Madras High Court
P. Isaac Samraj vs Ministry Of Labour & Employment ... on 1 June, 2023
W.A. No. 1123 of 2023
IN THE HiGH COURT OF JUDICATURE AT MADRAS
DATED: 01.06.2023
CORAM
THE HON'BLE MR.JUSTICE S. VAIDYANATHAN
AND
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.A. No. 1123 of 2023
P. Isaac Samraj ..Appellant
Vs.
1. Ministry of Labour & Employment rep.
by its Under Secretary,
Govt. of India,
Shram Sakthi Bhawan, Rafi Marg,
New Delhi – 110 001.
2. The Managing Director & CEO,
Exide Life Insurance,
rd
3 Floor, JP Techno Park,
No.3/1, Millers road,
Bangalore, Karnataka – 560 001.
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W.A. No. 1123 of 2023
3. The Executive Vice – President,
Exide Life Insurance,
Prince Kushal Tower, Anna Salai,
Chennai -2. ..Respondents
For Appellant :: Mr.S. Arunachalam
For Respondents :: Mr.T.L. Thirumalaisamy
for R1
JUDGMENT
(Delivered by S. Vaidyanathan,J.)
The present appeal has been preferred against the order dated
11.01.2018 passed by the learned Single Judge dismissing the writ petition
thereby confirming the order of the 1st respondent/Government in declining
to refer the dispute with regard to the discharge of the appellant with effect
from 01.03.2017 to the Central Government Industrial Tribunal cum Labour
Court, Chennai for adjudication.
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W.A. No. 1123 of 2023
2. The appellant/writ petitioner, questioning his discharge
from service with effect from 01.03.2017, raised an industrial dispute before
the Conciliation Officer and the Conciliation Officer submitted a failure
report to the Government. On receipt of such report, the Central
Government, after considering the same, may either refer the dispute for
adjudication or refuse to do so, by exercising its powers under Section 10 of
the Industrial Disputes Act, 1947 ('I.D. Act' in short). A reference is not
required for a dispute raised under Section 2A of the I.D. Act, 1947. In the
present case, taking note of the fact that the appellant/writ petitioner was
appointed as an Assistant Sales Manager and was drawing a salary of
Rs.34,805/-, the Government came to the conclusion that the appellant/writ
petitioner was not a 'workman' within the meaning of Section 2(s) of
I.D.Act, 1947 and passed an order dated 25.08.2017 declining to refer the
dispute for adjudication. Challenging the said order, the writ petition came
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W.A. No. 1123 of 2023
to be filed, which was also dismissed by the order under challenge. Hence,
the present writ appeal.
3. Heard the learned counsel for the appellant and the
st
learned counsel for the 1 respondent.
4. The Government cannot decide the dispute between the
parties and it is only the industrial adjudicator, who, on a reference made,
can render a finding taking note of the evidence let in, both oral and
documentary. The designation or the salary drawn by an employee cannot
decide the factum whether he is a workman or not. It is ultimately the nature
of work that determines whether an employee is a workman or not. The
Hon'ble Apex Court , in the decision rendered in Ananda Bazar Patrika (P)
Ltd. V. The Workmen reported in 1969 2 LLJ 670 SC has categorically
held as to how an employee comes within the purview of Section 2(s) of
I.D.Act, 1947. There are a catena of decisions on this aspect. However,
subsequently, the Apex Court in its decision in M.P. Irrigation Karamchari
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W.A. No. 1123 of 2023
Sangh V. State of M.P. and Another reported in 1985-1-LLJ 519 (SC) has
held that the Government cannot decide the dispute between the parties.
5. In the present case, the Government has refused to refer
the dispute for adjudication. Though we can remand the matter to the
Government for fresh consideration, taking note of the decisions rendered by
the Hon'ble Supreme Court in Sankari Cement Alai Thozhilalar Munnetra
Sanga V. Government of Tamil Nadu ((1983) 1 SCC 304) V. Veerarajan
V. Government of Tamil Nadu ((1987) 1 SCC 479) and Telco Convoy
Drivers Mazdoor Sangh V. State of Bihar ((1989) 3 SCC 271), we are not
inclined to do so in this case, as reference by the Government is not required
in cases falling under Section 2A of the Industrial Disputes Act, 1947.
Section 2A of the Industrial Disputes Act, 1947 was amended and certain
provisions have come into effect w.e.f. 15.09.2010. For better
understanding, Section 2A is scanned below:
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W.A. No. 1123 of 2023
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6. After amendment to Section 2A, more so insertion of
certain provisions to Section 2A, which has come into effect w.e.f.
15.09.2010, based on the conciliation failure report, the employee is entitled
to approach the Labour Court or the Tribunal in cases falling under Section
2A of the Act. Hence, the employee is directed to file a Claim Statement
before the Industrial Tribunal or the Labour Court and the said Tribunal
shall entertain the industrial dispute and decide the same in accordance with
law. The Industrial Tribunal which is going to hear the matter shall take into
account Rule 10B-(8) of the Industrial Disputes (Central) Rules, 1957 and
proceed with the matter without adjourning the same beyond seven working
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W.A. No. 1123 of 2023
days at any given point of time and pass an Award as expeditiously as
possible.
The writ appeal is disposed of accordingly. No costs.
(S.V.N.J.) (K.R.S.J.)
nv 01.06.2023
S. VAIDYANATHAN,J.
AND
K. RAJASEKAR,J.
nv
To
1. Under Secretary,
Ministry of Labour & Employment,
Govt. of India,
Shram Sakthi Bhawan, Rafi Marg,
New Delhi – 110 001.
W.A. No. 1123 of 2023
2. The Managing Director & CEO,
Exide Life Insurance,
3rd Floor, JP Techno Park,
No.3/1, Millers road,
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W.A. No. 1123 of 2023
Bangalore, Karnataka – 560 001.
3. The Executive Vice – President,
Exide Life Insurance,
Prince Kushal Tower, Anna Salai,
Chennai -2.
01.06.2023
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