Ghanshyam Prasad Jaiswal vs Union of India (UOI) and Others

Sunil Kumar Sinha, J.—This appeal is directed against the order dated 30th of March, 2009 passed in Writ Petition (L) No. 3879/2007 by the learned Single Judge of this Court.

The facts, briefly stated, are as under:

Petitioner-Ghanshyam Prasad Jaiswal was appointed as a labour and canteen boy in a canteen managed by the Local Implementation Committee (LIC) of State Bank of India, Kusmunda Branch, District Korba, in the year 1994. He worked in the canteen from 2-10-1994 to September, 2005. In September, 2005, he was discontinued for 2-3 months. When he again claimed his appointment, it was refused by the concerned authorities, on which, he made an application to the Assistant Labour Commissioner (Central), Bilaspur on 2-1-2006 for re-appointment and regularization. The Assistant Labour Commissioner started the proceedings of conciliation from 30-1-2006, which concluded on 29-3-2006 and which ended into failure, therefore, a report in this regard was sent to the Secretary, Government of India, Ministry of Labour and Employment, New Delhi on 10th of May, 2006 with a view to make a reference in terms of Section 10 of Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act, 1947''). The Central Government took the view that the Petitioner was working as canteen boy in the canteen run by the Local Implementation Committee and the Bank Management has no control to engage and disengage the workers in the canteen, hence, no dispute subsist. Therefore, no reference was made and the matter was dropped and a communication dated 2-3-2007 (Annexure P-3 in the writ petition) was sent to the Appellant/Petitioner. It is at this stage, the Appellant/Petitioner filed the writ petition for the following relief:

"Relief soughts:

(i) Kindly quash/set-aside the impugned order dated 2-3-2007 (Annexure P-3);

(ii) Kindly direct the Respondent No. 1 to send Petitioner''s dispute to the Central Govt. Industrial Tribunal-cum-Labour Court (CGIT);

(iii) That any other order or direction may also please be issued; and

(iv) Cost of petition may also be awarded.

The learned Single Judge, on due consideration of the contentions raised by the parties, dismissed the writ petition holding that in view of the judgment of the Supreme Court rendered in the matter of State Bank of India and Others Vs. State Bank of India Canteen Employees'' Union (Bengal Circle) and Others, , the issue stands concluded and the dispute raised in the petition was no longer res Integra, therefore, the impugned order dated 2-3-2007, passed by the Central Government, was just and proper.

Mr. P.S. Koshy, learned Counsel appearing on behalf of the Appellants, argued that when a dispute was raised before the Central Government, it was bound to refer the same to the Concerned Authority/ Court in terms of Section 10 of the Act, 1947 and the view taken by the Central Government was not just and proper.

On the other hand, Mr. R. Pradhan and Mr. Sanjay K. Agrawal, learned Counsel appearing on behalf of the Respondents, opposed these arguments and supported the order passed by the learned Single Judge.

We have heard the learned Counsel for the parties at length and have also perused the records of the writ petition.

Section 10 of the Industrial Disputes Act provides for reference of disputes to Boards, Courts or Tribunals. Sub-section (1) of Section 10 provides that where the Appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, refer the dispute to the Concerned Authority/Court/Tribunal for its settlement or adjudication. The wordings of Section 10 make it clear that an opinion has to be formed by the Appropriate Government with regard to existence of industrial dispute between the parties concerned, then only, it has to be referred for adjudication. As soon as a jurisdiction is vested to form an opinion on due application of mind by the concerned authority under the statute, it cannot be held that the concerned authority, it all cases, was bound to refer the dispute in a mechanical manner without forming an opinion about the existence or apprehension of an industrial dispute. The language of Section 10 makes it clear that an industrial dispute must be as defined in the Act itself, that means, any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. Therefore, any demand made to the Government cannot be an industrial dispute within the meaning of the I.D. Act, 1947, and unless an industrial dispute exists or is apprehended, the Appropriate Government would not require to make a reference in terms of Section 10 of the Act, 1947. For the foregoing reasons, we are unable to accept the contention of Mr. Koshy that in all matters the Appropriate Government has to refer the dispute in terms of Section 10 of the I.D. Act.

In the present case, the contention was that it was a dispute between employer and the workmen, therefore, the same was an industrial dispute in terms of Section 2(k) and Section 10(1) of the I.D. Act, 1947. In State Bank of India and Others Vs. State Bank of India Canteen Employees'' Union (Bengal Circle) and Others, , the Supreme Court held that the employees of the canteens which are run at various branches by the Local Implementation Committees (LIC) as per the welfare scheme framed by SBI would not become employees of the Bank as the Bank is not having any statutory or contractual obligation or obligation arising under the award to run such canteens. In light of the above, the inherent issue raised by the Petitioner stands concluded by the judgment of the Supreme Court and in view of the said judgment no industrial dispute exists in the matter, and the Appropriate Government was fully justified in not referring the matter for adjudication u/s 10 of the I.D. Act, 1947.

For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the Appellant/Petitioner, therefore, is liable to be dismissed and is hereby dismissed.

No order as to cost.