Rakesh Kumar Tiwari vs Union of India & Others

The petitioner has filed the present petition challenging the order dated 24.06.2013 communicated on 08.11.2013 by which respondent No. 1

has rejected the reference made by the petitioner.

Brief facts of the case are that the petitioner was working as a Canteen Boy in the establishment of respondent No. 3 since July, 1993 in their

Branch at Amahia. The work of the Messenger was also taken from the petitioner from time to time. All of a sudden, his services were terminated

w.e.f. 29.02.2012. Being aggrieved by the order of termination, the petitioner has made an application before the Conciliation Officer, Shahdol.

Thereafter, the conciliation proceedings were taken up by the Assistant Labour Commissioner (Central) and a failure report was sent to the

appropriate government on 24.08.2012. Thereafter, the petitioner vide order dated 08.11.2013 of the Section Officer, Ministry of Labour &

Employment, New Delhi has been informed about the order dated 24.06.2013 of respondent No. 1. The appropriate Government refusing to

refer the dispute for its adjudication before the Central Government Industrial Tribunal on the ground that there is no employer-employee

relationship between the petitioner and respondent No. 3. Being aggrieved by that order, the petitioner has filed the present petition.

Learned counsel appearing on behalf of the petitioner argues that letter dated 08.11.2013 (Annexure- P/4) is illegal and arbitrary. He submits

that the appropriate Government while referring the dispute cannot go into the merits of the dispute holding that there is no employeremployee

relationship between the petitioner and respondent No. 3 and thus, it has exceeded its jurisdiction while delving into the merits of the dispute. He

further submits that the appropriate Government has only the administrative powers and cannot delve into the merits of the case. Under Section

10(1) of the Industrial Disputes Act, 1947, the function of the appropriate Government is administrative function and not a judicial or quasi judicial

function. He further relied on the judgement passed by the Apex Court in the case of Telco Convoy Driver Mazdoor Sangh Vs. State of Bihar,

AIR 1989 SC 1565 .

Respondent No. 3 has filed reply and in the said reply, respondent No. 3 has stated that the petitioner had filed an application before

respondent No. 2 under Section 10 of the Industrial Disputes Act, 1947, raising a dispute with regard to his alleged termination from service. As

per the averments made by the petitioner, he was appointed as Canteen Boy at Amahia Branch of State Bank of India in July, 1993. His services

have been terminated on 29.02.2012. Respondent No. 2 held conciliation proceedings and upon failure of the same, submitted failure report to the

appropriate Government. He further submits that the issue whether the Canteen Boy engaged by Local Implementation Committee is employee of

the Bank or not came up for consideration before the Apex Court in the case of State Bank of India Vs. State Bank of India Canteen Employees

Union reported in (2000) 5 SCC 531, in which the Apex Court has held that the employees of the Canteen are not the employees of the State

Bank of India. Therefore, in view of the aforesaid pronouncement of the Apex Court it cannot be said that the petitioner was the employee of State

Bank of India. As per his own averments in the application filed before respondent No. 2, he was engaged as Canteen Boy and, therefore, there is

no employer-employee relationship between the Bank and te petitioner. Taking into account the aforesaid judgement of Apex Court, the

appropriate Government refused to make reference to the Tribunal for adjudication as there is no employer-employee relationship between the

Bank and the petitioner. The order passed by the appropriate Government is perfectly justified and the same is legal and valid.

Heard learned counsel for the parties and perused the record.

The petitioner is working on the post of Canteen Boy. His services were terminated vide order dated 29.02.2012. He, therefore, raised a

dispute under Section 10 of the Industrial Disputes Act before the Conciliation Officer. As the conciliation proceedings fails, the matter was,

therefore, referred to the appropriate Government. The appropriate Government vide order dated 24.06.2013, which was communicated to the

petitioner on 08.11.2013 has refused to refer the dispute to the CGIT on the ground that there is no employer-employee relationship between the

petitioner and respondent No. 3. While refusing to refer the dispute, respondent No. 2 has observed as under:-

The canteen is run and managed by the Local Implementation Committee and not by the Bank. Therefore, there is no employeremployee

relationship between the Applicant and the State Bank of India, as earlier ruled by the Hon''ble Supreme Court in the case of State Bank of India

Vs. State Bank of India Canteen Employees Union (2002). As such, there is no merit in the case.

From perusal of the order Annexure-P/1 it appears that respondent No. 2 has entered into the merits of the dispute. Although, the matter has

been settled by the Apex Court, but the function of respondent No. 2 is administrative in nature and he cannot act judicially and refused to refer the

dispute. The Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another (supra) has held as under:-

While exercising power under S. 10(1) the function of the appropriate Government is an administrative function and not a judicial or quasi judicial

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 S. 10. It is true that in considering the question of

making a reference under S. 10(1), the Government is entitled to form an opinion as to whether an industrial dispute ""exists or is apprehended"".

But 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. Where, as in the instant case, the dispute was whether the persons raising the dispute are workmen or not, the same cannot be decided

by the Government in exercise of its administrative function under S. 10(1) of the Act. The order of the Govt. refusing to refer the dispute on

ground that the persons raising the dispute are not workmen is liable to be set aside. As the Govt. had persistently declined to make a reference

under S. 10(1) the Supreme Court directed the Govt. to make a reference.

Thus, in light of the said judgement, the Government while considering question whether reference should be made or not cannot delve into merits

of dispute and determine the lis itself.

Thus, in light of the said judgement, respondent No. 2 has committed an error in deciding the dispute on merits.

Accordingly, I allow this writ petition. The order dated 24.06.2013 (Annexure-P/1) is hereby set aside and appropriate Government is directed

to refer the dispute to the CGIT to decide it on merits.