Petroleum Mazdoor Sangh vs Union Of India
2021 Latest Caselaw 12789 Guj

     C/SCA/736/2010                              JUDGMENT DATED: 27/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 736 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                            Sd/-

================================================================

1    Whether Reporters of Local Papers may be allowed                  No
     to see the judgment ?

2    To be referred to the Reporter or not ?                           Yes

3    Whether their Lordships wish to see the fair copy                 No
     of the judgment ?

4    Whether this case involves a substantial question                 No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
                      PETROLEUM MAZDOOR SANGH
                                 Versus
                        UNION OF INDIA & 1 other(s)
================================================================
Appearance:
(MR MUKUL SINHA) for the Petitioner(s) No. 1
MR KRISHNA G PILLAI(2767) for the Petitioner(s) No. 1
MR RAJESH P MANKAD(2637) for the Petitioner(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 1
MR RAJNI H MEHTA for the Respondent(s) No. 2
================================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 27/08/2021

                            ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the impugned order,

the present petition is filed by the petitioners under Article 226

of the Constitution of India for the following prayers:-

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(A) This Hon'ble Court may kindly be pleased to quash and set aside the impugned letter dated 20.11.2009 at Annexure 'A'.

(B) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction, directing the respondents to refer the Industrial Dispute raised by the petitioner for adjudication forthwith.

(C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent authorities to refer the industrial dispute involved in this case for necessary adjudication to the appropriate Forum, in the interest of justice.

(D) This Hon'ble Court may kindly be pleased to pass such other or further order or relief in the facts and circumstances of the case, in the interest of justice.

2. Brief facts of the present case is that the petitioner - Union

vide letter dated 24.07.2007 raised a demand on behalf of its

members through Shri Ashwin C. Patel and others casual /

contingent / contract employees of the Oil & natural Gas

Corporation Ltd., who had completed 240 days of work together

with all consequential benefits as per the provisions of the

Standing Orders. In response to the above letter, the Assistant

Labour Commissioner, Central, Vadodara, vide its letter dated

14.07.2008 informed the petitioner - Union that it can place the

matter by raising an industrial dispute before the Assistant

Labour Commissioner, Central at Vadodara. Accordingly, vide

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letter dated 24.07.2008, the petitioner - Union submitted the

dispute before the petitioner - Union submitted the dispute

before the Assistant Labour Commissioner, Central at Vadodara.

2.1 The concerned Ministry, accordingly, consider the dispute

raised by the petitioner - Union. However, the same was

dismissed on account of that "the dispute has been raised after a

lapse of 17 years. The dispute is, therefore, belated an stale."

Aggrieved from this decision, the petitioner - Union has preferred

the present petition.

3. Heard Mr.Rajesh Mankad, learned counsel for the

petitioner, Mr.Ankit shah, learned counsel for respondent No.1

and Mr.Rajni Mehta, learned counsel for respondent No.2 through

video conferencing.

4. Mr.Rajesh Mankad, learned counsel for the petitioners has

vehemently submitted that in the present case, the appropriate

Government is the Central Government. He has submitted that

while passing the impugned order of rejection on the ground of

delay of 17 years, no detailed reasons has been assigned.

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According to him, in absence of such reasons, the impugned

order dated 20.11.2009 at Annexure - A issued by the

Government of India, Ministry of Labour is not just, legal and

valid. While inviting the attention of this court regarding the

entire chain of the events from page nos.26 to 36 dated

24.07.2007, he has submitted that the workers who, represented

by the present petitioner - Union, were left out by the

management. According to him, the reasons for raising industrial

dispute is specifically reflected in para-10 of the claim. He has

also submitted that the persons who are left out by the ONGC

have been reflected in the statement of demand, who have

completed 240 days of service as per the Standing Order and as

the said prayer was not granted to them, they have approached

the Central Authority, however, it has rejected the same only on

the ground of delay of 17 years.

4.1 Mr.Mankad, learned counsel for the petitioners has

submitted that there are Standing Orders of the ONGC for

regularization of the service of the workmen, however, this fact

has not been considered by the competent authority of the

Central Government. He has submitted that the Assistant Labour

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Commissioner vide its communication dated 14.07.2008 has

made communication to the Working President intimating the

Present of the Union that if the grievances are not heard by the

management, then, it can raise an industrial dispute submitting

demand in six copies thereof. While inviting attention of the

Court regarding the claim of demand at Annexure - D, he has

submitted that in response to the letter of the Assistant Labour

Commissioner, Central, Vadodara, the petitioner herein has

raised an industrial dispute as their demand has not been

considered by the ONGC.

4.2 According to Mr.Mankad, learned counsel, the ONGC has

not heard the Union and yet the appropriate Government has

permitted the ONGC to file its reply which is not in consonance

with the provisions of the Industrial Disputes Act (hereinafter be

referred to as the "I.D. Act").

4.3 Mr.Mankad, learned counsel for the petitioners has further

submitted that the ONGC has, vide its letter dated 12.09.2008

put forward it's defence against the demand raised by the

petitioner - Union; wherein one of the ground is regarding lapse

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of considerable long span which has resulted into claim being

time barred. He has submitted that it has also contended

therein that earlier, the Industrial Tribunal has rejected the

demand on technical ground and, therefore, the same cannot be

raised as there cannot be application of maxim of res judicata

since 13 persons were left out by the ONGC. He has also invited

the attention of this Court regarding the written submission

made by the Union vide its letter dated 09.02.2009 and has

submitted that the Union has specifically narrated everything

which has not been considered by the competent authority. He

has submitted that so far as the Special Leave Petition is

concerned, the workmen were not members of the other Union.

He has also submitted that the cause of action for raising the

demand by the present Union has arisen in the year 2007 and,

therefore, it cannot be treated as delayed demand. While inviting

the order of the Central Government regarding rejection of the

prayer to refer to an industrial dispute for adjudication, he has

submitted that the order is not reasoned one and the appropriate

Government cannot decide the same. According to him, only

Industrial Tribunal or the Labour Court has authority to decide

the dispute. He has submitted that there is need of interference

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in the order of the competent authority. While relying upon the

following decisions, he has prayed to allow the present petition

and to direct the competent authority to refer the dispute raised

by the present Union to the concerned Industrial Tribunal or the

Labour Court for adjudication.

(1) Telco Convoy Drivers Mazdoor Sangh Vs. State of Bihar, AIR 1989 (3) SCC 271;

(2) Jagdamba Prasad Mishra Vs. State of Uttar Pradesh and others, 1989 (2) LLN 569;

(3) Dhanbad Colliery Karamchari Sangh Vs. Union of India, 1991 (Suppl.) SCC 10;

(4) Sapan Kumar Pandit Vs. U. P. State Electricity Board and others, (2001) 6 SCC 222;

(5) ITC Agro Tech Ltd. And others Vs. Commercial Tax Officer and others, (2001) 6 SCC 228;

(6) Gujarat Mazdoor Sabha Vs. Union of India and others in Special Civil Application No.16207 of 2006, judgment and order dated 29.09.2006 passed by the Coordinate Bench of this Court (Coram: Hon'ble Ms.Justice R. M. Doshit);

(7) Oil and Natural Gas Corporation Ltd Vs. Gujarat Mazdoor Sabha and others, 2009 (1) LLJ 646 (Gujarat);

(8) Prabhakar Vs. Joint Director Sericulture Department, (2015) 15 SCC 1;

5. Per contra, Mr.Ankit Shah, learned counsel for respondent

No.1 has vehemently submitted that the action taken on the part

of the appropriate Government in refusing to refer to the alleged

industrial dispute to the authority under the I.D. Act is just and

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proper. According to him, the demand raised by the Union is filed

after almost 17 years and, therefore, there is delay and demand

is stale one. According to him, it is within the purview of the

appropriate Government either to refer to the industrial dispute

to the competent authority under the I.D. Act or it may refuse to

do so. He has submitted that no illegality has been committed by

the appropriate Government in passing the impugned order. He

has prayed to dismiss the present petition.

6. Mr.Rajni Mehta, learned counsel for respondent No.2 has

vehemently submitted that earlier Complaint (ITC) No.3 of 1993

was filed and it was decided by the Tribunal way back on

07.01.2002. While referring to the award passed in Complaint

(ITC) No.3 of 1993 in Reference (ITC) No.6 of 1991 (page No.52

to 53), he has submitted that similar situated workmen have

raised the similar issue which came to be rejected by the

Industrial Tribunal (Central). According to him, since the dispute

is concluded by the Industrial Tribunal and it is binding to both

the sides, the appropriate Government has rightly not referred to

the alleged demand of the present petitioner - Union and there is

no illegality committed by the appropriate Government. He has

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submitted that the order of the Industrial Tribunal dated

07.01.2002 passed in Complaint (ITC) No.3 of 1993 has not been

challenged by the Union and, therefore, that fact itself suggests

that there is no dispute alive. According to him, the present

Union has no right to re-agitate the same demand. He has

submitted that as the Industrial Tribunal (Central) has also

decided issue in question, appropriate Government has rightly

not referred to the alleged demand raised by the present Union.

He has submitted that in earlier Complaint (ITC) No.3 of 1993, it

has filed written statement wherein it is stated that there are

various work centre from Surat in Gujarat and Jodhpur in

Rajasthan and the complainant has not indicated the centre

where they have worked. According to him, in the present case

also, this fact has been considered by the Tribunal while deciding

the Complaint (ITC) No.3 of 1993.

6.1 Mr.Mehta, learned counsel has also submitted that the

workmen are not appointed as per the Rules of the ONGC and

they are not permanent workers. While referring to the memo of

petition, he has submitted that the correct fact has not been

narrated by the petitioner and the order passed by the

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appropriate Government is reasoned one and there is no need of

any interference or issuance of any direction. While referring to

the claim at Annexure - B dated 24.07.2007 especially para-3

thereof, he has submitted that the petitioner has admitted the

fact that earlier there was decision rendered in Complaint (ITC)

No.3 of 1993 and the petitioner - Union has knowledge regarding

the dismissal of that application. According to him, since the

dispute has already been decided by the Industrial Tribunal there

is no existence of any dispute and there is no dispute alive. He

has supported the impugned order passed by the authority.

6.2 Regarding various decisions relied upon by the learned

counsel for the petitioners, Mr.Mehta, learned counsel for

respondent No.2 has submitted that those decisions are not

applicable to the factual aspects of this petition. He has prayed

to dismiss the present petition.

6.3 Mr.Mehta, learned counsel for respondent No.2 has invited

the attention of the Court regarding the Complaint (ITC) No.3 of

1993 in Reference (ITC) No.6 of 1991, copy of which has been

placed with the affidavit-in-reply at Annexure - R/II and has

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submitted that Shri Ashwin C. Patel, who was one of the

petitioners therein, came to be dismissed. He has also submitted

that same benefits of claim has been claimed in the demand.

According to him, since the Tribunal has earlier decided the

demand, which is similar prayed in the present petition, the

order of the learned Industrial Tribunal would be res judicata in

this case.

7. In the case of Telco Convoy Drivers Mazdoor Sangh

(supra), wherein the prayer of the Mazdoor Sangh to make

reference of the disputes raised by it under Section 10 of the

Industrial Disputes Act, 1947 came to be rejected by the State of

Bihar which was challenged by the Union before Patna High

Court which has also rejected the appeal filed by the Mazdoor

Sangh. In that case, the appropriate Government also rejected

the prayer of the Mazdoor Sangh to refer to the dispute. The

Apex Court has held that "it is now well settled that, while

exercising power under Section 10(1) of the Act, the function of

the appropriate Government is an administrative function and

not a judicial or quasi judicial function, and that in performing

this administrative function the Government cannot delve into

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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 Act. The Apex Court has

relied upon its own decision in the case of Ram Avtar Sharma Vs.

State of Haryana, (1985) 3 SCR 686; M. P. Irrigation Karamchari

Sangh Vs. State of M.P., (1985) 2 SCR 1019; Shambu Nath Goyal

Vs. Bank of Baroda, Jullundur, (1978) 2 SCR 793 and allied

matters.

8. In the case of Jagdamba Prasad Misra (supra), wherein

State Government has passed non-speaking order rejecting the

report of Conciliation Officer to make reference as an industrial

dispute, the Allahabad High Court has observed that the

Government ought to have given reasons for refusing the

recommendation of the Conciliation Officer and ultimately,

directed the State Government to refer to dispute to the

concerned Labour Court.

9. In the case of Dhanbad Colliery Karamcharisangh

(supra) wherein also the Government refused to refer the dispute

on ground that appellant failed to establish that workmen were

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engaged in prohibited categories and workmen were engaged by

contractor and there was no employer - employee relationship.

The Apex Court has observed that the action of the Central

Government in deciding the dispute is not permissible

categorically and accordingly directed the Central Government

to refer the dispute for adjudication to the appropriate Industrial

Court under Section 10 of the Industrial Disputes Act, 1947.

10. In the case of Sapan Kumar Pandit (supra), the Apex

Court has observed in paras-13, 14 and 15 as under:-

13. Learned counsel for the Board invited our attention to a recent decision of a two-Judge Bench of this Court in Nedungadi Bank Ltd. v. K. P. Madhavankutty, (2000) 2 SCC

455. No doubt in the said decision it is said that the power of the Government under Section 10 of the ID Act cannot be exercised at any point of time or for reviving the matters which have already been settled although law does not prescribe any time-limit. The crux of the observations in the said decision is the following : (SCC p. 460, para 6)

"A dispute which is stale could not be the subject-matter of reference under Section 10 of the (ID) Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case."

14. It is useful to refer to a three-Judge Bench decision of this Court as it related to the scope of the very same provision i.e. Section 4-K of the U.P. Act. In Western India Match Co. Ltd. v. Workers Union, (1970) 1 SCC 225 learned Judges made the following observations: (SCC p. 231, para

8)

"Therefore, the expression 'at any time', though seemingly without any limits, is governed by the

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context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the Conciliation Officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can 'at any time', i.e. even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression 'at any time' thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression 'at any time' in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjourned or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence."

15. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanised by the workmen or the union on account of other justified reasons, it does not cause the dispute to wane into total eclipse........."

11. In the case Prabhakar (supra), the Apex Court has

observed in paras-11 to 15 as under:-

11. The satisfaction of the existence of an industrial dispute or the satisfaction that an industrial dispute is apprehended is 'a condition precedent to the order of reference'. An order of reference cannot be made mechanically without forming an opinion. For formation of the necessary opinion, the 'appropriate Government' must

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also be satisfied that a person whose dispute is being referred for adjudication is a 'workman'. If the dispute is not between the employer and his workman, it is not an 'industrial dispute' and the Government can justifiably refuse to refer the dispute. From the material placed before it, the Government reaches an administrative decision whether there exists an existing or apprehended industrial dispute. In either event, it can exercise the power under this Section.

12. The adequacy or the sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the reference is impugned by a party, it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the award. But if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.

13. When the 'appropriate Government' makes a reference of an industrial dispute for adjudication, it does not decide any question of fact or law. The only condition, which the exercise of that power should satisfy, is that there should be the existence or apprehension of an industrial dispute. When once the Government is satisfied about this question, it acquires jurisdiction to refer the dispute for adjudication. However, the condition precedent to the formation of such opinion, that there should be an existing or apprehended 'industrial dispute', is imperative and the recitals of the existence or apprehension of the industrial dispute cannot preclude the Court to exercise its power of judicial review and to determine whether, in fact, there was any material before the 'appropriate Government' and if there was; whether the Government applied its mind in coming to the conclusion that an industrial dispute was in existence or was apprehended and it was expedient to make the reference. Therefore, an order of reference is open to judicial review if it is shown that the appropriate Government had no material before it or it has not applied its mind to the material before it or has not taken into consideration certain vital facts which it ought to have taken into consideration.

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14. Likewise, when the appropriate Government refuses to make reference, it is also amenable to judicial review if it is shown that the appropriate Government did not take into consideration the relevant material which could show existence or apprehension of industrial dispute or if it is shown that the reasons for refusing to make reference are irrelevant or not germane to the formation of opinion.

15. It has been held in catena of judgments that while performing this administrative function, the Government would not decide the dispute between the parties which may be termed as judicial function and such judicial function is to be discharged by the Labour Court / Industrial Tribunal only. In Ram Avtar Sharma & Ors. v. State of Haryana & Anr., (1985) 3 SCC 189 this Court held that if the Government, while refusing to make reference delves into the merits of the dispute, it is not permissible under law and the appropriate course to make reference and such dispute are to be settled / decided by the Labour Court / Industrial Tribunal as an adjudicatory authority. Following observations of the Court are worth noting:

"Therefore the view that while exercising power under Section 10(1) the functions performed by the appropriate Government is an administrative function and not a judicial or quasi-judicial 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 Government to determine prima facie whether an industrial dispute exists or claim is frivolous or bogus or put forth extraneous and relevant reasons not for justice of industrial peace and harmony. Every administrative determination must be based on ground relevant and germane to the exercise of power. If the administrative determination is based on the relevant, extraneous or grounds not germane

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to the exercise of power, it is liable to be questioned in exercise of the power of judicial review."

11.1 In the aforesaid decisions, the Apex Court has observed

that even when making a reference by the appropriate

Government is an administrative act, before making such a

reference it has to form an opinion as to whether any industrial

dispute exists or is apprehended. It is further observed therein

that while forming this opinion, the appropriate Government is

supposed to take all relevant facts into consideration touching

upon this aspect. If the power is not exercised properly, it is

amenably to judicial review. It is also observed therein that thus,

where an industrial dispute exists or his apprehended, but the

appropriate Government refuses to make reference, such a

refusal can be challenged in the court of law. Conversely, which

is equally true, if the reference is made even when no dispute

exists or is apprehended, such a reference will also be subject to

judicial review.

11.2 In the aforesaid decision, the Apex Court has observed in

para-18 as under:-

18. At this stage, it may be pointed out that admittedly the law of limitation does not apply to industrial disputes.

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Limitation Act does not apply to the proceedings under the Industrial Disputes Act and under the Industrial Disputes Act no period of limitation is prescribed. This is now well settled by series of judgments of this Court.

11.3 In the aforesaid decision, the Apex Court has, while

referring to its earlier decisions, has summarized the position of

law as under:-

(i) 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 the Government to indicate the nature of dispute in the order of reference;

(ii) 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;

(iii) 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 is made on the subjective satisfaction of the Government;

(iv) 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;

(v) 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.

11.4 Further, regarding application of law of limitation, the Apex

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Court has observed in para-26 as under:-

26. The aforesaid case law depicts the following:

(a) Law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.

(b) The words 'at any time' used in Section 10 would support that there is no period of limitation in making an order of reference.

(c) At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused.

(d) Whether dispute is alive or it has become stale / non- existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard and fast rule regarding the time for making the order of reference.

12. The other decisions relied upon by the learned counsel for

the petitioners are on the same line as referred to hereinabove.

13. Mr.Mehta, learned counsel for respondent No.2 has relied

upon the decision in the case of Nedungadi Bank Ltd. Vs. K.

P. Madhavankutty and others, (2000) 2 SCC 839 for his

preposition that in spite of absence of a statutory limitation

period, such power cannot be exercised to revive settled matters

or to refer stale disputes as well as for preposition that every

dispute raised by a workman is not an industrial dispute.

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14. In the case of Nedungadi Bank Ltd (supra), the Apex

Court has observed in para-6 as under:-

"6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one........"

14.1 In the aforesaid decision, the Apex Court has observed in

para-7 as under:-

"7....... Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment."

15. Having considered the submissions made on behalf of both

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the sides and considering the aforesaid decisions as well as

materials placed on record and the impugned order of the

appropriate Government, it appears that the petitioner - Union

has moved the Executive Director, ONGC regarding total 13

workers, who were either casual / contingent / temporary

employees of Western Region and/or have completed 240 days

of service in 12 consecutive months, for considering for

conversion as regular employees and to give them consequential

benefits / rights of regular employees from the date of their

initial engagement in ONGC as per Standing Order dated

24.07.2007 of the ONGC. It appears from the said representation

that earlier there was a complaint filed against the ONGC being

Complaint (ITC) No.3 of 1993 which came to be rejected by the

Tribunal vide order dated 07.01.2002 on the technical ground. It

also appears that Reference (ITC) No.6 of 1991 was referred as

per the demand raised by the Engineering Mazdoor Sangh,

Vadodara as per the direction of the High Court. While referring

to the prayer clause, it is averred in the said representation that

the demand raised by the Engineering Mazdoor Sangh for all the

workmen who have completed 240 days as casual / contingent /

temporary workmen and it was not for the specific workmen.

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According to the averments made in the said representation, the

complainants of Complaint (ITC) No.3 of 1993 were concerned

and connected with the dispute in Reference (ITC) No.6 of 1991

and 14 workmen have filed their statement of claim in Reference

(ITC) No.6 of 1991. Further, in the said reference, the ONGC has

considered service record of 269 workmen, but declined to

submit the names of 14 workmen, who have completed 240 days

as per the Statement Order No.2912 of the ONGC. According to

it, though the ONGC has suppressed all these facts from the

Tribunal, the Tribunal has not considered the case of 14

workmen and has also not considered the fact that 14 workmen

were similarly situated workmen. While referring to the Standing

Order of the ONGC, it was demanded that all 13 workmen may

be considered for regular appointment. It is further averred that

this demand has been raised on 24.07.2007.

16. It appears from the communication dated 14.07.2008

issued by the Ministry of Labour and Employment, Office of the

Assistant Labour Commissioner (Central), Vadodara addressed to

the President of the petitioner - Union that if the grievance of

the Union was not considered by the Management, then, it can

raise an industrial dispute. In consonance with the said

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communication, the petitioner - Union has addressed a letter

dated 24.07.2008 to the Assistant Labour Commissioner

(Central), Vadodara raising an industrial dispute regarding the

demand. Further, it also appears that the Ministry of Labour and

Employment, Office of the Assistant Labour Commissioner

(Central), Vadodara has addressed a letter dated 01.08.2008 to

the Executive Director, ONGC, Western Regional regarding

raising of demand by the petitioner - Union and fixing the date

for conciliation. It also appears that in pursuance to the said

communication of the Assistant Labour Commissioner, the ONGC

has, vide its letter dated 12.09.2008, submitted its remarks

wherein it is submitted that the Union has raised the claim after

lapse of considerable lengthy span which has become time-

barred. It is also contended therein that earlier application came

to be rejected by the Tribunal and, therefore, the present

demand may be dismissed on the maxim of the res judicata.

17. It appears from the record that the Union has submitted its

detailed reply vide letter dated 09.02.2009 wherein it has raised

points that it was made known to the applicant from some Trade

Union Leaders that they need not raise an industrial dispute as

this Court has passed an order/direction that the Tribunal's

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award would not be restricted to only whose names appears in

the schedule to the affidavit filed by the ONGC before the

Tribunal, but it will be available to all the employees who fulfilled

the requirements of completion of 240 days. It is also submitted

therein that 13 workmen have also moved the Industrial Tribunal

for inclusion of their names in the complaint, which came to be

rejected. It is further submitted therein that the claim was

rejected on technical ground and not on merits and, therefore, it

will not affect the demand of the petitioner - Union. It is also

submitted therein that the limitation is not applicable to the

claim. It also appears from the record that the Industrial Tribunal

has passed an order in Reference (ITC) No.6 of 1991 whereby

some relief was granted in favour of the workmen which came to

be challenged by the Engineering Majdoor Sangh by filing Special

Civil Application No.12850 of 1994, which came to be disposed of

vide order dated 15.02.1999 and 16.02.1999 whereby the

petition came to be partly allowed and the order passed by the

Industrial Tribunal was modified. There was specific direction to

the ONGC to take appropriate steps in accordance with the

modified terms and for issuance of appropriate orders for all the

employees who are covered by the terms of reference as early

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as possible, irrespective of whether their names are attached

with the schedule or not? Thus, this order of the Coordinate

Bench (Coram: Hon'ble Mr.Justice M. R. Calla) is applicable not

only to the persons whose names mentioned in the schedule

attached therewith but all the persons who fulfilled the criteria of

the Standing Orders. It appears from the record that the ONGC

has filed Letters Patent Appeal No.759 of 1999 wherein the

Division Bench of this Court has passed an interim order in Civil

Application No.4795 of 1999 staying the order passed by the

learned Single Judge except in so far as 156 persons are

concerned. Thus, virtually the other persons whose names are

not appeared in the schedule are not given any benefit. This fact

supports the version of the petitioner - Union that they were left

out.

18. It appears from the award passed in Complaint (ITC) No.3

of 1993 that it has been specifically observed therein that earlier

order passed in Reference (ITC) No.6 of 1991 is regarding only

156 workmen. There is also observation made by the Tribunal

that so far as the award passed in Reference (ITC) No.6 of 1991

is concerned, it only pertains to 156 workers and, therefore, the

workmen are not affected. Thus, the Reference (ITC) No.6 of

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1991 came to be rejected only on the ground that the workmen

are not affected workmen and they have no right to get benefit

under order passed in Complaint (ITC) No.3 of 1993. It is

pertinent to note that the said order has been passed in the year

2002 and, thereafter, the petitioner - Union has raised an

industrial dispute so far as the present 13 workers are

concerned. However, it appears from the paper-book submitted

by the ONGC that one Shri Ashwin C. Patel was also party in

Complaint (ITC) No.3 of 1993. However, if it so, then, he would

have been given the benefit of the order passed by the learned

Single Judge in Special Civil Application No.12850 of 1994. So far

as the other persons are concerned, there is no any materials

placed on record to show that they were also parties to the

earlier proceedings. Since the Industrial Tribunal has not

considered the prayer of other workmen, who have not parties to

the earlier proceedings i.e. Complaint (ITC) No.3 of 1993,

remaining persons have every right to agitate the issue so far as

their personal rights are concerned as they have not been given

any benefit of the order passed in earlier proceedings i.e.

Complaint (ITC) No.3 of 1993 which came to be modified by the

Division Bench of this Court in Letters Patent Appeal No.759 of

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1999. The similarly situated persons ought to have been

considered for conferment of the benefit, but no such benefit has

been conferred, their personal right, cannot be defeated only on

the ground that there was prior adjudication between certain

sections of the workmen and the ONGC.

19. At this juncture, it is worthwhile to refer to the impugned

order dated 20.11.2009 passed by the competent authority at

Annexure - A. It is crystal clear that the reasons for non-

reference of the dispute raised by the Union to the concerned

authority is that it is filed after lapse of considerable lengthy

span of 17 years and it is belated and stale. However, there is no

reason worth the name assigned to in the said communication as

to how the dispute is stale. The aforesaid factual aspects

narrated hereinabove has not been even mentioned in the said

communication. It is pertinent to note that the Union in its

communication dated 09.02.2009 has specifically narrated the

fact that the applicant was made known by the Trade Union

Leaders that their case would be covered by the order passed by

the High Court in Special Civil Application No.12850 of 1994.

However, as stated earlier, the order of the learned Single Judge

came to be stayed by the Division Bench and it was restricted to

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only 156 persons whose names were provided in the schedule

thereof. Now, this version of the Union and the other points

raised in the communication dated 09.02.2009 has not even

been reflected in the communication dated 20.11.2009. Thus, in

absence of reasoned order, the said communication of the

appropriate Government is not sustainable in the eyes of law.

20. Now, it is well settled that while exercising the power under

Section 10 of the I.D. Act, the function carried out by the

appropriate Government is only administrative in nature. It

cannot decide the dispute. The Adjudicating Authority is only

competent authority under the provisions of the I.D. Act. Now, in

the present case, without assigning any reasons regarding

various points raised in the communication dated 09.02.2009,

only on the ground of limitation, the competent authority has

refused to refer the dispute under Section 10 of the I.D. Act to

the Labour Court. In view of the various pronouncements as

referred to hereinabove, it is crystal clear that in the present

case the appropriate Government has exceeded its jurisdiction

under the law and has adjudicated the issue itself. Therefore, the

impugned communication needs to be quashed and set aside

and the appropriate Government needs to be directed to refer to

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the dispute to the Competent Authority under the I. D. Act.

21. In view of the above, the impugned communication dated

20.11.2009 is hereby quashed and set aside. The appropriate

Government is directed to make a reference under Section 10(1)

of the I.D. Act of the dispute raised by the petitioner - Union to

the Competent Authority under the I. D. Act as expeditiously as

possible, preferably, within a period of two month from the date

of receipt of the writ of this order.

22. With the aforesaid observations, the petition stands

disposed of. Rule is made absolute to the aforesaid extent. No

order as to costs.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL