Workmen Employed By The Hindustan Lever Ltd. vs The State of Madras and Another

Ramakrishnan, J.—The Petitioner in this writ: petition is the secretary, of the Hindustan Lever Mazdoor Sabha, representing the workmen

employed by the Hindustan Lever Limited, Tiruchirappalli. The first Respondent is the State of Madras and the second Respondent is the

management of Messrs Hindustan Lever Limited. Apparently, there was a strike of the workers of the second Respondent some time in August,

1961, and certain disputes that arose in connection with that strike were referred to the conciliation officer, who submitted a failure report. Then

the union approached the Government to make a reference u/s 10 of the Industrial Disputes Act of 1947 to the Labour Court for adjudication. The

Government in G.O. Ms. No. 5832, Labour, dated 28th November 1962, recorded that they had examined the conciliation report, and then

proceeded to pass orders giving reasons for declining to make a reference. The reasons given by the Government in their order are relatable to a

number of items of grievance. Out of these items, in the present petition, the Petitioner union has attacked the propriety of the Government''s order

declining to make a reference in regard to three items. They are:

(i) Non-payment of wages to Sri Palaniandi, ammonia compressor driver, for two days on 2nd August 1961 and 3rd August 1961;

(ii) Wages for the period of suspension; and

(iii) Casual labourers and contract labourers in the soap godown.

I will take up first the order of the Government dealing with the first item above, because that was the item that was most strenuously pressed

before me for consideration. It is common ground that Palaniandi was employed as a driver in the ammonia compressor department. The workers

went on strike on 2nd August 1961. At that stage, a discussion seems to have arisen as to what items of work should be considered as essential

and what non-essential. According to a letter of the union, a copy of which has been filed before me, it was only some time after the strike had

commenced that it was agreed that the job of ammonia compressor driver should be treated as an essential service, while the shift fitter''s job was

one of these items agreed to be treated as a non-essential service. It is common ground that Palaniandi, who was an ammonia compressor driver,

was posted to do the shift fitter''s job on the 2nd and 3rd in the vacancy of a shift fitter who had gone on leave. According to the union, when

Palaniandi offered himself for work as shift fitter on the 2nd and 3rd, he was not given that job and was not also posted back as ammonia

compressor driver, which was his original post. He was posted to do the job of ammonia compressor driver only on the 4th August 1961, but at

the same time he was not given wages either as ammonia compressor driver or as shift fitter for the 2nd and 3rd. According to the union''s further

case, he was treated in this manner by the management as a discriminatory measure, because he was a member of the union.

The plea put forward by the management in their counter-affidavit in regard to the case of Palaniandi was that the post of shift fitter and

ammonia compressor driver carry the same pay, and usually people are posted from the one job to the other when there is a leave vacancy. As

early as 26th July 1961, a shift fitter by name Subramanyam had been granted leave for the 2nd, 3rd, 4th and 5th and the arrangement made even

on that day, was that Palaniandi should do the shift fitter''s duty in the leave vacancy, that on the 2nd and 3rd, another worker by name Kudus

should do that duty in the leave vacancy on the 4th and 5th, and that Palaniandi should go back to his post as ammonia compressor driver on the

4th. When Palaniandi had been posted to look after the shift fitter''s job on the 2nd and 3rd, a promotee from a lower grade by name Fernandez

had been posted to do the duties of ammonia compressor driver on the 2nd and 3rd in the place of Palaniandi. The intervention of the strike was

not anticipated when the above leave arrangements were made. Therefore, on the 2nd and 3rd, since Palaniandi had been posted as shift fitter and

the shift fitter''s establishment did not work on those days on account of the strike, as it was treated by agreement to be a non-essential service, he

could neither be allotted the work of shift fitter nor could he be posted back as ammonia compressor driver, because arrangements had been made

by posting another person to the latter post for the period. Only, when Kudus took over the absent shift fitter''s post on the 4th was the

management free to post Palaniandi back to his original post. The management strongly relied upon the fact of their posting Palaniandi back to the

job of ammonia compressor driver on the 4th as evidence of their bona fides and in rebuttal of the claim by the union of discrimination against

Palaniandi. When confronted with this plea, all that the union could say was that the management posted Palaniandi as ammonia compressor driver

on the 4th because they grew afraid, when the union sponsored the case of Palaniandi. If, as alleged, Palaniandi was a prominent member of the

union and the management had intended to victimise him, it is very unlikely that they would have so readily taken him back on the 4th, even though

the strike was still in progress on that day. The union had not at all controverted the plea of the management about the arrangements which they

had made, even on the 26th July, even before they had any idea about the impending strike, to fill up the leave vacancy, and the management was

able to relate the failure to give employment to Palaniandi on the 2nd and 3rd, and their posting him back as ammonia compressor driver on the

4th, to the aforesaid prior leave arrangement. They relied on this circumstance as strong evidence of their bona fides.

The conciliation report has referred no doubt rather briefly to these circumstances, and the Government while dealing with this ground has given

its reasons shortly thus:

It is reported that due to the absence of the shift fitter, Sri Palaniandi was deputed as shift fitter on 2nd August 1961 and 3rd August 1961 and as

the post of shift fitter was declared as non-essential during the strike period, Sri Palaniandi could not be given work for these two days. It is also

reported that on 4th August 1961 when a relieving fitter was posted, Palaniandi was given his old post of ammonia compressor driver and thus

there is no discrimination. No unfair labour practice has been reported.

It is clear that the reason given by the Government is based upon the facts set out by the management, taken in conjunction with the conciliation

officer''s report. The learned Counsel for the Petitioner urged that the Government in recording the above said reasons for refusing to make a

reference, exceeded its jurisdiction, for the purpose of deciding whether a dispute exists or not, requiring reference to the Labour Court for

compulsory adjudication. I am unable to agree with this contention. The general principles for application in such cases have been laid down by

several decisions of the Supreme Court and of this Court. Out of them, those cited before me are:

(i) State of Bombay Vs. K.P. Krishnan and Others, ;

(ii) State of Madras Vs. C.P. Sarathy and Another,

(iii) Bombay Union of Journalists and Others Vs. The State of Bombay and Another, and

(iv) Government of Madras v. Workmen of the South India Saiva Siddhanta Works Publishing Society ILR (1964) 1 Mad.850

The principles laid down in those decisions may be summarised as follows:

(i) In making a decision as to whether it should make a reference or not, the Government need not confine itself to the conciliation officer''s report.

It can go into other facts which have come to its notice and which are relevant for the purpose. Vide State of Bombay Vs. K.P. Krishnan and

Others, where at page 1228, it has been observed:

...the appropriate Government would naturally consider the report(of the Conciliation Officer) very carefully and treat it as furnishing the relevant

material which would enable it to decide whether a case for reference has been made or not; but the words of Section 12 (5) do not suggest that

the report is the only material on which the Government must base its conclusion. It would be open to the Government to consider other relevant

facts which may come to its knowledge or which may be brought to its notice, and it is in the light of all these relevant facts that it has to come to its

decision whether a reference should be made or not.

(ii) For the purpose of deciding whether a reference should or should not be made to the Labour Court or Tribunal, the Government can go into

the facts (Vide the same report at page 1228), and find out whether a prima facie case for reference has been made out on the merits. This view

has been followed in Bombay Union of Journalists and Others Vs. The State of Bombay and Another, and by this Court in Government of Madras

v. Workmen of the South India Saiva Siddhanta Works Publishing Society ILR (1964) 1 Mad. 850 where it is observed at page 857:

It will be clear from the foregoing passages that the Government cannot avoid considering the merits of the case and other relevant circumstances

adverted to above, for the limited purpose of making up its mind either to refer the case for adjudication or not.

(iii) But where there is disputed question of fact, the Government cannot reach a final conclusion on those facts and it will be for the Labour Court

to reach a conclusion. In Bombay Union of Journalists and Others Vs. The State of Bombay and Another, , the Supreme Court observed that on a

disputed question of fact, the appropriate Government cannot purport to reach a final conclusion, for that would be the province of the Industrial

Tribunal. The decision of Veeraswami J. in Salem Dt. Textile Workers Union v. State of Madras (1964) 1 LLJ. 79 which was cited before me in

this connection must be understood as a decision relating to a case where the appropriate Government reached a final conclusion on a disputed

question of fact.

(iv) The Government should exercise its discretion bona fide in the matter of deciding whether to make a reference or not State of Bombay Vs.

K.P. Krishnan and Others,

(v) When the Government declines to make a . reference, it is obliged to state its reasons, but it need not record all the reasons in the sense that the

reasons should be exhaustive; but the reasons which are given should be relevant and should not be extraneous to the subject-matter. (Vide State

of Bombay Vs. K.P. Krishnan and Others,

(vi) If the Government makes a reference, the Court cannot in a writ petition go into the question whether it acted properly in making the reference

State of Madras Vs. C.P. Sarathy and Another, There Patanjali Sastri C.J., at page 57, observed thus:

...if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances

of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference and

quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have

come to an affirmative conclusion on these matters.

Applying the above said principles to this case, it must be found that so far as the worker Palaniandi is concerned, there were precise facts

alleged in the plea of the management which required to be traversed by the union, before it could be held for prima facie purposes, that the

withholding of his pay for two days amounted to victimisation or an unfair labour practice. The plea was that his non-employment on the 2nd and

3rd was due to circumstances wholly fortuitous. There was no denial of the case of the management that there was even an earlier arrangement to

provide for a leave vacancy, and that the classification of the shift fitter''s job as non-essential and the ammonia compressor driver''s job as

essential was an entirely subsequent and accidental development. The management also relied strongly upon the re-posting of the worker

Palaniandi on the 4th to the ammonia compressor driver''s job as evidence of its bona fides. The union has attributed this act of the management as

due to fear of the union. This appears to be a totally frivolous and unsupportable reason. It is certainly open to the Government when considering a

case for the purpose of prima facie determination to see whether the union has controverted the case of the management with plausible reason or

with reasons which are frivolous or prima facie unsustainable. Such a determination cannot be equated to a final decision on a question of fact, and

in giving the decision the Government cannot be considered as going beyond the scope of its jurisdiction. I am of the opinion that the attack on the

validity of the Government''s order on the first ground has to fail.

The Government has dealt with the question of wages for the period of suspension by observing that it was reported that the workers were

punished after they were found guilty and that full opportunity had been given to them to defend themselves in the enquiry by the management. In

the affidavit accompanying the petition, except to allege that the employer was actuated by mala fides, unfair labour practice and victimisation in

dealing with the workers in this way, nothing had been alleged to show that the reasons given by the Government are extraneous or not germane,

or that the Government had exceeded its power in making an appraisal of a question of fact for prima facie purposes, or that the Government

acted mala fide. The counter-affidavit of the management has set out the circumstances under which it had to take disciplinary action against 14

workers who indulged in go-slow tactics. It is alleged that on the undertaking of the workers that they would not indulge in such tactics in the

future, the punishment of dismissal was modified to one of suspension for four days. In the case of four other persons coming under this head, after

a full enquiry, they were allowed to resume work on and from 28th July 1961, after the period of suspension was over from 12th July 1961, when

they caused obstruction to the other workers. No material was placed before me to show that the reasons given by the Government are

unsupportable or vitiated on account of the non-observance of any of the principles set out above.

The third ground relates to casual labourers and contract labourers in the soap godown. The Government stated in their order that the workers

in the soap godown were taken on contract and were not connected with the manufacturing process in the factory and that they could not be

absorbed in the factory as permanent workers. Though several allegations were made in the affidavit accompanying the petition regarding this item

of dispute, in the counter-affidavit of the management, it was alleged that the issue was no longer a live one, as the soap godown was abolished in

1963, and there was no question of employing labour through any contractor. No doubt, this reason is not given in the Government''s order, but

the Petitioner has not controverted the allegation made in the counter-affidavit about the issue no longer being a live one. Therefore, no interference

with the order is called for in regard to this item.

In view of the foregoing, the writ petition is dismissed. There will be no order as to costs.