Madhya Pradesh High Court
Abhishek Kumar Singh vs Union Of India on 12 August, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 28326 of 2022
ABHISHEK KUMAR SINGH
Versus
UNION OF INDIA AND OTHERS
Appearance:
Shri Abhinav Sunil Kherdikar-Advocate for the petitioner.
Shri Piyush Bhatnagar-Panel Lawyer for UOI.
Shri Divyanshu Tiwari- Advocate for the respondent No. 2.
ORDER
(Reserved on : 11/07/2025)
(Pronounced on : 12/08/2025)
By way of the present petition, challenge is made to order Annexure
P/9 dated 31.08.2022 whereby the appropriate Government has refused to
refer the dispute of the petitioner for adjudication to Labour Court and
refusal has been put to challenge before this Court.
2. Learned counsel for the petitioner has argued that the petitioner was
working in respondent No. 2 Company Mast Engineering as per terms of
contract which was valid from 02.01.2017 till 31.12.2017. It was extended
from time to time thereafter. However, abruptly the letter dated 13.12.2021
was issued by the respondents vide Annexure P/5 whereby services of the
petitioner were put to end w.e.f. 31.12.2031.
3. The petitioner initiated conciliation proceedings before the Assistant
Labour Commissioner (Central) Jabalpur for redressal of his grievance with
regard to discontinuation of services and the ALC (Central) issued notices to
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the respondent No. 2 who stated in reply that the petitioner was engaged in
supervisory role and falls out of the purview of workman as defined in
Section 2(s) of the Industrial Disputes Act. The conciliation proceedings
failed and the failure report was forwarded to Deputy Labour Commissioner
(Central) Jabalpur vide letter dated 22.02.2022 (Annexure P/8).
4. Thereafter the Appropriate Government i.e. the Ministry of Labour
and Empowerment, New Delhi issued impugned letter Annexure P/9 dated
31.08.2022 thereby refusing to refer the dispute to the Labour Court.
5. Learned counsel for the petitioner has argued that the refusal to refer
the dispute is on two grounds. First ground is that the petitioner was on fixed
term employment till 31.12.2021 and it is the case of non-renewal of
contract. The second ground cited is that the respondent is not covered under
the definition of workman as per Section 2(s) of the ID Act 1947 and
therefore, the appropriate government does not perceive existence of the
Industrial Dispute and therefore, declines adjudication by the Tribunal.
Learned counsel for the petitioner argued that the appropriate government
while taking the decision in terms of Section 10 of the ID Act read with
Section 12(5) thereof, cannot adjudicate the issues which require evidence.
The appropriate Government has therefore, overreached its jurisdiction by
acting as adjudicatory authority while its function at this stage was only to
refer if a dispute existed. The appropriate government was only required to
seek whether the Industrial dispute exists or is apprehended. It could not
have even prima facie touched the merits of the disputes when it was
deciding the question as to whether its power to make a reference should be
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exercised or not.
6. Per contra, the petition is vehemently opposed by learned counsel for
the respondents stating that the order of the appropriate government is fully
valid and justified and that petitioner does not fall in the definition of the
workman under Section 2(s) of the I.D. Act. It is contended that the writ
petition against the respondent No. 2 is not maintainable and that the
petitioner was in the supervisory position, therefore, nothing wrong has been
done by the respondent No.2. It is further contended that the respondent No.
2 is a leading private sector employer in India which there are as many as
3.84 lacs employees and offers host of services to help organizations manage
their non-core activities in various areas. Therefore, there is no public law
element in the matter of termination of services of the petitioner.
7. Heard.
8. So far as contention raised by the respondent No. 2 regarding it not
being instrumentality of the State under Article 12 of the Constitution and
non-maintainability of writ petition is concerned, in the present case, the
aforesaid submission is utterly misconceived for the reason that in the
present case the petitioner is not challenging his termination of services at the
hands of the respondent No. 2 in the writ petition. The petitioner is
challenging the order of the appropriate government where the appropriate
Government has refused to refer the dispute for adjudication to Labour Court
and the order of appropriate government is under challenge which can always
be done under Article 226 of the Constitution of India and therefore, once no
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relief in the matter of termination/dismissal is sought in this petition, but
order of appropriate government in refusing reference is challenged,
therefore, the objections as to maintainability of the writ petition and the
respondent No. 2 being instrumentality of the State under Article 12 of
Constitution are utterly misconceived and in fact are nothing but vexatious
and malicious pleadings only intended to mislead the court by making such
pleadings which are not at all relevant for the purpose of adjudication of
present dispute.
9. So far as the question of reference of the dispute to the Labour Court /
Labour Tribunal is concerned, as per Section 2-A of I.D. Act, it has been
declared that the dismissal of individual workman is deemed to be a
Industrial Dispute whether it be discharge, dismissal, retrenchment or any
other manner and or any dispute or difference between workman and
employer connected with or arising out of such discharged-dismissal,
retrenchment and termination shall be deemed to be an industrial dispute.
10. The reference is made by appropriate government in terms of Section
10(1) of ID Act and read with Section 12(5) thereof. The only test or only
jurisdiction or discretion vested in the appropriate Government is to arrive at
opinion whether any industrial dispute is exists or is apprehended which is
the language under Section 10(1) so also the language of Section 12 (5) I.D.
Act.
11. The term "Industrial dispute" itself is defined in Section 2 (k) of I.D.
Act 1947 to mean any dispute or difference between the employer and
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employers or between employers and workman or between workman and
workman which is connected with the employment or non-employment or in
term of employment or with the conditions of Labour or any person.
12. The term "workman" is defined under Section 2(s) as per detailed
definition as contained in that provision of the I.D. Act. The relevant
provision of Section 2-A and 2(k) and 2(s) of Industrial Disputes Act are as
under:-
2A. Dismissal etc., of an individual workman to be deemed to
be an industrial dispute.- Where any employer discharges, dismisses,
retrenches or otherwise terminates the services of an individual
workman, any dispute or difference between that workman and his
employer connected with, or arising out of, such discharge, dismissal,
retrenchment or termination shall be deemed to be an industrial dispute
notwithstanding that no other workman nor any union of workmen is a
party to the dispute.]
(s) "workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or reward,
whether the terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an industrial
dispute, includes any such person who has been dismissed, discharged
or retrenched in connection with, or as a consequence of, that dispute,
or whose dismissal, discharge or retrenchment has led to that dispute,
but does not include any such person- (i) who is subject to the Air
Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or
the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police
service or as an officer or other employee of a prison, or (iii) who is
employed mainly in a managerial or administrative capacity, or (iv)
who, being employed in a supervisory capacity, draws wages
exceeding one thousand six hundred rupees per mensem or exercises,
either by the nature of the duties attached to the office or by reason of
the powers vested in him, functions mainly of a managerial nature.]
(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;
13. It has been held by the Hon'ble Apex Court in the case of M.P.
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Irrigation Karmchari Sangh Vs. Satte of M.P. & Ors. 1985(2)SCC 103 that
the appropriate government is having a very limited jurisdiction to examine
patent frivolousness of the demand and determine whether the dispute exists
or apprehended and then refer it to for adjudication in merits. The two
functions of Reference and Adjudication are separate and the State
Government cannot make a prima facie examination of the merits of the
question involved in the case. It is not an adjudicator of the dispute and can
only examine patent frivolousness of the demand or it being clearly belated.
The Hon'ble Supreme Court has held as under:-
5. We have considered the rival contentions raised before us. The High Court
apparently has relied upon the following passage in Bombay Union of
Journalists v. State of Bombay [AIR 1964 SC 1617 : (1964) 6 SCR 22 : (1964) 1
LLJ 351 : (1964-65) 26 FJR 32] :
"But it would not be possible to accept the plea that the appropriate
Government is precluded from considering even prima facie the merits of the
dispute when it decides the question as to whether its power to make a reference
should be exercised under Section 10(1) read with Section 12(5), or not. If the
claim made is patently frivolous, or is clearly belated, the appropriate
Government may refuse to make a reference. Likewise, if the impact of the
claim on the general relations between the employer and the employees in the
region is likely to be adverse, the appropriate Government may take that into
account in deciding whether a reference should be made or not."
We find that the approach made by the High Court was wrong and the reliance on
the above passage on the facts of this case, is misplaced and unsupportable. This
Court had made it clear in the same judgment in the sentence preceding the passage
quoted above that it was the province of the Industrial Tribunal to decide the
disputed questions of fact.
"Similarly, on disputed questions of fact, the appropriate Government
cannot purport to reach final conclusions, for that again would be the province
of the Industrial Tribunal."
Therefore, while conceding a very limited jurisdiction to the State Government to
examine patent frivolousness of the demands, it is to be understood as a rule, that
adjudication of demands made by workmen should be left to the Tribunal to decide.
Section 10 permits appropriate Government to determine whether dispute "exists or
is apprehended" and then refer it for adjudication on merits. The demarcated
functions are (1) reference, (2) adjudication. When a reference is rejected on the
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specious plea that the Government cannot bear the additional burden, it constitutes
adjudication and thereby usurpation of the power of a quasi-judicial Tribunal by an
administrative authority, namely, the appropriate Government. In our opinion, the
reasons given by the State Government to decline reference are beyond the powers
of the Government under the relevant sections of the Industrial Disputes Act. What
the State Government has done in this case is not a prima facie examination of the
merits of the question involved. To say that granting of dearness allowance equal to
that of the employees of the Central Government would cost additional financial
burden on the Government is to make a unilateral decision without necessary
evidence and without giving an opportunity to the workmen to rebut this
conclusion. This virtually amounts to a final adjudication of the demand itself. The
demand can never be characterised as either perverse or frivolous. The conclusion
so arrived at robs the employees of an opportunity to place evidence before the
Tribunal and to substantiate the reasonableness of the demand.
14. Similarly in the case of Ram Avtar Sharma Vs. State of Haryana
1985(3) SCC 189, it has been held that the writ petition is maintainable
against the refusal of the appropriate government to refer the dispute to the
Labour Court. The Hon'ble Supreme Court has held as under:-
7. 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 an industrial dispute
exists or is apprehended. This may permit the appropriate Government to
determine prima facie whether an industrial dispute exists or the claim is
frivolous or bogus or put forth for extraneous and irrelevant reasons not for
justice or industrial peace and harmony. Every administrative determination
must be based on grounds relevant and germane to the exercise of power. If
the administrative determination is based on the irrelevant, extraneous or
grounds not germane to the exercise of power it is liable to be questioned in
exercise of the power of judicial review. In State of Bombay v.K.P.
Krishnan [AIR 1960 SC 1223 : (1961) 1 SCR 227, 243 : (1960) 2 LLJ 592 :
19 FJR 61] it was held that a writ of mandamus would lie against the
Government if the order passed by it under Section 10(1) is based or induced
by reasons as given by the Government are extraneous, irrelevant and not
germane to the determination. In such a situation the Court would be justified
in issuing a writ of mandamus even in respect of an administrative order.
Maybe, the Court may not issue writ of mandamus, directing the Government
to make a reference but the Court can after examining the reasons given by the
appropriate Government for refusing to make a reference come to a conclusion
that they are irrelevant, extraneous or not germane to the determination and
then can direct the Government to reconsider the matter. This legal position
appears to be beyond the pale of controversy.
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15. In the same judgment it has further been held that power of the
government to make reference under Section 10(1) of the I.D. Act is an
administrative function, and not quasi judicial function. The Hon'ble
Supreme court has held as under:-
6. The view that while exercising power under Section 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 Section 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 lis 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 shows that
one who raised the dispute has established merits of the dispute. The inference
necessarily follows from the assumption that the function performed under
Section 10(1) is a quasi-judicial function. Now by exercising power under
Section 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 Section 10(1) the function performed by the appropriate
Government is an administrative function and not a judicial or quasi-judicial
function is beyond the pale of controversy.
16. In the later case of Sharad Kumar Vs. Government of NCT Delhi ,
(2002) 4 SCC 490 Hon'ble Supreme Court has held as under :-
"31. Testing the case in hand on the touchstone of the principles laid down in the
decided cases, we have no hesitation to hold that the High Court was clearly in
error in confirming the order of rejection of reference passed by the State
Government merely taking note of the designation of the post held by the
respondent i.e. Area Sales Executive. As noted earlier determination of this
question depends on the types of duties assigned to or discharged by the
employee and not merely on the designation of the post held by him. We do not
find that the State Government or even the High Court has made any attempt to
go into the different types of duties discharged by the appellant with a view to
ascertain whether he came within the meaning of Section 2(s) of the Act. The
State Government, as noted earlier, merely considered the designation of the post
held by him, which is extraneous to the matters relevant for the purpose. From
the appointment order dated 21-4-1983/22-4-1983 in which are enumerated
certain duties which the appellant may be required to discharge it cannot be held
therefrom that he did not come within the first portion of Section 2(s) of the Act.
We are of the view that determination of the question requires examination of
factual matters for which materials including oral evidence will have to be
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considered. In such a matter the State Government could not arrogate on to itself
the power to adjudicate on the question and hold that the respondent was not a
workman within the meaning of Section 2(s) of the Act, thereby terminating the
proceedings prematurely. Such a matter should be decided by the Industrial
Tribunal or the Labour Court on the basis of the materials to be placed before it
by the parties. Thus the rejection order passed by the State Government is clearly
erroneous and the order passed by the High Court maintaining the same is
unsustainable."
17. The appropriate government in the present case while passing the
impugned order Annexure P/9 has held that the petitioner was working on
fixed term employment and was working on supervisory role. In the
considered opinion of this Court whether the employment was on fixed term
and despite being for fixed term for one year in the year 2017 and having
been extended for as many as more than four years, it would still remain a
fixed term employment so as to cover the employee under Section 2(oo) (bb)
of the I.D. Act 1947, was something which required adjudication by
adducing evidence. Whether continuing fixed term employment year by year
periodically was mere camouflage or the employee had to be considered to
be continuous and regular employee, were issues to be decided by way of
evidence by the rival parties and the appropriate government was not
equipped to decide this issue which should have been best left to Industrial
Tribunal. If it had been some fact that could be discerned by the pleadings of
the petitioner only without need for any evidence, then the appropriate
Government might have been justified in its refusal.
18. So far as the other issue that the petitioner was working as engineer
and was in supervisory role is concerned, it is settled in law that whether a
particular role is supervisory or not, is always a question of fact and has to be
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determined by way of evidence that what was the exact role of the employee
in the organization and mere nomenclature is not a conclusive test to
determine that what is the exact role of the employee. Any employer can give
any exotic nomenclature to any employee or position and such exotic
nomenclature given to the position or employment can never be conclusive
test to determine whether the employment is in supervisory capacity or not
so as to take a workman out of purview of Section 2(s) of the I.D. Act, 1947,
unless the petitioner himself had made any admissions before the conciliation
officer or the appropriate Government. This Court need not burden this
judgment with authorities on the issue that whether the petitioner is a
workman under Section 2 (s) or not, because it is the question that is to be
adjudicated with evidence by establishing the facts which are required to
establish whether a workman was in fact in supervisory role or not.
19. It cannot be lost sight by this Court that refusal of the appropriate
Government to refer such dispute can only lead to heart-burn and discontent
among the workmen because by refusal to make a reference, appropriate
government is preventing the workman to approach the court of law.
20. Preventing the aggrieved person to the court of law is against the basic
legal structure on which the legal system of this Country works. Therefore,
refusal to make a reference can only be made in very exceptional and rarest
of rare cases because right to seek legal remedies is one of the rights given to
the aggrieved person. A person who is aggrieved of any action by any party
has a right to take recourse to course of law and by refusing the reference the
government prevents such recourse and prevents a person from approaching
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the court of law, which cannot be done lightly.
21. It is for this reason that there has been amendment in Section 2-A of
Industrial Disputes Act in the year 2010 by incorporating that on expiry of
45 days from approaching the Conciliation Officer, the workman in the case
of dismissal can directly approach the Labour court or Tribunal. However, in
the present case by the refusal of the appropriate government to refer the
dispute, it has closed the doors for the petitioner to approach the Labour
court by even closing the window open to the petitioner under Section 2-(A)
(2) of the I.D. Act.
22. So far as the question that whether upon reference the Labour court
cannot decide on the question whether the petitioner is a workman or
whether he was a fixed term employee or not, are the questions which always
can be adjudicated by the Labour Court even if the appropriate government
makes the reference because the jurisdiction of the appropriate government is
merely administrative and not judicial or quasi judicial. The law on this point
is very well settled that the Labour Court will have all the powers to decide
all the incidental questions. The said issue has been decided in detail by a
coordinate Bench of this Court in the case of Army Public School Vs.
Ramdhan Sharma 2014 SCC OnLine M.P. 6935 wherein this Court has held
as under:-
12. In AIR 1963 SC 569, Management of Express Newspapers (Private) Ltd.,
Madras v. Workers, the Apex Court considered the scope of section 10(4). It opined
as under:-
"In several cases where industrial disputes are referred for industrial
adjudication in respect of certain persons named as workmen, the employers
raise the contention that the specified persons are not their workmen and merely
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because the said persons are described as workmen in the reference, the
employer is not precluded from disputing their status and the Tribunal has
jurisdiction to try such an incidental dispute."
13. The meaning of word 'incidental' was considered by five Judges Bench of
Supreme Court in AIR 1961 SC 284, State of Orissa v. Chakobhai Ghelabhai
and Co. The Apex Court opined that we are unable to agree with the High
Court that the word 'incidental' has reference to a matter of casual nature only.
A Division Bench of this Court in 1991 (Volume 63) Indian Factories and
Labour Reports 222, Rajya Gramin Vikash Sansthan Adharta v. State of
M.P. opined that in an industrial dispute referred to Labour Court, the question
may arise whether Labour Court has jurisdiction to determine on the facts
placed before it and whether an industrial dispute has really arisen within the
meaning of section 2(k) of the Act or the concerned person is 'workman' as
defined under section 2(s) or a particular establishment/undertaking is an
"industry" within the meaning of section 2(j) of the Act. Such question,
therefore, can validly be examined and adjudicated in order of the reference
itself as matters incidental to the points in dispute specified in the order of
reference. This Court opined that such industrial matters as aforesaid have to be
determined necessarily as collateral or jurisdictional issues, because the
jurisdiction of Labour Court depends upon such determination which go to the
root of the case.
14. In 1989 Supp (1) SCC 347, Shroff and Co. v. Municipal Corpn. of Greater
Bombay, the Apex Court followed the judgment in State of Orissa (supra) and
opined that the expression "incidental" means necessary in certain contexts
which does not mean a matter of casual nature only. According to Websters
New World Dictionary, the word "incidental" means happening or likely to
happen as a result of or in connection with something more important, being an
incident, casual, hence secondary or minor, but usually associated". In the
words of Mitter, J., "something incidental to a dispute must, therefore, means
something happening as a result of or in connection with the dispute or
associated with dispute. In various industrial disputes, question arose whether
the employee is 'workmen' as defined under section 2(s) of the I.D. Act. The
argument of workman/employee before the Labour Court was that this aspect
cannot be gone into by the Labour Court. If Labour Court comes to the
conclusion that employee is not 'workman' under the I.D. Act, the dispute no
more survives before Labour Court. In many cases, the question arose whether
the employer falls within the ambit of 'industry' as defined under section 2(j) of
the I.D. Act. Similar argument is advanced by the workman that if it is held that
the employer is not an "industry" within the meaning of I.D. Act, the reference
will fail and this aspect cannot be gone into by the Labour Court.
In Management of Express Newspapers (supra), the Apex Court made it clear
that the employer is not precluded from disputing the status of employee as
'workman' and Industrial Tribunal has jurisdiction to try such industrial dispute
being an incidental question/matter.
15. In the opinion of this Court, the Labour Court can also examine as to which
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Government is the 'Appropriate Government' in relation to a particular
employer. This may be a mixed question of fact and law. To determine this, the
Labour Court may be required to examine the factual aspects like element of
financial or administrative control of a particular Government on the employer,
nature, constitution and activity of the organization, source of its creation
(depending on statute etc.). In addition, Labour Court may be required to
examine whether such 'industry' is carried on by or under the authority of
Central Government. The Labour Court is well equipped to record the evidence
and decide these aspects on merits. In the opinion of this Court, when Labour
Court decides that employee is not a 'workman' or establishment is not an
'industry' under the I.D. Act, the dispute is not decided on merits. As discussed
above, in Management of Express Newspapers (supra), the Apex Court held
that whether or not the employee is a workman is an incidental matter which
can be decided by the Labour Court. I do not see any reason why Labour Court
cannot decide as to which Government is appropriate Government. In my view
whether or not a particular Government is appropriate Government is also an
incidental matter which can be decided by the Labour Court. I find support in
my view from the book the Law of Industrial Disputes (5th Edition Volume 1)
by Shri O.P. Malhotra. The author opined that "if the Government making the
reference is not the appropriate Government within the meaning of section 2(a)
of the Act, the reference will not be a valid reference. But in cases where certain
disputed questions of fact are involved, the proper course would be to raise a
preliminary objection before the Tribunal."
16. The Delhi High Court in Taj Services Limited v. Delhi
Administration speaking through B.N. Kripal, J. (as his Lordship then was)
directed that if an objection is raised by the employer before the Tribunal that
the reference has not been made by the appropriate Government, then the
respondent will not contend, and nor can it in law contend, that the Industrial
Tribunal cannot decide that question. The said question, namely, whether the
reference has been made by the appropriate government or not can and will be
decided by the Industrial Tribunal. 1989 (Volume 58) Indian Factories and
Labour Reports 911. Apart from this, this is settled in law that making of
reference is purely an administrative act. See five Judges judgment reported
in (1952) 2 SCC 606 : AIR 1953 SC 53, State of Madras v. C.P. Sarathy. Thus,
whether or not objection is raised by the employer during the conciliation
proceedings before the appropriate Government, will not make much
difference. On the basis of above analysis, in my view, the rejection of
amendment application on the ground that the aspect regarding which
Government is appropriate government cannot be gone into is incorrect and
liable to be interfered with."
23. Therefore, the questions i.e. whether the petitioner was in supervisory
capacity, whether he was workman under Section 2(s) of the I.D. Act or
whether he was a fixed term employee or a continuous employee etc. are all
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incidental issues to be decided by the appropriate Labour Court and could
not have been decided by the appropriate government under Section 10.
Therefore, it is clearly a case of the appropriate government overreaching its
powers and the jurisdiction of the Labour court which is adjudicatory in
nature.
24. Consequently, the respondents No. 1 is directed to make reference to
the Labour Court/Tribunal within a period of one month from the date of
production of copy of this order. The objections of the employer in terms of
the petitioner being workman or he being fixed term employee, are kept
reserved to be taken before the Labour Court.
25. The petition is hereby allowed in the above terms.
(VIVEK JAIN)
JUDGE
MISHRA
