The Commissioner, Municipal Corporation, Chhatrapati Sambhajinagar vs The Deputy Labour Commissioner, Aurangabad Division & Anr.

“B) By way of Writ of Certiorari or any other appropriate writ, order or direction in the like nature, this Hon’ble High Court may kindly quash and set aside the Order No. dkmvk@vkSal@vkSfo/k@th@Mh@02@2023 dated 17/08/2023 passed by the respondent no. 1 i.e. Deputy Labour Commissioner, Aurangabad Division, Aurangabad passed U/s. 12(4) of the Industrial Dispute Act, 1947;”

10.

Insofar as this relationship is concerned, there is a clear dispute emerging from the record. The Management claims that the members of the Union are not it’s direct employees. They have been deployed by various contractors. The Union has contended that though they have been deployed through contractors, it is apparent from the record that several contractors have had contracts with the Management. After the expiry of the contracts, some have left, to be succeeded by new contractors. These workers have been shown to be engaged through the succeeding contractor. As such, it is contended that though the contractors have come and gone, the workers are the same, who continued working with the same Petitioner Management in the same industrial establishment. This proves that the contracts are sham, bogus and an eyewash.

11.

In Kalyani Steel (supra) and Cipla Limited (supra), the Hon’ble Supreme Court has laid down the law that in the face of such a dispute, the concerned workers have to invoke the mechanism provided under the Industrial Disputes Act, 1947 and such an issue can be gone into and adjudicated upon by the Industrial Tribunal. Hence, in our view, the Industrial Tribunal, Aurangabad can decide the said issue in the pending reference case.”

“40.

It is, therefore, held in Shambu Nath Goyal (supra), that there should be a ‘difference’ between the parties and the difference or dispute should be connected with the employment or non-employment or the terms of employment or with the conditions of labour. It is further held that, “For coming into existence of an industrial dispute, a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 22 forbids going on strike without giving a strike notice.” This, therefore, settles the legal position, as to what may constitute an industrial dispute in the assessment of the Conciliation Officer.”

“42.

Raising a demand or espousing improvement in service conditions, is not a crime. As has been said by the Late Justice V.R. Krishna Iyer that “To be poor, in this land of daridra Narayana, is no crime” (See: Jolly George Verghese and another vs. The Bank of Cochin, AIR 1980 SC 470). We have noticed that, in the litigation between the employer and the employees/workmen, if a Union raises demands on behalf of the contract labourers, the Principal Employer terminates the contract before the commencement of the conciliation proceedings. This takes away the lawful protection available to the workers under Section 33 as the Management takes a stand that there is no employer-employee relationship, prior to the commencement of the conciliation proceedings.

43.

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44.

This indicates that the dynamics in the conflict/tussle between the employer and employees/Union, are changing, rather have undergone a sea change. The Managements are alleged to be inventing new methods for neutralizing the workers/ union and their demands. Severing employer-employee relationship or altering the service conditions to the prejudice of the demanding workers with the intention of weakening their bargaining power, appears to be the first choice of employers, which has struck fear in the hearts of the workers and unions. It is becoming more and more common these days that if an employee raises any demands or approaches the Court, his services are dispensed with. Being helpless on account of having lost the protection of law and with his bargaining power reduced to a naught due to unemployment having been foisted upon him, he is on his knees and at times is compelled to compromise against his wishes. In this backdrop, directly approaching the Conciliation Officer would not be an illegality or an anathema. If the Management can take recourse to unethical means for truncating the rights of the workers, a minor shift by the workers or the Union in approaching the Conciliation Officer directly, instead of approaching the Management with it’s demands, in our view, in such changing times, is a way/ means or methodology adopted by the Union to ensure that the workers, who are demanding justice, are not left unprotected at the mercy of the employer.

45.

Normally, we would have agreed with the Petitioner Management that unless the employer formally rejects the demands of the workers, the conciliation proceedings cannot be commenced. This would be true in case of a failure report being submitted by the Conciliation Officer in the absence of issuance of any notice of hearing to the Management. This would also be true if an industrial dispute is referred by the appropriate Government to the Industrial Tribunal, without giving the Management an opportunity to participate in the conciliation proceedings and before it could reject the demands of the workers.

46.

It is now well settled that a conciliation officer has to commence the conciliation proceedings, even on prima facie noticing or apprehending the dispute/ difference between the employer and employees. Admitting the demands in conciliation for commencing the conciliation proceedings, is what is normally and actually expected from the Conciliation Officer (Sindhu Resettlement Corporation Limited, Associated Cement Staff Union and Shambu Nath Goyal (supra).

47.

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51.

In view of the peculiar facts as recorded above, we conclude that though, normally, it would be appropriate to serve demands on the employer and a copy be submitted in the office of the Conciliation Officer, it would not be an anathema to approach the Conciliation Officer for commencement of the conciliation proceedings, if the workers apprehend a serious retaliatory action against them, by the employer, for raising demands. In view of the settled position of law as above, the main grievance of the Petitioner Management that without serving a charter of demands upon the Management, there cannot be a prima facie conclusion that a difference or dispute exists between the parties, would be justified in normal circumstances. However, in the peculiar facts and circumstances of a particular case, as like the case before us, it would not be impermissible for a union/workers to approach the Conciliation Officer directly, in order to protect the employment of the workers who have raised demands upon the Employer or the Principal Employer, as the case may be.

52.

There is yet another reason for us to come to the above conclusion. The reference proceedings are pending for the last 3 years. The Petitioner Management has terminated the contract and has rendered the contractual employees, unemployed. The Industrial Tribunal has passed orders against the Management u/s 33 of the ID Act. Causing interference in this matter, would turn back the clock by 3 years and the parties will again have to be relegated to the first stage in the matter, that is, the Conciliation proceedings. These parties have already undergone the said process and turning back the clock would only lead to completing a formality, which has already been completed.”

24.

This Court held that the term “industrial dispute” is defined broadly as any “dispute or difference” between employers and workmen connected with employment, non-employment, the terms of employment, or conditions of labour. The ID Act does not prescribe any specific manner in which a dispute must arise. Specifically, a formal written demand by the workman is not a sine qua non for an industrial dispute to exist. The only exception is for public utility services, where Section 22 of the ID Act mandates a strike notice. The court relied on the judgment of Beetham v. Trinidad Cement Ltd. to define “difference.” In the said judgment, Lord Denning observed that a difference exists whenever parties are at variance; they need not be “locked in combat” or come to blows. It is sufficient if they are “sparring for an opening”. Reading a requirement for a written demand into the statute would amount to “re-writing the section”. An industrial dispute exists if there is a real, substantial difference with persistence, which was satisfied here by the workman’s continuous claim for reinstatement during the inquiry and appeal.

24.1

On the flair or nature of reference under Section 10(1) of the ID Act, the decision further states that the appropriate Government has the power to refer a matter for adjudication if it forms an opinion that an industrial dispute either exists or is apprehended. The resultant order of reference is an administrative act, and not a judicial or quasi-judicial determination. The factual existence and expediency of referring are matters entirely for the appropriate Government to decide. In Shambu Nath (supra), this Court also considered constructive/implied demand through conduct which we may not refer to, having appreciated the definite case of the Management and the Union. This Court distinguished Sindhu Resettlement Corporation on two grounds: (i) Sindhu did not examine the appropriate Government’s power to refer apprehended disputes, and (ii) in Shambu Nath, unlike in Sindhu, there was unimpeachable evidence that the workman had demanded reinstatement, proving a dispute actually existed. This Court held that a formal written demand by a workman to the employer is not a sine qua non for the existence of an industrial dispute under Section 2(k) of the ID Act. An industrial dispute exists whenever there is a real and substantial difference between the parties. The Government’s administrative decision to refer such an apprehended dispute under Section 10(1) ought not to be canvassed before courts as if it were a judicial determination. We keep the above in mind when applying which citations are apt to the case at hand.

25.

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27.

The citations relied on at the bar have been discussed in considerable length to appreciate the actual controversy for decision in the Civil Appeal. In fine, the management, by raising the preliminary objection, seeks to nip the alleged industrial dispute in the bud, on the ground that no prior demand was made on the management before approaching the conciliation officer. Admittedly, the statute does not require moving the management at the first instance and then approaching the Conciliation Officer. The sine qua non condition is argued based on the ratio in Sindhu (Supra) and Prabhakar (Supra).

28.

Now, let us examine the circumstances of the case. The Management admits to the existence of registered contractors through whom the labour services of the members of the Union were availed. The contract is in compliance with CLRA. There is no employer-employee relationship between the Management and the members of the Union. On the contrary, the Union alleges that the said contract is a sham or a camouflage. The principal employer is the Management. The termination or discontinuation is illegal. The Management resorted to unfair labour practices. Therefore, in the charter of demands, the Union claimed adjudication of the relationship between the Management and the members of the Union, as well as the nature of the contract. From the cases pleaded by both parties, applying the ratio laid down in Kalyani (supra) and Cipla (supra), the Union cannot work out a remedy under the MRTU Act, and the applicable remedy is an Industrial Dispute before the Industrial Court. SAIL (supra) is an authoritative pronouncement for the notification issued under Section 10 of CLRA, the consequences thereof, and the remedies available to the workmen discontinued by the management. By applying the principle laid down by the constitution bench, the proper forum is the Industrial Court/Court for adjudicating issues concerning the employment and termination of employment of contract labour. In the backdrop of well-settled principles of law, a workman working under a contract has to determine their remedies on discontinuation or termination before the Industrial Court. The next question is whether the reference is illegal for want of a prior demand before the Management.

29.

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30.

Plainly interpreted, an industrial dispute means any “dispute or difference” between employers and workmen connected with employment, non-employment, the terms of employment, or conditions of labour.

31.

From Management's perspective, the members of the third respondent union are not its workers. The very denial of the status could also be considered as a dispute in the established facts and circumstances of a case.

32.

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33.

Section 10 enables the appropriate Government to refer an industrial dispute to a board, to a labour court or to a tribunal, depending upon the nature of the dispute. The step taken under Section 10 sets in motion a process for adjudication of a dispute between the parties. The steps envisaged under Section 12 are known as a conciliatory measure without actually inviting adjudication between the Management and the Union. Section 12, in terms, does not stipulate that a condition precedent to invoking its jurisdiction is to first approach the Management and receive a reply, and then knock on the doors of the Conciliation Officer. The process of reference is administrative in nature and is not tested on the touchstone of a judicial or quasi-judicial order by a statutory authority or a court.

34.

Sub-section (1) of Section 10 of the ID Act, from a plain reading, enables the appropriate Government to refer a dispute to a Board, Labour Court or a Tribunal an “Industrial Dispute.” Let us assume for the present that, in terms of the ratio of Sindhu (supra) and Prabhakar (supra), a demand before Management on the dispute is essential to invoke the forum of the Conciliation Officer. Notwithstanding the ratio, if a case falls within the second limb or Section 10(1) of the ID Act, the appropriate Government is within its jurisdiction to refer an apprehended dispute to the Labour Court. By applying the same rule of interpretation, it can be construed that the appropriate Government may refer an Industrial Dispute apprehended to the Board, Labour Court and Tribunal. The argument of management introduces words into the Section and, at the same time, ignores the second contingent circumstance, namely, where an Industrial Dispute is apprehended and renders otiose the words apprehended. Such an interpretation is clearly unavailable, and the argument fails.

35.

A dispute in fact or a dispute in law cannot be exhaustively dealt with either by examples or through a definition. The dispute is presented in a variety of dynamic circumstances where one party asserts a right, and another party denies the right. Similarly, a party affirms the existence of a fact, and another party disputes its existence. These situations would attract the simple meaning of a dispute. Similarly, industrial disputes can have different combinations; namely, between workers and management, union and management, and, as in the present case, contract labour and the Management. In a situation where an unresolved dispute subsists, the same is resolved through the process of conciliation. The management, in the instant case, objects to the status of workers and, at the same time, cannot be heard to argue that the status asserted by them is not adjudicated by the Industrial Court. The inconsistency is that the preliminary objection is raised to reject the ongoing proceedings in Reference (IT) No. 1 of 2021, as there is no demand made to the management beforehand. The Union and the workers complain of unfair labour practice against the Management, and the remedy for redressal of both unfair practice and declaration that the contract is a sham is before the Industrial Court. Therefore, for the rule of law to prevail, the grievances are not wished away without adjudication. Ubi jus ibi remedium, i.e., where there is a right, there is a remedy in law, is a principle to be kept in perspective. Through the reference, a forum for redressal alone is provided to the contract labour. The argument of the Management deprives a forum to the Union/workers and hence not accepted.

36.

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37.

The power to refer an 'apprehended' dispute is the statutory application of the old adage 'a stitch in time saves nine'. It enables the State to intervene before the industrial peace is shattered. Consequently, permitting Preliminary Objections to stall this urgent process negates the preventive intent of the statute, converting a mechanism of immediate relief into an engine of delay. The appropriate Government, in its armchair, while referring an Industrial Dispute for resolution, keeps in its perspective industrial peace and prosperity, to enable workers to work out their just and economic demands and avoid strikes and lockouts. The administrative decision merely looks at an Industrial Dispute or an apprehended Industrial Dispute. The merit or otherwise of the dispute is for the adjudicatory body to decide.

38.

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40.

In the circumstances of this case, the Management's preliminary objection is that the industrial dispute referred to is illegal and without merit. For the reasons stated above, we are in agreement with the impugned judgment. To keep the ongoing adjudication in line with the principles laid down by this Court, the labour court is directed to frame two issues, namely, (i) whether the contracts through which the employment is provided to the contract labour are sham and nominal, and (ii) whether, considering the nature of work discharged by the workmen of the subject Union, the Management is the principal employer of the members of the Respondent-Union.”

ORDER