Manipal University Mazdoor Union (R) Affiliated to Bharathiya Mazdoor Sangh earlier known as Mahentsa, office of B.M.S Felix Pai Bazaar vs The Secretary Ministry of Labour and Employment Government of India

Ram Mohan Reddy, J.—Petitioner - Registered Trade Union espousing the cause of the employees of the Manipal University, raised a dispute in the matter of change of (sic) introduced by the University in violation of Section (sic) of the Industrial Disputes Act, 1947 which when resulted in a failure report by the Conciliation Officer was followed by the communication dated 27.07.2009 Annexure-"A" declining to refer the dispute for adjudication, on the premise that the workmen had accepted the revision of pay scales as a package deal which included the decision to change the leave pattern and hence, this petition.

Heard the learned Counsel for the parties. Perused the pleadings and examined the communication impugned. Suffice it to state that the observations of the Apex Court in Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, , in the circumstances, is apposite:

It is true that in considering the question of making a reference u/s 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhusan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and / or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is undoubtedly not permissible.

The Central Government, having dwelled into the merits of the dispute and took upon itself (sic) determination of the its, certainly not a power conferred on it u/s 10 of the Industrial Disputes Act. 1947, the communication impugned is unsustainable.

In the result, petition is allowed. The impugned communication Annexure-"A" is quashed and the proceeding remitted for consideration afresh in the light of the observations supra, in any event, within a period of three months from the date of receipt of a certified copy of this order.