Gujarat High Court

Deepak K Patel vs Desk Officer on 6 January, 2023

Bench: Aniruddha P. Mayee

    C/SCA/14617/2008                            JUDGMENT DATED: 06/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14617 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                           Sd/-
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1    Whether Reporters of Local Papers may be allowed                 No
     to see the judgment ?

2    To be referred to the Reporter or not ?                          No

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 ?

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                       DEEPAK K PATEL & 1 other(s)
                                Versus
                        DESK OFFICER & 2 other(s)
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 2
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MS AISHWARYA REDDY FOR M/S TRIVEDI & GUPTA(949) for the
Respondent(s) No. 2,3
MR SAURABH G AMIN(2168) for the Respondent(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Respondent(s) No. 1
MR SIRAJ R GORI(2298) for the Respondent(s) No. 1,2
MS VYOMA K JHAVERI(6386) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                            Date : 06/01/2023
                            ORAL JUDGMENT

The present Special Civil Application is filed against the

decision of the respondent No.1 dated 26.12.2006 refusing to

C/SCA/14617/2008 JUDGMENT DATED: 06/01/2023

make a reference to the appropriate Forum under Section 10(1)

of the Industrial Disputes Act, 1947 ["ID Act" for short].

2. The brief facts leading to the filing of the present Special

Civil Application are as follows:-

2.1 The petitioner No.1 is the President of the petitioner No.2

Union. The petitioner union raised a dispute for regularization of

its employees with the ONGC and seeking all the conditions of

the service available to its employees. The issue of exploitation of

the labour was also raised. Accordingly, the petitioners raised a

dispute before the Conciliation Officer seeking regularization and

abolition of contract labour system in the establishment of the

respondents No.2 and 3. That on 27.7.1999, the Conciliation

Officer submitted a failure report. Thereafter, the respondent

No.1 herein decided on the failure report and rejected the

request of the petitioners for referring the dispute to the

appropriate forum by communication dated 17.8.1999.

2.2 Aggrieved, the petitioners herein preferred Special Civil

Application No.6670 of 1999 challenging the communication

dated 17.8.1999 refusing the demand of the petitioners to refer

the dispute for adjudication to the appropriate forum.

C/SCA/14617/2008 JUDGMENT DATED: 06/01/2023

2.3 By order dated 19.7.2006, this Court was pleased to quash

and set aside the order / communication dated 17.8.1999 and

directed the respondent No.1 to consider the demand raised by

the petitioners and also consider the failure report submitted by

the Conciliation Officer and pass appropriate reasoned order

after giving reasonable opportunity of hearing to the respective

parties. The said judgment and order dated 19.7.2006 was

carried in appeal by the respondents No.2 and 3 being L.P.A.

(Stamp) No.2377 of 2006. The said L.P.A. came to be withdrawn

by the respondents No.2 and 3.

2.4 That, thereafter, in terms of the judgment dated 19.7.2006

in Special Civil Application No.6670 of 1999, the respondent

No.1 kept the matter for hearing. Thereafter, by impugned order

dated 26.12.2006, the demand for reference came to be once

again rejected by the respondent No.1.

Aggrieved, the petitioners have preferred the present

Special Civil Application.

3. Mr. U.T.Mishra, learned advocate appearing for the

petitioners submits that the impugned order / communication is

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directly in the teeth of the law as laid down by the Hon'ble

Supreme Court in case of Telco Convoy Drivers Mazdoor Sangh &

Anr. v. State of Bihar & Ors. [1989 (3) SCC 271]. He submits that

it is well settled that the Government cannot adjudicate upon the

dispute and it has to only satisfy itself as to whether the

industrial dispute has arisen or not, in view of the failure report

to make a reference. He further submits that there is clear case

of mala fide exercise of powers by the management of the

respondents No.2 and 3 to deprive the members of the petitioner

union to their legitimate rights. He submits that the impugned

order has been passed ignoring the directions in the judgment

dated 19.7.2006 in Special Civil Application No.6670 of 1999.

He, therefore, submits that the present Special Civil Application

deserves to be allowed.

4. Per contra, Ms. Aishwarya Reddy, learned advocate

appearing on behalf of the respondents No.2 and 3 has

supported the impugned order / communication dated

26.12.2006. She submits that the respondent No.1 has rightly

considered the issue and has given a reasoned order to conclude

the dispute. She submits that in view thereof, no interference is

called for and the present Special Civil Application be dismissed.

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No other submissions have been made except as noted

hereinabove.

5. Heard learned advocates for the parties and perused the

record.

6. The Hon'ble Apex Court in the matter of Telco Convoy

Drivers Mazdooor Sangh (supra), has held as under :-

"11. It is true that in considering the question of making a reference 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 Bhusan. 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, that is to say, whether there is relationship of employer and employees between 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.

12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are work- men, there cannot be any existence of industrial dispute within the meaning of the term as defined in section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the Government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in section 2(k) of the Act.

13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while

C/SCA/14617/2008 JUDGMENT DATED: 06/01/2023

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 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. See Ram Avtar Sharma v. State of Haryana, [1985] 3 SCR 686; M.P. Irrigation Kararnchari Sangh v. The State of M.P., [1985] 2 SCR 1019 and Shambhu Nath Goyal v. Bank of Baroda, Jullundur, [1978] 2 SCR 793.

14. 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 person raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh's case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render section 10 and section 12(5) of the Act nugatory."

7. In the present case, the impugned communication dated

26.12.2006 gives the following reasons for rejection of the

reference:-

"The demand for regularisation of contract labourers has not been dealt with by any provisions of the Contract Labour (Regulation & Abolition) Act. However, the Supreme Court in SAIL vs. NUWW has held that after prohibition of engagement of contract labour, if it is found by the industrial adjudicator that the contract is ruse or camouflage, the contract labourers are entitled for regularisation. As the workers concerned are engaged in jobs, which are not prohibited for engagement of contract labour, the basic condition as laid down by the Apex Court is not fulfilled. As regards the demand for payment of wages at par with the regular employees to the contractual labourers, the union can raise its claim before appropriate authority under rule

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25(2)(v)(a) of Contract Labour (Regulation & Abolition) Central Rules, 1971."

7.1 The aforesaid reasoning clearly shows that the respondent

No.1 has entered into the merits of the case and thereafter,

rejected the demand for reference. It is not open for the

respondent No.1 to enter into the merits of the case to come a

conclusion as to whether the reference is required to be made or

not. The exercise of powers under Section 10(1) of the ID Act is

an administrative function and not judicial or quasi-judicial

function.

8. In view of the aforesaid observations, the impugned

communication / order dated 26.12.2006 by the respondent

No.1 i.e. the Government of India, Ministry of Labour, New Delhi,

is quashed and set aside.