The Management of Blue Dart Aviation Limited vs Government of India and Others

K. Chandru, J.—The writ petitioner is the Management of Blue Dart Aviation Limited and it undertakes transportation of Cargo by Aviation

and it has an establishment in Chennai in their premises of Old Chennai Airport where Cargo is packed, loaded and unloaded for onward

transmission and also receive the Cargo and arrange for delivery. It has got an office opposite to the Old Chennai Airport called Indian Airlines

Stadium.

According to the averments made in the affidavit, the petitioner has registered itself as Principal Employer under the Contract Labour

(Regulation & Abolition) Act, 1970 (for short, ''CLRA Act''). According to them, the third respondent herein is one of the contractors, who also

have licence to employ contract labourers. The third respondent have covered their workmen under the Employees'' Provident Fund and

Employees'' State Insurance Acts and are having separate workmen. The petitioner further stated in the affidavit that they had employed the

workmen supplied by the third respondent and in each of the writ petitions, the fourth respondent is one such workman supplied by the third

respondent. The writ petitioner further stated that on 06.12.20004, they received a letter from the Assistant Labour Commissioner (Central),

Chennai (Conciliation Officer) asking them to attend the conciliation meeting before the Conciliation Officer and the said notice was issued u/s 12

of the Industrial Disputes Act, 1947 (for short, ''I.D. Act''). It was stated that the conciliation was with reference to the issue relating to the

reinstatement of the fourth respondent workmen in all these petitions. It is also challenged by the writ petitioner that apart from the writ petitioner,

the notice was also given to the third respondent Contractor in the said proceedings.

The writ petitioner appeared before the Conciliation Officer and also submitted a reply dated 13.12.2004 stating that they are Principal

Employer under the CLRA Act and the third respondent was one such contractor and they believed that the fourth respondent in all the writ

petitions were workmen employed by the third respondent and hence, the Conciliation Officer cannot maintain a dispute against the writ petitioner.

The third respondent also submitted a representation dated 14.12.2004 stating that they are labour supply contractor to the writ petitioner since

1998 and since the workmen employed by them misbehaved, there was some problem with them. They also informed those workmen to report

for work but they did not report for work and that they have not terminated their services.

It is seen from the records that the dispute was raised u/s 2(A) of the I.D. Act. The Conciliation Officer, who has not been made party to the

writ petition, apparently sent a Failure of Conciliation Report dated 25.01.2005 to the first respondent Union of India. Upon receipt of the said

Report, the first respondent was of opinion that an industrial dispute existed between the writ petitioner and the fourth respondent workmen in all

these petitions and the first respondent considered it desirable to refer the said dispute for adjudication and accordingly, in exercise of the powers

conferred by Section 10(1)(d) and (2A) of the I.D. Act, the Central Government referred the dispute for adjudication by the second respondent

Tribunal. The schedule appended to the order is identical in all these petitions and one such reference in W.P. No. 29055 of 2005 is extracted

below:

Whether the demand of Shri S.Sivakumar for reinstatement by the management of Blue Dart Aviation Ltd. is justified? If so, to what relief is the

workman entitled?

On receipt of the said reference Order, the second respondent Tribunal took up the dispute on its file and proceeded to issue summons to both

the parties including the petitioner and the fourth respondent workmen and all of them were asked to file their respective statements. In the

meanwhile, the writ petitioner sent communication dated 22.6.2005 to the first respondent stating that the order of reference sent by the first

respondent requires a corrigendum by which the third respondent Contractor should also be made as a party to the dispute raised by the fourth

respondent workmen in all the petitions. As there was no reply from the first respondent Union of India, the writ petitioner filed the present writ

petitions and the prayer in each of the writ petition is identical and one such prayer in W.P. No. 29055 of 2005 is extracted below:

Petition filed to issue a writ of Mandamus directing the first respondent to issue a corrigendum to the order of reference No. L-11012/2/2005 - IR

(CM-I) dated 02.6.2005 including the name of the third respondent as party to the dispute and also refer the issue as to who is answerable to the

claim of the fourth respondent.

The writ petitions were admitted on 10.9.2005 and interim stay was granted in all the writ petitions. The fourth respondent workmen in each of

the writ petition entered appearance through the counsel and have also filed detailed counter affidavit and sought for vacating the interim order

passed by this Court on 10.9.2005. When the petition for vacating the stay came up for hearing, it was agreed by the learned Counsel for the

parties that the main writ petitions themselves shall be taken up for hearing and accordingly, the writ petitions are taken up for hearing.

I have heard the arguments of Mr. Ravindran, learned Counsel for M/s T.S. Gopalan, learned Counsel appearing for the writ petitioner and Mr.

K.M. Ramesh, learned Counsel appearing for the fourth respondent workmen in all the writ petitions and perused the records.

Mr. Ravindran, the learned Counsel appearing for the writ petitioner, after referring to the grounds raised in the affidavit filed in support of the

writ petitions stated that the third respondent was a proper and necessary party to the proceedings and the Central Government ought to have

made them as a party to the proceedings. He also submitted that even before the conciliation proceedings, notice was issued to the third

respondent and that, therefore, they ought to have been made as a party to the proceedings and failure on the part of the Central Government

should be corrected by this Court and necessary directions should be issued to them.

Per contra, Mr. K.M. Ramesh, the learned Counsel appearing for the fourth respondent workmen in all these petitions, submitted that at no

point of time, the fourth respondent workmen accepted that the third respondent was their employer and there was no dispute pending with them.

In fact, even the allegation that the fourth respondent workmen in these petitions were employed through the contractor was not correct and that

the said contractor did not recruit them and it was only a camouflage and ruse set up by the writ petitioner to defeat the claim of the fourth

respondent workmen. According to them, they have joined the services of the writ petitioner as Casual Labourers in the year 1996 and they were

paid wages once in a month calculated on the basis of daily wages. In essence, they have disputed the stand of the writ petitioner that they were

contract workmen supplied by the third respondent. Mr. K.M. Ramesh further submitted that there is no substance in the writ petitions filed by the

petitioner because when the Central Government decides to form an opinion in terms of Section 10(1) of the I.D. Act and consequently, makes a

reference, then it is not open to the parties to seek for an amendment, which will change the very character of the dispute itself. He also submitted

that any industrial dispute between individual workman and his employer and addition to another so-called employer to the dispute will create

unnecessary problems and defeat the very efforts taken by the workmen. He submitted that once the reference is given u/s 10(1) of the I.D. Act,

the second respondent Tribunal is bound to answer the reference in terms of Section 10(4) of the I.D. Act, which is extracted below:

Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the

appropriate Government has specified the points of dispute for adjudication, the Labour Court, or the Tribunal or the National Tribunal, as the

case may be, shall confine its adjudication to those points and matters incidental thereto.

When the reference is received by the Tribunal and the Tribunal having issued summons to parties to appear, it is not open to the writ petitioner

to come to this Court and stop further proceedings thereby depriving the workmen of a speedy trial. He also submitted that if there was any

confusion with reference to the identity of the employer or for some other reasons or if the writ petitioner think that they are not the employer of the

fourth respondent workmen, they can always lead sufficient materials to the satisfaction of the Tribunal and even get a favourable verdict in their

favour. Mr. K.M. Ramesh further submitted that the order of reference was not conclusive proof as to whether a person is an employer or

workman and once a dispute is made with reference to the status of either the workman or the employer, the Tribunal is bound to decide such an

issue as it is a jurisdictional issue. Further, even though the Tribunal is bound by the order of reference, unless there is a valid reference, the

Tribunal cannot clutch on to one jurisdiction. Therefore, he prayed for dismissal of the writ petitions with heavy costs.

However, Mr. Ravindran, learned Counsel appearing for the petitioner Management brought to the notice of this Court the decision of the

Division Bench of this Court reported in O.N.G.C. Madras Port Contract Employees'' Union Vs. The Management of Oil and Natural Gas

Corporation Ltd. and Others, and submitted that this Court has got the power to interfere with the order of reference and prayed for the prayer

sought for by him.

A perusal of the judgment cited by the learned Counsel appearing for the petitioner Management clearly shows that the issue raised therein was

entirely different from the issue, which is pleaded before this Court. In that case, the appropriate Government initially refused the reference and

thereafter, granted the same. Further, in that case, it was found factually that the Management never employed the workmen and they were

employed by various contractors and all the dues have been settled. In paragraph 47 of the said judgment, the Division Bench observed as follows:

In our opinion, it was therefore incumbent upon the Central Government to have at least recorded a prima facie finding whether the workmen

concerned were employees of the writ petitioner or only employees of the contractor, and whether the claim of the workmen concerned had

already been settled. The writ petitioner had raised specific objections to this effect before the Assistant Labour Commissioner in conciliation

proceedings. In our opinion these objections were certainly relevant in deciding whether to make a reference or not, but it appears that they were

not taken into consideration. In our opinion the Central Government has not complied with the dicta of the Supreme Court in National Engineering

Industries v. State of Rajasthan (supra) and Bangaigaon Refinery & Petrochemicals Ltd. v. Samijuddin Ahmed (supra), and hence the reference

order is vitiated.

In the case relied on by the learned Counsel for the writ petitioner Management, the reference itself was challenged and the order was

scrutinised by the Court and finally, the Division Bench held that the order suffers from non-application of mind. In the present case, the writ

petitioner has not chosen to challenge the order of reference. On the contrary, the petitioner sought for a corrigendum to be issued to the order of

reference made by the Union of India. That, prima facie, shows that the writ petitioner is not having any quarrel with the order of reference as such

but, only wants an addition of party. If such a prayer is granted, it will result in an anomaly and adjudication by the Tribunal will become more

complicated. As stated already, there cannot be two employers for one workman in terms of the I.D. Act even though such a contingency may be

available in terms of Employees'' Provident Fund Act, Employees'' State Insurance Act, Workmen Compensation Act, etc. wherein the definition

of the term employer is different.

In essence, what the writ petitioner wanted to prove before the Tribunal is that they were not the employer and only the third respondent were

the employer of the fourth respondent / workmen in all these petitions. For this purpose, there is no necessity to add any additional party. Even the

third respondent have not come before this Court having aggrieved about the order of reference omitting them from the dispute. If the third

respondent have all materials, which will favour the stand of the writ petitioner, they can always be summoned by the Tribunal in terms of Section

11(3) of the I.D. Act wherein the Tribunal has been granted the power of the Civil Court. For that purpose, it is unnecessary to issue any

corrigendum. The writ petitioner, in an ingenious way, wants to create an additional party to the order of reference so as to defeat the claim of the

fourth respondent workmen in these petitions. If the writ petitioner is having enough materials, they can always prove their stand before the

Tribunal that they are not the real employer of the fourth respondent workmen in these petitions and they are not obliged under the I.D. Act to

mulct with any condition in respect of the alleged non-employment of the workmen. Even if the writ petitioner raised the issue relating to jurisdiction

on the ground that they were not the employer and, therefore, the order of reference suffers on that ground, the Tribunal is bound to frame an

additional issue and only upon satisfaction, can proceed to pass final Award in one way or the other.

In this context, it is relevant to refer to the decision of the Supreme Court reported in ANZ Grindlays Bank Ltd (now known as Standard

Chartered Grindlays Bank Ltd.) Vs. Union of India (UOI) and Others, and in paragraph 14 of the said judgment, the Supreme Court has

observed as follows:

It is true that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of the appropriate

Government making a reference u/s 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 demonstrated 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 proceedings under Article 226 of the Constitution as no evidence is

required to be considered for examining the issue raised.

The contingency referred to by the Apex Court does not arise in the present case as the prayer ingeniously made by the writ petitioner, they want

only an additional party, who is stated to be the employer of the fourth respondent workmen in all the petitions.

It will not be difficult to refer to a decision of the Supreme Court reported in D.P. Maheshwari Vs. Delhi Administration and Others, where the

Supreme Court struck a note of caution in entertaining the petition at the threshold and the passages found in the said decision are usefully

extracted below:

It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on

merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to

the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute

for years, sometimes for over a decade.

...

...

There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal

of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to

misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor

should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary

issue may be decided by them. Neither the jurisdiction of a High Court under Article 226 of the Constitution nor the jurisdiction of this Court under

Article 136 my be allowed to be exploited by those who can well afford to wait by dragging the latter from court to court for adjudication of

peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of

the workmen in this fashion. Tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such

threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like industrial tribunals

are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary

objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and

not appellant while that under Article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial

justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of

jurisdiction by special tribunals at interlocutory stages and on preliminary issues.

The Central Government was conscious of the fact that even though the Conciliation Officer had issued notice to the third respondent, they

have omitted to include them in the order of reference. Then the dispute is only confined to the writ petitioner and the fourth respondent workmen

and the addition of parties can be made before the Tribunal only in terms of Section 18(3)(b) of the I.D. Act so as to make a binding Award and

that is the not the present case. The burden of proof as to who is the real employer, whether the writ petitioner Management or the third

respondent, lies on the fourth respondent workmen in these petitions and the same has to be proved to the satisfaction of the Tribunal by letting

proper evidence and especially, in the context of the fourth respondent workmen in all the petitions emphatically asserting that the writ petitioner

Management are their employer. This Court is not inclined to agree with the prayer made by the writ petitioner seeking for corrigendum for the

notice issued by the first respondent and to include the third respondent as an additional party. The decisions relied on by the learned Counsel

appearing for the writ petitioner do not come to his rescue. It is open to the writ petitioner to lead sufficient evidence both oral and documentary

before the Court and also to take out appropriate application u/s 11(3) of the I.D. Act to prove their case, if they are so advised. The

circumstances pointed out by the the decisions cited above also do not come to the rescue of the writ petitioner.

In the light of the above, all the writ petitions will stand dismissed with costs. The counsel fee is quantified at Rs. 500/- in each of the writ

petition in view of the fact that the matters have been dragged to this Court and the proceedings before the Tribunal have been stalled for one year

and also considering the sufferings of the workmen. In view of the dismissal of the main writ petitions, there is no necessity to pass orders in

W.P.M.P. Nos. 31769 to 31777 of 005 and W.V.M.P. Nos. 112 to 120 of 2006 and they will also stand dismissed.