Madras High Court

Workmen Of Aeroto Boldrocchi ... vs The Government Of Tamilnadu on 25 July, 2023

                                                                                     W.P.No.18856 of 2017

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED: 25.07.2023

                                                             CORAM:

                                   THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

                                                      W.P.No.18856 of 2017

                     Workmen of Aeroto Boldrocchi India Pvt., Ltd.,
                     Through United Labour Federation,
                     Regn.No.2657 / CNI
                     re[. By its Secretary,
                     149, Thambu Chetty Street,
                     C.J.Complex, Chennai – 600 001             ... Petitioner
                                                       Vs.
                     1. The Government of Tamilnadu
                        rep. By its secretary,
                        Department of Labour and Employment,
                        Chennai – 600 009
                     2. The Assistant Commissioner of Labour
                          (Conciliation – 1)
                         Sriperumbudur, Seriperumudhur Taluk,
                         Kancheepuram

                     3. The Management of Aeroto Boldrocchi
                           India Pvt., Ltd.,
                        Irungattukottai,
                        Sriperumbudur Taluk,
                        Tamilnadu – 602 105                                   ... Respondents


                                  Writ Petition filed under Article 226 of the Constitution of India for

                     issuance of Writ of Certiorarified Mandamus calling for the records of the 1st

                     respondent in connection with G.O.(D) No.49 dated 31.01.2017 and quash

                     the same and direct the 1st respondent to refer the dispute that has been

                     declined to be referred in aforesaid Government order and issue such
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                                                                                       W.P.No.18856 of 2017

                     further or other orders.



                                        For Petitioner       : Mr. V.Prakash
                                                               Senior Counsel for
                                                               Mr.P.Ganeshram

                                        For Respondent       : Mr.R.P.Murugaraja for R1 and R2
                                                               Government Advocate
                                                               Mr.M.R.Dharanichandar for R3

                                                            ORDER

The present Writ Petition filed under Article 226 of the Constitution of

India for issuance of Writ of Certiorarified Mandamus calling for the records

of the 1st respondent in connection with G.O.(D) No.49 dated 31.01.2017

and quash the same and direct the 1st respondent to refer the dispute that

has been declined to be referred in aforesaid Government order and issue

such further or other orders.

2. The brief facts of the case is as follows:-

The petitioner is the Union and the 3rd respondent is the

management, engaged in the manufacturing the industrial fans and air

pollution control plants supplying it to leading industries, namely, Tata steel,

Larsen & Toubro, JSW, Iffco, SISCOL, NTPC etc., and morethan 100

workers were employed in the 3rd respondent factory. However, only 27

workers are treated as permanent employees and the rest of the workers

are treated as 'trainess' and 'contract labourers'. The 3rd respondent does https://www.mhc.tn.gov.in/judis

W.P.No.18856 of 2017

not have any license for engaging contract employees.

(ii) In these circumstances, the petitioner union raised an industrial

dispute against the 3rd respondent on 15.07.2015 raising two demands, viz.,

(i) To stop engaging contract customer for taking production in welding

department and engage permanent workers in the factory (ii) To

stop taking production using contract labours under the name of Krishna

Contract. The management filed counter on 07.09.2015 making allegations

against petitioner and the petitioner has also filed its reply to the counter on

28.09.2015, since there was no possiblility of amicable settlement,

Conciliation Officer issued conciliation failure report dated 10.06.2016 and

the same was sent to the 1st respondent dated 21.11.2016.

(iii) The 1st respondent declined to refer the two demands on the

ground that the petitioner Union did not give specific dates on which the

permanent workers were denied employment. The 1st respoondent without

application of mind failed to identify the difference between permanent

employees nature of work and contract employees nature of job. The said

reason assigned by the 1st respondent is without application of mind.

Seeking to set aside the said order passed by the 1st respondent, the

petitioner has come up with the present petition.

3. The learned senior counsel for the petitioner would submit that the https://www.mhc.tn.gov.in/judis

W.P.No.18856 of 2017

impugned order is vitiated by non application of mind to the issues involved

and the facts of case and the scope of the power vested in the 1 st

respondent under Section 10 of the Industrial Dispute Act. Further, the

power to refer to an industrial dispute for adjudication is an administrative

power and the Government cannot adjudicate with regard to the dispute in

the industrial dispute raised by the petitioner union.

4. The learned senior counsel for the petitioner also submits that the

1st respondent without application of mind misconstrued the decision of

Hon'ble supreme Court in the SAIL (2001 7 SCC 1) and declined to refer

the industrial dispute for adjudication. The learned senior counsel for the

petitioner, in support of his contention has relied on the Judgment of the

Division Bench of this Court reported in 1987 SCC Online Mad 310 [Shaw

Wallace & Co., Ltd., Vs. State of Tamilnadu and another], thereby sought to

allow the present writ petition.

5. The learned Government Advocate appearing for the respondents

1 and 2 submits that the 1st respondent has assigned valid reasons for

issuance of the Government order and the petitioner has not furnished any

details in respect of loss of employement and the grievances sustained by

its permanent employees in particular with the welding department relating

to their demand. Similarly, the petitioner in support of the 2nd demand, have https://www.mhc.tn.gov.in/judis

W.P.No.18856 of 2017

not produced any satisfactory evidence or proof in support of their demand

warranting for adjudication before the Industrial tribunal, thereby pleaded to

dismiss the petition.

6. Per contra, the learned counsel for the 3rd respondent/

management submits that the company is having registration certificate

issued under the contract labour act as a principal employer to engage the

contractors and contractor was also having license, as per contract labour

act. Further, the contract workers are not involved in the direct production

and they are mainly working only in the stores, housekeeping, security, PT

and MRT and also working as a helpers to the permanent workers.

7. That apart, the learned counsel for the 3rd respondent also submits

that after commencement of petitioner – union, the workers are not giving

production, which was given by them earlier during the year 2012 and raised

various disputes. Also, the dispute was raised by the petitioner union to

abolish the contract labour in certain areas in the respondent company and

the same can be raised only before the Government and they are the final

authority to decide the said dispute under Section 10 of the Contract Labour

Act, 1970.

8. Lastly, the learned counsel for the 3rd respondent submits that https://www.mhc.tn.gov.in/judis

W.P.No.18856 of 2017

there is no jurisdiction to decide the said issue under Section 10(1) of the

Industrial Dispute act to refer the dispute related to the abolishing of

contract in certain areas in the company and relied on the following

Judgments to substantiate the case.

(i) Judgment of the Hon'ble Supreme Court of India reported in

(W.P.(Civil) No.7982 of 1983 [BHEL Workers' Association, Hardwar &

Others and others Vs. Union of India and others.

(ii) Judgment of High Court of Bombay in Civil Application Nos.501

and 522 of 1984 [S.B.Desmukh, Chief Regional Manager, State Bank of

India, Nagpur Vs. The State represented through the Labour Enforcement

Officer & Another.

(iii) Judgment of High Court of Bombay in W.P.Nos.2386/85 [Philips

Workers Union, Thane Vs. State of Maharastra and Another]

(iv) Judgment of High Court of Rajasthan in W.P.No.742/1982

[Thekedar Mazdoor Union Vs. Judge, Industrial Tribunal and Another]

(v) Judgment of High Court of Orissa in O.J.C.No.4460/1992 [Hira

Cement Workers Union Vs. State of Orissa and Others]

9. Heard the learned senior counsel for the petitioner, learned

Government Advocate for the respondents 1 and 2 and the learned counsel

for the 3rd respondent and perused the documents placed on record. https://www.mhc.tn.gov.in/judis

W.P.No.18856 of 2017

10. It is well settled Law that where a power has been given to do a

certain thing in a certain way, the thing must be done in that way or not at

all, and other methods of performance are necessarily forbidden. In view of

the Conract Labour (Regulation and abolition) Act, 1970 provides for

prohibition of employment of contract labour and the mode of such

prohibition is stipulated in Section 10 of the said Act, it would be wholly

incompetent for the same matter to be agitated by way of an industrial

dispute. In the circumstances, the authorities under the Industrial Disputes

Act will have no juridiction to decide the lis. The grievances of Contract

labourer and retrenchment of employees of a contractor can only be

mitigaged by appropriate government in accordance with the provisions of

the Central Act.

11. That apart, both under Section 10 as well as the under Section

10-A of the Industrial Disputes Act, what is referred is an 'Industrial dispute'

and the preconditions for making the reference was also same, only

difference being that under Section 10, only the State Government makes

the reference and under Section 10-A parties to the dispute makes the

reference. If the reference is not entertainable or specifically provided for in

a special statute like the Contract Labour (Regulation and Abolition) Act, https://www.mhc.tn.gov.in/judis

W.P.No.18856 of 2017

then, adjudicator will have no jurisdiction to entertain the same.

12. It is pertinent to point out that in the Judgment rendered by the

Hon'ble Division Bench of this Court reported in 1987 SCC Online

Mad 310 [Shaw Wallace & Co., Ltd., Vs. State of Tamilnadu and

another] among other things at paragraph no.31 and at paragraph no.32 it

is held as follows:-

“31.......We do not also find any distinction between cases falling under Section 2-A of the Act and other cases in so far as the discretion of the Government to make reference is concerned. The only requirement in cases falling outside Section 2-A of the Act is that the Government should form an opinion that an industrial dispute exists or is apprehended. Otherwise, in the matter of exercise of discretion whether to make reference or not, there is no difference whatever.

32. On a final analysis, the following principles emerge :- (1) The Government would normally refer the dispute for adjudication;

(2) The Government may refuse to make reference, if -

(a) the claim is very state;

(b) the claim is opposed to the provisions of the Act;

(c) the claim is inconsistent with any agreement between the parties;

(d) the claim is patently frivolous;

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W.P.No.18856 of 2017

(e) the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse;

(f) the person concerned is not a workman as defined by the Act;

(3) The Government should not act on irrelevant and extraneous considerations;

(4) The Government should act honestly and bona fide; (5) The Government should not embark on adjudication of the dispute; and (6) The Government should not refuse reference on the ground that domestic enquiry was fairly and properly held and punishment awarded was appropriate.”

13. On a perusal of the impugned order it is seen that the 1st

respondent while rejecting the request of the petitioner indicated that though

the petitioner seeks employment to the permanent workers in the welding

section, but failed to provide specific dates on which the permanent workers

at the welding section were denied employment and there was no details

regarding the loss suffered by the workmen.

14. Be that as it may, in the interest of justice, this Court is of the

opinion that the workers as well as the managment shall be given one more

chance to submit their details regarding the demands made before the 1st

respondent within a period of one week from the date of receipt of copy of

this order and in turn, the 1st respondent is directed to consider the plea of https://www.mhc.tn.gov.in/judis

W.P.No.18856 of 2017