Sukhdev Kumar vs Union of India and another

G.C. Garg, J.—The challenge in this petition under Article 226 of the Constitution is to the order of the Government, Annexure P/6 whereby it declined to make a reference to the Labour Court u/s 10 of the Industrial Disputes Act. Petitioner also seeks issuance of writ of mandamus directing the Union of India to refer the dispute between him and the Divisional Manager, Life Insurance Corporation of India, Karnal to the Labour Court for adjudication.

There is no dispute on facts. Petitioner was offered employment for 85 days through employment exchange on May 3, 1996. He worked upto August 5, 1996 and was not allowed to continue thereafter, the appointment being for a period of 85 days only. The petitioner having not been allowed to work thereafter. served a demand notice dated December 23, 1996, Annexure P/4 to the effect that he was not allowed to work w.e.f. August 6, 1996 and that he was employed as water boy for 3 months and in this way his seniority in the employment exchange has been cancelled and it is a set back to his career. He thus prayed that he be taken back on duty as he has already worked for more than 90 days. It was also prayed that he is entitled to regular appointment as per prevailing rules. The matter was considered by the Assistant Labour Commissioner and after hearing the parties, he submitted a failure report after noticing that the workman had been offered a fixed time appointment for 85 days on temporary basis after his name had been sponsored by the employment exchange and, therefore, the Management had not violated the provisions of Section 25 of the Industrial Disputes Act. The Ministry of Labour on a consideration of the matter declined to refer the matter to the Labour Court for adjudication on the ground that the workman had not worked with the Management for 240 days during the preceding 12 months of the alleged date of termination. As already noticed above, it is this order, which is under challenge in this writ petition.

The Management has put in appearance and has filed reply. The stand of the Management is the same as noticed above. It is, therefore, added that admittedly the workman did not work for a period of 240 days, so the Government refused to refer the claim of the petitioner for adjudication to the Labour Court being frivolous by passing a reasoned order. Support for this contention was sought from the Full Bench decision of this Court in the case of Radhey Shyam and Another Vs. State of Haryana and Another, .

Learned Counsel for the petitioner by placing reliance on Division Bench judgment of this Court in the case of Satya Pal Singh v. State of Haryana and Others, C.W.P. No. 11761 of 1997, decided on January 8, 1998 submitted that it is not open to the authority to examine the merits of the controversy and to conclude whether the workman has or has not worked for a statutory period of 240 days. According to the learned Counsel, it is for the Labour Court to come to that conclusion and the Government cannot adjudicate upon this controversy and it is only required to make a reference u/s 10 of the Industrial Disputes Act. Learned Counsel also placed reliance in the case of Central Bank of India Vs. S. Satyam and others, to contend that Chapter V-A of the Industrial Disputes Act which provides for retrenchment is not enacted only for the benefit of the workman to whom Section 25F applies, but also for all cases of retrenchment including Sections 25G and 25H of the Industrial Disputes Act.

After hearing learned Counsel for the parties and keeping in view the facts and circumstances of this case, we are of the opinion that the contention raised by the learned Counsel for the petitioner has no merit. In the case of Satya Pal Singh (supra), it was held that it is not open to the State Government to decide the dispute by observing that the petitioner had not worked for a period of 240 days. In that situation, a direction was issued to make a reference to the Labour Court. However, learned Counsel by reference to any material on record or otherwise could not show that it was the conceded case of the parties in the above case that the workman had, worked for less than 240 days, as in the present case. This decision thus renders no assistance to the learned Counsel for the petitioner : as in the present case, it is the conceded position that the workman had worked only at the most for a period of 85 days or 90 days. It is not even the case of the workman in the demand notice that he worked for a period of 240 days or for a period more than 85-90 days. Once it is the admitted case of the workman, it does not lie in his mouth to say that the Government is bound to refer the dispute to the Labour Court for adjudication and it cannot consider whether the workman had in fact worked for a period of 240 days or more during the preceding 12 months. If a fact is admitted by the workman himself and the Government has declined reference on the basis of that admitted fact, it cannot be said, in our opinion that the Government has adjudicated upon the controversy itself and acted illegally in refusing to refer the matter to the Labour Court for adjudication. In the Full Bench decision in Radhey Shayam''s case (supra), it was specifically held that the appropriate Government can go into the merits of the dispute prima facie for the purpose of finding out whether an industrial dispute exists or is apprehended and whether the Government should make a reference or not. Once that is so, we are clearly of the view that the Government rightly declined to refer the dispute to the Labour Court as in the admitted facts of this case, there was no dispute, which could be referred to the Labour Court for adjudication.

We have gone through the demand notice and the failure report submitted by the Conciliation Officer, Annexures P/4 and P/5 respectively and find that the petitioner did not raise any grouse whatsoever either in the demand notice or before the Conciliation Officer basing his relief on any other provision contained in Chapter V-A of the Industrial Disputes Act. There is not even the slightest indication in either of these two documents in that behalf. Once, that is so, the judgment relied upon in the case of Central Bank of India (supra) has no application to the facts of this case.

For the reasons recorded above, this writ petition fails and is dismissed.