The main legal point established in the judgment is that the appropriate government cannot delve into the merits of an industrial dispute and must satisfy itself of the existence of a dispute before making a reference for adjudication. The judgment also emphasized the wide definition of 'industrial dispute' and the power of the appropriate government to refer disputes even if they do not fall within the schedules of the Industrial Disputes Act.

JUDGMENT :

SUJOY PAUL, J.

1. This petition filed under Article 226 of the Constitution of India takes exception to the order dated 17.05.2017 (Annexure-P/9), whereby the appropriate government has refused to refer the dispute for adjudication to the appropriate Industrial Tribunal.

2. The admitted facts between the parties are that the petitioner filed an application under Section 10 of Industrial Disputes Act, 1947 before the Conciliation Officer and after failure of conciliation, a failure report (Annexure P-8) was sent to the appropriate government. In turn, the appropriate government by order dated 17.05.2017 (Annexure P-9) declined to refer the dispute for the reasons stated in the said order.

3. Shri Uttam Maheshwari, learned counsel for the petitioner criticized this order by contending that an industrial dispute exists between the petitioner and the employer. The appropriate government has exceeded its jurisdiction and decided the status of the concerned workmen and touched the merits of the matter. The government cannot undertake the aforesaid exercise and this aspect needs to be decided on merits by appropriate Tribunal upon receiving the reference from the appropriate government. He submits that the appropriate government has reached to a conclusion on merits which was beyond its competence. Reliance is placed on [Telco Convoy Drivers Mazdoor Sangh and Ors. vs. State of Bihar and Ors, (1989) AIR SC 1565]; [Dhanbad Colliery Karamchari Sangh vs. Union of India (UOI) and Ors, (1991) Supp2 SCC 10] and a judgment of this Court passed in W.P. No.3340/2011, [Harprasad Khajuria Vs. Union of India and Others].

4. Per contra, Shri Devesh Bhojane, learned counsel for the respondent Nos.1 and 2 contended that a conjoint reading of Section 7, 7(A) and Section 10 makes it clear that the impugned order is in consonance with the scheme of Industrial Disputes Act, 1947. Reliance is placed on Section 10(1)(d) to contend that unless a dispute falls within the ambit of IInd or IIIrd Schedule, it can not be referred for adjudication. He relied on various entries of the said schedules appended to the Industrial Disputes Act and urged that the claim of classification/regularization does not fall within the ambit of said Schedules.

5. Shri Kuldeep Bhargava, learned counsel for the respondent No.3 submits that the conciliation application and subject of failure report as well as impugned order shows that alleged dispute was pertaining to contract labours which does not fall within the ambit of Industrial Disputes Act, 1947. There was no employee-employer relationship between the members of the petitioner-Union and the respondent No.3. Thus, the reference was rightly declined by the authority. He placed reliance on [Workmen of the Food Corporation of India Vs. Food Corporation of India, (1985) 2 SCC 136] to contend that a contract worker is not covered within the definition of "dispute" and, therefore, no fault can be found in the impugned order as per definition of "Workman" under Section 2(s) of the Industrial Disputes Act, 1947. Reliance is placed on [Prabhakar Vs. Joint Director, Sericulture Department and Another, (2015) 15 SCC 1] in support of this contention that the satisfaction of "appropriate government" regarding existence of an industrial dispute is a condition precedent. The said government must be satisfied that a person whose dispute is being referred for adjudication is a "Workman". In the instant case, since the members of Union were not "workmen" the reference was rightly declined. [Rahman Industires Pvt. Ltd. vs. State of Uttar Pradesh and Others, (2016) 12 SCC 420] is relied upon to contend that the earlier judgments of Supreme Court including the one on which reliance is placed by Shri Uttam Maheshwari, namely, Telco Convoy Drivers Mazdoor Sangh was also considered by Supreme Court and the Supreme Court came to hold that only when their exists a dispute for adjudication, it can be referred for adjudication. Reference is made t