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2009(3) Supreme 524
SUPREME COURT OF INDIA
R.V. Raveendran and Lokeshwar Singh Panta, JJ.
Sarva Shramik Sangh — Appellant
versus
Indian Oil Corporation Ltd. & Ors. — Respondents
Civil Appeal No. 2423 of 2009
(Arising out of SLP [C] No.18717/2006]
Decided on : 13-04-2009
(2006)12 SCC 233 – Distinguished.
(19791 SCC 1 – Distinguished impliedly.
(b) Constitution of India,1950 – Article 226 r/w section 10, CLRA Act and section 10, ID Act – The appellant had prayed for a particular relief in the first writ petition, and when such relief was found to be inappropriate and the law was clarified in SAIL-I, on the same fact raised a dispute which was the proper remedy, and as the dispute was not referred to the Industrial Tribunal, approached the High Court seeking a direction to the Central Government for making a reference – There is neither inconsistency nor any estoppel. (Para 9)
(2001)7 SCC 1 – Relied upon.
(c) Constitution of India,1950 – Article 226 – Taking inconsistent pleas is not barred – However, taking of an inconsistent plea by way of amendment thereby denying the other side, the benefit of an admission contained in the earlier pleading is not permissible – Mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously. (Para 10)
(d) Industrial Disputes Act, 1947 – Section 10(1) – Principles for making reference and scope of section 10(1) restated – However, if the appropriate government refuses to make a reference for irrelevant considerations, on extraneous grounds or acts mala fide, a party would be entitled to move the High Court for a writ of mandamus. (Para 12)
(1953)4 SCR 334; AIR 1969 SC 707; (1970)1 SCC 225; [1961] 1 SCR 227; [1964] 6 SCR 22; (1975)2 SCC 649; (1985)3 SCC 189 – Relied upon.
(e) Industrial Disputes Act, 1947 – Section 10(1) – Function of the appropriate government is an administrative function and not a judicial or quasi-judicial function – In performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis – This would be in excess of the power conferred on it. (Para 12)
(1989)3 SCC 271; (1996)2 SCC 66; (2000)3 SCC 93 – Relied upon.
(f) Constitution of India,1950 – Article 226 – Conditions under which writ of mandamus would issue on refusal to make a reference enumerated. (Para 13)
Facts of the case :
1. The appellant Union approached the High Court contending that the contracts between IOC and the canteen contractor was sham and bogus and seeking a direction to the Union of India to make a reference of the dispute raised by them in regard to the demand for permanency of the canteen workers to the Industrial Tribunal.
2. The High Court directed the Central Government to consider and dispose of the request for reference with a further direction to maintain status quo in regard to concerned workmen till disposal of the reference application.
3. After failure of Conciliation Report dated 2.9.2004, Government of India by order dated 21.12.2004 refused to make a reference of the dispute under section 10(1) of the Industrial Disputes Act, 1947. The Labour Ministry of the Government of India was of the view that the dispute, prima facie, was not fit for adjudication, as “the workmen in respect of whom the dispute was raised were not appointed by the management of IOC but were engaged by the contractor holding a valid and legal contract.”
4. The said order was challenged by the appellant in W.P. seeking a mandamus to the Government of India to refer the dispute raised, to the Industrial Tribunal for adjudication.
5. The said writ petition was dismissed by the High Court by the impugned order.
Finding of the Court :
This case is squarely covered by the decisions in Ram Avtar Sharma and Telco Convoy Drivers Mazdoor Sangh.
Result : Appeal allowed.
JUDGMENT
R.V. Raveendran, J.—
The appellant union represents the canteen workers of the contractor engaged by Indian Oil Corporation Ltd. (‘IOC’ for short) for running its canteen at its Western Region Marketing Division at Mumbai. The appellant union filed W.P.No.1267/1999 in the Bombay High Court on behalf of the said workers seeking the following reliefs: (i) a direction to the Central Advisory Contract Labour Board and Union of India to hold an investigation under section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (‘CLRA Act’ for short), on its application dated 29.12.1998 and make an order abolishing the contract labour system in regard to workmen in the canteen of Marketing division of IOC; and (b) a direction to IOC to absorb/regularize the services of the said workers. The writ petition was dismissed for want of prosecution on 11.11.2003.
2. Thereafter the appellant again approached the High Court in W.P.No.853/2004 contending that the contracts between IOC and the canteen contractor was sham and bogus and seeking a direction to the Union of India to make a reference of the dispute raised by them in regard to the demand for permanency of the canteen workers to the Industrial Tribunal. The High Court vide order dated 22.4.2004 disposed of the said writ petition with a direction to the Central Government to consider and dispose of the request for reference with a further direction to maintain status quo in regard to concerned workmen till disposal of the reference application. In pursuance of it conciliation proceedings were held and the Assistant Labour Commissioner (Central)-III, Mumbai, sent a Failure of Conciliation Report dated 2.9.2004, Government of India by order dated 21.12.2004 refused to make a reference of the dispute under section 10(1) of the Industrial Disputes Act, 1947 (‘ID Act’ for short). The Labour Ministry of the Government of India was of the view that the dispute, prima facie, was not fit for adjudication, as “the workmen in respect of whom the dispute was raised were not appointed by the management of IOC but were engaged by the contractor holding a valid and legal contract.”
3. The said order was challenged by the appellant in W.P.No. 1673/2005 seeking a mandamus to the Government of India to refer the dispute raised, to the Industrial Tribunal for adjudication. The appellant contended that the central government had usurped the power and function of the Industrial Tribunal, by deciding the very issue that required to be referred to and decided by the Tribunal. The said writ petition was dismissed by the High Court by the impugned order dated 19.8.2006 on the following two grounds : (i) The appellant had earlier filed WP No.1267/1999 for abolition of contract labour in the canteen in the establishment of IOC. The said earlier petition (W.P.No.1267/1999) was dismissed on 11.11.2003 for non-prosecution and attained finality; and once having sought the relief of abolition of contract labour, the appellant was estopped from seeking any other relief by contending that the contract was sham and not genuine. (ii) The order dated 21.12.2004 of the appropriate government did not suffer from any infirmity or arbitrariness, when examined with reference to the principles laid down by this Court in Avon Services Production Agencies (P) Ltd. v. The Industrial Tribunal1 [1979 (1) SCC 1]. The said order is challenged in this appeal by special leave.
4. The contentions urged by the parties give rise to the following questions for determination :
(i) whether in view of the stand taken by the appellant in WP No.1267 of 1999 , the appellant was estopped from taking a different stand in the subsequent writ petition (WP 1673/2005).
(ii) whether the decision of the central government refusing reference requires interference.
Re : Question (i)
5. The appellant submits that the contract labour can take the plea that the contract between the principal employer and the contractor is sham and bogus and t
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