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Jupiter Cashew Company Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1982)IILLJ373Ker
AppellantJupiter Cashew Company
RespondentState of Kerala and ors.
Cases ReferredAbdul Rahiman Haji v. Abdul Rahman
Excerpt:
.....that in the interest of industrial peace and for promoting industrial harmony, it is desirable to make a reference the appropriate government does not lack power to do so under section 10(1) and that the government is not precluded from making the reference on the only ground that on an earlier occasion it had declined to make the reference. on a reading of the relevant provision in sections 10 and 12 of the act, it is crystal clear that the power conferred on the government under section 10(1) is a discretionary power which is administrative in character and this power has to be exercised on being prima facie satisfied that an industrial dispute exists or is apprehended. that if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the..........as a preliminary to the discharge of the functions. in a case where the government refuses to make a reference under section 10(1) of the act, it has to give its reasons for the order refusing reference, whereas the government is not bound to give reasons in an order referring a dispute under the said section. it is now well settled by the authoritative pronouncement of the supreme court in a.s. production agencies v. ind. tribunal, haryana 1979-i l.l.j. 1, that making of reference under section 10(1) is an administrative function of the government; that merely because the government rejects a request for a reference, or declines to make a reference, it cannot be said that the industrial dispute has ceased to exist; that the industrial dispute may nonetheless continue to remain in.....
Judgment:

K.K. Naredran, J.

1. This appeal filed by the petitioner in O.P. No. 2339 80-J is directed against the judgment therein refusing to quash Ext. P3, an order of reference made by the Government of Kerala, the first respondent herein, under Section 10(1) of the Industrial Disputes Act, 1947, hereinafter called the Act, for brevity. The third respondent herein while he was working in the Quilon Office of the petitioner was transferred to Murikkumpadom on 6 2-1978 where the petitioner has a branch office. According to the third respondent his transfer to Marikkumpadom was against he terms of his employment and the tansfer under the circumstances raised an industrial dispute which requires to be adjudicated by the Tribunal.

2. The appellant contended that the third respondent was employed in a managerial capacity; that he was not a workman coming within the definition of that term under the Act; that this matter was, on an earlier occasion, fully considered by the Government and the reference of the dispute was refused by Ext. P2 order dated 15-5-1975, that Ext. P3 order passed after almost 2 years was one without jurisdiction and that there is no dispute capable of being adjudicated under the Act existing between the concerned parties.

3. In the counter-affidavit filed on behalf of the Government, it was contended that the third respondent was not a manager; that he was only a clerk drawing below Rs. 500 per manager; that on the basis of the materials available the Government felt that it was only fair that the dispute which requires examination of facts is finally decided by a competent Tribunal and that it was not fair to take a final decision on the disputed question by the Government.

4. On behalf of the third respondent it was contended that he was not a manger as claimed by the petitioner; that his transfer is barred under the terms of his employment; that it is a matter which has to be investigated and that a Tribunal or Labour Court alone was competent to consider the dispute,

5. The learned single Judge before whom the original petition came up for hearing dismissed the petition holding whether or not the third respondent was a workman within the meaning of the Act and whether the terms of the contract of employment justified the transfer of the third respondent and the right of the 4th respondent-union to espouse the cause of the third respondent are questions regarding jurisdiction and locus standi which can be preliminarily raised before the Labour Court.

6. Assailing the judgment of the learned single Judge, Sri V. Bhaskaran Nambiyar, learned advocate appearing for the appellant, raised the following points :

(i) Whether the Government have power to direct a reference after declining to make one on an earlier occasion.

(ii) Under any circumstance Government have no power to reconsider such a dispute without fresh materials.

(iii) Whether a reference under Section 10 of the Act can be made without a notice or hearing given to the employer.

(iv) In any view, Ext. P3 order is vitiated and liable to be set aside as the Government have not come to a prima facie determination on jurisdictional facts and expediency of making a reference.

7. The counsel appearing on either side relied on a catena of decisions rendered by the Supreme Court as well as the High Courts in support of their respective contentions ; bat we do not think it necessary to refer to all these decisions, as some of the points arising for determination have been concluded by authoritative pronouncements of the Supreme Court. The learned Addl. Advocate-General appearing on behalf of State and the counsel appearing for the third respondent submitted that there is no valid ground or reason to interfere with the judgment of the learned single Judge; that there were fresh materials before the Government at the time when they passed Ext. P 3 order; that before making a reference under Section 10 of the Act, the employer is not entitled to any notice or hearing and that the Government was satisfied that there was a prima facie case for reference.

8. An industrial dispute under the Act. will be one between the employer and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of labour of any person. There is a distinction between an individual dispute and a collective dispute. When an individual dispute becomes a collective dispute between the employer and the workmen, it will be an industrial dispute under the Act. It is clear from the definition of industrial dispute under the Act that it is not necessary for existence of an industrial dispute that claim on behalf of the employees or the workmen should necessarily be a lawful one. As individual dispute which has not become a collective dispute cannot be characterised as an industrial dispute. It is a necessary requirement that the claim put forward should be on behalf of the employees or workmen generally. The essential characteristic of an industrial dispute is a difference of opinion between the employer and the employee, in an industry in relation to a claim generally made on behalf of the employees or of a section of the employees or even one person depending upon the facts and circumstances of the particular case. A reference made under Section 10(1) of the Act by the Government is only an administrative act. All the same the Government has to form an opinion that an industrial dispute exists or is apprehended as a preliminary to the discharge of the functions. In a case where the Government refuses to make a reference under Section 10(1) of the Act, it has to give its reasons for the order refusing reference, whereas the Government is not bound to give reasons in an order referring a dispute under the said section. It is now well settled by the authoritative pronouncement of the Supreme Court in A.S. Production Agencies v. Ind. Tribunal, Haryana 1979-I L.L.J. 1, that making of reference under Section 10(1) is an administrative function of the Government; that merely because the Government rejects a request for a reference, or declines to make a reference, it cannot be said that the industrial dispute has ceased to exist; that the industrial dispute may nonetheless continue to remain in existence and if at a subsequent stage the appropriate government is satisfied that in the interest of industrial peace and for promoting industrial harmony, it is desirable to make a reference the appropriate Government does not lack power to do so under Section 10(1) and that the Government is not precluded from making the reference on the only ground that on an earlier occasion it had declined to make the reference. This is clear from the expression 'at any time' used in Section 10(1) of the Act. On a reading of the relevant provision in Sections 10 and 12 of the Act, it is crystal clear that the power conferred on the Government under Section 10(1) is a discretionary power which is administrative in character and this power has to be exercised on being prima facie satisfied that an industrial dispute exists or is apprehended. In other words, Section 10(1) confers a power on the appropriate Government either to refer the dispute or not to refer it for industrial adjudication according as the Government is of opinion that it is expedient to do so or not. No doubt while considering whether there is a prima facie case for reference by the Government, it will necessarily involve going to some extent at least into the merits of the case. A claim made may be patently frivolous or highly belated or on the particular facts a reference may not be in the interests of industrial peace and promotion of industrial harmony. But the appropriate government cannot go to the extent of an adjudication of the merits of the case. A particular claim or a dispute might raise a question of law and several disputed questions of facts in such cases, the appropriate Government should not reach a final decision or purport to reach a final decision either on the questions of law or on disputed questions of fact. A prima facie examination of the merits cannot be said to be foreign to the enquiry which an appropriate Government is entitled to make while dealing with a dispute under Section 10(1) of the Act. For deciding the questions as to whether the discretionary power vested in it should be exercised or not, the appropriate Government, in the interests of the industry as a whole and also in the due performance of its duties and exercise of its power under the statute, has a duty to consider prima facie whether there is a case for reference to the Industrial Tribunal or not. Once the Government on the materials before it comes to the conclusion that there is a prima facie case, it will be then its duty to refer the dispute unless the appropriate Government considers that it is not expedient to do so. The only requirement made for taking action under Section 10(1) of the Act is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. It has been held by the Supreme Court in A.S. Production Agencies's case (supra) that the adequacy or sufficiency of material on which such opinion was formed is beyond the pale of judicial scrutiny; that if the dispute was an industrial dispute, 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. It was also held that a refusal of the appropriate Government to make a reference is not indicative of an exercise of power under Section 10(1), that the exercise of the power would be a positive act of making a reference and that when the Government declines to make a reference the source of power is neither dried up nor exhausted. The contention that if the Government on an earlier occasion declined to make a reference, it is precluded from making a reference at a subsequent stage unless it was shown that there was some fresh or additional material before the Government has no merit. The very existence of the dispute enables the appropriate Government' to exercise its discretionary power under Section 10(1) of the Act. The mere fact that on two previous occasions the Government had taken the view that no reference was called for does not entitle the Court to conclude that there could be no cause for a reference at a later date (vide Binny Ltd. v. Their Workmen 1972-I L.L.J. 479. In Western India Watch Co. v. Its Workmen 1970-II L.L.J. 256, the Supreme Court observed as follows.

In the light of the nature of the function of the Government and the object for which the power is conferred on it, it would be difficult to hold that once the Government has refused to refer, it cannot change its . mind on reconsideration of the matter either because new facts have come to light or because it had misunderstood the existing facts or for any other relevant consideration and decide to make the reference.

In Bombay Union of Journalists v. State of Bombay 1964-I L.L.J. 351, the Supreme Court observed that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under Sections 10(1) and 12(5), the Court is not sitting in appeal, over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the said Government.

9. To sum up, the position of law is definite and clear that there is no legal or statutory bar for the appropriate Government to make a reference under Section 10(1) of the Act in respect of the same industrial dispute which it declined to refer on an earlier occasion and that it is not absolutely necessary that there ought to be some fresh facts or materials before the Government for reconsideration of its earlier decision. On a reading of Ext. P3 order under challenge along with the counter-affidavit filed on behalf of the Government, it cannot be said that there were no fresh facts or materials before the Government for reconsideration of the earlier decision and that no reason has been given for the reconsideration in Exs. P3 order.

10. The next point for consideration is whether Ext. P3 order has been vitiated by violation of the cardinal principles of fairplay and natural justice. The counsel for the appellant submitted that Ext- P3 order was passed without issuing any notice or giving a hearing to the employer. There is nothing in the statute which enjoins or indicates that the appropriate Government should issue notice or give pre-decisional hearing to the person affected before action under Section 10(1) of the Act is taken. This Court has consistently taken the view that there was no necessity of issuing a notice or giving any hearing to the person affected before taking action under Section 10(1) of the Act. In Varghese v. Secretary, Estate Staffs Union (1976 Ker L T 842) a Division Bench of this Court held that it is not obligatory on the part of the Government to give reasons while referring a dispute under Section 10(1), and that the Court cannot consider the sufficiency of the material before the Government. It was further held that there was no obligation on the part of the Government to conform to any particular procedure to hear an employer before taking a view different from the one taken earlier by the Government in refusing to refer a dispute and that the Court would not be justified in interfering with an order of reference under Section 10(1) on the mere ground that the order has been passed after an earlier order refusing to refer without being given an opportunity to the employer to state his case why the earlier view taken by the Government should not be altered. In a later decision in Abdul Rahiman Haji v. Abdul Rahman 1977-I L.L.T. 182. a Division Bench of this Court held that if the Government chose to reconsider its earlier decision not to refer the dispute for adjudication, it was not necessary to give notice to the employer of the proposed action, because no civil rights of any parties are being adjudicated upon. By the mere making of a reference under Section 10(1) of the Act it cannot be said that any rights of the parties have been affected. There is no obligation on the part of the Government to hear an employer on a view taken different from the one taken by it earlier in refusing to refer a dispute.

11. Lastly, arguments were addressed by the counsel for the appellant that there is no industrial dispute existing or apprehended; that the third respondent is not a worker coming within the meaning of that term under the Act; that this is only an individidual dispute; that the union, the fourth respondent, which has sponsored the cause of the third respondent, has no representative capacity as none of the workers in the factory of the appellant is a member of the Union and that, therefore, the Government have no power to make a reference and the Tribunal has no jurisdiction to adjudicate the alleged dispute. It was then argued that there was nothing on record to show that there was any prima facie determination of the jurisdictional facts and, therefore, the order is vitiated. The disputed questions whether the third respondent is a worker or a manager coming within the purview of the Act; whether the dispute is individual or not; whether the fourth respondent is competent to espouse the cause of the third respondent and whether there existed an industrial dispute are all matters to be enquired into and finally decided by the forum to which the reference is made. It is not fair or proper for the Government to go into the merits of the questions of law involved or the disputed facts and give a final decision thereon. As pointed out, by the learned single Judge, all these questions can be raised as preliminary issues before the appropriate forum.

12. A reading of Ext. P. 3 in the light of the counter - affidavit filed by the Government detailing the circumstances, under which the reference in question happened to be made clearly indicates that the appropriate Government has applied its mind to the questions raised before it and that it was a case where there were materials before it to come to a prima fade determination. On a due consideration of the available materials, it cannot be said that the appropriate Government has not taken a prima facie view or it has not come to a prima facie determination before the impugned order of reference was passed or that the questions raised before it had not been dealt with honestly and in a bonafide manner.

13. It follows from the above discussion and findings that this appeal has no merits and the same is hereby dismissed but, in the circumstances without costs.


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