Madras High Court
The Management vs The Addl. Chief Secretary To Government on 25 February, 2025
W.P.No. 2435 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 10.2.2025
Pronounced on : 25.2.2025
CORAM:
THE HON’BLE DR. JUSTICE A.D. MARIA CLETE
W.P.No. 2435 of 2021
and
W.M.P.No. 2749 of 2021
The Management,
Pradeep Stainless India Private Limited,
Rep. by its Director – P.Dinesh,
C3, Phase – II, MPEZ SEZ,
Tambaram,
Chennai – 600 045. ... Petitioner
Vs.
1. The Addl. Chief Secretary to Government,
Labour and Employment (A2) Department,
Secretariat, Fort. St.George,
Chennai – 600 009.
2. Chennai Yetrumathi Valaga Uzhiyargal,
Matrum Pothu Thozhilalargal Sangam,
Old No.11, New No.15,
Kannan Street, Kadaperi,
Tambaram,
Chennai – 600 045. ... Respondents
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1/21
W.P.No. 2435 of 2021
Prayer in W.P.No. 2435 of 2021
To issue a Writ of Certiorari, call for the records of the 1st Respondent in
G.O.(D) No. 642 Labour and Employment (A2) Department and quash its
order dated 18.12.2020 and pass such further orders as this Hon’ble Court may
deem fit.
Prayer in W.M.P.No. 2749 of 2021
To grant interim stay of the impugned order of the 1st Respondent in G.O.(D)
No. 642 Labour and Employment (A2) Department dated 18.12.2020 during
the pendency of the writ petition.
Appearance of Parties:
For Petitioner: Mr.S.Ravindran, Sr.Counsel
For M/s. S.Bazeer Ahamed and C.Yamini, Advocates
For R1 : Mr.K.Tippu Sulthan,
Government Advocate
For R2 : Mr.V.Ajay Ghose, Advocate
JUDGMENT
Heard.
2. The writ petition has been filed by the management challenging the
order of the Tamil Nadu Government issued in G.O.D. No. 642, Labour and
Employment Department, dated 18.12.2020. By this order, the State
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Government (represented by the 1st Respondent), in the exercise of its powers
under Section 10(1)(d) of the Industrial Disputes Act, referred the dispute
between the petitioner management and the 2nd Respondent workman to the
Labour Court, Kanchipuram, for adjudication. The Labour Court was requested
to dispose of the industrial dispute within three months from the date of receipt
of the order of reference. However, due to the interim stay obtained by the
management from this Court, more than four years have now elapsed without
any progress in the adjudication of the dispute.
3. In the annexure to the order of reference, the terms of reference were
specified. It was stated that the issue to be adjudicated was whether the claim
of the trade union that 72 workers, whose names were listed in the order, were
subjected to a lockout by the management was valid, and whether their demand
for full wages and reinstatement for the period of the alleged lockout was
justified. The Labour Court was directed to determine the issue and pass
appropriate orders. The writ petition was admitted on 04.02.2021, and on the
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same day, an interim stay on the order of reference was granted in the
miscellaneous petition.
4. Upon notice from the Court, the 1st Respondent entered an
appearance and filed a counter affidavit dated 11.01.2022. The workmen are
represented by counsel.
5. The petitioner’s learned counsel relied on the Division Bench
judgment of the Madras High Court in W.A. No. 3622 of 2022 (2005 (2) CTC 1
– ONGC Case), citing the Supreme Court’s ruling in Ram Avtar Sharma &
Others v. State of Haryana & Another (1985 (II) LLJ 187), to argue that while
judicial review of an administrative order under Section 10(1) of the Industrial
Disputes Act (ID Act) is limited, the writ court is not entirely precluded from
interference when there is a lack of application of mind. The petitioner
contended that the government's reference, issued in 2020, was stale, vague
and meaningless as the alleged lockout dated back to 2008 and that the original
dispute concerned non-employment but was wrongly framed as a lockout issue,
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demonstrating non-application of mind. The respondent countered that the
reference was an administrative order, non-justiciable, and based on relevant
materials, asserting that the workmen, who alleged a lockout, and the
management, which denied it, had conflicting claims that justified the
government’s careful wording of the reference. The respondent further argued
that the dispute arose in 2008, the workmen raised their grievance within ten
days, and any litigation delay was caused by the management, so no laches
could be attributed to them, and the Tribunal could mould appropriate relief.
On the Government side, referring to paragraph 9 of its affidavit, the learned
Counsel maintained that it had sent communications regarding the status of 48
workmen, to which the management failed to respond, demonstrating the
existence of a continuous dispute and validating the reference.
6. Notably, this marks the second round of litigation initiated by the
management, seemingly aimed at obstructing any relief sought by the workmen
under the provisions of the Industrial Disputes Act. In the earlier instance, the
management had filed W.P. No. 3094 of 2010, challenging the conciliation
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proceedings initiated by the Joint Commissioner of Labour. In that petition, the
management sought a writ of prohibition to restrain the Conciliation Officer
from conducting conciliation talks.
7. The said writ petition was dismissed by order dated 18.02.2010, with
the following observations:
“38. The Industrial Disputes Act is the only machinery
provided for the workmen to have their grievance settled either by
conciliation or by adjudication. There is no other third option open
to the workmen. If attempt made by the management to thwart the
proceedings by seeking a writ of prohibition, the very machinery will
be jeopardized and the workmen will lose faith in the machinery
created for the purpose of resolving the grievances of the workmen.
39. It will not be out of place to refer to a recent judgment of
the Supreme Court in Harjinder Singh Vs. Punjab State
Warehousing Corporation, in Civil Appeal No.587 of 2010 (arising
out of SLP(C) No.6966/2009), dated 05.01.2010, wherein
G.S.Singhvi, J. had observed as follows:
"23....It need no emphasis that if a man is deprived of
his livelihood, he is deprived of all his fundamental and
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constitutional rights and for him the goal of social and
economic justice, equality of status and of opportunity, the
freedoms enshrined in the Constitution remain illusory.
Therefore, the approach of the courts must be compatible with
the constitutional philosophy of which the Directive Principles
of State Policy constitute an integral part and justice due to
the workman should not be denied by entertaining the
specious and untenable grounds put forward by the employers
“public or private."
40. A.K.Ganguly, J., in his concurring opinion had observed
as follows:
"46. At this critical juncture the judges' duty,
to my mind, is to uphold the constitutional focus on
social justice without being in any way mislead by
the glitz and glare of globalization."
8. Following the dismissal of the writ petition, the management filed a
writ appeal, W.A. No. 1450 of 2010, before a Division Bench, challenging the
order of the learned Single Judge. When the appeal was taken up for hearing on
05.01.2017, the management chose to withdraw it. In its order dated
05.01.2017, the Division Bench permitted the withdrawal but explicitly
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recorded that no leave was granted to file a fresh writ appeal on the same cause
of action.
9. While the writ appeal proceedings were pending, the 2nd Respondent
Trade Union submitted a detailed letter dated 17.02.2014 to the Assistant
Commissioner of Labour, requesting intervention to facilitate a settlement
between the parties under Section 12(3) of the Industrial Disputes Act. Before
the Conciliation Officer, the management filed a reply statement dated
14.05.2014. In that reply, the following averments were made in paragraphs 4
to 6:
“nkw;fz;l jhthit vGg;gpa[s;s ikdhhpl;o r';fkhdJ. mjDila
17.08.2009 njjpapl;l fojj;jpy; Fwpg;gpl;Ls;sJ nghy;. 02/01/2008. 10/01/2008.
20/01/2008. 10/02/2008////////. 19/03/2009 nghd;w btt;ntW njjpfspy;. mJt[k; rpy
Fwpg;gpl;l bjhHpyhsh;fSf;F kl;Lk; eph;thfk; fjtilg;g[ bra;Js;sJ vd;w
g[fhuhdJ Mr;rhpakhft[k;. mog;gilaw;wjhft[k; kw;Wk; rl;lg;go
rhpapy;yhjjhft[k; cs;sJ vd;gij kPz;Lk; bjhptpj;Jf; bfhs;fpnwhk;/
bkhj;jjpy;. mg;g[fhuhdJ n$hoj;J fw;gidahf j';fsplk;
eph;thfj;jpw;F mtg;bgah; cz;lhf;f ntz;Lk; vd;w nehf;fj;JlDk; kw;Wk;
VjhtJ fhuz';fis Twp gzpf;F tuhknyna ,Ue;J bfhz;L.
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'eph;thfj;jplkpUe;J vt;thnwDk; gzk; gwpf;f ntz;Lk;' vd;w nehf;fj;JlDk;
rkh;g;gpf;fg;gl;Ls;sJ/
nkw;fz;l cz;ikepiyapy;. 'eph;thfk; fjtilg;g[ VJk;
bra;atpy;iy' vdf; Twp jhthtpy; rk;ge;jg;gl;Ls;s kPjKs;s 67
bjhHpyhsh;fis (ntiyia uh$pdhkh bra;jth;fs; eP';fyhf) cldoahf
gzpf;F bry;YkhW cj;jutpl;L jhthit js;Sgo bra;a kPz;Lk;
ntz;Lfpnwhk;;”
10. Despite the management’s stance, the Assistant Commissioner of
Labour (Conciliation), Sriperumbudur, issued an elaborate Failure Report dated
02.03.2016. In the report, he cited the relevant portions from the management's
reply and noted that multiple conciliation meetings had been conducted on
various dates. However, as both parties remained firm on their respective
positions, a settlement could not be reached, resulting in the failure of
conciliation. Following the submission of the failure report, the matter was
under consideration by the government. It was during this period that the
management, on 05.01.2017, withdrew the pending Writ Appeal No. 1450 of
2010.
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11. Upon receiving the failure report dated 23.03.2020, the State
Government sought opinions from the Joint Commissioner of Labour, Chennai,
on 16.09.2020 and the Commissioner of Labour on 09.11.2020. Based on these
recommendations, the government issued the order of reference, which is now
under challenge in this writ petition. Despite having previously contested the
conciliation proceedings in an earlier writ petition, the petitioner management
has once again approached this Court, this time challenging the order of
reference. It is pertinent to note that conciliation proceedings, the issuance of a
failure report, and the subsequent government reference for adjudication form a
continuous legal process. No party can selectively challenge each stage of this
process at different levels, thereby frustrating the very purpose of adjudication.
Anticipating that the management, after withdrawing its writ appeal, might
attempt to initiate fresh writ proceedings, the Division Bench explicitly
recorded the following observation in paragraph 2 of its order dated
05.01.2017:
“Placing on record the above, writ appeal is dismissed as
withdrawn. No leave is granted to file a fresh writ appeal, on the
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same cause of action. No costs. Consequently, the connected
Miscellaneous Petition is closed.”
12. Undaunted by the orders of the Division Bench, it is not open to the
Petitioner to institute another writ petition and attempting to challenge the
order of reference which was the culmination of the receipt of the failure report
by the govt. Already the division bench in the appeal filed by the Petitioner had
clearly stated that no liberty has been given to them to file a fresh writ petition
in respect of same cause of action. The learned single judge who dealt with the
first W.P. has given elaborate reasons for declining to interfere at the stage of
conciliation proceedings. In the present case, the conciliation proceedings have
already culminated in an order of reference to the Labour Court, which is the
appropriate forum to adjudicate the dispute based on the pleadings and
evidence presented by both parties and pass an Award answering the terms of
reference. It is unnecessary to emphasize that the Labour Court is fully
competent to consider all objections raised by the management, including
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challenges to the validity of the reference and the factual basis of the alleged
non-employment, before rendering its Award on the terms of reference.
13. However, in the present writ petition, the management has merely
raised a factual dispute, contending that no lockout had occurred and alleging
that the government failed to apply its mind while issuing the order of
reference. In paragraph (viii) of the grounds raised, the petitioner has
specifically stated as follows:
“It is well settled in industrial jurisprudence that if the
decision making process has been exercised on non-consideration
or non-application of mind to relevant factors, the exercise of
power will be regarded as manifestly erroneous and liable to be set
aside., Since the impugned order has been passed in a mechanical
manner, it is subject to judicial scrutiny and the present writ
petition is maintainable. The impugned order is liable to be
quashed because there is no industrial dispute in the eye of law
which could be subject matter of reference for adjudication.
Further, uncontroverted facts clearly shows that there is no denial
of employment to any of the 79 workers whose names are found in
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the annexure to the order of reference. Even the reference is not
sure whether there is a prima facie case of lockout as alleged by
the 2nd respondent union. Therefore, the impugned order is liable to
be quashed in writ proceedings.”
14. In the counter affidavit filed by the 1st Respondent, this averment
was specifically denied in paragraph 14 and it is as follows:
“With regard to the averments made in grounds (viii) and
(ix) of the Affidavit, it is submitted that the First Respondent in
careful exercise of powers issued the impugned Government order.
The Writ Petitioner only with an intention to drag the issue one
way or other, filed this Writ Petition, as if the First Respondent on
erroneous assumption of power issued the impugned order.”
15. In the counter affidavit, the circumstances that necessitated the order
of reference for adjudication are detailed in paragraphs 9, 10, and 11. These
passages are relevant and may be usefully reproduced as follows:
“9. ...... It is submitted that though failure report had been
submitted on 02/03/2016 and since no settlement could be arrived
between the parties, the Conciliation Authority issued necessary
communication to the management,
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to ascertain the present
status of the workmen and the status regarding the payment of
salary and other emoluments, concerning the workmen. However,
the Writ Petitioner management has not submitted any reply
regarding the same. Thereby the Conciliation Authority
forwarded all the communications to the First Respondent
together with failure report, recommendation and the proceedings
issued for ascertaining the present position regarding the
workmen through the Commissioner of Labour. On receipt of
which, the Respondent on careful scrutinization of the report and
the recommendation, the First Respondent being the statutory
authority, issued the impugned Government order recommending
and forwarded the charter of demands for adjudication before
Labour Court, Kancheepuram in strict compliance of powers and
authorities vested upon it.
10. ….the Conciliation Authority issued due communication
to the Writ Petitioner management in order to ascertain the real
status of the workmen and the payment of salary. Since no
communication is received, and in view of non-cooperation, the
Conciliation Authority could not be able to make his
recommendation to the First respondent for making further
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progress in respect of the demand raised by the Second
respondent Trade union.
11. …. the Conciliation Authority Assistant Commissioner
of Labour submitted failure report dated 02/03/2016. The Joint
Commissioner of Labour, forwarded his communication dated
16/09/2020 together with recommendation. In furtherance of
which, the Commissioner of Labour has forwarded the
conciliation failure report with his recommendation dated
09.11.2020 to the First Respondent. The First Respondent on
scrutiny of the failure report and recommendation issued the
Government Order in G.O.(D).No.642 Labour and Employment
(A2) Department dated 18/12/2020. In view of the same, there is
no latches for delay on the part of First Respondent, as alleged by
the Writ Petitioner.”
16. The learned Senior Counsel for the petitioner relied on the judgment
of the Supreme Court in Prabhakar v. Joint Director, Sericulture Department
& Ors., reported in 2015 (15) SCC 1, and specifically referred to the
observations made in paragraphs 16 and 17, which are as follows:
“16. From the aforesaid discussion, it clearly follows that
even when making a reference by the appropriate Government is
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an administrative act, before making such a reference it has to
form an opinion as to whether any industrial dispute exists or is
apprehended. While forming this opinion, the appropriate
Government is supposed to take all relevant facts into
consideration touching upon this aspect. If the power is
not exercised properly, it is amenable to judicial review. Thus,
where an industrial dispute exists or his apprehended, but the
appropriate Government refuses to make reference, such a
refusal can be challenged in the court of law. Conversely, which
is equally true, if the reference is made even when no dispute
exists or is apprehended, such a reference will also be subject to
judicial review.
17. ....Relying upon its earlier judgment in the case of C.P.
Sarathy8, Prem Kakar v. State of Haryana & Anr., and Sultan
Singh v. State of Haryana & Anr., the Court observed that the
order under Section 10 of the Act was an administrative order
and the Government was entitled to go into the question whether
industrial dispute exists or is apprehended and it will be only
subjective satisfaction on the basis of material on records and
being an administrative order no lis is involved. The position in
law was summarised as under:
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(i) the appropriate Government would not be
justified in making a reference under Section 10 of the
Act without satisfying itself on the facts and
circumstances brought to its notice that an industrial
dispute exists or apprehended and if such a reference is
made it is desirable, wherever possible, for the
Government to indicate the nature of dispute in the
order of reference;
(ii) the order of the appropriate Government
making a reference under Section 10 of the Act is an
administrative order and not a judicial or quasi-judicial
one and the Court, therefore, cannot canvass the order
of reference closely to see if there was any material
before the Government to support its conclusion, as if it
was a judicial or quasi-judicial order;
(iii) an order made by the appropriate
Government under Section 10 of the Act being an
administrative order no lis is involved, as such an order
is made on the subjective satisfaction of the
Government;
(iv) if it appears from the reasons given that the
appropriate Government took into account any
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consideration irrelevant or foreign material, the Court
may in a given case consider the case for a writ of
mandamus and;
(v) it would, however, be open to a party to show
that what was referred by the Government was not an
industrial dispute within the meaning of the Act.”
17. The judgment in question arose in the context of whether a
non-existent dispute could be entertained at a belated stage, particularly when
there was no explanation for the delay. However, none of the grounds discussed
in that case are applicable to the present writ petition. Moreover, the
management remains bound by the earlier observations of the Division Bench,
which explicitly stated that no liberty was granted for a second round of
litigation. The mere fact that the government has issued an order of reference
does not create a fresh cause of action for the management to challenge the
matter once again. The government has filed a counter affidavit denying the
allegation of non-application of mind in issuing the reference. The decision
was not made arbitrarily; apart from considering the failure report, the
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government also took into account the opinions of the Joint Commissioner of
Labour and the Labour Commissioner. Therefore, the reference was not made
based on mere apprehension but was supported by substantial material
evidence.
18. In any event, once the order of reference has been issued and the
adjudication proceedings before the Labour Court have commenced, no civil
right of the management is adversely affected. On the contrary, the Labour
Court, being a court of law, is fully empowered to adjudicate all issues,
including any preliminary objections raised regarding the validity of the
reference. Accordingly, as the writ petition lacks merit, W.P. No. 2435 of 2021
stands dismissed.
19. This Court finds it necessary to impose costs of Rs. 10,000/- payable
to the 2nd Respondent Union, as the management has been obstructing the
adjudication process for the past 14 years and has initiated a second round of
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litigation to delay proceedings. Accordingly, W.M.P. No. 2749 of 2021 is also
dismissed.
20. The Labour Court, Kancheepuram, is directed to expedite the
adjudication of the dispute and conduct the proceedings without any further
delay.
25.02.202
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
av
Copy to:
1. The Addl. Chief Secretary to Government,
Labour and Employment (A2) Department,
Secretariat, Fort. St.George,
Chennai – 600009.
2. The Presiding Officer,
Labour Court, Kancheepuram
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DR.A.D.MARIA CLETE, J.
av
Pre-delivery Judgment in
and
25.02.2025
https://www.mhc.tn.gov.in/judis
