Wipro Infrastructure Engineering vs Government of Karnataka Department of Labour

Ram Mohan Reddy, J.—Petitioner-employer''s grievance is that persons engaged as trainees under a Training Scheme, as set out in the Standing Orders, Annexure-A and those engaged as apprentices under the Apprentices Act, 1961 having staked a claim to fall within the definition of the term ''workman'' under Section 2(s) of the Industrial Disputes Act, 1947, for short ''ID Act'', initiated conciliation proceeding through the 2nd respondent-Union, which espoused their cause leading to the State Govt. making a reference of the Industrial dispute by order dated 23.7.2013 Annexure-L and a corrigendum dt. 25.4.2014 Annexure-M despite being informed that the said persons do not fall within the definition of the term ''workman'' and there is no jural relationship of employer and employee. Hence this petition.

It is useful to extract the points of reference at Annexure-L which reads thus:

Further, the points of reference in the corrigendum dt. 25.4.2014 reads thus:

Sri. Subramanya, learned counsel for the petitioner submits that applications when secured in a campus selection, from persons mentioned in Annexures-A and B were engaged as trainees under the Apprentices Act, 1961, hence does not constitute appointment creating jural relationship of employer and employee. Learned counsel hastens to add that on an earlier occasion whence similarly circumstanced persons under the Training Scheme having approached the Industrial Tribunal in ID No. 8/1994, led to an award recording a finding that they were not ''workmen'' within the meaning of the said term under the ''ID Act'' and hence, disentitled to absorption into service. According to the learned counsel, it was the duty of the Govt. to have applied its mind to the aforesaid facts before making a. reference of the dispute to the I Addl. Labour Court, Bangalore, for adjudication.

This submission of the learned counsel is stoutly opposed by Sri. Anantharam, learned counsel for the 2nd respondent -Trade Union, inter alia contending that the question as to whether persons engaged as trainees either under the Training Scheme or Apprentices Act are workmen calls for an answer only after a trial, whence it is possible to establish that the petitioner-employer extracted normal work as that of employees in the manufacturing process for the business of the petitioner, and that there was no training imparted as such. According to the learned counsel, the State Govt. having regard to Section 10 of ID Act'' is not invested with a jurisdiction to decide the lis as to whether the said persons are employees/workmen or that the petitioner was not an employer.

Having regard to the submissions of the learned counsel, a perusal of the pleadings and the orders of reference, Annexures-L and M, the question is whether the State Govt. exercising power under Section 10 of the ID Act'' is entitled to take upon itself the determination of the lis as to whether the persons raising the dispute are workmen or not?

In similar though not identical circumstances, the Apex Court in Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, , interpreting Section 10(1) of the ID Act observed thus:

"While exercising power under S. 10(1) of 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."

In Sharad Kumar Vs. Govt. of NCT of Delhi and Others, , in the facts of that case, the question as to whether an Area Sales Manager falls within the definition of ''workman'' or not, it was held, has to be decided on the basis of different types of duties discharged by the employee and therefore, the State Govt. cannot arrogate on itself the power to adjudicate on the question since the matter falls exclusively under the province of the Industrial Tribunal or Labour Court.

Regard being had to the observations of the Apex Court, there can be no more dispute that the orders of reference referring the industrial dispute for adjudication, more appropriately whether the persons mentioned in Annexures-A and B annexed to the orders of reference, were, in fact, workmen or not, cannot be said to be either one without jurisdiction or arbitrary, muchless illegal, calling for interference, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. Parties must let in evidence before the I Addl. Labour Court in support of their respective pleas to answer the points of reference.

In the circumstances, petition devoid of merit is, rejected.