The Workmen of Seshasayee Paper and Board Limited vs The State of Tamil Nadu and Others

Nainar Sundaram, J.—This writ appeal is directed against the order of the learned single Judge in W.P. No. 669 of 1982. The petitioner-

Union in the writ petition is the appellant herein. The respondents in the writ petition are the respondents herein. For convenience''s sake, we are

referring to the parties as per their nomenclature in the writ petition.

The petitioner-Union raised an industrial dispute complaining of ousting, by the second respondent, of the petitioner-Union''s members, who,

according to the petitioner-Union, were only employees of the second respondent, though employed through the contractor, the third respondent.

There was a conciliation over the industrial dispute and the same having ended in failure, the matter went before the first respondent and by the

order impugned in the writ petition, the first respondent declined to refer the industrial dispute for adjudication. In view of the controversy raised in

the writ appeal, we feel obliged to extract the body of the order of the first respondent, impugned in the writ petition, as follows:

The Government have examined the conciliation report of the Labour Officer first read above in regard to industrial dispute raised by Seshasayee

Paper Mill Labour Union against the management of Seshasayee Paper Mill and Boards Limited, Pallipalayam, Salem District over the issue of

non-employment of 110 contract workers and they pass the following Orders:

It is reported that there is no employer-employee relationship between these workers and the Seshasayee Paper and Boards Limited, Erode, since

they were all employed by a contractor. It is also reported that the contractor could not run the business due to ill-health and closed down the

business after due notice and offering closure compensation to the workers.

Hence the Government consider that there is no case to refer the issue in dispute for adjudication.

Before the learned single Judge, who dealt with the writ petition, it was contended that the first respondent has practically adjudicated the

dispute on merits and that is not permissible as per the pronouncements of the highest Court in the land. The learned single Judge, adverted to

certain factual aspects, such as the third respondent having been a licensed contractor, and a settlement having been arrived at between the third

respondent and the workers; and ultimately in substance, the learned single Judge also held that there was no relationship of employer and

employees between the second respondent and the members of the petitioner-Union. Thus, the learned single Judge dismissed the writ petition and

this has obliged the petitioner to prefer this writ appeal.

Mr. N.G.R. Prasad, learned Counsel for the petitioner-Union, would submit that the first respondent ought not to have gone into the merits of

the case and rendered a finding that there is no relationship of employer and employees between the second respondent and the members of the

petitioner-Union, and that is a question that could appropriately be gone into only by the industrial adjudicatory forum and the learned single Judge

also ought not to have gone into this question and rendered a position finding over the same. As against this, Mr. B.R. Dolia, learned Counsel for

the second respondent, would submit that the records exposed before the Conciliation Officer and consequently before the first respondent did

bear out, without any ambiguity, the position that there was no relationship of employer and employees between the second respondent and the

members of the petitioner-Union and the members of the petitioner-Union were only employees under third respondent, who was a licensed

contractor under the Contract Labour (Regulation and Abolition) Act 37 of 1990, hereinafter referred to as the Act, and further the second

respondent itself has registered its establishment under the Act.

The principles with reference to the scope of exercise of power of the Government to refer or not to refer an industrial dispute for adjudication

are well settled. It has been countenanced by pronouncements, even at the level of the highest court in the land, that the Government, while doing

this process, is not supposed to delve into the merits of the case and indulge in any adjudicatory power. When we peruse the order of the first

respondent, impugned in the Writ Petition, we find that there is a categoric expression of opinion that there is no employer and employee

relationship between the workers, the members of the petitioner-Union and the second respondent, since the said workers were all employed by

the contractor. We could not construe this expression of opinion as anything short of an adjudication of the question. In Telco Convoy Drivers

Mazdoor Sangh and Another Vs. State of Bihar and Others, , it has been countenanced that:

It is now well-settled that, while exercising power u/s 1O(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 in excess of the power conferred on it by Section 10 of the Act.

We also feel obliged to refer to tine following statement in Madhya Pradesh Irrigation Karamchari Sangh v. State of Madhya Ftadesh and Anr.

(1985) 1 L.L.J. 519:

There may be exceptional cases in which the State Government may, on proper examination of the demand, come to a conclusion that the

demands are either perverse or frivolous and do not merit a reference.

In the present case, we could not have a second opinion as to the result of what the first respondent did. What the first respondent did by the order

impugned in the Writ Petition comes within the adjudicatory sphere which is not permissible for the first respondent. We do not want to go further

and express any opinion on the issue and it is for the first respondent to consider the question of making or not making a reference taking note of

the principles well laid down by pronouncements of Courts, including those of the highest in the land, which should govern the scope of the

exercise of such power. Since there is an omission on the part of the first respondent to do so, or in other words, the first respondent having

treated upon the adjudicatory sphere, we are obliged to remit the matter back to the first respondent for reconsideration of the question and a fresh

disposal of the same. The parties can place whatever material they could command throwing light on the question and that will have due

consideration at the. hands of the first respondent. But, at the same time, the first respondent must be wary not to commit the same mistakes, as

did happen here, which alone obliged us to interfere in writ powers. For all the above reasons, we are not able to support the order of the learned

single Judge, who has also given an opinion that there is no relationship of employer and employees between the second respondent and the

members of the petitioner/Union. Accordingly, this writ appeal is allowed; the order of the learned single Judge in W.P. No. 669 of 1982 is set

aside and that writ petition will stand allowed and the matter will stand remitted to the file of the first Respondent for a fresh consideration and

disposal in the light of the observations made above. No costs. The matter is sufficiently old and it deserves expeditious disposal at the hands of the

first respondent. The first respondent will do the reconsideration and take the decision afresh within a period of ten weeks from the date of receipt

of a copy of this judgment.