Delhi High Court
General Secy., Delhi Mazdoor ... vs The Mang. Of M/S. Indian Airlines & ... on 25 January, 1999
Author: M Mudgal
Bench: M Mudgal
ORDER
Mukul Mudgal, J.
1. This petition on behalf of the Employees Unions challenges the order dated 23rd August, 1983 by which the Ministry of Labour and Rehabilitation declined to refer the dispute raised by the petitioner Union for adjudication. The order declining the reference is in the following terms : "In continuation of this Ministry's letter of even number dated the 3rd November, 1982 on the above subject I am directed to say that the Central Government has decided not to refer the dispute for adjudication for management of Indian Airlines and were engaged by the contractors and getting their wages only through them."
2. The petitioner Union had raised the dispute that they were the employees of Indian Airlines and wages similar to those paid to the other employees of the Indian Airlines be paid to them. This eventually lead to the termination of the services of the concerned employee and seeking of a reference by them from the Ministry of Labour leading to the impugned order dated 23rd August, 1983 extracted hereinabove.
3. Learned counsel for the petitioner has relied upon a judgment reported as Ram Avtar Sharma and Others Vs. State of Haryana and Another, wherein the Hon'ble Supreme Court has held as follows:
"Therefore the view that while exercising power under Section 10(1) the function performed by the Appropriate Government is an administrative function and not a judicial or quasijudicial function is beyond the pale of controversy.
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 the industrial dispute exists or is apprehended. This may permit the appropriate Govern ment to determine prima facie whether an industrial dispute exits or claim frivolous or bogus or put forth extraneous and relevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on ground relevant and germane to the exercise of power. If the administrative determi nation is based on the relevant, extraneous or grounds not ger mane to the exercise of power, it is liable to be questioned in exercise of the power of judicial review."
4. It was further held in Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, by the Hon'ble Supreme Court that:
"It is true that in considering the question of making a refer ence under Section 10(1) the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhushan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO i.e. to say whether there is relationship of employer and employ ees between the TELCO and the convoy drivers. In considering the question whether a reference should be made or not the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is, undoubtedly, not permissible.
Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case the dispute is whether the persons raising the dispute are work men or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act.
In several instances this Court had to direct the Government to make a reference under Section 10(1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhilukar Munnetra Sangam Vs. Government of Tamil Nadu, Ram Avtar Sharma Vs. State of Haryana; M.P. Irrigation Karamchari Sangh Vs. State of M.P.; Nirmal Singh Vs. State of Punjab."
5. In Dhanbad Colliery Karamchari Sangh Vs. Union of India and Others, reported as 1991 Supp. (2) SCC 10 the Hon'ble Supreme Court laid down the law in the following terms:
"After hearing learned counsel for the parties and having regard to the facts and circumstances of the case, we are of the opinion that this appeal must succeed. The Central Government instead of referring the dispute for adjudication to the appropriate Indus trial Court under Section 10 of the Industrial Disputes Act, 1947, it itself decided the dispute which is not permissible under the law. We, accordingly, allow the appeal, set aside the order of the High Court and of the Central Government and direct the Central Government to refer the dispute for adjudication to the appropriate Industrial Court under Section 10 of the Indus trial Dispute Act, 1947. We further direct the Central Government to make the reference within three months. There shall be no order as to costs."
6. Thus it is seen in appropriate cases the Courts have referred the disputes for adjudication. The very dispute raised was to the effect as to whether the employees concerned were employed by the Indian Airlines and the impugned order delving into the merits of the dispute is thus contrary to the position of law laid down by the Hon'ble Supreme Court in the aforementioned judgments. Mr. Rohtagi, the learned Senior Counsel for the petitioner submitted that the employees in question had no connection with the respondent No. 1. This is a premature plea which should be addressed at the stage of adjudication of the dispute.
7. In this view of the matter and the fact that the termination of the petitioners services was in July 1982, it would be appropriate that the Ministry of Labour and Rehabilition, respondent No. 2, be directed to refer the dispute for adjudication to the appropriate Court under Section 10 of the Industrial Disputes Act within three months from today.
8. Accordingly the writ petition is allowed, the impugned order dated 23rd August, 1983 is set aside. There will be no order as to costs.
