended in failure and as such in exercise of power under section 12(4) of the Industrial Disputes Act, 1947, failure report was submitted before the appropriate Government, the appropriate Government in exercise of power conferred under Section 12(5) of the Industrial Disputes Act has refused to refer the dispute. 6. We have already discussed the legal position regarding the power of the appropriate Government as per the provision as contained in section 12(5) read with section 10(1) of the Industrial Disputes Act, 1947 which is purely administrative in nature and appropriate Government in no stretch of imagination can decide the claim on merit in order to refuse the reference to be referred before the appropriate forum, reason being the appropriate Government while exercising power under section 12(5) read with Section 10(1) of the Industrial Disputes Act, 1947 acts as an administrative authority and as such the appropriate government is not authorized to adjudicate the issue. 7. Considering the aforesaid fact and the legal position as has been discussed herein above, we are of the conscious view that since the appropriate Government has not decided to refer the dispute before the appropriate forum by taking decision on merit of the dispute, hence the said decision dated 3.7.1998 cannot be said to be just and proper, rather it is contrary to the statutory provisions of law and settled proposition of law as has been discussed herein above, it is not sustainable and accordingly quashed. 8. 8. In the result, we direct the Central Government to reconsider the matter in the light of the observations made above and take decision on the request for reference of the dispute to the Industrial Adjudicator which shall be taken within four weeks from the date of receipt of copy of this order and after reference having been made by the appropriate Government, it is for the Industrial Adjudicator to consider the dispute on merit on the basis of the materials placed before it uninfluenced by the observations made in this order. With the above observation and direction, the writ petition is disposed of.