Koyla Ispat Mzdoor Panchayat vs Union Of India And Ors

Heard counsels for the parties.

As per the pleading, it appears that the industrial dispute has been raised in the year 2012 for not providing compassionate appointment to Shri Mithilesh Dushad, son of Late Ganesh Dushad, who was employee as underground Trammed under respondent, died in harness on 10.06.1998. Failure report dated 01.01.2014 has been received in the ministry on 10.01.2014. Reference has been refused in following terms:-

"Sh. Mithilesh Dusadh, son of Late Ganesh Dusadh is not entitled to get compassionate employment at this stage after the death of his father, when the wife of Late Ganesh Dusadh Smt. Taragani Devi had already availed the monetary compensation in lieu of compassionate employment under the provisions of NCWA."

Thus, reference has been refused on considering the merit of the case. As per NCWA monetary compensation is payable till employment or retirement. It is trite that the Central Government while considering the case for reference cannot look into the merit of the case. Counsel for the petitioner relied upon the judgment passed by this Court in the case of Smt. Champa Devi Vs. Union of India & Ors. reported in 2019 (161) FLR 699. The relevant portion of the said judgement is quoted hereinbelow:-

"In Telco Conveys Drivers Mazdoor Sangh vs. State of Bihar, reported in (1989) 3 SCC 271, it has been held at Para- 13 by Hon'ble Apex Court which reads here under as:

"Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be excess of the power conferred it by Section 10 of the Act."

In another judgment rendered by the Hon'ble Apex Court in the case of National Engineering Industries Ltd. vs. State of Rajasthan and Ors., reported in AIR 2000 SC 469 wherein at Para-26 it has been held which is being quoted.

"After having heard the learned advocates for the parties and after having gone through the pleadings of the parties made before the Assistant Labour Commissioner and after having carefully considered the contentions raised in the present petition as well as the authorities cited before the Court, the Court is of the view that the impugned order passed by the Assistant Labour Commissioner, Ahmedabad does not call for any interference of this Court while exercising its extraordinary writ jurisdiction under Article 226 and 227 of the Constitution of India. While making the reference, the Assistant Labour Commissioner has observed that the industrial dispute pertaining to the matters regarding 16 lady workers is required to be referred to the Labour Court while exercising his powers vested in him under Section 10(1)(c) of the Industrial Disputes Act and the dispute was as to whether these 16 ladies should be reinstated in service in their original posts with full back wages for the intervening period. During the course of conciliation proceedings, the petitioner has filed its reply and counter reply was filed on behalf of the union. The plain reading of the reply as well as counter reply makes it clear that the petitioner has raised the dispute as to whether these 16 ladies are the employees of the petitioner or whether the petitioner is an 'industry'. The Union has filed its counter reply, wherein it is stated that these 16 ladies were the employees for the petitioner. The Assistant Labour Commissioner is not competent to decide as to whether these 16 ladies are the employees of the petitioner. It requires adjudication and proper forum for adjudication is either the industrial Tribunal or Labour Court. The Assistant Labour Commissioner has to merely discharge his function as an administrative officer. He has to record prima facie subjective satisfaction and after having come to this subjective satisfaction, he has to refer the dispute to the Labour Court or to the Industrial Tribunal. Whether particular person is an employee of the institute or not, requires leading evidence oral as well as documentary. This could be done only at the level of either the Labour Court or Industrial Tribunal where both the parties do get the opportunity of leading their evidence. It is held by the Courts on number of occasions, that the proceedings should not be terminated prematurely. If the reference is rejected, the Conciliation Officer has to record the reasons for that under Section 12(5) of the Act. However, while making the reference, it is not necessary to record any reason. Merely because the reasons are not recorded while making the reference, it cannot be said that the order is without application of mind. It is also important to note here that before the Assistant Labour Commissioner, the award passed by the Industrial Tribunal in the case of NID was pointed out wherein on similar situation, the Industrial Tribunal has come to the conclusion that those 31 ladies were the employees of National Institute of Design. It was also pointed out that the petition was pending before this Court being Special Civil Application No.8549 of 1988. The Court has also considered the relevant observations made by the Hon'ble Supreme Court in the decision of State of Madras Vs. C. P. Sarathy (supra) wherein, in no uncertain terms, the Supreme Court has observed that 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 the matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash and set aside 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. The Court has also considered the binding judgment of the Supreme Court and observations made therein which are squarely applicable to the facts of the present case. The determination of the questions or issues which are raised in this petition requires examination of factual matters and for that purpose, all relevant materials including oral as well as documentary evidence will have to be led before the Labour Court and same are required to be considered. If this is the situation then in that case, the Government could not arrogate unto itself the power to adjudicate on the question and hold that 16 ladies were not workmen within the meaning of Section 2(s) of the Act and terminate the proceedings prematurely. This issue will have to be decided by the Industrial Tribunal or the Labour Court on the basis of the materials to be placed before it by the parties. Simply because the dispute is raised before this Court regarding employer-employee relationship or whether the petitioner is an 'industry' or not, the order making reference passed by the Assistant Labour Commissioner cannot be quashed and set aside."

In the case of Anz Grindlays Bank Ltd vs. Union of India, reported in (2005) 12 SCC 738 wherein at paragraph-14 the Apex Court has held that:

"Mr. Bhat, learned counsel for the second respondent, has submitted that this Court should not interfere with the order of the Central Government making a reference under Section 10 of the Act, as the appellant can ventilate its grievance before the Industrial Tribunal itself and if the decision of the Tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned counsel the writ petition is premature as the appellant has got a remedy before the Tribunal to show that the reference is either bad in law or is uncalled for. We are unable to accept the submission made. It is true that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was no occasion for making a reference. However, this is not a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrate from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in proceeding under Article 226 of the Constitution as no evidence is required to be considered for examining the issue raised."

Thus, law is settled on this point that the Central Government has to consider only with regard to existence of live or apprehended dispute. Merit of the dispute cannot be looked into.

In view of above discussion, the impugned order dated 04.04.2014 whereby the reference has been refused, is, hereby, quashed and the matter is remitted to Union of India, Ministry of Labour & Employment for reconsideration of the matter in accordance with law. It is expected that fresh order will be passed within three months from the date of receipt/production of copy of this order.

With the above observation and direction, the present writ petition stands disposed of.