THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NO.17913 OF 2012
05-10-2012
Director-HR, Ushodaya Enterprises Pvt. Ltd.,
Dy. Secy to Govt., State of A.P., Hyd & 4 others
Counsel for the Petitioner : Sri SRIDHARAN
Counsel for the Respondents : GP for LABOUR
<Gist:
>Head Note:
?CITATIONS:
1. AIR 1963 SC 318
2. AIR 2000 SC 469
3. (1979) I LLJ 1 (SC) : AIR 1979 SC 170
4. (1989) 2 SCC 602
5. AIR 1964 SC 1272
6. 1956 SCR 956: AIR 1957 SC 104
7. AIR 1957 SC 532: 1957 (1) SCR 754
8. (1960) 3 SCR 157
9. (1958) SCR 1156
ORDER:
The petitioner, a company incorporated under the provisions of the Indian
Companies Act, 1956, having its registered office at Hyderabad filed this writ
petition seeking a writ of mandamus or one in the nature of mandamus for the
following reliefs:
a) declaring Notification G.O. Ms. No. 63, dated 02.08.2008 issued by the
Principal Secretary to Government, Government of Andhra Pradesh, Labour,
Employment, Training and Factories (Lab-I) Department, as being illegal and
nonest and a nullity in law and being in excess of powers under Section 39 of
the Industrial Disputes Act, 1947;
b) declaring Proceedings No. B/2930/2011, dated 16.05.2012 of the Joint
Commissioner of Labour, Ranga Reddy Zone, Hyderabad, the respondent No.2
purportedly making a reference under Section 10(1)(d) of the Industrial Disputes
Act, 1947 as clearly illegal, invalid and void;
c) consequently restrain the learned respondent No.4 i.e., The Chairman-cum-
Presiding Officer, Labour Court-I, Chandra Vihar Buildings, M.J.Market Road,
Nampally, Hyderabad from proceeding with ID No. 43 of 2012 pursuant to the
impugned Order of Reference.
The 1st respondent is the State of Andhra Pradesh while the 2nd and 3rd
respondents are the Joint Commissioner of Labour and Assistant Commissioner of
Labour respectively. The 4th respondent is the Chairman-cum-Presiding Officer,
Labour Court I, Hyderabad, while the 5th respondent is a Trade Union.
The petitioner company is engaged in the business, inter alia, of
publication of newspapers, manufacture of food products etc. It is not in
dispute that several hundreds of employees are there on its rolls. One amongst
them was a "House Keeping Assistant" by name P.Balaraju. He has been appointed
on 1st October, 2006 through a letter of employment issued to him, listing out
the terms and conditions subject to which the said individual came to be
appointed. It was agreed therein that Balaraju will be paid a gross salary of
Rs.3,438.75 per month inclusive of all allowances. It is also agreed that he
will be paid a sum of Rs.235/- per month additionally towards special allowance,
which is liable to be withdrawn as and when bonus will be applicable to the
employees of the petitioner company. One of the terms of this letter of
employment clearly stipulated that Balaraju is liable to be transferred from one
Branch/ Office/ Section/Division/Job to another either in existence or which may
come into existence anywhere in India. He is also liable to be deputed to any
of the group organizations, either temporarily or permanently and that he will
not be entitled to any additional remuneration on account of such transfer or
deputation. Condition No.12 specified that the services are liable to be
terminated, by either side, by giving one month's notice or payment of one
month's salary in lieu of notice period. For breach of the terms of the
employment on the part of the employee concerned, the company reserved power to
terminate the employment without any notice. The said Balaraju accepted the
terms and conditions contained in the letter of appointment dated 1.10.2006 and
was thus serving the petitioner company. However, on 10.11.2010, the said
Balaraju has been transferred to work at Mumbai - Andheri office of the
petitioner company with effect from 18.11.2010 and accordingly he would be
relieved at Hyderabad on 10.11.2010 after the close of the working hours, as
specified in the order of transfer. Consequent to this order, the petitioner
was ordered to be paid an additional amount of Rs.1,000/- per month towards
place related allowance for the duration of posting at Mumbai. However, the
said Balaraju has not reported to duty at Mumbai office pursuant to the order of
transfer dated 10.11.2010. That act of Balaraju was construed as an act of
willful insubordination/disobedience of lawful or reasonable orders of superiors
and his subsequent unauthorized presence as amounting to gross misconduct.
Hence, the petitioner initiated disciplinary action against the said individual
by issuing the charge-sheet cum show-cause notice on 4.2.2011 which was followed
up by a domestic enquiry at which the said Balaraju was found guilty of the
charges laid against him. On 16.7.2011, the Enquiry Officer's Report has been
furnished to the said Balaraju. There afterwards, the Vice President -
Operations of the petitioner company passed an order on 16.8.2011, the relevant
portion of which reads as under:
"While we would be justified in terminating your services on account of your
being found guilty on such serious acts of misconduct purely on humanitarian
considerations as we would be interested in employees like you continuing in our
employment, you are being given time till 26.08.2011 to report at our Mumbai
Office by this letter. Should you fail to utilize this opportunity, it would be
deemed that you are no longer interested in our employment and accordingly, you
have put an end to the contract of employment of your own accord."
This triggered a representation from the General Secretary of the 5th respondent
- Trade Union to the Joint Commissioner of Labour, Ranga Reddy District,
Hyderabad, complaining of unfair labour practices and victimization by the
petitioner. On 13.1.2012, the Deputy Commissioner of Labour has forwarded the
representation made by the General Secretary of the 5th respondent Union to the
petitioner company which through its representation dated 23.1.2012 requested
the Deputy Commissioner to reject the complaint and to treat the matter as
closed. Thereafter, the Conciliation Officer and Assistant Commissioner of
Labour issued a notice on 11.4.2012 to the petitioner that the subject matter of
complaint dated 2.12.2011 made by the General Secretary of the 5th respondent -
Trade Union has been admitted to conciliation and therefore the conciliation
proceedings are scheduled to be held in the matter on 23.4.2012 at 11.30 AM and
requested the petitioner to attend the same with relevant information and
documents. On 28.4.2012, another representation has been drawn by the petitioner
setting out the admission of the complaint for conciliation as an illegal act
and that the action of the Conciliation Officer in unilaterally admitting the
matter for conciliation as a malafide act and hence the Conciliation Officer has
been informed that he has no jurisdiction whatsoever to entertain or continue to
entertain the matter. It is also propounded in this representation dated
28.4.2012, that Sri P.Balaraju by his own conduct has put an end to the contract
of employment and therefore the question of any dispute relating to his transfer
being in existence/alive or being exhumed would not arise, as Sri Balaraju
ceased to be in the service of the petitioner as far back as on 23.8.2011
itself. On 16.5.2012, the Joint Commissioner of Labour, Ranga Reddy District,
based upon the report of failure of conciliation proceedings submitted by the
Assistant Commissioner of Labour on 11.5.2012, opined that it was necessary to
refer the dispute for adjudication and accordingly in exercise of the power
conferred in terms of and in accordance with sub-section (1) of Section 10 of
the Industrial Disputes Act, 1947, referred the said dispute for adjudication to
Labour Court I, Chandra Vihar Building, Nampally, Hyderabad. Thereafter, the
Labour Court I, Hyderabad, assigned the Industrial Dispute No. 43 of 2012 and
issued notice to the petitioner herein on 19.5.2012 for it's participation.
This action of the Joint Commissioner of Labour gave rise to this writ petition.
Heard Sri C.R.Sridharan, learned Senior Counsel for the petitioner and the
learned Government Pleader for Labour for the respondents 1 to 3.
Sri C.R.Sridharan, would urge that the grievance or dispute of an
individual workman does not become an industrial dispute, for the 2nd respondent
to solicit any adjudication. Further, the 5th respondent - Trade lUnion, has no
locus standi to espouse a complaint on behalf of the said Balaraju inasmuch as
the very registration of the 5th respondent - Trade Union was under challenge in
WP No. 17240 of 2009 filed by the petitioner in this court which writ petition
is still pending. It is also urged by the learned counsel for the petitioner
that no employee/workman of the petitioner is a member of the 5th respondent -
Trade Union and hence the 5th respondent - Trade Union does not have any locus
to espouse any industrial dispute vis--vis the writ petitioner - company. It
was further urged that Sri P.Balaraju on his own volition and conduct ceased to
be an employee of the petitioner company and hence the question of adjudication
of any dispute of a person who is not in the employment of the petitioner would
not simply arise. The order of reference, further contends the learned counsel
for the petitioner, suffers from patent illegalities, arbitrariness and total
non application of mind and hence the very reference made by the 2nd respondent
is invalid. Further, in terms of sub-section (4) of Section 12 of the
Industrial Disputes Act, the failure report has to be sent to the appropriate
government whereas the failure report has been sent to the respondent No.2 and
not to appropriate government. Finally, it is contended that the delegation of
powers indulged in by the State Government through G.O. Ms. No. 63, Labour,
Employment, Training and Factories (Lab-I_ Department, dated 2.8.2008 as bad in
law inasmuch as no guidelines are prescribed and it is ultra vires of the Act
itself. It was also urged that the delegation of power of formation of an
opinion by the appropriate government is not contemplated by the Industrial
Disputes Act and hence the delegation ordered by the State Government through
its notification vide G.O. Ms. No. 63, dated 2.8.2008 is unsustainable. More
importantly, transfer of an employee is pure incidence of service and it can not
be termed as an industrial dispute.
Learned counsel for the writ petitioner has placed strong reliance upon
the judgment rendered by the Supreme Court in Bombay Union of Journalists v. The
`Hindu'1, National Engg. Industries Limited v. State of Rajasthan2, Avond
Services (Production Agencies) Pvt Ltd v. Industrial Tribunal, Haryana,
Faridabad and others3, Gujarat Electricity Board Vs. Atmaram Sungomal Poshani4
and Buckingham & Carnatic Co. Ltd Vs. Venkataiah5 in support of his contentions.
The learned Government Pleader for Labour has produced two separate files
maintained by the Joint Commissioner of Labour for my perusal to satisfy me
that, as a matter of fact, the 5th respondent - Trade Union did have the
substantial number of workmen of the petitioner company as its members and hence
has locus standi to espouse the cause of Mr.Balaraju, a workman of the
petitioner company. He has produced the file relating to the investigation
carried out with regard to the complaint made by the petitioner with reference
to the registration of the 5th respondent as a Trade Union. The learned
Government Pleader has also produced the relevant file relating to the dispute
raised by the 5th respondent - Trade Union which culminated in the impugned
reference made to the Labour Court I for adjudication. The Conciliation Officer
addressed a petitioner on 11.4.2012 intimating that the conciliation proceedings
are slated for 23.4.2012. An interim reply on 19.4.2012 and a final reply on
28.4.2012 were furnished by the petitioner. Then the Conciliation Officer drawn
his failure report on 11.5.2012 and submitted the same to the Joint Commissioner
of Labour, Ranga Reddy District. Thereafter, the Joint Commissioner of Labour
through his proceedings dated 16.5.2012, referred the dispute for adjudication
to Labour Court I, Hyderabad. In this proceeding dated 16.5.2012, in the very
opening passage the Joint Commissioner of Labour declared that he is of the
opinion that an Industrial Dispute exists between the Management of the
petitioner and their staff and workers union regarding transfer of Sri
P.Balaraju, which has been detailed in the Annexure to the said order. It is,
therefore manifestly, clear contends the learned Government Pleader that the
Joint Commissioner of Labour has exercised his mind and formed an opinion about
the existence of an industrial dispute and then referred it for adjudication to
the Labour Court.
Section 2(k) of the Industrial Disputes Act, 1947, defines `industrial
dispute' as meaning 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. It becomes clear that any dispute
which is connected with the employment or non-employment or the terms of
employment or with the conditions of labour can form an industrial dispute.
However, when a question arose as to whether an individual dispute relating to
or connected with an individual employee can fall within the ambit of the
'industrial dispute' as defined by the Act, the Supreme Court in Central
Provinces Transport Services Limited v. Raghunath Gopal Patwardhan6, after
noticing the three divergent views expressed on the question earlier opined that
the preponderance of judicial opinion was in favour of the view that a dispute
between an employer and a single employee would not per se be an industrial
dispute, but that it might become one if it was taken up by a Union or a number
of workmen. The Supreme Court observed that there was considerable reason
behind it. Notwithstanding that the definition in Section 2(k) is wide enough
to cover the dispute between an employer and a single employee, but, however,
the scheme of the Industrial Dispute Act does appear to contemplate that the
machineries provided therein should be in motion, to settle only disputes which
involve the rights of workmen as a class and that a dispute touching the
individual rights of a workman was not intended to be the subject of
adjudication under the Act, when the same has not been taken up by any Union or
a number of fellow workmen. The Supreme Court once again in The Newspapers
Limited v. The State Industrial Tribunal, U.P.7 had clearly spelt out that no
hard and fast rule can be laid down as to the number of workmen whose
organization will convert an individual dispute into an industrial dispute.
Such a question must depend upon facts of each case and the nature of the
dispute. The Supreme Court speaking through Justice P.B.
Gajendragadkar (as the learned Judge then was) went on to observe in Associated
Cement Companies Ltd v. Their Workmen8, that the group which might be interested
in espousing the industrial dispute might even be a minority. Justice S.K. Das,
rendering the majority opinion of the Supreme Court had evolved two tests for
deciding as to whether an industrial dispute is an industrial dispute or not, in
Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate9, in
the following manner:-
"21. ......................We recognise that solidarity of labour or general
interest of labour welfare may furnish, in some cases, the necessary nexus of
direct or substantial interest in a dispute between employers and workmen, but
the principle of solidarity of the labour movement or general welfare of labour
must be based on or correlated to the principle of community of interest; the
workmen can raise a dispute in respect of those persons only in the employment
or non-employment or the terms of employment or the conditions of labour of whom
they have a direct or substantial interest. We think that Chagla, C.J.,
correctly put the crucial test when he said in Narendra Kumar Sen v. All India
Industrial Disputes (Labour Appellate) Tribunal (1953)IILLJ6Bom .
"Therefore, when s. 2 speaks of the employment or non-employment or the terms of
employment of the conditions of labour of any person, it can only mean the
employment or non-employment or the terms of employment or the conditions of
labour of only those persons in the employment or non-employment or the terms of
employment or with the conditions of labour of whom the workmen themselves are
directly and substantially interested. If the workmen have no direct or
substantial interest in the employment or non-employment of a person or in his
terms of employment or his conditions of labour, then an industrial dispute
cannot arise with regard to such person."
22. We reach the same conclusion by approaching the question from a somewhat
different standpoint. Ordinarily, it is only the aggrieved party who can raise a
dispute; but an 'industrial dispute' is put a collective basis, because it is
now settled that an individual dispute, not espoused by others of the class to
which the aggrieved party may belong, is not an industrial dispute within the
meaning of s. 2(k). As Issacs, J. observed in the Australian case of George
Hudson Ltd. v. Australian Timber Workers' Union 32 C.L.R. 413"
"The very nature of an 'industrial dispute' as distinguished from an individual
dispute, is to obtain new industrial conditions, not merely for the specific
individuals then working from the specific individuals then employing them, and
not for the moment only. But for the class of employees from the class of
employers..... It is a battle by the claimants, not for themselves alone."
"24. ...............The definition clause in s. 2(k) was considered at some
length by the Federal Court in Western India Automobile Association v. The
Industrial Tribunal, Bombay [1949] F.C.R. 321, and learned counsel for the
appellants has placed great reliance on some of the observations made therein.
The question which fell for decision in that case was whether "industrial
dispute" included within its ambit a dispute with regard to re-instatement of
certain dismissed workmen. It was held that re-instatement was connected with
non-employment and, therefore, fell within the words of the definition.
It is the positive or the negative act of an employer that leads to employment
or to non-employment. It may relate to an existing employment or to a
contemplated employment, or it may relate to an existing fact of non-employment
or a contemplated non-employment. The following four illustrations elucidate
this point: (1) An employer has already employed a person and a trade union says
"Please do not employ him". Such a dispute is a dispute as to employment or in
connection with employment. (2) An employer gives notice to a union saying that
he wishes to employ two particular persons. The union says "no". This is a
dispute as to employment. It arises out of desire of the employer to employ
certain persons. (3) An employer may dismiss a man, or decline to employ him.
This matter raises a dispute as to non-employment. (4) An employer contemplates
turning out a number of people who are already in his employment. It is a
dispute as to contemplated non-employment, "Employment or non-employment"
constitutes the subject matter of one class of industrial disputes, the other
two classes of disputes being those connected with the terms of employment and
the conditions of labour. The failure to employ or the refusal to employee are
actions on the part of the employer which would be covered by the terms
"employment or non-employment". Re-instatement is connected with non-employment
and is therefore within the words of the definition."
33. To summarise. Having regard to the scheme and objects of the Act, and its
other provisions, the expression 'any person' in s. 2(k) of the Act must be read
subject to such limitations and qualifications as arise from the context; the
two crucial limitations are (1) the dispute must be a real dispute between the
parties to the dispute (as indicated in the first two parts of the definition
clause) so as to be capable of settlement or adjudication by one party to the
dispute giving necessary relief to the other, and (2) the person regarding whom
the dispute is raised must be one in whose employment, non-employment, terms of
employment, or conditions of labour (as the case may be) the parties to the
dispute have a direct or substantial interest. In the absence of such interest
the dispute cannot be said to be a real dispute between the parties. Where the
workmen raise a dispute as against their employer, the person regarding whose
employment, non-employment, terms of employment or conditions of labour the
dispute is raised, need not be, strictly speaking, a 'workman' within the
meaning of the Act but must be one in whose employment, non-employment, terms of
employment or conditions of labour the workmen as a class have a direct or
substantial interest."
Learned counsel for the petitioner, as was already noticed supra, placed
reliance upon the judgment rendered by the Supreme Court in Bombay Union of
Journalists v. The `Hindu' (supra 1) wherein in paragraph (9), it is held as
under:
(9) By its constitution the Bombay Union of Journalists is a Union not of
employees of one employer, but of all employees in the industrial of journalism
in Bombay. Support of the cause, by the Union, will not in our judgment convert
the individual dispute of one of its members into an industrial dispute. The
dispute between "The Hindu", Bombay, and Salivateeswaran was in respect of
alleged wrongful termination of employment; it could acquire the character of an
industrial dispute only if it was proved that it was, before it was referred,
supported by the Union of the employees of "The Hindu", Bombay, or by an
appreciable number of its employees. In Workmen of Dimakuchi Tea Estate v. The
Management of Dimakuchi Tea Estate: (1958)ILLJ500SC, this Court held by a
majority that the two tests of an industrial dispute as defined by sub-section
(k) of section 2 of the Industrial Disputes Act, 1947, must, therefore be - (1)
the dispute must be a real dispute capable of being settled by relief given by
one party to the other and (2) the person in respect of whom the dispute is
raised must be one in whose employment, non-employment, terms of employment, or
conditions of labour (as the case may be), the parties to the dispute have a
direct or substantial interest, and this must depend on the facts and
circumstances of each case. In that case, certain employees sought to raise a
dispute about a person who was not a workman. In the present case members of the
Union who were not workmen of the employer against whom the dispute was sought
to be raised, seek by supporting the dispute to convert what is prima facie an
individual dispute into an industrial dispute. The principle that the persons
who seek to support the cause of a workman must themselves by directly and
substantially interested in the dispute in our view applies to this class of
cases also: persons who are not employees of the same employer cannot be
regarded as so interested, that by their support they may convert an individual
dispute into an industrial dispute. The mere support to his cause by the Bombay
Union of Journalists cannot therefore assist the claim of Salivateeswaran so as
to convert it into an industrial dispute.
If a Trade Union, like the 5th respondent, has a substantial membership of
workmen/employees of the petitioner industry, lends support to the cause of Sri
Balaraju then such a situation stands on a different footing. The petitioner
has merely claimed that no workmen of it was a member of the 5th respondent -
Trade Union. That was a pure question of fact. As to how many of the members
of the 5th respondent - trade union are the employees/workmen of the petitioner
company is a subject matter of verification of the facts, which can be
undertaken by the Industrial Tribunal. In the absence of any credible material,
on a hypothetical basis, it cannot be assumed that the 5th respondent - trade
union does not have, as its members, good number of employees/workmen of the
petitioner company, to doubt its locus to seek reference of Balaraju's plight.
In my opinion, that is a subject matter of evidence and verification and cross-
verification. It would be appropriate to recall that the learned Government
Pleader for Labour has already indicated that good number of employees of the
petitioner industry are found to be members of the 5th respondent-Trade Union,
when the complaint lodged by the petitioner earlier against the 5th respondent
was examined by the Labour Department and has not found any merit warranting
action against the 5th respondent. Therefore, the fact that the writ petitioner
has already filed another WP No. 17240 of 2009 challenging the very registration
of the 5th respondent - trade union is also of not much avail to it. Further, in
the Hindu's case (Supra 1), the Supreme Court has not found any other employee
of it other than Mr. Salivateeswaran, as members of Bombay Union of Journalists.
Therefore, the above cited case is of little avail to the petitioner as of now.
The theory propounded by the petitioner that Sri P.Balaraju has ceased to
be an employee of the petitioner on his own and consequently no dispute relating
to any of his conditions of service can be subject matter of challenge of an
industrial dispute is devoid of any merit. A wrongful termination of a single
workman or class of workmen which amounts to retrenchment can be subject matter
of adjudication of an industrial dispute. The fact that such termination(s)
brought to an end the relationship of `Master and Servant' is no impediment for
adjudication of the dispute touching upon the wrongful termination of
employment. Therefore, since Sri P.Balaraju is not in employment of the
petitioner company, as of now, cannot be a factor for denying adjudication into
an industrial dispute concerning his conditions of service. Further, it will be
apt to note that the Condition No.12 of the Letter of Employment dated 1.10.2006
issued by the petitioner to Sri P.Balaraju clearly spelt out that the services
are liable to be terminated, by either side, on giving one month's notice or
payment of one month's salary in lieu of notice period. According to the
petitioner, it had not terminated the service of P.Balaraju. Nor did it place
before me any notice issued by Balaraju of his intention to terminate his
employment in accordance with Condition No.12 of his Letter of Employment.
Therefore, it is difficult, as at present advised, to assume that Balaraju
terminated his employment on his own. This apart, Condition No.4 of the Letter
of Employment clearly stipulated that the terms set out in the said letter are
not comprehensive and that the services would be governed by the Company
Standing Orders/Service Rules as may be framed by the Company from time to time.
The petitioner has not drawn my attention to any such Standing Order or Company
Rule which provided for cessation of employment automatically or unilaterally.
Therefore, on factual score as well, I am not inclined to assume, as of now,
that Balaraju terminated the relationship all on his own accord, particularly
with that of an employer like the petitioner, who is so much interested in
continuing in it's employment such people like Balaraju, as is made out in the
order dated 16.08.2011.
Transfer of an employee is purely incidental to service. However, if in
any industry, the conditions of service of its workmen were regulated by
standing orders, unless such standing orders provide for transferability of
employees/workmen from place to place or one unit to another unit, it may not be
permissible for effecting such transfers. One will have to examine the nature
and status of the unit of the petitioner at Andheri Bombay. If it is an existing
establishment which has been acquired by the petitioner subsequent to employment
of Balaraju, different considerations may work out. Similarly, if it is an
independent unit, then also different considerations may arise. All these
aspects can only be gone into as part of adjudicatory process of the reference.
Such factors cannot be assumed in favour of the petitioner as of now for
purposes of determining the validity of the reference of the dispute for
adjudication. Therefore, for the aforementioned reasons, I am of the opinion
that the other judgments relied upon by the learned counsel for the petitioner
are of not much avail to him at this juncture.
Learned counsel for the petitioner has also drawn my attention to the
judgment rendered by me in W.P.No.18085 of 2009 on 03.08.2010. That is a case
where the Joint Commissioner of Labour has formed the opinion about the
existence of an industrial dispute, whereas, the reference was actually made by
the Additional Commissioner of Labour, a superior officer. Therefore, for sheer
want of material indicating that the officer who made the reference has applied
his mind to the relevant factors before making the reference, the said writ
petition has been allowed by me. That was not the present case here. Therefore,
the earlier judgment rendered by me is also of not much avail to the petitioner.
WHAT IS THE LEGAL STATUS OF A REFERENCE MADE UNDER SECTION 10 OF THE INDUSTRIAL
DISPUTES ACT?
Making an order of reference under Section 10(1) of the Industrial Disputes Act
is, doubtless an administrative act. It is neither a judicial nor a quasi
judicial function involving determination of rights of any parties. It is a
function carried out based upon the opinion formed in respect of existence or
apprehension of an industrial dispute. There is an element of subjective
satisfaction as to whether it would be expedient to make any such reference for
adjudication or not. Hence, such administrative orders become amenable to
judicial review only in limited circumstances. Western India Match Co. Ltd Vs.
The Western India Match Co-workers Union (1970 (2) LLJ 256).
Not sounding to be very exhaustive, I would attempt at identifying some of the
key areas which call for judicial scrutiny and interference in respect of such
references. They are:-
1. The Government/Authority competent to make the reference is not the proper
one to make such a reference.
2. Improper opinion is formed in respect of existence or apprehension of an
industrial dispute. It is true that, when a reference of an industrial dispute
is made for adjudication, the referring agency does not decide any question of
fact or law involved there in the dispute. All that is done is to apply one's
mind as to the existence of dispute or apprehension thereon and whether it is
expedient to make such a reference for adjudication. For formation of this
opinion, there should be some material, the adequacy of which cannot be
pronounced upon for declaring the reference as bad. In cases of total lack of
material, perhaps one can consider the references as totally lacking in basis.
Similarly, when extraneous or irrelevant considerations weigh with the referring
agency, such factors indicate either improper or complete lack of application of
mind. Similarly, if the referring agency has omitted from consideration, some
vital information which could have tilted the balance other way, perhaps the
reference can be interfered with.
3. The third ground I can visualize is, a case where the dispute must
necessarily be an industrial dispute, for it to be referred.
4. As is well known, some of the conditions of service and for that matter
disputes as well, could have been the subject matter of an existing settlement
in operation or a binding award. Contrary thereto, no reference can be made and
finally,
5. Like any other administrative order or decision, if an order of reference is
vitiated by malafides, then, the same can be interfered with.
I have not found in the present case any of these grounds existing for me to
interfere with the impugned order of reference.
Legislatures in India, consistent with their sovereign character, possess wide
powers of delegation. This power, of course, is subject to the most important
limitation that the essential legislative functions consisting of determination
or choosing of a legislative policy cannot be delegated. Power to delegate must
be canalized and confined to the definite limits within which the functions are
to be carried out to prevent from their overflowing effects. There is one other
fundamental limitation that the delegatee shall not denude completely of the
power vested in it. In the instant case, the notification issued by the State
Government through their G.O.Ms.No.63 Labour Employment Training and Factories
(Lab 1 Dept) dated 02.08.2008 when perused, it becomes clear that the Government
of Andhra Pradesh declared that the functions exercisable by it under Sub-
sections 1 & 2 of Section 10, Sub-section 1 of Section 33-C and
Sub-section 1 of Section 34 of the Industrial Disputes Act, 1947, shall also be
exercised by the Commissioner of Labour, Additional Commissioner of Labour and
Joint Commissioners of Labour in their respective jurisdictions as shown in the
annexures 1 and 2 of the said order. A perusal of this order therefore clearly
indicates that the State Government has not denuded itself of the powers
exercisable by it under Section 10. It has also enabled the authority
specified by it to exercise those functions. What has been delegated was to make
a reference of industrial disputes for purpose of adjudication. As was already
noticed supra, there is no adjudication involved while making any such order of
reference of an industrial dispute, either existing or apprehended. It is a pure
and simple administrative act. By delegating the powers under Section 10, the
State Government has only facilitated easy and smooth flow of events involving
existing or apprehended industrial disputes. Timely resolution of industrial
disputes will undoubtedly promote industrial harmony and peace. It helps in
better relations to prevail between the employers and the employees, thus
contributing for higher productivity and usefulness and therefore the State has
only delegated a non-adjudicatory function. The delegation was intended to
prevent further loss of time in making references. In principle, I am not able
to find any infirmity in the State doing so.
The industrial employers have easy access to better resources. However,
such resources should not be put to use as to frustrate the legitimate interests
of the employees/workmen. A small time house keeping assistant is
effectively shown the door and when his cause is sought to be espoused by a
trade union, this writ petition is instituted questioning the validity of the
very reference. By participating in the adjudicatory process, the petitioner is
not going to be any poorer. It will have a fair chance to establish its
bonafindes. The present writ petition is part of 'stone walling' tactics
normally adopted by employers. The cumbersome and expensive process of
litigation will cause any amount of frustration to an individual workman. Even
though the cause may have been sponsored by a trade union, even such trade
unions do not have overflowing cash chests with them. They survive on the
pittance of contributions made by their members. Therefore, even a recognized
trade union will not be able to match the litigative zeal of an employer. Even
for this reason also, I decline to exercise my discretion.
For all the aforesaid reasons, this writ petition is devoid of merit and
it is accordingly dismissed, but however without costs. Miscellaneous
applications, if any, shall stand dismissed.
________________________________
NOOTY RAMAMOHANA RAO, J
5th October, 2012
