U.P. State Spinning Mills Company No. 1 Ltd. vs State of Uttar Pradesh and Others

Palok Basil, J.—Since the two petitions raise similar questions they are being disposed of by a common judgment.

In one of them Rajiv Ratan Lal Srivastava, is the Respondent No. 3 who has been dismissed from the office of Cashier in the year 1979 by the Petitioner U.P. State Spinning Mills Co. which has a Unit in Maunath Bhanjan, Azamgarh. In the other case the Respondent Surendra Singh''s tenure was terminated in the year 1984 where helwas working as Assistant. Fitter, that too in a mill in Maunath Bhanjan.

The matters were raised in conciliation proceedings and the State of U.P. was informed of the said controversy for making a reference, if any, under the U.P. Industrial Disputes Act. In Rajiv Ratan Lal Srivastava''s case the State Government passed an order on 30-10-1990 that since the Government did not consider the matter fit, no case for reference was made out. It appears that another order was passed on 1-10-1984 reiterating the said stand when the workman was informed of the decision that the case was not fit for reference. On 28-5-1992 the State Government passed an order taking the view that there exists an industrial dispute between the employer and the employee Rajiv Ratan Lal Srivastava and, therefore, it was fit enough for reference u/s 4-K of the said Act. The reference made in Hindi is as under :

Kiya Sevajanon Dwara Apne Shramik Rajiv Ratan Lal Srivastava Putra Sri Ramakant Srivastava Sahayak Kosha Adhyaksh Ki Aadesh Dinank 23-1-79 Dwara Sewain Sampt Kiya Jana Anuchit Awam Awaidhanik Hain ? Yadi Han, To Sambandhit Shramik Kiya Hitlabh/Upshaman Paney Ka Adhikari Hai. Tatha Kis Anya Viviran Sahit ?

Translated into English the reference would read :

Whether the action of the employers in passing the order dated 23-1-79 terminating the employment of Rajiv Ratan Lal Srivastava, Assistant Cashier, is illegal and unjustified ? If the answer is in the affirmative, then to what relief benefits the employee concerned is entitled to and with what further benefits ?

Similary, in the case of Surendra Singh, an order was passed on 14-1-1986, after perhaps the conciliation proceedings were referred to the Government, indicating that the matter was not thought fit for being referred and, therefore, no refereace was being made On a representation by the said Surendra Singh another order was passed on 4-11-1989 by the Government that since it had rejected the prayer to make a referrence earlier, it was not prepared to reconsider the matter. Ultimately by an order dated 29-8-1990 the State Government being satisfied that indistrial dispute existed between the employees (the Petitioner) and the employee (Surendra Singh) a reference u/s 4-K should be made to the Labour Court. The reference made in Hindi is as under :

Kiya Sevajanon Dwara Apney Shramik Surendra Singh Putra Sri Hirdaya Narain Singh, Pad Sahayak Fitter Ki Aadesh Dinak 30-10-84/8-11-84 Dwara Sevain Samapt, Kiya Jana Anuchit Tatha/Athwa Awaidhanik Hai/Yadi Han, To Sambandhit Shramik Kiya Labh/Anutosh (relief) Paney Ka Adhikari Hai, Tatha Anya Kis Viveran Sahit. ?

Tanslated into English the reference would read :

Whether the action of the employers in passing the orders dated 10-10-84 8-11-84 terminating the employment of Surendra Singh, Assistant Fitter is illegal and unjustified. If the answer is in the affirmative then to what relief/benefits the employee concerned is entitled to and with what further benefits ?

Sri V. B. Singh, learned Counsel for the Petitioner has vehemently argued that the principles of natural justice have been violated in the instant case and, therefore, the reference should be quashed and if the Government proposes to pass a reference order it must afford an opportunity to the Petitioner before doing so because, it is argued, that after the hearing, may be, that the State Government does not make the reference at all. In support of his arguments reliance has been placed on the following four decisions :

(1) 1978 LLJ (I) 544)

(2) 1980 (41) FLR 87

(3) Management of Theatre Sanjaya Vs. The State and Others,

(4) 1992 LLR 448

To be fair to the learned Counsel for the Petitioners it must be added that during the course of arguments he has relied upon the Supreme Court decisions beginning with International Airport Authority case followed by Maneka Gandhi''s case and, lastly, Srilekha Vidyarthi''s case in support of his arguments that the principles of natural justice have gone to great heights and, therefore in the instant case it should be made applicable and the Petitioners must be held to have been afforded an opportunity by the State Government before the instant reference orders were made.

There is absolutely no controversy on the question that if any right of any citizen is being taken away, then he must be afforded a reasonable opportunity. The law on this point laid down by the Supreme Court is so profound and well-known by now that any effort by this Court to re-emphasise them would land in futility. But the primiary question is, after the conciliation proceedings are over and the State Government makes up its mind to make a reference or not to make a reference involves a right of the Petitioners to oppose making of a reference. If the interpretation as advanced by Sri V. B. Singh is accepted, it has to be held that at whatever stage the State Government makes a Reference the employee and the employer must be afforded an opportunity of hearing. Because, if it could be held that the Petitioner had right of hearing so as to oppose a reference at one stage, then it should be held that the said right of hearing would be available whenever the State Government were to form its opinion whether at the initial stage or when the first opinion is being reviewed later on by the State Government. This vital aspect shall have to be kept in mind while dealing with this argument In other words, it should mean that a completely quasi-judicial organism entitling the parties to be heard and then formulation of poiats for determination and then reaching a conclusion has to be found within section 4-K of the U.P. Industrial Disputes Act.

Section 4-K is pari-materia with section 10 of the Industrial Disputes Act (Central). The Supreme Court has laid down that the order of the Government while making a reference is an administrative order. Sri V. B. Singh, had initially argued that the State''s action u/s 4-K of the Act should be interpreted to be ''quasi-judicial'' but later on he limited the applicability of the aforesaid argument to an order of reference at subsequent stages when it may amount to reviewing of the earlier order by the State Government.

It is now well-settled that while exercising the power u/s 10(1) of the Central Act the function of the appropriate Government is an administrative function and not a judicial function and, that in performing this administrative function the Government cannot delve into the mesits of the dispute and take upon itself the determination of the lis which will certainly be in excess of the power conferred on it by section 10 of the Act. This view is fortified by the Supreme Court as reported in the case Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, and Ram Avtar Sharma and Others Vs. State of Haryana and Another, .

A direct Authority on the point is available in the case of Western India Match Co. Ltd. Vs. The Western India Match Co. Workers Union and Others, . In that case also the State Government had earlier declined to make a reference and then on a second thought it reviewed its earlier order and made a reference u/s 4-k of the Act. It may humbly be said that very very appropriate observations are contained in paragarphs 8 and 9 of the said judgment. The utmost that can no done is to quote the said two paragraphs here for ready reference so that it helps in solving the problem posed by the learned Counsel for the Petitioner :

The two paragraphs are as follows :

From the words used in in Section 4 -- k of the Act there can be no doubt that the legislature has left the question of making or refusing to make a reference for adjudication to the discretion of the Govrenment. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended When the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Govrenment decides to make it an industrial dispute between the employer and his employees either exists or is appreheded. Therefore, the expression "at any time", though seemingly without any limits, is governed by the context in which it appears, Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can "at any time", i. e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression "at any time" thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression "at any time" in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence.

In State of Madras Vs. C.P. Sarathy and Another, this Court hsld on construction of Section 10(1) of the Central Act that the function of the appropriate Government thereunder is as administrative function. It was so held presumably because the Government cannot go into the merits of the dispute, its function being only to refer scuh a dispute for adjudication so that the industrial relations between the employer and his employees may not continue to remain disputed and the dispute man be resolved through a judicial process as speedily as possible. In the light of the nature of the function of the Government and the object for which the power is conferred on it, it would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a reconsideration of the matter either because new facts have come to light or because it had misunderstood the existing facts or for any other relevant cosideration and decide to make ,the reference. But where it reconsiders its earlier decision it can make the reference only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other indistrial dispute-ef The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, . Such a view has been taken by the High Courts of Andhra Pradesh Madras, Allahabad, Rajasthan, Punjab and Madhya Pradesh see G Gurumurthy v. K. Ramulu (1958) 1 Lab LJ 20 : AIR 1958 AP 276), Vasadev Rao v. State of Mysore (1963) 2 Lab LJ 717 (Mys), Rawalpindi Victory Transport Co. (P) Ltd. v. State of Punjab (1964) 1. Lab LJ 644 Champion Cycle Industries Vs. State of Uttar Pradesh and Others, , Goodyear (India) Ltd. Jaipur v. Industrial Tribunal (1968) 2 Lab LJ 682 : (AIR 1969 Raj 95) and Rewa Coal Fields Ltd., Dhanpuri, Shahdol and Another Vs. Central Govt. Industrial Tribunal-cum-Labour Court, Jabalpur and Others, . The reason given in these decisions is that the function of the Government either u/s 10(1) of the Central Act or a similar provision in a State Act being administrative, Principles such as res judicata applicable to judicial acts do not apply and such a principle cannot be imported for consideration when the Government first refuses to refer and later changes its mind. In fact, when the Government refuses to make a reference it does not exercise its power: on the other hand it refuses to exercise its power and it is only when it decides to refer that it exercise its power. Consequently, the power to refer cannot be said to have been exhausted it has declined to make a reference at an earlier stage. There is thus a considerable body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that it is so, the fact that it had earlier refused to exercise its power does not preclude it from exercising it at a later stage in this view the mere fact that there has been a lapse of time or a party to the dispute was, by the earlier refusal, led to believe that there would be no reference and acts upon such belief, does not affect the jurisdiction of the Government to make the reference.

Having been shown these two authorities Sri V. B. Singh argued that in the Full Bench Decision of Karnataka High Court, Western Watch Co. decision (supra) has been considered but the view taken therein is that a right of hearing should be afforded to an employee. It was argued that the principle of Audi Alteram Partem should be held applicable in these two cases following the dictum laid down in the aforesaid Full Bench. There are two objections to the said argument from being accepted. Firstly, section 4-K of the Industrial Disputes Act was being considered by their Lordships of the Supreme Court whiie deciding the Western Watch Co. case (supra). Therefore, the binding nature of this precedential Authority cannot be doubted while it is true that the Full Bench of the Karnataka High Court has taken the view that a right of hearing should be conferred if the Government is making a reference at a later stage having once already taken a view of not making a reference. Secondly, the very making of the reference can be said to be exercising the powers u/s 4-K or the said Act or section 10 of the Central Act. Not making a reference or refusing to make a reference cannot be said to be exercising a power of making a reference. Therefore with great respect to the decision of the Full Bench of Karnataka High Court, this Court is finding itself so much bound by the said decision of the Supreme Court that the persuasive value of the aforesaid Full Bench has lost its efficacy.

While interpreting section 4-K of the U.P. Industrial Disputes Act or section 10 of the Central Act one cannot be oblivious of the fact that the provisions in these Acts are calculated to ensure social iustice to both the employers and the employees and advance the progress of industry by bringing in the existence of harmon and cordial relations between the parties. One has to remember that the object of the industrial law is two fold, firstly, to improve the service conditions of an industrial labour so as to provide for them the ordinary amenities of life and, secondly, by that process to bring about industrial peace which would in its turn accelerate the productive activity of the country resulting in the prosperity of the country. Moreover, the Act is a self-contained Act which provides for suitable machinery for deciding the disputes that arise between the employer and the employee. It is to be noted that once the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suit or is to get an adjudication under the Act. It is perhaps correct to hold that where dispute raised is really an industrial dispute for adjudication of which machinery and remedy has been provided in the Industrial Disputes Act under which special Tribunals have been constituted, the jurisdiction of the civil Court is by implication excluded to deal with the dispute. The Industrial Disputes Act being a special statute providing'' for a complete machinery for dealing with such disputes, the jurisdiction of the civil courts is impliedly barred and the civil courts would not entertain such a suit.

The dismissal of an employee/workman from employment can never be taken not to raise any industrial dispute per se. A worker who has lost his job must be held to have a say through the process of law to the Tribunal or the Court established under the Industrial Disputes Act for redressal of his grievances. To hold anything otherwise is likely to result in a great miscarriage of justice making the otherwise week and less effective part, though called important in the industrial process, i.e., the labour, wholly unprotected by legal machinery.

The alternative argument advanced by the learned Counsel for the Petitioner was that in the case of Rajiv Ratan Lal Srivastava about 11 years having elapsed between the date on which the dismissal of the employee took place and the date when the reference was made and, therefore, it should be held that the dispute has lost the characters of being an industrial dispute. Much though one wished to accept the said arguments in this case but the fact remains that such a view may be tenable if some skilled workman or some specially qualified workman was involved. The respondeat Rajiv Ratan Lal Srivastava was an Assistant Chashier from which post he has been dismissed by the employers. Admittedly the dispute referred is as to whether the said dismissal was illegal or legal and binding and to what relief the employee is entitled. Under the circumstances the said argument of about 11 years having elapsed and, therefore, the dispute lesing the character of an industrial dispute, is not available to the Petitioner in this case. Rightly the learned Counsel for the Petitioner did not advance this argument with regard to the case of Surendra Singh because in that case only about 4 years have elapsed. It may be clarified at once that the observations therein made will not have any bearing whatsoever when the matter is proceeded with in the Labour Court, which shall lawfully determine all questions of fact and law wholly uninfluenced by any observations made in this judment so that the cases of the parties are decided strictly on the basis of merits and circumstances placed before it. No other decision was cited and no other point was argued.

Therefore, these two writ petitions are dismissed summarily at the admission stage.