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2017 Supreme(Ori) 444
IN THE HIGH COURT OF ORISSA, CUTTACK
SANJU PANDA, SUJIT NARAYAN PRASAD, JJ.
Subimal Maity and Others - Petitioners
Versus
Union of India and Others - Opposite Parties
W.P.(C) No.3000 of 2015
Decided On : 11-04-2017
For the Petitioners: M/s. Sadasiva Patra, S. Rath and D. D. Sahu.
For the Opp. Parties : Mr. Pravat Kumar Padhi, learned Central Government Counsel. Mr. A. K. Bose, learned Associate Solicitor General of India.
Headnote:INDUSTRIAL DISPUTES ACT, 1947 - Sec. 10 (1) - Relationship of master and servant is to be adjudicated by leading evidence being the subject matter of a dispute and it cannot be settled in a summary proceeding either before the Central Administrative Tribunal constituted under Administrative Tribunal Act, 1985 or before High Court under Art. 226 of the Constitution of India, rather the appropriate Courts is to adjudicate the dispute before the appropriate forum under the I.D. Act, 1947 but for that, some procedure is to be followed i.e. a dispute has to be raised before the competent authority, the authority will post the matter for its conciliation, the sitting of conciliation will be held and if the matter will be conciliated, the same will be closed, but in case of non-settlement of the issue, a failure report is to be submitted by the Conciliation Officer in exercise of power conferred u/s.12 (4) of the Act, 1947 and the appropriate Government, in exercise of power conferred u/s 12 (5) of the Act, 1947, is supposed to take decision for reference of the dispute for its adjudication - In the present case, there is factual dispute about the claim of the parties, hence the same needs adjudication by leading evidence before the Adjudicator if reference is made for its adjudication u/s. 10 (1) of the Act, 1947 which provides provision for making reference at any time where appropriate Government is of the opinion that any dispute exists or is apprehended - Order passed by the authorities dt. 30.9.2014 is not sustainable in the eye of law, accordingly the same is quashed - Direction to appropriate Government to make reference u /s. 10 (1) of the Act, 1947 of the dispute raised by the petitioner to the appropriate Industrial Tribunal/Labour Court - Further directions issued.
JUDGMENT :
S. N. Prasad, J.
1. This writ petition is under Articles 226 and 227 of the Constitution of India assailing the order of the Director, Ministry of Labour and Employment, Government of India dtd.30.09.2014 whereby and where under the authorities have refused to refer the dispute for its adjudication.
2. The brief fact of the case of the petitioners is that they are working as contract labourers but actually they are performing the duty under the principal employer, i.e. the Defence, Research and Development Organization Guest House and Defence, Research and Development Organization Mess under Estate Manager, Estate Management Unit, Chandipur, Balasore which is directly under the Defence, Research and Development Organization and they are working since long. At the first instance they have approached the Central Administrative Tribunal vide original application being O.A. No.169 of 1999 which has been disposed of by holding that since the petitioners are not holding civil posts or casual posts directly under the department, the application has been held not maintainable and accordingly dismissed.
The petitioners preferred writ petition before this court being O.J.C. No.10525 of 2001 assailing the order passed by the Central Administrative Tribunal dtd.21.3.2001, but subsequently the same has been withdrawn with liberty to raise dispute, this court has allowed the prayer of the petitioners vide order dtd.09.05.2006 while dismissing the writ petition giving liberty to them to approach the industrial forum or any other appropriate forum for adjudication of their grievance, in case they so advised.
The petitioners raised their dispute before the Regional Labour Commissioner (Central, Bhubaneswar) which has been taken for conciliation but ultimately failed by the failure report dtd.26.02.2008, the petitioners challenged the failure of conciliation before this court vide W.P.(C) No.12354 of 2010, a Coordinate Bench of this court, while disposing of the writ petition, has directed the appropriate Government to examine the report of the Conciliation Officer submitted U/s.12(4) of the Industrial Disputes Act, 1947 and if it is satisfied that there is a case for reference, make reference of the dispute to the Labour Court within 4 weeks from the date of receipt of copy of the order. The order of this court has been communicated to the authority but again vide order dtd.19.11.2010 the dispute has not been found fit to be referred before the Labour Court. The petitioners again approached this court vide W.P.(C) No.19504 of 2011 and the learned Single Judge of this court vide order dtd.01.09.2014 has disposed of the writ petition by remitting the matter back to the appropriate Government to consider the matter of reference U/s.12(5) of the Industrial Disputes Act strictly in consonance with the spirit of the said provision.
The authorities have again rejected the claim by not referring the dispute before the appropriate forum for its adjudication vide order dtd.30.9.2014, which has been impugned in the instant writ petition.
3. Learned counsel for the petitioners, while assailing the said order, has forcefully argued that even from the failure report submitted by the Conciliation Officer U/s.12(4) of the Industrial Dispute Act, which has been submitted basing on the divergent views of the management and the petitioners, which itself suggests that there is dispute regarding master and servant relationship, hence the same needs adjudication by the appropriate forum under the Industrial Dispute Act.
He further submits that the ground has been taken by the management that the petitioners have been engaged through a contractor and as such there is no master – servant relationship, while the specific case of the workmen is that the contract is sham and camouflage, reason being that they are discharging their duties under the principal employer and as such the matter needs adjudication by the appropriate forum as to whether the contract is sham
