M/S Mach Aero Components Private ... vs The State Government Of Karnataka
2023 Latest Caselaw 3981 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 05TH DAY OF JULY, 2023

                         BEFORE

        THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

         WRIT PETITION No.5261/2022 (L-RES)

BETWEEN:

M/S. MACH AERO COMPONENTS PRIVATE LIMITED,
NO.27B, DODDABALLAPUR,
INDUSTRIAL AREA,
BANGALORE RURAL DISTRICT - 203
REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
                                      ... PETITIONER

(BY SRI MRC RAVI, SENIOR ADVOCATE FOR
    SMT. SUNITA SRINIVAS, ADVOCATE)

AND:

1.     THE STATE GOVERNMENT OF KARNATAKA
       LABOUR DEPARTMENT,
       VIKASA SOUDHA,
       BANGALORE,
       REP. BY SECRETARY.

2.     THE ASSISTANT LABOUR COMMISSIONER
       CONCILIATION OFFICER,
       DIVISION-2, KARMIKA BHAVANA
       BHANNERUGATTA ROAD,
       BENGALURU - 560 029.
                              -2-




3.    MACH AERO COMPONENTS WORKERS UNION,
      NO.49/50, 1ST CROSS,
      5TH MAIN ATTUR LAYOUT,
      YELAHANKA NEW TOWN,
      BANGALORE - 560 064.

      NOW CHANGED AS
      C/O. TRADE UNION OFFICE NO.138
      GROUND FLOOR, 9TH CROSS, 4TH MAIN,
      CHAMARAJPET,
      BANGALORE - 560 018
      REPRESENTED BY ITS
      PRESIDENT/GENERAL SECRETARY.
                                      ... RESPONDENTS

(BY SMT. ANITHA, HCGP FOR R-1 AND R-2;
    SRI T.S. ANANTHA RAM, ADVOCATE FOR R-3)


      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER OF REFERENCE DATED 08.09.2020, ISSUED BY THE
1ST   RESPONDENT   I.E.,    THE    STATE   GOVERNMENT      OF
KARNATAKA,    LABOUR       DEPARTMENT,     VIKASA   SOUDHA,
BANGALORE, VIDE ANNEXURE-A.


      THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 05/06/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT      OF   ORDER      THIS    DAY,   THE   COURT
PRONOUNCED THE FOLLOWING:
                                  -3-


                               ORDER

The present petition by the Company assailing the

order of reference dated 08.09.2020 in LD-

IDM/369/2019-LD.DO.5.L.S. issued by the Government

of Karnataka, Labour Department, Bangalore (Annexure

- A)

2. The brief facts of the case are that the

petitioner-company is an aeronautical company

incorporated under the Companies Act, 1956 started in

the year 2006 and stood operational in 2007. It is

stated that 98% of the components are manufactured

from the imported aeronautical grade raw materials, and

such manufactured parts are exported back to its

principals in France who carry out further value addition

to the parts before delivery to the final customers. The

workmen are benefited by substantial increase in annual

increments every year and various other benefits. Ever

since the inception of the factory the relationship

between the management and the workmen has always

been cordial. It is stated that totally there were 171

employees out of which 111 were permanent workers

which included 11 staff. Few workers (35 out of 111

employees) as claimed by the Bangalore Karmika

Sangha ("BKS") threatened the peace of the industry

and any discussion or settlement with such a minority

union would be meaningless and would result in a

drastic situation where the majority of the workmen

would be forced to follow the diktats of few workman

even though they are neither empowered nor authorized

by way of any valid authority or resolution passed in this

regard.

3. It is stated that the majority of the workman

were not willing to join the BKS and 85 workmen had

given in writing to the petitioner-management that they

are not the members of BKS and not given any

authorization to represent them and hence, the

management found it difficult to hold any meaningful

dialogue during the conciliation meetings held before the

Assistant Labour Commissioner. The meetings were held

in the chamber of the then Joint Labour Commissioner,

presided by the Joint Labour Commissioner himself

attended by respondent No.2 - Assistant Labour

Commissioner and large number of workers including

the office bearers of BKS. The workmen informed that

they did not want to join the BKS, but wanted to form

another union. The Joint Labour Commissioner advised

the workmen to approach respondent No.2 who is the

registering authority under the Trade Union Act and

instructed them to do the needful.

4. The BKS union formed under the name Mach

Aero Components Workers Union - respondent No.3 and

similarly another set of workmen formed another union

under the name Mach Aero Employees Union (MAEU).

Respondent No.3 - Union submitted that they have

charter of demands to the petitioner regarding the

revision of wages and other benefits. Another union

MAEU submitted their charter of demands regarding the

same. The management held discussions with the

representatives of both the unions on all the issues

including charter of demands with full knowledge of

representatives of both the unions. Both the unions

were offered same benefits without any discrimination.

The representatives of respondent No.3 were adamant

in their exorbitant demands and unwilling to agree to

most of the points in the counter offer by the petitioner

management.

5. It appears that on the other hand, the

representatives of the MAEU, after prolonged

discussions, accepted the reasonable offer made by the

management and arrived at a settlement on

10.01.2017. The management extended the same

benefits to the members of both the unions subject to

the condition that they agree to the terms and

conditions of the settlement for availing the benefits in

order to avoid any discrepancy or discrimination. The

copy of the settlement was put up on the Notice Board

to enable all the employees including the members of

the respondent No.3-union to understand and consider

the same. In all 94 members have signed the

settlement and had given undertaking accepting the

terms and conditions of the settlement and a copy of

which was forwarded to the concerned officers in

accordance with the Industrial Disputes (Karnataka)

Rules, 1957. The copy of the settlement was also

forwarded to the Secretary to the Government of

Karnataka, Labour Department Vikasa Soudha, Labour

Commissioner and the Jurisdictional Assistant Labour

Commissioner on 13.01.2017.

6. It is further stated that about 43 workmen -

members of respondent No.3 - Union reported to duty

on 25.1.2017 in the second shift at around 13.15 hours,

but abruptly they stopped work at around 16.00 hours

by switching off the machines and started idling and

loitering inside the premises without any valid and

justifiable reason and did not resume the work till the

end of the shift. However, though the above said 43

workmen reported for duty on 25.1.2017, 27.1.2017

and 28.1.2017 and marked their attendance, they did

not resume to work and continued to do as above. The

workers further stopped to come to work since

31.01.2017 and inspite of several notices issued by the

company on 30.1.2017, 27.2.2017, 16.3.2017 and

31.3.2017, the workers did not turn up for work. The

management put up notice calling upon the workmen to

give single consent individually undertaking to carry out

their normal work in a disciplined manner and without

undertaking, they had no right to enter the factory

premises.

7. Despite these, the workmen decided to stay

away from work without any valid reason and the

persistent attempts made by the company-

management, the workmen failed to show their

willingness to report to duty to carry out their normal

work. It is stated that the workmen made allegations of

lockout by the petitioner to defend their illegal demands.

It is stated that the petitioner had not declared any

lockout or refused to give any work to any workmen.

Individual notices were issued to the workmen directing

them to report for duty. As the management could not

wait for indefinite period for the workers to return as it

had invested huge amount of money on the

sophisticated machinery and infrastructure and also had

orders to the completed on time, failing which the orders

will be cancelled.

8. It is stated that the absence of the workman

clearly establish their intention that they were no longer

- 10 -

interested in continuing with the services in the

petitioner organization to carryout the normal work in a

disciplined manner and the management was

constrained to invoke Clause 22(e) of the Certified

workmen of Mach Aero Components Workers' Union

from the service and accordingly, respondent No.3-

Union lost its representative capacity to espouse the

cause of its members who are no longer employees of

the petitioner company and therefore, respondent No.3

has no locus standi to represent the workmen who are

working in the factory.

9. A dispute was raised regarding this and the

same is pending consideration before the Tribunal in

Ref. No.8/2018. This being the state of affairs,

respondent No.3-Union submitted charter of demands

on 10.01.2019 for the period from 01.01.2019 to

31.12.2019. Even though they were no longer workmen

- 11 -

of the petitioner company. Since the workers were no

longer workers of the petitioner - company, the

company has not considered the letter. Respondent

No.3 - Union raised an industrial dispute and on service

of notice on the company - Management to the dispute

raised by respondent No.3, the company filed its

objections. Respondent No.2 without considering and

hearing on the objections of the petitioner - Company,

sent a conciliation report to respondent No.1.

Respondent No.1 passed an order of reference at

Annexure-A referring the dispute. Aggrieved by the

order of reference, the present petition.

10. Respondent No.3 - Union has filed its

statement of objections contesting the petition that the

order of reference are separate and the workman has

power to refer the reference individually and the same

does not call for any interference by this Court.

- 12 -

11. Heard Sri M.R.C.Ravi, learned senior counsel

appearing for Smt. Sunita Srinivas, learned counsel for

the petitioner, Smt. Anita N., learned High Court

Government Pleader for respondent Nos.1 and 2 and Sri.

T.S. Anantha Ram, learned counsel appearing for

respondent No.3 - Mach Aero Components Workers

Union.

12. Sri. M.R.C. Ravi, learned Senior counsel for

the petitioner would contend that,

(i) the order of reference dated 08.09.2020

passed by respondent No.1 is contrary to the law and

facts;

(ii) there are no employees who are members of

respondent No.3 - Union working in the petitioner -

Company and that respondent No.3 has no locus standi

to represent the cause of the workmen who are not

working in the factory. The office bearers of respondent

No.3 - Union cannot raise any dispute to the charter of

- 13 -

demands for the period 2017 onwards and that the

impugned order of reference dated 08.09.2020 is

unsustainable. The workmen who is raising such

demand should be an employee of the said company

and he should be working in the said company. None of

the workmen were working with respondent No.3 -

Union at the time of submitting charter of demand on

10.01.2019 and respondent No.3-union has lost its

representative capacity to espouse the cause of its

members. That respondent No.2, without considering

the same, submitted conciliation report and based on

which respondent No.1 issued the order of reference;

(iii) The reference made by the workmen under

Section 10 to refer a dispute can be exercised only when

there is an existing or apprehended industrial dispute

and the industrial dispute within the meaning of Section

2(k) and the workman should be defined under Section

2(s) of the Industrial Disputes Act, 1947 and in the

- 14 -

absence of any industrial dispute and as per the

definition of industrial dispute, it can be only employer

and employee and in the present case, none of the

workmen of respondent No.3 - Union were working with

the petitioner - company at the time of submitting their

charter of demands and they cannot be termed as

workmen under Section 2(s) of the ID Act. Learned

counsel placed reliance on the judgment of the Apex

Court in the decisions of Nedungadi Bank Ltd. vs. K.P.

Madhavankutty & others [(2000) 2 SCC 455]

(Nedungadi Bank Ltd.) and Oshiar Prasad and

Others vs. Employers in relation to Management of

Sudamdih Coal Washery of M/s Bharat Coking Coal

Limited, Dhanbad, Jharkhand [(2015) 4 SCC 71]

(Oshiar Prasad). According to learned counsel, charter

of demands cannot be for the further period for which

the respondent-workmen are not in service since they

- 15 -

have refused to work from 20.04.2017 and as such, the

reference made by workmen is unsustainable.

13. Per contra, Sri. T.S. Anantha Ram, learned

counsel appearing for respondent No.3 would contend

that the management had illegally refused employment

for 43 members who are the members of the union and

the dispute is pending consideration before the District

and Sessions Court cum Labour Court, Bengaluru in

ID.No.77/2017 and it is stated that respondent No.3 -

Union has submitted the charter of demands for three

years from 01.01.2016 to 31.03.2018 and stated that

there are three referred charter of demands and are

connected to different periods and all the references are

separate and the Government has power to refer the

references separately and would contend that the order

of reference made by the State Government is

justifiable. The reliance is placed on the orders of the

Co-ordinate Bench of this Court in

- 16 -

W.P.No.35639/2004 in the case of M/s. Madura

Coats Ltd. vs. The Principal Secretary, Department

of Labour & another disposed of on 15.09.2004;

W.A.No.4570/2004 in the case of M/s. Madura

Coats Ltd. vs. The Principal Secretary, Department

of Labour & another disposed of on 01.02.2005 and

Review Petition No.747/2022 in the case of

Basavalingaswamy & others vs. M/s Mach Aero

Components Private Limited disposed of on

14.02.2023 stating these grounds, learned counsel for

respondent No.3-Union seeks for dismissal of the writ

petition.

14. Having heard learned counsel for the parties

and perused the material on record, the points that arise

for consideration are,

"1. Whether the workmen who are not the employees of the company can have locus-standi to maintain reference application?

- 17 -

2. Whether the reference made by respondent No.1 - Government under Section 10 of the Industrial Disputes Act calls for interference?"

15. The fact that 43 workmen of the respondent

No.3 - Union are not the employees and the dispute

between the workmen and the management is pending

in ID.No.77/2017 is not in dispute. The reference is

evident from Annexure - A is that the charter of

demands for the period from 01.01.2019 to 31.12.2021

which was submitted on 10.01.2019 by respondent No.3

- Union. The 43 workmen of Mach Aero Component

were not part of the apprehension of respondent No.3-

Union has been clearly admitted by respondent No.3 in

its statement of objection at para No.4, which reads as

under:

"4. It is further submitted that, in the meanwhile the petitioner management illegally refused employment to 43 workmen who were the members of the union and that case is

- 18 -

pending before Bengaluru District and Sessions Court Cum Labour Court, Bengaluru in ID. No.77/2017 connected with Ref.No.8/2017. The management is dragging that case in order to harass the workmen."

16. The charter of demands is admittedly

submitted by respondent No.3 - Union in respect of the

persons, who are not workmen as defined under Section

2(s) of the ID Act. Section 10(1) as originally enacted,

open with the words "if any industrial dispute exists or is

apprehended". On the construction of those words in

Section 10, as it originally stood, the Madras High Court

took the view that the decision of the Government

referring an 'industrial dispute' was amenable to judicial

review and that the reviewing Court could look into even

the questions whether an 'industrial dispute' factually

existed or was apprehended. The vagueness of the

unamended Section 10 was noted by the Apex Court in

the case of United Commercial Bank Ltd., vs. U.P.

- 19 -

Bank Employees Union [AIR 1953 SC 437] [United

Commercial Bank] Section 10(1) was amended by the

Industrial Disputes (Amendment) Ordinance 1951 and

the words "where the appropriate government is of

opinion that the industrial dispute exists or is

apprehended, it may at any time by an order in writing

refer the dispute" were substituted for the words "if any

industrial dispute exists or is apprehended the

appropriate Government made by a order in writing"

refer the dispute. Thus, the vagueness pointed out in

the case of United Commercial Bank was removed by

the legislature. But shortly afterwards, a Constitution

Bench of the Hon'ble Supreme Court presided over the

Patanjali Sastri CJI including all the three judges of the

Bench which decided United Commercial Bank, on the

construction of unamended Section 10(1), in CP

Sarathy, stated the following propositions:

"(i) the government should satisfy itself, on the facts and circumstances brought to its notice, in its

- 20 -

subjective opinion that an 'industrial dispute' exists or is 'apprehended';

(ii) the factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the government to decide;

(iii) the order making a reference is an administrative act and it is not a judicial or a quasi-judicial act; and

(iv) the order of reference passed by the government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution to see if the government had material before it to support the conclusion that the dispute existed or was apprehended."

Though these propositions were based on the

unamended Act, which did not contain the words 'where

the appropriate government is of the opinion', the court

implied the formation of 'subjective opinion' by the

appropriate government. Later, in the case of Rohtas

- 21 -

Industries Ltd. vs. S.D. Agarwal and another etc.,

[AIR 1969 SC 707], the Apex Court has held as under:

"This interpretation of S. 10(1) is based on the language of that provision as well as the purpose for which the power in question was given and the effect of a reference. That decision cannot be considered as an authority for the proposition that whenever a provision of law confers certain power on an authority on its forming a certain opinion on the basis of certain facts, the courts are precluded from examining whether the relevant facts on the basis of which the opinion is said to have been formed were in fact existed."

17. Further, in the case of Shambu Nath Goyal

vs. Bank of Baroda, Jullundur [(1978) 1 LLJ 484],

referring to the language of Section 10(1), the Court

pointed out that the power conferred on the

Government by its provision is to refer the dispute can

exercise only when there is an existing or apprehended

industrial dispute. Implicit is the power of making the

reference is "the existence of the satisfaction" that what

- 22 -

is referred to is an industrial dispute. While making a

reference under Section 10(1), the "appropriate

government" is doing an administrative act and the fact

that it has to form an opinion as to the factual existence

of an industrial dispute as a preliminary step to the

discharge of its function does not make it any less

administrative in character. Thus, there is a considered

body of judicial opinion that while exercising power to or

of making a reference under Section 10(1), the

appropriate government performs an administrative act

and not judicial or quasi-judicial act. 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 also be satisfied that a

person whose dispute is being referred for adjudication

- 23 -

is a 'workman'. If the dispute is not between an

employer and his workman, it is not an 'industrial

dispute' and the Government can justifiably refuse to

refer the dispute. In the present case, 43 workmen of

respondent No.3 were removed from the Union from the

year 2017 and respondent No.3 had lost its

representative capacity to espouse the cause of his

workmen as they are no longer employees of the

petitioner - Company. Section 2(k) of the ID Act, 1947

defines "industrial dispute". As per the definition

industrial dispute is only between the employers and

employees and since none of the workmen of

respondent No.3 - Union were working with the

petitioner - Company at the time of submitting his

demands on 10.01.2019, the act of respondent No.3 is

that 43 workmen of Mach Aero Components Workers

Union are no longer in service of the petitioner -

Company. Accordingly, respondent No.3 - Union had

- 24 -

lost its representative capacity to espouse the cause of

its members. From the material placed before the

Court, the Government was not justified in making a

reference to which there is no industrial dispute or an

apprehended industrial dispute. The petitioner has

made out a ground to show that what was referred was

not an industrial dispute and that the Tribunal had no

jurisdiction to entertain the reference.

18. The condition precedent to the formation of

such opinion by the Government is that there should be

an existing or apprehended industrial dispute is

imperative and the recitals of existence or apprehension

of industrial dispute cannot preclude the judicial review

from going behind those recitals in determining whether,

in fact, there was 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

- 25 -

and it was expedited to make reference. In light of this,

an order of reference is open under judicial review, if it

is shown that the appropriate Government had no

material before it or it has not applied to the material

before it or has not taken into consideration certain vital

facts which ought to have taken into consideration as

held in the case of M/s. India Tourism Development

Corporation, New Delhi vs. Delhi Administration,

Delhi and others [1982 (2) SLR 548]. The Apex

Court in the decision of Nedungadi Bank Ltd., has held

at para Nos.6, 7 and 8 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

- 26 -

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. In fact it could be said that there was no dispute pending at the time When the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent.

7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were

- 27 -

in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. 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 as 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. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.

8. It was submitted by the respondent that once a reference has been made under

- 28 -

Section 10 of the Act a Labour Court has to decide the same and High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its powers under Article 226 of the Constitution to consider the question of very jurisdiction of the Labour Court. In National Engg. Industries Ltd. v. State of Rajasthan, this Court observed: (SCC p. 393, para 24)

"24. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject-matter of 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

- 29 -

Industrial Tribunal (sic dispute) 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 the appropriate Government lacks power to make any reference."

19. Similarly, in the case of Oshiar Prasad

stated supra at para No.25, the Apex Court has held

that, as per the terms of the contract of employment or

by its termination by the employer, then in such event,

the relationship of the employee and the employer

comes to an end and they no longer subsist except for

the limited purpose to examine the legality of the

termination and at para Nos.18, 21, 23, 24 and 25 it is

held as under:

"18. One of the questions which fell for consideration by this Court in Delhi Cloth and General Mills Co. Ltd. v. Workmen was that what are the powers of the appropriate Government while making a reference and the scope and

- 30 -

jurisdiction of the Industrial Tribunal under Section 10 of the Act.

x x x

21. The abovesaid principle of law has been consistently reiterated in Firestone Tyre & Rubber Co. of India (P) Ltd. v. Workmen, National Engg. Industries Ltd. v. State of Rajasthan, Mukand Ltd. v. Staff & Officers' Assn. and State Bank of Bikaner & Jaipur v. Om Prakash Sharma.

x x x

23. Coming now to the facts of this case, it is an admitted case that the services of the appellants and those at whose instance the reference was made were terminated long back prior to making of the reference. These workers were, therefore, not in the services of either Contractor or/and BCCL on the date of making the reference in question. Therefore, there was no industrial dispute that "existed" or "apprehended" in relation to the appellants' absorption in the services of BCCL on the date of making the reference.

- 31 -

24. Indeed a dispute regarding the appellants' absorption was capable of being referred to in reference for adjudication, had the appellants been in the services of the Contractor or/and BCCL. But as said above, since the appellants' services were discontinued or/and retrenched (whether rightly or wrongly) long back, the question of their absorption or regularization in the services of BCCL, as claimed by them, did not arise and nor could this issue have been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularize the appellants so long as they were not in the employment.

25. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except

- 32 -

for the limited purpose to examine the legality and correctness of its termination."

20. The existence of industrial dispute as defined

under the Act or such a dispute must be apprehended

before the Government decides for adjudication is

clearly as mentioned under Section 10(1) of the ID Act

and thus, there must be a real exercise of discretion i.e.,

the authority must be exercised honestly. The discretion

of the Government to make an order of reference is

depending on the satisfaction of these requirements and

no jurisdiction outside the Section which empowers

making a reference can be exercised. The judgment

relied by the respondent in the case of Madura Coats

was a matter where the first reference was made, there

was valid settlement between the parties. Later on, the

Union, after terminating the valid settlement, raised a

dispute and stated that the dispute has not resulted in

any award yet and as such, the Co-ordinate Bench of

- 33 -

this Court held that the charter of demands referred by

the Government was just and proper. The other

judgment relied by the learned counsel for the

respondent in the review petition is insofar as the matter

between the petitioner and the respondent herein,

wherein an application under Order XXVI Rule 6 read

with Section 11 of the Industrial Dispute Act was sought

to be challenged in the said writ petition and the writ

petition was disposed of in the absence of the

respondent herein and this Court while allowing the said

review petition has passed the order. The said

judgment relied by the respondent is not applicable to

the present facts and circumstances of the case. In the

absence of any ground made out by the respondent

that, there was an industrial dispute between the

employer and the employee, the State Government,

without taking into consideration and without application

of mind to the material before it, was not justified in

- 34 -

referring the matter and accordingly, the points framed

for consideration are answered in favour of the

petitioner.

21. For the foregoing reasons, this Court pass the

following:

ORDER

(i) Writ petition is hereby allowed.

(ii) The reference dated 08.09.2020 in LD-

IDM/369/2019-LD.DO.5.L.S. issued by the

Government of Karnataka, Labour

Department, Bangalore (Annexure - A) is

hereby set aside.

SD/-

JUDGE

S*