Jan - High Court of Judicature at Allahabad

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54 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Apex Court contained in para 2 and 3 ofthe decision are extracted as under:"2. The appellant Union raised adispute that the workmen employed in themines run and maintained by M/s BharatCoking Coal Ltd., Lodhra Area, Dhanbadwere engaged by a contractor withoutobtaining a licence and in fact theworkmen were under the directemployment of the management of M/sBharat Coking Coal Ltd. They claimedrelief for a declaration to that effect. Theworkmen approached the CentralGovernment for referring the dispute toIndustrial Court under Section 10 of theIndustrial Disputes Act, 1947. TheCentral Government by its order datedMay 5, 1989 refused to refer the disputeon the ground that Union had failed toestablish that the disputed workmen wereengaged in prohibited categories of workunder the Contract Labour (Regulationand Abolition) Act, 1970 and further thatthey were engaged by contractor and notby the management of the respondentCompany. The government further heldthat there appeared to be no employeremployeerelationship between themanagement of the respondent-companyand the workmen involved in the dispute.The appellant challenged thegovernment's order before the High Courtby means of writ petition but the samewas dismissed in limine. Hence thisappeal.3. After hearing learned counsel forthe parties and having regard to the factsand circumstances of the case, we are ofthe opinion that this appeal must succeed.The Central Government instead ofreferring the dispute for adjudication tothe appropriate Industrial Court underSection 10 of the Industrial Disputes Act,1947, it itself decided the dispute which isnot permissible under the law. We,accordingly, allow the appeal, set asidethe order of the High Court and of theCentral Government and direct theCentral Government to refer the disputefor adjudication to the appropriateIndustrial Court under Section 10 of theIndustrial Disputes Act, 1947. We furtherdirect the Central Government to makethe reference within three months."15. Again in Sharad Kumar Vs.Government of NCT of Delhi andothers, (2002) 4 S.C.C. 490, afterconsidering the entire case law on thepoint in para 31 of the decision the ApexCourt observed as under:"31. Testing the case in hand on thetouchstone of the principles laid down inthe decided cases, we have no hesitationto hold that the High Court was clearly inerror in confirming the order of rejectionof reference passed by the StateGovernment merely taking note of thedesignation of the post held by therespondent i.e. Area Sales Executive. Asnoted earlier determination of thisquestion depends on the types of dutiesassigned to or discharged by theemployee and not merely on thedesignation of the post held by him. Wedo not find that the State Government oreven the High Court has made anyattempt to go into the different types ofduties discharged by the appellant with aview to ascertain whether he came withinthe meaning of Section 2(s) of the Act.The State Government, as noted earlier,merely considered the designation of thepost held by him, which is extraneous tothe matters relevant for the purpose.From the appointment order dated21.4.1983/22.4.1983 in which are
1 All] Ram Shiromani Yadav V. The Conciliation Officer and others 55enumerated certain duties which theappellant may be required to discharge itcannot be held therefrom that he did notcome within the first portion of Section2(s) of the Act. We are of the view thatdetermination of the question requiresexamination of factual matters for whichmaterials including oral evidence willhave to be considered. In such a matterthe State Government could not arrogateon to itself the power to adjudicate on thequestion and hold that the respondent wasnot a workman within the meaning ofSection 2(s) of the Act, therebyterminating the proceedings prematurely.Such a matter should be decided by theIndustrial Tribunal or the Labour Courton the basis of the materials to be placedbefore it by the parties. Thus the rejectionorder passed by the State Government isclearly erroneous and the order passed bythe High Court maintaining the same isunsustainable."16. Thus, from the legal positionstated by Apex Court from time to time, itis clear that when the appropriategovernment considers the question as towhether a reference should be made forindustrial adjudication or not, it has toexercise its discretion conferred bySection 10 of the Act and while doing soit may consider prima facie merit of thedispute and take into account otherrelevant factors which would help it todecide whether making a reference wouldbe expedient or not. If the dispute inquestion raises questions of law, theappropriate government should notpurport to reach a final decision on thesaid questions of law, because that wouldnormally lie within the jurisdiction ofindustrial tribunal. Similarly on disputedquestions of fact, the appropriategovernment cannot purport to reach finalconclusions, for that again would be theprovince of the Industrial Tribunal. But itwould not be possible to accept the pleathat the appropriate Government isprecluded from considering even primafacie merits of the dispute when it decidesthe question as to whether its power tomake reference should be exercised underSection 10(1) read with Section 12(5), ornot. If the claim made is patentlyfrivolous, or is clearly belated, theappropriate Government may refuse tomake a reference. Likewise, if the impactof claim on the general relations betweenemployer and employees in the region islikely to be adverse, the appropriateGovernment may take into account indeciding whether a reference should bemade or not. It must, therefore be heldthat an examination of a prima faciemerits cannot be said to be foreign to theinquiry which the appropriateGovernment is entitled to make in dealingwith dispute under Section 10(1).However, when the Government decidesnot to make reference for industrialadjudication, it is under an obligation torecord its reason for not making suchreference.17. While exercising the powerconferred by Section 10 of the Act to referan industrial dispute to a tribunal foradjudication, the appropriate Governmentis discharging an administrative functionwherein it has to form an opinion as tofactual existence of an industrial disputeas a preliminary step to the discharge ofits function. If the Government performsan administrative function while eithermaking or refusing to make a referenceunder Section 10(1), it cannot delve intothe merits of the dispute and take uponitself the determination of lis. Section 10requires the appropriate Government to be
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1 All] Mohan Singh V. U.P. Rajya Vi
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Page 5 and 6: 1 All] Mohan Singh V. U.P. Rajya Vi
Page 7 and 8: 1 All] Smt. Suman V. Brij Kishore 7
Page 9 and 10: 1 All] Ravindra Kumar Singh and oth
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Page 47 and 48: 1 All] Ram Shiromani Yadav V. The C
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Page 59 and 60: 1 All] Km. Sandhya V. State of U.P.
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Page 63 and 64: 1 All] Madan V. State of U.P. and o
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Page 87 and 88: 1 All] Lala Ram and others V. State
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Jan - High Court of Judicature at Allahabad

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