Food Corporation Of India vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 685 Del

JUDGMENT

Gita Mittal, J.

1. By this writ petition the petitioner has impugned an order dated 19th April, 2004 issued by the Ministry of Labour of the Government of India making a reference of an industrial dispute to the National Industrial Tribunal in exercise of powers conferred under Sub-section 1A of the Section 10 of the Industrial Disputes Act, 1947. It is contended that the Government of India in the order of reference has presumed that the workmen, who had made a grievance and had agitated claims before the authorities, were employees of the petitioner in the preamble of the impugned order while in the schedule thereto, wherein the dispute has been set out setting out the terms of reference, these persons have been referred to as 'contract workers'. The principal ground of challenge on behalf of the petitioner is on the ground that the order dated 19th April, 2004 has completely ignored the objections of the petitioner and by virtue of the manner in which the order has been passed, would have the effect of depriving the petitioner of pleading and proving its case before the industrial adjudicator. It is further contended that such an order is not sustainable in law and that the order of reference would work grave injustice to the petitioner and cannot be permitted to stand.

2. The writ petition is opposed on behalf of the Union of India as well as the concerned workmen principally on the ground that the workmen were diverted to the remedy under the Industrial Disputes Act, 1947 on account of a plea set up by the petitioner. It has been pointed out by both the sets of respondents that some of the workmen had filed a writ petition in this Court being CW 2594/2002 Shameem Ahmed and Ors. v. Food Corporation and Ors. which was finally disposed of by an order dated 19th August, 2002. In the order passed, reliance was placed on a prior order of the Apex Court dated 5th April, 2002 passed in Food Corporation of India Workers Union v. Food Corporation of India and Anr. CWP No. 422/2000 where the Apex Court had held thus:

Counsel for the respondent/FCI has contended that the writ petition is squarely covered by the recent judgment of Supreme Court in Food Corporation of India Workers Union v. Food Corporation of India and Anr. CW No. 422/2000, decided on 5.4.2002. The Supreme Court held as under:

We are of the view that it would not be appropriate for this Court to record its conclusions on merits. In order to give effect to the principle of equal pay for equal work, which is no doubt a constitutional obligation implicit in Article 14, we have to enter into the factual arena and embark on an investigation of disputed facts such as the work load and the working pattern in various depots of the Food Corporation of India. The mere fact that the qualitative nature of work performed by DPS workers and the departmental workers is the same, is not conclusive. Other aspects highlighted in the counter-affidavit having a bearing on the volume and duration of work in the depots have to be gone into. Incidentally, the justification and expediency of continuing the Direct Payment System which has been recognised by various settlements has to be looked into. A comparative study of the working pattern in various depots, the overall job requirements and the overall effect it will have on the body of workmen as a whole and the Management, are all matters that may be relevant to consider. It is not a case of mere application of a legal principle to the admitted or undeniable facts. But, it depends on concrete facts brought out in evidence.

3. Learned Counsel for the respondents have pointed out that it was the counsel for the Food Corporation of India who had placed reliance on the order dated 5th April, 2002 passed by the Supreme Court to contend that the claim of Shameen Ahmed and other petitioners in CWP 2594/2002 was covered by this judgment of the Supreme Court. Having regard to the objections taken on behalf of the Food Corporation of India, the counsel for the petitioners in the Writ Petition 2594/2002 had sought liberty to approach the National Industrial Tribunal for adjudication on the principles laid down by the Supreme Court and it was purely on account of the present petitioner's contention that the writ petition was disposed of in these terms on 19th August, 2002. It is contended that it is and those workers had consequently approached the Ministry of Labour, Government of India seeking equal wages and employment relations at par with departmentalised workmen in the depot.

4. I have given my thoughtful consideration to the rival contention. The petitioners have placed before this Court a letter dated 7th November, 2003 addressed by the Government of India to the petitioner wherein the petitioner's comments have been sought with regard to the contract workers engaged in the Food Corporation of India. It has been noticed that these workmen have claimed equal pay for equal work at par with departmentalised workmen at various depots. The queries put to the petitioners in this behalf require to be noticed in extenso:

i) Whether the Writ Petitions were contested by the Ministry of Consumer Affairs of by the Management of FCI. If not, reasons, if any, for not contesting the case.

ii) Whether the workmen as mentioned in the writ petition are still working as contract workers (in other words, the status of the workmen involved in the writ petitions may be intimated to this Ministry). If they are working under contractor, name of the contractor may be intimated.

iii) Whether payments are made directly by FCI to the workmen pertaining to this category.

iv) The nature of job handled by the workmen in detail.

5. It appears that the petitioners sent a detailed communication to the Government of India which is dated 22nd March, 2004 informing the government that the contract workers have been brought from open market by the contractors and also that the Government of India had earlier already taken a firm view in this matter. The petitioners had enclosed a copy of a letter bearing No. I22012/346/89/IR (C) II dated 29th January, 1993 of the Ministry of Labour of the Government of India which was addressed to the Food Corporation of India. In this connection, the Government of India had stated that "since the workmen are engaged through the contractors, the employer - employee relationship did not exist between the management of FCI and these workmen". Upon such a view, the central government had decided not to refer a dispute relating to allegedly illegal retrenchment of workers in different depots of the Food Corporation of India.

6. It appears that this contention of the petitioner and the stand already taken by the government has been completely overlooked while passing the impugned order. The central government while being conscious of the fact that the workmen who had approached it for grant of the benefit of the equal wages were contract workers, has actually confined the order of reference to the management of FCI and these workmen while stating that "an industrial dispute exists between the employees in relation to the management of FCI and their workmen". It would be useful to notice the dispute which has been referred for adjudication by this order which reads thus:

SCHEDULE

Whether the contract workers in the depots of FCI at (i) Beheri, (ii) Khatima, (iii) Bhatu, (iv) Itawah, (v) Mainpuri, (vi) Bharuch, (vii) Alopibag; (viii) Kolasib, (ix) Alwar, (x) Phagwara, (xi) Kumar Ghat, (xii) Williams Nagar, (xiii) Jind, (xiv) Hissar, (xv) Ujhhani, (xvi) Sarhind, (xvii) Katangi, (xviii) Varasivani, (xix) Balaghat, (xx) Palwal, (xxi) Malukpong, (xxii) Asandh, (xxiii) Koolu, (xxiv) Kothera Hamirpur, (xxv) Balsad are entitled for the same pay and other benefits as are available to the departmentalised labour in the depots of FCI? If so, to what benefits they are entitled?

However, even the contractors have not been made a party.

7. Learned Counsel appearing for the workmen Dr. Sumant Bhardwaj has agreed that there is an inherent contradiction in the manner in which the notification has been issued inasmuch as the schedule clearly refers to the workmen as "contract workmen" while it pre-suposes that these workmen are the employees of the Food Corporation of India in the preamble. His apprehension however is that in case the order of reference is set aside, the appropriate government may not take expeditious and proper steps to make the reference as has been sought by the workmen.

8. Having regard to the law which is applicable to the exercise of jurisdiction by the appropriate government under Section 10 of the Industrial Disputes Act, it is well settled that a notification having been issued, it is not open to the appropriate government to withdraw or rescind the notification. However, the government is adequately empowered to add or modify the order of reference so as to remove any technical defects though in any manner withdrawing from the original order passed.

9. In 1959 SCR 1191 entitled State of Bihar v. D.N. Ganguly the Apex Court was considering the power of the appropriate Government to cancel or supersede a reference made under Section 10 of the Industrial Disputes Act, 1947 in respect of an industrial dispute pending adjudication by the Tribunal constituted for that purpose. It was held by the Apex Court that Section 10 of the enactment did not vest any such power on the appropriate Government and that Section 21 of the General Clause Act, 1987 cannot vest such a power by necessary implication. The law as laid by the Apex Court in this authoritative pronouncement was to the effect that once an order of reference has been made under Section 10(1) by the appropriate forum, the scheme of the Industrial Disputes Act plainly appears to leave the conduct and final decision of the industrial dispute only to the Industrial Tribunal.

10. The apex court had occasion to conside the legality and validity of a second order of reference in State of Maharashtra v. Kamani Employees Union and Ors. . The court held that the question further referred by the second order was really a matter connected with or relating to a dispute which already stood referred and was pending adjudication before the Industrial Tribunal. It was accordingly held that the State was well within its jurisdiction under Section 10(1)(d) of the Industrial Disputes Act, 1947 in making such an order of reference.

11. In a judgment reported at entitled South India Labour Relations Organisation v. the State of Madras, it was held that it would be open to the Government to make an independent reference concerning a matter not covered by a previous reference. The legal position as stated by the Apex Court in the case of D.N. Ganguly and Ors. was noticed by the court.

12. In 1977 Labour I.C. 1061 entitled Rashtradoot Dainik Press, Jaipur v. Rajasthan Samachar Patra Karmachari Sangh, Jaipur and Ors. and 1970 I LLJ 607 entitled District Motor Transport Workers' Union and State of Haryana, it was held that the appropriate Government is entitled under Section 10(1) of the Industrial Disputes Act to make an independent reference or even a supplemental reference in respect of a matter pending adjudication before the Tribunal and that it can, by a subsequent notification, amend the earlier reference. It was held that issuance of the subsequent notification was merely in the nature of an addition to or amplification of the issues already referred to the Industrial Tribunal. This was for amending a reference relating to a pending dispute, by way of an addition or amplification thereof is not inconsistent with any of the provisions of the Act and adoption of such a course would not defeat the purpose of the Act.

13. In a pronouncement of the Division Bench of the High Court of Judicature at Madras reported at 1963 I LLJ 497 entitled Workers of Thambi Motor Service and Thambi Motor Service, Salem and Anr., the court held that where the fundamental basis of the original order of reference is nullified by the second reference, it will not be within the competence of the Government to amend the original reference. Support for this view was drawn from the judgment of the Apex Court in D.N. Ganguly's case (supra).

14. In 1995 Labour Industrial Cases, 2258 entitled Bombay Gumasta Union v. M.R. Bhope, Member, Industrial Tribunal and Ors., it was held that a reference made by a State Government under Section 10(1) of the Industrial Disputes Act, 1947 can be amended either by way of addition or modification so long as the amendment does not have the effect of withdrawing or superseding a reference already made. It was further stated that the State Government has the power to issue a second order of reference in order to correct an obvious mistake of a terminological error inadvertently crept in the reference already made so long as the amendment does not have the effect of withdrawing or superseding the earlier reference.

15. In view of the principles laid down by the Apex Court it is well settled that the appropriate Government does not have the power to rescind, withdraw or cancel a reference made to an Industrial Tribunal under the Industrial Disputes Act, 1947 but it is possessed with the power to amend, supplement or modify an existing reference having regard to the facts and circumstances of the case provided that such addition and amendment is connected with the original reference as was made.

16. In the instant case, the contradiction and defect in the notification goes to the very root of the matter inasmuch as though the dispute appears to have been correctly worded however, the correct parties have not been arrayed and there is no reference to the contentions or issues which have been raised by the petitioner in the present matter. Therefore, the defects in the notification cannot be supplied by mere amendment or rectification. All the necessary parties to the adjudication have also not been arrayed.

17. Having regard to the aforestated circumstances and the contradiction in terms of the notification issued, the order dated 19th April, 2004 cannot be permitted to stand. This writ petition therefore has to be allowed. The order dated 19th April, 2004 is hereby set aside and quashed.

18. However, the matter cannot be permitted to stop here. Having regard to the fact that the respondent No. 1 is seized of the respective contentions of both parties and has already crystilised the terms of reference, it is directed to take a relook at the matter and to issue an appropriate order within a period of four weeks on the issues raised by all the parties.