WHILE MAKING A REFERENCE OF DISPUTE UNDER SECTION 10(1) OF INDUSTRIAL DISPUTES ACT, 1947 THE APPROPRIATE GOVERNMENT IS NOT TO ADJUDICATE THE DISPUTE ON MERITS

[DR.MARIAPPAN GOVINDARAJAN]

Industrial disputes

Section 2(k) of the Industrial Disputes Act, 1947 (‘Act’ for short) defines the expression ‘Industrial Dispute’ as any dispute or differences 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.

Reference of labour dispute

Section 10 of the Act provides for the reference of disputes by the appropriate Government to Boards, Courts or Tribunals. Section 10(1) of the Act provides that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing, -

1. refer the dispute to a Board for promoting a settlement thereof; or
2. refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
3. 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
4. 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.

Issue

The issue to be discussed in this article is as to whether the appropriate Government can adjudicate the merit of the case while referring the dispute to any Authority with reference to decided case law.

Case law

The High Court, Rajasthan held in MUKESH KUMAR VERSUS UNION OF INDIA AND OTHERS - 2024 (8) TMI 1096 - RAJASTHAN HIGH COURT, that the appropriate Government cannot adjudicate the matter while referring the dispute to any Authority.

In the above said case, the petitioner was engaged on the post of Jalsewak by the respondents on 22.07.20008. The services of the petitioner were terminated with effect from 06.02.2009. The petitioner, in this regard, raised an industrial dispute by filing an application under section 27A of the Act before the Conciliation Officer. This application was rejected by the Ministry of Labor, Government of India, vide their order dated 05.07.2010. The reason for such rejection is that the petitioner worked only for a period of 85 days. Therefore, he could not claim further employment.

The petitioner filed the present writ petition challenging the order of the Government refusing to make reference for settlement of disputes between the parties. The petitioner contended the following before the High Court that the order passed by the Government is not sustainable in law as the authority is not competent to adjudicate the disputes on merits. Therefore, the order is liable to be set aside. The petitioner relied on a judgment in GOPIRAM YADAV VERSUS STATE OF RAJASTHAN, THROUGH SECRETARY; LABOUR COMMISSIONER AND CONCILIATION OFFICER; REGIONAL FOREST OFFICER & FOREST EXTENSION OFFICER, JAIPUR - 2023 (8) TMI 1498 - RAJASTHAN HIGH COURT.

The respondents submitted the following before the High Court-

• The petitioner has not worked for 240 days in year and therefore the provisions of Sections 25F, 25G, 25H of the Act are not attracted in this case.
• There was no dispute between the petitioner and the respondents which was to be adjudicated by a Labor Court on a reference made to it by the competent authority.
• At the time of raising industrial dispute by the petition before the Conciliation Officer his age was 30 and now, he might attain the age of superannuation and therefore the interference of High Court is not warranted.

The respondents relied on the judgment of Supreme Court in Haryana State F.C.C.W. Store Ltd. and Ors. Versus Ram Niwas and Ors. - 2002 (7) TMI 840 - Supreme Court.

The High Court heard the submissions made by the parties to this petition. The High Court observed that the competent authority refused to make reference only on a technical count that the petitioner has worked for 85 days only and he could not substantiate his claim for further employment with any documentary evidence. The High Court further observed that the competent authority refused to make reference only on a technical count that the petitioner has worked for 85 days only and he could not substantiate his claim for further employment with any documentary evidence.

The High Court, on the facts and circumstances of the case, framed the question for its consideration as to whether order passed by the Authority dated 05.07.2010 is legally sustainable in the eye of law or not.

The High Court relied on the judgment of Supreme Court in ‘Telco Convoy Drivers Mazdoor Sangh and Ors. Versus State of Bihar and Ors. - 1989 (4) TMI 342 - Supreme Court in which the Supreme Court held that though while considering the question of making reference under section 10(1) of the Act of 1947, the Government is entitled to form an opinion as to whether an industrial dispute “exists or is apprehended”, but it is not entitled to adjudicate the dispute itself on its merits. While exercising power under Section 10(1) of the Act of 1947, the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function. It cannot decide the merits of the dispute. The question whether the person raising the dispute was a workman or not, cannot be decided by the Government, in exercise of its administrative function under Section 10(1) of the Act. This dispute is required to be adjudicated by the competent Labour Court after its reference.

The High Court held that the case law relied on by the respondents is not applicable to the facts and circumstances of the present case. The services of the petitioner were discontinued without issuing any notice to the petitioner and giving reasonable opportunity of being heard. The issue of Section 25H of the Act of 1947 has been raised by the petitioner, which is required to be decided by the competent Labour Court/Industrial Tribunal, after affording due opportunity of hearing to both the sides.

The High Court set aside the order of the Government and remitted the matter to the Government for making reference of the dispute.