Akhtar Ansari vs The State of Jharkhand

Heard counsel for the petitioner, Union of India and BCCL.

The Ministry of Labour, Government of India by the impugned

communication at Annexure-6 dated 16.07.2014, has rejected the application for

reference of a dispute raised by the petitioner Union for adjudication on account of

the following reasons.

"The demand of Rashtriya Colliery Mazdoor Congress, Dhanbad for regularization of Services to S/Sh. Dhirendra Kumar Yadav & 47 others in the Gopalichak Colliery of BCCL cannot be acceded as they never worked under the direct control of the Management of BCCL from 1988-1990. Moreover, the Union failed to produce any documentary evidence like appointment letter, pay Slip, I. D. Card and FORM-B register etc. in support of their claim that they had worked under the direct control of the Management."

Petitioner Union by representation dated 31.10.2012 to the Assistant Labour

Commissioner (Central), Dhanbad sought reference of the dispute relating to illegal

and arbitrary denial of regularization of Dhirendra Kumar Yadav and others alleging

that they have been working as Shramik Sahyog Samity Cooperative Workers in

Gopalichak Colliery of M/s BCCL between the period 1988 to 1991. Their names

and designation with their attendance were said to be enclosed with the

representation raising their claim of regularization in service on the plea that they

were performing permanent nature of job under the direct control and supervision of

the Management of Dugdha Colliery under BCCL.

The Management objected to the plea before the Conciliation Officer,

Dhanbad vide Annexure-4 dated 03.04.2013. On failure of conciliation thereafter, a

report was submitted to the Ministry of Labour. The request for reference of an

industrial dispute has been declined by the impugned order on account of the

reasons quoted herein-above.

The Respondent BCCL has through its counter affidavit, also categorically

denied any relationship of employer and employee with the Member of the

petitioner Union for the period 1988-90. It has also taken the plea that Union has

failed to produce any document before the Conciliator or before this Court. The

dispute, if any, is more than 25 years old which has rightly been refused by the

Appropriate Government.

Respondent Union of India has also defended its decision through counter

affidavit filed on 16.02.2016 and thereafter by way of supplementary counter

affidavit filed today with copy to the other side served yesterday. It has supported its

stand on the grounds that the petitioner Union failed to produce any documentary

evidence like appointment letter, pay slip, I.D. Card, form-B register, etc in support

of its claim that they had worked under the direct control of the Management. No

prima facie case was made out for making reference of the dispute raised by the

petitioner for adjudication. In the supplementary counter affidavit again, the

Respondent Union of India has stated that the document enclosed as Annexure-A

was not even a document of the Management of Gopalichak Colliery of M/s BCCL,

but it was the document purportedly signed by the Agent of Gopalichak Colliery,

which appears to be a fabricated one.

No other documents have been furnished by the petitioner in the present writ

application as well to substantiate its contention. Counsel for the petitioner has

however relied upon the judgment rendered by the Apex Court in the case of Sarva

Shramik Sangh vs. Indian Oil Corporation Ltd. & Ors . [AIR 2009 Supreme

Court 2355] and in the case of Telco Convoy Drivers Sangh and another vs.

State of Bihar and others [AIR 1989 Supreme Court 1565] in support of its

contention that Union of India would not have acted in the manner of an

adjudicatory forum to refuse reference of the dispute. If prima facie the petitioner

Union had been able to make out a case for reference of industrial dispute, the

Respondent Union of India should not have gone into the merits of the dispute and

rejected the application on the grounds taken in the impugned order.

Counsel for the Respondent BCCL has also referred to the Judgment

rendered by the Apex Court in the case of Secretary, Indian Tea Association vs.

Ajit Kumar Barat and others [(2000) 3 SCC 93] to support the contention that

formation of prima facie opinion about the existence of a dispute on the basis of

materials adduced before the referring authority is sine qua non. The plea of the

petitioner for seeking reference has also been opposed on the ground of being stale

having been raised after 22 years from the date the alleged cause of action had

arisen.

I have considered the submissions of the parties and gone through the

relevant materials on record including the impugned order as also the judgment cited

by the parties. The principle of law on the subject relating to the power of

Appropriate Government to make a reference of industrial dispute for adjudication

before the Labour Court, is well settled by catena of judgments also referred to in

the judgment rendered by the Apex Court in the case of Sarva Shramik Sangh

(Supra) relied upon by the petitioner themselves. It is true that Government

exercising administrative functioning while making reference, cannot go into the

merits of the dispute. The provisions of Section 10 of Industrial Disputes Act which

confers discretionary power on the Appropriate Government to make a reference

entails a prima facie satisfaction of the Government of the existence of an industrial

dispute or that it is apprehended. Formation of such an opinion as to the factual

existence of industrial dispute is a preliminary subject for discharge of such

function.

In the present case, neither before the Conciliatory Authority / Referring

Authority, nor before this Court, petitioner has been able to produce any material

whatsoever even in the namesake to substantiate its plea of existence of a

relationship with the Management of BCCL for the period 1988 to 1991 when its

Members claimed to have worked in the Gopalichak Colliery. The subjective

satisfaction of the Referring Authority could not have been derived in absence of

any such foundational material at all to make such a reference. The reasons reflected

in the impugned order are also substantiated by their stand in the counter affidavit.

Petitioner has not been able to make a dent in the aforesaid stand of the

Respondents. Therefore, on scrutiny of the order impugned under powers of judicial

review, the decision cannot be said to suffer from any illegality, irrationality or

perversity or that they are based on any irrelevant consideration. Judgments relied

upon by the petitioner in such circumstances, do not support their case. Accordingly,

the writ petition is dismissed as being devoid of any merit.