Leena Patade (Smt.) vs Union Of India (Uoi), Ministry Of ...
2002 Latest Caselaw 89 Bom

JUDGMENT

1. Heard the learned counsel for parties.

Rule. Respondents waive service. By content Rule is made returnable forthwith. The short question which falls for our consideration is whether the appropriate Government was justified in declining to make a reference of an industrial dispute arising out of the termination of service of the petitioner for adjudication to the Industrial Tribunal/ Labour Court under Section 10 of the Industrial Disputes Act, 1947. The petitioner was employed with the respondent No. 3 Bank in 1988 as a Clerk in Trade Services Department and was doing clerical/technical duties. The petitioner was thereafter promoted to higher grade vide letter of promotion dated August 27, 1994. According to the petitioner she continued to do the same duties of clerical/technical even after her promotion. By letter of termination dated January 15, 2001 the petitioner's services were terminated by the Bank. Being aggrieved, the petitioner vide her letter dated January 15, 2001 raised two demands viz (i) for reinstatement in service with full back wages and continuity of service and (ii) no action should be taken against the petitioner with regard to recovery of the housing loan till the dispute of termination of her services is resolved. As the demands made by the petitioner were not acceded to by the Bank, she approached the Regional Labour Commissioner (Central) for conciliation vide letter dated January 31, 2001. The bank did not appear but sent its reply dated March 20, 2001 copy of which was received by the petitioner on April 16, 2001 only after the conciliation proceedings were closed. In the reply it was contended by the bank that the petitioner was not a "workman" as defined under Section 2(s) of the Industrial Disputes Act as the duties performed by the petitioner were primarily managerial duties. The conciliation officer submitted his failure report vide letter dated August 16, 2001. The Central Government, after taking into consideration the report of the conciliation officer by its order dated August 16, 2001 declined to make a reference on the ground that:

"The disputant, Smt. Leena Patade, could not convincingly establish that she will come within the definition of workmen under the I. D, Act, 1947. Moreover, nature of duties assigned to her shows that she was an officer of the bank availing all the benefits available to an officer of the bank. Hence there is no merit".

The present writ petition is filed questioning the correctness and validity of the said order. It is well settled that while exercising powers conferred by Section 10 to refer an industrial dispute to the Tribunal for adjudication, the appropriate Government is discharging an administrative function and not a quasi-judicial or judicial function. In State of Madras v. C.P. Sarathy a Constitution Bench of Supreme Court observed as under:

"But, it must be remembered that in making a reference under Section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as it was a judicial or quasi-judicial determination."

2. Explaining the ratio in the decision in Sarathy's case (supra) in Western India Match Company Ltd. v. Western India Match Company Workers Union, it was observed as under at p. 262 of LLJ:

"In State of Madras v. C.P. Sarathy , this Court held on construction of Section 10(1) of the Central Act that the function of the appropriate Government thereunder is an administrative function. It was so held presumably because the Government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication so that the industrial relations between the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible."

3. In Ram Avtar Sharma and Ors. v. State of Haryana and Anr., the Supreme Court after examining the earlier cases in State of Madras v. C.P. Sarathy and Western India Match Company v. Western India Match Company Workers Union held as under at p. 191 of LLJ:

"Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1) it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an Industrial Dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on irrelevant, extraneous or grounds not germane to the exercise of the power it is liable to be questioned in exercise of the power of judicial review. In State of Bombay v. K.P. Krishna, it was held that a writ of mandamus would lie against the Government if the order passed by it under Section 10(1) based on or induced by reasons which are given by the Government are extraneous, irrelevant and not germane to the determination. In such a situation the Court would be justified in issuing a writ of mandamus even in respect of an administrative order. May be, the Court may not issue writ of mandamus, directing the Government to make a reference but the Court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter. This legal position appears to be beyond the pale of controversy."

4. It was held that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling on the Government to reconsider its decision.

5. In the present case it is the specific case of the employee that she was discharging the duties which were of clerical nature, though her designation was that of an officer. It is also her case that she was given glorified designation -without there being any actual change in her duties. It is well settled that mere nomenclature or the designation is not conclusive and whether a person is a workman within the meaning of Section 2(s) depends upon various factors including the nature of duties performed by him/her. Mr. Rele appearing for the bank placed heavy reliance on the decision of the Supreme Court in Prem Kakar v. State of Haryana and Anr., wherein the Supreme Court held that so far as the order passed by the appropriate Government under Section 10(1) read with Section 12(5) of the Act, the Court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government. However, if it appears that the reasons given show that the appropriate Government took into account any consideration irrelevant or foreign, then the Court may in a given case consider the case on a writ of mandamus. Mr. Rele also relied upon the judgment of the Division Bench of the Gujarat High Court in N.D.D.B. Employees Union v. State of Gujarat and Ors., 1992-I-LLJ-725 where M.B. shAH J., as he then was, speaking for the Bench observed:

"Under Section 10(1), the Government or the concerned authority can prima facie decide from the evidence whether the person raising the industrial dispute is a 'workman' within the definition of Section 2(s) of the Industrial Disputes Act. Consideration of prima facie evidence would not empower the Government to adjudicate the dispute either on law or facts and decide it finally. But from the record, if it is apparent without any detailed investigation that the person raising the industrial dispute is not a "workman" as defined in Section 2(s) then the Government is not entitled to make a reference by assigning reasons for doing so as provided under Section 12(5) of the Act".

6. It is apparent from the above observations that where a detailed investigation is necessary to determine whether the person raising the industrial dispute is a workman as defined under Section 2(s) of the Act, then the Government will make a reference under Section 10 of the said Act. The reasons given by the Government would show that the Government came to the conclusion that there is no convincing evidence that the petitioner is a "workman" within the meaning of Section 2(s). It would further appear that the Government was satisfied that the petitioner was getting all the benefits available to an officer of the bank. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In our opinion, the reasons given by the Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. In State of Bombay v. K.P. Krishnan, which was confirmed in Bombay Union of Journalists v. The State of Bombay it was observed:

"From the perusal of these two decisions it becomes clear that the ambit of the enquiry open for the Government or the Dy. Commissioner under Section 12(5) of the Act is very limited. The Government has only to consider whether there is a prima facie case or merit and it is not permissible to adjudicate on the merits of the claim raised by the employee. Instead, the Government or the Dy. Commissioner of Labour should be very slow in declining to make the reference because such an action would shut the doors for an employee to get his dispute adjudicated by the Labour Court The Legislature has enacted the Industrial Disputes Act with the fervent hope that the disputes between the employee and the employer would be decided expeditiously and the substantial right conferred on the employee to get his dispute adjudicated from the Court should not be defeated by the Dy; Commissioner of Labour or the Government by adjudicating that the action of the Management is justified".

7. In the present case it cannot be forgotten that it was a specific case of the petitioner that she was discharging the duties which were of clerical in nature although she was designated as an Officer and was put in Junior Officer's Grade. At the same time it was also contended by the petitioner that although several employees of the bank left the employment under the Voluntary Retirement Scheme (VRS), the petitioner was not allowed to go under the VRS on the ground of she being indispensable to the bank and immediately thereafter the bank insisted upon her to resign from the services of the bank by availing of a separate scheme which was less beneficial than availed by the other employees of the bank and since the petitioner did not accept the said scheme, her services were terminated by the bank. If the dispute raised by the petitioner is considered in this background, it is not possible to conclude that it did not merit even adjudication by the competent Court or Tribunal.

8. In the result, in view of the foregoing discussion, the petition is liable to be allowed. Rule is made absolute in terms of prayer Clause (a).

9. Certified copy expedited.

10. The parties and the authorities to act on the ordinary copy of this order duly authenticated by the personal secretary of this Court.