Telco
Convoy Drivers Mazdoor Sangh & Anr Vs. State of Bihar & Ors [1989] INSC
147 (28 April 1989)
Dutt,
M.M. (J) Dutt, M.M. (J) Thommen, T.K. (J)
CITATION:
1989 AIR 1565 1989 SCR (2) 802 1989 SCC (3) 271 JT 1989 Supl. 155 1989 SCALE
(1)1544
ACT:
Industrial
Disputes Act, 1947: Sections 10 and 12--Industrial Dispute--Appropriate
Government--Power to make a reference-Nature of--Whether includes power to
delve into merits of dispute-Formation of opinion by Government--Whether
dispute 'Exists or is Apprehended'--Whether same thing as to adjudicate the
dispute on its merits--Court--When can direct the Government to make a
reference.
HEAD NOTE:
The
appellant-Telco Convoy Drivers Mazdoor Sangh, represented to the Tara
Engineering & Locomotive Co. Ltd. (TELCO) demanding that all convoy drivers
should be given permanent status and facilities that are available to the
permanent employees of TELCO. The Deputy Labour Commissioner refused to make a
reference under section 10(1) of the Industrial Disputes Act, 1947 because of
the opinion of the Law Department that there was no relationship of master and
servant between TELCO and the convoy drivers.
The
appellant-Sangh flied a writ petition in the High Court praying for a writ of
mandamus commanding the State of Bihar to refer the dispute under section 10(1) of the Act.
The
High Court dismissed the petition but granted liberty to the appellant-Sangh to
reagitate the matter before the appropriate Government.
On a
further representation also the Deputy Labour Commissioner refused to make a
reference under section 10(1) of the Act. Again, the appellant-Sangh moved a
writ petition in the High Court which summarily dismissed the petition holding
that the appellants had failed to satisfy that they were employed by the TELCO.
Hence this appeal by Special leave. After the conclusion of the hearing, the
Court being of the view that the Government should be given one more chance to
consider the question of making a reference, kept the appeal pending and
directed the Government to reconsider the question of referring the dispute.
Upon reconsideration also the Government refused to make a reference under
section 10(1) of the Act. On the question: whether an appropriate Government
exercising power to make a reference under section 10(1) of the Industrial
Disputes Act, 1947 can delve into the 803 merits of the dispute and adjudicate
upon the dispute itself.
Allowing
the appeal and setting aside the judgment of the High Court,
HELD:
1. In considering the question of making a reference under section 10(1), the
Government is entitled to form an opinion as to whether an industrial dispute
"exists or is apprehended". The formation of opinion as to whether an
industrial dispute "exists or is apprehended" is not the same thing
as to adjudicate the dispute itself on its merits. [807A]
2.
While exercising power under section 10(1) of the Act, the function of the
appropriate Government is an administrative function and not a judicial or
quasi-judicial function, and 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. [807F] Ram Avtar Sharma v. State of Haryana, [1985] 3 S.C.R. 686; M.P.
Irrigation Karamchari Sangh v. The State of M.P.,
[1985] 2 S.C.R. 1019 and Shambhu Nath Goyal v. Bank of Baroda, Jullundhur,
[1978] 2 S.C.R. 793 applied.
2.1 In
the instant case, the dispute is as to whether the convoy drivers are employees
or workmen, of TELCO, that is to say, whether there is relationship of employer
and employees between TELCO and the convoy drivers, the same cannot be decided
by the Government in exercise of its administrative function under section
10(1) of the Act.
Therefore,
the State Government was not justified in adjudicating the said dispute. [807B,
807H, 808A]
3.
There may be exceptional cases in which the State Government may come to a
conclusion that the demands are either perverse or frivolous and do not merit a
reference.
But
the Government should be very slow to attempt an examination of the demand with
a view to declining reference and Courts will always be vigilant whenever the
Government attempts to usurp the powers of the Tribunal for adjudication of
valid disputes, and that to allow the Government to do so would be to render
section 10 and section 12(5) of the Act nugatory. [808A-C] 804 M.P. Irrigation Karamchari
Sangh v. The State of M.P., [1985] 2 S.C.R. 1019 applied.
4. In
the instant case, in view of the fact that the Government has persistently
declined to make a reference and even after reconsideration has adjudicated the
dispute itself, the dispute should be adjudicated by the Industrial Tribunal.
[808E] The State of Bihar is directed to make a reference of the dispute raised
by the Telco Convoy Drivers Mazdoor Sangh to an appropriate Industrial Tribunal
under section 10(1) of the Act. [808H, 809A] Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamilnadu,
[1983] 1 L.L.J. 460; Ram Avtar Sharma v. State of Haryana, [1985] 3 S.C.R. 686; M.P.
Irrigation Karamchari Sangh v. The State of M.P.,
[1985] 2 S.C.R. 1019 and Nirmal Singh v. State of Punjab, [1984] 2 L.L.J. 396; applied.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2534 of 1989.
From
the Judgment and Order dated 15.1.1988 of the High Court in C.W.J.C. No. 1852
of 1987.
G.B. Pai,
S.K. Sinha for the Appellants.
Shanti
Bhushan, S. Sukumaran, D.N. Misra, S.B. Upadhyay and B.B. Singh for the
Respondents.
The
Judgment of the Court was delivered by DUTT, J. Special leave is granted. Heard
learned Counsel for the parties.
The
appellants, Telco Convoy Drivers Mazdoor Sangh, Jamshedpur, and another, have
preferred this appeal against the judgment of the Patna High Court whereby the
High Court dismissed the writ petition of the appellants challenging the order
of the State of Bihar refusing to make a reference of the disputes raised by
the appellants to the Industrial Tribunal under section 10 of the Industrial
Disputes Act, 1947, hereinafter referred to as "the Act".
The
appellant-Sangh represents about 900 convoy drivers. By a 805 letter of demand
dated October 16, 1986 addressed to the General Manager of the Tata Engineering
& Locomotive Co. Ltd., Jamshedpur (for short "TELCO"), the Sangh
demanded that permanent status should be given by the management to all the
convoy drivers, and that they should also be given all the facilities as are
available to the permanent employees of TELCO on the dates of their
appointment. The said demand proceeds on the basis that the convoy drivers are
all workmen of TELCO. The dispute that has been raised in the said letter of
demand is principally whether the convoy drivers are workmen and/or employees
of TELCO or not. In other words, whether there is relationship of employer and
employees between TELCO and the convoy drivers.
The
Deputy Labour Commissioner by his letter dated February 26, 1979 informed the
appellant-Sangh that in view of the opinion of the Law Department of the year
1973 to the effect that there was no relationship of master and servant between
TELCO and the convoy drivers, the demands of the convoy drivers did not come
within the purview of the Act and, accordingly, it was not possible to take any
action in regard to the dispute of convoy drivers under the Act. The appellant-Sangh
being aggrieved by the said refusal to make a reference under section 10(1) of
the Act, moved before the Ranchi Bench of the Patna High Court a writ petition
praying for a writ of mandamus commanding the State of Bihar to refer the dispute under section
10(1) of the Act. A learned Single Judge of the High Court, who heard the writ
petition, took the view that the letter of the Deputy Labour Commissioner only
referred to the Law Department's opinion of the year 1973 without indicating in
what context and under what circumstances, he rejected the demand for a
reference. In that view of the matter, the learned Judge granted liberty to the
Sangh to reagitate the mater before the appropriate Government and expressed
the hope that the appropriate Government would consider the matter in a proper
perspective in the light of the documents and the materials that would be
placed by the Sangh, in accordance with law. The writ petition was dismissed
subject, however, to the observation and direction mentioned above.
Pursuant
to the liberty granted by the High Court, the Sangh made a representation to
the Government for a reference of the dispute under section 10(1) of the Act.
The Deputy Labour Commissioner, Jamshedpur, by his letter dated November 6, 1986
gave the same reply and refused to make a reference.
806
Again, the appellant-Sangh moved a writ petition before the High Court and, as
stated already, the High Court summarily dismissed the same holding that the
appellants had failed to prima facie satisfy that they were employed either by
TELCO or by the Telco Contractors' Association. Hence this appeal.
It has
been urged by Mr. Pai, learned Counsel appearing on behalf of the appellants,
that the Government exceeded its jurisdiction in purporting to decide the
dispute raised by the appellant-Sangh in the said letter of demand. Counsel
submits that in the facts and circumstances of the case, the Government should
have made a reference to the Industrial Tribunal under section 10(1) of the Act
for the adjudication of the dispute of the convoy drivers and should not have
embarked upon the task of deciding the dispute on its merits through the Deputy
Labour Commissioner.
On the
other hand, it has been vehemently urged by Mr. Shanti Bhusan, learned Counsel
appearing on behalf of TELCO, that the Government has the jurisdiction to
consider whether any industrial dispute exists or not and, in considering the
same, as the Government found that the convoy drivers were not even workmen of
TELCO or, in other words, there had been no relationship of master and servants
between TELCO and the convoy drivers, the Government refused to make a
reference of the dispute under section 10(1) of the Act. It is submitted that
the refusal by the Government to make a reference was perfectly within its
jurisdiction inasmuch as, in the opinion of the Government, there was no
existence of any industrial dispute.
After
conclusion of the hearing, we took the view that the Government should be given
one more chance to consider the question of making a reference and,
accordingly, we by our order dated March 30, 1989 directed the Government to
reconsider the question of referring the dispute raised by the convoy drivers
to the Industrial Tribunal under section 10 of the Act, keeping the appeal
pending before us.
The
learned Counsel, appearing on behalf of the Government, has produced before us
an order dated April
13, 1989 of the
Government whereby the Government has, upon a reconsideration of the matter,
refused to make a reference under section 10(1) of the Act. In refusing to make
a reference, the Government has adjudicated the dispute on its merits.
807 It
is true that in considering the question of making a reference under section
10(1), the Government is entitled to form an opinion as to whether an
industrial dispute "exists or is apprehended", as urged by Mr. Shanti
Bhusan. The formation of opinion as to whether an industrial dispute
"exists or is apprehended" is not the same thing as to adjudicate the
dispute itself on its merits. In the instant case, as already stated, the
dispute is as to whether the convoy drivers are employees or workmen of TELCO,
that is to say, whether there is relationship of employer and employees between
TELCO and the convoy drivers. In considering the question whether a refer,
should be made or not, the Deputy Labour Commissioner and/or the Government
have held that the convoy drivers are not workmen and, accordingly, no
reference can be made. Thus, the dispute has been decided by the Government
which is undoubtedly, not permissible.
It is,
however, submitted on behalf of TELCO that unless there is relationship of
employer and employees or, in other words, unless those who are raising the
disputes are workmen, there cannot be any existence of industrial dispute
within the meaning of the term as defined in section 2(k) of the Act. It is
urged that in order to form an opinion as to whether an industrial dispute
exists or is apprehended, one of the factors that has to be considered by the
Government is whether the persons who are raising the disputes are workmen or
not within the meaning of the definition as contained in section 2(k) of the
Act.
Attractive
though the contention is, we regret, we are unable to accept the same. It is
now well settled that, while exercising power under section 10(1) of the Act,
the function of the appropriate Government is an administrative function and
not a judicial or quasijudicial 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.
See Ram Avtar Sharma v. State of Haryana, [1985] 3 SCR 686; M.P. Irrigation Kararnchari
Sangh v. The State of M.P., [1985] 2 SCR 1019 and Shambhu Nath
Goyal v. Bank of Baroda, Jullundur, [1978] 2 SCR 793.
Applying
the principle laid down by this Court in the above decisions, there can be no
doubt that the Government was not justified in deciding the dispute. Where, as
in the instant case, the dispute is 808 whether the person raising the dispute
are workmen or not, the same cannot be decided by the Government in exercise of
its administrative function under section 10(1) of the Act.
As has
been held in M.P. Irrigation Karamchari Sangh's case (supra), 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. Further, the Government should be very
slow to attempt an examination of the demand with a view to declining reference
and Courts will always be vigilant whenever the Government attempts to usurp
the powers of the Tribunal for adjudication of valid disputes, and that to
allow the Government to do so would be to render section 10 and section 12(5)
of the Act nugatory.
We
are, therefore, of the view that the State Government, which is the appropriate
Government, was not justified in adjudicating the dispute, namely, whether the
convoy drivers are workmen or employees of TELCO or not and, accordingly, the
impugned orders of the Deputy Labour Commissioner acting on behalf of the
Government and that of the Government itself cannot be sustained.
It has
been already stated that we had given one more chance to the Government to
reconsider the matter ,red the Government after reconsideration has come to the
same conclusion that the convoy drivers are not workmen of TELCO thereby
adjudicating the dispute itself. After having considered the facts and
circumstances of the case and having given our best consideration in the
matter, we are of the view that the dispute should be adjudicated by the
Industrial Tribunal and, as the Government has persistently declined to make a
reference under section 10(1) of the Act, we think we should direct the
Government to make such a reference. In several instances this Court had to
direct the Government to make a reference under section 10(1) when the
Government had declined to make such a reference and this Court was of the view
that such a reference should have been made. See Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nnadu,
[1983] 1 LLJ 460; Ram Avtar Sharma v. State of Haryana, [1985] 3 SCR 686; M.P. Irrigation Karamchari Sangh v. The
State of M.P. [1985] 2 SCR 1019 and Nirmal Singh v. State of Punjab, [1984] 2
LLJ396.
In the
circumstances, we direct the State of Bihar to make a reference under section 10(1)
of the Act of the dispute raised by the 809 Telco Convoy Drivers Mazdoor Sangh
by its letter dated October 16, 1986 addressed to the General Manager TELCO
(Annexure R-4/1 to the Special Leave Petition), to an appropriate Industrial
Tribunal within one month from today.
The
appeal is allowed and the judgment of the High Court and the impugned orders
are set aside. There will, however, be no order as to costs.
T.N.A.
Appeal allowed.
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