P. Thangam vs The Government of India and The Principal, Kendriya Vidyalaya School

K. Chandru, J.—Heard both sides.

The writ Petitioner challenges the order passed by the first Respondent/Government of India, dated 18.05.2009. The Petitioner, who was

working as a Basic Servant in the second Respondent school viz., Kendriya Vidyalaya, INS Kattobomman, Vijayanarayanam, Tirunelveli District,

raised an Industrial Dispute regarding her non-employment.

Initially, the Petitioner moved the authorities constituted by the State Government. After getting a failure report, she filed a Claim Statement in

I.D. No. 30 of 1999 before the Labour Court at Tirunelveli.

However, objection was raised that since the said Kendriya Vidyalaya Schools (KVS) come under the Ministry of Human Resources

Development, New Delhi, the appropriate Government in respect of those Schools is the Central Government and the State Government has no

jurisdiction to deal with the dispute.

Thereafter, on legal advice the Petitioner withdraw that case and raised an Industrial Dispute before the Central Government, Labour

Department. The Assistant Labour Commissioner (Central), Madurai, who conciliated the dispute between the parties, sent a failure conciliation

report dated 30.03.2009 to the first Respondent/Government of India, Ministry of Labour. Upon the receipt of the said report, the Government of

India, Ministry of Labour by the impugned order dated 18.05.2009 declined to refer the dispute for adjudication. The reason found in the order

was averred as follows:

The Claimant has raised the matter belatedly after a gap of over 10 years from the time of alleged discontinuation from service. Hence, the matter

raised is frivolous.

The Petitioner has come forward to challenge the same. In the affidavit she had explained as to how she was pursuing a remedy before the

authorities under the State Government which went up to the Labour Court, Tirunelveli. It is only on legal advice she was forced to approach the

Central Government Authorities, which is the appropriate authority in respect of the second Respondent K.V. School.

The writ petition was admitted on 28.08.2009. On notice from this Court, both Respondents were represented by Mr. P. Krishnasamy, learned

Senior Panel Counsel for Central Government. The learned Counsel stated that the Petitioner is guilty of enormous delay and there is sufficient

reason to decline relief taken. The learned Counsel also produced a copy of the confidential report sent by the Conciliation Officer to the

Government of India, which formed the basis for declining reference. A perusal of the report itself shows that the Government of India was well

aware that the Petitioner was pursuing her remedy before the State Labour Department and that the case dealt by the Labour Court, Tirunelveli as

I.D. No. 30 of 1999.

When this fact was available with the Central Government while passing the order u/s 10(1) of the Industrial Disputes Act, 1947, the

Government cannot refuse to look into relevant materials relating to delay. The Government must take into account whether the Petitioner was

guilty of laches and pursuing remedy before a wrong forum can be always excluded. Therefore while passing the order u/s 10(1) of the Act, the

Government had misdirected itself on the question of law. After the introduction of Section 2A of the Industrial Disputes Act, 1947 the question of

reference by Central Government pales into insignificance. A worker must have an appropriate forum before which he or she can have appropriate

adjudication. In the guise of passing an order u/s 10(1) of the Act, the Government cannot go into the merits of the case.

Ultimately, merits of the dispute will have to be adjudicated by the adjudicating forum and not by the Government as held by the Supreme Court

in Ram Avtar Sharma and Others Vs. State of Haryana and Another, . The finding that the dispute was raised belatedly, cannot also be accepted.

The Supreme Court vide its judgment in Karan Singh v. Executive Engineer, Haryana state Marketing Board reported in (2007) 14 SCC 291 has

held that the delay in raising a dispute cannot be challenged by an employer. If at all that may have a bearing on the question of relief to be granted

by the appropriate adjudication forum.

In the present case, even the Petitioner cannot be accused of any delay or laches in moving the Court. The second reason given by the Central

Government in the impugned order that the dispute is frivolous also shocks one conscience because ultimately it is the only forum created under the

Industrial Disputes Act by which alone the worker can have his or her grievance redressed.

Under such circumstances, the impugned order passed by the Central Government is hereby set aside. The first Respondent is hereby directed

to make a reference of the Petitioner''s non-employment, within a period of four weeks from the date of receipt of a copy of this order, to the

Central Government Industrial Tribunal at Chennai - 6.

In view of the above, the Writ Petition stands allowed on the above terms. Consequently, the connected miscellaneous petition stands closed.

However, there shall be no order as to costs.