1. Heard Ms. Sumati Rani Gupta, learned counsel for the petitioner and Sri Rohan Gupta, holding brief of Sri Yashwant Varma, learned counsel appearing for the respondents-Company.
2. Writ petition is directed against the order dated 08.09.2009 of Government of India communicating to the petitioner the decision of Government declining to refer dispute for adjudication observing that Government did not consider that dispute fit for adjudication since it has already been adjudicated by higher Court and the order dated 21.01.2010 rejecting representation of petitioner for reconsideration of matter and making reference for the same reason. The reason actually assigned by respondent No.1 for declining to make reference for adjudication may be quoted as under:
"prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons:
The issue raised in the dispute has already been adjudicated by higher courts."
3. It is contended by learned counsel for the petitioner that observation that "dispute is not fit for adjudication" amounts to an executive adjudication by Government itself, which is not permissible and the impugned order, therefore, is wholly without jurisdiction. Adjudication of dispute is only permissible by Adjudicatory Forum constituted under U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "Act 1947" and the only enquiry permissible at the end of respondent No.1 whether there exist or apprehended an industrial dispute and once existence of such a dispute is there, appropriate Government has no option but to refer the dispute for adjudication.
4. Per contra, learned counsel appearing for respondents No.2 and 3 contended that this kind of dispute raised by petitioner was already turned down vide judgment dated 18.7.1994 passed by this Court in Writ Petition No.6874 of 1994 whereagainst Special Leave Petition was also dismissed by the Apex Court. The matter was again decided by this Court in Writ Petition No.1881 of 1995 decided on 13.10.1995. There actually existed no dispute whatsoever hence respondent No.1 rightly declined to make any reference. It is also pointed out that on similar issues, reference was made by State Government vide notification dated 30.1.1997 and the same was answered in negative since the workman did not press the reference and therefore, no further reference of the same dispute was permissible in law.
5. I have heard learned counsel for the parties and perused the record.
6. In order to have a clear idea of the dispute it would be appropriate to have a bird eye view of the relevant facts in brief.
7. Earlier the petitioner, which is a trade union of employees of M/s Balmer Lawrie & Company, moved an application before Deputy Labour Commissioner under Section 3 of U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 (hereinafter referred to as "Act 1978") for ensuring payment of wages of twenty workmen from May to August, 1994 amounting to Rs.26 lacs and odd. A show cause notice was issued to the respondent Company namely M/s Balmer Lawrie & Company (hereinafter referred to as "Company") and thereafter a recovery certificate was issued on 30.11.1994. The Deputy Labour Commissioner observed that there is some lockout since 02.5.1994 at the Company premises at Mathura, the validity whereof could not be justified by the employer and therefore workers have to be ensured payment of wages for the period they have claimed. This recovery certificate was challenged by the Company in Writ Petition No.1881 of 1995 connected with two other writ petitions. The matter came to be considered before a learned Single Judge and vide judgment dated 13.10.1995, the writ petitions were allowed. The recovery certificates were quashed observing that Deputy Labour Commissioner has not considered the defence taken by the Company and no finding has been recorded thereon hence mere narration of claim of workmen and mentioning that the authority is not satisfied is not sufficient. There has to be a finding on the issue raised which would justify order for recovery against the employer and not otherwise. This Court remanded the matter to Deputy Labour Commissioner directing it to take a fresh decision. In the meantime, attempt of the company to transfer/sell its Mathura Unit to M/s Anant Raj Clay Products Ltd. Rewari, Haryana was also challenged by two individuals namely Parma Nand Manik and Daryab Singh, who were employees of the Company in Writ petition No.6874 of 1994 which was dismissed vide judgment dated 18.7.1994 observing that the issue whether Company can be transferred to another person or not is not a justiciable issue hence writ petition under Article 226 is not maintainable. Sri Parma Nand Manik and Daryab Singh took up the matter to the Apex Court in S.L.P. No.14723 of 1994 but the same was dismissed as withdrawn on 6.10.1994.
8. The validity of lockout was also agitated raising an industrial dispute under Act, 1947 and the State Government made following reference for adjudication under Section 4-K of the said Act by notification dated 10.1.1997:
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9. However, the aforesaid matter was not pressed by the employees' Union before Industrial Tribunal-IV, U.P. Agra where the reference was registered as adjudication case No. 29 of 1997 and it was answered against the workmen observing that the workmen have not pressed the reference.
10. The Deputy Labour Commissioner on 12.4.1996, after remanding the matter by this Court vide judgment dated 13.10.1995, passed a fresh order against the workmen which was challenged in Writ Petition No.23448 of 1996. The Court observed that question whether lockout was justified or not and other incidental issues cannot be decided in summary proceedings under Act, 1978 since such an issue has to be adjudicated by Labour Court or Industrial Tribunal on a reference made under the Act 1947 hence the writ petition was dismissed confirming order of Deputy Labour Commissioner declining to adjudicate the matter for the same reason.
11. The issue, therefore, remained unadjudicated and unresolved in one or the other manner. This demand/dispute regarding payment of their wages and continued employment of workmen concerned continued to be agitated by workmen Union for which notices were issued by the Conciliation Officer but since management was not inclined for conciliation, report was submitted by Regional Labour Commissioner (Central), Lucknow by letter dated 31.3.2009, (Annexure 4 to the writ petition). The Central Government however declined to make reference observing that it is not fit for adjudication having already been adjudicated by the Courts.
12. As already observed, there is no adjudication of the issues raised by workmen vis a vis validity of the lockout, the justification of non payment of wages to the workmen etc.. For technical or other reasons, cases were decided in one or the other proceedings as already discussed above but not on the merits of the issues. Moreover, it is neither the case of respondent No.1 that there did not exist any industrial dispute nor that no industrial dispute is apprehended. Section 4-K of Act 1947, which requires reference by the State Government, reads as under:
"Reference of disputes to Labour Court or Tribunal.- Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication.
Provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred workmen, the State Government may, if it so thinks fit, make the reference to a Labour Court."
13. A bare perusal of aforesaid provision shows that the only enquiry permissible at the level of Government before making reference is, whether an industrial dispute exist or apprehended or not.
14. This issue as to when the Government may be justified in declining to make reference has been subject matter of various authorities of this Court time and again. In M/s Western India Watch Co. Ltd., Vs. The Western India Watch Co. Workers Union and others, AIR 1970 SC 1205, Apex Court held that requirement of the statute is the existence or apprehension of an industrial dispute. If there existed a dispute on an issue in which the workman community has interest, the reference can be made under Section 4-K. The Court observed that there is no period of limitation nor an earlier declination by the Government would bar it for making a reference later on. In para 8 of the judgment, the Court said:
"8. From the words used in Section 4(k) of the Act there can be no doubt that the legislature has left the question of making or refusing to make a reference for adjudication to the discretion of the Government. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Government decides to make it an industrial dispute between the employer and his employees either exists or is apprehended. Therefore, the expression "at any time", though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can "at any time", i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression "at any time" thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression "at any time" in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended."
15. The Court no doubt observed that if no dispute exist or apprehended for the reason that it has already been adjudicated or in respect of which there is an agreement or settlement between the parties or the industry in question was no longer in existence, there may not be any reference but otherwise existence or apprehension of the dispute is the key factor for attracting power of reference under Section 4-K. The Court referred to its earlier decision in State of Madras Vs. C.P.Sarathy, AIR 1953 SC 53 observing that power of Government under Section 10(1) of the Industrial Dispute Act is administrative. The Government cannot go into the merits of the dispute. Its function being only to refer such a dispute for adjudication so that the industrial relations between the employer and employee may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible. It further held :
"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 a 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. But where it reconsiders its earlier decision it can make reference only if the dispute is in industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other industrial dispute."
16. The Court observed that it is for this reason at this stage the principle of res judicata has no application which is applicable to the judicial Acts. The power of the Government while making reference under the State Act or the Central Act is administrative.
17. Similarly in Shambu Nath Goyal Vs. Bank of Baroda AIR 1978 SC 1088 in para 7, the Court said:
"The power conferred by S. 10 (1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended."
18. The Court also observed that in making 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 less administrative in character.
19. In M.P. Irrigation Karmchari Sangh Vs. State of M.P. & Anr. (1985) 2 SCC 103, it was reiterated that under Section 10 of the Central Act, Government cannot adjudicate on the merits of the dispute. In M.P. Irrigation Karmchari Sangh (supra) the Court said :
"Section 10 permits appropriate Government to determine whether dispute 'exists or is apprehended' and then refer it for adjudication on merits. The demarcated functions are (1) reference, (2) adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi judicial Tribunal by an administrative authority namely the Appropriate Government."
20. In Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others AIR 1989 SC 1595, in para 11 the Court said:
"The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits."
21. In Kuldeep Singh Vs. G.M., Instrument Design Development and Facilities Centre & Anr., 2011(128) FLR 121(SC) in para 21 the Court has said:
"In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government "at any time" refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal."
22. Considering the order impugned in the writ petition in the present case the Court finds that Central Government has declined to make reference by observing that "it is not a fit case for adjudication". This amounts to sitting on the merits of the matter which is not permissible. Moreover, another reason has been added that the matter is already adjudicated but nothing has been shown as to how and in what manner the dispute raised was actually adjudicate at all.
23. In view of the above, the impugned order cannot sustain. The writ petition is allowed. Impugned orders dated 08.9.2009 and 21.01.2010 (Annexures No.1 and 2 to the writ petition) are hereby set aside. The State Government is directed to reconsider the matter and pass a fresh order for making reference in accordance with law and the observations made above.
Order Date :- 15.5.2012 KA