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Judgment
Ar. Lakshmanan, J.—Heard Mr. K.L. Narasimhan for the appellant, Government Pleader for R1 and R2, Mr. N. Nandakumara Menon for R3 and Mr. P.K. Kurian for R4.
The Writ Appeal is directed against the order passed by the learned single Judge in O.P. No. 15373 of 1997. The said Original Petition was filed by the appellant challenging Ext. P4 order of the State of Kerala. The 3rd respondent herein, Air Cargo Complex Workers Union, filed Ext. P2 before the State of Kerala u/s 22(1 )(a) of the Kerala Headload Workers Act seeking reference of the disputes mentioned thereunder by the appellate authority namely the Regional Joint Labour Commissioner, Kollam. The Secretary to Government issued Ext P4 order on Ext. P2 directing the Regional Joint Labour Commissioner for a final decision in the matter.
We have perused O.P. No. 15373 of 1997 filed by the appellant. The main challenge in the petition was that there is no employer-employee relationship between the appellant and the members of the 3rd respondent union and that there is no dispute as understood u/s 2(h) of the Act between the appellant and me members of the 3rd respondent, that the appellant is not the employer in relation to the members of the 3rd respondent and that Ext. P4 is not passed in conformity with the statutory provisions contained in Section 22(1)(a) of the Act. It is also urged that no reasons are set forth in Ext. P4 for referring the dispute and that the notice directed to be issued to the appellant as per Ext. P1 judgment was not issued before passing Ext. P4 and that the said order is cryptic and without application of mind and without assigning any reasons therefore as provided u/s 22 of the Act.
The learned Judge dismissed the Original Petition holding that lack of notice as directed to be issued under Ext P1 has not created any prejudice to the appellant and that if the Government is of the opinion that mere is a case for reference, that matter has to be referred to the authority and it is for the authority to decide the matter on merit and that the absence of employer employee relationship or non-application of the provisions of the Headload Workers Act, vagueness of the reference etc. have to be raised before the authority itself.
It is also seen from the records that the Original Petition was filed on September 1, 1997 and it was heard and dismissed by the learned single Judge on the same day. No notice or order was issued to the respondents therein. Being aggrieved by the above judgment, the present Writ Appeal has been filed by the appellant/petitioner. We have heard all counsel appearing on behalf of all parties. Mr. Narasimhan, leaned counsel for the appellant submitted that the impugned judgment of the learned single Judge suffers from an error apparent on the face of the record. According to the learned counsel, the learned Judge ought to have held that Section 22(1) of the Headload Workers Act imposes obligation on the first respondent Government to state the reasons for issuing me order under Ext P4 and as Ext. P4 is one without stating reason, the learned single Judge ought to have quashed the same.
Our attention was drawn to Section 22 of the Kerala Headload Workers Act, 1978. It reads thus:
"22. Reference or decision of dispute by Government - (1) Notwithstanding anything contained in Section 21, where any dispute exists or is apprehended, the Government may, by order in writing and for reasons to be stated therein -
(a) refer the dispute to the appellate authority constituted for the area in which the dispute exists or is apprehended, for decision; or
(b) decide the dispute themselves.
(2) Where a dispute is referred to an appellate authority under Clause (a) of Sub-section (1), that authority shall decide the dispute as if the reference by the Government were an appeal under Sub-section (6) of Section 21.
(3) The decision of the Government referred to in Clause (b) of Sub-section (1) shall be final and shall be given effect to by the parties to the dispute forthwith."
It is useful to reproduce Ext. P4 passed by the Government for proper appreciation of the said order and also to see whether the said order satisfies the requirements of Section 22 of the Act. Ext. P4 order reads as follows: -
"Government of Kerala
Proceedings of the Secretary to Government Department of Labour & Rehabilitation
No. 24571/H3/967LBR Dated: 26.7.1997
ORDER
Sub: Petition of the Trivandrum Air Cargo Complex Workers Union -
Ref: Judgment of the Hon''ble High Court of Kerala in O.P. No. 11354/1996 B.
I have gone through the case in detail. The Court has directed to dispose of the case by the Government as specified in para 4 of the judgment Accordingly the Joint Labour Commissioner, Kollam, who is the appellate authority having jurisdiction over the area under the Kerala Headload Workers Act is directed to hear the parties and take a final decision in the matter u/s 21 of the Kerala Headload Workers Act as expeditiously as possible.
K.K. Vijayakumar Secretary to Government
To
The Joint Labour Commissioner,
Kollam,"
A reading of the above order would only reveal that no reasons had been stated as provided u/s 22(1) of the Act As rightly pointed out by Mr. Narasimhan, the order is vague, cryptic and does not conform to the requirements of Section 22(1) of the Act, As an analogy Mr. Narasimhan has also invited our attention to Section 12 of the Industrial Disputes Act, 1947. Section 12 of the said Act deals with the duties of Conciliation Officer Section 12(5) reads thus:
"If on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor."
(Italicising is ours)
When conciliation proceedings have commenced u/s 12(1) the further proceeding enjoyed by the Act has to be followed. When no such settlement is arrived at during conciliation proceedings, it is the duty of the appropriate Government to proceed under Sub-section (5) of the section either to make reference or to record and communicate to the parties concerned its reasons for not making a reference. In Ram Avtar Sharma and Others Vs. State of Haryana and Another, the Supreme Court held mat if the Government''s refusal to make a reference is based on irrelevant, extraneous and no germane grounds the Court may direct the Government to reconsider its decision on relevant and germane grounds. We are of the opinion that since Ext P4 does not contain the reasons for reference and it is not in conformity with the statutory requirements, is therefore, bad. As pointed out by Mr. Narasimhan, Ext P4 has been passed without application of mind and without proper appreciation of the averments made in Ext. P2.
The Writ Appeal was filed against the said judgment of the learned single Judge and admitted by a Division Bench of this Court and urgent notice was ordered to the respondents on October 20, 1997. No stay was granted in the interim application even though interim stay was prayed for. Even though the Writ Appeal was pending on the file of this Court and inspite of the said fact being intimated to the Regional Joint Labour Commissioner, Kollam (appellate authority u/s 21 of the Act), the said authority proceeded with the enquiry and passed Ext. P10 order in O.P. No. 10288/1998 and Ext. P11 in O.P. No. 9925 of 1998, which are challenged by the petitioners in those two Writ Petitions.
Mr. P.K. Kurian also submitted that originally in Ext. P4 his client namely the petitioner in O.P. No. 10288/1988, was not made a party, but his name has been included and notified in the notice issued by the appellate authority on August 14, 1997 calling upon them to appear before the said authority for hearing. They also appeared before the appellate authority and objected to the impleading and also deciding the matter. When they are not the necessary party the appellate authority has proceeded with the hearing and then decided the matter on merits.
We are of the view that the order passed by the appellate authority under Ext. P10 in O.P. No. 10288 of 1998 and Ext. P11 in O.P. No. 9925 of 1998 cannot stand since the said order was passed during the pendency of the Writ Appeal and pursuant to the order passed by the Government of Kerala dated July 26, 1997 under Ext. P4 in O.P. No. 15373 of 1997 and Ext. P6 in O.P. No. 10288/1998 without assigning any reasons as provided u/s 22(1) of the Kerala Headload Workers Act.
The same contentions have been raised in O.P. No. 9925 of 1998. We have already held that Ext. P4 has been passed without complying with the provisions of Section 22(1) of the Act and therefore, the said proceedings is liable to be quashed. Accordingly we quash Ext. P4 in O.P. No. 15373 of 1997 and Ext. P6 in O.P. No. 10288/1998 and Ext. P4 in O.P. No. 9925 of 1998 and remit the matter to the Government to take a fresh decision of Ext. P2 representation strictly in accordance with Section 22 of the Kerala Headload Workers Act within two months from today. The Government may issue notice to all necessary parties and proceed further in accordance with law. It is open to all parties to this proceedings to file fresh representations to the Government in addition to the representations already filed.