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Judgment
K. Chandru, J.—The writ petition is for the issuance of writ of prohibition against a conciliation officer. As to what circumstances such a writ
of prohibition will lie came to be considered by the Supreme Court in U.P. Sales Tax Service Assn. v. Taxation Bar Assn. (1995) 5 SCC 716. In
paragraphs 23, 25 and 26, the Supreme Court observed as follows:
In this case, the respondent-Association and the advocates resorted to boycott the courts on the specious plea of non-transfer of Satti Din, the
appellate authority, who seems to be honest and willing to discharge his duties diligently. When the Government stuck to its stand and did not yield
to the pressure despite the strike, the Bar Association filed writ petition in the High Court. Question is whether the High Court was justified in
entertaining the writ petition and issuing the directions quoted above. The High Court has power to issue a writ of prohibition to prevent a court or
tribunal from proceeding further when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in
violation of the rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in
contravention of the fundamental rights. None of these situations indisputably arises in this case. As noted above, Section 9 of the Act is a
complete code in itself for conferment of jurisdiction on the appellate authority, the procedure for dispensation and the power to pass orders
thereon. The appellate authority was acting in furtherance thereof. It has, therefore, to be seen whether the High Court was justified in issuing
orders restraining the authority from exercising those statutory powers and further to deprive that authority to exercise those powers by transferring
the same to any other jurisdiction.
...
The decision in Dwarka Nath v. ITO also is of no assistance to the first respondent. Though this Court was considering the scope and nature
of the jurisdiction of the High Court under Article 226, there is no doubt now as regards the scope of the jurisdiction of the High Courts. However
wide its power be, the question is whether a writ or order of prohibition could be issued prohibiting a statutory authority from discharging its
statutory functions or transferring those functions to another jurisdiction.
Having given our anxious and careful consideration, we are of the considered view that the High Court does not have the aforesaid power.
Exercise of such power generates its rippling effect on the subordinate judiciary and statutory functionaries. On the slightest pretext by the
aggrieved parties or displeased members of the Bar, by their concerted action they would browbeat the judicial officers or authorities, who would
always be deterred from discharging their duties according to law without fear or favour or ill-will. Therefore, we hold that the writ petition is not
maintainable. The impugned orders are clearly and palpably illegal and are accordingly quashed.
Heard Mr. Vijay Narayan, learned Senior Counsel leading Mr. K.V. Shanmuganathan counsel for the petitioner and Mr. A. Arumugam, learned
Special Government Pleader taking notice for the first respondent.
The petitioner management has come forward to file the present writ petition seeking for a writ in the nature of prohibition prohibiting the first
respondent from proceeding with conciliation proceedings in file No. D/3680/2009 on the ground that there exist no dispute as on date as
contended by the second respondent and to pass an appropriate order.
It is claimed by the Management that they have set up an industrial unit in the Madras Export Processing Zone (MEPZ) which is a Special
Economic Zone (SEZ) at Tambaram. They have 600 workmen and they also have a branch at Triplicane. They claimed that they have cordial
relationship with the workmen. The majority of workmen were members of a trade union affiliated to INTUC. The petitioner had also recognised
the said union. On or about November, 2007, the workmen indulged in several misconducts and threatened the loyal workmen. Production also
came down. All this was done at the instance of the second respondent trade union. The disgruntled workmen had joined the said union, which
union gave a strike notice on 21.11.2007. They also indulged in sit-in-strike in the factory and also refused to do over time. In view of these facts,
the attendance of the workmen became erratic and four workmen never turned up for duty on 2.1.2008. There were also assault of company
personnel which led to a complaint lodged with the police station at Tambaram. A charge sheet was also filed against 10 workmen in the Judicial
Magistrate Court, Tambaram and the trial is on.
It was also stated that the petitioner also gave an another police complaint for violent incident took place on 25.1.2008. The management
declared paid holidays and stopped production from 25.1.2008 to 28.1.2008. They also initiated disciplinary action against the workmen, who are
responsible for the incident. In the meanwhile, the petitioner received representation from the second respondent, stating that they have denied
employment to 47 workmen. Thereafter, the Trade union approached the first respondent with the said issue and conciliation proceedings were
started. During the proceedings, the second respondent allegedly admitted that disciplinary proceedings are pending against nine workmen and it
was further stated that 23 workmen were unemployed. On 2.6.2009, the first respondent conciliation officer advised the workmen to report for
duty.
It was also stated that the petitioner had taken the stand that 14 workmen had resigned and the union did not dispute the same. While it is so,
out of 77 workmen, who are concerned with the dispute, 17 workmen made a statement as if they were denied work when they reported for duty
on 8.6.2009 as per the advice given by the conciliation officer. It is claimed that the statement of those workmen are false. The conciliation
proceedings was adjourned from time to time. The second respondent union was making all kinds of demands. The petitioner claimed that the first
respondent was taking unreasonable stand with reference to the dispute and had manipulated records to make it appear that the union had
withdrawn their demands and a fresh industrial dispute was taken on file. This was done without notice to the management. The petitioner claimed
that they did not deny employment to any one. It was also stated that withdrawal of earlier demands and a fresh demand put by the second
respondent was not notified. No report was submitted u/s 12(4) of the Industrial Disputes Act to the State Government.
It was further stated that it was also false on the part of the second respondent to allege that there was lock out. In effect, there was no lock out.
The first respondent has no right to take a fresh dispute. Instead of closing the earlier dispute, which was withdrawn by the second respondent, he
allowed them to initiate fresh dispute. Because of the pendency and frequent adjournment of dispute, Section 33 of the I.D.Act had to be followed.
The petitioner''s representations in this regard were not fruitful. It is under these circumstances, the petitioner has come forward to file the writ
petition with a prayer for writ of prohibition.
The grounds raised by the petitioner was that disciplinary proceedings initiated by the management will not come within the definition of Section
2(k) of the Industrial Disputes Act. The first respondent cannot allow the second respondent to withdraw the dispute, alleging denial of
employment and entertain the very same dispute by opening another file. The first respondent cannot also allow them to raise a dispute regarding
lock-out especially when the workmen did not report for duty pursuant to the advice given by him. The first respondent should have directed the
workmen to participate in the enquiry. In respect of resigned workmen, there can never be any lock out. They are prolonging the dispute for over
one year without any rhyme or reason.
Though the present affidavit was sworn in on 15.2.2010, the petitioner management did not disclose about their having filed earlier a writ
petition before this Court, complaining about bias against first respondent and their attempt to seek for transfer of the approval petition pending
with him. This Court dismissed the said writ petition on the ground that the petitioner''s attempt to seek for a transfer of proceedings was
misconceived and not supported by law. It is rather unfortunate for the petitioner to have not made such disclosure in this affidavit. It is not as if
such a dispute has no bearing on the present issue.
In any event, Mr. Vijay Narayan, learned Senior Counsel for the petitioner stated that the writ in the nature of prohibition will lie. In this
context, he relied upon the judgment of this Court in Mercury Manufacturing Co. Ltd. Vs. Joint Commissioner of Labour and Others, . In that
case, this Court undertook an exercise to find out with reference to the dispute raised by the workman u/s 2-A and whether the said provision was
attracted. In paragraph 6, the fact of the dispute was set out:
Having perused the materials and after hearing the learned Counsel for either side, I am of the view that the plea of the petitioner deserves
acceptance for more than one reason. u/s 2A of the Act, an individual workmen is entitled to raise an industrial dispute in the event of the
employee''s dismissal, retrenchment or otherwise terminating the services of the individual workman. A close reading of the opening words of the
said provision would show that for an individual workmen to raise an industrial dispute u/s 2-A of the Act, there should be a termination of the
services of the concerned workman. In the case on hand, as admitted by the petitioner and as disclosed in the reply filed before the first
respondent as well as in the affidavit filed in support of this writ petition, it has been tacitly made clear that the services of none of the respondents
2 to 85 have been terminated. Further even as per version of twelve of the respondents as stated in their anticipatory bail application filed before
this Court they are not attending to their jobs as they are on strike. It is claimed that hundred of the workmen are placed in a similar situation. All
the above stated undisputed facts show that there was no termination of service of any of the respondents 2 to 85. Further fact that 22 out of 84
workmen having reported for duty as on this date strengthens the stand of the petitioner that there was no termination of service of any of the
respondents 2 to 85.
The reasoning of the learned Judge is found in paragraph 8, which is as follows:
On an analysis of the various contentions raised on behalf of respondents 2 to 85, barring the 22 respondents I could see that the real
controversy seems to be the one relating to the written undertaking said to have been insisted upon at the instance of the petitioner. Unfortunately,
the dispute is not with regard to the justifiability or otherwise of the various conditions sought to be imposed at the instance of the petitioner by way
of a written undertaking from the workmen concerned. Inasmuch as the dispute being one of denial of employment, and the factum of denial of
employment having been found to be not in existence, there is absolutely no justification for the first respondent to entertain this dispute and
proceed further.
In the same judgment in paragraph 9, the learned judge observed that thus the issue will not come within Section 2-A of the ID Act and the
dispute can be raised in other format. The following passage found in paragraph 9 will prove the same:
It is always open to the affected workmen to raise any specific dispute relating to the justifiability or otherwise of the undertaking insisted upon
by the petitioner and to agitate the said issue before the appropriate forum, inasmuch as admittedly even as disclosed in the present dispute raised
by them that they are members of a registered trade union....
The learned Senior Counsel also placed reliance upon the judgment of the Supreme Court in Feroz Din and Others Vs. State of West Bengal,
in support of his contention that in order to hold certain action of employer as lock-out, there must be refusal on the part of the employer to furnish
work to his workmen. On the contrary, in the present case, according to the management, despite advice given by the conciliation officer, the
workmen did not report for duty. It is in view of this fact, the petitioner sought for writ in the nature of prohibition against the conciliation officer.
It must be noted that conciliation officers are appointed u/s 4 of the Industrial Disputes Act, 1947. Section 4 reads as follows:
Conciliation Officers.-(1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks
fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.
(2)A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries
and either permanently or for a limited period.
The duties of a conciliation officer is provided u/s 12, which reads as follows:
Duties of conciliation officers.- (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute
relates to a public utility service and a notice u/s 22 has been given, shall, hold conciliation proceedings in the prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters
affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a
fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer
shall send a report thereof to the appropriate Government [or an officer authorised in this behalf by the appropriate Government] together with a
memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate
Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing
about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a
settlement could not be arrived at.
(5) If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a
Board, [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a
reference, it shall record and communicate to the parties concerned its reasons therefore.
(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter
period as may be fixed by the appropriate Government:
[Provided that, [subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as
may be agreed upon in writing by all the parties to the dispute.]
A combined reading of Section 4 read with Section 12 would show that the conciliation officer, in case of industrial dispute before him, has to
bring settlement of the dispute, without delay investigate the dispute on all matters affecting the merits and arrive at a right settlement thereof and he
has to do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of dispute. If in case a
settlement was not possible, he has to send a report to the Government u/s 12(4). If is after the receipt of the report, u/s 12(5), the State
Government can pass appropriate orders u/s 10(1) of the I.D. Act.
Section 10(1) reads as follows:
Reference to dispute to Boards, Courts or Tribunals.- (1)[Where the appropriate Government is of opinion that any industrial dispute exists or
is apprehended, it may at any time], by order in writing-
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
[(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second
Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the
Second Schedule or the Third Schedule, to a Tribunal for adjudication;
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen,
the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c):]
[Provided further that] where the dispute relates to a public utility service and a notice u/s 22 has been given, the appropriate Government shall,
unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this
Sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:
[Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for the
Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.]
In the present case, the stage for the first respondent to send a report of failure of conciliation to the State Government and the State
Government to pass appropriate orders u/s 10(1) read with Section 12(5) of the ID Act had not arrived so far. Under these circumstances, it is
not clear as to how a writ of prohibition will lie against the first respondent. It is only in case where a Tribunal/Quasi Judicial Officer clutches on to
a jurisdiction which it never possess, the question of issuance of a writ of prohibition will arise. But, in the present case, the first respondent is only
a notified conciliation officer. Any dispute that is brought before him, he has to necessarily conciliate. There can be no restraint against his
entertaining any complaint from any workmen.
The contention that there was no dispute within the meaning of Section 2(k) is also misconceived. Section 2(k) of the ID Act reads as follows:
2(k)""industrial dispute"" 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-mployment or the terms of employment or with the conditions of labour,
of any person;
The definition of the term industrial dispute u/s 2(k) is wide in nature. It takes into account any dispute or difference between employee and
workmen which is connected with the employment or non employment or terms of employment or with the conditions of labour of any person.
Therefore, whatever the dispute workmen raises will come within the definition of Section 2(k). If there is a difference of opinion expressed by a
body of workmen, then the conciliation officer has to ask the management for their response. In the present case, it is not the stand of the
management that there was no difference of opinion between the workmen represented by the second respondent with the petitioner management
relating to the conditions of workmen of its establishment. On the other hand even as per their own showing of the management there are many
issues to be resolved between them.
Even assuming that the first respondent had unreasonably entertained a dispute, under the provisions of the ID Act, he has no power to decide
the rights of parties. He is only a mechanism to conciliate. It is rather unfortunate that the management should seek for restraint order against the
first respondent, who is statutorily empowered to make appropriate enquiries. He acts as eyes and ears of the State Government. The ultimate
object of the ID Act as set out in the preamble to the Act is that it is meant for investigation and settlement of industrial disputes. The State
Government had appointed such officers not only to conciliate between the parties, but also to keep the Government informed, so that it can take
appropriate action including relegating the parties for adjudication before the appropriate adjudicating authority. If necessity arise it can pass orders
to keep both the parties on a level playing field u/s 10-B of the ID Act. They can also prohibit both strike and lock out in the establishment so that
industrial peace can be maintained pending adjudication.
It is only when the State Government passes orders u/s 10(1) of the ID Act, any attempt can be made to look into it as to whether the
Government had formed an opinion based on objective material for arriving at a decision, in making a reference for adjudication. The decision
relied on by the petitioner in Mercury''s case (cited supra) is largely based upon facts of that case. It never intended to lay down any universal
proposition. At no time, a conciliation officer can be interdicted with a restraint order by the court. On the other hand, this Court is of the opinion
that after the introduction of Section 2-A(2) by the State amendment, in case any workmen, who has grievance over his non employment, he can
approach the conciliation officer and thereafter, go to the labour court without benefit of any reference order u/s 10(1) of the ID Act. In essence, in
case of non employment, it is like filing a plaint before a civil court, except to abide by the precondition that his claim should be accompanied by
the conciliation failure report.
In case of individual non employment, the provision for reference u/s 10(1) has been dispensed with. Even limited power to scrutiny of such
action vests with the Court had been taken away. It is not clear as to how this Court can issue writ of prohibition even against conciliation
regarding alleged non employment by the workmen. If at all the management has any defence, that has to be put before the appropriate
adjudicating body by way of counter pleadings. On raising triable issues, the adjudicating court will have to be satisfied about the stand of the
management. The best defence of a management can never be used as a lever to get a Writ issued in the nature of prohibition. On the other hand,
no such a defence raised in the form of pleadings can be looked into at this stage when it involves triable issues and application of mind by an
adjudicating authority. Therefore, this Court cannot be made to look into the various letters and advice given by the conciliation officer for the grant
of the Writ.
In the absence of lack of jurisdiction on the part of the first respondent, no writ of prohibition will lie against the exercise of statutory power.
Even otherwise, the conciliation officer cannot decide the lis or rights of the parties. In case of an industrial dispute, u/s 2(k) the definition of term of
industrial dispute"" is so wide even the inhibition expressed by the court in the judgment of Mercury''s case (cited supra) is not available. Any
dispute which raised by the Workmen will have to be conciliated upon. It is for this reason, the State Government u/s 10(1) is empowered to refer
the matter for adjudication or not. The State Government upon receipt of failure report u/s 12(5), can form an opinion, before making a reference
for adjudication. Since the power is vested with the State Government, it is unthinkable that the State Government will refer every dispute including
disputes which will not within the definition of Section 2(k) of the ID Act. Besides that stage to review such an order stage is yet to be reached.,
this Court is not inclined to think that the State Government will be a mere post office in making an order of reference.
Though the learned Senior Counsel contended that the workers cannot change their demands before the conciliation officer from time to time
and take the management by surprise, this Court is not able to accept the said contention for more than one reason.
In the present case, the conciliation proceedings are not concluded and whatever dispute which the workmen raised before the authority, the
management can take note of and make suitable replies if they so desire. There is no format prescribed for raising a dispute. There is nothing like
the concluded issues in such matters. In fact, the courts have gone to an extent of interpreting Section 10(1) of the I.D. Act to state that for making
a reference u/s 10(1), there need not be any report by a conciliation officer u/s 12(4) and even without the report of a conciliation officer the
Government can make a reference.
The Supreme Court in its judgment in Shambu Nath Goyal Vs. Bank of Baroda, held in paragraphs 5 and 6 as follows:
...The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into
existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 22
forbids going on strike without giving a strike notice....
Thus the term ''industrial dispute'' connotes a real and substantial difference having some element of persistency and continuity till resolved and
likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or
difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into
existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would
tantamount to re-writing the section.
The decision of the Supreme Court came to be followed by this Court in C. Manuel Vs. Management of Needle Industries (India) Ltd. Keeti,
Nilgiris and Another, , wherein the court held as follows:
We can take it as settled that a dispute could arise within the meaning of Section 2(k) only when there is a demand by the workman and a denial of
the same by the management. The definition of ''dispute'' in S.2(k) takes in ''difference'' between the parties also. It is one thing to say that there
must exist a dispute or difference so as to clothe the appropriate Government with the jurisdiction to refer the matter for adjudication u/s 10 of the
Act and it is another thing to say as to how the dispute or difference must have arisen and exist or apprehended at the relevant point of time.
...
The Principles recognised by courts, including the highest on the land, have not laid down any particular manner by which an industrial dispute or
difference should be raised. The real question is, whether if at the time of exercise of powers by Government under S.10, there exists or is
apprehended a dispute or difference, then it will be competent for the appropriate Government to exercise its power under S.10. Once that power
has been exercised it is futile to go behind to some point of time anterior to the relevant point of time and explore whether a demand was raised in
a particular manner and whether it was refused by the management.
Further, a division bench of this Court in Ramakrishna Mills (Coimbatore) Limited Vs. The Government of Tamil Nadu and Kovai Mavatta
Dravida Pothu Thozhilalar Munnertra Sangam, has observed as follows:
There cannot be a doubt that for the existence of an industrial dispute, there ought to be a demand by the workmen and a refusal to grant it by
the management. How that demand should be raised, should not and could not be a legal notion of fixity and rigidity. The grievance of the
workmen and the demand for its redressal must be communicated to the management. The means and mechanism of communication adopted are
not matters of much significance, so long as the demand is that of the workmen and it reaches the management. A written demand of the
management is not in all cases a sine quo non, as pointed out by the Supreme Court in Shamby Nath Goyal v. Bank of Baroda (supra). After all,
there must arise a dispute or difference within the meaning of Section 2(k) or Section 2A of the Act. In the instant case, the talks and the
discussions held before the Assistant Commissioner of Labour, related only to the differences that had arisen between the workmen through their
union, the seventh respondent and the petitioner over the orders of dismissal. It would be far fetched, and absolutely an untenable proposition to
state that the grievance of the workmen over their non employment and their agitation for reinstatement were not conveyed to the petitioner and
there was no refusal of the same. That is not the actual position at all. It is not claimed before us that the talks and discussions before the Assistant
Commissioner of Labour, related not to the orders of dismissal and the demand to set them at naught, and take back the workmen. The facts and
circumstances do establish beyond doubt that the workmen through their union had been demanding for reinstatement, which the petitioner had no
inclination to acceded to. The grounds conceived by it for doing so, are not germane to this question. Hence we have to repel the first ground of
attack put forth on behalf of the petitioner.
In fact, the power of the conciliation officer as well the State Government to refer a dispute is more of a administrative character and it is not a
quasi judicial power. A Constitution Bench of the Supreme Court as early as in the year 1953 in its judgment in State of Madras Vs. C.P. Sarathy
and Another, observed as follows:
This is, however, not to say that the Government will be justified in making a reference u/s 10(1) without satisfying itself on the facts and
circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of
establishments engaged in a particular industry, and it is also desirable that the Government should, wherever possible, indicate the nature of the
dispute in the order of reference. But, it must be remembered that in making a reference u/s 10(1) the Government is doing an administrative act
and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function
does not make it any the less administrative in character. The Court cannot, therefore, canvass the order of reference closely to see if there was
any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial determination. No doubt, it will be open to a
party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of
the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But 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 bad 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 those matters.
The observations in some of the decisions in Madras do not appear to have kept this distinction in view.
The Supreme Court subsequently in its judgment in Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana and Others,
held in paragraph 6 as follows:
Section 10(1) of the Act confers power on the appropriate Government to refer at any time any industrial dispute which exists or is
apprehended to the authorities mentioned in the section for adjudication. The opinion which the appropriate Government is required to form before
referring the dispute to the appropriate authority is about the existence of a dispute or even if the dispute has not arisen, it is apprehended as
imminent and requires resolution in the interest of industrial peace and harmony. Section 10(1) confers a discretionary power and this discretionary
power can be exercised on being satisfied that an industrial dispute exists or is apprehended. There must be some material before the Government
on the basis of which it forms an opinion that an industrial dispute exists or is apprehended. The power conferred on the appropriate Government
is an administrative power and the action of the Government in making the reference is an administrative act. The formation of an opinion as to the
factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in
character. Thus the jurisdictional facts on which the appropriate Government may act are the formation of an opinion that an industrial dispute
exists or is apprehended which undoubtedly is a subjective one, the next step of making reference is an administrative act. The adequacy or
sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the
reference is impugned by a party it would be open to such a party to show that what was referred was not an industrial dispute and that the
Tribunal had no jurisdiction to make the Award but if the dispute was an industrial dispute, its factual existence and the expediency of making a
reference in the circumstances of a particular case are matters entirely for Government to decide upon, and it will not be competent for the Court
to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before
Government on which it could have come to an affirmative conclusion on those matters (see State of Madras v. C.P. Sarathy).
A division bench of the Patna High Court in Mohini Sugar Mills Ltd. Vs. State of Bihar and Others, opined that if the Government makes a
reference under S.10 by including in it several items in dispute between the employer and the employees, and if the Tribunal concerned holds that,
in respect of some items in dispute, the order of reference is incompetent, the tribunal itself must refuse to give any decision on those points and
confine its Award only to those disputes in respect of which a valid reference is made and it has jurisdiction to adjudicate on the same. This opinion
of the division bench of the Patna High Court was quoted with approval by a division bench of this Court in Ramakrishna Mills Ltd. Case (cited
supra).
It will not be out of place to mention that even in case of a reference u/s 10(1), principles of natural justice will not attracted. Even if demands
of the workmen are altered or reconsidered by the State Government, such attacks based on principles of natural justice cannot be pressed into
service. This was held so by a Full Bench of this Court in G. Muthukrishnan v. Administrative Manager reported in 1980 I LLJ 215. The idea
being on a reference the matter will be heard by a judicial forum like the Tribunal/Labour Court.
The Supreme Court vide its decision in Bharat Heavy Electricals Ltd. v. Anil reported in (2007) 1 SCC 610, speaking for the Bench through
S.H. Kapadia, J. had observed as follows:
...There is a difference between an individual dispute which is deemed to be an industrial dispute u/s 2-A of the said 1947 Act on the one hand
and an industrial dispute espoused by the union in terms of Section 2(k) of the said 1947 Act. An individual dispute which is deemed to be an
industrial dispute u/s 2-A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute u/s 2 covers a wider field. It
includes even the question of status. This aspect is very relevant for the purposes of deciding this case. In Radhey Shyam v. State of Haryana it has
been held after considering various judgments of the Supreme Court that Section 2-A contemplates nothing more than to declare an individual
dispute to be an industrial dispute. It does not amend the definition of industrial dispute set out in Section 2(k) of the Industrial Disputes Act, 1947
[which is similar to Section 2(l) of the said 1947 Act]. Section 2-A does not cover every type of dispute between an individual workman and his
employer. Section 2-A enables the individual worker to raise an industrial dispute, notwithstanding, that no other workman or union is a party to
the dispute. Section 2-A applies only to disputes relating to discharge, dismissal, retrenchment or termination of service of an individual workman.
It does not cover other kinds of disputes such as bonus, wages, leave facilities, etc.
The Supreme Court vide its judgment in ANZ Grindlays Bank Ltd (now known as Standard Chartered Grindlays Bank Ltd.) Vs. Union of
India (UOI) and Others, held in paragraph 14 as follows:
Mr Bhat, learned Counsel for the second respondent, has submitted that this Court should not interfere with the order of the Central
Government making a reference u/s 10 of the Act, as the appellant can ventilate its grievances before the Industrial Tribunal itself and if the decision
of the Tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned Counsel the writ petition is
premature as the appellant has got a remedy before the Tribunal to show that the reference is either bad in law or is uncalled for. We are unable to
accept the submission made. It is true that normally a writ petition under Article 226 of the Constitution should not be entertained against an order
of the appropriate Government making a reference u/s 10 of the Act, as the parties would get opportunity to lead evidence before the Labour
Court or Industrial Tribunal and to show that the claim made is either unfounded or there was no occasion for making a reference. However, this is
not a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference
made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. In such
circumstances, the validity of the reference made by the Central Government can be examined in proceedings under Article 226 of the Constitution
as no evidence is required to be considered for examining the issue raised.
The stage to scrutinise an order of reference will come only if the Government takes a decision u/s 10(1) of the I.D. Act. But the above decision
cannot be extended to deal with the parleys held by a statutory conciliation officer.
Finally, it will not be out of place to state that the Supreme Court in D.P. Maheshwari Vs. Delhi Administration and Others, forewarned the
High Courts from entering into the arena of deciding preliminary issues and then making the entire machinery in the industrial dispute derailed at the
instance of the employers. In paragraph 1 of the said judgment, the Supreme Court had observed as follows:
It was just the other day* that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial
disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry
the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of
the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now
before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the
stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But
the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of
adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time
without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution
stop proceedings before a tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226
of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the
detriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision on
issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and
courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really
necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide
expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings
up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that
under Article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of
such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at
interlocutory stages and on preliminary issues.
The Supreme Court in the very same judgment gave a note of caution which is as follows:
We are clearly of the opinion that the High Court was totally unjustified in interfering with the order of the Labour Court under Article 226 of the
Constitution....
The Industrial Disputes Act is the only machinery provided for the workmen to have their grievance settled either by conciliation or by
adjudication. There is no other third option open to the workmen. If attempt made by the management to thwart the proceedings by seeking a writ
of prohibition, the very machinery will be jeopardized and the workmen will lose faith in the machinery created for the purpose of resolving the
grievances of the workmen.
It will not be out of place to refer to a recent judgment of the Supreme Court in Harjinder Singh v. Punjab State Warehousing Corporation, in
Civil Appeal No. 587 of 2010 (Arising out of SLP(C) No. 6966/2009), dated 05.01.2010, wherein G.S. Singhvi, J. had observed as follows:
...It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the
goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the
approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral
part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employers -
public or private.
A.K. Ganguly, J., in his concurring opinion had observed as follows:
At this critical juncture the judges'' duty, to my mind, is to uphold the constitutional focus on social justice without being in any way mislead by
the glitz and glare of globalization.
In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.