1 WP1709.07.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1709 OF 2007
Food Corporation of India Workers
Union (Affiliated to INTUC No.4024)
Head Office 58/1, Diamond Harbour Road,
Calcutta-3, Branch Office Nagpur
(Maharashtra), C/o. 101, Chunabhatti,
Ajni, Nagpur, through its Organising
Secretary Shri Raju Fuke ...... PETITIONER
...VERSUS...
1. Food Corporation of India,
Head Quarter, Bara Khamba Lane,
New Delhi, through its Managing Director
2. Food Corporation of India, Regional
Office, Mumbai, De'watsa Road, Church
Gate, Mumbai, through its Senior
Regional Manager.
3. Food Corporation of India, Zonal Office,
Mumbai, De'watsa Road, Church Gate,
Mumbai, through its Zonal Manager
4. Food Corporation of India,
Chunabhatti, Ajani, Nagpur, through
its District Manager
5. The Union of India, Ministry of Labour,
New Delhi through its Secretary ...... RESPONDENTS
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Shri A.P.Raghute, Advocate for Petitioner.
Shri S.R.Deshpande, Advocate for respondent Nos.1 to 4
Smt. M.R.Chandurkar, Advocate for Respondent No.5
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2 WP1709.07.odt
CORAM: R. K. DESHPANDE, AND
Mrs. SWAPNA JOSHI, JJ.
th DATE : 7 JUNE, 2017 .
ORAL JUDGMENT (per Deshpande, J.) 1] The challenge in this petition is to the order dated 21.06.2006 passed by the Government of India, Ministry of Labour, holding that prima facie the Ministry does not consider the dispute fit for adjudication. The reason stated in the order for rejecting the claim for reference is reproduced below;
"During the conciliation proceedings, the Union could not produce any evidence as regards the alleged employment of 275 persons either by FCI or FCI Contractor i.e. the proof of their status as workmen which is the pre-requisite for consideration as 'Industrial Dispute' under the I.D.Act.
Hence, no industrial dispute subsists".
The aforesaid order was passed upon receipt of failure of conciliation report dated 27.01.2004 from the Regional Labour Commissioner (Central), Nagpur. 2] The members of the petitioner Union claimed that they were employed through the contractors by the respondent No.1 - Food Corporation of India, for the purposes of loading, unloading and ancillary works at ::: Uploaded on - 14/06/2017 ::: Downloaded on - 14/06/2017 23:59:55 ::: 3 WP1709.07.odt Nagpur-Ajni, Gondia and Wardha Depot of the respondent Corporation. According to them, the termination of their services effected on 01.04.1991 and 01.05.1991 after the abolition of contract labour with effect from 01.11.1990 is illegal and all of them, who are 275 in numbers, were entitled to reinstatement in service and also regularization/ permanency.
3] The management of the Food Corporation of India opposed the claim of the Union on several grounds including; (i) that there was delay in making reference; (ii) that the members of the petitioner Union were bound by the settlement dated 08.09.1994; (iii) that the members of the petitioner Union were neither employed by the Food Corporation of India nor by the contractors engaged for doing the job of loading, unloading and other ancillary works and therefore, there did not exist any industrial dispute for reference; (iv) out of 129 members of the petitioner Union working at Wardha, 76 members were accommodated at Ajni-Nagpur and Gondia in terms of the settlement and the remaining 53 workers who could not be absorbed for want of vacancies or for any other reasons, were bound by the ::: Uploaded on - 14/06/2017 ::: Downloaded on - 14/06/2017 23:59:55 ::: 4 WP1709.07.odt settlement. The reliance was placed on Clause (7) in the terms of settlement dated 08.09.1994.
4] It is not necessary for this Court to consider each and every objection raised by the respondent Corporation to oppose the claim of the petitioner Union for making reference of an industrial dispute. The validity of the order dated 21.06.2006, which is purely of an administrative in nature, is required to be tested on the basis of the reason stated in the order and hence, we restrict ourselves to the validity of such reason. The order impugned states that the Union could not produce any evidence as regards the alleged employment of 275 persons either by Food Corporation of India or by the FCI Contractors i.e. the proof of their status as workmen which is the pre-requisite for consideration as industrial dispute under the Industrial Disputes Act. 5] In the decision of the Division Bench of this Court in case of Mohidin M. Sangam vrs. Union of India and another, reported in 2008 (117) FLR 609, it has been held that the reason assigned for refusal to refer the dispute that the petitioner had not produced documentary evidence is ::: Uploaded on - 14/06/2017 ::: Downloaded on - 14/06/2017 23:59:55 ::: 5 WP1709.07.odt perverse and in performing the administrative function, the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis which would certainly be in excess of the power conferred on it by Section 10 of the Industrial Disputes Act. In the another decision of the Division Bench of this Court in case of Devdas S. Amin vrs. State of Maharashtra and others, reported in 2001 (2) Mh.L.J. 40, it is held that it is not open to the Government Labour Officer to conclude that the petitioner was not workman, as it amounts to assuming the power of the adjudicating authority to decide the case on merits. There is no point in multiplying the authorities on the issue and we hold that the reason assigned for refusing to make reference in the order impugned is unsustainable. 6] The question as to whether 275 members of the petitioner Union were the persons either employed by the respondent Corporation or by the contractors engaged by the respondent Corporation is a matter of adjudication, which can be done by the Court of competent jurisdiction upon reference of such dispute. The Ministry of Labour in passing the impugned order has exceeded its jurisdiction in going into ::: Uploaded on - 14/06/2017 ::: Downloaded on - 14/06/2017 23:59:55 ::: 6 WP1709.07.odt the question of merits. The order impugned cannot, therefore, be sustained and it will have to be set side with an order of remand.
7] In view of the aforesaid position, the impugned order dated 21.06.2006 passed by the Government of India, Ministry of Labour at Annexure-VII to the petition is hereby quashed and set aside and the matter is remitted back to the said Ministry to reconsider the question of making reference of a dispute, if any exists, in exercise of its power under Section 10 of the Industrial Disputes Act. The adjudication be done within a period of three months from the date of first appearance of the parties before it.
Rule is made absolute in above terms. No order as to costs.
JUDGE JUDGE
Rvjalit
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