2006 Supreme(Guj) 4

Gujarat High Court
Judgename :K.A.Puj
INDIAN INSTITUTE OF MANAGEMENT - Appellant
Versus
GUJARAT MAZDOOR SABHA - Respondent
Special Civil Application 8753 of 1992
Decided On : 01/09/2006

Headnote:Point in Issue :

       Reference - Order of - Quashing and setting aside - Scope of - Finding as to.

       Head Note :

       Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Section 2(j), 2(k), 2(s), 10, 10(1), 10(1)(c) & 12(5) - Reference - Order of - Quashing and setting aside - Scope of - Finding as to - Petitioner case is that 16 ladies who are respondents in the case and who have got their demand referred to the dispute for adjudication to Labour Court are not employees of petitioner and no relationship of employer and employee existed between them, therefore, order of Assistant Labour Commissioner making reference is illegal and liable to be set aside - The dispute was as to whether these 16 ladies should be reinstated in service with full back wages - On reading of the pleading of the parties it is clear that the petitioner has raised the dispute as to whether these 16 ladies are employees of the petitioner or whether the petitioner is an industry - Assistant Labour Commissioner is not competent to decide these questions - It requires adjudication either by Industrial Tribunal or Labour Court - Assistant Labour Commissioner has not recorded the reasons for making reference but merely on that account reference cannot be rejected - Therefore, order of making reference to Labour Court cannot be quashed and set aside.

       Held :

       The plain reading of the reply as well as counter reply makes it clear that the petitioner has raised the dispute as to whether these 16 ladies are the employees of the petitioner or whether the petitioner is an Industry. The Union has filed its counter reply, wherein it is stated that these 16 ladies were the employees of the petitioner. The Assistant Labour Commissioner is not competent to decide as to whether these 16 ladies are the employees of the petitioner. It requires adjudication and proper Forum for adjudication is either the Industrial Tribunal or Labour Court. The Assistant Labour Commissioner has to merely discharge his function as an Administrative Officer. He has to record prima facie subjective satisfaction and after having come to this subjective satisfaction, he has to refer the dispute to the Labour Court or to the Industrial Tribunal. Whether particular person is an employee of the institute or not, requires leading of evidence oral as well as documentary. This could be done only at the level of either the Labour Court or Industrial Tribunal where both the parties do get the opportunity of leading their evidence. It is held by the Courts on number of occasions, that the proceedings should not be terminated prematurely. If the reference is rejected, the Conciliation Officer has to record the reasons for that under Section 12(5) of the Act. However, while making the reference, it is not necessary to record any reason. Merely because the reasons are not recorded while making the reference, it cannot be said that the order is without application of mind. [Para 26]

       The determination of the questions or issues which are raised in this petition requires examination of factual matters and for that purpose, all relevant materials including oral as well as documentary evidence will have to be led before the Labour Court and same are required to be considered. If this is the situation then in that case, the Government could not arrogate unto itself the power to adjudicate on the question and hold that 16 ladies were not the workmen within the meaning of Section 2(s) of the Act and terminate the proceedings prematurely. This issue will have to be decided by the Industrial Tribunal or the Labour Court on the basis of the materials to be placed before it by the parties. Simply because the dispute is raised before this Court regarding employer-employee relationship or whether the petitioner is an industry or not, the order making reference passed by the Assistant Labour Commissioner cannot be quashed and set aside. [Para 26]

       Law Laid Down :

       The Government Could not arrogate unto itself the power to adjudicate to decide whether respondents were workmen under the Act and terminate proceeding prematurely.

       Case Law Analysis :

       State of Bombay vs. R.P. Krishnan and Ors., AIR 1960 SC 1223;; Secretary, Indian Tea Association vs. Ajitkumar Barat and Ors., 2000 (3) SCC 93;; Insafi Kamdar Mandal vs. Assistant Commissioner of Labour & Conciliation Officer, Nadiad & Anr., 2002 (1) GLR 740;; National Engineering Industries Ltd. vs. State of Rajasthan and Ors., AIR 2000 SC 469.-Distinguished

       The State of Madras vs. C.P. Sarathy, AIR 1953 SC 53;; Telco Convoy Drivers Mazdoor Sangh and Anr. vs. State of Bihar and Ors., AIR 1989 SC 1565;; Sharad Kumar vs. Government of NCT of Delhi and Ors., 2002 (4) SCC 490.-Relied on

       Conclusion:

       Petitioner has raised the dispute as to whether the 16 ladies respondents are employees of petitioner or whether the petitioner is an industry which requires adjudication either by Industrial Tribunal or Labour Court - Therefore, impugned order of Assistant Labour Commissioner making reference calls for no interference.

       Conclusion:

       Respondents

       Petition Dismissed