Bombay High Court
Prs Permacel Private Limited vs Johnson & Johnson Employees Union on 31 July, 2008
Bench: J.P. Devadhar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.188 OF 2008
PRS Permacel Private Limited
a company incorporated under
the provisions of the Companies Act, 1956
and having its registered office at
63,Bombay Samachar Marg,
Mumbai-400 001. ... Petitioner
v/s.
1. Johnson & Johnson Employees Union
(Permacel Division), a Trade Union
registered under the provisions of the
Trade Unions Act and having its office
at Safed Pool, Andheri Kurla Road,
Mumbai-400 072.
2. The Commissioner of Labour,
Government of Maharashtra
3. Presiding Officer,
Industrial Tribunal, Mumbai .. Respondents
ALONGWITH
WRIT PETITION NO.187 OF 2008
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PRS Permacel Private Limited
a company incorporated under
the provisions of the Companies Act, 1956
and having its registered office at
63, Bombay Samachar Marg,
Mumbai-400 001. ... Petitioner
v/s.
1. Johnson & Johnson Employees Union
(Permacel Division), a Trade Union
registered under the provisions of the
Trade Unions Act and having its office
at Safed Pool, Andheri Kurla Road,
Mumbai-400 072.
2. The Commissioner of Labour,
Government of Maharashtra
3. Presiding Officer,
Industrial Tribunal, Mumbai .. Respondents
Mr. J.P. Cama, Senior Advocate with Mr. Ajit Kapadia and Mr. G.S.
Shetty i/by M/s. Crawford Bayley & Co. for Petitioner.
Mr. Arshad Shaikh with Mr. Mahesh Londe i/by M/s. S. Udeshi & Co.
for the Respondents.
CORAM : SWATANTER KUMAR, C.J. &
J.P. DEVADHAR, J.
Date of reserving the judgment : 11 th
July, 2008
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Date of pronouncing the judgment : 31 st July, 2008
JUDGMENT (Per Swatanter Kumar, C.J.)
PRS Permacel Private Limited, a company incorporated
under the provisions of the Companies Act, 1956 has approached this
court under Article 226 of the Constitution of India praying that the
court be pleased to issue appropriate writ, order or direction declaring
the order of reference dated 22nd June, 2007 as illegal, invalid,
arbitrary and violative of Article 14 of the Constitution of India and,
thus, the same be set aside as not even being maintainable. Besides
seeking striking down of the said order, it has also been prayed that
the Presiding Officer, Industrial Tribunal, Mumbai be also directed not
to proceed with the reference proceedings in furtherance to the order
dated 22nd June, 2007. The challenge to the order dated 22nd June,
2007, interalia is on the following grounds:
(a) There is no master and servant relationship between
the petitioner and members of the respondent No.1.
Thus, no reference could be made by respondent
No.2 and could not be proceeded with any further by
respondent No.3. To buttress this submission, it is
also contended that even the members of the union till
today have not taken a clear stand as to whether they
are the employees of the petitioner and/or the
erstwhile company Johnson & Johnson which is
stated to have been transferred to the petitioner.
(b)
The order of reference suffers from an error of
jurisdiction in as much as the competent authority
before making the reference should have examined
the question of employer-employee relationship.
Therefore, the order of reference is arbitrary and
made without application of mind.
2. We may refer to the necessary facts giving rise to this writ
petition.
3. The petitioner claims that in August, 1999, they acquired
Permacel Division of Johnson & Johnson Limited for a consideration
in excess of Rs.29 crores. They entered into an agreement for
acquisition of the undertaking wherein it was also agreed that
petitioner would take over the services of the workmen who were
employed in the said undertaking by the Johnson & Johnson. It is
averred by the petitioner that despite dialouges and negotiations, a
final settlement concerning the terms and conditions of the
employment of the workmen could not be arrived at due to the
unreasonable attitude of the workmen. This transfer of the
undertaking itself was challenged by the Union which maintained that
its members were workmen of Johnson & Johnson. This transfer was
questioned on different grounds including a fraud on the workmen,
who even filed a complaint before the Industrial Court terming the
transaction as a sham one but the complaint was dismissed which
order was challenged by the workmen in a writ petition filed before
this court being Civil Writ Petition No.1312 of 2004 which came to be
dismissed vide order dated 14th July, 2004. The workmen again
preferred a review petition against the said order being Review
Petition No.56 of 2004 which was dismissed and even appeal
preferred against that order was also dismissed. The matter was
taken upto the Supreme Court in SLP being C.R. No.4790 of 2006
which was subsequently withdrawn. There was promise in carrying
on the business of the petitioner company still its production was
adversely affected because of the attitude of the workmen. Hence at
the instigation of respondent No.1, the workmen did not give
production as per the machine capacities and the agreed norms of
production and they did not accept directions and instructions of the
supervisors and managers and indulged in indiscipline of various
nature, all on the grounds that the petitioners managers and
supervisor had no authority over them. As many as 30 workers gave
such individual undertakings and joined work and balance 98 workers
refused to give such undertaking and did report for work. It is further
the case of the petitioner that some of the workmen who were
employees of the Johnson & Johnson even resigned and were
removed from the membership of the respondent No.1. The
respondent No.1 union vide their letter dated 31st July, 2006 raised a
dispute against both the petitioner herein and the erstwhile company
Johnson & Johnson. The dispute related to furnishing of an
undertaking and the working conditions. The workmen also persisted
with their claim that the petitioner were not the employers of the
workmen employed at the said undertaking. This stand was opposed
by the petitioner claiming that the dispute was non-existent and
dispute in relation to employer and employee relationship had not
been resolved and as such, the proceedings in furtherance to the
notice dated 31st July, 2006 did not continue.
4. During the pendency of the said demand letter, the
workmen even filed writ petition before this court. The writ petition,
being Civil Writ Petition No.2028 of 2006 came up for hearing before
a Division Bench of this court and the same was dismissed vide order
dated 29th August, 2006 which reads as under:
It is grievance of the petitioner that though
they have raised a dispute before respondent No.1
is not taking steps to initiate conciliation proceeding.
2. The petitioners earlier were contending
that they were employees of M/s. Johnson &
Johnson Ltd. And not of respondent No.3. The
Industrial Court held against them. The Learned
Single Judge, where the petition was filed, has
rejected the contention. Appeal preferred before
the learned Division Bench has been dismissed.
The SLP filed has been withdrawn. In other words,
the contention of the respondent No.4 that Johnson
& Johnson Limited is their employer stands
concluded.
3. On behalf of the petitioners, the learned
counsel submits that the order was taken by playing
fraud on the Court. It is not for this Court to go into
that issue. The petitioners are at liberty to take
steps which they may be entitled to. If the matter is
before the Conciliation Officer, the Conciliation
Officer is bound to proceed according to law.
Considering the earlier order of this Court, this
would not be a fit case to exercise our extraordinary
jurisdiction.
4. The present petition stand dismissed.
5. Parties to act on the authenticated copy."
5. According to the petitioner, the respondent No.1'
s
contention had not been accepted by any court including the Supreme
Court where they withdrew the SLP which was against the order of
Division Bench of this court passed in Civil Writ Petition No.1312 of
2004. After passing of the order dated 29th August, 2006, the
conciliation proceedings progressed but resulted in filing of failure
report which was submitted by Conciliation Officer to respondent
No.2. Respondent No.2 thereafter passed the order dated 22nd June,
2007 referring the dispute for adjudication to the Industrial Court at
Bombay. The appropriate Government, on the recommendations
made by the Labour Commissioner, in whose view the settlement
between the parties remained unsuccessful, referred the matter to the
Industrial Court vide its order dated 22nd June, 2007. The dispute, as
stated in the schedule to the said order, reads as under:
" S C H E D U L E
Whether the M/s. PRS Permacel
Pvt.Ltd., company' s Notice dated 29.7.2006 is legal
and justified and whether the action of the
company pursuant to Notice dated 29.7.2006 is an
illegal Lock-out. If you, what relief, are the
workmen entitled to?
Whether the workmen are entitled for a direction to
the company to allow workmen to perform their
normal duties without insisting upon a pre condition
that workmen should give/must sign
assurance/undertaking for entry in to the said plant
at Safed Pool, Andheri Kurla Road, Andheri (E),
Mumbai-400 072 for performing their duties on and
from 29.7.2006.
Whether the workmen are entitled to full
wages/salaries and all attendant benefits w.e.f.
29.7.2006."
6. The legality and correctness of the above order of reference
is challenged in this writ petition with the prayers referred herein
above. The respondent No.1 has not really controverted the facts
except to the extent that the transfer in favour of the petitioner is
illegal, bad-in-law and for which they have taken appropriate legal
action before the competent forum. Further, it is averred that the
undertaking sought by the company had been incorrectly worded but
the workmen vide their letter dated 21st September, 2006 even signed
an undertaking which clearly postulated that the workmen will
continue to give normal production, maintain full discipline and there
would be no casualty of discipline due to the contention that the
company is not their employer. Despite giving such undertaking, the
petitioner has not acted fairly. It is admitted that the demand letter
was submitted to the Commissioner on 11.12.2006 as no conciliation
was possible despite negotiations and keeping in view the stand of
the company firstly, the matter remained under Personal Management
Advisory Services which culminated into issuance of letter dated
11.2.2008 vide which the Assistant Commissioner of Labour refused
to admit the matter in conciliation in regard to settlement between the
parties.
7. Keeping in view the controversy created with regard to
employer-employee relationship, during the course of hearing, the
Court had observed that the workmen may spell out their clear stand
in regard to this aspect of the case. While an affidavit was filed by the
Respondent Union on 14th February 2008 wherein besides touching
upon the content of the undertaking which they were required to
furnish and which they actually furnished, they also stated that all the
workmen were ready and willing to work while continuing the
discipline and co-operate in meeting normal production standards.
Relying upon the order dated 29th August 2006 and a clarificatory
order dated 11th September 2006 passed in Writ Petition (Lodging)
No. 2028 of 2006 it is stated that the contention of Respondent No.4
in that Writ Petition averred that they were employees of Johnson and
Johnson Limited stood concluded. In regard to plea of fraud, they
were granted liberty to take steps which they are entitled to. If the
matter is before the Conciliation Officer, the Conciliation officer is
bound to proceed in accordance with law. They have stated that they
will continue to work as if the Petitioner is their employer as they have
done continuously since 10th August 1999 but without prejudice to
their plea in the other proceedings that they were and continue to be
the employees of Johnson & Johnson Limited, as according to them,
the transaction that took place was not legal. There are other legal
proceedings pending between the parties before the appropriate
forum. In the earlier litigations, the parties had approached this Court
under Article 226 of the Constitution of India, and vide its order dated
29th August 2006 the Court had specifically noticed that upon the plea
of the workmen that they were employees of Johnson & Johnson
Limited and not of the present Petitioner. The Industrial Court had not
accepted that plea against which order the learned Single Judge
rejected the contention. The Appeal before the Division Bench was
also dismissed and the Special Leave Petition, as noticed earlier, was
also withdrawn. In other words, the contention of the members of the
Union stood concluded, but it also proceeded to add that the said
order was obtained by playing a fraud and the Petitioners were at
liberty to take steps which they were entitled to and if the matter was
pending before the Conciliation Officer, he would proceed in
accordance with law. While taking some benefits of these
observations, the workmen contended that this question has not been
concluded finally and can be examined by the appropriate forum in
accordance with law. Reliance was also placed upon the notice dated
31st July 2006 served by the Union on 7th August 2006 stating that
there was illegal lock out and with a clear clarification that read as
under :-
"It is clarified that for the purpose of the present
demand the dispute relating to employer employee
is not being raised and the present letter of demand
ought not be considered as a waiver of the right of
the workmen to raise such disputes as may be
permissible at law including the issues which
according to the Companies have allegedly come to
an end. It is stated that no employer or person
claiming to be employer can prevent approach to
court of law for redressal of grievance of workmen.
Hope wiser counsel prevails and the workmen are
not forced to initiate further proceedings in this
regard."
8. The Petitioner company had also issued a notice dated 17th
August 2006 indicating various facets of the litigation in relation to
transfer and problem of production and discipline. The consent letter
which was required to be executed by the workmen was replied to by
the union vide Exhibit "I" stating that they would not execute the same
and later submitted the amended undertaking as mentioned above.
9. While relying upon the judgment of the Supreme Court in
Haryana State Co-operative Land Development Bank vs. Neelam,
(2005) 5 SCC 91, it was contended on behalf of the Petitioner
company that the plea of estoppel, waiver and acquiescence are
applicable to proceedings before the Labour Court and the scheme of
the Act does not exculpate an individual from responsibilities of his
conduct. His conduct has to be taken into consideration for granting
or declining a relief. As the matter of employee-employer relationship
stood fully settled, the order of reference will be vitiated. It is further
argued that the High Court is competent to examine validity of a
reference as the Industrial Court does not have the power to examine
the validity of a reference and it is only to answer or adjudicate the
reference. In support of this argument, reliance is also placed on
National Engineering Industries vs. State of Rajasthan and others,
(2002) 1 SCC 371. The impugned order also suffers from the infirmity
of non-application of mind as without determination of employer-
employee relationship, the reference is untenable. Support is taken
from the judgment of the Supreme Court in Hochtief Gammon vs.
State of Orissa and others, AIR 1975 SC 2226.
10. According to the Respondent Union, the order of reference
is proper and is within the four corners of law. The reference
including the dispute of employer-employee is wide open and has not
been finally concluded particularly in face of their plea that the orders
were obtained by fraud. There is no ambiguity in the order of
reference and the Industrial Court/Labour Court has to adjudicate the
matter on merits and it will not be appropriate for this Court to
examine the question of preliminary objection as regard to
maintainability of reference before the Industrial Court particularly in
facts and circumstances of the present case. Even when two fora are
available, the Courts can certainly say which is the more appropriate
forum to effectively get it adjudicated. There has to be, in reality, a
relationship between employer and the complainants where they
plead unfair labour practice. Industrial dispute has to be raised before
the Tribunal under the Industrial Disputes Act for issue relating to
actual nature of employment to be sorted out. Reliance is placed on
the case of Shambu Natha Goyal vs. Bank of Baroda, 1978 I LLJ 484,
Workmen Hindustan Lever Ltd. vs. Hindustan Lever Ltd., (1984) 4
SCC 392 and Sarva Shramik Sangh vs. Indian Smelting and Refining
Co. Ltd. and others, 2003 (3)CLR 949.
11. In the present Writ Petition, neither we are expected nor do
we propose to deal with the merits of the various contentions raised in
this Petition which are directly pending before the competent forum.
The short question that we need to consider is whether the order of
reference dated 22nd June 2007 suffers from such a legal error that it
is palpably without jurisdiction or is legally untenable.
12. The appropriate Government, while exercising the powers
of making a reference under section 10(1) of the Industrial Disputes
Act has limited jurisdiction and cannot travel into the field of
determining the controversies on merits by taking the evidence or
adjudicating the controversies between the parties. Of course, it may
satisfy itself as to the existence of the essential ingredients for making
a reference of an industrial dispute to the appropriate forum/court.
We may refer to a recent judgment of this Court reported in the case
of National Organic Chemical Industries Limited v. State of
Maharashtra and others, AIR 2007 Bombay, 188. The Court
discussed various judgments of the Supreme Court and the High
Courts on the subject and enunciated the principles as under:
"5. Having stated the factual metrix of the
case we will prefer to examine the law in relation to
the ambit and scope of section 10(1) of the Act and
the limitations of judicial review in relation to an
order of reference referring an industrial dispute to
the Labour Court. In the case of Shri Subhash
Chand vs. Government of NCT and Ant, reported
in 117 (2005) DLT 527, a Division Bench of the
Delhi High Court had an occasion to discuss, in
some elaboration, the law on the subject. The
court has held as under:
"Reference to the development of law in
this regard is necessitated for the
reason that somewhat divergent views
have been expressed by the Courts
while explaining the scope and
limitations of jurisdiction vested in the
appropriate Government while
exercising its administrative power of
making a reference under Section 10(1)
(c) of the Act.
6. Reference to the decision of the
Constitutional Bench of the Supreme Court in the
case of State of Madras v. C.P. Sarathy, 1953 SCR
334 can be ;usefully made at the very outset. It
was observed:
"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 anytheless
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 if it was a
judicial or quasi-judicial determination.
7. Explaining the ratio of the decision in
Sarathy's case (supra), in Western India Match
Co.Ltd. v. Western India Match Co. Workers Union,
MANU/SC/0375/1970 it was observed as under:
"In the 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 functions.
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."
8. After referring to the earlier decisions on
the subject in "Shambhu Nath Goyal v. Bank of
Baroda, Julundur, MANU/SC/0283/1978 it was held
that "in making a reference under section 10(1), the
appropriate Government is doing an administrative
act and the fact that it has to corm 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."
Thus, there is a considerable body of judicial
opinion that while exercising power of making a
reference under Section 10(1), the appropriate
Government performs an administrative act and not
a judicial or quasi-judicial act."
9. The scope and scheme of Sections 10
and 12 of the Act were also examined by the
Supreme Court in State of Bombay v. K.P. Krishnan
and Ors., MANU/SC/0999/1960. It was held therein
as under:
"Even if the appropriate Government may
be acting under section 12(5) by itself
and independently of Section 10(1) does
not confer power on the appropriate
Government to make a reference. While
deciding whether a reference should be
made under section 12(5) it would be
open to the appropriate Government to
consider, besides the report of the
Conciliation Officers other relevant facts
which may come to its knowledge or
which may be brought to its notice. Just
as discretion conferred on the
Government under section 10(1) can be
exercised by it in dealing with industrial
disputes in regard to non-public utility
services even when Government is
acting under Section 12(5), so too the
provisions of the second proviso to
Section 10(1) can be pressed into
service by the Government when it deals
with an industrial dispute in regard to a
public utility service under Section 12(5)."
10. It was further held by the Supreme Court
that "whether Section 12(5) is construed as making
it obligatory on the Government to make a reference
when it is satisfied that there is a case for reference
or as only conferring a discretion, if in refusing to
make a reference Government is influenced by
reasons which are wholly extraneous or irrelevant or
which are not germane, then its decision may be
open to challenge in a court of law. Though
considerations of expediency cannot be excluded
when Government considers whether or not it
should exercise its power to make a reference it
would not be open to the Government to introduce
and rely upon wholly irrelevant or extraneous
considerations under the guise of expedience.
.......................................
32. It appears to be a settled principle of law
that while the appropriate Government is exercising
its power to make a reference under Section 10(1)
of the Act, such power is wide but has definite
limitations in terms of the prescribed law. The
Government would form an opinion as to
relationship, and whether a dispute exists or is
apprehended. This exercise of power is purely
administrative in nature and must clearly be
understood with definite distinction from a judicial or
a quasi judicial power. Government cannot
abrogate on to itself the power to adjudicate any
question. The formation of opinion has to be prima
facie based upon records before the Authority as
well as the report submitted by the Conciliation
Officer under Section 12 of the Act. An element of
expeditious disposal and determination of industrial
dispute is contemplated under various provisions of
the Act and even in a case under Section 12(6) of
the Act where the Conciliation Officer is required to
submit a report within 15 days of the
commencement of conciliation proceedings. For
granting any extension of time there is a duty casted
upon the Conciliation Officer to extend the period
upon agreement between the parties appearing
before the Conciliation Officer. There have been
cases where the Courts have taken the view that a
serious dispute with regard to relationship of
employer and employee could not also be gone into
by the appropriate Government in exercise of its
powers under Section 10 of the Act and such matter
requiring adjudication should be referred to the
Labour Court. With regard to the restricted scope of
Section 10 of the Act, the consistent view of the
Supreme Court has been that the Appropriate
Government should exercise powers within the
limited domain specified under the provisions of the
Act and should not adjudicate matters which would
otherwise fall within the domain of the Labour Court
or Industrial Tribunal. Furthermore, the appropriate
Government must state reasons for declining a
reference, particularly where it declines reference, in
furtherance to the demand raised by a workmen.
The material it considers should be germane to the
dispute and not extraneous. A view has also been
taken that a patently frivolous, perverse, vexatious,
and a stale dispute, which does not remain to be an
industrial dispute, could validly be declined by the
appropriate Government: In this regard, amongst
others, reference can be appropriately made to the
judgment of the Supreme Court in the case of
Bombay Union of Journalists (Supra).
33. The above decision illustratively places
the development of Industrial Law in regard to
concepts aforenoticed and clearly provides the
precepts which could usefully be applied to different
cases which may come up for determination before
the Court. Analysis of the above decisions clearly
show that the appropriate Government is vested
with administrative power to make or decline a
reference. Such power is to be exercised in line
with the law enunciated by the Court and essentially
must not transgress its jurisdiction and travel into the
matters of final determination which would squarely
fall within the jurisdiction of the Labour Court or
Tribunal. The expression `It may at any time' does
take the jurisdiction of the appropriate Government
to make a reference beyond the restrictions of any
limitation in terms of the period but still unexplained
prolonged delay could prove fatal to the case of the
workman either in terms of denial of reference or
denial of backwages for entire or part of the period
in question. The appropriate Government does not
exercise its powers under the provisions of the Act
as a mere administrative formality or a post-office.
Application of mind for valid and appropriate
reasons is the pre-requisite to denial or making a
reference in terms of these provisions. The
reasonableness in terms of period is sufficiently
adopted under the scheme of this Act. On the one
hand there is no specific limitation stipulated for
raising a demand or making a reference but the
proceedings of the authorities immediately
preceding the reference as indicated in Section 12
of the Act and post proceedings or determination of
the dispute again within the specified time under
Section 10(2)(a) of the Act shows the legislative
intent for adherence to the prescribed schedule of
time and expeditious disposal of the industrial
dispute. One of the irresistible conclusion of the
above discussion is that the concept of reasonable
time has great application to objective
implementation of various provisions of this Act.
The unreasonable and unexplained delay may
weigh with the authorities as well as with the Courts
while dealing with the matters. Thus, it may not be
quite correct to argue that Government would have
no jurisdiction to decline reference of an industrial
dispute, which has become stale and has
extinguished because of unexplained prolonged
delay. The time may not be of essence but certainly
is a relevant factor to be taken into consideration by
the appropriate Government at the appropriate
stage.
34. The above enunciated principles and their
objective appreciation in their correct perspective
unambiguously demonstrate the guidelines for
determining the issues which may arise before the
Courts as well as the appropriate Government when
it exercises its powers of reference under the
provisions of Section 10(1)(c) of the Act. In addition
to the five principles enumerated by the Full Bench
in the case of Radhey Shyam (Supra), I would also
refer to the following principles as well:
"(a) The dispute is so belated or stale
that direct consequence thereof is the
extinguishment of the industrial dispute
itself. Existence of the dispute being
condition precedence to the reference, the
power of the Government to decline a
reference would not stand wiped out just
because the provisions of the Section uses
the expression `at any time' .
(b) The alleged dispute is so stale
that it will be so prejudicial to either party to
dispute that it would be unfair unjust to
make a reference. Furthermore, it may not
be possible for the Labour Court/Tribunal
to mould the relief because of unexplained
prolonged delay. While exercising its
administrative power the Government must
strictly confine itself within the domain of
forming an opinion without traveling into
the merits of the case and determination
thereof. It must not usurp the power of the
Tribunal."
35. In the case of National Engineering
Industries Ltd. v. State of Rajasthan and Ors.,
MANU/SC/0755/1999 the Supreme Court
emphasised the scope of the powers and jurisdiction
of the Industrial Tribunal vis-a-vis the power of the
Government to make a reference. The Court held as
under:
"The Industrial Tribunal is the creation of a
statute and it gets jurisdiction on the basis
of reference. It cannot go into the question
on validity of the reference. The question
before the High Court was one of
jurisdiction which it failed to consider. A
tripartite settlement has been arrived at
among the Management, the Labour Union
and the Staff Union. When such a
settlement is arrived at it is a package deal.
In such a deal some demands may be left
out. It is not that demands, which are left
out, should be specifically mentioned in the
settlement. It is not the contention of the
Workers' Union that the tripartite settlement
is in any way mala fide. It has been
contended by the Workers' Union that the
settlement was not arrived at during the
conciliation proceedings under Section 12
of the Act and as such was not binding on
the members of the Workers' Union. This
contention is without any basis as the
recitals to the tripartite settlement clearly
show that the settlement was arrived at
during the conciliation proceedings."
36. Despite the fact tat the provisions of the
Industrial Disputes Act do not provide any limitation,
it will always be appropriate for a workman to
approach the concerned authorities for making a
reference at the earliest opportunity. This would
serve the dual purpose. Firstly, expeditious
determination of a reference/case by the Competent
Forum which is the object of the Act and, secondly,
the employer or the concerned authority would not
be able to take the plea of destruction/non-availability
of record. Unexplained long delays as already
noticed can be of some consequence particularly
when the workman had taken no steps whatsoever
to seek redress from the concerned authorities.
Another Full Bench judgment of the Punjab &
Haryana High Court in the case of Ram Chander
Morya v. The State of Haryana and Ors., 1999(1)
CLJ (C.Cr. & Rev.) 133 had also dealt with this
concept at greater details and held as under:
"42. After taking into consideration the
various provisions of law, stated above, and
after taking into consideration the words
"clearly belated" mentioned by the Supreme
Court in Bombay Union of Journalists' case
(supra), we would merely indicate that
reasonable time in case of reference of an
industrial dispute by an appropriate
Government to the Labour Court or the
Tribunal will be five years. In other words, if
any industrial worker or union or any other
person on behalf of the worker does not
apply to the appropriate Government for
reference of an industrial dispute under
Section 10(1) of the Act to the Labour Court
or the Tribunal for a period of five years and
tenders no explanation for the delay beyond
five years, this delay beyond the period of
five years shall be taken as clearly belated."
43. We have a note of caution here
that if a worker or the union
pleads/furnishes even a slightest
explanation for delay in submitting his/its
request to the appropriate Government for
reference of his/its dispute to a Labour
Court or the Industrial Tribunal then the
appropriate government shall leave the
determination of the question of
belatedness to the labour Court or the
Industrial Tribunal. It will then be the
province of the Labour Court or the
Industrial Tribunal to decide the question of
reasonable delay in filing the application
after taking into consideration the relevant
material placed before it. Now we come to
the individual cases."
37. It is a social welfare legislation and, in view
of the above enunciated principle of law essentially
should receive an interpretation which would help in
achieving the object of the statute that is protecting
the workman against exploitation and prolonged
litigation.
38. It will be appropriate to conclude that the
dimensions of the powers vested in the appropriate
Government under Section 10(1)(c) of the Act are
wide which require proper application of mind in
consonance with the above enunciated principles but
in no way the appropriate Government could usurp or
abdicate to itself the powers of determination which
are exclusively vested on the Labour Court/Tribunal.
Long delays by itself may not be sufficient to deny
the reference requested for by the workman unless it
is so seriously prejudicial to the other party as to
permit the workman to take undue advantage of his
own conduct or the dispute is so belated and stale
that in the eyes of law it has extinguished or lost its
substance."
13. The reliance is placed upon the case of National
Engineering Company Ltd. by the learned counsel appearing for the
petitioner does not really forward the case of the petitioner. The High
Court has the jurisdiction to entertain a writ petition but this jurisdiction
normally would not be used where the matter can appropriately be
adjudicated upon by the Labour or Industrial Courts as the case may
be. There is no dispute to the fact that failure report has already been
submitted to the appropriate Government and the appropriate
Government has made a reference in exercise of its power under
section 10 of the Act. There are certain facts which would take away
the jurisdiction for making a reference but even on those facts, the
parties are not ad idem. According to the workmen, they have
accepted the present petitioner as their employer, of course, subject
to determination of their complaint by the appropriate forum as
regards to the transfer of the unit and Johnson & Johnson being their
employer. As far as giving of any undertaking is concerned, the
record shows that the workmen objected to the format of the
undertaking whereafter they gave an undertaking, which according to
them, needs all the necessary requirements including working with
discipline and achieving the requisite production target.
14. What is the effect of the orders passed by the courts, in
previous litigation, can safely be considered by the Labour Court while
adjudicating the reference made to it by the appropriate Government
vide order dated 22nd June, 2007. The dispute referred has two
facets. Firstly, with regard to the alleged lock out being illegal and
secondly, the rights of the workmen to perform their duties without
insisting upon the alleged undertaking as a condition precedent for
performance of substitutes and resultantly, the wages and salaries
which the workmen are entitled to. The reference made by the
Government is so wide that the parties can safely adduced
appropriate evidence to substantiate their respective trends,
determination of which without such evidence is hardly possible. The
exercise of jurisdiction by the appropriate Government, the parties
could not have been asked to produce documentary and oral
evidence. The controversies raised in the present writ petition are of
such nature that it will not be just and fair to pronounce upon them
without affording opportunities to the parties to lead evidence. In fact,
it is nobody's case that no dispute raised between the parties. The
main emphasis of the petitioner is that the workmen are not clearly
stating as to whose employees they are. According to the workmen,
they have accepted in the present matters that they are employees of
the petitioner subject to their objections pending before different fora.
The petitioner-company has also issued notice to the workmen as
they are employees, of course, with some other reservation. So ex
facie, it is not a case where there is not even an iota of documents on
record to indicate existence of such nature but as we have already
noticed that it is not for this court to travel into such controversies in
exercise of its powers under Article 226 of the Constitution of India. In
fact, in Wyeth Employees Union v. M/s. Araine Orgachem Pvt.Ltd. And
others, 2007 CLR 315, this court had directed the appropriate
Government to consider making of a reference which it had felt on the
ground that the workmen having taken the benefit of the various
documents their existed no relationship of employer-employees
between the parties. The workmen had taken up the ground of fraud
and they were coerced into signing the scheme. It was held that the
Government has to form an opinion as to the existence of employer-
employee relationship and whether the dispute exists or is
apprehended. Thus, the jurisdiction of the appropriate Government
has limited scope. Of course, it is not to be exercised in a mechanical
manner. In the case of National Organic Chemical Industries Ltd.
(supra), in somewhat similar circumstances the court had dismissed
the writ petition and directed that the matter may proceed before the
appropriate Industrial/Labour Court which was further directed to
determine the questions and controversies raised before it in
accordance with law. In some cases, the Industrial Court, while
answering the reference made to it by the appropriate Government
under section 10, may have to decide ancillary questions and there
will be no legal impediment in doing so.
15. For the reasons aforestated, we decline to quash the order
dated 22nd June, 2007 and the petition is dismissed without any order
as to costs. However, we make it clear that any observation made in
this order will in no way influence the proceedings in exercise of its
discretion by the concerned Industrial Court.
16. As regards Writ Petition No.187 of 2008, which has been
listed alongwith the above petition viz. Writ Petition No.188 of 2008,
the only difference is that the order of reference dated 22nd March,
2007 is with regard to payment of bonus and additional bonus for the
calendar year ending 31st December, 2005. Here too, we decline to
quash the order dated 22nd March, 2007 and dismiss the petition with
no order as to costs.
CHIEF JUSTICE
J.P. DEVADHAR, J.
