Rattan Lal vs Govt. Of N.C.T. Of Delhi And Anr.
2000 Latest Caselaw 373 Del

JUDGMENT

A.K. Sikari, J.

1. This petition has been filed by the petitioner against the order No. F.24(1619)/95/Lab-32991-95 dated 27th October, 1995 by which the "appropriate Government" has refused to refer the matter for adjudication stating that it was not a fit case for reference to the Industrial Tribunal or Labour Court, Delhi for adjudication. Reasons for refusal as stated in the said order are mentioned as under:

"Shri Rattan Lal has been regularised on the post of Beldar w.e.f. 1.4.89 after obtaining his acceptance. He does not fulfilll the requirement of R... Rs. for the post of Driver."

2. The petitioner had raised the dispute with the allegation that he was employed with Respondent No. 2 on 1st June, 1982 and right from the date of initial appointment he was working as Driver. However, respondent regularised him in the post of Beldar w.e.f. 1st April, 1989. During this period he was treated and paid as daily rated Driver on muster roll. On 25th January, 1994 the demand notice was served upon the MCD/Respondent No. 2 demanding regularisation in the post of Driver with retrospective effect with all its consequential benefits. Thereafter statement of claim was filed before the conciliation officer on 18th February, 1994. Respondent No. 2 submitted its reply on 15th April, 1994 in which it was, inter alia, mentioned that petitioner is class-IV passed and does not fulfill the requisites of Recruitment Rules for the post of Driver. Accordingly, he was offered regular post of Beldar and on his acceptance he was regularised w.e.f. 1st April, 1989, as per policy under phased programme vide office order No. 98 (West District) dated 2nd April, 1991. This office order was issued only after he gave his acceptance for the post of Beldar. A copy of his acceptance letter and a copy of office order of regularisation as well as Recruitment Rules for the post of driver were also filed. The petitioner filed rejoinder to this in which aforesaid averments were not denied. It was simply stated that the petitioner had acquired the status of a permanent employee in the post of Driver after completing 90 days of continuous employment as provided in the Model Standing Orders framed under the Industrial Employment Standing Orders Act, 1946. Conciliation proceedings ended in failure. Failure report was submitted by the Conciliation Officer to the appropriate Government and after considering documents filed and submissions of the parties as well as report of the Conciliation Officer impugned order dated 27th October, 1995 was issued rejecting the reference.

3. In the writ petition filed by the petitioner the main emphasis is that since petitioner was performing the duties of Driver, he had a right to be regularised as a Driver. The reference could not be refused once dispute was raised inasmuch as it was not appropriate on the part of the Government of N.C.t. of Delhi to assume the role of adjudicator and decide the dispute. It was submitted that the reasons given because of which the reference in rejected amounts to adjudication of the dispute by the Government itself, which is not permitted and this approach of the respondent No. 1 was contrary to law as laid down by the Supreme Court in the cases of M.P. Irrigation Karamchari Sangh v. States of M.P. and Anr. , Telco Convoy Drivers Muzdoor Sangh and Anr. v. State of Bihar and Ors. , Guest Keen, Williams Pr. Ltd., Calcutta v. P.J. Sterling and Ors. and in the case of Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant etc. JT 1995 (4) SC 348.

4. No doubt the appropriate Government while deciding as to whether the dispute is to be referred for adjudication or not, acts in administrative Capacity and the order which is passed is in the administrative nature. While passing such an order the appropriate Government is not supposed to decide the questions which are to be decided by the Labour Court and/or Industrial Tribunal by way of adjudication. However, it is open for the appropriate Government to determine as to whether any Industrial Dispute exists which needs reference to the Labour Court and/or Industrial Tribunal for adjudication.

5. In the present case the "appropriate Government" refused to make the reference stating that petitioner had been regularised on the post of Beldar w.e.f. 1st April, 1989 after obtaining his acceptance. It is further recorded in the impugned order that he did not fulfilll the requirement of recruitment, rules for the post of Driver. The facts mentioned above disclose that petitioner was regularised in the post of Beldar w.e.f. 1st April, 1989 and at the time of his regularisation as Beldar his acceptance was taken however thereafter in January, 1994 he made a demand claiming regularisation in the post of driver with retrospective effect. The appropriate Government found that petitioner who only studied upto class VI did not fulfilll the requirement of recruitment rules for the post of driver. Thus the reference had been rejected on valid and proper grounds. A person who does not fulfilll the eligibility conditions for the post of driver as per the recruitment rules cannot claim appointment to the said post. This is well established principle of law laid down by the Apex Court in series of judgment and the appropriate Government while deciding whether to make reference or not took into consideration this well established position in law and no adjudication was at all required on this aspect. The impugned order of the appropriate Government for refusing to make reference, when petitioner could not be appointed to the post of driver for failing to fulfilll the requirement of recruitment rules, is thus proper and valid. Argument advanced by learned counsel for the petitioner that this was a matter which require adjudication and therefore should have been referred to the Tribunal/Labour Court and the appropriate Government has usurped the jurisdiction by adjudicating on this aspect, is far fetched. If such an argument is accepted, the appropriate Government would virtually be left with no power to examine whether the matter is worthy of reference or not and it will have to make reference whenever a dispute is raised before it on the plea that it is the adjudicatory body which should decide about the issues involved. It cannot be denied that appropriate Government has the power to examine, before deciding as to whether to make the reference or not, whether any industrial dispute exist or not. While deciding this aspect the appropriate Government can take into consideration the accepted/admitted facts and on the basis of such admitted facts it can determine whether the matter is fit for reference or not.

6. In this context one may usefully refer to the recent judgment of Apex Court in the case of The Secretary, India tea Association v. Ajit Kumar Barat and Ors. 2000 LLR 506 where the Court held that refusing to make reference on the ground that the employee who resorted to industrial dispute was not "Workman" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 was proper. The exercise done by the appropriate Government in coming to the conclusion that employee was not "workman" on the basis of duties being performed by the said employee which were supervisory/managerial in nature was held to be valid and the argument that this aspect could only be decided by the Labour Court/Industrial Tribunal on reference, being adjudicatory function was repelled. After quoting from the earlier judgments of the same Court in the cases of State of Madras v. C.P Sarathy and Anr. , Prem Kakkar v. State of Haryana and Anr. and Sultan Singh v. State of Haryana and Anr. 1996 (73) FLR 955 (SC), the law on the point is formulated in the following words:-

1. The appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or apprehended and if such a reference is made it is desirable wherever possible for Government to indicate the nature of dispute in the order of reference;

2. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi-judicial one and the Court, therefore, cannot canvass the order of the 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 order;

3. An order made by the" appropriate Government under Section 10 of the Act being an administrative order no lis is involved, as such an order made on the subjective satisfaction of the Government;

4. If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the Court may in a given case consider the case for a writ of mandamus and;

5. It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act.

7. Thereafter the Court dealt with the order of State Government refusing to refer the dispute for adjudication by recording the reasons that the duties being performed by the concerned employee were such that he could not be treated as a "workman" within the purview of the Industrial Disputes Act, 1947. Upholding this order of the State Government in refusing to make reference the Court made the following observations:-

"In the present appeal we find that the State Government rightly approached the question whether respondent No. 1 was a workman. Unless this condition is satisfied no reference can made. From the order of the State Government we find that while deciding the question whether respondent No. 1 was a workman, it took into consideration the salary and allowances of respondent No. 1 drawn at the relevant time and also the nature of work, Respondent No. 1 who has appeared in person did not dispute the salary and allowances etc. as indicated in the order of the Government but urged that his responsibilities were neither supervisory nor managerial in nature.

Mr. Gupta, learned senior counsel appearing for the appellant, has drawn our attention to the circular dated 30th March, 1994 issued by the appellant association. This circular indicates duties of respondent No. 1, who was functioning as a Joint Secretary at the relevant time and we find his duties were to deal with all legal matters and court proceedings, labour and land laws and publications (labour legislations Labour welfare). We also find from the records the respondent No. 1 had power to sanction expenses incurred in litigation by the appellant. On the above material on record the State Government rightly formed the opinion that respondent No. 1 was not a workman.

Respondent No. 1 has not been able to show that while passing the above administrative order, state Government took into consideration any irrelevant or foreign matter. We therefore, hold that the above administrative order was passed by the State Government after taking into consideration material available on record and it could not be faulted.

Mr. Bharat has urged that the question whether he was a workman is a dispute question of fact and can be decided only by the Industrial Tribunal and not by the State Government. In this connection, he has placed reliance on a decision of this Court in Abad Daily Oudh Vitran Kendra Sanchalak Mandal v. Abad Dairy and Ors., 1990 (60) FLR 282 (SC). This Court observed as follows:

"Having regard to the facts and volumnious evidence sought to be adduced by both parties, the question whether the appellants are workmen requires detailed investigation of facts. The issue requires detailed examination and can be satisfactorily adjudicated upon only by a Tribunal."

Thus, it appears in that case the question required detailed investigation in view of voluminous evidence sought to be adduced but it is not so, in the case in hand. Therefore, the above decision is not relevant for our purpose. The ratio laid down by this Court in Prem Kumar (Supra) squarely covers this appeal as it does not appear from the order that the State Government took into consideration any irrelevant or foreign material."

8. One may also refer to the judgment of National Engineering Industries Limited v. State of Rajasthan and Ors. wherein the Court struck down the reference order on the ground that the matter referred was covered by the Tripartite Agreement arrived at among the Management, labour union and the staff union and in view of such settlement it could not be said that "industrial dispute" exist which needed to be referred for adjudication.

9. Another judgement of relevance is the case of Nedungadi Bank Limited v. K.P. Madhavan Kutty 2000 LLR 340 and it would be apt to quote the following observations relevant to this context:

"In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehend after lapse of about seven years of the dismissal of the respondent. Whenever a workman raised some dispute it does not become industrial dispute and appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute."

10. The aforesaid judgments squarely apply to this case. In the present case the "appropriate Government" rightly took into consideration the following aspects in refusing to make reference:-

(a) The petitioner was regularised as Beldar by order dated 2nd April, 1991 w.e.f 1st April, 1989 after taking his consent for appointment to the said post.

(b) He accepted the aforesaid order and sent belated deman by giving legal notice dated 25th January, 1994.

(c) His claim for regularisation on the post of driver was not admissible as he was not fulfillling the minimum eligibility conditions to the said post as prescribed under the recruitment rules.

11. Thus, this administrative order is based on relevant consideration and is therefore proper and valid. There is no scope of interference with the same. For the aforesaid reasons this writ petition fails and is hereby dismissed. Rules stands discharged.

There shall be no order as to costs.