Fci Workers Union, Thru Its ... vs Fci, Thru Its M.D., & 4 Ors
2017 Latest Caselaw 2870 Bom

                                                  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

 -------------------------------------------------------------------------------------------
 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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                           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

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

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

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

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


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