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2018 DIGILAW 662 (JHR)

Shankar Bhuia v. Union Of India

2018-03-21

RAJESH SHANKAR

body2018
ORDER Rajesh Shankar, J. - The present writ petition has been filed for quashing the order dated 22nd August, 2014, as contained in Memo No. L-20012/76/2014-IR(CM-1), issued under the signature of the Section Officer, Ministry of Labour, Government of India, New Delhi, whereby the said Ministry did not find it proper to refer the dispute raised on behalf of the petitioner for industrial adjudication. 2. The factual matrix of the case, as stated in the writ petition, is that the petitioner''s father, namely, Aklu Bhuiya was appointed as Store Tyndal at Kustore Area No. 2 of M/s. Bharat Coking Coal Limited on 28th August, 1972, who died in harness on 22nd June, 1993. The petitioner''s mother-Jaswa Devi, being wife of the concerned workman (Late Aklu Bhuiya), submitted an application before the Project Officer, Kustore Area of M/s. Bharat Coking Coal Limited-respondent no. 4 on 17th August, 1993 and 10th July, 1995 for keeping the name of the petitioner in the live roster on the ground that during the relevant time, the petitioner was a minor. After attaining majority, the petitioner made an application in the month of April, 2001 before the Manager of the concerned colliery, seeking compassionate appointment in place of his father. The respondent no. 4 vide letter contained in Memo No. BCCL/Kustore Colliery/2003/369 dated 24th/26th February, 2003 rejected the said claim seeking compassionate appointment by the petitioner on the ground of delay. An industrial dispute was raised on behalf of the petitioner by Bahujan Mazdoor Union against denial by the Management of BCCL in providing compassionate appointment to the petitioner. The conciliation between the Management and the Union however failed and a failure report was sent to the Appropriate Government i.e. the Government of India through the Ministry of Labour and Employment, New Delhi. However, vide impugned letter dated 22nd August, 2014 issued under the signature of the Section Officer, Ministry of Labour, Government of India, the Appropriate Government refused to refer the dispute for adjudication. 3. Learned counsel for the petitioner, while assailing the impugned order dated 22nd August, 2014, submits that the Appropriate Government by refusing to refer the matter for adjudication cannot itself adjudicate the dispute. 3. Learned counsel for the petitioner, while assailing the impugned order dated 22nd August, 2014, submits that the Appropriate Government by refusing to refer the matter for adjudication cannot itself adjudicate the dispute. The Appropriate Government is not authorized to see the merit of the claim made on behalf of the workman, rather if the conciliation fails and there is a prima facie dispute in existence, the Appropriate Government is duty bound to refer the matter before the Appropriate Court for adjudication of the industrial dispute. The said legal position has already been settled by the Hon''ble Apex Court in catena of judgments. One of such judgments has been rendered in the case of Sarva Shramik Sangh v. Indian Oil Corporation Ltd. & Ors., reported in (2009)11 SCC 609 . Learned counsel for the petitioner further submits that the Appropriate Government cannot enter into the merit of the dispute and thereby refusing to refer the same for adjudication before the industrial adjudicator. 4. Per contra, Mr. A.K. Mehta, learned counsel, appearing on behalf of the respondent-BCCL, while referring to the counter affidavit filed on behalf of the respondent nos. 2 to 4, submits that Late Aklu Bhuiya, Ex. Store Tyndal was employed in the establishment of Kustore Colliery of M/s. BCCL. He died on 22nd June, 1993, while he was in service. At the time of death of his father, the petitioner was merely ten years old. It is further submitted that as per the provisions of the National Coal Wage Agreement, the minimum age of a minor for keeping him in live roster was 12 years and upon attaining the age of 18 years, the Management was required to provide employment. It is also submitted that as per own version of the petitioner, he attained the age of 18 years in the year 2001, where after he made an application before the management in April, 2001 for providing him compassionate appointment. The management, however, vide order dated 26th February, 2003 regretted the application for compassionate appointment. After lapse of more than ten years of regretting the application for compassionate appointment preferred by the petitioner, the Joint General Secretary of Bahujan Mazdoor Union raised an industrial dispute for providing compassionate appointment to the petitioner. The management, however, vide order dated 26th February, 2003 regretted the application for compassionate appointment. After lapse of more than ten years of regretting the application for compassionate appointment preferred by the petitioner, the Joint General Secretary of Bahujan Mazdoor Union raised an industrial dispute for providing compassionate appointment to the petitioner. The conciliation was taken up by the Assistant Labour Commissioner (Central) and discussions were held on several dates and finally on 15th April, 2014, the Conciliation Officer recorded a failure conciliation report, which was forwarded to the Appropriate Government for formation of opinion as to whether an industrial dispute exists or is apprehended followed by an order of reference. However, vide impugned order dated 22nd August, 2014, the Appropriate Government refused to refer the dispute for adjudication. 5. Learned counsel for the respondent-management further submits that the Appropriate Government (Government of India in the present case), while rejecting the request for referring the dispute, has not entered into the merit of the case, rather it has formed an opinion about the existence/non-existence of an industrial dispute or an apprehended industrial dispute on the basis of the materials available on record and thereby the reference has been refused by issuing the impugned order. 6. Heard learned counsel for the parties and perused the materials available on record. The Government of India, through the Ministry of Labour vide impugned letter dated 22nd August, 2014 (Annexure-7 to the writ petition) refused to refer the dispute for adjudication for the following reasons:- "Shri Shankar Bhuia, dependent son of Late Aklu Bhuia (expired on 22.06.1993) is not entitled to get compassionate employment after the death of his father, who was working at Kustore Colliery of BCCL. His name was not kept in the Live Roaster Register as he was merely 10 years at the time of death of his father. Under the provision of NCWA, the minimum age of a minor should be 12 years for keeping the name of dependent in the Live Roaster Register for getting employment commensurate with his skill and qualification, when he attains the age of 18 years. The Union also failed to provide documentary evidence in support of exact age of Sh. Shankar Bhuia at the time of death of his father." 7. The Union also failed to provide documentary evidence in support of exact age of Sh. Shankar Bhuia at the time of death of his father." 7. On perusal of the reasons given in the impugned letter dated 22nd August, 2014, it appears that the Government of India has considered the fact that Late Aklu Bhuia (father of the petitioner) expired on 22nd June, 1993, while working in Kustore Area colliery of M/s. BCCL, the name of the petitioner was not kept in the live roster register, as he was merely of ten years at the time of death of his father. Under the prevalent NCWA, the minimum age of a minor dependent son of the deceased employee should have been 12 years for keeping his name in the live roster register for getting employment conforming to his skill and qualification when he subsequently attains the age of 18 years. It was further observed in the impugned letter dated 22nd August, 2014 that the Union failed to provide any documentary evidence in support of actual age of the petitioner at the time of death of his father. 8. On perusal of the averments made in the writ petition as well as averments made in the counter affidavit filed on behalf of the respondent-BCCL, it appears that the petitioner has not mentioned his date of birth. It is not the case of the petitioner that he was above 12 years of age at the time of death of his father so as to qualify him being the dependent son of the deceased employee for getting his name kept in the live roster register to entitle him to get employment after he would attain the age of 18 years. 9. The main contention of the petitioner raised through the present writ petition is that the Government of India while refusing to refer the matter for adjudication has entered into the merit of the dispute, which is contrary to law. I find no force in the said contention made on behalf of the petitioner. On perusal of the impugned letter dated 22nd August, 2014, it cannot be construed that the Appropriate Government (Government of India) has entered into the merit of the dispute, rather it has formed an opinion to find out as to whether any prima facie dispute for referring the same for industrial adjudication exists. On perusal of the impugned letter dated 22nd August, 2014, it cannot be construed that the Appropriate Government (Government of India) has entered into the merit of the dispute, rather it has formed an opinion to find out as to whether any prima facie dispute for referring the same for industrial adjudication exists. If during the conciliation proceeding, the petitioner had established that he was above the age of 12 years at the time of death of his father, the dispute would have certainly existed. The very basis of the claim as per the relevant provisions of the prevalent NCWA could not even been prima facie established by the petitioner. Thus it cannot be said that there was any dispute existed at all. 10. I also perused the judgment cited by the learned counsel for the petitioner rendered in the case of Sarva Shramik Sangh v. Indian Oil Corpn. Ltd (supra.). In the said judgment, the Hon''ble Supreme Court held 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/determining 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. However, in the case in hand none of the conditions as mention above is present. 11. The Hon''ble Supreme Court in the case of Secy., Indian Tea Assn. v. Ajit Kumar Barat, reported in (2000) 3 SCC 93 . "4. Mr. Dipankar Gupta, learned counsel for the appellant relying on the decision of this Court in State of Madras v. C.P. Sarathy has urged that while discharging its function under Section 10(1) of the Act, the Government was performing an administrative act, therefore, the Court could not have come to the finding that the refusal to refer the matter was bad. Dipankar Gupta, learned counsel for the appellant relying on the decision of this Court in State of Madras v. C.P. Sarathy has urged that while discharging its function under Section 10(1) of the Act, the Government was performing an administrative act, therefore, the Court could not have come to the finding that the refusal to refer the matter was bad. We quote below the relevant paragraph of the judgment: "This is, however, not to say that the Government will be justified in making a reference under Section 10(1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry. It is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference. But, it must be remembered that in making a reference under Section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial determination. No doubt, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters." 5. We may also refer to the decision of this Court in Prem Kakar v. State of Haryana. In that case a question arose whether an employee was a workman. We may also refer to the decision of this Court in Prem Kakar v. State of Haryana. In that case a question arose whether an employee was a workman. The Government informed the workman that his case was not covered by the definition of the term "workman" under the Act, therefore, it refused to make a reference. The workman approached the High Court for a writ of mandamus which was dismissed. This Court was approached and the appeal was dismissed. In appeal it was contended before this Court that the question whether an employee was a workman is a disputed question of facts and law and, therefore, could only be decided by the Labour Court on a reference and not by the State Government while exercising its powers under Section 12(5) of the Act, which was rejected. The Court also held that the order of the Government acting under Section 10(1) read with Section 12(5) of the Act passed after subjective satisfaction is an administrative order and not a judicial or a quasi-judicial one. It was also held that in entertaining a writ of mandamus against such an order the court does not sit in appeal and is not entitled to consider the propriety or the satisfactory character of the reasons. However, if it appears from the reasons given in the order that the appropriate Government has taken into account any consideration which is irrelevant or foreign, then the court may in a given case consider the case of a writ of mandamus. 6. In Sultan Singh v. State of Haryana this Court held that an order issued under Section 10 of the Act is an administrative order and the Government is entitled to go into the question whether an industrial dispute exists or is apprehended and it will be only a subjective satisfaction on the basis of the material on record and being an administrative order no lis is involved. 7. The law on the point may briefly be summarised as follows: 1. The appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended and if such a reference is made it is desirable wherever possible, for the Government to indicate the nature of dispute in the order of reference. 2. 2. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi-judicial one and the court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial order. 3. An order made by the appropriate Government under Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government. 4. If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the court may in a given case consider the case for a writ of mandamus. 5. It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act." 12. While forming an opinion with regard to existence of dispute for referring the same for industrial adjudication, the Appropriate Government has to satisfy itself on the facts and circumstances brought to its notice for its subjective opinion that an industrial dispute exists or is apprehended. If the contention made on behalf of the petitioner is accepted, then the whole purpose of authorizing the Appropriate Government under Section 10(1)(d) of the Industrial Disputes Act, 1947 would have no application at all. The Appropriate Government is, therefore, authorized under the said provision of the Act 1947 to form an opinion on the basis of the materials produced regarding existence/non-existence of prima facie industrial dispute. 13. Though the impugned letter does not reflect any reason on the point of delay committed in raising the industrial dispute at the instance of the petitioner, yet it is admitted fact that the cause of action arose as soon as the respondent no. 4 rejected the claim of the petitioner vide letter dated 24th/26th February, 2003 (Annexure-4 to the writ petition). However, the industrial dispute was raised by the concerned Union at the instance of the petitioner on 4th July, 2013 i.e. after more than a decade. 14. 4 rejected the claim of the petitioner vide letter dated 24th/26th February, 2003 (Annexure-4 to the writ petition). However, the industrial dispute was raised by the concerned Union at the instance of the petitioner on 4th July, 2013 i.e. after more than a decade. 14. Considering the aforesaid facts and circumstances of the case, this Court does not find any reason to interfere with the impugned order dated 22nd August, 2014, as contained in Memo No. L-20012/76/2014-IR(CM-1), issued under the signature of the Section Officer, Ministry of Labour, Government of India, New Delhi. The writ petition being devoid of merit is, accordingly, dismissed.