Gujarat High Court
Cadila Pharmaceuticals Limited vs Xyz (Marina Stratieva) on 25 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15359 of 2024
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 15359 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
Yes
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CADILA PHARMACEUTICALS LIMITED
Versus
XYZ (MARINA STRATIEVA) & ORS.
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Appearance:
SENIOR ADVOCATE MR.K.M.PATEL with MR ANUJ K TRIVEDI(6251) for
the Petitioner(s) No. 1
MR. RAJESHKUMAR S MISHRA(9946) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 25/02/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate
Mr.Rajeshkumar Mishra waives service of Rule on behalf
of respondent.
2. With the consent of the parties, instead of deciding the
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application for vacating interim relief, filed under section
226(3) of the Constitution of India, the matter was heard
finally.
3. Being aggrieved with the order passed by the learned
Assistant Labour Commissioner in IDR/2024/AHM/ 0665
dated 21.03.2024 by which dispute was referred to the
learned Labour Court, present petitioner has filed the
petition under Article 226 of the Constitution of India,
1950.
4. Facts needed for the disposal of the present case is as
under:
4.1. Respondent no.1 was appointed by the petitioner as a
Personal Assistant pursuant to an agreement dated
24.11.2022 for a period of one year till 24.11.2023. As per
agreement, the respondent was drawing a salary of $7500
i.e approximately Rs.6,00,000/- per month. In April 2023,
the respondent no.1 filed complaint before Police Station,
Vastrapur, Ahmedabad leveling several allegations
against the Office of petitioner company. On 15.04.2023,
respondent no.1 tendered resignation and petitioner has
issued the service certificate, no objection certificate and
relieving letter on 15.04.2023. Respondent no.1 has also
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paid an amount of Rs.77,25,000/- as a full and final
settlement towards basic salary for entire contractual
period. As per the employment agreement, the
respondent has also issued the receipt on 16.04.2023,
confirming the above amount. Thereafter, on 20.04.2023,
respondent stated on affidavit that she received all dues
and she did not have any grievance against the petitioner
or its Officers. This affidavit was also communicated to
various authorities. Thereafter, respondent filed the
private complaint before learned Chief Judicial
Magistrate, Ahmedabad Rural being a criminal Inquiry
No. 301 of 2023, alleging an offence punishable under
section 376, 354, 323, 504, 506 of IPC and relevant
sections of human trafficking as well as under section
160(6)(A) and 160(7)(A) of the IPC against erring police
for not registering the F.I.R. The said complaint initially
came to be dismissed by learned Magistrate. However,
this Court has directed the learned Magistrate to pass an
order of investigation to competent Officer under section
156(3) of the Cr.P.C.
4.2. Pursuant to the order passed by this Court,
investigation came to be carried out, and a summary
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report came to be filed on 19.02.2024. Respondent no.1
thereafter raised an industrial dispute before the learned
Assistant Labour Commissioner on 07.03.2024 and
claimed that her services shall be reinstated with all
consequence benefits. The present petitioner filed a reply
on 20.03.2024, disputing the allegations and contending
that there is no dispute exists or apprehended between
the petitioner and the respondent and it was also claimed
that respondent does not fall under the umbrella of
workmen provided under section 2(s) of the Act,1947 as
well as in view of the settlement arrived between the
parties and the amount received, dispute does not exists.
Learned Assistant Labour Commissioner before arriving
to the conclusion that any industrial dispute exist or not,
referred the same to the learned labour court which is
subject matter of challenge before this Court.
5. Heard learned senior advocate Mr.K.M.Patel with
learned advocate Mr.Anuj.K.Trivedi, learned advocate for
the petitioner and learned advocate Mr. Rajeshkumar
Mishra for the respondent no. 1 as well as learned AGP
Ms.Surbhi Bhati for respondent no.2 and 3.
5.1. Learned senior advocate Mr.K.M.Patel has submitted
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that an order referring the alleged dispute, learned labour
Court has passed, after a year of the resignation of the
respondent no.1, after accepting an exorbitant amount of
Rs.77,25,002/- towards her pending dues i.e balance
salary for the entire contract period of one year and also
had tendering the affidavit to that effect. Learned
Assistant Labour Commissioner, without even asserting
the fact that whether dispute exists or not, mechanically
refers the question as to whether industrial dispute can
be said to have risen without arriving to a prima facie
satisfaction, existence of dispute and therefore, order of
reference requires to be set aside. It is further submitted
by the learned Senior advocate Mr.K.M.Patel that
reference order has been passed without considering the
delay in raising the claims and without determining as to
whether the dispute exist or not. It is submitted by the
learned Senior advocate Mr.K.M.Patel for the petitioner
that each dispute can be referred to the learned labour
court only if learned Assistant Labour Commissioner is
satisfied that there is an existence or apprehension of
industrial dispute. It is further submitted by the learned
Senior advocate Mr.K.M.Patel that respondent no.1 is a
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foreign national and was highly trained professional
person and was paid over Rs.6,25,000/- per month and
other benefits, including accommodation, insurance,
income tax paid by the petitioner company, emoluments,
and allowances. It is submitted by learned Senior
advocate Mr.K.M.Patel that by no stretch of imagination,
respondent no.1 can be said to be workmen under section
2(s) of the Act.
5.2. It is further submitted by the learned Senior advocate
Mr.K.M.Patel that the reference was made which is abuse
of process of law and to harass the petitioner company as
statement which was claimed after expiry of contract
period of one year and after receiving the settlement
amount of Rs.77,25,000/- which is over and above her
salary for entire contract period of one year. Learned
senior advocate Mr.K.M.Patel has relied on following
decisions and prayed that order of reference passed by
the learned Assistant Labour Commissioner be set aside
as there is no dispute exist or apprehended between
petitioner and respondent:
(i) AIR 1989 SC 1565 Telco Convoy Drivers Mazdoor
Sangh & Anr. Vs. State of Bihar & Ors.
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5.3. As against the same, learned advocate Mr.Mishra
appearing for respondent no.1 has submitted that present
petition is not maintainable as terms referred by the
Officer of Commissioner of labour dated 20.04.2024 is yet
to be adjudicated. It is submitted that the proceedings
before the learned labour court has already started and
petitioner company sought time to file written statement.
Accordingly, the matter was adjourned and by adopting
the delay tactics instead of filing the written statement
before the learned labour court petition was filed before
this Court challenging the order of reference and this
Court has granted the stay vide order dated 28.10.2024.
It is further submitted learned advocate Mr.Mishra that
resignation on which the reliance was placed by the
learned senior advocate Mr.Patel for the petitioner was
taken forcefully in the police station and therefore,
learned Authority has rightly referred the dispute to the
learned labour court. Learned advocate Mr.Mishra has
further submitted that whether the respondent is falling
under the definition of 2(s) or not is mixed question of law
and fact and therefore, learned Assistant Labour
Commissioner has rightly referred the dispute to decide
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that whether the respondent is workmen and dispute
exists or not? It is further submitted by learned advocate
Mr.Mishra that learned Commissioner is having the
powers to pass administrative orders without going into
the merits of the matter and therefore no error has been
committed by the learned Commissioner in referring the
dispute to the learned labour Court. Submitting the same,
learned advocate Mr.Mishra has requested to dismiss the
petition and confirm the order of reference. Reliance is
placed on the judgment of the Apex Court Bloomberg
Television Production Services India Pvt. Ltd. & Ors.
Vs Zee Entertainment Enterprises Ltd. Reported in
(2025) 1 SCC 741.
5.4. The above decision relied by the learned advocate for
the respondent is pertaining to vacating of ex-parte ad-
interim relief, however, as this Court has finally decided
this matter therefore, the said judgment would have no
relevance in the present case.
5.5. Learned AGP Ms.Surbhi Bhati appearing for
respondent no.2 and 3 supported the order and submitted
that learned Commissioner has rightly referred the
dispute to decide preliminary question that, whether the
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respondent is workman within the meaning of industrial
disputes or not along with the relief of reinstatement
claimed by the respondent. Learned AGP Ms.Surbhi Bhati
has relied on the decision rendered by this court in the
case of Arjunbhai Amritbhai Nayak versus State of
Gujarat reported in 2000 4 GLR 3015 and submitted
that while entertaining the complaint under section 2A of
the Act, 1947, jurisdiction is very limited and learned
Commissioner would not have any power to adjudicate
any dispute or issue arising between the parties. It is
further submitted that by learned AGP Ms.Surbhi Bhati
that learned Commissioner cannot go to the merits at the
stage of referring the dispute under section 10(1) of the
Act 1947. Therefore, no error has been committed by the
learned Commissioner while referring the dispute.
6. Having heard the learned advocates for the respective
parties and perusing the records as well as the terms of
the reference which is impugned before this Court is
required to be referred which is reproduce hereinbelow:
"(1) Whether it (the applicant) falls under the definition of the
employee as per Section 2(S) of Industrial Disputes Act, 1947 or
not ?
(2) As per the application of the applicant, whether the right (of the
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applicant) is been established as per the Industrial Disputes Act or
not ?
(3) Whether the Industrial Dispute is been established regarding the
said matter or not ?
(4) Whether the applicant be reinstated in the service at his
original place along with the back wages of unattended days by
considering his continue service or not ? "
7. To decide the moot question of the Court that whether
the learned Assistant Commissioner is justified in
referring the dispute in above terms, relevant provisions
of the I.D.Act, 1947 are required to be referred, which are
reproduced hereinbelow:
12. Duties of conciliation officers.--(1) Where any industrial dispute
exists or is apprehended, the conciliation officer may, or where the
dispute relates to a public utility service and a notice under section
22 has been given, shall hold conciliation proceedings in the
prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a
settlement of the dispute, without delay, investigate the dispute and
all matters affecting the merits and the right settlement thereof and
may do all such things as he thinks fit for the purpose of inducing
the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute
is arrived at in the course of the conciliation proceedings the
conciliation officer shall send a report thereof to the appropriate
Government 2 [or an officer authorised in this behalf by the
appropriate Government] together with a memorandum of the
settlement signed by the parties to the dispute.
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(4) If no such settlement is arrived at, the conciliation officer shall,
as soon as practicable after the close of the investigation, send to the
appropriate Government a full report setting forth the steps taken by
him for ascertaining the facts and circumstances relating to the
dispute and for bringing about a settlement thereof, together with a
full statement of such facts and circumstances, and the reasons on
account of which, in his opinion, a settlement could not be arrived
at.
(5) If, on a consideration of the report referred to in sub-section (4),
the appropriate Government is satisfied that there is a case for
reference to a Board, 3 [Labour Court, Tribunal or National
Tribunal], it may make such reference. Where the appropriate
Government does not make such a reference it shall record and
communicate to the parties concerned its reasons therefor.
(6) A report under this section shall be submitted within fourteen
days of the commencement of the conciliation proceedings or within
such shorter period as may be fixed by the appropriate Government:
[Provided that, 2 [subject to the approval of the conciliation officer,]
the time for the submission of the report may be extended by such
period as may be agreed upon in writing by all the parties to the
dispute.]
10. Reference of disputes to Boards, Courts or Tribunals.--(1) 1
[Where the appropriate Government is of opinion that any industrial
dispute exists or is apprehended, it may at any time], by order in
writing,--
(a) refer the dispute to a Board for promoting a settlement thereof;
or
(b) refer any matter appearing to be connected with or relevant to
the dispute to a Court for inquiry; or
[(c) refer the dispute or any matter appearing to be connected with,
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or relevant to, the dispute, if it relates to any matter specified in the
Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with,
or relevant to, the dispute, whether it relates to any matter specified
in the Second Schedule or the Third Schedule, to a Tribunal for
adjudication:
Provided that where the dispute relates to any matter specified in the
Third Schedule and is not likely to affect more than one hundred
workmen, the appropriate Government may, if it so thinks fit, make
the reference to a Labour Court under clause (c):]
[Provided further that] where the dispute relates to a public utility
service and a notice under section 22 has been given, the appropriate
Government shall, unless it considers that the notice has been
frivolously or vexatiously given or that it would be inexpedient so to
do, make a reference under this sub-section notwithstanding that any
other proceedings under this Act in respect of the dispute may have
commenced:
[Provided also that where the dispute in relation to which the
Central Government is the appropriate Government, it shall be
competent for that Government to refer the dispute to a Labour
Court or an Industrial Tribunal, as the case may be, constituted by
the State Government.]
[(1A) Where the Central Government is of opinion that any industrial
dispute exists or is apprehended and the dispute involves any
question of national importance or is of such a nature that industrial
establishments situated in more than one State are likely to be
interested in, or affected by, such dispute and that the dispute
should be adjudicated by a National Tribunal, then, the Central
Government may, whether or not it is the appropriate Government in
relation to that dispute, at any time, by order in writing, refer the
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dispute or any matter appearing to be connected with, or relevant to,
the dispute, whether it relates to any matter specified in the Second
Schedule or the Third Schedule, to a National Tribunal for
adjudication.]
(2) Where the parties to an industrial dispute apply in the prescribed
manner, whether jointly or separately, for a reference of the dispute
to a Board, Court, 6 [Labour Court, Tribunal or National Tribunal],
the appropriate Government, if satisfied that the persons applying
represent the majority of each party, shall make the reference
accordingly.
[(2A) An order referring an industrial dispute to a Labour Court,
Tribunal or National Tribunal under this section shall specify the
period within which such Labour Court, Tribunal or National
Tribunal shall submit its award on such dispute to the appropriate
Government:
Provided that where such industrial dispute is connected with an
individual workman, no such period shall exceed three months:
Provided further that where the parties to an industrial dispute apply
in the prescribed manner, whether jointly or separately, to the
Labour Court, Tribunal or National Tribunal for extension of such
period or for any other reason, and the presiding officer of such
Labour Court, Tribunal or National Tribunal considers it necessary or
expedient to extend such period, he may for reasons to be recorded
in writing, extend such period by such further period as he may
think fit:
Provided also that in computing any period specified in this sub-
section, the period, if any, for which the proceedings before the
Labour Court, Tribunal or National Tribunal had been stayed by any
injunction or order of a Civil Court shall be excluded:
Provided also that no proceedings before a Labour Court, Tribunal or
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National Tribunal shall lapse merely on the ground that any period
specified under this sub-section had expired without such proceedings
being completed.]
(3) Where an industrial dispute has been referred to a Board, 1
[Labour Court, Tribunal or National Tribunal] under this section, the
appropriate Government may by order prohibit the continuance of
any strike or lock-out in connection with such dispute which may be
in existence on the date of the reference.
[(4) Where in an order referring an industrial dispute to 2 [a Labour
Court, Tribunal or National Tribunal] under this section or in a
subsequent order, the appropriate Government has specified the
points of dispute for adjudication, 3 [the Labour Court or the
Tribunal or the National Tribunal, as the case may be], shall confine
its adjudication to those points and matters incidental thereto.
(5) Where a dispute concerning any establishment or establishments
has been, or is to be, referred to a 4 [Labour Court, Tribunal or
National Tribunal] under this section and the appropriate Government
is of opinion, whether on an application made to it in this behalf or
otherwise, that the dispute is of such a nature that any other
establishment, group or class of establishments of a similar nature is
likely to be interested in, or affected by, such dispute, the
appropriate Government may, at the time of making the reference or
at any time thereafter but before the submission of the award,
include in that reference such establishment, group or class of
establishments, whether or not at the time of such inclusion any
dispute exists or is apprehended in that establishment, group or class
of establishments.]
[(6) Where any reference has been made under sub-section (1A) to a
National Tribunal, then notwithstanding anything contained in this
Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate
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upon any matter which is under adjudication before the National
Tribunal, and accordingly,--
(a) if the matter under adjudication before the National Tribunal is
pending a proceeding before a Labour Court or Tribunal, the
proceeding before the Labour Court or the Tribunal, as the case may
be, in so far as it relates to such matter, shall be deemed to have
been quashed on such reference to the National Tribunal; and
(b) it shall not be lawful for the appropriate Government to refer the
matter under adjudication before the National Tribunal to any Labour
Court or Tribunal for adjudication during the pendency of the
proceeding in relation to such matter before the National Tribunal.
[Explanation.--In this sub-section, "Labour Court" or "Tribunal"
includes any Court or Tribunal or other authority constituted under
any law relating to investigation and settlement of industrial disputes
in force in any State.]
(7) Where any industrial dispute, in relation to which the Central
Government is not the appropriate Government, is referred to a
National Tribunal, then notwithstanding anything contained in this
Act, any reference in section 15, section 17, section 19, section 33A,
section 33B and section 36A to the appropriate Government in
relation to such dispute shall be construed as a reference to the
Central Government but, save as aforesaid and as otherwise expressly
provided in this Act, any reference in any other provision of this Act
to the appropriate Government in relation to that dispute shall mean
a reference to the State Government.]
[(8) No proceedings before a Labour Court, Tribunal or National
Tribunal in relation to an industrial dispute shall lapse merely by
reason of the death of any of the parties to the dispute being a
workman, and such Labour Court, Tribunal or National Tribunal shall
complete such proceedings and submit its award to the appropriate
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Government.]
Section 2(k) "industrial dispute" means any dispute or difference
between employers and employers, or between employers and
workmen, or between workmen and workmen, which is connected
with the employment or non-employment or the terms of
employment or with the conditions of labour, of any person;
[(ka) "industrial establishment or undertaking" means an
establishment or undertaking in which any industry is carried on:
Provided that where several activities are carried on in an
establishment or undertaking and only one or some of such activities
is or are an industry or industries, then,--
(a) if any unit of such establishment or undertaking carrying on any
activity, being an industry, is severable from the other unit or units
of such establishment or undertaking, such unit shall be deemed to
be a separate industrial establishment or undertaking;
(b) if the predominant activity or each of the predominant activities
carried on in such establishment or undertaking or any unit thereof
is an industry and the other activity or each of the other activities
carried on in such establishment or undertaking or unit thereof is not
severable from and is, for the purpose of carrying on, or aiding the
carrying on of, such predominant activity or activities, the entire
establishment or undertaking or, as the case may be, unit thereof
shall be deemed to be an industrial establishment or undertaking;]
8. The definition of industrial dispute opens with an
employee's very general words of wide applications. The
definition is in three parts, (i) there must be a dispute or
difference (ii) the dispute or difference must be between
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the employers and employers or between the employers
and workmen or between workmen and workmen, (iii) the
dispute or difference must be connected with the
employment or with the conditions of labour, of any
persons. The first part refers to the factum of real
dispute, the second part to the parties to the dispute and
third part to the subject matter of that dispute. That
subject matter may relate to any of two matters (i)
employment or non employment and (ii) terms of
employment of condition of labour of any person, these
necessarily import a limitation. A person in respect of
whom the employer-employee relation never existed or
can never possibly exist cannot be be subject matter of
dispute.
8.1. Section 12 defines the duties of the Conciliation
Officers. The section provides that he is required to
investigate and ascertain the facts, apply objectives
standards of facts found and he has to determine whether
there is a prima facie case and the existence or
apprehension of the industrial dispute is there or not. The
Conciliation Officer has to send his report to the
appropriate government under section 12(4) and that
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report must set forth the steps taken by the officer to
ascertain the facts and circumstance relating to the
dispute and for bringing about a settlement thereof
together with full statement of such facts and
circumstance and the reasons on account of which his
opinion a settlement could not be arrived at. The object of
requiring the Conciliation Officer to make such full and
detailed report is to upraise the government of all the
relevant facts including the reasons of failure of
conciliation so that government may be in the possession
of the relevant material on which it can decide what
course to adopt under section 12(5).
8.2. Section 10 empowers the appropriate government to
make reference to any one of the authorities name in the
section with a view to setting in motion the machinery for
adjudication of industrial dispute. Section 10 is fountain
source of the powers of the appropriate government to
make reference to achieve the object of the Act, 1947.
This section empowers the appropriate government to
make reference to an industrial dispute to the Labour
Court if the dispute is in respect of the matter specified in
II Schedule or to an industrial tribunal if it is a matter
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specified in the II Schedule or III Schedule. The
jurisdiction of the Labour Court and Industrial Tribunal is
therefore, limited to determination of dispute which falls
the respective define areas and therefore, the dispute
which can be referred for adjudication has to be, of
necessity, an industrial dispute which would clothe the
appropriate government with power to make the
reference and learned Labour Court to adjudicate it.
9. It transpires form the above terms that formation of the
opinion which is the preliminary stage in discharge of the
functions under section 10(1) and is condition precedent
to the exercise of power by the appropriate government is
lacking. The appropriate government in the opinion of
this court has to form the opinion that any industrial
dispute exist or is apprehended. The power to make
reference for adjudication would arise as soon as it forms
such opinion and that opinion is naturally formed before
order of reference is made. In the instant case, the order
of reference was made without arriving to the subjective
satisfaction regarding existence of the dispute. The
second defect in the order of reference is that existence
of jurial relationship is required to be examined which
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decided the jurisdiction of the learned court. In the
scheme of the act, the employer-employee relationship
between management and the worker concerned is sine
qua non for holding that workman of the employer from
whom they claimed relief. Making a reference
presupposes an accepted position by the government that
their exists relationship of employer and the workman
which can alone can give rise to an industrial dispute. The
act clearly implies that there must exist a relationship of
employer and employee to the parties to the lis. There is
no doubt that the employee is a workman or not involves
a mix question of law and facts which can be concluded
on scrutinizing evidence which is not permissible at the
stage of making reference however, prima facie opinion is
must before making order of reference. In absence of
such, the government precluded from forming an opinion
as to existence or apprehension of industrial dispute. An
order of reference cannot be made mechanically without
forming an opinion and for that formation of such
necessary opinion the appropriate government must be
satisfied that a person whose dispute is being referred for
adjudication is "workman". If the dispute is not between
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the employer and his workman, it is not an 'industrial
dispute' and in that event government may refuse to refer
the dispute.
10. The material placed before the government by the
respondent which is in nature of employment agreement
dated 14.10.2022, the salary slip of February-April, 2023,
formal resignation dated 15.04.2023, experience
certificate and the copy of full and final settlement dated
16.04.2023. Relying on the above document, terms were
framed and the dispute was referred before the learned
Industrial Court. It appears that appropriate government
has acted as post office and without applying its mind the
order of reference is passed. This Court is agreed with the
submission of the learned AGP Ms.Surbhi Bhati and the
decision relied in the case of Arjunbhai Amritbhai
Nayak (supra) wherein, it is held that the learned
Commissioner would not have power to adjudicate the
dispute while referring the dispute under section 10(1) of
the Act, 1947. However, this Court is of the view that only
condition which exercise of that power to satisfy is that
there should be existence and apprehension of industrial
dispute.
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11. This Court has referred the decision rendered by the
Apex court in the case of Rahman Industries (P)
Limited versus State of UP reported 2016 12 SCC
420 wherein it is held that in the scheme of Industrial
Dispute Act 1947, it is not as if the government has to act
as a post office by referring each and every petitions
received by him. The government is well within its
jurisdiction to see whether there exist a dispute worth
referring for adjudication. No doubt, the government is
not entitled to enter finding on merits of the case and
decline reference but the government has to satisfy itself,
after applying its mind to the relevant factors and satisfy
itself to the existence of dispute before taking a decision
to refer the same for adjudication.
12. It transpires from the above order that appropriate
government without satisfying, it, said on facts and
circumstances brought to its notice that an industrial
dispute exist or apprehended, passed an order making a
reference under section 10 of the Act. It is held by the
Apex Court in the case of Sultan Singh versus State of
Haryana reported in 1996 2SCC 66 that an order
issued under section 10 of the Act is an administrative
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order and the government is entitled to go into the
questions whether industrial disputes exist or is
apprehended, and it will be only a subjective satisfaction
on the basis of material on record and being an
administrative order no lis is involved. The law on the
point was briefly summarised (page 42 orange page) in
the case of Secretary, Indian Tea Association versus
Ajit Kumar Bharat and others reported in 2000 3
SCC 93, the Apex Court has held as under:
"10.Before making a reference under Section 10 of the Act the ap-
propriate Government has to form an opinion whether an employee
is a workman and thereafter has to consider as to whether an
industrial dispute exists or is apprehended.
11.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 be made.
12.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
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functioning as a Joint Secretary at the relevant time and we find Ms
duties were to deal with ail legal matters and proceedings, labour
and land laws and publications (Labour legislations Labour welfare).
We also find from the records that respondent No. 1 had power to
sanction expen-ses incurred in litigation by the appellant. On the
above materials on record the State Government rightly formed the
opinion that respondent No. 1 was not a workman."
13. The decision by the Apex Court, in the case of Ram
Avtar Sharma versus State of Haryana reported 1985
3 SCC 189 if referred, wherein para 6 it is held as under:
"6.The view that while exercising power under Sec. 10(1), the
Government performs administrative function can be supported by an
alternative line of reasoning, Assuming that making or refusing to
make a reference under Sec. 10(1) is a quasi judicial function, there
is bound to be a conflict of jurisdiction if the reference is ultimately
made.A quasi- judicial function is to some extent an adjudicatory
function in a list between two contending parties The Government as
an umpire, assuming that it is performing a quasi-judicial function
when it proceeds to make a reference, would imply that the quasi-
judicial determination of lis prima facie show that one who raised
the dispute has established merits of the dispute. The inference
necessarily follows from the assumption that the function performed
under Sec. 11)(1) is a quasi-judicial function. Now by exercising
power under Sec. 10, a reference is made to a Tribunal for
adjudication and the Tribunal comes to the conclusion that there was
no merit in the dispute, Prima facie a conflict of jurisdiction may
emerge. Therefore the view that while exercising power under Sec.
10(1) the function performed by the appropriate Government is an
administrative function and not a judicial or quasi-judicial function is
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beyond the pale of controversy."
14. In view of above, this Court is of the view that impugned
order making reference to the learned labour Court to
decide that whether industrial disputes exist or not,
respondent is a workmen or not is without arriving to the
subjective satisfaction by the learned commissioner.
Therefore, matter is required to be remanded back to the
learned Assistant Labour Commissioner with direction
that learned Assistant Labour Commissioner shall form
prima facie opinion as to whether an industrial dispute
exist or apprehended and on arriving to the subjective
satisfaction, appropriate order be passed.
15. So far as the contention raised by the learned advocate
Mr.Mishra for the respondent with regard to the
maintainability of the present petition is concerned, this
Court has referred the decision render by the Apex Court
in the case of National Engineering Industries
Limited versus State of Rajasthan and others
reported in 2000 1SC 371, wherein the Apex Court has
held as under:
"24.It will be thus seen that High Court has jurisdiction to entertain
a writ petition when mere is allegation that there is no industrial
dispute and none apprehended which could be subject matter of
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reference for adjudication to the Industrial Tribunal under Section 10
of the Act, Here it is a question of jurisdiction of the Industrial
Tribunal, which could be examined by the High Court in its writ
jurisdiction. It is the existence of the industrial tribunal which would
clothe the appropriate Government with power to make the reference
and the Industrial Tribunal to adjudicate it. If there is no industrial
dispute in existence or apprehended appropriate government lacks
power make any reference. A settlement of dispute between the
parties themselves is to be preferred, where it could be arrived at, to
industrial adjudication, as the settlement is likely to lead to more
lasting peace then an award. Settlement is arrived at by the free will
of the parties and is a pointer to there being goodwill between them.
When there is a dispute that the settlement is not bona fide in
nature or that it has been arrived at on account of fraud,
misrepresentation or concealment of facts or even corruption and
other inducements it could be subject matter of yet another industrial
dispute which an appropriate Government may refer for adjudication
after examining the allegations as there is an underlying assumption
that the settlement reached with the help of the Conciliation Officer
must be fair and reasonable. A settlement which is sought to be
impugned has to be scanned and scrutinized. Sub-sections (1) and (3)
of section 18 divide settlements into two categories, namely, (1)
those arrived at outside the conciliation proceedings and (2) those
arrived at in the course of conciliation proceedings. A settlement
which belongs to the first category has limited application in that it
merely binds the parties to the agreement but the settlement
belonging to the second category has extended application since it is
binding on all the parties to the industrial disputes, to all others who
were summoned to appear in the conciliation proceedings and to all
persons employed in the establishment or part of the establishment,
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as the case may be, to which the dispute related on the date of the
dispute and to all others who joined the establishment thereafter, A
settlement arrived at in the course of conciliation proceedings with a
recognized majority union will be binding on all workmen of the
establishment, even those who belong to the minority union which
had objected to the same. Recognized union having majority of
members is expected to protect the legitimate interest of labour and
enter into a settlement in the best interest of labour. This is with the
object to uphold the sanctity of settlement reached with the active
assistance of the Conciliation Officer and to discourage an individual
employee or minority union from scuttling the settlement. When a
settlement is arrived at during the conciliation proceedings is binding
on the members of the workers' union as laid down by section 18(3)
(d) of the Act . It would ipso facto bind all the existing workmen
who are all parties to the industrial dispute and who may not be
members of Unions that are signatories to such settlement under
section 12(3) of the Act Act is based on the principle of collective
bargaining for resolving Industrial disputes and for maintaining
industrial peace. "This principle of industrial democracy is the
bedrock of the Act", as pointed out in the case of P. Virudhanchalam
& Ors. v. Management of Lotus Mills & Anr., [1998] 1 SCC650. In all
these negotiations based on collective bargaining individual workman
necessarily records to the background Settlements will encompass all
the disputes existing at the time of the settlement except those
specifically left out."
16. Learned Commissioner has relied on the decision render
in Special Civil Application No. 1414 of 1996 dated 24
March 2004, which was challenged further before the
division bench. However, due to lapse of time the learned
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division bench has disposed of the LPA No.2663 of 2004
by making following observations:
"It is agreed between the parties that by lapse of time and
subsequent events, the appeal has become infructuousu. It is
accordingly dismissed.
As the appeal is dismissed, Civil Application No.10323of 2004 stands
disposed of."
17. In view of above discussion, this Court is of the view that
reference in the present form is clearly defective. It does
not suggest of application of mind with regard to the
forming a prima facie opinion as to whether there is
industrial dispute between employer- workman concerned
exists or was apprehended. Therefore, impugned order of
reference passed by the learned Assistant Labour
Commissioner in IDR/2024/AHM/0665 dated 21.03.2024
is hereby set aside and the reference is remanded back to
the appropriate government to pass fresh orders after
arriving to the subjective satisfaction regarding the
existence of the industrial dispute.
18. Resultantly, this petition is allowed in above terms. Rule
made absolute to that extent.
Order in Civil Application:
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In view of the order passed in the main petition, civil
application is disposed of.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
