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2017 DIGILAW 2260 (RAJ)

Tarachand Nai v. Union of India

2017-10-27

SANJEEV PRAKASH SHARMA

body2017
JUDGMENT : Sanjeev Prakash Sharma, J. 1. Both the counsel agree that the matter can be disposed of at this stage. Vide order dated 10.9.2014 passed by the Government of India, the failure report submitted by the Conciliation Officer has been returned, refusing to send the matter for reference in terms of Section 10 of the Act of 1947. The Section Officer of Government of India, Ministry of Labour has proceeded to examine the dispute at his level and has put forward reasons which go to root of the case and essentially on the basis of the pleadings taken up by the respondent before the Conciliation Officer he has held that the dispute is not fit for adjudication by adjudicating itself. 2. Learned counsel for the petitioner submits that the law has been laid down by the Apex Court with regard to power of reference in "Telco Convoy Drivers Mazdoor Sangh v. State of Bihar, AIR 1989 SCC 1565, wherein it has been held as under. Para 14 Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the person raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh's case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render section 10 and section 12(5) of the Act nugatory. Para 15 We are, therefore, of the view that the State Government, which is the appropriate Government, was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner acting on behalf of the Government and that of the Government itself cannot be sustained. 3. The Co-ordinate Bench of this Court also in the case of "Bhanwar Singh v. Government of India & Anr." reported in 2011 WLC (Raj.) UC 372, held as under : "Para 9 In the instant case, the appropriate Government, while declining to make reference, recorded a finding on merits of the industrial dispute which, in the opinion of this Court, is nothing but exceeding the powers available with the appropriate Government under Section 12(5) of the Act, 1947 and what has been observed by the appropriate Government while declining to make reference is for the adjudicatory authority provided under the Act to examine whether adequate opportunity was afforded to the workman during the course of enquiry initiated against him which was made a basis for passing the order of removal from service." 4. This Court is of opinion that the State Government or any other appropriate Government is not empowered to examine the merits of the case while examining the issue of sending the matter for reference of dispute in terms of Section 10 of the ID Act. If there is any particular question, which the Government feels need to be adjudicated, at the thresh hold, it may in-corporate the same in the terms of the reference. However, as the Section Officer or appropriate Government cannot be said to have any powers given to it in terms of the Act of 1947, the order passed by the respondent denying to send the dispute after receiving the failure report from the Conciliation Officer is clearly unjustified. 5. Accordingly this writ petition is allowed. The order dated 10.9.2014 is quashed and set aside. The respondents are directed to draw the terms of reference and send the same to the concerned appropriate Tribunal/Labour Court. Since the matter is pending since 2014, the reference shall be submitted within a period of three months of submission of certified copy and upon receiving such a reference, the Labour Court/Tribunal would decide the matter expeditiously.