Bhika Ram vs State of Rajasthan and Others

B.J. Shethna, J.—This special appeal is arising out of the judgment and order dated May 6, 1998 passed by the learned single Judge of this Court dismissing the Writ Petition No. 2513/1993 filed by the appellant/petitioner.

The appellant workman was appointed on muster-roll basis as a workman in the Public Works Department, Sirohi Division on October 1, 1987. In the month of July 1991, his services were terminated by an oral retrenchment order. He, therefore, moved the Conciliation Officer and Labour Welfare Officer, Sirohi-respondent No. 5 raising industrial dispute about his illegal retrenchment from service on the ground that he has completed 240 working days in a calender year with the respondent department. However, the respondent No. 1 refused to refer the dispute to the Labour Court for its decision on the ground that the workman had not completed 240 working days in one calender year, by his impugned order dated April 16, 1993 Annexure 2 to the writ petition). Aggrieved of that order, the appellant filed the Writ Petition No. 2513/1993 before this Court with a prayer to quash and set aside the oral retrenchment order passed in July, 1991. The learned single Judge after hearing both the learned counsel for the parties dismissed the writ petition by holding that the workman failed to prove that he had completed 240 working days in a calender year, therefore, there was no violation of Section 25-F of the Industrial Disputes Act (for short ''the Act''). The learned single Judge further held that the State Government had not committed any error in refusing to make the reference to the Labour Court for the correct adjudication of the dispute by the impugned order dated April 16, 1993. Hence, this special appeal.

u/s 10 of the Act, the appropriate Government has to make reference either to the Labour Court or the Industrial Tribunal if it is satisfied that there was a dispute between the parties. It appears from the impugned order dated April 16, 1993 that the State Government itself undertook the exercise of deciding as to whether the workman has completed 240 days or not and arrived at the conclusion that the workman failed to prove that he had worked for 240 days in a calender year. In our considered opinion, the State Government had no jurisdiction. It had to only prima facie satisfy as to whether there was a dispute between the workman and the other, side. Once it comes to the conclusion that there was a dispute, then it had to refer the dispute to the competent Labour Court or the Industrial Tribunal, as the case may be. It is only the Labour Court or the Industrial Tribunal which is competent to decide whether there was any dispute or not and the workman was rightly or wrongly terminated from service.

In case of Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, the Hon''ble Supreme Court held that refusal to make reference on the part of the State Government was wholly unjustified. It had further held that such decision should not be based on merits of the dispute itself as the Government''s, function u/s 10(1) of the Act is purely an administrative function.

In case of Bombay Union of Journalists and Others Vs. The State of Bombay and Another, the main contention raised before the Apex Court was that the reasons given by the State Government for refusing to make reference considering the merits of the dispute was not proper. In Bombay Union''s case (supra), the Hon''ble Supreme Court held that when the dispute raises question'' of law, then the appropriate Government should not reach at final decision on the said question of law because it lies within the domain of the Labour Court or the Industrial Tribunal.

In the case of Laxman Singh v. State of Rajasthan reported in R.L.R. 1997 (1) 614, the learned single Judge of this Court (Shri J.C. VERMA, J.) clearly held that the Government cannot refuse to make reference to the Labour Court on the ground that the workman had worked for less than 240 days or that dispute raised after inordinate delay. The learned single Judge has clearly held that these questions are to be decided by the Labour Court after recording evidence and not by the State Government at the stage of deciding as to whether there was any dispute or not while making reference. The learned single Judge has relied upon the judgment of the Hon''ble Supreme Court in Bombay Union''s case (supra).

There is yet another Judgment of the learned single Judge of this Court (Shri ASHOK PARIHAR, J.) delivered in the case of Purshottam Nagar v. Union of India and Anr. in 2000 W.L.C. (Raj.) 51 wherein on the same ground where the State Government refused to make the reference, the learned single Judge held that it was for the Labour Court to take evidence and then decide and accordingly, a direction was given to the State Government to make reference.

However, we must state that another learned single Judge of this Court (Dr. B.S. CHAUHAN, J.) in case of Rajendra Singh Gehlot v. Union of India and Ors. reported in 2000 (1) WLC 423 held that it is not obligatofy on the part of the Government to make reference in each and every case as it has to weigh the facts keeping in view of the objectives of industrial peace and smooth industrial relations between the parties.

We may state that the learned single Judge in Rajendra Singh''s case (supra) also considered the Hon''ble Supreme Court''s; judgment in Bombay Union''s case (supra).

The learned single Judge has also relied upon the Hon''ble Supreme Court judgment in the case of Workmen v. I.I. T.I., Cycles of India Ltd. and ors. the Hon''ble Supreme Court held that the State Government has to weigh the facts keeping in view of the objectives of industrial peace and smooth industrial relations between the parties.

There cannot be any quarrel with the law laid down by the Hon''ble Supreme Court in I.I.T.I. Cycles case (supra). However, in our considered opinion, the view taken by the learned single Judge in the case of Rajendra Singh''s (supra) case will have no bearing on the facts of the case because in this case, the State Government undertook the exercise of deciding as to whether the workman was able to prove that he had completed 240 days in a calender year.

In the case of Chemicals and Fibres of India Ltd. Vs. Union of India (UOI), the Hon''ble Supreme Court has clearly held that the Government cannot itself decide the dispute. The said judgment in Dhanbad''s case (supra) is clearly binding on us.

In view of the above, we are of the opinion that the State Government was wholly in error in passing the impugned order dated April 16, 1993 and refused to make reference to the competent Labour Court.

In view of the above discussion, this appeal is allowed and the impugned order dated April 16, 1993 passed by the State Government refusing to make reference to the Labour Court is hereby quashed and set aside.

Before parting, we must state that the matter was argued before the learned single Judge on merits as well and the learned single Judge has arrived at the conclusion that the workman failed to establish that he worked for 240 days In a calender year. In our considered opinion, this issue could not have been gone into and decided by the learned single Judge in writ jurisdiction because it requires evidence which can only be led before the Labour Court.

Accordingly, while allowing this special appeal, we set aside not only the impugned order dated April 16, 1993 (Annexure 2 to the writ petition) but also set aside the judgment and order dated May 6, 1998 passed by the learned single Judge dismissing the Writ Petition No. 2153/1993 filed by the appellant. We accordingly, accept the writ petition to the extent that the impugned order dated April 16, 1993 was bad.

We direct the State Government now to refer the dispute to the competent Labour Court as early as possible preferably within one month from the date of receipt of the copy of this order.