Hon'ble Dr. Vijay Laxmi,J.
Heard Dr. Ashok Nigam, learned Senior Counsel for the appellant, Sri Ajai Kumar Singh, learned Counsel for the respondent No.1 and Sri Virendra Misra, learned Counsel for the respondent No.2.
This Special Appeal questions the correctness of the judgment of the learned Single Judge dated 5.7.2016 arising out of the order passed on 12.2.2009 by the Government of India, Ministry of Labour, whereby it has refused to refer a dispute as raised by the first respondent. In order to understand the controversy, the order passed by the Government of India is extracted hereunder:-
"NO - L-12011/115/2008 - IR (B-II) Government of India//Bharat Sarkar Ministry of Labour/Shram Mantralaya New Delhi, Dated: 12/02/2009 To,
1. The Chief General Manager NBSC Sector - 'H', LDA Colony, Kanpur Road Lucknow
2. The President NBARD Sansthan Karmachari Sabha, 25/26 Union Bhavan Arya Nagar Lucknow Subject: I.D. between the management of NABARD/NBSC/BIRD and President, National Bank for Agriculture & Rural Development Sansthan Karmachari Sabha, Lucknow over the issue in illegal termination of services by the management - reg.
Sir, I am directed to refer to the Failure of Conciliation Report No.K 7(9)/2008-E.1 dated 18.8.2008 from the RLC (Kanpur (U.P.)) received in this Ministry on 28/08/2008 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons:
"The management has taken certificate of Registration under sub-section 2 of the Contract Labour (Regulation & Abolition) Act, 1970 and the Contract Labour (R&A) Central Rules, 1971. The Union failed to provide employer-employee relationship between the management and the workman. Hence, the dispute raised is not maintainable."
Yours faithfully (Rajinder Kumar) DESK OFFICER T.No. - 23001147 Email - [email protected] Copy to:
The aforesaid order had been passed on the complaint dated 6.4.2005, copy whereof is at page - 126 of the paper book. The relevant paragraph of the said complaint is extracted hereunder:-
"mDr izfr"Bku ij Bsdk Je ¼mRlknu ,oa fofu;eu½ vf/kfu;e 1970 ykxw gksrk gS A lsok;kstdksa }kjk fu;fer izd`fr ds dk;Z dks Bsdsnkj ds ek/;e ls fu;ksftr deZpkfj;kssa ls djk;k tk jgk gS] ijUrq mUgsa fu/kkZfjr osru rFkk vU; lqfo/kk,a tks lh/ks lsok ls fu;ksftr deZpkjh gS] muds lerqY; ugh ns jgs gS] cfYd tks osru fn;k tk jgk gS og cgqr de fn;k tkrk gS A ;gh rd fd dsUnz vkSj izns'k ljdkj }kjk fu/kkZfjr vlaxfBr {ks= ds Jfedksa dks ns; osru vkSj eagxkà HkRrk Hkh ugh fn;k tkrk gSA budk ih0,Q0 ugh dkVk tkrk] esfMdy ugh fn;k tkrk gS A R;ksgkjh] okf"kZd vkSj vkdf"ed fdlh izdkj dh NqVVzh ugh nh tkrh gS A"
Learned Counsel for the appellant has vehemently urged that the nature of the complaint itself clearly amounts to an admission of the fact that the workers were contract labourers of the Contractor and there was admittedly no employer-employee relationship so as to construe an industrial dispute and therefore the conclusion drawn by the authority was correct. This aspect of the matter has been overlooked by the learned Single Judge and therefore, the order is vitiated.
The next argument of the learned Counsel for the appellant is that the Contract Labour (Regulation & Abolition) Act, 1970 is itself a complete Code where any such relief can be claimed and therefore, the jurisdiction of the Industrial Court under the Industrial Disputes Act, 1947 is clearly ousted.
The third contention is that in view of the definition of the word 'workman' contained in the 1947 Act and compared to that of the 1970 Act, it is clear that the contract labourers represented by the first respondent were not workmen as per the said definition. It is therefore submitted that in view of all these submissions, the conclusion drawn by the Central Government is correct for which reliance is placed on the same judgments that have been referred to by the learned Single Judge in the impugned judgment dated 5.7.2016.
Sri Nigam has relied on the observations in Para 10 of the learned Single Judge in the case of Ram Shiromani Yadav vs. Conciliation Officer andothers [2012 (4) ADJ 347] as well as the apex Court decisions referred to therein particularly the case of Bombay Union of Journalists v. The State of Bombay and others [AIR 1964 SC 1617]. It has further been added that in view of the decision in the case of Steel Authority of India Limited and others etc. etc. v. National Union Water Front Workers and others etc. etc. [2002 UPLBEC (2) 228 paragraph 121], it is clear that the members of the respondent No.1/Union were neither workmen nor there was any employer-employee relationship and therefore this issue having been prima facie looked into by the competent authority, it was absolutely justified in refusing to make a reference. The contention therefore is that the authority is not a mere post office for making a reference and having the power to prima facie apply its mind has rightly passed the order which has been not viewed by the learned Single Judge in correct perspective.
Learned counsel for the respondents submits that what the authority has done is an adjudication of the very issue of the existence of employer-employee relationship so as to deny the reference. In such a situation, it cannot be said that the order that was impugned before the learned Single Judge was an order not without jurisdiction. To the contrary, the authority has acted in excess of jurisdiction by adjudicating the issue of employer-employee relationship and the argument of the learned counsel for the appellants that there was an admission in this regard is absolutely incorrect. It is urged that the issue with regard to the claim which existed and was also apprehended ought to have been sent for adjudication.
Having considered the submissions raised, what we find is that the learned Single Judge appears to have rightly relied on the judgment in the case of Ram Shiromani Yadav v. Conciliation Officer and others [2012 (4) ADJ 347], inasmuch as the said judgment in turn relied on the judgment in the case of Telco Convoy Drivers Mazdoor Sangh and another v. State of Bihar and others [(1989) 3 SCC 271]. Paragraph - 13 of the judgment in Ram Shiromani's case (supra) is extracted hereunder:-
"13. Again in Telco Convey Drivers Mazdoor Sangh and another v. State of Bihar and others, (1989) 3 SCC 271, the Apex Court observed that while considering the question of making a reference under Section 10 (1) the Government is entitled to form an opinion as to whether as industrial dispute "exists or is apprehended" but it is not entitled to adjudicate the dispute itself on merit. The formation of opinion as to whether industrial dispute exists or apprehended is not the same thing as to adjudicate the dispute itself on its merits. It was further observed that when Government refusal to make reference is to be found unjustified, Court can direct the Government to make a reference to appropriate tribunal. The pertinent observation made by the Apex Court in this regard contained in paras 11, 15 and 16 of the decision are extracted as under:
11. It is true that in considering the question of making a reference under Section 10 (1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhusan. 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. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a refer, should be made or not, the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is undoubtedly, not permissible.
15. We are, therefore, of the view that the State Government, which is the appropriate Government, was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner acting on behalf of the Government and that of the Government itself cannot be sustained.
16. ...........In several instances this Court had to direct the Government to make a reference under Section 10 (1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nadu, (1983) 1 SCC 304:1983 SCC (L&S) 139: (1983) a Lab LJ 460; Ram Avtar Sharma v. State of Haryana, (1985) 3 SCC 189: 1958 SCC (L&S) 623:(1985) 3 SCR 686; M.P. Irrigation Karamchari Sangh v. State of M.P.,(1985) 2 SCC 103:1985 SCC (L&S) 409:(1985) 2 SCR 1019; Nirmal Singh v. State of Punjab, 1984 Supp SCC 407:1985 SCC (L&S) 38:(1984) 2 Lab LJ 396."
Not only this, the said judgment further goes on to reiterate the position of law as held by the Hon'ble Supreme Court in the case of Dhanbad Colliery Karamchari Sangh v. Union of India and others [1991 Supp (2) SCC 10]. The concluding part of the judgment clearly spells out the ratio of the aforesaid decisions that where the authority itself has decided the dispute in relation to this legal question of existence of employer-employee relationship based on merits, then this would amount to deciding the dispute and not merely refusing to refer the reference on a prima facie opinion. The aforesaid conclusion, in our opinion, is founded on the correct position of law, inasmuch as here the complaint as extracted here-in-above had raised a dispute which can be said to be existing or apprehended.
The authority that passed the order, did not look into these aspects of the matter but simply concluded that since the contractor is registered under the 1970 Act therefore there is no employer-employee relationship. This snap decision and abrupt conclusion therefore was not founded on any prima facie consideration as required under the judgments referred to here-in-above. The learned Single Judge was therefore right in calling upon the authority to proceed to re-consider the entire matter afresh under the impugned judgment dated 5.7.2016. We therefore do not find any merit in the appeal.
Rejected with the aforesaid observations.
Order Date :- 4.8.2016 lakshman [Dr. Vijay Laxmi, J.] [Amreshwar Pratap Sahi, J.]