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2017 DIGILAW 389 (ORI)

Subimal Maity v. Union of India

2017-04-11

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Articles 226 and 227 of the Constitution of India assailing the order of the Director, Ministry of Labour and Employment, Government of India dtd.30.09.2014 whereby and where under the authorities have refused to refer the dispute for its adjudication. 2. The brief fact of the case of the petitioners is that they are working as contract labourers but actually they are performing the duty under the principal employer, i.e. the Defence, Research and Development Organization Guest House and Defence, Research and Development Organization Mess under Estate Manager, Estate Management Unit, Chandipur, Balasore which is directly under the Defence, Research and Development Organization and they are working since long. At the first instance they have approached the Central Administrative Tribunal vide original application being O.A. No.169 of 1999 which has been disposed of by holding that since the petitioners are not holding civil posts or casual posts directly under the department, the application has been held not maintainable and accordingly dismissed. The petitioners preferred writ petition before this court being O.J.C. No.10525 of 2001 assailing the order passed by the Central Administrative Tribunal dtd.21.3.2001, but subsequently the same has been withdrawn with liberty to raise dispute, this court has allowed the prayer of the petitioners vide order dtd.09.05.2006 while dismissing the writ petition giving liberty to them to approach the industrial forum or any other appropriate forum for adjudication of their grievance, in case they so advised. The petitioners raised their dispute before the Regional Labour Commissioner (Central, Bhubaneswar) which has been taken for conciliation but ultimately failed by the failure report dtd.26.02.2008, the petitioners challenged the failure of conciliation before this court vide W.P.(C) No.12354 of 2010, a Coordinate Bench of this court, while disposing of the writ petition, has directed the appropriate Government to examine the report of the Conciliation Officer submitted U/s.12(4) of the Industrial Disputes Act, 1947 and if it is satisfied that there is a case for reference, make reference of the dispute to the Labour Court within 4 weeks from the date of receipt of copy of the order. The order of this court has been communicated to the authority but again vide order dtd.19.11.2010 the dispute has not been found fit to be referred before the Labour Court. The order of this court has been communicated to the authority but again vide order dtd.19.11.2010 the dispute has not been found fit to be referred before the Labour Court. The petitioners again approached this court vide W.P.(C) No.19504 of 2011 and the learned Single Judge of this court vide order dtd.01.09.2014 has disposed of the writ petition by remitting the matter back to the appropriate Government to consider the matter of reference U/s.12(5) of the Industrial Disputes Act strictly in consonance with the spirit of the said provision. The authorities have again rejected the claim by not referring the dispute before the appropriate forum for its adjudication vide order dtd.30.9.2014, which has been impugned in the instant writ petition. 3. Learned counsel for the petitioners, while assailing the said order, has forcefully argued that even from the failure report submitted by the Conciliation Officer U/s.12(4) of the Industrial Dispute Act, which has been submitted basing on the divergent views of the management and the petitioners, which itself suggests that there is dispute regarding master and servant relationship, hence the same needs adjudication by the appropriate forum under the Industrial Dispute Act. He further submits that the ground has been taken by the management that the petitioners have been engaged through a contractor and as such there is no master – servant relationship, while the specific case of the workmen is that the contract is sham and camouflage, reason being that they are discharging their duties under the principal employer and as such the matter needs adjudication by the appropriate forum as to whether the contract is sham and camouflage or not? He submits that the petitioners cannot be remediless and when they are raising a dispute, it has to be adjudicated by answering the same either ways but due to arbitrariness of the authorities, the dispute is not being referred by passing an order U/s.12(5) of the I.D. Act and as such the dispute has not yet been answered and for that they are being victimized and subjected to unfair labour practice. The further submission has been made that the petitioners are approaching the court of law time and again and the authorities are passing orders in a very mechanical manner by rejecting the claim of the petitioners by not referring the same before the appropriate adjudicator under the industrial dispute Act. 4. The further submission has been made that the petitioners are approaching the court of law time and again and the authorities are passing orders in a very mechanical manner by rejecting the claim of the petitioners by not referring the same before the appropriate adjudicator under the industrial dispute Act. 4. The opposite parties have been represented by the learned Central Government Counsel, while defending the order passed by the authority, it has been argued that the petitioners are actually not the employees of the Defence Research and Development Organization of its unit at Chandipur, rather they have been engaged through a private contractor and as such there is no master-servant relationship in between them. He submits that the issue has been decided by the Central Administrative Tribunal in the order passed in O.A. No.169 of 1999 and as such there is no need to refer the dispute before the appropriate adjudicator. 5. We have heard the learned counsels for the parties and perused the documents available on record. The sole grievance raised by the petitioners is that they are working under the principal employer, i.e. Defence Research and Development Organization of its Chandipur Unit but through a contractor which is sham and camouflage and only to deprive them from the legitimate right to be considered for regularization in service. The grievance of the petitioners is that they need adjudication of their claim but the authorities are not referring the same before the appropriate adjudicator and thereby the dispute has remained unanswered and due to this reason the petitioners are subjected to unfair labour practice. 6. We, on appreciation of the factual aspect as has been referred in the writ petition and other part of the pleading, have found that the petitioners on the first instance have approached before the Central Administrative Tribunal vide O.A. No.169 of 1999 seeking regularization of their services, but the Tribunal vide order dtd.21.3.2001 has dismissed the O.A. by holding that the original application is not maintainable since the petitioners are not holder of civil post or casual post directly under the department. We, on examination of the order passed by the Central Administrative Tribunal in O.A. No.169 of 1999, have found that the Tribunal has not exercised its mind on the merit of the claim of the parties and the same has been dismissed being not maintainable. We, on examination of the order passed by the Central Administrative Tribunal in O.A. No.169 of 1999, have found that the Tribunal has not exercised its mind on the merit of the claim of the parties and the same has been dismissed being not maintainable. The petitioners thereafter have approached this court vide O.J.C. No.10525 of 2001 but the said writ petition was permitted to be withdrawn with liberty to approached the industrial forum or any other appropriate forum for adjudication of their grievance. The petitioners in view of the said liberty, have raised their dispute before the Regional Labour Commissioner (Central, Bhubaneswar) stating therein that they are actually performing their duties under the principal employer, i.e. the Defence Research and Development Organization of its Chandipur unit although they have been engaged through contractor, but that contract is a sham and camouflage and entered by the principal employer with the contractor only to deprive them from the legitimate claim to be regularized in service. The Regional Labour Commissioner has posted the matter for conciliation by issuing notice to the Management but the matter having not been conciliated due to divergent views of the parties, ended in failure and accordingly a failure report was submitted U/s.12(4) of the I.D. Act, 1947, as would be evident from the communication dtd.26th February 2008 (Annexure-5) annexed to the writ petition. The petitioners have challenged the same before this court vide W.P.(C) No.12354 of 2010, a Coordinate Bench of this court, while disposing of the writ petition, has directed the authorities to take decision in the light of the report submitted by the Conciliation Officer and if it is satisfied that there is a case of reference, make the reference of the dispute within 4 weeks from the date of receipt of copy of the order, but again the reference has been rejected vide order dtd.19th November 2010 by saying that in view of the report submitted by the Conciliation Officer U/s.12(4) of I.D. Act, 1947, the case may not be referred to the Labour Court, but why it has not been referred to the labour court, no reason has been assigned. The petitioners have again moved to this court vide W.P.(C) No.19504 of 2011 and the learned Single Judge of this court, vide order dtd.1.9.2014, while disposing of the writ petition, has remitted the matter back to the appropriate Government to consider the matter of reference U/s.12(5) of the I.D. Act strictly in consonance with the sprit of the said provision, if the appropriate Government has reasons not to refer the matter, the reasons be communicated to the petitioners in clear terms and in view thereof the authorities have passed an order on 30.09.2014. The dispute has been declined to be referred before the appropriate Government on the basis of the so called finding given by the Central Administrative Tribunal in its order dtd.21.3.2001 in O.A. No.169 of 1999 since there is no master and servant relationship between the management and the workman as such the decision taken on earlier occasion has been held to be justified, the said order is under challenge in this writ petition. 7. Before proceeding further, we though it proper to examine the legality and propriety of the order dtd.30th September, 2014 and on its perusal, we have found that the decision has been taken by the authorities by justifying their earlier decision merely on the basis of the finding of the Central Administrative Tribunal, Cuttack in its order dtd.21.3.2001 passed in O.A. No.169 of 1999. We have examined the order passed by the Central Administrative Tribunal and from its perusal it is evident that the petitioners have taken the stand that they are employees of the management, which has seriously been disputed by the management on the ground that the petitioners have not come out with valid documents to substantiate their claim that there is master-servant relationship in between them and the management. The Tribunal has also taken note of an order passed by it in O.A. No.346 of 1997 and thereby reached to conclusion that the master-servant relationship has not been established between the petitioners and the management and the applicants being not the holder of civil posts or casual posts directly under the department, the O.A. is held not to be maintainable and accordingly the same has been dismissed holding to be without any merit. The said order has been challenged by the petitioners before this court and the petitioners after seeking liberty have withdrawn the writ petition to approach the appropriate forum. The said order has been challenged by the petitioners before this court and the petitioners after seeking liberty have withdrawn the writ petition to approach the appropriate forum. It is settled that the relationship of master and servant is to be adjudicated by leading evidence being the subject matter of a dispute and it cannot be settled in a summery proceeding either before the Central Administrative Tribunal constituted under Administrative Tribunal Act, 1985 or before this court under Article 226 of the Constitution of India, rather the appropriate course is to adjudicate the dispute before the appropriate forum under the I.D. Act, 1947 but for that, some procedure is to be followed i.e. a dispute has to be raised before the competent authority, the authority will post the matter for its conciliation, the sitting of conciliation will be held and if the matter will be conciliated, the same will be closed, but in case of non-settlement of the issue, a failure report is to be submitted by the Conciliation Officer in exercise of power conferred U/s.12(4) of the I.D. Act, 1947 and the appropriate Government, in exercise of power conferred U/s.12(5) of the I.D. Act, 1947, is supposed to take decision for reference of the dispute for its adjudication. 8. In the instant case, the authorities, at the initial stage have passed the order by not referring the matter before the adjudicator on the basis of the finding of the Central Administrative Tribunal, but however pursuant to the order passed by this court the matter was raised before the competent authority, meeting of conciliation was held, due to the disputed question of fact and the conciliation having not been arrived at, the conciliation failed and a failure report was submitted before the appropriate Government, this suggests that there is factual dispute about the claim of the parties, hence the same needs adjudication by leading evidence before the adjudicator if reference is made for its adjudication U/s.10(1) of the I.D. Act, 1947 which provides provision for making reference at any time where appropriate Government is of the opinion that any dispute exists or is apprehended. The issue with respect to the authority of the appropriate Government in making a reference was the subject matter before the Hon’ble Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and Another Vrs. The issue with respect to the authority of the appropriate Government in making a reference was the subject matter before the Hon’ble Apex Court 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 while dealing with such situation, it has been held that the question of making a reference U/s.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 merit. In the said judgment, at paragraph 13, it has been held that while exercising power under Sec.10(1) of the Act, function of the appropriate Government is administrative and not judicial or quasi-judicial 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 to it by Section 10 of the Act and thereafter taking into consideration the judgments rendered by the Hon’ble Apex Court in the cases of Ram Avtar Sharma Vrs. State of Haryana, reported in (1985) 3 SCC 189 , M. P. Irrigation Karchari 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 the Hon’ble Apex Court 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 Hon’ble Apex Court in the case of Sarva Shramik Sangh Vrs. Indian Oil Corporation Ltd. & Ors., reported in AIR 2009 SC 2355 , the Hon’ble Apex Court, while relying upon the judgment rendered by it in the case of Telco Convoy Drivers Mazdoor Sangh and another Vrs. State of Bihar and others (supra) has been pleased to hold as follows:- “13. Indian Oil Corporation Ltd. & Ors., reported in AIR 2009 SC 2355 , the Hon’ble Apex Court, while relying upon the judgment rendered by it in the case of Telco Convoy Drivers Mazdoor Sangh and another Vrs. State of Bihar and others (supra) has been pleased to hold as follows:- “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.” 9. We have examined the definition of Industrial Dispute, as has been provided U/s.2(k) of the Industrial Dispute Act which reads as follows:- “2(k).Industrial Dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.” From perusal of the definition of “industrial dispute” it is regarding dispute in between the employer and its workman. In the backdrop of this legal position, the case in hand is to be scrutinized as to whether it is a fit case for making reference or not. In the backdrop of this legal position, the case in hand is to be scrutinized as to whether it is a fit case for making reference or not. It is not in dispute that the petitioners are working under the management, the only dispute is that they are working through contractor, not directly under the principal employer, as we have got this from the order passed by the Central Administrative Tribunal, basis upon which the Tribunal has reached to conclusion that there is no master-servant relationship in between the petitioners and the management, to substantiate this the petitioners have not produced any cogent proof, hence the Tribunal has dismissed the O.A. holding the petitioners not holder of civil post or casual post directly under the department. The all along case of the petitioners is that although they are working under the contractor but doing the work of the principal employer and the contract is a sham and camouflage and as such the same needs to be adjudicated. 10. We have not got any material after going across the pleading that while rejecting the claim of the petitioners by the appropriate authority in not making reference before the appropriate adjudicator, the averment has been made regarding the contract having been sham and camouflage and if that is so, it has to be adjudicated by the appropriate adjudicator. We have also examined the order passed by the authority on the first instance by which the reference has been declined to be made after submission of conciliation failure report but without any reason, as would be evident from the order dtd.19th November 2010. We have also examined the order passed by the authority on the first instance by which the reference has been declined to be made after submission of conciliation failure report but without any reason, as would be evident from the order dtd.19th November 2010. The said order has again been challenged by the petitioner before this court vide W.P.(C) No.19504 of 2011 and this court, while remitting the matter back, has directed the authorities to pass a fresh order and in case the case is found not fit to be referred, the valid reason is to be assigned, in pursuance thereto a fresh order has been passed on 30th September 2014 but again the issue regarding the contract having been alleged to be sham and camouflage has not been discussed at all, rather the authorities have gone into the finding of the Central Administrative Tribunal by which the Tribunal has observed that there is no master and servant relationship between the management, but while quoting the finding, the authorities have failed to consider the fact that the Tribunal has given that finding in a summary proceeding and further in pursuance to the liberty having been granted in the writ jurisdiction, the conciliation has ended in failure due to serious dispute over the issue, hence in that situation, the appropriate Government, in exercise of its quasi-judicial power conferred U/s.12(5) of the I.D. act ought to have referred the dispute before the appropriate adjudicator, but in a very mechanical manner and without assigning any reason with respect to the primary issue of contract alleged to be a sham and camouflage, has declined to refer the dispute. In view of the foregoing reasons we are of the considered view that the order passed by the authorities dtd.30th September, 2014 is not sustainable in the eye of law, accordingly the same is quashed. 11. In view of the foregoing reasons we are of the considered view that the order passed by the authorities dtd.30th September, 2014 is not sustainable in the eye of law, accordingly the same is quashed. 11. We have taken into consideration the fact that the matter should be remitted before the authority for taking a decision but since the authorities have passed two orders almost on similar grounds and the issue pertains to the year 2007, the dispute having been raised by the petitioners before the date of dispute having been raised by the petitioners before the Regional Labour Commissioner and as such as on date it has almost gone 10 years, taking into consideration this aspect of the matter and also applying the ratio of judgment rendered by Hon’ble Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another Vrs. State of bihar and Others (supra), 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 appropriate Government to make reference U/s.10(1) of the I.D. Act of the dispute raised by the petitioner to the appropriate Industrial Tribunal / Labour Court within three months from the date of receipt of copy of this order and thereafter it is for the Industrial Tribunal/Labour Court to consider the dispute on merit on the basis of material placed before it so that an independent decision can be taken on the rival submission of the parties without being prejudiced by the order passed by this court. With these observations and directions the writ petition stands disposed of.