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Ramakrishna Mills (Coimbatore) Limited, Ganapathy Post, Coimbatore. Rep : by Managing Director R. Doraisamy Vs. the Government of Tamil Nadu Rep : by Secretary to Government Labour and Employment Department, - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.A. No. 310 of 1983
Judge
Reported in(1984)IILLJ259Mad
ActsIndustrial Disputes Act, 1947 - Sections 2, 2A, 4, 10, 10(1), 12, 12(4), 12(5), 20(2), 20(2) and 22
AppellantRamakrishna Mills (Coimbatore) Limited, Ganapathy Post, Coimbatore. Rep : by Managing Director R. Do
RespondentThe Government of Tamil Nadu Rep : by Secretary to Government Labour and Employment Department, ;pre
Cases ReferredS. K. Verma v. Mahesh Chandra
Excerpt:
labour and industrial - reference - sections 2, 2a, 4, 10, 10 (1), 12, 12 (4), 12 (5), 20 (2) and 22 of industrial disputes act, 1947 - government referred industrial dispute with regard to termination of employee - employer challenged that there is neither demand of reinstatement by employee nor denial of it by employer so as render it industrial dispute - denial of demand made through conciliation officer is sufficient to prove existence of industrial dispute - decision for reference was an administrative decision - opportunity of hearing unnecessary - facts and circumstance clearly showed existence of dispute - failure of government to consider conciliation officers report did not vitiate order - held, reference of industrial dispute justified. - - concilation did not fructify and.....nainar sundaram, j.1. this writ appeal is directed against the order of padmanabhan, j., in w.p. no. 447 of 1982. the petitioner to the writ petition is the appellant in the writ appeal and the respondents therein are the respondents in the writ appeal and the parties shall be referred to in this judgment by their application in the writ petition. the writ petition was filed to quash the order passed by the first respondent under s. 10(1)(c) of the industrial disputes act, 1947, hereinafter referred to as the act, referring for adjudication to the second respondent an industrial dispute between the petitioner and its workmen with reference to non-employment of respondents 3 to 6. the preceding facts are as follows :- on 20th october, 1980, the petitioner suspended respondents 3 to 6, who.....
Judgment:

Nainar Sundaram, J.

1. This Writ appeal is directed against the order of Padmanabhan, J., in W.P. No. 447 of 1982. The petitioner to the writ petition is the appellant in the writ appeal and the respondents therein are the respondents in the writ appeal and the parties shall be referred to in this judgment by their application in the writ petition. The writ petition was filed to quash the order passed by the first respondent under S. 10(1)(c) of the Industrial Disputes Act, 1947, hereinafter referred to as the Act, referring for adjudication to the second respondent an industrial dispute between the petitioner and its workmen with reference to non-employment of respondents 3 to 6. The preceding facts are as follows :-

On 20th October, 1980, the petitioner suspended respondents 3 to 6, who were it workmen. Pursuant to a resolution passed on 2nd January, 1981, relating to certain demands, including reinstatement of the suspended workmen, the Union of the workmen, the seventh respondent, issued a strike notice on 12th January, 1981. On 28th January, 1981, the Assistant Commissioner of Labour, Coimbatore, requested the seventh respondent not to resort to strike and the petitioner was called upon to submit its representations with regard to the demands raised. On 29th January, 1981, the said Assistant Commissioner of Labour held conciliation talks. Concilation did not fructify and the Assistant Commissioner of labour was obliged to send his failure report on 31st January, 1981 to the first respondent and his report was received by the first respondent on 4th February, 1981. On 14th February, 1981, the petitioner dismissed respondents 3, 5, and 6 and with regard to the fourth respondent, the suspension already imposed on him was treated as punishment and he got into service. It is claimed that on 27th February, 1981, the seventh respondent made a representation to the first respondent with copies to the Commissioner of Labour, Madras, and the Assistant Commissioner of Labour, Coimbatore. From the files produced before us, we find that a representation from the seventh respondent, though not bearing a date, had in fact been received by the first respondent on 11th March, 1981 and by the Commissioner of Labour, Madras, on 13th March, 1981. The Assistant Commissioner of Labour seemed to have addressed a communication on 16th April, 1981 to the seventh respondent and the seventh respondent gave a representation to the Assistant Commissioner of Labour on 21st April, 1981 and marked copies to the Commissioner of Labour, Madras, and the first respondent. Thereafter, the Assistant Commissioner of Labour had called upon the petitioner and the seventh respondent to appear before him on 30th April, 1981, for talks. There is a dispute with regard to the date of the communication, as to whether it was 21st April, 1981 or 23rd April, 1981. But that does not matter much since the fact remains that a communication emanated from the Assistant Commissioner of Labour calling the parties for talks on 30th April, 1981 and the parties received such communication. On 30th April, 1981, the seventh respondent was not present and the petitioner alone appeared. The Assistant Commissioner of Labour addressed a further communication on 6th May, 1981, calling upon the parties to appear for talks on 11th May, 1981. The Assistant Commissioner of Labour furnished to the petitioner a copy of the representation dated 21st April, 1981, of the seventh respondent and the petitioner made his reply on 13th May, 1981. There is no dispute that there were talks and discussions held by the Assistant Commissioner of Labour, in which the petitioner and the seventh respondent, representing the workmen participated. The talks did not fructify. The Commissioner of Labour also seemed to have addressed a communication to the Assistant Commissioner of Labour, on 11th May, 1981. The Assistant Commissioner of Labour sent his confidential report on 25th May, 1981, to the Commissioner of Labour, Madras, referring to the latter's communication dated 11th May, 1981 and stating that there is no need for any change of his earlier report, obviously referring to failure report dated 31st January, 1981. However, the Commissioner of Labour forwarded to the first respondent his report dated 16th June, 1981, recommending reference of the dispute for adjudication giving his own reasons therefor and thereafter, the first respondent made the order of reference which was impugned in the writ petition. Padmanabhan, J., who heard the writ petition, dismissed the same repelling the contentions put forth before him. The very same contentions are practically being repeated before us in this writ appeal and we shall deal with them in seriatim.

2. Mr. P. Chidambaram, learned counsel for the petitioner, would first submit that there was no demand for reinstatement put forth by the workmen with regard to the orders of dismissal and there was no refusal by the petitioner and hence, there arose no industrial dispute in the eye of law to warrant a reference. Mr. A. L. Somayaji, learned Counsel for the workmen, would counteract this submission by pointing out certain factual aspects. We shall take the events after 31st January, 1981, on which date the failure report of the Assistant Commissioner of Labour was made and which report was received by the first respondent on 4th February, 1981. Three workmen, namely, respondents 3, 5 and 6 were dismissed on 14th February, 1981. The seventh respondent, the Union representing the Workmen, had in fact, made a representation to the first respondent and copies of the same had been marked to the Commissioner of Labour, Madras and the Assistant Commissioner of Labour, Coimbatore. This representation, as stated above, was received by the first respondent on 11th March, 1981 and by the Commissioner of Labour, Madras, on 13th March, 1981 as we could see from the files. The Assistant Commissioner of Labour had before him also the representation of the Union dated 21st April, 1981. He issued notices for discussion and talks, one in 30th April, 1981 and the other on 11th May, 1981. A copy of the representation of the seventh respondent dated 21st April, 1981 was admittedly handed over to the petitioner and only thereafter, the petitioner made his reply on 31st May, 1981. The Assistant Commissioner of Labour did hold discussions and both the petitioner and the Union participated in such discussion on 11th May, 1981. Only thereafter, the Assistant Commissioner of Labour sent his confidential report dated 25th March, 1981, to the Commissioner of Labour, Madras, of course, expressing an opinion that there is no need to change his earlier report. However, the Commissioner of Labour opined the other way about in his report dated 16th June, 1981. The disputed relating to the dismissal of the workmen was, in fact, raised in this representation dated 21st April, 1981. It is true, this representation mentioned that four workmen were dismissed when, in fact, three alone were dismissed and it has not in its body referred to the names of the dismissed workmen. We find that the names of the workmen have been mentioned in the 'subject' in this representation. The petitioner never made any grievance on account of non-mentioning of the names in the body of this representation. It must have definitely understood the scope of the demand and names of the workmen dismissed, because the petitioner was the author of the orders of dismissal. No prejudice in this behalf was ever pleaded at all. There could not have been any ambiguity in the mind of the petitioner with regard to the actual demand and to whom it related. We will presently come to the aspect of mentioning in the proceedings four as dismissed instead of three because learned counsel for the petitioner would dwell in detail on this aspect, urging it as indicative of non application of the mind on the part of the first respondent. The question of dismissal had been raised by the seventh respondent on behalf of the workmen concerned and the petitioner when it made its reply on 13th May, 1981, was content to take up a stand that the seventh respondent was precluded from raising new issues in the reconsideration petition and the petitioner refrained from making any further submissions on merits. It further submitted that the earlier reference ended in failure and it cannot be revised. It is quite obvious that the petitioner had no mind to review the orders of dismissal and give reinstatement to the concerned workmen. This was sufficient to constitute refusal of the demand. We are not concerned with the wisdom or otherwise of the stand taken by the petitioner, when if refrained from making detailed submissions on merits. At this juncture, it must be pointed out that the files disclose that along with the representation received by the first respondent on 11th March, 1981 and by the Commissioner of Labour, on 13th March, 1981, the seventh respondent had, in fact, forwarded copies of the orders of dismissal of respondents 3, 5 and 6. The materials placed do, without any ambiguity, demonstrated that there was a dispute raised with regard to orders of dismissal with a view to get reinstatement of the dismissed workmen and the petitioner was not inclined to accede to the demand. The demand as such need not in all cases be directly made by the representation to the management and the demand could be made through other sources also, as it happened in the present case, through the Assistant Commissioner of Labour, Coimbatore.

3. One of us, in C. ., 1981 I L.L.J. 102, had occasion to consider the question as to whether there should be a direct demand made on the management by a dismissed workman for reinstatement and there should be a refusal by the management preceding conciliation proceedings for a reference of an industrial dispute. In that case, it is true, there was a demand through the conciliation Officer, and a denial of the same by the management. On an appraisal of the case law, it was opined as follows :-

'We can take it as settled that a disputed could arise within the meaning of S. 2(k) only when there is a demand by the workman and a denial of the same by the management. The definition of 'dispute' in S. 2(k) takes in 'difference' between the parties also. It is one thing to say that there must exist a dispute or difference so as to clothe the appropriate Government with the jurisdiction to refer the matter for adjudication under S. 10 of the Act and it is another thing to say as to how the dispute or difference must have arsien and exist or apprehended at the relevant point of time.'

*** *** ***

'The principles recognised by courts, including the highest on the land, have not laid down any particular manner by which an industrial dispute or difference should be raised. The real question is, whether if at the time of exercise of powers by Government under S. 10, there exists or is apprehended a dispute or difference, then it will be competent for the appropriate Government to exercise its power under S. 10. Once that power has been exercised it is futile to go behind to some point of time anterior to the relevant point of time and explore whether a demand was raised in a particular manner and whether it was refused by the management.'

4. In that case, the demand through the conciliation officer and the refusal before him were held to be sufficient for the purpose. As stated above, the petitioner in the present case appeared and participated in the talks before the Assistant Commissioner of Labour with regard to the dispute over the orders of dismissal. What exactly the objection, the petitioner conceived of and was content to put forth before the conciliation officer is not material. The fact remains that the workmen, through the Union, the seventh respondent did raise a dispute over the orders of dismissal, obviously coveting for reinstatement, this was made known to the petitioner by the Assistant Commissioner of Labour who further held talks and discussions in this behalf and the petitioner participated in the same and reacted in the negative manner. This would suffice to constitute the demand and refusal and thereby an industrial dispute. Mr. P. Chidambaram, learned counsel for the petitioner, relied on the pronouncement of the Supreme Court in Sindu Resettlement Corporation v. Industrial Tribunal : (1968)ILLJ834SC for the purpose of advancing a contention that there must have been an actual demand on the management and a refusal of the same, giving rise to an industrial dispute. In the decision rendered by one of us, the implications of this ruling of the Supreme Court have been taken note of and only thereafter the above views were expressed. We find that in Sadhu Ram v. Delhi Transport Corpn. 1983 I L.L.J. 383, the Supreme Court, with reference to Sindhu Resettlement Corporation v. Industrial Tribunal (supra), observed as follows :-

'The High Court appeared to think that the decision of this Court in Sindhu Resettlement Corporation Ltd., v. Industrial Tribunal (supra) justified its conclusion that the failure of the conciliation proceedings and the report of the conciliation Officer to the Government were not sufficient to sustain a finding that there was an industrial dispute. This was also what was urged by the learned counsel for the respondents. The High Court was in error in so thinking. In Sindhu Resettlement Corporation Ltd., v. Industrial Tribunal (supra) the question really was about the precise scope of the reference made by the Government for adjudication. Throughout it appeared that the only reference that the Government could have made related to the payment of retrenchment compensation which alone was the subject-matter of dispute between the parties. The conciliation which failed had also concerned itself with the question of payment of retrenchment compensation and in their claim before the management, the workmen had requested for payment of retrenchment compensation and raised no dispute regarding reinstatement. It was in those circumstances that the Court held that there was no industrial dispute regarding reinstatement. We do not see how Sindhu Resettlement Corporation v. Industrial Tribunal (supra) can be of any assistance to the respondents.'

5. Mr. P. Chidambaram sought to distinguish the above cases from the present case by pointing out that in the present case conciliation had come to an end within the meaning of S. 20(2)(b) of the Act when the failure report of the Assistant Commissioner of Labour, dated 31st January, 1981 was received by the first respondent on 4th February, 1981, and hence it could not be stated that any demand was made through any conciliation officer in the eye of law. This is a misconception both in law and on facts. That the Assistant Commissioner of Labour, Coimbatore, was the conciliation Officer appointed within the meaning of S. 4 of the Act is not in dispute before us. The orders of dismissal had come to be passed on 14th February, 1981, after the earlier failure report, which related to the disputed over orders of suspension. Orders of suspension had been superseded by orders of dismissal, so far as respondents 3, 5 and 6 are concerned. The further representations by the seventh respondent on behalf of the workmen, related to these orders of dismissal. The Assistant Commissioner of Labour as the conciliation officer was seized with these representations, and they were conveyed to the petitioner, to obtain its reaction, which as stated above was negative. In this connection, the following observations of the Supreme Court in Shambu Nath Goyal v. Bank of Baroda : (1978)ILLJ484SC are relevant :

'The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non unless of course, in the case of public utility service, because S. 22 forbid going on strike without giving a strike notice.'

'Thus the term industrial dispute connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to rewriting the section.'

The above observations have been followed in C. ., (supra).

6. There cannot be a doubt that for the existence of an industrial dispute, there ought to be a demand by the workmen and a refusal to grant it by the management. How that demand should be raised, should not and could not be a legal notion of fixity and rigidity. The grievance of the workmen and the demand for its redressal must be communicated to the management. The means and mechanism of communication adopted are not matters of much significance, so long as the demand is that of the workmen and it reaches the management. A written demand of the management is not in all cases a sine qua non, as pointed out by the Supreme Court in Shambu Nath Goyal v. Bank of Baroda, (supra). After all, there must arise a dispute or difference within the meaning of S. 2(k) or S. 2A of the Act. In the instant case, the talks and the discussions held before the Assistant Commissioner of Labour, related only to the differences that had arisen between the workmen through their union, the seventh respondent and the petitioner over the orders of dismissal. It would be far fetched, and absolutely an untenable proposition to state that the grievance of the workmen over their non employment and their agitation for reinstatement were not conveyed to the petitioner and there was no refusal of the same. That is not the actual position at all. It is not claimed before us that the talks and discussions before the Assistant Commissioner of Labour, related not to the orders of dismissal and the demand to set them at naught, and take back the workmen. The facts and circumstances do establish beyond doubt that the workmen through their union had been demanding for reinstatement, which the petitioner had not inclination to accede to. The grounds conceived by it for doing so, are not germane to this question. Hence we have to repel the first ground of attack put forth on behalf of the petitioner.

7. The second ground urged by the learned counsel for the petitioner is that the Assistant Commissioner of Labour had not prosecuted conciliation proceedings as per S. 12 of the Act and the Rules, and in the absence of prosecution of such statutory conciliation proceedings, proceeding the order of reference by the first respondent, the said order is incompetent. This contention is fallacious. It has been observed in C. ., (supra), after taking note of other judicial precedents, that :

'It may not be always necessary that conciliation should be resorted to under S. 12 of the Act and the report of the conciliation officer should be there for the appropriate Government to exercise the power of reference under S. 10 of the Act. Even without resort to conciliation proceedings, the reference of an industrial dispute existing or apprehended, under S. 10 of the Act is proper.'

and

'It is now well settled that the procedure indicated in S. 12 of the Act is not a condition precedent for the appropriate Government to exercise its power under S. 10(1) of the Act. Section 12(5) of the Act does not confer the power but it is only S. 10(1) of the Act that confers the power to make reference. The appropriate Government need not base its decision solely on the report of the conciliation officer, but is free to take into consideration all other relevant facts and circumstances. Section 10(1) of the Act is not controlled by S. 12(5) of the Act.'

There were talks and discussions before the Assistant Commissioner of Labour. May be, the Assistant Commissioner of Labour did not follow in terms the statutory provisions for prosecuting conciliation proceedings, and sending a report to the first respondent. But there is no indication in S. 10(1) that the Government should await the report of the conciliation officer under S. 12(4), before it exercises the power under S. 10(1). On the other hand, S. 20(2)(c) contemplates a reference by the Government even during the pendency of conciliation proceedings, on which reference, the conciliation proceedings shall be deemed to have concluded. Hence lack of adherence to the statutory provisions on the holding of a formal conciliation proceeding and sending a report thereafter will not affect the order of reference.

8. Supplementing his submissions on the second ground of attack, M. P. Chidambaram, learned counsel for the petitioner, would state that if statutory conciliation proceedings had been prosecuted, the petitioner would have taken a formal objection with regard to the competency of the seventh respondent to raise the industrial dispute over the non employment of the concerned workmen. It must be pointed out that nothing prevented the petitioner from making its say on the question of competency of the seventh respondent. In its own wisdom, it refrained from doing so. Even otherwise, this line of argument must be hold to have become puerile, after the introduction of S. 2A into the Act with effect from 1st December, 1965. The dismissed workmen, namely respondents 3, 5 and 6, are members of the seventh respondent union. The demand made and the refusal thereof, related to their non employment only. Even if it is not a collective dispute, the matter can be treated as individual dispute relating to the concerned workmen. After the enactment of S. 2A, it is not necessary that a dispute relating to the discharge, dismissal, retrenchment or otherwise termination of service of workmen must be sponsored by a trade union or a substantial number of workmen. In other words, even if it is not sponsored by a trade union, or a substantial number of workmen, still such a dispute will be deemed to be an industrial dispute. There is no dispute that the demand was only that of the workmen dismissed. May be it got projected through their union, the seventh respondent, and that was how it was raised. Even if the competency of the seventh respondent to raise the dispute so as to make it get the colour of a collective dispute, is a doubtful proposition, the reference cannot be held to be incompetent because it could be sustained as relating to individual workmen. Such a view has been taken in three pronouncements of this Court and they are

1. T. V. S. Iyengar & Sons v. State : AIR1970Mad82 by Kailasam, J. as he then was;

2. Coimbatore Co-op. M. S. Union v. Siluvaimuthu : (1970)IILLJ101Mad by Venkataraman, J;

and

3. Management v. Workmen, P. K. Estate 1974 I L.L.J. 332 by K. N. Mudaliar, J.

9. For the above reasons, the second ground of attack put forth on behalf of the petitioner must fall to the ground.

10. The third ground of attack put forth by Mr. P. Chidambaram, learned counsel for the petitioner, is that the first respondent is guilty of non-application of mind when the order of reference was made and on this ground, the learned counsel seeks to quash the order of reference. The allegation of non application of mind has been thrown mainly on the ground that while three workmen alone were dismissed, proceedings have been prosecuted on the assumption that four workmen were dismissed and even in the order of reference it is stated as to whether non employment of four workmen is justified and if not, to what relief they are entitled and to compute the relief if any awarded in terms of money if it can be so computed. This, according to the learned counsel, exposes a mechanical attitude on the part of the first respondent and non application of mind. Even as early as 1953, in State of Madras v. C. P. S. Sarathy : (1953)ILLJ174SC , five learned Judges of the Supreme Court settled the scope of scrutiny by the Court of an order of reference in the following terms :

'But, it must be remembered that in making a reference under S. 10(1) 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 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 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, is factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for 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 Government on which it could have come to an affirmative conclusion on those matters.'

11. In Shambu Nath Goyal v. Bank of Baroda (supra) and in Avon Services v. Industrial Tribunal : (1979)ILLJ1SC , the Supreme Court reiterated the above proposition. However, the decision of the Government will be open to review if it is based on no material or even if there is material, the Government has not applied its mind to such material. This is one of the settled grounds for judicial review of the decision of the Government under S. 10(1) of the Act.

12. Coming to the facts of the present case, there were initial orders of suspension of four workmen, respondents 3 to 6. As traced in the narration of facts above, the ultimate orders of dismissal were directed only against respondents 3, 5 and 6. A copy of the representation dated 21st April, 1981, of the seventh respondent was handed over to the petitioner. The petitioner had nothing to say against the reference to four workmen as having been dismissed, in the 'subject' of that representation. The petitioner would have hastened to point out that only three workmen were dismissed. But parties understood what they were about. The Petitioner was the author of the orders of dismissal. Even in the affidavit filed in support of the writ petition, no specific grievance is expressed that instead of the matter relating to the dismissal of three workmen, it has seen prosecuted as if it related to the dismissal of our workmen. The petitioner has only made a grievance that the failure report dated 31st January, 1981, related only to orders of suspension of respondents 3 to 6 and the first respondent was not competent to make a reference on the question of nonemployment, obviously referring to nonemployment on the ground of dismissal. If at all the order of reference has suffered any infirmity, there is no warrant to set at naught the entire order of reference and it is possible to eschew that aspect which does not arise for consideration at all. The materials placed before the first respondent did indicate that there was in existence a dispute relating to the dismissal of three workmen, namely respondents 3, 5 and 6 and the reference to the fourth workman as having been dismissed was obviously a mistake. But this mistake is severable. The only requirement for taking action under S. 10(1) is that there must be some material before the Government which will enable it to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi-judicial function. Such was the opinion expressed in Avon Services v. Industrial Tribunal : (1979)ILLJ1SC . With reference to the dismissal of the three workmen, the order of reference will have to stand. Where the order of reference suffers any infirmity, as the present one, the tribunal may look into the pleadings of the parties and other circumstances with a view to cull out therefrom the actual points about which the parties are at variance and resolve it one way or the other. We find that the order of reference is severable has also found countenance by a Bench of the High Court of Patna in Mohini Sugar Mills v. State of Bihar 1967 I L.L.J. 209 where it was opined that if the Government makes a reference under S. 10 including in it several items in dispute between the employer and the employees, and if the tribunal concerned holds that, in respect of some items in dispute the order of reference is incompetent, the tribunal itself must refuse to give any decision on those points and confine its award only to those disputes in respect of which a valid reference is made and it has jurisdiction to adjudicate on the same. We are in agreement with the above dicta of the Bench of the High Court of Patna.

13. Mr. P. Chidambaram, learned counsel for the petitioner, wants to place reliance on a pronouncement of one of us in A. Alphonse v. The State of Tamil Nadu and another (W.P. No. 4363 of 1978) Order dated 16th September, 1981, in support of his submission that the order of the first respondent is vitiated on account of non application of mind to the relevant materials. In that case, there was a conciliation and there was a failure report by the conciliation officer under S. 12(4) of the Act. This failure report was not at all adverted to by the Government when it declined to make the reference. The failure report under S. 12(4) is a relevant document because it sets forth the full report of the steps taken by the conciliation officer for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances and the reasons on account of which, in his opinion, a settlement could not be arrived at. Section 12(5) enjoins upon the Government to consider such a report. Because there was a failure to consider such a report, the view was taken in that decision that such failure would vitiate the order passed.

14. The fourth ground of attack put forth by Mr. P. Chidambaram, learned Counsel for the petitioner, is that the first respondent is not certain as to whether on the date of reference an industrial dispute existed or was apprehended. The order of reference which was impugned in the writ petition was unambiguous. It clearly stated, 'whereas the Government are of opinion that an industrial dispute has arisen ....'. In the counter affidavit filed on behalf of the first respondent there is a justification for the order of reference on the ground that the Government is entitled to refer any 'existing' or apprehended industrial dispute. But it has been categorically stated in more than one place that on the date of reference the industrial dispute was actually in existence. However, we find, before the learned Single Judge, the learned Additional Government Pleader on behalf of the first respondent seemed to have made a statement that the Government referred the matter for adjudication because they had apprehended an industrial dispute. This has led the learned Single Judge to view the matter from this angle also and to hold that the order to reference was made only on an apprehended dispute. The facts and circumstances of the case clearly disclose that the dispute over the orders of dismissal of the concerned workmen continued to exist on the date of the order of reference and the Commissioner of Labour, Madras, in his report dated 16th June, 1981 addressed to the first responded, has taken note of the request of the seventh respondent to take the dismissal issue as an industrial dispute and has recommended for reference of the dispute for adjudication. It is nowhere the case of the petitioner that the situation was eased out by the petitioner acceding to the claim of the dismissed workmen for reinstatement. We shall go by the express declaration made in the order of reference which is unambiguous that on the date of reference the industrial dispute existed. It would be a different matter if the composite phrase 'exists or apprehended' is used in the order and that may demonstrate non application of the mind on the part of the first respondent while making the order of reference. Even in such a case, the Court can find out as a matter of fact as to whether it is a case of existing dispute or apprehended dispute and the Court need not necessarily throw out the reference on this technical lacuna. Such view has been taken by the Supreme Court in Management of I.T.C. Ltd. v. Labour Court : (1978)IILLJ354SC .

15. The fifth ground of attack put forth by the learned Counsel for the petitioner is that the order of reference involves civil consequences and hence duty and fairness require a hearing being afforded to the parties before a decision is taken one way or the other by the Government. An order of the Government under S. 10(1) is an administrative and not a judicial or a quasi-judicial one determining the rights of any party. It is true that the dichotomy that existed earlier between administrative and quasi-judicial functions vis-a-vis the doctrine of natural justice or the rule of audi alteram partom has practically lost its significance and the doctrine and the rule are equally applicable to administrative proceedings which involve civil consequences. But the order of reference under S. 10(1) of the Act does not by itself involve any civil consequences. There is no decision over the rights of the parties. If it is a case of declining to make an order of reference under S. 12(5) of the Act, the Government is enjoined to record and communicate to the parties concerned its reasons therefor. The tenability or otherwise of the reasons could be the subject matter of scrutiny on well settled grounds. If the decision of the Government, when it makes the reference, has enlarged or curtailed the rights of the parties, then it can be stated that such a decision involves civil consequences. The Government merely refers matter to another body for investigation and adjudication of the rights of parties and in the said context, there is no scope for bringing in the principles of natural justice.

In Dunlop (India) Ltd. v. Delhi Administration 1973 L.I.C. 640, a Bench of the Delhi High Court on this aspect opined as follows :

'While making the reference, the appropriate Government was not deciding any rights of the parties. It simply referred the dispute for adjudication to a Tribunal which has the jurisdiction to decide the controversy and is not bound to give hearing to the contending parties. There is thus no occasion for granting a hearing to any party by the appropriate Government at the time it makes the order of reference.'

A view has been taken that when the Government has first declined to make an order of reference but subsequently, on a representation by the workmen, makes a reference, the principles of natural justice would be attracted, vide, I.T.I. Ltd., v. State of Karnataka : (1978)ILLJ544Kant and G. Muthukrishnan v. Administrative Manager 1980 I L.L.J. 215. Of course, in G. Muthukrishnan v. Administrative Manager (supra), the Full Bench of this Court has qualified the principle by stating that if the Government, suo motu, changed their mind without anyone prompting them to do so and wanted to exercise their inherent power on the same material which was considered by them in the first instance, then the position would be different. In I.T.I. Ltd. v. State of Karnataka (supra), the Bench of the High Court of Karnataka expressed the opinion that the principles of natural justice would be attracted when the Government makes the order of reference, after having earlier declined to do so, on a representation by the workmen, on the ground that the earlier refusal must have led to the management arranging its affairs on the said basis and when there is a reversal of the earlier order, it would involve civil consequences. On the facts of the present case, there is no necessary to go into this aspect at all for the simple reason, we are not facing a situation where there was a reversal of any of its initial opinion by the first respondent. On the facts and circumstances of the case, we do not find any scope for bringing in the principles of natural justice.

16. All the above grounds urged before us by the learned Counsel for the petitioner lack merits in law and on facts and we have repelled them. No other ground was advanced before us.

17. Mr. A. L. Somayaji, learned Counsel for the workmen, would submit that the petitioner is only exploiting the extraordinary and highly prerogative jurisdiction of this Court, by advancing objections, technical and peripheral, instead of prosecuting the industrial adjudication which is already pending, after the impugned reference, as I.D. No. 99 of 1981 on the file of the Labour Court, Coimbatore, on real and vital issues, and this Court, under Art. 226 of the Constitution of India, ought not to show the petitioner any indulgence. In this behalf, the learned Counsel relies on two pronouncements of the Supreme Court, one in D. P. Maheswari v. Delhi Administration & Ors. : (1983)IILLJ425SC and the other in S. K. Verma v. Mahesh Chandra & Anr. : (1983)IILLJ429SC . If such prepositions had been taken note of even at the threshold or as preliminary objections by the learned Single Judge, and the writ had been thrown out on these bases, maybe we would have concurred with the view. But the contentions raised have been tested on merits, and no substance has been found in them, both by the learned Single Judge and by us. Hence we have no need to advert to and express any opinion on these principles at this stage. Accordingly, this writ appeal fails and the same is dismissed with the cost of respondents 3, 5, 6 and 7. Counsel fees - Rs. 1000/-.


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