Court No. - 7
Case :- WRIT - C No. - 2239 of 2019 Petitioner :- Shiv Nandan Kumar And 4 Others Respondent :- Union Of India And 8 Others Counsel for Petitioner :- Akhilanand Mishra,Shri Anil Bhushan Senior Advocate Counsel for Respondent :- A.S.G.I.,Raj Kumar Singh,Sachindra Upadhyay
Hon'ble Saumitra Dayal Singh,J.
1. Heard Shri Anil Bhushan, learned Senior Advocate, assisted by Shri Akhilanand Mishra, Advocate, for the petitioners, Shri Vikas Singh, Advocate, holding brief of Shri Sachindra Upadhyay, learned counsel for respondent no.6 and Shri Raj Kumar Singh, learned counsel for the respondents Food Corporation of India.
2. Challenge has been raised to the communication dated 20.12.2018 issued by the Regional Labour Commissioner (Central), New Delhi. It reads as follows:
"To The Dy. CLC (C) Kanpur Subject : Compliance of order of the Hon'ble High Court of Allahabad passed in W.P. No. C. 30280 of 2018 - reg.
Sir, This office is in receipt of a report from Dy. CLC (C), HQ. after conducting enquiry on the direction of the Hon'ble High Court of Allahabad in W.P. No. 30280 of 2018. The report is self-contained and very clearly establishes/indicates the fact that there exists an industrial dispute between the FCI management and the petitioner (copy enclosed).
In view of the above established fact, you are requested to send FOC report before the appropriate Government so that the same could be referred for adjudication.
Enclosure: Copy of the order of the Hon'ble Court.
Sd-
(Abhijeet Kumar) CLC (C), HQ."
3. The aforesaid communication has apparently been issued in compliance of directions issued by this Court in Writ-C No. 30280 of 2018 decided on 11.9.2018. That writ petition had been filed to question an earlier order dated 18.05.2018 passed by the Chief Labour Commissioner (Central), directing the Area Manager of the FCI to implement the report dated 23.02.2018 of the Deputy CLC (C), Kanpur. At that stage, the Area Manager, FCI had felt aggrieved and filed the aforesaid writ petition. Amongst others, broadly, it had been contended no administrative direction could have been issued without prior adjudication to compel the FCI to treat certain workers as its employees. The Court while deciding the aforesaid writ petition, observed as under:
"Considered the submissions of learned counsel for the parties and perused the record. In the representation filed by respondent no.5, who claims to be the General Secretary of Mazdoor Sangh was that the FCI management be directed not to curtail the labour strength and to allow all the labourers to be inducted in "No Work No Pay" system as handling labourers and ancillary labourers and not to induct anyone as such except the members of the Sangh who were claimed to have been engaged through the bonafide contractors and rendered services in Roza Depot under supervision and control of the Area Manager, FCI, Shahjahanpur. The FCI management on the other hand disputed the claim with the contention that the claimants labourers are fictitious persons and their contention that they were engaged through genuine contractors was false. It is the prerogative of the employer to assess and fix the labour strength and no-one else can be allowed to intervene. There is no obligation on the FCI management to take any contract labour in employment. Further in Roza Depot, Food Corporation of India, no-one has been employed as labour for loading and unloading rather such work is being done through contractor who engage their own labours and pay them. The claimants labourers had never been in the employment of FCI and no master servant relationship exists between them.
Looking to the nature of dispute between the parties, there cannot be two opinion about the fact that said dispute was referable to a industrial tribunal under Section 2-K of the Industrial Dispute Act' 1947. Thus, only option before the Deputy Labour Commissioner was to make an effort for conciliation between the contesting parties. In the event of denial of FCI management to accept the claim of 331 workers being genuine workers of the Roza Depot, FCI, the Deputy Labour Commissioner could have submitted his report with the observation that an industrial dispute exists between the parties on the date of filing of the conciliation application/representation by respondent no.5.
Before referring the said dispute, it was required to be examined by the Chief Labour Commissioner (Central) that whether the respondent no.5 is a genuine person who can raise a dispute with regard to the labours, allegedly engaged in the corporation. In any case, it was not open for the Chief Labour Commissioner or the Deputy Labour Commissioner to hold by himself that these 331 workers whose grievances were ventilated by respondent no.5 were genuine workers and they are entitled for induction in Roza Depot, FCI, Shahjahanpur.
This observations in the report dated 23.02.2018 is wholly beyond jurisdiction of the Deputy Labour Commissioner (Central) and cannot be sustained. At the best, the said report can be said to be a recommendation made by the Deputy Chief Labour Commissioner in the Conciliation proceeding to the Central Government to make a reference for adjudication by the Industrial Tribunal.
On presentation of the said report, it was incumbent upon the Chief Labour Commissioner (Central) New Delhi to examine all aspects of the matter and to refer the dispute to the Industrial Tribunal after forming an opinion as to the existence of the industrial dispute. As this has not been done, the communication dated 18.05.2018 issued from the office of the Chief Labour Commissioner (Central) New Delhi is unsustainable in the eye of law being beyond jurisdiction. In any case, the order dated 18.05.2018 cannot be given effect to. The same is hereby quashed.
The matter is sent back to the respondent no.2 namely the Chief Labour Commissioner (Central) New Delhi to examine the report dated 23.02.2018 afresh so as to arrive at an opinion as to the existence of the industrial dispute.
A fresh decision is required to be taken by the Chief Labour Commissioner (Central), New Delhi on the grievances raised by the parties after due perusal of the record, preferably, within a period of one month from the date of submission of certified copy of this order.
With the above observations and directions, the writ petition is disposed of."
4. It is in pursuance of the aforesaid direction, the impugned communication has been issued.
5. Learned Senior Counsel for the petitioners submits that this Court had only directed the CLC to re-examine the issue in the context of claim made by the workers union and to take appropriate action in that regard. However, by calling for a fresh report, the said authority has violated the directions issued by this court. In this regard, it has been submitted that the directions issued by this Court should have been complied solely on the basis of material that was already existing on record.
6. Learned counsel for the respondent Corporation, on the other hand, submits that the power of the appropriate government was not confined to any one or the other material that may have been existing when the earlier writ petition came to be decided. Since the decision required to be made by the respondent authority did not exclude the power to make a reference. Therefore, no harm would be done and no prejudice would be caused to any party if a fresh report had been sought.
7. Having heard learned counsel for the parties and having gone through the earlier order of this Court, it appears that the Court had only intended that the administrative decision may be made by the appropriate government based solely on its own independent opinion arising on the material as may be existing with respect to the claim made or dispute espoused by the petitioners. The Court had, in no way, expressed its decision as to whether a reference was necessarily called for or if any reference was required to be made.
8. Needless to say that such exercise is exclusively within the domain of the appropriate government and not of this Court. It was not the intention of this Court in the order dated 11.09.2018 to dictate to the respondent authority to make or not make a reference. Since opinion is required to be formed today, no prejudice may be caused to either party if a fresh report (to ascertain true facts as they may be now existing), had been called. However, the exercise of forming the opinion must be completed independently and expeditiously, in a time bound manner.
9. Therefore, the present writ petition is disposed of with a direction that respondent no.1 may complete the exercise with respect to the claim being made/dispute being espoused by the petitioners and to, if required, form an independent opinion as to the matters before him without being influenced on merits as to any observation made in the earlier or this order of this court. Such exercise may be completed as expeditiously as possible, preferably within a period of three months from today, strictly in accordance with law.
Order Date :- 22.1.2019 AHA