Back
1999 Supreme(Guj) 304
Gujarat High Court
Judgename :D.C.Srivastava
Hansaben Ratnabhai Chamar - Appellant
Versus
Udyan Sahayak - Respondent
S.C.A. 1234 of 1999
Decided On : 07/01/1999
Headnote:Constitution of India, 1950 — Art. 226 — Refusal by responent to refer industrial dispute — Validity — Undisputedly Govt. is entitled to look into prima facie whether there existed any industrial dispute or not — Same can be refused only if disputed questions of fact is prima facie lacking — In the instant case whether the workman did or did not work for more than 240 days in any calender year prior to termination of service did involve valid industrial dispute which was likely to be referred by appropriate Authority — In not doing so the appropriate Authority committed manifest error of law in appreciating the provisions of Sec. 10 of the Industrial Disputes Act — The impugned order cannot be sustained — It is therefore, liable to be quashed.
It is, clear that in the first place appropriate Government is entitled to look into prima facie whether there existed any industrial dispute or not. Such dispute may involve questions of law as well as questions of fact. So far as dispute relating to question of law is concerned the appropriate Government can not decide the same and it is bound to refer it to the Industrial Tribunal or Court for adjudication. Likewise if there is prima facie disputed question of fact it has also to be referred to the Industrial Tribunal, but if such disputed question of fact is prima facie lacking then only reference can be refused.
[Para 6]
No doubt in the counter Affidavit filed today details have been given in Para 5.3 indicating that the petitioner did not complete 240 days in a year from 1983 to 1996, but it is evident that this material was not before the appropriate Government when the impugned order was passed. As against this in Para : 3 of the writ petition it is clearly alleged that the petitioner had completed more than 240 days continuously every year in her employment. Thus there was allegation of the petitioner that she completed 240 days in every calendar year whereas there was denial from the side of the respondent that she did not complete period of 240 days. Since there was no supporting material for the denial before the appropriate Government there existed valid industrial dispute which was likely to be referred by the appropriate Authority. In not doing so the appropriate Authority committed manifest error of law in appreciating the provisions of Sec. 10 of the Act. The impugned order, therefore, can not be sustained. It has, therefore, to be quashed.
[Para 8]
( 1 ) LEARNED Counsel for the parties have been heard on the admission of this petition. With their consent the petition is being finally disposed of at the admission stage.
( 2 ) THE prayer of the petition in this writ petition is for quashing the order dated 30. 11. 1998 passed by the respondent No. 4 refusing to refer the industrial dispute allegedly raised by the petitioner before the respondent No. 4. Counter Affidavit has been filed from the side of respondents today.
( 3 ) THE impugned order is contained in Annexure : E to the writ petition which runs as follows :"it is found that the workman did not work for more than 240 days in any calendar year prior to her alleged termination. As such she is not eligible for any protection under the provisions of the I. D. Act. "learned Counsel for the petitioner has contended that it is practically adjudication of dispute which was not within the jurisdiction of the respondent No. 4. On the other hand, according to him, if industrial dispute was raised then the respondent No. 4 had no option but to refer the same to the competent Labour Court or Tribunal for adjudication.
( 4 ) LEARNED Counsel for the respondents, on the other hand, has referred to a pronouncement in Hassam Noor Mohmed vs. State of Guj. and Ors. , reported in 1996 (2) glh 149 and placing reliance upon various pronouncements, namely, AIR 1969 (Labour and Industrial Cases) 1484, State of Bombay vs. K. P. Krishnan reported in AIR 1960 SC 1223, Bombay Union of Journalists vs. State of Bombay, reported in AIR 1964 SC 1617, referred in Para : 7 of this Judgment of this Court, has contended that the respondent No. 4 had jurisdiction to prima facie consider whether there was any industrial dispute or not and according to him it is not every allegation raising industrial dispute which is required to be referred. Thus, the contention has been that unless it is primafacie shown that there existed industrial dispute the respondent No. 4 was justified in not referring the same.
( 5 ) THE cases referred in Para : 7 of the Judgment in Hassam Noor Mohmed (Supra) mainly relates to primafacie existence of industrial dispute. It was specifically held by the apex Court in State of Bombay vs. K. P. Krishnan (Supra) that. . . . "when the appropriate government considers the questions as to whether any industrial dispute should be referred for adjudication or not, it may consider, primafacie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly on disputed questions of fact, the appropriate Government can not purport to reach final conclusions, for that again would be the province of the Industrial Tribinal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Sec. 10 (1) read with Sec. 12 (5), or not. "
( 6 ) IT is, therefore, clear from the above observation that in the first place appropriate Government is entitled to look into prima facie whether there existed any industrial dispute or not. Such dispute may involve questions of law as well as questions of fact. So far as dispute relating to question of law is concerned the appropriate government can not decide the same and it is bound to refer it to the Industrial tribunal or Court for adjudication. Likewise if there is prima facie disputed question of fact it has also to be referred to the Industrial Tribunal, but if such disputed question of fact is prima facie lacking then only reference can be refus
