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PETITIONER: TELCO CONVOY DRIVERS MAZDOOR SANGH & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT28/04/1989

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) THOMMEN, T.K. (J)

CITATION:  1989 AIR 1565            1989 SCR  (2) 802  1989 SCC  (3) 271        JT 1989  Supl.    155  1989 SCALE  (1)1544

ACT:     Industrial   Disputes   Act,  1947:  Sections   10   and 12--Industrial  Dispute--Appropriate  Government--Power   to make a reference-Nature of--Whether includes power to  delve into    merits   of   dispute-Formation   of   opinion    by Government--Whether      dispute     ’Exists      or      is Apprehended’--Whether  same thing as to adjudicate the  dis- pute on its merits--Court--When can direct the Government to make a reference.

HEADNOTE:     The appellant-Telco Convoy Drivers Mazdoor Sangh, repre- sented to the Tara Engineering & Locomotive Co. Ltd. (TELCO) demanding that all convoy drivers should be given  permanent status  and facilities that are available to  the  permanent employees  of TELCO. The Deputy Labour Commissioner  refused to  make a reference under section 10(1) of  the  Industrial Disputes Act, 1947 because of the opinion of the Law Depart- ment  that there was no relationship of master  and  servant between TELCO and the convoy drivers.     The  appellant-Sangh flied a writ petition in  the  High Court praying for a writ of mandamus commanding the State of Bihar  to refer the dispute under section 10(1) of the  Act. The High Court dismissed the petition but granted liberty to the  appellant-Sangh  to  reagitate the  matter  before  the appropriate Government.     On  a  further  representation also  the  Deputy  Labour Commissioner refused to make a reference under section 10(1) of the Act. Again, the appellant-Sangh moved a writ petition in  the  High Court which summarily dismissed  the  petition holding that the appellants had failed to satisfy that  they were  employed  by the TELCO. Hence this appeal  by  Special leave. After the conclusion of the hearing, the Court  being of  the  view that the Government should be given  one  more chance to consider the question of making a reference,  kept the appeal pending and directed the Government to reconsider the question of referring the dispute. Upon  reconsideration also  the Government refused to make a reference under  sec- tion 10(1) of the Act. On the question: whether an appropri- ate  Government exercising power to make a  reference  under section 10(1) of the Industrial Disputes Act, 1947 can delve

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into the 803 merits  of the dispute and adjudicate upon the  dispute  it- self.     Allowing  the appeal and setting aside the  judgment  of the High Court,     HELD: 1. In considering the question of making a  refer- ence under section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended".  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  mer- its. [807A]     2.  While  exercising power under section 10(1)  of  the Act, the function of the appropriate Government is an admin- istrative  function  and not a  judicial  or  quasi-judicial function, and 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 section 10 of the Act. [807F]     Ram  Avtar Sharma v. State of Haryana, [1985]  3  S.C.R. 686; M.P. Irrigation Karamchari Sangh v. The State of  M.P., [1985]  2  S.C.R.  1019 and Shambhu Nath Goyal  v.  Bank  of Baroda, Jullundhur, [1978] 2 S.C.R. 793 applied.     2.1  In the instant case, the dispute is as  to  whether the convoy drivers are employees or workmen, of TELCO,  that is  to  say, whether there is relationship of  employer  and employees  between  TELCO and the convoy drivers,  the  same cannot  be  decided  by the Government in  exercise  of  its administrative  function  under section 10(1)  of  the  Act. Therefore, the State Government was not justified in adjudi- cating the said dispute. [807B, 807H, 808A]     3.  There  may be exceptional cases in which  the  State Government  may  come to a conclusion that the  demands  are either  perverse or frivolous and do not merit a  reference. But the Government should be very slow to attempt an  exami- nation of the demand with a view to declining reference  and Courts  will  always  be vigilant  whenever  the  Government attempts  to usurp the powers of the Tribunal for  adjudica- tion of valid disputes, and that to allow the Government  to do so would be to render section 10 and section 12(5) of the Act nugatory. [808A-C] 804     M.P.  Irrigation Karamchari Sangh v. The State of  M.P., [1985] 2 S.C.R. 1019 applied.     4.  In  the instant case, in view of the fact  that  the Government has persistently declined to make a reference and even  after  reconsideration  has  adjudicated  the  dispute itself, the dispute should be adjudicated by the  Industrial Tribunal. [808E]     The  State of Bihar is directed to make a  reference  of the dispute raised by the Telco Convoy Drivers Mazdoor Sangh to an appropriate Industrial Tribunal under section 10(1) of the Act. [808H, 809A]     Sankari  Cement  Alai  Thozhilalar  Munnetra  Sangam  v. Government  of  Tamilnadu, [1983] 1 L.L.J.  460;  Ram  Avtar Sharma v. State of Haryana, [1985] 3 S.C.R. 686; M.P.  Irri- gation  Karamchari  Sangh  v. The State of  M.P.,  [1985]  2 S.C.R.  1019 and Nirmal Singh v. State of Punjab,  [1984]  2 L.L.J. 396; applied.

JUDGMENT:

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   CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2534  of 1989.     From the Judgment and Order dated 15.1.1988 of the  High Court in C.W.J.C. No. 1852 of 1987. G.B. Pai, S.K. Sinha for the Appellants.     Shanti Bhushan, S. Sukumaran, D.N. Misra, S.B.  Upadhyay and B.B. Singh for the Respondents. The Judgment of the Court was delivered by     DUTT, J. Special leave is granted. Heard learned Counsel for the parties.     The   appellants,  Telco  Convoy Drivers Mazdoor  Sangh, Jamshedpur, and another, have preferred this appeal  against the judgment of the Patna High Court whereby the High  Court dismissed  the writ petition of the  appellants  challenging the order of the State of Bihar refusing to make a reference of  the disputes raised by the appellants to the  Industrial Tribunal  under section 10 of the Industrial  Disputes  Act, 1947, hereinafter referred to as "the Act". The appellant-Sangh represents about 900 convoy drivers.  By a 805 letter  of  demand dated October 16, 1986 addressed  to  the General  Manager  of the Tata Engineering &  Locomotive  Co. Ltd.,  Jamshedpur  (for short "TELCO"), the  Sangh  demanded that  permanent status should be given by the management  to all  the convoy drivers, and that they should also be  given all the facilities as are available to the permanent employ- ees  of  TELCO on the dates of their appointment.  The  said demand proceeds on the basis that the convoy drivers are all workmen  of TELCO. The dispute that has been raised  in  the said  letter  of demand is principally  whether  the  convoy drivers  are  workmen and/or employees of TELCO or  not.  In other  words, whether there is relationship of employer  and employees between TELCO and the convoy drivers.     The  Deputy  Labour  Commissioner by  his  letter  dated February 26, 1979 informed the appellant-Sangh that in  view of the opinion of the Law Department of the year 1973 to the effect that there was no relationship of master and  servant between  TELCO  and the convoy drivers, the demands  of  the convoy  drivers did not come within the purview of  the  Act and, accordingly, it was not possible to take any action  in regard  to the dispute of convoy drivers under the Act.  The appellant-Sangh being aggrieved by the said refusal to  make a reference under section 10(1) of the Act, moved before the Ranchi Bench of the Patna High Court a writ petition praying for  a  writ of mandamus commanding the State  of  Bihar  to refer the dispute under section 10(1) of the Act. A  learned Single Judge of the High Court, who heard the writ petition, took  the view that the letter of the Deputy Labour  Commis- sioner only referred to the Law Department’s opinion of  the year 1973 without indicating in what context and under  what circumstances,  he rejected the demand for a  reference.  In that  view of the matter, the learned Judge granted  liberty to  the Sangh to reagitate the mater before the  appropriate Government  and  expressed  the hope  that  the  appropriate Government would consider the matter in a proper perspective in  the light of the documents and the materials that  would be  placed  by the Sangh, in accordance with law.  The  writ petition was dismissed subject, however, to the  observation and direction mentioned above.     Pursuant  to the liberty granted by the High Court,  the Sangh  made a representation to the Government for a  refer- ence  of  the dispute under section 10(1) of  the  Act.  The Deputy Labour Commissioner, Jamshedpur, by his letter  dated November  6, 1986 gave the same reply and refused to make  a

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reference. 806     Again, the appellant-Sangh moved a writ petition  before the  High Court and, as stated already, the High Court  sum- marily  dismissed the same holding that the  appellants  had failed to prima facie satisfy that they were employed either by  TELCO  or by the Telco Contractors’  Association.  Hence this appeal.     It has been urged by Mr. Pai, learned Counsel  appearing on  behalf of the appellants, that the  Government  exceeded its jurisdiction in purporting to decide the dispute  raised by the appellant-Sangh in the said letter of demand. Counsel submits that in the facts and circumstances of the case, the Government  should have made a reference to  the  Industrial Tribunal under section 10(1) of the Act for the adjudication of  the  dispute of the convoy drivers and should  not  have embarked upon the task of deciding the dispute on its merits through the Deputy Labour Commissioner.     On  the other hand, it has been vehemently urged by  Mr. Shanti Bhusan, learned Counsel appearing on behalf of TELCO, that the Government has the jurisdiction to consider whether any industrial dispute exists or not and, in considering the same,  as the Government found that the convoy drivers  were not even workmen of TELCO or, in other words, there had been no relationship of master and servants between TELCO and the convoy  drivers, the Government refused to make a  reference of the dispute under section 10(1) of the Act. It is submit- ted  that the refusal by the Government to make a  reference was  perfectly within its jurisdiction inasmuch as,  in  the opinion  of  the Government, there was no existence  of  any industrial dispute.     After  conclusion of the hearing, we took the view  that the  Government should be given one more chance to  consider the  question of making a reference and, accordingly, we  by our  order dated March 30, 1989 directed the  Government  to reconsider  the question of referring the dispute raised  by the convoy drivers to the Industrial Tribunal under  section 10 of the Act, keeping the appeal pending before us.     The learned Counsel, appearing on behalf of the  Govern- ment,  has produced before us an order dated April 13,  1989 of the Government whereby the Government has, upon a  recon- sideration of the matter, refused to make a reference  under section  10(1) of the Act. In refusing to make a  reference, the Government has adjudicated the dispute on its merits. 807     It is true that in considering the question of making  a reference under section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute  "exists or  is  apprehended",  as urged by Mr.  Shanti  Bhusan.  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. In the  instant case,  as already stated, the dispute is as to  whether  the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between  TELCO  and the convoy drivers. In  considering  the question whether a refer, should be made or not, the  Deputy Labour Commissioner and/or the Government have held that the convoy  drivers are not workmen and, accordingly, no  refer- ence can be made. Thus, the dispute has been decided by  the Government which is undoubtedly, not permissible.     It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words,  unless those who are raising the disputes are  work- men,  there  cannot be any existence of  industrial  dispute

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within the meaning of the term as defined in section 2(k) of the Act. It is urged that in order to form an opinion as  to whether an industrial dispute exists or is apprehended,  one of  the factors that has to be considered by the  Government is  whether  the persons who are raising  the  disputes  are workmen  or  not  within the meaning of  the  definition  as contained in section 2(k) of the Act.     Attractive  though the contention is, we regret, we  are unable  to  accept the same. It is now  well  settled  that, while  exercising power under section 10(1) of the Act,  the function of the appropriate Government is an  administrative function  and not a judicial or quasijudicial function,  and that in performing this administrative function the  Govern- ment  cannot delve into the merits of the dispute  and  take upon  itself the determination of the lis, which would  cer- tainly be in excess of the power conferred on it by  section 10  of  the Act. See Ram Avtar Sharma v. State  of  Haryana, [1985]  3 SCR 686; M.P. Irrigation Kararnchari Sangh v.  The State  of M.P., [1985] 2 SCR 1019 and Shambhu Nath Goyal  v. Bank of Baroda, Jullundur, [1978] 2 SCR 793.     Applying  the principle laid down by this Court  in  the above  decisions, there can be no doubt that the  Government was not justified in deciding the dispute. Where, as in  the instant case, the dispute is 808 whether  the person raising the dispute are workmen or  not, the same cannot be decided by the Government in exercise  of its administrative function under section 10(1) of the  Act. As has been held in M.P. Irrigation Karamchari Sangh’s  case (supra),  there may be exceptional cases in which the  State Government may, on a proper examination of the demand,  come to  a  conclusion that the demands are  either  perverse  or frivolous and do not merit a reference. Further, the Govern- ment  should be very slow to attempt an examination  of  the demand  with a view to declining reference and  Courts  will always be vigilant whenever the Government attempts to usurp the  powers of the Tribunal for adjudication of  valid  dis- putes, and that to allow the Government to do so would be to render section 10 and section 12(5) of the Act nugatory.     We  are, therefore, of the view that the  State  Govern- ment, which is the appropriate Government, was not justified in  adjudicating  the dispute, namely,  whether  the  convoy drivers  are workmen or employees of TELCO or not  and,  ac- cordingly, the impugned orders of the Deputy Labour  Commis- sioner  acting on behalf of the Government and that  of  the Government itself cannot be sustained.     It  has been already stated that we had given  one  more chance  to the Government to reconsider the matter ,red  the Government  after reconsideration has come to the same  con- clusion  that  the convoy drivers are not workmen  of  TELCO thereby  adjudicating the dispute itself. After having  con- sidered  the facts and circumstances of the case and  having given  our best consideration in the matter, we are  of  the view that the dispute should be adjudicated by the Industri- al Tribunal and, as the Government has persistently declined to make a reference under section 10(1) of the Act, we think we should direct the Government to make such a reference. In several instances this Court had to direct the Government to make   a reference under section 10(1) when  the  Government had declined to make such a reference and this Court was  of the  view that such a reference should have been  made.  See Sankari  Cement Alai Thozhilalar Munnetra Sangam v.  Govern- ment  of Tamil Nnadu, [1983] 1 LLJ 460; Ram Avtar Sharma  v. State  of Haryana, [1985] 3 SCR 686; M.P. Irrigation  Karam- chari  Sangh  v.  The State of M.P. [1985] 2  SCR  1019  and

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Nirmal Singh v. State of Punjab, [1984] 2 LLJ396.     In  the circumstances, we direct the State of  Bihar  to make  a  reference  under section 10(1) of the  Act  of  the dispute raised by the 809 Telco  Convoy  Drivers  Mazdoor Sangh by  its  letter  dated October  16,  1986 addressed to the  General  Manager  TELCO (Annexure R-4/1 to the Special Leave Petition), to an appro- priate Industrial Tribunal within one month from today.     The appeal is allowed and the judgment of the High Court and the impugned orders are set aside. There will,  however, be no order as to costs. T.N.A.                                    Appeal allowed. 810