M/S.Everest Homoeo Laboratory vs State Of Orissa And Others
2021 Latest Caselaw 8335 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

            WRIT PETITION (CIVIL) No.19482 of 2014


   (An application under Articles 226 & 227 of the Constitution of
   India)

    M/s.Everest Homoeo Laboratory         ....              Petitioner
                                       -versus-
    State of Orissa and others            ....       Opposite Parties


   Advocates appeared in this case by Video Conferencing mode:

          For Petitioner     :                    Mr. Rajib Rath,
                                                       Advocate

          For Opposite       :              Mr. Tarun Pattnaik,
          Parties                   Additional Standing Counsel

          For Intervenors    :           Mr. Sanjay Kumar Das,
                                                      Advocate


     CORAM:
     JUSTICE S.K. MISHRA
     JUSTICE B.P. ROUTRAY

                             JUDGMENT

10th August, 2021 B.P. Routray, J.

1. The Petitioner has prayed to set aside the reference dated 05.07.2014 of the Government of Odisha, Labour and E.S.I. Department made under the provisions of sub-section (5) of

Section 12 read with clause (c) of sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (in short "I.D. Act")

2. The Petitioner is the management of M/s.Everest Homoeo Laboratory, a registered partnership firm situated in the district of Balasore.

3. Opposite Party No.5-Everest Homoeo Employees Union, a union of workers stated to be an unregistered union, raised certain demands relating to hike of wages of the workmen in terms of Minimum Wages Act. Sri Jayanta Kumar Dey and 13 other workmen submitted the demand to the Assistant Labour Commissioner, Balasore and in course of action in pursuance to the provisions of the I.D. Act, the conciliation proceeding was initiated. As no consensus has been arrived, failure report dated 19.2.2013 was prepared by the Assistant Labour Officer, Balasore and was sent for action in terms of Section 12(4) of the I.D. Act. Subsequently on 6.9.2013, a revised report was prepared and was sent. Basing on the same, the reference dated 5.7.2014 was made and referred for adjudication to the Presiding Officer, Labour Court, Balaosre. The schedule of reference runs as follows:

"Whether the demand of Sri Jayanta Dey and 13 others workmen of M/s.Everest Homoeo Laboratory, B-3, Industrial Estate, Balasore for wage enhancement of Rs.2400/- per month w.e.f. 1.4.2012 is legal and/or justified ? If not, what should be the details ?"

4. The Petitioner challenges the reference by submitting that the same is complete non-application of mind and lacking subjective satisfaction of the authority. It is contended by Mr. Rajib Rath, learned Advocate for the Petitioner that neither any industrial dispute was existing nor subsisting on the date of reference as the Petitioner was regularly paying the dues and wages to its workmen as per their claim under the law. It is further contended that only six workmen were working in Petitioner's firm on the date of reference and there were eight workmen only on the date of submission of conciliation failure report. The workman, namely, Sri Jayanta Kumar Dey has been superannuated in the year 2012 and Sk. Sahanwaz Ahamad was also not a workman of the Petitioner's firm on the date of reference. It is thus urged that the point of reference is an outcome of total non-application of mind and the satisfaction of State Government in making the point of reference is mis-conceived.

5. The Petitioner has not arrayed the workmen as Opposite Parties in the present writ petition. However, seeking intervention, the workmen have entered their appearance. Along with their intervention application, they have produced a copy of the statement of claim made by them before the Presiding Office, Labour Court, Balasore.

6. The Assistant Labour Commissioner has filed the counter reply on behalf of Opposite Party Nos.1, 2 and 3.

7. Mr.T. Pattnaik, learned Additional Standing Counsel for State- Opposite Parties submitted that, non-existence of any industrial dispute on the date of reference as contended by the Petitioner is totally incorrect on facts and such contention of the Petitioner before this Court in the writ petition is not tenable in the eye of law. The failure reports dated 19.2.2013 and 6.9.2013 are clearly manifesting the dispute between the workmen and management. It is further submitted that the revised failure report dated 6.9.2013 is in continuation of the earlier report dated 19.2.2013, that necessitated due to some clerical mistakes.

8. It reveals from Annexure-7 that the reference is specifically regarding enhancement of wages. The dispute is regarding payment of such enhanced wages of Rs.2400/- per month, whether to be effected from 01.04.2012. The conciliation reports under Annexures-3 and 4 clearly depict that, though the management agreed for enhancement of wages @Rs.2400/- per month from the date of settlement, if any, by the Conciliation Officer, but did not agree to effect the same from 01.04.2012 as demanded by the workmen. In view of such specification in the reference, the contention of the Petitioner that there was total non- application of mind by the authority, is not found justified.

9. Admittedly, the Petitioner neither disputes the status of claimants as workman in terms of the definition contained in Section 2(s) of the I.D. Act nor its own status amenable to the I.D. Act. The only contention putforth on behalf of the Petitioner is

that, no industrial dispute exists for lack of adequate number of workmen on existence in the firm on the date of reference. These are matters touching of merits of adjudication of the industrial dispute. The workmen in their demand have clearly raised the issue of wage enhancement. As stated above, a bare reading of failure reports reveal the fact that the management of Petitioner's firm is not agreeable to the demands of workmen for payment of revised wages @Rs.2400/- per month w.e.f.1.4.2012. This being the position, by looking to the definition of 'industrial dispute' as enumerated in Section 2(k) of I.D. Act, no merit is found in the contention of the Petitioner.

10. The Supreme Court in the case of State of Madras vs. C.P. Sarathy and another reported in AIR 1953 SC 53 have observed the scope of challenge to an order of reference. The relevant observation of the Supreme Court runs as follows:

"(14) This is, however, not to say that the Government will be justified in making a reference under S.10(1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry. It is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference. But, it must be remembered that in making a reference under S.10(1) the 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 the

less administrative in character. The Court cannot, therefore, 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 determination. No doubt, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters. The observations in some of the decisions in Madras do not appear to have kept this distinction in view."

11. The Supreme Court relying on the aforesaid decision, again held in the case of Shambu Nath Goyal vs. Bank of Baroda (1978) 2 SCC 353, as follows:

"The reference in the case before us was made under Section 10(1) which provides inter alia that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication as therein mentioned. The power conferred by Section 10(1) on the Government to refer the dispute can be exercised not only where any industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government

reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under Section 10(1). But in making a reference under Section 10(1) the 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 the less administrative in character. The Court cannot therefore, 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 determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal has no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on which it could have come to an affirmative conclusion of those matters, (vide Madras State v. C.P. Sarthy [AIR 1953 SC 53]). The Tribunal, however, referred to the decision of this Court in Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal (AIR 1968 SC 529) in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference but the question whether in case of an apprehended dispute Government can make reference under Section 10(1) was not examined. But that apart the question whether an industrial

dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C.P. Sarthy case. In the case before us, it can be shown from the record accepted by the Tribunal itself that there was in existence a dispute which was legitimately referred by the Government to the Industrial Tribunal for adjudication. Undoubtedly, it is for the Government to be satisfied about existence of the dispute and the Government does appear to be satisfied. However, it would be open to the party impugning the reference (to contend) that there was no material before the Government, and it would be open to the Tribunal to examine the question, but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government."

12. Such being the position of law, an order of reference can only be assailed on limited grounds. In the facts of the present case, when the dispute is clear regarding payment of appropriate wages to the workmen from a specified date, the scope of challenge by the Petitioner seems unsustainable.

13. The further contention of the Petitioner that only 6 workmen were there in employment as compared to 14 workmen, who have raised the demand, is without any basis. It is for the reason that the Petitioner has not substantiated his stand in this regard nor has stated the detailed position of workmen in his firm either on the date of inception or on the date of conciliation or on the date of reference. Such contention has been made only to dilute the

dispute. The claim of refund of wages by the workmen relating to their period of duty will subsist even after their superannuation or disengagement.

14. The subsequent failure report of conciliation also cannot be faulted with as the same is for correction of clerical mistake in the earlier report.

15. Thus the order of reference as referred by the State Government for adjudication by the Labour Court does not warrant any interference by this Court. In view of the discussions made above, the writ petition is dismissed being devoid of merit. All interim orders passed stand vacated.

                                                   (B.P. Routray)
                                                      Judge

S.K. Mishra, J.         I agree.


                                                   ( S.K. Mishra)
                                                       Judge




Orissa High Court, Cuttack,

Dated the 10th August, 2021/B.K. Barik, P.A.