Bharatiya Kamgar Karmachari ... vs Indian Oil Corporation Ltd. And ...
2001 Latest Caselaw 844 Bom

JUDGMENT

1. We have heard counsel for the parties.

2. The case of the Petitioner-Union (in Writ Petition No. 7541 of 2000) is that the persons employed in the canteen run by respondent No. 1 - Indian Oil Corporation Ltd., are employees of the Respondent-Corporation. This is sought to be supported by the fact that providing a canteen is a requirement of the terms and conditions of service, and, secondly, that the extent of supervision and control by the Respondent-Corporation itself makes them employees of the Respondent-Corporation. It is not their case that the canteen is a statutory canteen under Section 46 of the Factories Act.

3. The question as to whether a canteen is established in view of the terms and conditions of service would require examination of further evidence. Similarly, the question as to whether the Respondent-Corporation directly supervises the functioning of the employees of the said canteen is again a question of fact. The Respondent-Corporation in their affidavit-in-reply has categorically stated in paragraph 6 that the terminal at Vashi employs only 38 employees, and that the Corporation has awarded a contract for running the canteen at the Vashi Terminal since April 2, 1998. The contract has been awarded to Respondent No. 6 after advertisement and receipt of tenders and acceptance of tenders in accordance with the standard procedure. Similarly, in the connected Writ Petition (No. 7539 of 2000), it has been averred that the Corporation at its Vashi Terminal has entered into a contract with Respondent No. 6 for providing services for complete maintenance and repairs of electrical systems, communication systems, operation and maintenance of fire fighting pumps etc. In

both the writ petitions, therefore, it appears to us that the Petitioner can succeed only if the factual averments made by it and disputed by the Respondent-Corporation, are held in its favour.

4. Counsel for the petitioner submitted that in view of the facts stated in the writ petition and in view of the judgment of this Court in Writ Petition No. 917 of 1995 and 2117 of 1996, dated October 9, 2001, this Court should direct the Central Government to make a reference under Section 19 of the Contract Labour (Regulation and Abolition) Act, 1970 or under Section 10 of the Industrial Disputes Act.

5. We have carefully perused the judgment, and while it is true that the learned Judges in exercise of their discretion have directed the appropriate Government to make a reference of the demand to the Industrial Tribunal for adjudication, and have also enumerated the issues arising therein, we do not find that the learned Judges have laid down as a proposition of law that in every case where the petitioners contend that a dispute exists and there are facts to support the contention of the Petitioners, the Court must itself refer a dispute for adjudication to the Tribunal and specify the terms thereof. It is well settled that the power to make the reference vests in the appropriate Government and if in exercise of that power, the appropriate Government does not comply with the requirement of law, the Court may correct such action. It may be that in exceptional case, with a view to avoid further delay or in cases where successive orders are passed and no appropriate action taken, the Court may, as a special case, itself make a reference to the Tribunal or the Labour Court

as the case may be, or to the competent forum. We do not find anything in the aforesaid judgment which lays down as a proposition of law that under Article 226 of the Constitution of India, the High Court is bound to make a reference if it finds that there is a genuine dispute raised by the petitioners.

6. In this case, we do not find any exceptional circumstance which may justify this Court to make a reference either under Section 10 of the Contract Labour (Regulation

and Abolition) Act. 1970 or under Section 10 of the Industrial Disputes Act. We, therefore, dismiss both the writ petitions but with liberty to the Petitioners to move the appropriate authority for reference of the dispute to the adjudicating authority in accordance with law. Nothing said in this order should be construed as expression of opinion on the merit of the claims of the parties. The interim order stands vacated.