A government's refusal to refer an industrial dispute for adjudication based on purported lack of service continuity without exploring all relevant circumstances is improper.

1The petitioners in this original petition are the Joint Secretary Kerala State General Insurance Employee's Union, Cochin and an ex. typist of the United India Insurance Co. Ltd. The 2rd petitioner ie. the ex-typist, was working in the various units of the 2nd respondent company at Cochin office between the following periods:

The petitioners would contend that the above period so calculated together works out more than 240 days of service within a period of 12 months as mentioned in S.25B of the Industrial Disputes Act and the last date of her service came to an end on 31-10-1974. The petitioners' case is that in spite of the mandatory provisions of S.25F of the Industrial Disputes Act, the 2nd respondent in contravention of the said provision terminated the services of the 2nd petitioner and did not pay her compensation or complied with the other provisions of the Industrial Disputes Act. The matter was taken up by the Ist petitioner Union with the Management and in the Southern Region ultimately nearly 30 employees similarly situate like the 2nd petitioner were alleged to have been absorbed in permanent service. One Kumari Chitra Bai had also been left out of this group of employees and denied employment. In spite of correspondence and representations by the petitioners, the Insurance company did not take the 2nd petitioner back in the service. The matter was taken up with the Assistant Labour Commissioner (Central), Ernakulam who sent a failure report to the Government of India. The Government of India referred the case of Kumari Chitra Bai for adjudication before the Central Government Industrial Tribunal, Madras. She had been subsequently absorbed in regular service. However in the case of the 2nd petitioner the matter was refused to be referred cm the ground that the 2nd petitioner had no right to claim reference in view of the fact that she did not have 240 days of continuous service. The 1st petitioner herein namely the Joint Secretary of the Union moved this court in OP No. 3840 of 1980. My learned brother, Justice M. P. Menon, by his judgement of 24th March, 1982 pointed out after referring to the fact that there is no counter affidavit filed in the matter, that the court sees no reason why the Assistant Labour Commissioner should not proceed with his efforts to bring about a settlement and in case of failure, to make a report to the Central Government for appropriate action under the Industrial Disputes Act. The Court directed the Assistant Labour Commissioner to proceed accordingly. In view of that the matter was taken up by the Assistant Labour Commissioner and he reported a failure of the conciliation to the Secretary to the Government of India. Ministry of Labour by his communication dated 22rd July, 1982. That Communication has not been produced in this case, But the respondents have shown me the communication at the time of hearing. There, after referring to the contentions of the parties, the Assistant Labour Commissioner said that there was no meeting ground and the conciliation ended in failure. He pointed out that while the management was not prepared for referring the dispute for arbitration, the Union was prepared. The contention that the management had taken up before the Assistant Labour Commissioner was that the general insurance business was nationalised by the General Insurance Business (Nationalisation) Act, 1972. Under S.16 of the said Act, powers were conferred on the Central Government for the more efficient carrying on the general insurance business. If it is necessary to do so, it shall notify various schemes for matters enumerated in that statutory provision. In regard to the supervisory, clerical and subordinate staff the scheme was passed on 27-5-1974 As per S.16(7) of the Act the provisions of the scheme shall have effect notwithstanding any thing contained contrary to any agreement or in any act in force. In as much as the employment or non employment is a matter emanating from the scheme