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2007 Supreme(Bom) 1573
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
F.I. REBELLO & J.P. DEVADHAR, JJ.
Cedric D’Silva — PETITIONER
Versus
Union of India through — RESPONDENTS
WRIT PETITION NO.1145 OF 2007
Decided on : 2nd November, 2007
Mr. Mohan Bir Singh for the Petitioner
Mr. A.C.Singh with Mr. D.A. Dubey, for respondent No.1.
Mr. C.U.Singh, Senior Counsel with Mr. Abhay Kulkarni, Mr.
C.M. Mehta, Mr. B. Das, Mr. Mohan Salian i/b. Gagrats
for Respondent No.4.
Headnote:Industrial Disputes Act, 1947 - Sections 2(s) and 12(5)-Constitution of India, Article 226-Whether Sr. Air Commander of Airline is workman-And if so whether his termination is illegal and consequently by relief he is entitled for-Government refused to make reference to Tribunal-Petition against-Held-Court direct to Central Government to make reference to Tribunal as the question.-The decision of the Appropriate Government to make or reject a reference is administrative and is based on subjective satisfaction. Section 12(5) of the I.D. Act, however, requires reasons to be recorded.
The remedy of a person who claims to be a workman in respect of reliefs which can be adjudicated under the I.D. Act is only by resorting to the mechanism under the Industrial Disputes Act, 1947. The Act, therefore, coupled with the power has imposed a duty on the Government, in case of a refusal to make a reference, to record the reasons under Section 12(5) of the I.D. Act. Those reasons must be germane to the issue for consideration and not based on irrelevant material or considerations which are not determinative as to whether the employee is a workman as in the present case. If the appropriate Government only on a prima facie consideration rejects making of a reference, it will deny an employee claiming as a workman the right to get his status decided by a Competent Forum, thus rendering him without a remedy and a forum where he can get a relief of reinstatement, as such a relief can be granted only by an industrial adjudicator. Prima facie this would by itself contemplate that on material being produced, this prima facie finding can be displaced. In other words a reference cannot be rejected on a prima facie finding.
The petitioner was working as a Senior Commander with Respondent No.4. By communication of 18th January, 2006 the services of the petitioner came to be terminated. The Petitioner thereafter initiated proceedings in conciliation before Respondent No.3. The petitioner and Respondent No.4, appeared before respondent No.3 and stated their respective case. Respondent No.3 thereafter submitted a failure report. The Appropriate Government considering the failure report of 28th February, 2005 was pleased to communicate its decision as under:-
"Capt. Cedric D’silva, Sr. Commander, Jet Airways not being a workman in terms of Section 2(s) of the ID Act, in view of the duties assigned to him, no ID subsists."
The petitioner being aggrieved preferred a Writ Petition before this Court which came to be disposed of by order dated 22nd January, 2006. This Court considering the material on record and the judgments cited, held that the decision of the Appropriate Government in rejecting the petitioner’s demand for reference disclosed total non-application of mind. Considering that we referred the matter back to the respondent No.1 to reconsider the matter.
2. The petitioner subsequent to the order of this Court has received a communication dated 15th February, 2007 which reads as under:-
"Capt. Cedric D’Silva, Senior Commander, Jet Airways, prima-facie is not a workman under the ID Act, in view of the predominant nature of the duties assigned to him i.e. managerial/supervisory work. No ID subsists."
(emphasis supplied)
It is this order which is the subject matter of the present petition. We may mention that after the order of remand there have been no subsequent hearings before the Conciliation Officer except the fresh decision which has been communicated. While disposing of the first petition we had observed as under:-
"Under Section 12(5) of the ID Act, if the appropriate Government on consideration of the report forwarded by the Conciliation Officer is of the opinion that no industrial dispute exists it may refuse to make reference. In the instant case, as we have pointed out earlier the appropriate Government has prima facie opined that petitioner is not a workman and consequently rejected the claim of petitioner and has refused to make a reference. We have pointed that an order under Section 12(5) of the I.D. Act, though partakes of an administrative order nonetheless, it is still open to this Court to interfere with the said order, if that order discloses non-application of mind or satisfaction is based on irrelevant material or not considering relevant material or without considering the law laid down by Supreme Court and High Courts. We are prima facie of the opinion that the decision of the Appropriate Government in rejecting the petitioner’s case for reference discloses total non-application of mind."
3. During the course of hearing as it was contended that the failure report given to the parties was not the failure report, the copy of the Report dated 28th February, 2005 was made available to both the parties. We have had the advantage of going through the said failure report.
There is no dispute that the petitioner at the relevant time of his termination of services, was working as a Senior Commander. The petitioner by communication of November, 30, 2004 was informed that he was promoted to the next higher Management grade ((Grade V1) and he would be performing training management duties as Check Pilot with effect from acceptance of the letter. To this communication of November 30, 2004 on December, 27, 2004 the petitioner informed the Respondent No.4 that he was agreeable to carry out the additional duties of Check Pilot in addition to his normal and primary duty of line flying. However, he was not agreeable to any change in his status from a workman to the management cadre at present. It was informed that if the intention behind the issuance of the letters under reply was to effect any change in his
