Cochin Port Labour Union vs Union of India and Others

K. Vinod Chandran, J—The only dispute raised in the above writ petition is whether the "appropriate Government" under the Industrial Disputes Act, 1947 [for brevity "ID Act"] is entitled to reject a reference as has been done in Exhibit P5, the impugned order herein.

I have heard the learned Counsel for the petitioner, the learned Counsel appearing for the 3rd respondent, the learned Counsel appearing for the contractors [respondents 4 and 5] as also the learned Assistant Solicitor General of India for respondents 1 and 2.

The brief facts to be noticed are, that, the petitioner is a Union of contract labourers under the contractors, respondents 4 and 5, who have been awarded work under the 3rd respondent. The petitioner''s members are employed by the contractors for such work, for which the contractors pay the weekly wages. The dispute is with respect to the weekly off wages. It is not disputed that the members of the Union are being granted weekly off; but, however, they take up a contention that they are entitled to wages for such off days also. The learned Counsel for the respondents 4 and 5, however, opposes such entitlement on the basis of section 52 of the Factories Act, 1948. This Court, however, is not looking into the entitlement, as it has to be done by a Court or Tribunal constituted under the ID Act.

Admittedly a conciliation was attempted and the Conciliation Officer, by Exhibit P4, submitted a failure report to the Government, being the Central Government. The Central Government, by Exhibit P5, refused to refer the dispute to the Tribunal for the following reason:

"It is reported that the claimant union has failed to substantiate their demand. Hence, the matter raised cannot be construed as an industrial dispute".

It is to be noticed here that the report, which is a failure report at Exhibit P4, does not consider the sustainability of the claim; but only reports the failure of the conciliation proceedings on the question of weekly off wages.

The Hon''ble Supreme Court in Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, AIR 1989 SC 1565 : (1989) 59 FLR 734 : (1989) JT 155 Supp : (1989) 2 LLJ 558 : (1989) 1 SCALE 1544 : (1989) 3 SCC 271 : (1989) 2 SCR 802 : (1989) 2 UJ 159 , held that, the Government, in considering the question of making a reference under section 10(1) of the ID Act, is performing an administrative function and not a judicial or quasi-judicial function. The question of sustainability of the claim would have to be considered by a Court or Tribunal constituted under the ID Act. The Government cannot, by itself or on the basis of the report, find that the claim is not sustainable. Resultantly, Exhibit P5 would stand set aside. The 1st respondent, more specifically the Ministry of Labour, Government of India, is directed to refer the dispute to the Court or Tribunal constituted under the ID Act, within a period of three months from the date of receipt of a copy of this judgment.

Writ petition would stand allowed. No costs.