TWAD Board Employees Union (CITU) vs State of Tamil Nadu and Others

A.R. Lakshmanan, J.—By consent of both parties, the main writ petition itself is taken up for final disposal.

Notice of motion was ordered by this Court on 25.7.1991. The respondents were served as early as on 13.8.1991. The Additional Secretary

to Government, Labour and Employment Department, Secretariat, Madras-9, has filed a counter affidavit on behalf of the first respondent, State

of Tamil Nadu.

The writ petitioner is the TWAD Board Employees Union (CITU), represented by its General Secretary. The writ petition has been filed by

them for a certiorarified mandamus to call for the records of the first respondent in G.O.Ms. No. 1690, Labour Department and letter No.

116580/B1/89-8 and quash the orders dated 14.9.1989 and 10.6.1991 and refer the industrial dispute raised by the petitioner union vide

representation dated 27.12.1988 for adjudication by the Labour Court at Madurai.

I have heard Mr. K. Chandru for the petitioner and Mr. Sengottuvel, Government Advocate for the respondents. The petitioner union is a body

registered under the Trade Unions Act, 1926. The Government of Tamil Nadu subsequent to the appointment of Fourth Pay Commission

constituted an One Man Commission to go into the various anomalies created due to the implementation of the Fourth Pay Commission. The

Government accepted the recommendations of the One Man Commission and issued G.O.Ms. No. 762, Finance (Pay Cell) Department, dated

20.8.1986 and decided to have uniform qualifications for the revised scales and wherever there are common qualifications namely, I.T.I,

certificates for some type of trades in all departments suitable pay scales were prescribed. This order of the Government is also applicable to the

second respondent Board. The second respondent vide their proceedings dated 12.12.1986 directed the implementation of the said

recommendation of the One Man Commission as well as G.O.Ms. No. 762, dated 20.8.1986. This was also communicated by the third

respondent to all their subordinates. But, however when it came into implementation in the third respondent circle, the said order was not

implemented although the workmen though qualified were fitted into different trades.

The Executive Engineer wrote to the third respondent vide his letter dated 23.5.1988 and sought for his permission to implement the said scales

in respect of the seven categories. As there was no favourable reply from the second and third respondents, the petitioner union sent a letter dated

12.11.1988 to the second respondent and requested him to revise the scale in pursuance to the One Man Commission''s recommendations. The

petitioner union raised an industrial dispute vide its representation dated 27.12.1988 before the Labour Officer, Tirunelveli. Though notices were

sent to the second and third respondents, no written remarks were offered on the pending dispute. The contention of the second and third

respondents before the Conciliation Officer was that the proposals have been sent to the second respondent''s consideration and after getting

orders from the TWAD Board they will be implemented. In view of the same, the Conciliation Officer having unable to bring about any mediation

sent his failure report dated 18.5.1989 to the first respondent, who by their order dated 14.9.1989 in G.O.Ms. No. 1690, Labour Department,

refused to refer the dispute for adjudication. Curiously in their order they have stated that since the proposal for the revision of pay scales was

under consideration of the second respondent, the dispute need not be referred.

The petitioner union again sent a representation dated 6.12.1989 to the first respondent and asked them to re-consider their decision. This

representation was forwarded by the first respondent to the Assistant Commissioner of Labour, Tirunelveli, who was asked to again enquire into

the matter. As there was no progress in the matter, the petitioner union sent another representation dated 26.11.1990 to the Commissioner of

Labour as well as to the first respondent. The petitioner union did not get any reply from the authorities and the first respondent again passed an

order on 10.6.1991 refusing to re-consider their earlier decision. Aggrieved against the refusal the petitioner union has filed the above writ petition.

As stated above notice of motion was ordered on 25.7.1991.

The first respondent filed a counter through its Additional Secretary to Government Labour and Employment Department, Madras. It is stated in

the counter affidavit that the proposal for revising the pay scales of the posts mentioned were already sent to the Head Office and the matter was

under consideration of the Board in consultation with the Government and hence the Government after examining the conciliation report of the

Labour Officer, Tirunelveli declined reference for adjudication on the ground that the matter was under consideration of the management. The

reconsideration petition submitted by the petitioner was also rejected on the same ground. In my opinion the counter affidavit is a mere reiteration

of the order passed by the authorities concerned which is impugned in the present writ petition. The matter is well settled and also directly covered

by the decision of Division Bench of our High Court in M/s. Shaw Wallace & Co. Ltd. v. State of Tamil Nadu represented by the Commissioner

and Secretary, Labour Department and others (1988) 1 L.L.J. 177. The Division Bench on a careful analysis of the various judgments, laid down

the principles as to be seen from paragraph 32 of the said judgment. In the instant case, the Government curiously in their order have stated that

since the proposal for revision of pay scales was under consideration of the Managing Director, Tamil Nadu Water Supply and Drainage Board,

the dispute need not be referred. I am unable to appreciate the stand taken by the Government in this regard. I am of the view that this is a fit case

for reference of the dispute to the Labour Court which is the competent authority to decide the dispute raised by the union. I am also of the view

that the first respondent by passing the impugned order has abdicated their powers vested u/s 10(1) of the Industrial Disputes Act by stating that

the matter was under consideration of the second respondent. The first respondent has also failed to see that the second respondent was a party

before them and was also ''an employer'' within the meaning of I.D. Act and matters have to be delegated to the very same employer, without

having the benefit of adjudication provided under the provisions of the I.D. Act, then the conflict resolution machinery itself would become

meaningless. Hence, the impugned order in my opinion is contrary to the ruling of the Apex Court''s decision in The M.P. Irrigation Karamchari

Sangh v. The State of M.P. and another (1985) 1 L.L.J. 519, wherein the Supreme Court has held in paragraph 7 at page 522 as follows:

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

demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand

with a view to decline reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for

adjudication of valid disputes. To allow the Government to do so would be to render Sees. 10 and 12(5) of the Industrial Disputes Act nugatory.

For the foregoing reasons I have no hesitation to hold that in this case the Government had exceeded its jurisdiction in refusing to refer the

dispute to the tribunal.

In the result, I set aside the impugned order passed by the State Government and direct the State Government to refer all the questions raised

by the writ petitioner to the appropriate Labour Court. The Government will refer the matter within two months from the date of receipt of a copy

of this order. Accordingly, the writ petition is allowed. No costs.