IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE R DEVDAS WRIT PETITION NO.18443/2017 (L-RES) BETWEEN BELLARY ZILLA GANI KARMIKARA SANGHA SHANTI NIVAS, 1ST WARD, ANAND BAZAAR, SANDUR-583 119.
REPRESENTED BY ITS GENERAL SECRETARY (BY SRI. CLIFTON D ROZARIO, ADVOCATE) AND 1. UNION OF INDIA MINISTRY OF LABOUR AND EMPLOYMENT, SHRAM SHAKTHI BHAVAN, RAFI MARG, NEW DELHI-110 001.
BY ITS SECRETARY.
... PETITIONER 2. REGIONAL LABOUR COMMISSIONER (CENTRAL) GOVERNMENT OF INDIA, MINISTRY OF LABOUR AND EMPLOYMENT, BUDA COMPLEX, BELLARY-583 101.
3. M/S. DECCAN MINING SYNDICATE PVT. LTD., SUMEER MANSION, NO.6, MARTIN ROAD, BELLARY-583 101, REPRESENTED BY ITS MANAGING DIRECTOR.
... RESPONDENTS (BY SRI. LAXMINARAYAN N. HEGDE, ASG FOR R1 & R2; SRI. MANJUNATH K.V., ADVOCATE FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO ISSUE A CORRIGENDUM TO ITS ORDER DTD.3.5.2016 VIDE ANNEX-F CLARIFYING THAT THE REFERENCE PERTAINS TO WHETHER THE CLOSURE OF THE MINES, BELLARY DISTRICT BY M/S.BHARAT MINES AND MINERALS, SANDHUR, BELLARY WAS LEGAL, PROPER AND JUSTIFIED, AND IF NOT, TO WHAT RELIEF ALL THE WORKERS ON THE ROLLS OF THE ESTABLISHMENT ARE ENTITLED TO, INCLUDING THE 477 WORKMEN.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
The petitioner is a Union representing the workmen of the third respondent-Company. It is the contention of the petitioner that in the year 2011, the workmen were asked to stop work since the mining activities came to a closure. The petitioner-Union raised a dispute before the Regional Labour Commissioner (Central) and the Conciliation Officer with regard to the illegal closure of the mines in violation of the Industrial Disputes Act, 1947, espousing the cause of 477 workmen, but the conciliation proceedings ended in a failure.
2. Subsequent to failure of the conciliation, the first respondent-Central Government issued an order of reference referring the dispute to the Central Government Industrial Tribunal. However, while referring the matter to the Tribunal, an error has occurred in the reference, inasmuch as the dispute only in regard to 395 workmen was referred to the Tribunal.
3. Learned Counsel for the petitioner points out to the order passed by the second respondent-Regional Labour Commissioner (Central) holding that the conciliation had failed. In the said order dated 21.01.2016 in the subject column, it has been stated that the industrial dispute pertains to issue of payment of dues and reinstatement of 477 workers. Even in the body of the order, reference is made to 477 workers in more than one place.
4. Learned Counsel for the petitioner submits that the petitioner-Union has written to the Regional Labour Commissioner (Central) on 11.07.2016, at Annexure ‘G’, seeking for correction of the error with respect to the number of workmen. The petitioner-Union has also written to the Secretary, Government of India, Ministry of Labour and Employment-respondent No.1 herein, a letter dated 25.10.2016 bringing to its notice the error that has occurred in the reference and sought for correction of the same by issuance of a corrigendum. However, the said request met with a reply dated 09.11.2016 stating that after conclusion of conciliatory proceedings, the Conciliation Officer needs to forward entire case i.e., failure of conciliation report to the Secretary, Ministry of Labour and Employment, Government of India. Once the failure of conciliation is sent, any other correspondence shall not be entertained. Being aggrieved, the petitioner-Union is before this Court seeking a direction for issuance of corrigendum with respect to the number of workmen.
5. The learned Counsel for the third respondent submits that the claim of the petitioner-Union that it represents all the workmen and it is airing the grievance of the workmen, is disputed.
6. It is also submitted at the hands of the third respondent that all the dues payable to the workmen have been paid by the third respondent. To substantiate that contention, a few documents have also been produced along with statement of final settlement which contains the payment details of the workmen for having settled the dispute. The learned Counsel submits that the statement of final settlement has been drawn before the competent authority under the I. D. Act. It was also submitted by the learned Counsel that it may not be permissible to issue a corrigendum to a reference made under the provisions of the Industrial Disputes Act.
7. Learned Counsel for the petitioner places reliance on the following judgments:
(i) Chandra Spinning and Weaving Mills, Ltd. Vs. State of Mysore and Others reported in ILR 1964 Mys 826;
(ii) Bharat Petroleum Corporation Ltd., Vs. Bharat Pal and other connected matters reported in 2012 SCC OnLine Del 5076.
8. In the matter decided by the Delhi High Court, the decision in Chandra Spinning and Weaving Mills, Ltd. has been relied upon. In that case, it was held that the legal position that emerges from a careful review of all these decision is that a reference made by a State Government under Section 10(1) of the Act can be amended either by way of addition or modification so long as the amendment has not the effect of withdrawing or superseding the reference already made.
9. A reference is also made to another decision of the Supreme Court in the case of State of Bihar Vs. D.N.Ganguly, reported in AIR 1958 SC 1081, where it was held that the Act does not expressly confer any power on the appropriate Government to cancel or supersede a reference made under Section 10(1) of the I.D. Act. There is no dispute to this proposition. Having made a reference, the Government cannot cancel or supersede a reference, however, it can certainly amend the reference.
10. The learned Counsel for the petitioner has further placed reliance on a judgment of the Hon’ble Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh and Anr. Vs. State of Bihar and Ors. reported in AIR 1989 SC 1565, to buttress his contention that neither the conciliation Officer nor the appropriate Government could go into the merits of the dispute to find out whether the person claiming is indeed workman.
11. The Hon’ble Supreme Court has held that it is now well settled that while exercising power under Section 10(1) of the Act, function of appropriate Government is an administrative function and not a judicial or quasi judicial function and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. It is therefore contended that the authorities and the Government could not go into the question of the number of workmen. Every opportunity will be available to the respondent-Management to have its say regarding each and every person claiming to be a workman and if the Management disputes that a person is not a workman, it would be on the workman to produce cogent evidence to substantiate his claim that he was the workman under the respondent-Management.
12. Having heard the learned Counsels and perusing the writ papers, this Court is of the opinion that the entire issue is whether a corrigendum can be issued to a reference and more particularly amending the number of workmen. There is absolutely no dispute on this aspect that in the conciliation proceedings, the second respondent-Regional Labour Commissioner (Central) has clearly stated in the order reporting failure of conciliation that the number of workmen were 477. The number of workmen is reflected in more than 2 or 3 places in the order passed by the second respondent which is at Annexure ‘D’. This is the order that is communicated to the first respondent. The first respondent, however, while making the reference has committed mistake of showing only 395 workmen in the place of 477.
13. In the light of the decision of the Hon’ble Supreme Court referred to above, an amendment indicating the correct number of workmen is indeed permissible and therefore the prayer made by the petitioner insofar as issuing a corrigendum could definitely be considered.
14. In the light of the discussion above, the petition is partly allowed. The first respondent is hereby directed to issue a corrigendum to the reference dated 03.05.2016 at Annexure ‘F’, showing the number of workmen as 477 instead of 395 workmen. All other contentions raised by the parties are kept open for decision making before the appropriate authority.
15. In view of the dispute having been raised in the year 2014 and the matter having not been resolved, the first respondent is expected to issue corrigendum as expeditiously -10-
as possible and at any rate within a period of four weeks from the date of receipt of a certified copy of this order.
SD/- JUDGE JT/-