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IRLL

CH- 7 : INDUSTRIAL DISPUTES RESOLUTION SYSTEM UNDER THE INDUSTRIAL


DISPUTES ACT, 1947

CASE 1 : Jagdish Narain Sharma VS Rajasthan Patrika ltd 1994


The two petitioners with common name, Jagdish Narain Sharma, have jointly filed this revision petition
against the order dated February 7, 1992 passed by the Additional District Judge No. 1, Kota, dismissing
their appeal against the order dated December 10, 1991 passed by the Additional Munsiff and Judicial
Magistrate (I), Kota (South) refusing to grant temporary injunction in their favour.

2. Briefly stated, the facts of the case are that the petitioner Jagdish Narain Sharma son of Shri
Bhorelal was employed as Operator in Li-notrone Department of Rajasthan Patrika, Kota and
Jagdish Narain son of Ghasi Lal was employed as Pester in the Pesting Department of Rajasthan
Patrika, Kota. Both the petitioners were transferred to Bikaner and Udaipur respectively on
December 7, 1991 without their consent. The plaintiffs-petitioners alleged that the order of
transfer had been passed unlawfully and with mala fide intention of victimising the plaintiffs-
petitioners for their union activities. The whole object of effecting transfer was to stultify
activities of the Union which had been established by the plaintiffs-petitioners in association
with other workers of Kota. The plaintiffs-petitioners also claimed that the transfer of the
employees could not be effected from factory to a department or office and the action of the
Management of Rajasthan Patrika Ltd. was contrary to the provisions contained in certified
standing orders framed under the Industrial Employment (Standing Orders) Act, 1946. With
these allegations the plaintiffs-petitioners filed a suit for permanent injunction and sought prayer
that the non-petitioners be restrained from transferring them to any other place. Application for
grant of temporary injunction was also filed by the plaintiffs-petitioners with a prayer that the
defendants-non-petitioners be restrained from transferring them to any other place.

3. The non-petitioners contested the application for temporary injunction filed by the petitioners
by alleging that the service conditions of the petitioners were governed by the provisions of the
Industrial Disputes Act, 1947 and the Industrial Employment Standing Orders Act, 1946 and the
petitioners fall within the definition of the term 'workman' under Section 2(s) of 1947 Act. They
had a specific remedy available to them under the provisions of 1947 Act because that Act is a
special enactment and jurisdiction of the Civil Court is barred in those matters, in respect of
which adjudication can be made under the provisions of 1947 Act. The non-petitioners also
claimed that the transfer of the petitioners had been effected in accordance with the provisions
contained in the Certified Standing Orders. The transfer had not been effected with any malice.
Rather the transfer had been effected for administrative reasons and it was permissible for the
non-petitioners to effect transfer of employees from one place to another, because Rajasthan
Patrika had its offices at different places.

4. After considering the pleadings of the parties and after having considered the rival contentions
the learned Additional Munsiff No. 1 (South), Kota held that he had no jurisdiction to hear the
claim of the petitioner, for cancellation of the transfer or for grant of injunction because of the
provisions of the Industrial Disputes Act, 1947. He placed reliance on the decision of the
Supreme Court in the Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke (1975-II-LLJ-
445). Learned Munsiff also held that the plaintiffs- petitioners had failed to make out a prima
facie case of mala fide and that the transfer was an incidence of service. Therefore, there was no
justification for grant of stay in favour of the petitioners.

5. In appeal, the learned Additional District Judge has also expressed the view that the suit filed
by the petitioners was not maintainable and that the transfer had not been effected on account of
any malice. He also held that once the petitioners had been relieved, the application for grant of
injunction had become infructuous and, therefore, no relief could be given to the petitioners.

6. Shri R.K. Kala, learned counsel for the non-petitioners, has reiterated preliminary objection
regarding the maintainability of the suit in Civil Court against the impugned action of transfer
and has urged that this revision petition is also not maintainable under Section 115, C.P.C. Shri
Kala placed reliance on the decisions of the Supreme Court in Premier Automobiles Ltd. v.
Kamlakar Shantaram Wadke (supra), Jitendra Nath Biswas v. Empire of India and Ceylon Tea
Co., (1989-II-LLJ-572) and a recent decision of Madras High Court in Tamil Nadu Mercantile
Bank Ltd. v. T. Venkatesan, 1992 Lab LR 544. On the strength of these decisions Shri Kala
argued that the matter relating to transfer of a person employed in an industry is specified in the
Schedule appended to the Industrial Disputes Act, 1947, and, therefore, any dispute relating to
the matter of transfer can be agitated before an appropriate adjudicating authority under the
Industrial Disputes Act, 1947. He urged, in all matters enumerated in the Schedules appended to
1947 Act, exclusive remedy is available under that Act and, when remedy is available to the
employees under the special enactment like the Industrial Disputes Act, 1947, the Civil Court
cannot entertain the suit in respect of such matters.

7. Shri P.K. Shanna, learned counsel for the petitioners, on the other hand, forcefully argued that
exclusion of jurisdiction of the Civil Court must not ordinarily be inferred by the Court. He
submitted that the Labour Court. Tribunal or the National Tribunal can entertain a dispute
referred to it for adjudication only when it is an industrial dispute and not otherwise. None of
these adjudicating bodies have got jurisdiction to go into the merits or demerits of the claim
which does not fall within the ambit of the term "industrial dispute" under Section 2(k) of 1947
Act, Shri Sharma argued that all matters enumerated in the schedule appended to 1947 Act do
not necessarily constitute 'industrial dispute' for the purpose of Section 2(k) and, therefore, in
such matters which are not covered by the definition of the term 'industrial dispute' Civil Court
has jurisdiction to adjudicate the rights of an individual.

8. Section 2(k) defines the term 'industrial dispute'. Till 1957 there was a conflict of opinion
amongst the High Courts as to whether an individual dispute can be regarded as an 'industrial
dispute'. Some High Courts and Tribunals took the view that a dispute between an employer and
a single workman cannot be an 'industrial dispute'. Others took the view that it can be an
'industrial dispute'. In yet another category of cases, it was held that such cases cannot per se be
'industrial dispute', but, may become 'industrial dispute' if taken up by a Trade Union or large
number of workmen. In Central Provinces Transport Service Ltd. v. Raghunath Gopal
Patwardhan (1957-I-LLJ-27), their Lordships of the Supreme Court adopted the third view and
held that an individual dispute cannot ordinarily be treated as an industrial dispute. However, if
such dispute is espoused by a Union or substantial number of workmen employed in the
establishment, such dispute will be treated as an 'industrial dispute'. Same view was reiterated in
Workmen v. Dharampal Prem Chand (1965-I-LLJ-668) and Workmen of Indian Express
Newspapers Pvt. Ltd. v. Management of Indian Express Pvt. Ltd. (1970-II-LLJ-132).

9. These decisions caused hardship to an individual workman particularly in matters relating to


his dismissal, discharge, retrenchment etc. because individual workman could not avail remedy
under the Industrial Disputes Act without espousal of his cause by a union or by a substantial
number of employees of the establishment. The Parliament, therefore, amended the Industrial
Disputes Act by the Industrial Dispute (Amendment) Act, 1965. By this amendment, which
became effective from December 1, 1965, Section 2A came to be inserted. By virtue of the
provisions contained in Section 2A, any dispute or difference between a workman and his
employer, in relation to discharge, dismissal, retrenchment or termination of service, is now
deemed to be an 'industrial dispute' even though, such dispute may not be taken up by a
legislative fiction on individual dispute has been converted into an industrial dispute. But,
Section 2A is limited to the cases of dismissal, discharge, retrenchment or termination of service
of the workman. Other individual disputes can be regarded as an 'industrial dispute' only when
the tests enumerated in the decisions of the Supreme Court in Central Provinces Transport
Service's case (supra) and other subsequent decisions are satisfied.

10. Section 7 of the 1947 Act relates to the constitution of the Labour Court for adjudication of
industrial disputes relating to any matter specified in Second Schedule. Section 7A empowers the
appropriate Government to constitute one or more Industrial Tribunals for adjudication of the
disputes relating to any matter whether specified in Second Schedule or the Third Schedule. The
Second Schedule appended to Industrial Disputes Act, 1947 enumerates the matters which fall
within the jurisdiction of the Labour Court and the Third Schedule enumerates the matters which
fall within the jurisdiction of the Industrial Tribunal. Sections 7(1), 7A(1) and two Schedules
read thus:

"7. Labour Courts - (1) The appropriate Government may, by notification in the Official Gazette,
constitute one or more Labour Courts for the adjudication of industrial disputes relating to any
matter specified in the Second Schedule and for performing such other functions as may be
assigned to them under this Act.

7-A. Tribunals- (1) The appropriate Government may, by notification in the Official Gazette,
constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to
any matter, whether specified in the Second Schedule or the Third Schedule and for performing
such other functions as may be assigned to them under this Act."

The Second Schedule : (See Section 7) Matters within the jurisdiction of Labour Courts.

1. The propriety or legality of an order passed by an employer under the standing orders;

2. The application and interpretation of standing orders;


3. Discharge or dismissal of workmen including reinstatement of or grant of relief to workmen
wrongfully dismissed:

4. Withdrawal of any customary concession or privilege:

5. Illegality or otherwise of a strike or lockout; and

6. All matters other than those specified in the Third Schedule.

The Third Schedule : (See Section 7A) Matters within the jurisdiction of Industrial Tribunal.

1. Wages, including the period and mode of payment;

2. Compensatory and other allowance;

3. Hours of work and rest intervals;

4. Leave with wages and holidays;

5. Bonus, profit sharing, provident fund and gratuity:

6. Shift working otherwise than in accordance with standing orders;

7. Classification by grades:

8. Rules of discipline;

9. Rationalisation:

10. Retrenchment of workmen and closure of establishment; and

11. Any other matter that may be prescribed.

11. A Labour Court or Industrial Tribunal can adjudicate a dispute relating to any matter
specified in the Second Schedule or Third Schedule respectively. But jurisdiction to adjudicate in
these matters is conferred on the competent Labour Court or Industrial Tribunal only when the
dispute is an 'industrial dispute' and not otherwise. The expression "industrial dispute relating to
any matter specified in...."as used in Section 7(1) and 7A(1) clearly means that the law has
conferred jurisdiction on the Labour Courts and the Tribunals only in respect of industrial
disputes which relate to any of the matters specified in the Second Schedule or the Third
Schedule. It must, therefore, be held that the existence of industrial dispute in relation to any of
these matters is a condition precedent for conferment of jurisdiction on the Labour Court or the
Tribunal to make an adjudication. The appropriate Government can make a reference under
Section 10(1) read with Section 12(5) for adjudication by a Labour Court or Tribunal of an
'industrial dispute', and not an individual dispute. Even if the Government makes a reference of
an individual dispute by treating it to be an industrial dispute, the Labour Court or the Tribunal
does not get a jurisdiction to adjudicate on such dispute. Any dispute of an individual workman
in relation to the matters enumerated in the Second and Third Schedule can become an industrial
dispute only if his cause is espoused by a Trade Union of workmen or a substantial number of
workmen engaged in the establishment. The only exception is in respect of the matters specified
in Section 2A. If an individual workman raises a grievance regarding leave, wages, holidays,
bonus, P.P., gratuity, allowance, or an order passed under the standing orders etc, he cannot seek
relief under the Industrial Disputes Act, till his grievance is taken up by a Union or by a
substantial number of workmen. Even though transfer is not one of the specifically enumerated
matters in the Second or the Third Schedule appended to the Act of 1947, it can be said that the
same may be treated as part of Para 1 of Schedule II in case, transfer is governed by the Standing
Orders or Part 6 of Schedule II which relates to residuary matters, i.e., matters not specified in
the Third Schedule. Thus, it can be said that the transfer is one of the matters on which the
Labour Court can make an adjudication.

12. It is well recognised that transfer of an employee by the employer is a normal incidence of
service. The contract of employment may contain a specific provision relating to the transfer of
the employee. Even if such provision is not specifically incorporated in the contract of
employment, it is an inherent right of the master to transfer an employee under his control, from
one place to another. The transfer may also be provided by the Standing Orders which are
applicable to a particular industrial establishment. The same may also be provided by statutory
conditions of service wherever the relationship of employer and employee is regulated by such
statutory provisions. It has, therefore, to be recognised that the employer has got a right of
effecting transfer of an employee from one place to another. The employee can challenge such
order of transfer on the ground of violation of the statutory provisions in case transfer is
governed by the provisions of the Statute. It may also be challenged on the ground of mala fide,
arbitrariness or victimisation or change in the condition of service. The crucial question,
however, is as to whether the employee can, as a matter of right, claim adjudication of his
grievance relating to transfer by a Labour Court. Can the Labour Court adjudicate in such
matters even if no industrial dispute is referred to it for adjudication? As already observed by me
above, such a dispute can become an industrial dispute only if it is espoused by a Union of the
workmen or by a substantial number of workmen employed in an 'industry'. Without such
espousal the dispute in relation to transfer cannot be treated as an industrial dispute and it cannot
be referred to a Labour Court nor can a Labour Court make an adjudication in regard to such
dispute.

13. Argument of Shri Kala that Section 9 of the Code of Civil Procedure stands excluded in
respect of all matters enumerated in the Second and Third Schedules and, therefore, jurisdiction
of the Civil Court to adjudicate upon the legality of transfer of an employee of an industry
deserves a close scrutiny. Despite various pronouncements of the Apex Court and of this Court,
the Civil Courts are still confused about their jurisdiction to entertain suits in respect of the
matters enumerated in the Second or Third Schedule appended to the Industrial Disputes Act,
1947. Section 9 C.P.C. provides:

"9. Courts to try all civil suits unless barred.-


The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is either expressly or impliedly barred".

14. It is a settled principle of law that exclusion of jurisdiction of Civil Court is not to be readily
inferred and such exclusion must be either express or implied. In Dhulabhai v. State of Madhya
Pradesh, AIR 1969 SC 78, their Lordships of the Supreme Court discussed the law on the subject
and enumerated principles regarding exclusion of jurisdiction of the Civil Court. These
principles are (para 32):

"(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts'
jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court
would normally do in a suit. Such provision, however, does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory tribunal has not
acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme
of the particular Act to find the adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the Civil Court, Where there is no
express exclusion, the examination of the remedies and the scheme of the particular Act to find
out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter
case it is necessary to see if the Statute creates a special right or a liability and provides for the
determination of the right or liability and further lays down that all questions about the said right
and liability shall be determined by the tribunals so constituted, and whether remedies normally
associated with actions in Civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before
Tribunals constituted under that Act. Even the High Court cannot go into that question on a
revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any


provision is to be challenged, a suit is open. A writ of certiorari may include a direction for
refund if the claim is clearly within the time prescribed by the Limitation Act, but it is not a
compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of
constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the
decision of the authorities and a civil suit does not lie if the orders of the authorities are declared
to be final or there is an express prohibition in the particular Act, In either case, the scheme of
the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the
conditions above set down apply."
15. The same view was reiterated in Smt. Ganga Bai v. Vijay Kumar (AIR 1974 SC 1126) and
also in a recent decision of Supreme Court in Nagripracharini Sabha v. Vth Additional District &
Sessions Judge, Varanasi, 1991 Suppl (2) SCC 36 and Ishar Singh v. National Fertilizers (AIR
1991 SC 1546). The last mentioned case was a case relating to correction of date of birth. The
workman sought an injunction against impending superannuation and ancillary reliefs. Their
Lordships held that the maintainability of the suit has to be decided with reference to the date of
institution of the proceedings and since on the date when the civil suit was filed none of the
eventualities covered by Section 2A had happened, the appellant could not have approached the
forum under 1947 Act for relief. Their Lordships further held that, "If for part of the reliefs the
suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out the
doors to the suitor." It further held that, "so far as the relief of rectification of the record relating
to date of birth is concerned, the Civil Court had jurisdiction and the High Court was not right in
saying that the suit was not maintainable at all."

16. In Premier Automobiles' case (supra), on which much emphasis has been placed by Shri
Kala, their Lordships of the Supreme Court were concerned with a case in which suit was filed
by the workman with the claim that in terms of the Memorandum of Settlement entered into
between the employer and the employees under Section 18(1), some conditions of service were
recognised. Subsequently, another settlement was arrived at between the company and the
Associations Union. It was claimed that the subsequent settlement was not binding on those
workmen who were not its members. It was claimed that the settlement had been arrived at
without following the mandatory requirement of Section 9A of 1947 Act. It was claimed that the
settlement dated January 9, 1971 was not binding on the plaintiff and other concerned daily-rated
and monthly-rated workmen of the Motor Production Department who were not members of the
Association Union. The defendants challenged the jurisdiction of the Civil Court. The trial Court
held that it had jurisdiction to try the suit and a conditional decree of injunction was passed
against the defendant. Appeal filed by the company before the High Court was dismissed. A
Letters Patent Appeal also met the same fate. Their Lordships of the Supreme Court examined
the scope of Section 9, C.P.C. and various provisions of the Industrial Disputes Act, 1947
including Section 2(k) which defines the term "industrial dispute". After analysing the provisions
their Lordships observed (Para 9): (1975-II-LLJ-445 at 451):

"It would thus, be seen that through the intervention of the appropriate government, of course not
directly, a very extensive machinery has been provided for settlement and adjudication of
industrial disputes. But, since an individual aggrieved cannot approach the Tribunal or the
Labour Court directly for the redress of his grievance without the intervention of the
government, it is legitimate to take the view that the remedy provided under the Act is not such
as to completely oust the jurisdiction of the Civil Court for trial of industrial disputes. If the
dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning of
Section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes
under the Act, Civil Courts will be proper forum. But, where the industrial dispute is for the
purpose of enforcing any right, obligation or liability under the general law or the common law
and not a right, obligation or liability created under the Act, then alternative forums are there
giving an election to the suitor to choose his remedy of either moving the machinery under the
Act or to approach the Civil Court. It is plain that he cannot have both. He has to choose the one
or the other. But we shall presently show that the Civil Court will have no jurisdiction to try and
adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability
created only under the Act. In that event Civil Court will have no jurisdiction even to grant a
decree of injunction to prevent the threatened injury on account of the alleged breach of contract,
if the contract is one which is recognized by and enforceable under the Act alone."

(Underlining is mine).

17. After making a reference to the various English decisions as well as the judgments of this
Court, their Lordships of the Supreme Court laid down the following principles relating to the
jurisdiction of the Civil Court in relation to an 'industrial dispute' (Para 23) (p. 459):

"(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right
under the Act, the remedy lies only in the Civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or
common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to
the election of the suitor concerned to choose his remedy for the relief which is competent to be
granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the
Act, then only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter V
A, then the remedy for its enforcement is either S. 33C or the raising of an industrial dispute, as
the case may be."

18. This decision of the Supreme Court has been reiterated in Jitendra Nath Bishwas v. Empire
of India & Ceylon Tea Co. (supra). That case also related to termination of the service of an
employee on the basis of an enquiry held in accordance with the provisions of the Standing
Orders framed under the Industrial Employment (Standing Orders) Act, 1946. Their Lordships
held that the Industrial Dispute confers the right on a worker for reinstatement and back wages if
the order of termination or dismissal is not in accordance with the Standing Orders. The Act also
provides a detailed procedure and machinery for getting this relief and, therefore, the jurisdiction
of the Civil Court is impliedly excluded.

19. In Tamil Nadu Mercantile Bank Ltd., Tuticorin v. T. Venkatesan (supra), transfer was
challenged by an employee before the Civil Court, However even before the suit was filed, the
Tamil Nadu Mercantile Bank Ltd. Union had raised an industrial dispute questioning the validity
of the transfer. A learned single Judge of Madras High Court placed reliance on another decision
of the same Court in T. Rajaiah v. Southern Roadways Ltd., (1991) I Lab LN 453, of Kerala
High Court in Kerala Rubber and Reclaims Ltd. v. P.A. Sunny (1989 Lab IC 964). The learned
single Judge also referred to the decision of the Supreme Court in Premier Automobiles Ltd.,
(supra) and held that the case does not fall under second principle enunciated by the Supreme
Court in Premier Automobiles Ltd's case (supra). He further held that the case of transfer is
covered by principles Nos. 3 and 4 formulated by the Supreme Court. Learned single Judge held
that the Civil Court had no jurisdiction to entertain the suit.
20. In Kerala Rubber & Reclaims Ltd. v. P.A. Sunny (supra), an order of transfer was challenged
in a civil suit. After making reference to the decision of the Supreme Court in Premier
Automobiles' case (supra), a learned single Judge held that, common law does not recognise any
limitation on the power in the matter of transfer of the employees on the ground of mala fides,
victimisation or unfair labour practice. But, after the Industrial Disputes Act was enacted, new
rights and liabilities have been created restricting unfettered common law rights of master in
dealing with the workmen in this behalf. Learned single Judge further held that, Civil Court had
no jurisdiction to entertain the suit. He made a reference to Section 25T read with Section 2(r-a)
and Item 7 of the Vth Schedule to the Act, as also to the residuary clause in the Second Schedule
pertaining to the jurisdiction of the Labour Court and observed that:

"Any dispute regarding transfers effected in contravention of Schedule 25T read with Item 7 of
the Vth Schedule can be resolved under Section 10 of the Act. Merely because a workman is not
in a position to satisfy all the conditions prescribed by the statute for the purpose of enforcing the
rights created by the statute, it cannot be said that the statute does not provide a remedy for
enforcing the rights created by the statute."

21. In Y. Mookan v. Southern Roadways (1991-I-LLJ-533) a learned single Judge of Karnataka


High Court adopted the same reasoning and held that since the remedy was available to the
workman under the Industrial Disputes Act, the jurisdiction of the Civil Court is impliedly
barred. In this judgment the learned Judge of the Karnataka High Court referred only to the
provisions of Section 25T read with Section 2(r-a) and Item No. 7 of Vth Schedule appended to
the Industrial Disputes Act.

22. In General Secretary, National and Grindleys Bank Employees Union v. S. Kannan (1978-I-
LLJ-453) a dispute relating to seniority of employees based on an agreement between the
Employees Union and the Management was agitated by way of suit. Objection regarding: ouster
of the jurisdiction of the Civil Court was rejected by Madras High Court and it was observed
that, "right sought to be enforced in the suit was not one created under the Act and it was one
arising under the common law." (p. 458)

23. In Sita Ram Kashi Ram Konda v. Pigment Cakes and Chemicals Manufacturing Co. (1979-
II-LLJ-444) their Lordships of the Supreme Court held that, a suit for award of compensation
against wrongful dismissal from service was maintainable before a Civil Court.

24. A conspectus of the judgments, to which reference has been made hereinabove, clearly show
that ordinarily the Civil Court has jurisdiction to entertain all suits for adjudication of the rights
and disputes under Section 9 of the Code of Civil Procedure and exclusion of the jurisdiction of
the Civil Court is not to be inferred easily. Where there is an express bar of the jurisdiction of the
Court, an examination of the scheme of the particular Act to find out the adequacy or the
sufficiency of the remedies provided is not relevant. However, where no expression of exclusion
has been made, an examination of the scope of remedies and scheme of the particular Act to find
out the intention of the Legislature becomes necessary. In such types of cases it is necessary to
see as to whether the statute creates a special right or a liability and provides for the
determination of the rights or the liabilities and whether it lays down that all questions about
such rights and liabilities shall be determined by the Tribunal constituted under the Act and
whether remedy normally associated with actions in Civil Courts, are prescribed by such statute.
In the decision of the Supreme Court in Premier Automobiles' case (supra), which finds
reference in almost all subsequently decided cases, reference has been made to a decision of
Madras High Court in Krishnan v. East India Distilleries and Sugar Factories Ltd., Nellikuppam
(1964-I-LLJ-217) and of another decision of the same High Court in Madura Mills Ltd. v.
Guruvammal (1967-II-LLJ-397), which have been approved. Their Lordships also approved
views taken by Mysore High Court in Nippani Electricity Company (P) Ltd. v. Bhimrao Laxman
Patil (1969-I-LLJ-268), of Kerala High Court in Nanu Asan Madhavan v. State of Kerala (1970-
I-LLJ-272). Calcutta High Court in Austin Distributors Pvt. Ltd. v. Anil Kumar Das 1970 Lab IC
323 (Cal) and another decision of Mysore High Court in the case of Syndicate Bank v. Vincent
Robert Lobo (1971-II-LLJ-46). Their Lordships of the Supreme Court then examined the facts of
the case which came up for consideration before them and observed that the source of the right
claimed by the plaintiffs was the agreements entered from time to time under Section 18(1) of
the Act. Their Lordships observed that the workmen who were not members of the Sabha-Union
had tacitly agreed to be bound by the said agreement and if they claim that the agreement had
become term of the contract of service, the alternative claim made could be referable to the claim
of the non-pressed only. The source of their right in that provision was different and a
representative suit on their behalf by the two plaintiffs could not be maintained. The portion of
that decision which has been extracted by me hereinabove, clearly shows that their Lordships
have in no uncertain terms laid down that if the dispute is not an industrial dispute within the
meaning of Section 2(k) or within the meaning of Section 2A of the Act, there is no provision for
adjudication of such dispute under the Act and the Civil Courts will be proper forum. Even from
principle No. 2 it is clear that if a dispute is an 'industrial dispute' arising out of a right or the
liability under the common law and not under the I.D. Act, the jurisdiction of the Civil Court is
alternative and it is for the party to choose the forum. Therefore, before the jurisdiction of the
Civil Court can be treated to have been ousted, the Court is bound in each and every case, where
the jurisdiction of the Civil Court is challenged, to consider as to whether the dispute is an
'industrial dispute'. It has then to consider whether it is a dispute in relation to the matters
specified in Schedule Second and Third. Only when the Court comes to the conclusion that
'industrial dispute' relates to enforcement of certain rights created by the Act, the jurisdiction of
the Civil Court is ousted and not otherwise.

25. As already observed earlier, transfer of an employee by the employer is a normal incidence
of service. Even before coming into force of the Industrial Dispute (Amendment) Act, 1982, by
which Section 2(r- a), Section 25T and Fifth Schedule were added along with some other
provisions. The Court has recognised protective right of the employer to transfer his employee
and also that an employee is free to challenge the order of transfer on the ground of mala fide
and victimisation, unfair labour practice etc. That has been done by the Amending Act which
statutorily treats the transfer of a workman as an act of unfair labour practice. This amendment,
however, does not lead to a further conclusion that other transfer effected by the employer
automatically becomes an industrial dispute. Before any challenge regarding transfer of an
employee who is working under the Industrial Disputes Act, 1947, can be made a subject matter
of reference, it has to be satisfied that industrial dispute exists or is apprehended. Labour Court
or Industrial Court will get jurisdiction to make an adjudication in the matter of transfer only
when it can be treated to be an industrial dispute. Although in the decisions of the Madras High
Court in Tamil Nadu Mercantile Bank Ltd., Tuticorin v. T. Venkatesan, T. Rajaiah v. Southern
Roadways Ltd., decision of the Kerala High Court in Kerala Rubber and Reclaims Ltd. v. PA.
Sunny (supra) and decision of the Karnataka High Court in Y. Mookan v. Southern Roadways
(supra) to which reference has been made hereinabove, it has been held that Civil Courts have
jurisdiction to examine the validity of transfer of a workman, a thorough reading of all these
decisions shows that neither of the High Courts has examined the issue in the context of the
definition given to the term 'industrial dispute' by the Supreme Court in Bombay Union of
Journalists v. 'The Hindu', Bombay (1961-II-LLJ-436). In all these judgments, the Courts have
proceeded on an assumption that a dispute relating to transfer is always an industrial dispute,
even though it may not be espoused by the Trade Union or by a substantial number of workmen.
Moreover, these decisions do not take note of observations made by the Supreme Court even in
Premier Automobiles case (supra) which have been quoted by me in the earlier part of this order.
With great respect, none of these decisions can be treated as laying down correct law. Rather
these decisions run contrary to the decisions of the Supreme Court in Bombay Union of
Journalists and others as well as Premier Automobiles case. In my considered opinion, a dispute
relating to transfer of a workman can be adjudicated by Labour Court/Industrial Court only when
it becomes industrial dispute. Otherwise, it is an individual dispute and only the Civil Court has
jurisdiction to make an adjudication on the legality of the action of the employer in relation to
transfer of his employee.

26. It is, therefore, held that the learned Additional Munsiff as well as learned Additional District
Judge No. 1, Kota have committed a serious error in holding that the Civil Court has no
jurisdiction to entertain the suit filed by the plaintiffs-petitioner.

27. The aforesaid conclusion, however, is not sufficient to give any relief to the petitioner. On
merit, I am of the opinion that learned Additional Munsiff as well as learned District Judge have
not committed any error in law warranting interference by this Court. A more or similar case of
transfer has been considered by me in S.B. Civil Revision Petition No. 241 of 1992, Hari Narain
Sharma v. Rajasthan Patrika Ltd. decided on August 11, 1992, and it has been held by this Court
that refusal of trial Court to grant injunction in the matter of transfer is neither unjustified nor
illegal.

28. On the basis of above discussion it is held that Civil Court has jurisdiction to entertain
grievance of a person who falls within the definition of workman under the Industrial Disputes
Act, 1947 in relation to his service condition unless it becomes an industrial dispute by espousal
as contemplated by the decisions of the Supreme Court in the Bombay Union of Journalists v.
'The Hindu', Bombay (supra) and Premier Automobiles (supra). However, I find that there is no
justification for interfering with the order passed by the learned Munsiff and the learned
Additional District Judge. The revision petition is, therefore, dismissed. Costs made easy.
CASE 2 : RAM SWAROOP SHARMA VS COAL INDIA LTD 1998

1. This appeal is directed against a judgment and order dated September 11, 1991 passed by a
learned single Judge of this Court in C.O. No. 11358 (W) of 1991 whereby and whereunder the
said learned Judge, inter alia, held that the writ application is not maintainable. The petitioner
was a workman of the Eastern Coal Fields Ltd. Admittedly there existed a dispute as regards his
age. The petitioner was superannuated by an order passed by the competent authority of the
Eastern Coal Fields Ltd. upon attaining the age of 60 years which was disputed by the petitioner.
The petitioner filed a writ application before this Court and the same was disposed of with a
direction upon the respondent to refer the matter to the Apex Medical Board and it was further
indicated therein that the decision of the Apex Medical Board shall be binding both upon the
petitioner as well as upon the respondent. Pursuant to the said order, the petitioner was examined
by the Medical Board. The decision arrived at by the Medical Board was a subject-matter of the
writ application before the learned trial Judge. Before the learned trial Judge as also before us,
the learned counsel appearing on behalf of the appellant submitted that the Apex Medical Board
has failed to take into consideration the documents which were procured subsequent to passing
of the order relating to his date of birth.

2. Keeping in view the fact that the dispute as regard age of a workman is a private dispute and
can be determined only upon adduction of evidence, normally this Court cannot exercise its
jurisdiction under Article 226 of the Constitution of India. It appears that in the earlier writ
application a direction was issued for referring the case of the petitioner to the Apex Medical
Board, pursuant to the policy decision taken in that regard by the respondent company. If the
Apex Medical Board was required to examine the petitioner medically, it was not required to
exercise a quasi judicial function. In any event, in terms of the order passed by this Court in the
earlier writ application the petitioner and the respondent were bound by the decision arrived at
by it.

3. In that view of the matter, we are of the opinion that the learned trial judge has rightly held
that a fresh writ application was not maintainable. Furthermore, we are of the opinion that this
writ application does not involve any public law character.

4. For the reason aforementioned there is no merit in this appeal which is accordingly dismissed.

There will be no order as to costs.

Ronojit Kumar Mitra, J.

5. I agree.
CASE 3 : GENERAL MANAGER (OPERATIONS), STATE BANK OF INDIA VS STATE
BANK OF INDIA STAFF UNION 1998

The appellants, representing the state Bank of India have challenged a decision of the Andhra
Pradesh High Court setting aside a Circular issued by the State Bank of India dated 28.1.1987 as
also a Circular in the same terms dated 7.3.1987, as violating Section 9-A of the Industrial
disputes Act, 1947 read with the Fourth Schedule. The respondents to the present appeal are the
State Bank of India Staff Union, Hyderabad Circle and the second respondent who is a person
aggrieved by the Circulars.

The Rules of Conduct of the Award staff of the State Bank of India which were in force at all
material times, provide, inter alia, that "an employee of the bank may not take active part in
politics or in any political demonstration, nor may an employee accept office on a Municipal
Council or other public body without the prior sanction of the bank". In respect of officers of the
appellant-Bank, prior to 28th of January, 1987, under the State Bank of India Supervising Staff
Service Rules, and officer who wanted to contest an election to Parliament, State assemblies,
Municipal council etc. had to resign from the bank's service before doing so. In the case of the
Award staff, however, permission to contest such an election could be considered by the General
Manager on certain conditions and on the employee giving an undertaking that he was not and he
would not become a member of a political party, that he was not being nominated by a political
party and that he would not be required to be present in the Council/Body during office hours.
He also would not receive any remuneration and would not plead his membership of such a body
as a bar to his transfer. If he violated any condition of his undertaking, it would be open to the
bank to call upon him not to continue in his office in the above mentioned public or civic body.

According to the appellants-bank, cases came to their notice where employees who had been
elected to public/civic office had not been performing their normal day's work, causing
inconvenience to the bank and its customers. There were also some cases of employees indulging
in restrictive practices or favouring certain political parties for obtaining benefits from the
appellant-bank. The appellant- bank, therefore, issued a Circular on 28.1.1987 to the effect that
the local head offices will, in future, while considering the request of an Award employee to seek
election to any public/civic body, first thoroughly examine whether his contesting the election
will interfere or would be likely to interfere with his duties in the bank. The local Head offices
were also directed to obtain an undertaking from the employee indicating that (1) his contesting
election will not interfere with his duties in the bank and he will not take any undue advantage of
his position in the bank and (2) in case he gets elected, he will immediately resign from the
bank's service, failing which he will be liable to be discharged or he bank would be free to treat
his letter seeking permission as a letter of resignation from the day he is declared elected. The
Circular of 7.3.1987 gives a capsule of previous instructions and repeats the Circular of
28.1.1987.

The Second respondent, who was a Clerk in the appellant-bank, Hyderabad Circle, on 18.2.1987
sought permission of the appellant-bank for contesting elections to the Municipal Council of
Rtsepalle. Although he did not receive permission, he filed his nomination. He was thereafter
informed by the bank on 5.3.1987 that his application for permission to contest the election could
not be granted unless he gave an undertaking that he would resign from the bank's service on his
getting elected. Thereupon the respondents filed a writ petition before the Andhra Pradesh High
Court challenging the two Circulars of 28.1.1987 and 7.3.1987. The High Court has held that
these two circulars amount to a change in the conditions of service of workmen and are violative
of Section 9-A of the Industrial Disputes Act, 1947.

We fail to see how these circulars can be said to violate Section 9-A of the Industrial Disputes
act, 1947. Under Section 9-A no employer, who proposes to effect any change in the conditions
of service applicable to any workman in respect of any matter specified in the Fourth Schedule,
shall effect such change without notice as prescribed in that Section. Schedule Four sets out the
conditions of services for change of which notice is required to be given under Section 9-A. The
conditions of service prescribed in the Fourth Schedule include, inter alia, wages, contribution to
any provident fund or pension fund, compensatory and other allowances, hours of work, leave
etc. Condition 8 is: "Withdrawal of any customary concessions or privileges clearly relate to
conditions of service or work. Participating in an election to a Municipal Council or local body is
not a customary privilege connected with conditions of service of work. The Circulars of
28.1.1987 and 7.3.1987, therefore, do not bring about any change in the conditions of service of
a workman. the Rules of Conduct of the Award staff have always included a Rule to the effect
that the employee of the bank may not accept office on Municipal Council or other public body
without prior sanction of the bank. The Circulars, therefore, do not bring about nay change in
this Policy. The appellants have explained that the appellant-bank is a public sector undertaking
set up for carrying out a public purpose. As an employer, the appellant-bank is a public sector
undertaking set up for carrying out a public purpose. As an employer, the appellant-bank has to
ensure that the employees carry out their functions without being influenced in any manner and
their behaviour does not give rise to any talk of favouritism in granting loans, credit facilities or
other facilities of the bank. When a person contests elections to a municipal or public body he
naturally seeks support from political parties or various other persons in his constituency.
Without their support it is not possible for a person a get elected. In turn, the elected person will
be under an obligation to those persons who are responsible for his election. Such an elected
person, if he is an employee of a public sector bank which deals with sanction of loans,
advances, overdrafts etc., may be in a position to use his influence with officers regarding
granting of these facilities. In order, therefore, that the functioning of the bank if free from
political influences and favouritism, and in order to ensure that the employees attend to their
duties during office hours, the Circulars have been issued.

The same Circulars were challenged before the Delhi High Court by an employee of the
appellant-bank at Saharanpur branch in Uttar Pradesh. The petitioner before the Delhi High
Court also desired to contest elections to the local Municipal council. The Delhi High Court
upheld the decision of the management that the petitioner's continuance as Municipal Counsellor
does affect his work in the bank and that there was no question of any violation of Article
19(1)(a), (b) and (c) of the Constitution. This decision of the Delhi High Court was upheld by
this Court by a Bench of three judges by its short speaking order dated 5.4.1991 dismissing the
special leave petition from the judgment of the Delhi High Court.
Before the Delhi High Court the Provisions of the Industrial Disputes Act, 1947 were not
invoked in respect of these Circulars, as has been done in the present case. There is, however, no
merit in the challenge to these Circulars under Section 9- A of the Industrial Disputes Act, 1947
for reasons which we have set out above.

The appeal is, therefore, allowed and the impugned judgment and order of the Andhra Pradesh
High Court is set aside. There will, however, be no order as to costs

CASE 4 : VIDYA DHAR VS THE HINDUSTAN COPPER LTD 1994

Brief facts of the case are that the petitioner joined service of Hindustan Copper Limited at
Khetri complex on his appointment as Smelter (C) by order dated October 5, 1973. On account
of his alleged participation in the strike the employer invoked Clause 7 of the Model Standing
Orders and terminated petitioner's service with effect from February 28, 1975. However, he was
reappointed with effect from March 8, 1975 after he had tendered unqualified apology. Then he
was promoted as Smelter (B).

3. Against the order of dismissal as well as; the order passed by the appellate authority, the
petitioner filed writ petition before the High Court. His Writ Petition No. 1594/86 Vidya Dhar v.
Hindustan Copper Limited was decided by the High Court on October 16, 1986. The High
Court quashed the order passed by the appellate authority and directed the Company to place the
appeal of petitioner before the competent authority. The Court also observed that the penalty of
dismissal awarded against the petitioner, prima facie appeared to be disproportionate. However,
the matter was left to be decided by the appellate authority even on the question of quantum of
punishment.

6. In reply the respondents have raised a preliminary objection to the entertainability of the writ
petition on the ground that an equally efficacious alternative remedy is available to him under the
Industrial Disputes Act, 1947. Respondents have also raised objection regarding delay in filing
of the writ petition. They have pleaded that the writ petition has been filed after three years of the
passing of the order of punishment and over one year and six months of the passing of appellate
order. He has not explained this long delay in the filing of writ petition. Yet another objection
raised by the respondents is that Hindustan Copper Limited is not a State under Article 12 of
the Constitution of India and, therefore, the petitioner cannot invoke provisions of Part III of the
Constitution for getting relief.
CASE 5 : HINDALCO WORKERS UNION VS LABOUR COURT 1994
Once the misconduct is established, the maximum punishment stipulated
therefore can be awarded. However, the labour court has full discretion to award
lesser punishment.

1. Heard Sri V.K. Upadhyay, learned Senior Advocate assisted by Mr Ritvik Upadhya, learned
counsel for the petitioner and Mr Anil Kumar Srivastava, learned counsel for the private
respondents.

2. This writ petition has been filed by the petitioner which is a Public Limited Company
incorporated under the Companies Act, 1956 having its registered office at Mumbai and its
factory and works at Renusagar and Renukoot, District Sonebhadra.

3. The Company is engaged in the manufacturing of Aluminum and its allied products. There is a
Construction Division in the said Company engaged in construction related to the manufacturing
process and expansion and modification work, although the Company has averred that the
Construction Division is a totally temporary division, it has been in existence since 1972
continuously till date.

4. It is the case of the petitioner that workers of different skills and experience are engaged in
view of specific nature of work concerning different projects undertaken by the Construction
Division. The workers for such project works are given fixed term appointment with a specific
condition stipulated in the appointment letter that they are being appointed purely on a temporary
basis and their services could be terminated at any time without notice and without assigning any
reason. In every appointment letter, the period of expiry of appointment was specified.

5. The respondent no. 2 - Hindalco Workers Union, espoused an industrial dispute regarding
termination of services of respondent nos. 3 to 14 alleging that there was a wrongful termination
of engagement of respondent no. 3 w.e.f. 18.2.1987 and respondent nos. 4 to 14 w.e.f. 18.3.1987,
and adjudication case no. 167 of 1988 was registered in the Labour Court, Varanasi.

6. After exchange of affidavits and also taking of statements of witnesses of the employers and
the employees, the adjudication case was dismissed on 18.5.1990. The Hindalco Workers Union
challenged the said Award of the Labour Court, Varanasi by filing Writ Petition No. 2958 of
1991.

7. This Court by its judgment and order dated 3.6.2006 allowed the writ petition and remanded
the matter to the Labour Court for reconsideration of material evidence including the
consideration of question of unfair labour practice and to pass an order afresh. The matter was
transferred by the Government from Labour Court, Varanasi to Labour Court, Mirzapur and
registered as adjudication case no. 119 of 2008.

8. During the course of hearing of the said case, the respondent nos. 3 to 14 moved three
applications alleging that all the concerned twelve workmen had lost faith in the office bearers of
the Union (the respondent no. 2) and wish to appoint their own representatives to conduct their
case before the Labour Court.

9. These applications were objected to by the workers union and the employer, but were allowed
by an order dated 30.1.2009. Two of the workers appeared before the Labour Court and gave
statements on behalf of other ten workers. On behalf of the Company, four of its Officers
appeared and gave statements with regard to nature of work carried out in Construction Division,
the number of permanent workers employed in the Construction Division as well as the number
of temporary workers.

10. It was alleged that the respondent nos 3 to 14 were employed in different projects of the
Construction Division and when the work of construction was reduced, they were removed from
service. The Construction Division carried out temporary projects of short duration not
connected with the main manufacturing process and the work being temporary in nature, the
employment therein was also temporary.

11. It was also alleged that the workmen had never worked for more than 240 days in the
preceding calender year, and therefore the allegation that they were retrenched without following
the procedure prescribed under Section 6(N) of the U.P. Industrial Disputes Act is misconceived.

12. The workmen - the respondent nos. 3 to 14 had contended before the Labour Court that they
had worked continuously for several years and had produced their appointment orders /
engagement orders on a year to year basis and their termination order which did not mention that
they were disengaged because of completion of project, but mentioned the reasons for
disengagement as reduction in construction work.

13. It has been averred by the learned counsel for the petitioner in the writ petition that while
allowing the Reference by the impugned Award dated 11.10.2013, the respondent no. 1 had
ignored the specific pleading on record that none of the workmen had worked in more than 240
days in the preceding year as given in their written statement. The onus of working for 240 days
had not been fully discharged by the workmen and the onus was wrongly shifted upon the
employers to prove otherwise.

14. It has also been alleged that automatic termination on completion of project was envisaged in
the appointment letters of the respondent nos. 3 to 4, and therefore the observation of the
respondent no. 1 that the disengagement of the respondent nos. 3 to 14 after fixed period of
appointment for a few days, and their re-engagement again for a specific period amounted to
unfair labour practice is misconceived.

15. It has been alleged that the concept of unfair labour practice is not provided under the U.P.
Industrial Disputes Act, nor there was any mention of unfair labour practice in the original
Reference order of the State Government dated 31.2.1988, the Labour Court had no jurisdiction
to deal with the issue at all.

16. It has also been alleged that the Labour Court completely ignored the recent developments in
law where the Supreme Court has held that reinstatement after a very long lapse of time from the
date of termination of service should not be awarded by the Labour Court. A lump sum
compensation may be given in lieu of the reinstatement.

17. It has also been averred that most of the concerned workmen had attained the age of
superannuation, at the time when the Award was given, and therefore that there was no question
of directing the reinstatement with 50% back wages along with interest as directed by the Labour
Court in the Award impugned.

18. A counter affidavit has been filed on behalf of the respondent nos. 3 to 14 wherein it has
been averred that the respondent nos. 3 to 14 were engaged in the Construction Division (which
is a more or less permanent division in the petitioner's Company as it is running since 1972 till
date) for several years at a stretch, but artificial breaks were given. The fixed term of engagement
as mentioned in the appointment letters was on a regular pay scale payable on a month to month
basis. The respondent nos. 3 to 14 as well as several other persons were appointed in this manner
with a view that the workmen may not get the rights and status of permanent employee.

19. In the present case, the respondent no. 1 had found all the workmen to have worked for more
than 240 days in the preceding year. In the cross examination, the management witnesses Sri
Chandra Kumar Srivastava and Sri S.K. Mishra had admitted that in the letter of appointment
issued to the respondent nos. 3 to 14, there was no mention that they were being appointed on a
particular project. No proof was filed to show that in the year 1986-1987 certain projects stood
completed as a reason whereof the respondents' services were terminated. In the letter of
termination, there was no mention that their services are being terminated due to completion of
project work. The reason of termination was mentioned as reduction in construction work.

20. If a workman is terminated for any reason whatsoever, it would amount to retrenchment
under Section 2(s) of the U.P. Industrial Disputes Act, 1947.

21. Two of the respondents, Banarasi Lal and Uma Shanker had given statements on behalf of
the respondents that they remained unemployed after their wrongful termination, and therefore
the Labour Court rightly allowed reinstatement with back wages.

22. It has also been averred in the counter affidavit that in Writ Petition No. 2158 of 1991, this
Court had directed the Labour Court to decide the question of unfair labour practice and the
direction of this Court was complied with by the respondent no. 1 in the order impugned, where
it had found the termination of service of the petitioner without following the procedure
prescribed under Sections 6(N), 6(P) and 6(Q) as illegal and arbitrary, and therefore set it aside.

23. With regard to the age of superannuation being reached by some workmen before the
impugned order, it has been averred that the workmen are contesting their case relating to their
wrongful termination of service from 1987-1988 Writ Petition No. 2158 of 1991 was allowed by
this Court in 2006. The Labour Court reheard the matter and delivered the impugned Award in
2013. The present writ petition before this Court has been filed thereafter. The workmen cannot
be put to a disadvantage because of the pendency of litigation.
24. In the rejoinder affidavit filed by the petitioner, it has been contended that before insertion of
Section 2(A) by the U.P. Act No. 34 of 1978 an individual worker neither had any right to raise
an industrial dispute nor did he have any right to approach the Labour Court. After introduction
of Section 2(A) in the U.P. Industrial Disputes Act, individual workers have been given a limited
right to raise the dispute individually without it being sponsored by a workers' union only in
cases of discharge, dismissal, retrenchment or otherwise termination of service.

25. It has further been mentioned that the judgment and order dated 3.6.2006 by which Writ
Petition No. 2158 of 1991 was allowed directing the respondent no. 1 to decide the question of
unfair labour practice, is against the settled position of law that the jurisdiction of the Labour
Court is confined to the Reference order only as held by the Supreme Court in Gangadhar Pillai
Vs Simens Ltd. 2007 (1) SCC 533)

26. It has further been submitted that there is a specific averment in the written statement filed by
the Company before the Labour Court that none of the workmen had worked for more than 240
days in the preceding year and the dates of engagement of the respondent nos. 3 to 14 had been
mentioned. The onus of proof had shifted on the workmen which was not sufficiently discharged
by them.

27. In two supplementary affidavits filed in 2015 and again in 2017, the petitioners have further
averred that out of twelve respondents only ten had approached them by filing an application on
21.10.2013 for their re- engagement in terms of the Award. With respect to two of the workmen
i.e. respondent nos. 6 & 9, there is a mention in the application dated 21.10.2013 that they were
since deceased. It has been further contended that it had not come on record as to when the
respondent nos. 6 to 9 had died and if they had died before the delivery of the impugned Award
and were not substituted by their legal heirs and representatives, the Award being passed in
favour of dead persons, i.e. respondent nos. 6 & 9, was a nullity and the Award directing the
reinstatement and payment of back wages could not be given effect to.

28. The respondent nos. 3 to 14 have filed their reply to supplementary affidavits on 13.11.2017
wherein it has been mentioned that respondent no. 6 - Bihari Prasad died in 1995 and respondent
no. 9 - Ram Bachan Singh died on 22.1.2013. With respect to the allegation of superannuation of
respondents before the impugned Award was given, it has been averred in the supplementary
counter affidavit that Banarasi Lal - the respondent no. 3 reached the age of superannuation on
13.7.2009 and Suresh Yadav - the respondent no. 7 reached the age of superannuation on
1.1.2015. With respect to other respondents, the dates mentioned in the supplementary affidavit
of the petitioner relating to superannuation were otherwise correct.

29. During the course of argument, Sri V.K. Upadhyay, learned Senior Advocate assisted by Mr
Ritvik Upadhya, learned counsel for the petitioner has relied upon the statement made by the
petitioner in Adjudication Case No. 167 of 1988 and also in Adjudication Case No. 124 of 1988
to the effect that nature of work in Construction Division was temporary and based on projects,
which were allotted to it for completion within a specified time period and even though the
Construction Division itself may have existed for a long time the work in the said Division could
not be said to be of permanent nature.
30. It is also petitioner's case that the main work of Hindalco Industries is manufacturing of
Aluminium through electrolysis and other chemical processes and Construction Division was
one of the Departments of Hindalco Industries Ltd., which looked after fabrication and
construction work where plant modification or expansion was required to be done.

31. It is his case that as and when projects were allotted temporary engagements were done.
There was some permanent skilled staff of about 150 workers in the Construction Division,
whereas temporary staff was engaged, like the workmen herein, on project to project basis for
specified period of time. The appointment letters of the respondent-workmen were on record,
which showed that that their engagement was temporary and for specified time period from the
date of joining. Hence, there termination on 18.02.1987 or 18.03.1987 was in pursuance of the
terms and conditions of the appointment letter.

32. It has been pointed out from the appointment letters and termination orders filed as Annexure
2 to the writ petition that all the terms and conditions were known to the respondent-workmen
and they had signed on them while being engaged.

33. It is the case of the petitioner that the workmen's case was initially sponsored by the Union in
1987 and 1988, but later on the workmen filed an application that they no-longer trusted on the
office bearers of the Union and wanted to fight their own case.

34. Learned counsel for the petitioner has referred to Rule 40 of the Rules under the Industrial
Disputes Act and said that the application of the workmen individually to pursue their case
through their own representative, could not be allowed ignoring specific provision in the Rule
that whenever the Union of workmen sponsored a case for adjudication, only the representative
of the Union would represent the case of the such workmen.

35. It has been argued that the workmen conducted their case on their own, but none of them
except for Banarasi Lal stated before the Labour Court that they remained unemployed after their
termination and the statement of Banarasi Lal is also in an individual capacity and could not have
been taken to mean that all workmen were similarly not gainfully employed, and the question of
back wages could not have been decided by the Labour Court in favour of the respondent-
workmen.

36. It has been pointed out that the Award was declared on 11.12.2013, by which time
respondent Nos. 5 and 9 were already dead, and their legal heirs and representatives could have
filed application for being represented, but they did not do so, and therefore, award is nullity
insofar as the respondent Nos. 5 and 9 are concerned.

37. With respect to other workmen also, all of them retired on various dates except for two i.e.
respondent Nos. 10 and 12 before the date of Award, and therefore, no reinstatement could have
been done by the Labour Court.

38. Learned counsel for the petitioner has relied upon several case law to buttress his argument,
namely, Shri Rameshwar Manjhi (deceased) through his son Shri Lakhiram Manjhi vs
Managament of Sangramgarh Colliery and others, 1994 (1) SCC 292; V. Veeramani vs
Management of Madurai District Cooperative Supply and Marketing Society Ltd. and another,
1995 Supp (3) SCC 557; Bhuvnesh Kumar Dwivedi vs Hindalco Industries Limited, 2014 (11)
SCC 85 all judgments of Hon'ble Supreme Court, which have held that the onus of proof of
having worked for 240 days in the preceding year lies initially upon the workman, and thereafter
such onus shifts to the employer concerned. He has also relied upon the judgment rendered by
the Hon'ble Supreme Court in the case of Range Forest Officer vs. S.T. Hadimani 2002(3) SCC
25 for the said purpose.

39. Learned counsel for the petitioner has also argued that the Reference Order was for the
Labour Court to adjudicate only upon the termination and its legality or validity, and did not
refer to any dispute regarding "unfair labour practice" being followed by the employer.

40. On the other hand, learned counsel for the private-respondents has pointed out from the
award in question that the admitted case of the employer is that the workmen were continuously
employed for seven to eight years in the establishment in the Construction Division and several
appointment letters and termination orders were filed to show that the workmen had continued
although with artificial breaks. The Construction Division itself was permanent and when
respondent workmen were engaged in the same, no mention of any project was made in the
appointment letters to the effect that they were engaged in the project and would stand
terminated when the project ended. This was also not the case of the employer before the Labour
Court, because before the Labour Court the employers admitted that the workmen were
disengaged due to reduction in work and not due to completion of project. Under section 2 (s)
retrenchment has been defined and any kind of termination except for the exclusion specifically
mentioned in the Act, would amount to retrenchment, and section 2(oo) (bb) of the Central Act
would not apply to U.P. Industrial Disputes as has been held by the Hon'ble Supreme Court in
the case of Bhuvnesh Kumar Dwivedi vs Hindalco Industries Limited (supra).

41. In Bhuvnesh Kumar Dwivedi vs Hindalco Industries Limited, the Hon'ble Supreme Court
was considering a similar case relating to Construction Division of the same Establishment and
Hon'ble Supreme Court found that termination orders were illegal and in violation of section 6
(N), and therefore, had directed full back wages to be given to the workmen concerned.

42. It is the case of the respondent's counsel that conditions precedent to a valid retrenchment
have been given under section 6 (N), which were not followed by employers.

43. Moreover, it is the case of the respondents that the workmen had initially discharged the
burden of having worked for more than 240 days in a year by filing their appointment letters and
their termination orders, and employer being the custodian of documents had in its possession
documentary evidence if any to the contrary, and it failed to file the same nor made any effort to
show that the workmen had not worked for 240 days in a year.

44. Under the U.P. Industrial Disputes Act, under section 2 (z) exclusions in the definition of
workmen have been specifically provided for and there has been no categorization of the
workmen as casual, permanent, temporary, etc. and all workmen are covered there by the
provisions of U.P. Industrial Disputes Act and entitled to the benefit given under the Act in case
they are wrongly retrenched.
45. Learned counsel for the respondents has said that the Adjudication case was initially filed by
the Union and when one or two workmen appeared in the witness box to make statements in
support of their case, it meant that all workmen were similarly un- employed after their illegal
termination. The reference being collective in nature one of the workman's statement that he was
out of employment should be read in favour of all respondent workmen.

46. It is the case of the respondents that from page 168 and 169 of the paper book, it is evident
that employer's witnesses themselves stated before the Labour Court that the respondents were
not daily wage workmen, but were engaged on regular scale of pay and performed work of
permanent nature and Construction Division also was a permanent department of the factory. No
project was mentioned in which the workmen were engaged, and therefore, it should be taken
that the workmen were engaged to work in the Construction Division and to do work that was
permanent in nature, but artificial breaks were created in their Service Records only to deprive
them of the benefit given to permanent employees.

47. It has also been argued the Findings of fact recorded by the Labour Court could not be
interfered with by this Court sitting in judicial review under Article 226 of the Constitution of
India as has been held in several cases by the Supreme Court.

48. Learned counsel for the respondents has also relied upon Bhuvnesh Kumar Dwivedi vs M/s
Hindalco Industries Ltd., 2014 (142) FLR 20, Jasmer Singh vs State of Haryana and another,
2015 (144) FLR 837 to argue that full back-wages ought to have been given, but the Labour
Court has given only 50% of the back-wages.

49. Leaned counsel for the respondents has also relied upon Sudarshan Rajpoot vs U.P. State
Road Transport Corporation; 2015 (144) FLR 7 that the termination order amounts to
retrenchment and non compliance of the statutory provisions under sections 6-N, 6-P and 6-Q of
the U.P. Industrial Disputes Act has rendered the order of termination void ab initio in law.

50. Learned counsel for the respondents has relied upon M/s U.P. Drugs & Pharma Co. Ltd. vs
Ramanuj Yadav, 2015 (99) FLR 331, to say that if the workman is able to establish that in the
one of the past several years at least he has worked for 240 days, then also he is entitled to relief
of reinstatement.

51. Lastly, the learned counsel for the respondents has relied upon the judgment of a Co-ordinate
Bench of this Court in U.P. Power Corporation Ltd. vs Presiding Officer, Labour Court decided
on 21.01.2017.

52. Mr. V.K. Upadhyay, learned Senior Advocate while arguing the matter in rejoinder has
pointed out paragraph 4 of the Claim-petition, wherein the workmen's statement that they had
worked for 240 days had been specifically denied in the rejoinder statement filed by the
Hindalco Industries, and yet the Labour Court did not choose to discuss the evidence with regard
to workmen having worked or not for 240 days. The burden of proof was with the workmen,
which they failed to discharge initially, and therefore, employer cannot be asked to discharge
burden of proving the fact.
53. Mr. V.K. Upadhyaya, learned Senior Advocate has tried to distinguish the case of Bhuvnesh
Kumar Dwivedi (supra) by saying that in Bhuvnesh Kumar Dwivedi the nature of work of
Construction Division was not specifically pleaded nor the list of projects filed before the Labour
Court, but in the case of petitioner, the list of projects was filed along with rejoinder statement of
Hindalco Industries before the Labour Court, which was ignored. The list of project has also
been filed as Annexure 6 to the writ petition.

54. Having heard the learned counsel for the petitioner and the learned counsel for the private
respondents, this Court has perused the record as filed before the respondent no. 1 and the
impugned Award dated 11.10.2013. It is evident that initially the Reference order dated
31.3.1988 had only referred the question regarding wrongful termination or otherwise of the
respondent nos. 3 to 14, whose names were given in the Annexure to the said Reference order.
The Reference was initially registered as adjudication case no. 167 of 1988 and it was rejected
by the Labour Court, Varanasi on 18.5.1990. The respondent no. 2 filed Writ Petition No. 2958
of 1991. The judgment rendered by this Court on 3.3.2006 setting aside the initial Award of the
Labour Court dated 18.5.1990 has been filed as Annexure no. 12 to the writ petition, a perusal
thereof shows that this Court had considered and approved of the arguments raised by the
counsel for the respondent nos. 3 to 14 that the Labour Court had wrongly come to a conclusion
that the workmen were engaged on a project work and the work came to an end when the project
came to an end. The workmen had been engaged and worked for more than 240 days in every
such term of appointment as mentioned in the appointment letters issued from year to year for
almost seven to eight years. Artificial breaks amounted to unfair labour practice, and before
termination, the employers did not comply with the provisions of Section 6(N).

55. The arguments raised by the learned counsel for the Company regarding the Labour Court
being a court of limited jurisdiction which must confine itself to the term of reference made to it
was considered by this Court and rejected; By the observations that wrongful termination of the
workmen could only be determined by the Labour Court after perusal of record to find out
whether the workmen were engaged year after year with artificial breaks. The workmen had
placed on record the previous letters of appointment and also their termination letters. It was
observed by this Court that there was enough material to show that the employer was indulging
in unfair labour practice in engaging them year after year on a fixed term basis.

56. This Court observed that the Labour Court had not returned any finding with regard to the
earlier periods of engagement of the workmen and it had ignored vital evidence, therefore the
Award was vitiated.

This Court observed thus:-

"The award of the Labour Court, has not returned any findings on this aspect of the matter. It has
ignored vital evidence and it is vitiated on this account. The Hon'ble Supreme Court in the recent
decision in the case of Regional Manager, S.B.I. versus Raja Ram has laid down as to what
amounts to unfair labour practice and while doing so, has laid down that when an employee is
appointed temporarily for a successive fixed tenures with artificial breaks in between so as to
deny far as the employee the right to permanent employment, it would amount to unfair labour
practice within the meaning of. Section 2(ra) of the I.D. Act. Section 2 (ra) defines "unfair labour
practice" which means any of the practices specified in the Fifth Schedule of the Act, including
item No.10 which has already been quoted above. The Supreme Court has also laid down that in
order to come to the conclusion that the practice of the employer to create artificial breaks in the
service is with the object of depriving the workmen the status of permanent workmen are
questions which would have to be gone into by the Labour Court by arriving at a finding with
regard to unfair labour practice.

In the present case, the Labour Court has failed to return any findings on this aspect of the matter
i.e., by simply saying that it is not necessary to go into the fact that the petitioner workmen were
in fact being engaged year after year on temporary basis by giving them artificial breaks.

The arguments made by the learned counsel for the petitioner Shri K.P. Agarwal have substance
and are bound to be accepted by this Court. The award of the Labour Court is vitiated on account
of the fact that it has failed to exercise jurisdiction vested in it by ignoring material evidence. The
argument of the learned counsel for the respondent that question of unfair labour practice can not
be gone into in the present question, cannot be accepted as it is very much part and parcel of any
investigation, i.e., by the Industrial Labour Court to take-up all these issues. Even otherwise, the
U.P. Act being silent on unfair labour practice, the provisions of Central Act will apply then, is
also a established principle.

In view of the above discussions, the award of the Labour Court stands vitiated and is set aside.
The matter is remanded to the Labour Court for reconsideration of material evidence on record.
The matter will be re-opened before the Labour Court. Immediately upon receipt of an order of
this judgment, both the parties shall be allowed opportunity to lead any additional evidence that
they may want to do so.

The writ petition is allowed."

(emphasis supplied)

57. The judgment of this Court was not challenged and it attained finality after remand,
additional evidence was led by the employers alone, i.e. the petitioner's Company by producing
to its officers to give oral statements before the respondent no. 1. However, the mention made by
the petitioner in its written statement in paragraph 7 with regard to the last date of specific
employment of the respondent nos. 3 to 14 and the date of expiry of such specific employment
had been found by the Labour Court to be incorrect.

58. The findings of fact recorded by the Labour Court with regard to different letters of
appointment of the respondent nos. 3 to 14 issued to each of the respondents year after year for
almost seven to eight years cannot be interfered with. The respondent no. 1 had considered each
of the letters of appointment issued in between 1979 to 1987. The respondents individually had
been engaged sometime for one year and sometime for six months, but the employer had ensured
that such appointment letters were issued issued after artificial breaks in between.

59. The appointment letters issued to the respondent nos. 3 to 14 did not mention engagement on
a specific project. The order of termination also did not mention the reason of termination of
employment as completion of a specific project. Out of four of the employers' witnesses two of
them, namely Sri S.K. Mishra and Sri Chandra Kumar Srivastava in their oral statements before
the Labour Court had admitted the engagement of the respondent nos. 3 to 14 each succeeding
year, although they insisted that such engagement was completely casual / temporary. It was
found by the Labour Court that construction division of the petitioner's Company had continued
since 1972 and was in existence at the time when the Award was delivered i.e. till October 2013.

60. The Labour Court had therefore rightly come to a conclusion that the work undertaken by the
construction division was more or less that of a permanent in nature, although only some of the
workmen engaged by the Company had been given permanent status. While others, like the
respondent nos. 3 to 14 had been continued for years on end by giving them fixed term
appointments to avoid giving them permanent status and facilities available to a permanent
employee of the Company. The Labour Court has found that the respondent nos. 2 to 14 had
been working continuously for past several years. In each of these years, the workmen had
worked for more than 240 days although they were given artificial breaks in between.

61. This Court has also found from a perusal of the record that although the respondent nos. 3 to
14 may not have completed 240 days of working in the year immediately preceding the
disengagement, it would have no effect as in the twelve calender months preceding their
disengagement, they had worked for 240 days or more.

62. For this observation, this Court is placing reliance upon judgment rendered by the Hon'ble
Supreme Court in M/S U.P. Drugs and Pharmaceuticals Company Ltd. Vs. Ramanuj Yadav &
others 2003 (99) FLR 331. The question being considered by the Hon'ble Supreme Court was
whether for reaching a finding that there was a violation of Section 6(N) read with section 2(g)
of the U.P. Act, it was necessary for the workman to complete 240 days in the immediate
preceding year to the disengagement, or whether the workman who had completed 240 days in
the calender year preceding to the twelve months on the date of retrenchment, could be deemed
to be continuous service.

63. The Supreme Court considered Section 6(N) of the U.P. Act relating to condition precedent
to retrenchment of workman and it observed that there is a difference in language in the U.P. Act
with the Central Legislation. Under Section 6(N), no workman employed in any industry who
had been continuous service for not less than one year can be retrenched by the employer without
complying with the conditions mentioned therein "continuous service" is defined in Section 2(g)
of the U.P. Act, which means uninterrupted service which may be interrupted merely on account
of sickness or authorised leave or an accident or a strike which is not illegal or a lock out which
is not due to any fault on the part of the workman and a workman who during the period of
twelve calender months had actually worked in an industry for not less than 240 days shall be
deemed to have been completed one year of continuous service in the industry.

64. The Supreme Court also considered Section 25(B) of the Central Act defining continuous
service in the Central Act before its amendment, and the amendment made thereafter in the
definition of "continuous service" in the Central Act in 1964.

65. The Supreme Court has observed in paragraphs 10 & 11 thus:-


"10. Under the aforesaid legislative background, the question involved is required to be
considered. Section 2(g) of the UP Act does not require a workman, to avail the benefit of the
deeming provision of completion of one year of continuous service in the industry, to have
worked for 240 days during 'preceding' period of 12 calendar months. The word 'preceding' has
been used in Section 25-B of the ID Act as incorporated in the year 1964. Section 2(g) does not
use the word 'preceding'. The concept of 'preceding' was introduced in the ID Act so as to give
complete and meaningful benefit of welfare legislation to the working class. The approach to be
borne in mind while interpreting the welfare legislation is illustrated in Surendra Kumar Verma
etc. v. The Central Government Industrial Tribunal- cum-Labour Court, New Delhi & Anr.
[(1981) 1 SCR 789] where this Court has observed that semantic luxuries are misplaced in the
interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad
interpretation. Where legislation is designed to give relief against certain kinds of mischief, the
Court is not to make inroads by making etymological excursions."

11. Learned counsel for the appellant, however, relies upon Mohand Lal Vs. Management of M/s
Bharat Electronics Ltd. [(1981) 3 SCC 225]. In that case, the Court was considering the scope of
Section 25-B of the ID Act. It was observed that in order to invoke the fiction enacted in clause
(2)(a) of Section 25-B, it is necessary to determine first the relevant date, i.e., the date of
termination of service which is complained of as retrenchment. After that date is ascertained,
move backward to a period of 12 months just preceding the date of retrenchment and then
ascertain whether within a period of 12 months, the workman has rendered service for a period
of 240 days. It was held that if these three factors are affirmatively answered in favour of the
workman pursuant to the deeming fiction enacted in clause (2)(a), it will have to be assumed that
the workman is in continuous service for a period of one year and he will satisfy the eligibility
qualification enacted in Section 25-F. In Mohan Lal's case, the appellant was employed with the
respondent from 8th December, 1973. His services were abruptly terminated by letter dated 12th
October, 1974 w.e.f. October 19, 1974. This Court said that it is not necessary for the purpose of
clause (2)(a) of Section 25-B that workman should be in service for a period of one year. It was
held that if he is in service for a period of one year and that service is continuous service within
the meaning of clause (1), his services would be governed by clause (1) and his case need not be
covered by clause (2). Clause (2) envisages the situation not governed by clause (1). Clause
(2)(a) provides for a fiction to treat a workman in continuous service for a period of one year
despite the fact that he has not rendered uninterrupted service for a period of one year but he has
rendered service for a period of 240 days during the period of 12 calendar months counting
backward and just preceding the relevant date the date of retrenchment. These were the facts
under which it was held as to how the period of 240 days was to be calculated. The decision in
the case of Mohan Lal does not lay down that if a workman had worked for more than 240 days
in any number of years and if during the year of his termination, he had not worked for the said
number of days, he would not be entitled to the benefit of Section 25-B. The question with which
we are concerned was not under consideration in Mohan Lal's case. If the viewpoint propounded
by the management is accepted, then in every year the workman would be required to complete
more than 240 days. If in any one year the employer gives him actual work for less than 240
days, the service of the workman can be terminated without compliance of Section 6N of the UP
Act, despite his having worked for number of years and for more than 240 days in each year
except the last. Such an intention cannot be attributed to the UP Act. In the present case, as
already noticed, the finding of the labour court is that the respondents worked for more than 240
days in each year from 1983 to 1986 but not having worked for 240 days in the year of
termination, the termination was held by the labour court not to be violative of Section 6N.
Reference may also be made to the decision in Ramakrishna Ramnath Vs. The Presiding Officer,
Labour Court, Nagpur & Anr. [(1970) 3 SCC 67] where this Court observed that the provision
requiring an enquiry to be made to find out whether the workman has actually worked for not
less than 240 days during a period of 12 calendar months immediately preceding the
retrenchment does not show that a workman, after satisfying the test, has further to show that he
has worked during all the period he has been in service of the employer for 240 days in the year.
The interpretation propounded for the appellant is wholly untenable. The decision in U.P. State
Cooperative Land Development Bank Ltd. Vs. Taz Mulk Ansari & others 1994 Supp.(2) SCC
745] relied upon by learned counsel for the appellant has no applicability since that was a case of
clause (a) of Section 6N and, therefore, Section 2(g) had no relevance."

(emphasis supplied)

66. The Supreme Court further observed that the High Court had rightly concluded that the
termination of respondent was in violation of Section 6(N) read with section 2(g) of the U.P. Act.

67. With regard to the second issue raised by the learned counsel for the petitioner that since the
workers union had sponsored the cause of the respondent nos. 3 to 14, the respondent no. 1 could
not have passed the order dated 30.1.2009 permitting the concerned workmen to appoint their
own representative; this Court had considered Section 2(A) of the U.P. Act inserted w.e.f. 1978
and Rule 14(1) of the U.P. Industrial Disputes Rules 1957. Individual workman can approach the
Labour Court with his grievance regarding discharge, dismissal, retrenchment or termination
done wrongly by an employer, notwithstanding that no other workman nor any union of
workmen is a party to the dispute. Even in the Rules of 1957, it is left to the discretion of the
party to be represented before the Labour Court or Tribunal by an Officer of the union.

68. Moreover in the written statement filed by the petitioner, the espousing of the cause of
respondent nos. 3 to 14 by the respondent no. 2 was specifically objected to in paragraphs 13, 14
& 15. It was stated before the Tribunal that neither the Union had any substantive number of
workmen of the Corporation as its members nor there was any complaint moved by any
substantive number of workmen with respect to the grievance related to them. It had objected to
small groups viz the respondent no. 2 acting as a bargaining agent for the workmen. It was the
Company's case before the Tribunal that the workers' union represented a microscopic minority,
and it was not the authorised agent to initiate / sponsor the adjudication case.

69. The respondent workmen by three applications had requested for them being allowed
representation by their own representative as they had lost their trust in the office bearers of the
respondent no. 2. The respondent no. 1 had rightly allowed such application by its order dated
30.1.2009 finding that the dispute was with regard to the wrongful retrenchment / termination
from service of the respondent nos. 3 to 14 which they could individually pursue before the
Labour Court in terms of Section 2(A) of the U.P. Industrial Dispute Act.
70. With regard to the findings of fact recorded by the respondent no. 1, this Court exercises a
very limited jurisdiction. In Harjinder Singh Vs. Punjab State Warehousing Corporation 2010 (3)
SCC 192, the Supreme Court had observed in paragraph 17 thus:-

"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction
under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts
are duty- bound to keep in mind that the Industrial Disputes Act and other similar legislative
instruments are social welfare legislations and the same are required to be interpreted keeping in
view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV
thereof in general and Articles 38, 39(a) to (e), 43 and 43- A in particular, which mandate that
the State should secure a social order for the promotion of welfare of the people, ensure equality
between men and women and equitable distribution of material resources of the community to
subserve the common good and also ensure that the workers get their dues. More than 41 years
ago.

"10. ... The concept of social and economic justice is a living concept of revolutionary import; it
gives sustenance to the rule of law and meaning and significance to the ideal of welfare State."

71. The judgment rendered by the Supreme Court in Harjinder Singh (supra) has been later
reiterated by the Supreme Court. The Labour Court having recorded a finding of fact that the
respondent nos. 3 to 14 having been engaged every year on a fixed term basis continuously for
seven to eight years shall be deemed to be in continuous service rightly allowed the Reference.

72. Bhuvnesh Kumar Dwivedi Vs. M/S Hindalco Industries Limited 2014 (142) FLR 20 has
been relied upon both by the petitioners and by the private respondents, and hence this Court has
carefully perused the aforecited judgments. The appellant therein was engaged as a labour
Supervisor in the construction division in 1992 and was disengaged in 1998. Every year a fresh
appointment letter was issued to him reappointing him for doing the same work in the same
department in construction division with marginal increase of salary and dearness allowance per
month.

73. The Supreme Court found that there were several such workmen employed by the respondent
industry who were deprived of the benefit of permanent appointment by being kept on temporary
basis or on a contract basis.

74. The Hon'ble Supreme Court found that the construction division of the employer had been in
existence ever since the beginning of its establishment and thousands of workmen were
employed in the said division in the aforesaid manner and very few of them were made
permanent. This was the regular and established practice in the Company.

75. The Supreme Court also observed that it amounted to improper and unfair labour practice, as
mentioned (v) under Section 2(r)(a) of the Central Act.

76. The Supreme Court found the appellant workman as covered under the definition of
workman under Section 2(s) of the Industrial Disputes Act, and the termination of contract a
clear case of retrenchment in violation of Section 6(H) of the U.P. Industrial Dispute Act.
77. The Hon'ble Supreme Court framed the questions for consideration under paragraph 15 thus:-

"15. With reference to the above legal contentions the following points would arise for our
consideration :-

1) Whether the exercise of power by the High Court under Articles 226 and 227 of the
Constitution and setting aside the award of reinstatement, back wages and other consequential
reliefs and awarding Rs.1,00,000/- towards damages is legal and valid?

2) Whether the concurrent finding recorded by the Labour Court and High Court on the question
of termination of services of the workman holding that the case of retrenchment falls under
Section 6-N of the U.P. I.D. Act is void ab initio and not accepting the legal plea that the case
falls under Section 2 (oo) (bb) of the Act is correct, legal and valid?

3) Whether the workman is entitled for reinstatement with full back wages and other
consequential reliefs ?

4) What Award?"

78 The limits of jurisdiction exercises by the High Court under Article 226 & 227 of the
Constitution were discussed and in paragraph 18 it was observed thus:-

"18. A careful reading of the judgments reveals that the High Court can interfere with an Order
of the Tribunal only on the procedural level and in cases, where the decision of the lower courts
has been arrived at in gross violation of the legal principles. The High Court shall interfere with
factual aspect placed before the Labour Courts only when it is convinced that the Labour Court
has made patent mistakes in admitting evidence illegally or have made grave errors in law in
coming to the conclusion on facts. The High Court granting contrary relief under Articles 226
and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore,
we accordingly answer the point No. 1 in favour of the appellant."

79. Under the Central Act, Section 2(oo) (bb) referred to termination of service of the workman
as a result of non renewal of the contract of employment between the employer and the workman
concerned on its expiry or of such contract being terminated under a stipulation in that behalf
contained therein.

80. It was argued by the Company that there was a contract of employment which stipulated a
condition of service of the workman is being engaged for a fixed term which was liable to be
terminated without assigning reason.

81. The Supreme Court held while placing reliance upon State U.P. State Sugar Corporation Ltd
Vs. Om Prakash Upadhyay 2002 (10) SCC 89 that Section 2(oo)(bb) of the Central Act will not
be attracted in the case of Hindalco and the provisions of Section 6(N) of the U.P. Industrial
Disputes Act was required to be fulfilled mandatorily by the Company to retrench its workmen.
82. The Supreme Court also rejected the respondent's contention that the appellant was a
temporary worker. It observed that the appellant's service had been terminated several times and
he was subsequently employed again till his service was finally terminated in 1998. There were
several periods of engagement by separate contract in between 1992 to 1998. The period of
service extended to four to six years save the artificial breaks made by the respondents with
ulterior motive to retain the appellant as a temporary worker and deprive the appellant of his
statutory rights and of permanent workers status.

83. The Supreme Court observed in paragraphs 23, 24, 25 & 26 thus:-

"23. Very interestingly, the periods of service extends to close to 6 years save the artificial
breaks made by the respondent with an oblique motive so as to retain the appellant as a
temporary worker and deprive the appellant of his statutory right of permanent worker status.
The aforesaid conduct of the respondent perpetuates ''unfair labour practice as defined under
Section 2(ra) of the I.D. Act, which is not permissible in view of Sections 25T and 25U of the
I.D. Act read with entry at Serial No. 10 in the Vth Schedule to the I.D. Act regarding unfair
labour practices. Section 2 (ra) reads thus:

"unfair labour practice" means any of the practices mentioned in the Vth Schedule.

Further, Entry 10 of Vth Schedule reads as under:

"5. To discharge or dismiss workmen-

(10). To employ workmen as ''badlis', casuals or temporaries and to continue them as such for
years, with the object of depriving them of the status and privileges of permanent workmen."

24. The respondent, in order to mitigate its conduct towards the appellant has claimed that the
appellant was appointed solely on contract basis, and his service has been terminated in the
manner permissible under Section 2 (oo) (bb) of the I.D. Act. However, we shall not accept this
contention of the respondent for the following reasons:-

(i) Firstly, the respondent has not produced any material evidence on record before the Labour
Court to prove that it meets all the required criteria under the Contract Labour (Regulation and
Abolition) Act, 1970, to be eligible to employ employees on contractual basis which includes
license number etc.

(ii) Secondly, the respondent could not produce any material evidence on record before the
Labour Court to show that the appellant was employed for any particular project(s) on the
completion of which his service has been terminated through non-renewal of his contract of
employment.

25. Therefore, we deem it fit to construe that the appellant has rendered continuous service for
six continuous years (save the artificially imposed break) as provided under Section 25B of the
I.D. Act and can therefore be subjected to retrenchment only through the procedure mentioned in
the I.D. Act or the state Act in pari materia.
26. Therefore, we answer the point No. 2 in favour of the appellant holding that the Labour Court
was correct in holding that the action of the respondent/employer is a clear case of retrenchment
of the appellant, which action requires to comply with the mandatory requirement of the
provision of Section 6-N of the U.P. I.D. Act. Undisputedly, the same has not been complied
with and therefore, the order of retrenchment has rendered void ab initio in law."

(emphasis supplied)

84. With regard to arguments raised by the learned counsel for the petitioner's Company that
reinstatement could not have been ordered by the Labour Court in the Award impugned as
several of the workmen had reached the age of superannuation, reliance has been placed by the
learned counsel for the respondents in the supplementary affidavit filed by him on 13.11.2017.
The date of superannuation of the respondents have been given in a table annexed to a
supplementary affidavit filed by the petitioners. Such table is being reproduced herein below:-

List of workmen in Adjudication Case No. 119 of 2008 (Old No. 167 of 1988) Sr. No. Name of
workman Fathers Name Badge No. Date of termination Date of Birth Date of Superan-nuation
Kailash Kumar Gupta Narain Gupta ZF 00554 18.2.1987 1.5.1951 31.1.2009 Banarsi Lal Ganga
Lal ZF 00459 18.3.1987 Uma Shankar Shyam Sunder Prasad ZF 00445 18.3.1987 7.1.1954
30.6.2012 Bihari Prasad Shiv Narain ZP00383 /ZS 00383 18.3.1987 4.1.1938 31.3.1996 Suresh
Yadav Jokhu Yadav ZF00458 18.3.1987 Anil Kumar Tripathi Raj Kishore Tripathi ZF 00444
18.3.1987 7.1.1958 30.6.2016 Ram Bachan Singh Gudri Singh ZF 00449 18.3.1987 10.11.1951
31.10.2009 Raj Dev Mishra Chandra Deep Mishra ZF 00446 18.3.1987 1.2.1953 31.1.2011
Sheetla Prasad Ram Pyare Tiwari ZM 00331 18.3.1987 3.10.1943 31.3.2001 Virendra Kumar
Verma Roshan Verma ZF 00457 18.3.1987 2.5.1962 28.2.2020 Ramesh Kumar Dubey Shiv Dutt
Dubey ZM000329 18.3.1987 15.7.1954 31.7.2012 Chandra Mohan Durga Dutt ZQ000371
18.3.1987 2.3.1962 28.2.2020

85. The respondents have brought on record the date of superannuation of Banarasi Lal as
13.7.2009 and Suresh Yadav as 1.1.2015.

86. A perusal of the aforesaid table would show that seven of the respondents had reached the
age of superannuation before the Award was delivered on 11.10.2013. One respondent - Anil
Kumar Tripathi reached the age of superannuation during the pendency of the writ petition and
two of them are yet to attain the age of superannuation. Two of the respondents died before the
Award impugned was delivered on 11.10.2013, their legal heirs have not been brought on record
before the Labour Court. Therefore it has been averred by the petitioner that no benefit can be
derived by their legal heirs and representatives and the Award. However, this Court finds that
with respect to the dead respondents i.e. Bihari Prasad and Ram Bachan Singh the Award would
not become a nullity, but the legal heirs and representatives of respondent nos. 6 & 9 will get the
benefits only till the date of death of such respondents and also get all retiral benefits, like
gratuity etc.

87. This Court has to consider the relief of reinstatement in the light of facts brought on record
by means of subsequent affidavit by the petitioners and the respondent nos. 3 to 14.
88. The Award is modified only to the extent that the petitioner shall reinstate Sri Virendra
Kumar Verma and Sri Chandra Mohan with immediate effect and pay them salary and other dues
as admissible to them month to month along with back wages as awarded by the Labour Court.

89. With respect to respondents who have already reached the age of superannuation or are dead,
the petitioners shall calculate their dues and pay them forthwith accordingly, including all
benefits as admissible to regular workmen along with interest at the rate of 9% from the date it
became due till the date of actual payment.

90 The writ petition is dismissed subject to the aforesaid modification of the Award dated
11.10.2013.

Order Date :- 30.7.2018 Arif

CASE 6 : KUMAON MOTOR OWNER’S UNION LTD VS STATE OF UP


The respondent-State issued a notification under r.
131(2)(gg) and (i) of the Defence of India Rules,, 1962
directing to stop plying of all vehicles belonging to the
members of the appellant-union on a route in the border
region of the Country. The appellants filed writ petitions
in the High Court which were dismissed. In appeal to this
Court it was contended. that (i)the order was beyond the
power of the State under r. 131. (2) (gg) and (i) of the
Defence of India Rules; (ii) on a combined reading of s.
6(4) of the Defence of India Act and S. 68B of the Motor
Vehicles Act, the provisions of Ch. IV-A of the Motor
Vehicles Act with regard to the framing of schemes and
payment of compensation must be complied within where action
is taken under r. 131(2) (gg). and (i) of the Defence of
India Rules, and the act was mala fide; (iii) S. 44 of the
Defence of India Act had been contravened by the order; and
(iv) the satisfaction necessary for passing the order under
the Act and the Rules had not been shown by affidavits filed
on behalf of the State and therefore the condition precedent
to the passing of such an order was absent.
HELD: (i) The order passed by the State Government was
clearly within its powers under r. 131(2)(gg) and (i) of the
Defence of India Rules. [130 H]
When cl. (gg) envisaged prohibition or restriction of
carriage of persons or goods by any vehicle or class of
vehicles, it meant that the order would apply to persons
plying such vehicles. [127 A]
The impugned order was good so long it came within r.
131(2)(gg) even though it may diminish the profit making
capacity of a commercial undertaking or even reduce it to
nothing in a particular line of business. [130 B-C]
Clause (i) of r. 131(2) was complementary to the other
clauses of r. 131(2). When the State decided to issue a
prohibition under cl. (gg) it must naturally provide for
alternative methods for the carriage of persons or goods on
the prohibited route and cl. (i) clearly makes provision for
this. [130 D-E]
(ii) Section 43 of the Defence of India Act must prevail in
the conflict which appears to be apparent between S. 43 on
one hand and S. 68B of the Motor Vehicles Act read with S.
6(4) of the Defence of India Act on the other. S. 43
appears in an Act which is later than Motor Vehicles Act,
and in such a Situation unless there is anything repugnant,
the provisions in the later Act must prevail; looking at the
object behind the two statutes, the Act which was passed to
meet an emergency arising out
122
of foreign invasion of the country must prevail over an Act
meant to meet a situation arising out of the taking over of
motor transport by the state; and s. 43 emphatically says
that the Defence of India Act will prevail over any other
enactment and this suggests that the legislature intended
that the emergency legislation in the Defence of India Act
will be paramount if there is any inconsistency between it
and any other provision of any other law whatsoever. [128 A-
G]
The argument that the entire Motor Vehicles Act must be read
as a part of the Defence of India Act must be rejected and
in consequence s. 43 of the Defence of India Act will have
over-riding effect. The words "shall have effect" in s.
6(4) of the Defence of India Act, have to be read in the
context of that subsection and in that context means that
the Motor Vehicles Act will continue as before subject to
amendments made by s. 6(4). [129 B-E]
There was no question of the order being mala fide or been
passed as a device to avoid payment of compensation under
Ch. IVA. "The fact that at one stage nationalisation and
consequent payment of compensation under Ch. IV-A was under
consideration does not mean that if eventually action was
taken under s. 131(2) (gg) to stop activities prejudicial to
the defence of the country such action wag mala fide or was
merely a device to avoid payment of compensation. The long
period of almost four years which was taken, in coming to a
decision shows the circumspection with which the State acted
when it finally decided to pass an order under r.
131(2)(gg), 1131 E-G]
(iii) Action taken was not more than the situation
demanded and it did not violate s. 44 of the Defence of
India Act. It is for the person, who contends that an order
contravenes s. 44, to show that anything less than what the
order provides would have met the needs of the situation.
[132 C]
(iv) In view of the affidavit filed in this court on behalf
of the State, there could be no doubt that necessary
satisfaction of the State Government which is a condition
precedent for the issue of an order under the rules was
there before the impugned order was issued. [133 B-C]

JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 486 and 487 of 1965.

Appeals from the judgments dated the March 12, 1965 of the Allahabad High Court in Civil
Misc. Writ Nos. 4308 of 1965 and 4309 of 1965.

G. S. Pathak, B. Dutta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain for the appellant.

K. L. Misra, Advocate-General for the State of Uttar Pradesh and O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Wanchoo J. These two appeals on certificates
granted by the Allahabad High Court raise common questions and will be dealt with together.
The appellant, Kumaon Motorowners' Union Limited (hereinafter referred to as the union) was
established in 1939 and had at the date of the writ petition's. 330 members all of whom owned
transport vehicles. These members have public carrier permits as well as stage carriage permits,
which are in force in the Kumaon region except on certain notified routes. The permits of the
various members of the union are valid upto various dates falling in the years 1966 and 1967. On
August 17, 1964, the State Government purporting to exer- cise powers under cls. (gg) and (i)_
of sub-rule (2) of r. 131 of the Defence of India Rules, 1962 (hereinafter referred to as the Rules)
issued a notification by which it was directed that with effect from October 1, 1964, "no private
operators shall ply any vehicle, or class of vehicles for the carriage of persons or goods on, and
no vehicle or class of vehicles operated by the private operators shall pass through, Tanakpur-
Dharchula route of Kumaon region". It was further directed in the notification that on this route,
the U.P. Government Roadways vehicles alone shall ply for the carriage persons and goods. This
result of this notification was to stop plying of all vehicles belonging to the members of the
union on, the route in question and this led to the filing of the two petitions in the High Court.
The union was party to both the petitions, which were in the same terms.

In the petitions the appellants challenged the notification of' August 17, 1964, and this challenge
was based on four grounds. In the first place, it was contended that no order of the kind passed
on August 17, 1964 could be passed under r. 131 (2) (gg) and (i). In the second place, it was
contended that the U.P. Government was contemplating nationalisation of this route in the
Kumaon region for a long time prior to August 1964. Eventually, however, instead of proceeding
with the scheme of nationalisation which would have necessitated payment of compensation to
operators plying in the region, the Government decided to circumvent the provisions of Ch. IV-A
of the Motor Vehicles Act, (No. 4 of 1939) and introduced nationalisation through the device of
an order under cls.(gg) and (i) of r. 131 (2) of the Rules. So it 131 (2) of the Rules. So it was
conceded that the action of the State Government in passing the challenged order was mala fide.
Thirdly, it was contended that s. 44 of the Defence of India Act, No. 51 of 1962, (hereinafter
referred to as the Act) had been contravened by the order. Lastly, the contention -was that the
satisfaction necessary for passing the order under the Act and the Rules had not been shown by
the affidavits filed on behalf of the State Government and therefore the condition precedent to
the passing of such an order was absent.

The petitions were opposed on behalf of the State Government. It was not disputed that at one
time prior to August 1964 the State Sup C1166-9 Government had thought of nationalizing this
route and this matter was under consideration for sometime since 1962. But the State
Government justified the passing of the impugned order on the ground that since 1960 reports
had started coming in from the State Intelligence Department that certain anti-national and
subversive elements were infiltrating the transport Organisation and were exercising influence
over the drivers, employees and other private operators of the union. As far back as October
1960, the Deputy Commissioner, Almora had sent a report to Government that it was necessary
in the interest of national security that, no new routes in Pithoragarh should be given for
operation to the union and that their operation should be limited to Almora proper. Thereupon in
a meeting of high officials on November 14, 1960, it was decided that the Deputy Inspector
General Intelligence, should supply the Transport Commissioner with a list of the ring leaders of
such anti-national elements, and the Transport Commissioner should make efforts for the
elimination of such elements from the transport Organisation. It was also decided that the
management of the union should be asked to screen their employees before they were employed
and the police would be ready to render assistance in the matter of verification of antecedents of
persons to be employed by the union. Finally, it was also decided that the Transport
Commissioner should consider the question of running buses exclusively owned by Government
on the border routes.

Further meetings were held in January and August 1961 in which it was pointed out that it was
difficult to eliminate undesirable elements from transport organizations on account of existing
labour laws. In the meantime, more reports had come in of undesirable activities by workers of
transport organizations in the border region. Therefore, in May 1962, it was tentatively decided
by the State Government that the real solution to the problem lay in the operation of transport in
the border areas by Government alone. In the meantime the Transport Commissioner informed
the Government that as the union was a private concern, the transport department could do
nothing itself to eliminate these anti- national elements from the union and that the management
of the union also appeared to be powerless in the matter. Consequently in October 1962, the
transport department was asked to consider the question of nationalisation of some of the border
routes from the point of view of security. This was the, situation when the Chinese attacked in
October 1962. In November 1962, an employee of the union had to be detained under r. 30 (1)
(b) of the Rules as his activities were considered prejudicial to the defence of India and public
safety. The matter remained under consideration for another year and in, October 1963 it was
again impressed on the Transport Commissioner to eliminate anti-national elements from the
transport organisations, including the union serving in the border areas. The Transport
Commissioner however expressed his inability to do so and was then asked to examine the
implication of nationalisation of border routes on the ground of security. In January 1964 it
appears that the transport department reported that nationalisation would not be economical and
that the Government would stand to lose if it eliminated all private operators from this route and
substituted government owned vehicles in their place. Even so, it was finally decided in August
1964 after the matter was put up before the Chief Minister who dealt with matters arising out of
the Act and the Rules that in the interest of security, this route should be taken away from private
operators like the union and that the transport department should run its own vehicles on it. It
was in consequence of this decision of the Chief Minister finally made in July 1964 that the
impugned notification was issued on August 17, 1964. On these averments, it was contended on
behalf of the State Government in the High Court that there was no mala fides in eliminating
operators from this route and entrusting it to the transport department. It was further contended
that there was no contravention of s. 44 of the Act. Further it was urged that the order in question
was justified within the terms of r. 131 (2) (gg) and (i) of the Rules. Lastly it was contended that
the order had been passed after the necessary satisfaction of the Chief Minister. The High Court
negatived all the contentions raised on behalf of the appellants. As to the satisfaction of the Chief
Minister before the issue of the impugned order, the High Court was of the view that the affidavit
filed on behalf of the State Government was not very satisfactory; but on the whole it came to the
conclusion that the order had been issued after the necessary satisfaction and consequently the
petitions were dismissed. The appellants then obtained certificates from the High Court; and that
is how the matter has come up before us.

The same four points which were raised before the High Court have been raised before us on
behalf of the appellants. We shall first consider the contention that the impugned order is beyond
the power of the State Government under r. 131(2)(gg) and (i). Rule 131 provides for control of
road and water transport. Sub-

rule (2) thereof with which we are particularly concerned reads thus :

" (2) Without prejudice to any other provision of these Rules, the Central Government or the State
Government may by general or special order-

(a) to (g) "(gg) provide for prohibiting or restricting the carriage of persons or goods by any vehicle or
class of vehicles, either generally or between any particular places or on any particular, route;

(h)

(i) make such other provisions in relation to road transport as appear to that Government to be
necessary or expedient for securing the defence of India and civil defence, the public safety, the
maintenance of public order or the efficient conduct of military operations, or for maintaining supplies
and services essential to the life of the community."

The order of August 17, 1964 says that "in the opinion of the State Government it is necessary
and expedient so to do for securing the defence of India and civil defence, the public safety, the
maintenance of public, order and the efficient conduct of military operations and for maintaining
supplies and services essential to the life of the community" and then follow the two directions
which we have set out above.

The first contention on behalf of the appellants is that r. 131 (2) (gg) must be read in the context
of control of road transport and so read it only gives power to the State Government to control
the use of vehicles and does not empower it to prohibit private operators from plying vehicles on
any particular route with respect to which the order may be made. It is true that r. 131 deals inter
alia with control of road transport and cl. (gg) of r. 1 3 1 (2) provides for prohibiting or
restricting the carriage of persons or goods by any vehicle or class of vehicles, either generally or
between any particular places or on any particular route. But we are of opinion that the vehicles,
the control of which is envisaged in cl. (gg), cannot be divorced from the persons who are plying
the vehicles. No order can be issued to vehicles which are inanimate objects and an order under
cl. (gg) will have to be issued to the persons plying the vehicles and the prohibition or restriction
envisaged by cl. (gg) must be addressed to persons plying the vehicles mentioned therein. -
Therefore when cl. (gg) envisages prohibition or restriction of carriage of persons or goods by
any vehicle or class of vehicles, it obviously means that the order will apply to persons plying
such vehicles. The argument based on divorcing vehicles from persons plying the vehicles is in
our opinion completely fallacious and consequently when cl. (gg) provides for prohibition or
restriction with respect to vehicles, it obviously refers to regulation of the conduct of persons
plying the vehicles or prohibiting them completely from plying vehicles. We think that is the
only way to carry out the purposes of this clause.

In this connection our attention is drawn to S. 6 (4) of the Act, which lays down that during the
continuance in force of the Act, the Motor Vehicles Act, 1939, shall have effect subject to certain
provisions specified in cls. (a) to (f). The provisions in cls. (a) to (f) make certain changes in the
provisions of the Motor Vehicles Act with which we-are not concerned in the present appeals.
The argument however is that this provision shows that the Motor Vehicles Act will have full
force and effect subject to the amendments mentioned in cls. (a) to (f) and therefore it was not
open to the State Government to take over the route in question and exclude private operators
altogether without paying compensations provided in chapter IV-A of the Motor vehicles Act.
Attention has also been invited to s. 68-B of the Motor Vehicles Act, which appears in Ch. IV-A
and provides that "the provisions of this Chapter and the rules and orders made thereunder shall
have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act
or in any other law for the time being in force or in any instrument having effect by virtue of any
such law". "It is urged on a combined reading of s. 6 (4) of the Act and s- 68- Motor Vehicles
Act that the provisions of Ch. IV- A with regard to the framing of schemes and payment of
compensation must be complied with even where action is taken under r. 131 (2) (gg) of the
Rules.

This argument is met on behalf of the State by reference to S. 43 of the Act which lays down that
"the provisions of this Act or any rule made thereunder or any order made under any such rule
shall have effect notwithstanding anything inconsistent therewith contained in any enactment
other than this Act or in any instrument having effect by virtue of any enactment other than this
Act." It does appear that there is some apparent conflict between s. 43 on the one hand and s. 68-
B of the Motor Vehicles Act read with S. 6 (4) of the Act on the other, and that conflict has to be
resolved. The only way to do it is to decide whether in such a situation, S. 43 of the Act will
prevail or S. 68- B of the Motor Vehicles Act will prevail. We are of opinion that s. 43 of the Act
must prevail. In the first place, s. 43 appears in an Act which is later than the Motor Vehicles Act
and therefore in such a situation unless there is anything repugnant, the provisions in the later
Act must prevail. Secondly, if we look at the object behind the two statutes, namely, the Act and
the Motor Vehicles Act, there can be no doubt that the Act, which was passed to meet an
emergency arising out of the Chinese invasion of India in 1962, must prevail over the provisions
contained in Ch. IV- A of the Motor Vehicles Act which were meant to meet a situation arising
out of the taking over of motor transport by the State. Thirdly, if we compare the language of S.
43 of the Act with S. 68-B of the Motor Vehicles Act we find that the language of S. 43 is more-
emphatic than the language of s. 68-B. Section 43 provides that the provi- sions of the Act or any
rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained
in any enactment other than the Act. This would show that the intention of the legislature was
that the Act shall prevail over other statutes. But we do not find the same emphatic language in
S. 68-B which lays down that the provisions of Ch. IV-A would prevail notwithstanding
anything inconsistent therewith contained in Ch. IV of the Motor Vehicles Act or in any other
law for the time being in force. The intention seems to be clear in view of the collocation of the
words "in Chapter IV of this Act" with the words "in any other law for the time being in force"
that Ch. IV-A was to prevail over Ch. IV of the Motor Vehicles Act or over any other law of the
same kind dealing with motor vehicles or for compensation. On the other hand s. 43 of the Act
emphatically says that the Act will prevail over any enactment other than the Act, and this
suggests that the legislature intended that the emergency legislation in the Act will be paramount
if there is any inconsistency between it and any other provision of any other law whatsoever.
Such a provision is understandable in view of the emergency which led to the passing of the Act.
Another argument under S. 6 (4) of the Act is that by that provision the Motor Vehicles Act must
be held to derive its authority from the Act and thus be treated as if it was a part of the Act.
Emphasis is laid on the words "shall have effect" in this connection and it is urged that by virtue
of these words, the Motor Vehicles Act must be deemed to derive its authority from the Act and
therefore must be treated as part thereof. In consequence, it is said that s. 43 which lays down
that the Act and the Rules thereunder shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than the Act will not apply because the Motor
Vehicles Act is a part of the Act. We are of opinion that there is no force in this argument. The
words "shall have effect" appearing in s. 6(4) of the Act have to be read in the context of that
sub-section, In that context they only mean' that the Motor Vehicles Act will continue as before
subject to the amendments made by s. 6(4). These words in the context of s. 6 (4) do not mean
that the entire Motor Vehicles Act is being made a part of the Act; and it is only the six clauses
making changes in the Motor Vehicles Act which can at the, best be treated as part of the Act.
The over-riding effect given to orders passed under the Act and the Rules by s. 43 of the Act
cannot therefore be taken away with respect to the provisions of the Motor Vehicles Act other
than clauses

(a) to (f) of s. 6 (4). It is not in dispute that we are not concerned in the present case with cls. (a)
to (f) and as a matter of fact if we look at these clauses they are concerned with making
provisions which over-ride certain provisions of the Motor Vehicles Act. The argument that the
entire Motor Vehicles Act must be read as a part of the Act must therefore be rejected and in
consequence s. 43 of the Act will have over-riding effect in accordance with its tenor.

In view therefore of the provisions contained in S. 43 of the Act which as we have said already
was passed to meet a grave national emergency, the argument that the provisions contained in
Ch. IV-A for framing a scheme and paying compensation must still be complied with where
action is taken under r. 131 (2) (gg) of the Act must be rejected.

Then it is urged that by passing the impugned order, the commercial undertaking of the union is
destroyed, and that this could not be the intention behind cl. (gg) of r. 1 3 1 (2) of the Rules. We
are of opinion that in this case there is no destruction of the commercial undertaking of the
union, for the simple reason that it is not disputed that this is not the only route on which the
union is plying its vehicles and the impugned order does not touch the other routes on which the
appellants may be plying their vehicles. Further there is nothing in the order which destroys the
commercial undertaking even otherwise, for it has neither taken over any of the assets of the
commercial undertaking nor has it in any way interfered with the working of the commercial
undertaking; all that the order provides is that the union shall not ply its vehicles on a particular
route. This in our opinion does not amount to destroying the commercial un-
dertaking which is left untouched by the order. All that may be said to have resulted from the
order is that the profit making capacity of the commercial undertaking might have been reduced
to a certain extent. That however does not in our opinion mean that the commercial undertaking
has been destroyed. We may add that even if the profit making capacity of the commercial
undertaking was lost due to one line of business being stopped that would not amount to
destruction of the commercial undertaking, which could take up other business. So long as the
order under cl. (gg) of r. 131(2) comes within the terms of that clause, it will be good even
though it may diminish the profit making capacity of a commercial undertaking or even reduce it
to nothing in a particular -line of business. We are therefore of opinion that the impugned 'order
is in accordance with the terms of cl. (gg), sub-r. (2) of r. 131 and cannot be said to go beyond
the powers conferred on the State Government by that clause.

Lastly it is urged that in any case the second part of the order which directs that the Roadways
Vehicles will only ply for carriage of persons and goods on the route in question cannot fall
under cl. (1) of r. 131(2). We have already set out cl. (1). That clause in a sense is
complementary to the provisions of other clauses of r. 131(2). Where the State Government
decides to issue a prohibition under cl. (gg), it must naturally provide for alternative methods for
the carriage of persons or goods on the prohibited route and cl. (1) clearly makes provision for
this. It gives powers to the State Government to make such other provisions in relation to road
transport as appear to it to be necessary

-or expedient for securing the defence of India, etc. Obviously when the State Government, as in
this case, prohibited the union from plying its vehicles on this particular route, a vacuum was
created in the matter of carriage of persons and goods. That vacuum had to be filled in the
interest of securing the defence of India, civil defence etc. To fill that vacuum the State
Government directed that U.P. Government Roadways vehicles shall ply for the same purpose on
this route. Clearly the vacuum was filled by the Roadways, because that Organisation was
readily available to Government to fill it. Otherwise we have no doubt that the Government
could have made some other arrangement to fill the vacuum. Therefore, whether the vacuum was
filled by ordering the Roadways to ply their vehicles on the route in question or by making any
other arrangement, that would clearly be within the power of the State Government under cl. (1)
of r. 131(2). We are therefore of opinion that the order passed by the State Government on
August 17, 1964 was within its powers under r., 131 (2) (gg) and (i) of the Rules.

This brings us to the question of mala fides. The argument is that the order was passed under r.
131 (2) (gg) in order to avoid payment of compensation by taking action under Ch. IV-A of the
Motor Vehicles Act. In that connection we have already set out the affidavit filed on behalf of
the State Government as to how the order came to be passed. We have no reason to think that the
averments made in the affidavit with regard to subversive activities on the border of India with
China are not correct. In view of the facts mentioned therein there can be no doubt that the action
under r. 131(2) (gg) was taken as stated in the order for the purpose of the defence of India, civil
defence, the public safety, the maintenance of public order and the efficient conduct of military
operations, and for maintaining supplies and services essential to the life of the community. It is
true that at one stage the State Government was thinking of nationalising this particular route and
if that scheme had gone through, action would have had to be taken under Ch. IV-A of the Motor
Vehicles Act. But the reports as to sub- versive activities which were thought to be prejudicial to
the defence of India had started to come in as far back as 1960 long before the 'Chinese invasion
of India and the matter was under consideration for almost four years before the impugned order
was passed. The question became urgent after the Chinese invasion of India in October 1962.
Even so, the State Government explored various means of stopping activities prejudicial to the
defence of India on the border between India and China. There can be no doubt that the matter
was considered from all aspects and eventually it was decided to take action under r. 131 (2) (gg)
of the Rules. In these circumstances it cannot possibly be said that the action was mala fide and
was taken to avoid payment of compensation under Ch. IV-A. The fact that at one stage
nationalisation and consequent payment of compensation under Ch. IV-A was under
consideration does not mean that if eventually action was taken under r. 131 (2) (gg) to stop
activities prejudicial to the defence of India such action was mala fide or was merely a device to
avoid payment of compensation. The long period of almost four years which was taken for
coming to a decision shows the circumspection with which the State Government acted when it
finally decided to pass the order under r. 131(2) (gg). We are therefore of opinion that there is no
question of the order being mala fide or having been passed as a device to avoid payment of
compensation under Ch. IV-A of the Motor Vehicles Act. Some of the words used in the
counter-affidavit on behalf of the State Government in reply are somewhat Unfortunate and
inapt, but we have no doubt that, the impugned order was passed without any mala fide and was
not a device merely to avoid payment of compensation.

Then we come to the argument that the action taken was more, than the situation demanded and
therefore under s. 44 of the Act the order was vitiated. Section 44 provides that "any authority or
person acting in pursuance of this Act shall interfere with the ordinary avocation of life and the
enjoyment of property as little as may be consonant with the purpose of ensuring the public
safety and interest and the defence of India and civil defence". We are of opinion that if a person
contends that a particular order contravenes s. 44, it is for him to show that anything less than
what the order provides would have met the needs of the situation. In the present case the
appellants have failed to show any such thing. Besides the affidavit filed on behalf of the State
Government shows that for a long time attempts were made to see if the prejudicial activities
complained of could be stopped in any Other Way. It was only when it was felt that there was no
other way of stopping the prejudicial activities of the employees of the union that the order in
question was passed. In the circumstances we are not prepared to hold that the order in question
interferes with the rights of the appellants more than was necessary for the purpose to be
attained.

This brings us to the last point that has been urged on behalf of the appellants, namely, that it
was not proved that the State 'Government was satisfied that it was necessary and expedient for
securing the defence of India and civil defence, the public safety, the maintenance of public
order and the efficient conduct of military operations and for maintaining supplies and services
essential to 'the life of the community that the order should be passed. It does appear that the
affidavits filed in the High Court were not quite clear on this point. Therefore we gave an
opportunity to the State Government to file an affidavit to show that the satisfaction of the State
Government necessary before passing an order of this kind was arrived at. In consequence an
affidavit was filed on behalf of the State Government on August 16, 1965 by the Deputy
Secretary (Home Department) U.P. Government, Lucknow. In that affidavit it has been stated
that under the rules relating to the allocation of business, matters relating to the subject matter
which led to the issue of the impugned notification have to be submitted to the Chief Minister
before the issue of orders. It was further stated that after various meetings of the officials of the
State, the matter was put up before The Chief Minister on December 5, 1963 or so and the Chief
Minister after considering all aspects decided that it was necessary to take over the route in
question. The matters were further considered by various officers and there was correspondence
with the Government of India and eventually on July 30, 1964, it was finally decided by the
Chief Minister to take over the route in question in the interest of security. It was thereafter that
the order of August 17, 1964 was issued by the Transport department with the concurrence and
approval of the Home Department. In view of this affidavit filed in this Court there can be no
doubt that the necessary satisfaction of the State Government which is a condition precedent for
the issue of an order under the rules was there before the impugned order was issued.

The appeals therefore fail and are hereby dismissed. In the circumstances we order the parties to
bear their own costs.

Appeals dismissed.

OBLIGUE

JUDGEMENT

Wanchoo, J. - (1.) These two appeals on certificates granted by the Allahabad High Court raise
common questions and will be deal with together. The appellant, Kumaon Motor Owners' Union
Limited (hereinafter referred to as the union) was established in 1939 and had at the date of the
writ petitions, 330 members all of whom owned transport vehicles. These members have public
carrier permits as well as stage carriage permits, which are in force in the Kumaon region except
on certain notified routes. The permits of the various members of the union are valid upto
various dates falling in the years 1966 and 1967.
(2.) On August 17, 1964, the State Government purporting to exercise powers under Cls. (gg)
and (i) of sub-rule (2) of R. 131 of the Defence of India Rules, 1962 (hereinafter referred to as
the Rules) issued a notification by which it was directed that with effect from October 1, 1964,
''no private operators shall ply any vehicle or class of vehicles for the carriage of persons or
goods on, and no vehicles or class of vehicles operated by the private operators shall pass
through, Tanakpur-Dharchula route of Kumaon region". It was further directed in the notification
that on this route, the U. P. Government Roadways vehicles alone shall ply for the carriage of
passengers and goods. The result of this notification was to stop plying of all vehicles belonging
to the members of the union on the route in question and this led to the filing of the two petitions
in the High Court. The union was party to both the petitions, which were in the same terms.
(3.) In the petitions the appellants challenged the notification of August 17, 1964, and this
challenge was based on four grounds. In the first place, it was contended that no order of the kind
passed on August 17, 1964 could be passed under R. 131 (2) (gg) and (i). In the second place, it
was contended that the U. P. Government was contemplating nationalisation of this route in the
Kumaon region for a long time prior to August 1964. Eventually, however, instead of proceeding
with the scheme of nationalisation which would have necessitated payment of compensation to
operators plying in the region, the Government decided to circumvent the provisions of Ch. IV-
A of the Motor Vehicles Act, (No. 4 of 1939) and introduced nationalisation through the device
of an order under Cls. (gg) and (i) of R. 131 (2) of the Rules. So it was contended that the action
of the State Government in passing the challenged order was mala fide. Thirdly, it was
contended that S. 44 of the Defence of India Act, No. 51 of 1962, (hereinafter referred to as the
Act) had been contravened by the order. Lastly, the contention was that the satisfaction necessary
for passing the order under the Act and the Rules had not been shown by the affidavits filed on
behalf of the State Government and therefore the condition precedent to the passing of such an
order was absent.;

CASE 7 : MANAGEMENT LAKSHMI MSCHINE WORKS LTD VS PO LABOUR COURT,


COIMBATORE

The above Writ Appeal is directed against the order of Y. Venkatachalam, J., dated December 4,
1995 in W. P. No. 10503 of 1985, reversing the order passed by the Ist respondent/Presiding
Officer, Labour Court, Coimbatore, in I.D. No. 62 of 1983 awarding Rs. 3,000/- by way of
compensation in lieu of dismissal from service. The management is the appellant.

2. The appellant was engaged in the production of textile spinning machinery. It employs about
3,000 workmen. The workmen have to work in two shifts. The various machines are operated at
a very high speed and if they remain unattended, it may pose a very risk to the persons nearby as
well as the machines. Having regard to the nature of machine operations and the risk factor
involved, the workmen are required to maintain a constant vigil and also remain near their work
place during the shift hours. Any workman who is found sleeping while on duty and who is away
from his working place is invariably awarded the punishment of dismissal.

3. The 2nd Respondent was offered employment as an Apprentice on January 14, 1970. Sub
clause 7 of Clause 24 of the Standing Order of the company provides that in awarding the
punishment, the employer shall take into account the gravity of misconduct, the previous record
of the workman and any other extenuating and aggravating circumstances that may exist. On
September 8, 1981, the 2nd Respondent was in the second shift. At about 10-30 p.m., while the
shift in charge along with the Supervisor were going on rounds through the FRS Department,
they found the 2nd Respondent sleeping, lying behind the EMA High Frequency Hardening
Machine Control Panel on a cardboard sheet spread on the floor. The Supervisor Trainee was
called to wake up the 2nd Respondent. When the 2nd Respondent wake up, he felt sorry for
havin slept during duty hours wrvto give his statement, he and when he was ask refused to own
his mistake. On September 9, 1981, a show cause notice was issued to the 2nd Respondent
referring to his sleeping while on duty on September 8, 1981 and calling upon him to show cause
why disciplinary action should not be taken against him. The 2nd Respondent did not give any
explanation. He was asked to appear for an enqu on September 21, 1981. On September 18, 1981
he submitted an explanation in which he denied the charges. The enquiry was held on January 8,
1982, January 12, 1982 and January 13, 1982. In the enquiry, three witnesses by name
Krishnamani, Kuthbudheen and Muralidharan were examined in support of the charges. The 2nd
Respondent exmnined two witnesses viz., Raiendran and Girinathan.

4. ne Enouiry Officer gave his report on January 27, 1982 holding that the charges levelled
against the 2nd Respondent were proved. It is also relevant to mention that even prior to the
present misconduct on September 8, 1981, on several occasions the 2nd Respondent was
subjected to disciplinary action and in one instance, it resulted in his dismissal fro service In
during July, 1976. Later, at the instance and intervention of some higher ups, the 2nd Respondent
and some other dismissed workmen were taken back. On a consideration of the finding Of the
Enquiry Officer and the past record of service of the 2nd Respondent, the Executive Director
took a decision to dismiss the 2nd Respondent from service and the same was conveyed to the
Persomel Manager, who issued a communication dated February 12, 1982 to that effect to the
2nd Respondent.

5. The 2nd Respondent raised an Industrial Dispute challenging his dismissal. By order dated
March 22, 1983 in G.O.Ms. No. 763, lobour and Employment Department, the dispute was
referred to the Labour Court, Colmbatore, for adjudication. Before the Labour Court, neither
party let in any oral evidence. The 2nd Respondent has marked Exs. W-1 to W-7 and the
appellant marked Exs. M-1 to M-35 on their side. Before the Labour Court, the question whether
the domestic enquiry was fair and proper, was taken up for consideration in the first instance.
The Labour Court has held that due opportunity was given to the 2nd Respondent to vindicate his
stand in the enquiry and that the enquiry was fair and proper.

6. In dealing with the question of justification of the findings and the propriety of punishment,
the Labour Court considered the evidence let in the enquiry and agreed with the finding of the
Enquiry Officer that the 2nd Respondent slept while on duty. Thereafter, the 30 Labour Court
has proceeded to consider whether the misconduct proved against the 2nd Respondent warranted
the punishment of dismissal. The Labour Court has given elaborate reasons as to how the
punishment of dismissal was justified and the same cannot be said to be disproportionate to the
charges proved against the 2nd Respondent. However, the Labour Court awarded a lump sum
grant of Rs. 3,000/- to the 2nd Respondent as compensation for the loss of his job. Against the
award of the Labour Court, the workman/2nd Respondent has preferred W. P. No. 10503 of
1985.

7. Before the learned single Judge it was is contended on behalf of the workman/2nd
Respondent, that the Labour Court has not exercised its power properly. The domestic enquiry
conducted, according to the 2nd Respondent, was also not proper and the conclusions of the
Labour Court are not supported by cogent reasons. Therefore, the 2nd Respondent requested this
Court to interfere with those findings in exercise of its jurisdiction under Article 226 of the
Constitution of India. It was also urged that the Labour Court has upheld the punishment of
dismissal from service without any proper appreciation of the evidence and hence the Labour
Court has erred in law in passing the award. In any event, it was contended that the Labour Court
should have interfered with die punishment of dismissal in exercise of its power under Section
11-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act).

8. The claim of the 2nd Respondent was opposed by the appellant/management. On behalf of the
management it was contended that the Labour Court has given elaborate reasons as to how the
punishment of dismissal was justified and the same cannot be said to be disproportionate to the
charges proved against him. In any event, it is contended that the findings of the Labour Court
are findings of fact based on evidence held in the domestic enquiry and further, the Labour Court
has given its own-reasons as to why the punishment cannot be stated to be harsh and excessive.
As the conclusion of the Labour Court is supported by valid and cogent reasons, it was submitted
before the learned single Judge that this Court should not interfere with the said finding in
exercise of its jurisdiction under Article 229 of the Constitution of India.

9. By order dated December 4, 1995 Y.Venkatachalam, J., considered that the punishment was
disproportionate to the charges proved against the 2nd Respondent. The learned Judge has not
directed the reinstatement of the 2nd Respondent nor has the learned Judge set aside the order of
termination. The learned Judge has also not indicated or substituted the punishment imposed on
the 2nd Respondent by the Labour Court. The learned Judge has merely set aside the award of
the Labour Court. In paragraph 7 of the order the learned Judge has though observed that it is an
admitted fact that the 2nd Respondent is involved in proved misconduct sleeping while he was
on duty, however, held that on account of the 2nd Respondent having slept during the course of
his work, no injury or damage has been caused to so the management. The learned Judge was of
the view that the award of Rs. 3,000/- by way of compensation in lieu of dismissal from service,
as ordered by the Labour Court, is disproportionate to the proved charges. Holding so, the
learned Judge has set aside the award of the Labour Court. Aggrieved by the said order, the
management has preferredihe above Writ Appeal under Clause 15 of the Letters Patent.

10. We have heard Mr. P. Ibrahim Kalifullah for the appellantimanagement and Mr. K. M.
Ramesh on change of Yakalath from M/s. Aiyar & Dolia, on behalf of the 2nd
Respondent/management.

11. Mr. P. Ibrahim Kalifullah contended as follows :

a) The Labour Court has gone into the question of propriety of the punishment and has given a
finding that the punishment was not disproportionate to the charges proved against the 2nd
Respondent/workman. The exercise of the said power under Section 11-A of the Act is not
subject to review under Article 226 of the Constitution.

b) The learned Judge has failed to advert to the elaborate reasons given by the Labour Court in
coming to the conclusion that the misconduct proved against the 2nd Respondent called for the,
punishment of dismissal from service.

c) The learned Judge has erred in holding that the punishment of dismissal can be awarded only
in case of misappropriation or for an offence under the Indian Penal Code.

d) According to the learned counsel for the of' appellant, by reason of the 2nd Respondent
sleeping while on duty, there was a grave risk to the working machine and that the fact that there
was no untoward incident during the period he was sleeping on duty, would not in any manner
mitigate the gravity of the situation.

e) By setting aside the award of the Labour Court, the learned Judge should have either inia
given his finding as to what would be the appropriate punishment or remanded the matter to the
Labour Court.
f) The order of the learned Judge in merely setting aside the award of the Labour Court without
the consequential finding or directions is erroneous, in that, the learned Judge has not indicated
as to what would be the punishment that can be awarded to the 2nd Respondent in lieu of
dismissal.

g) The learned Judge has also failed to notice that the materials placed before him would show
that the 2nd Respondent was not only gainfully employed but was well placed than what he was
when he was in the employment of the appellant.

In support of his above contentions, the learned counsel for the appellant/management cited the
following decisions reported in Royal Printing Works v. Industrial Tribunal, Madras (1959-II-
LLJ-619) (Mad); State of Haryana v. Rattan Singh (1982-I-LLJ-46) (SC); The Management of
TAFE v. R. Venkataraman (1990-II-LLJ-468) (Mad); Kerala Solvent Extractions Ltd. v. A .
Unnikrishnan (1994-II-LLJ-888) (SC); and Dhamapuri District Co-op. Sugar Mills v. Labour
Court, Vellore 1997 (1) LLN 391 (Mad).

12. Arguing contra, Mr. K. M. Ramesh contended that on the evidence available on record, the
charges have not been made out on the 2nd Respondent/workman. He further contended that the
fuidings of the Enquiry Officer and of the Labour Court are perverse and that gainful
employment cannot be put against for awarding compensation. In support of his contention, he
cited the decisions reported in line Wo Mls. Firestone Tyre & Rubber Co. (Pvt.) Ltd. v. The
Management (1973-I-LLJ-278) (SC)); B. C. Chaturvedi v. Union of India (1996-I-LLJ-1231)
(SC); Om Prakash Goel v. Hinwchal Pradesh Tourism Development Corporation Ltd. (1992-I-
LLJ-469) (SC); A. V Krishwmurthi v. Govt. of Tamil Nadu (1985-I-LLJ-46) (Mad); Rajinder
KuKindra v. Delhi Anistmdon (1984-II-LLJ-517) (SC); and Air Lanka Ltd. v. John William
Nathan (1991-I-LLJ-291) (Mad). Mr. K. M. Rainesh has also drawn our attention to the
proceedings of the Enquiry Officer and of the Labour Court and pointed out certain portions here
and there in order to substantiate his contention.

13. Mr. K. M. Ramesh contended that because of the sleeping of the workman and the
carelessness in relation to his work would not justify serious punishment. The learned Judge has
also accepted the said view. Under such circumstances, Mr. K. M. Ramesh contends that this
Court cannot interfere with the said finding or impose serious punishment. With this view of the
learned Single Judge, we definitely disagree. In this context, it is pertinent to notice the
observations of P. V. Balakrishna Ayyar, J. in (1959-II-LLJ-619) (Mad). This is what the learned
Judge said at p. 622:

"Carelessness can often be productive of more harm than deliberate wickedness or malevolence.
I shall not refer to the classic example of the sentry who sleeps at his post and allows the enemy
to slip through. There are other more familiar instances. A compositor who carelessly places a
plus sign instead of a minus sign in a question paper may cause numerous examinees to fail. A
compounder in a hospital or chemist's shop who makes up the mixtures or other medicines
carelessly may' cause quite a few deaths. The man at an airport who does not carefully filter the
petrol poured into a plane may cause it to crash. The railway employee who does not set the
point carefully may cause a head-on collision. Misplaced sympathy can be a great evil.
Carelessness and indifference to duty are not the high roads to individual or national prosperity.
14. The decision reported in (1982-I-LLJ-46) (SC) was-lendered by three Hon'hle Judges of the
Supreme Court. It has been observed by the Supreme Court as follows at p. 47 :

"It is well settled that in a domestic enquiry, the strict and sophisticated rules of evidence under
the Indian Evidence Act may not apply. All materials which are logically protative for a prudent
mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus
and credibility. It is true that departmental authorities and Administrative Tribunals must be
careful in evaluating such material and should not glibly swallow what is strictly speaking not
relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions
nor text books, although we have been taken through case law and other authorities by counsel
on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials
or considerations and observance of rules of natural justice. Of course, fair play is basis and if 15
perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions
reached, such fmding, even though of a domestic Tribunal, cannot be held good ..... The simple
point is, was there some evidence or was there no evidence not in the sense of the technical rules
governing regular Court proceedings but in a fair common sense way as men of understanding
and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the
finding by a domestic Tribunal is beyond scrutiny."

In view of the above judgment of the Supreme Court, we are unable to agree with the contention
of the learned counsel for the 2nd Respondent that the sufficiency of the evidence in proof of the
finding by a domestic Tribunal is beyond scrutiny by this Court. Therefore, the contention of the
learned counsel for the 2nd respondent on this aspect fails.

15. In the decision reported in (1990-II-LLJ-468) (Mad) (supra) S. Nainar Sundaramal, (aslo he
then was), and E. I. Bellie, J., while construing the scope of Section 11-A of the Act and the
quantum of punishment to be awarded, and the discretion of the Labour Court to interfere with
the said punishment, observed as follows at p. 469 :

"Once the Labour Court in exercise of its power under Section 11-A of the Industrial Disputes
Act evaluates the gravity of go misconduct for the purpose of punishment to be imposed on a
workman and exercises its discretion, High Court exercising jurisdiction under Article 226 of the
Constitution of India in the absence of any important legal principle should not undertake to re-
examine the question of adequacy or inadequacy of the materials for interference by the Labour
Court. After elaborate consideration the Laour Court came to the conclusion that the punishment
was disproportionate and ordered reinstatement of the worker and denied him back wages from
date of suspension till date of reinstatement. This is within the powers of the Labour Court.
When once the discretion is exercised judicially and it is held that the punislunent is
disproportionate to the degree of the guilt on the basis of reasons, High Court cannot interfere
with the award."

As pointed out by the Division Bench in the above cited case, when once the discretion is
exercised judicially, this Court cannot interfere with the award unless it is proved otherwise.

16. We have carefully gone through the award of the Labour Court. The Labour Court has
elaborately considered the entire evidence placed before it and arrived at the conclusion. The
Labour Court has also considered the punishment to be awarded and considering the gravity of
misconduct and the past record of service, the Labour Court awarded the punishment of
dismissal from service. It is seen from the award that the 2nd respondent had been suspended
pending enquiry for striking work, inciting others to strike work and having been not found at the
work spot on November 9, 1971. He was also warned for having habitually ab-sented for more
than seven occasions. He had been suspended for four days for striking work, inciting others also
to strike work, riotous and disorderly behaviour and threatening other workmen working at the
work spot on October 15, 1973. He was also suspended for a month pending enquiry for not
wearing prescribed uniform while on duty. He had further been suspended pending enquiry for
having refused to receive the written communication and for riotous and disorderly behaviour
and squatting within the factory premises. Ultimately, he was INIR dismissed from service with
effect from July 2, 1976 and on account of intervention of some higher ups, he was taken back
along with a few others. He had been orally warned for habitual absence on April 24, 1980. We
are of the view that under the above circumstances, the management cannot remain a silent
spectator and permit the workman to commit misconduct in the industry.

17. The fact of the 2nd respondent sleeping during duty hours might look a minor misconduct,
but, if it is viewed in association with series of misconducts committed by him in the past, it
deserves serious action. As rightly pointed out by the Labour Court, discipline, orderliness and
smooth conduct are as important as production. The management can ill-afford to sacrifice any
of them. The appellant/management employs 3,500 workmen and it can ill-afford to allow
workmen to sleep during working of hours . The 2nd respondent's act of misconduct committed,
coupled with the series of past record of bad service, in our considered opinion, warrant nothing
but an order of termination. The Labour Court has also observed that the 2nd respondent has
conducted himself in a manner conducive to his convenience and not strictly adhering to the
schedule of work enjoined upon him by his superiors, and therefore he had rendered himself
undesirable and much more unworthy of the confidence reposed in him in the matter of
entrustment of very important work in an industry such as that of the appellant. We are of the
view that there is ample evidence in support of the conclusion arrived at by the Enquiry Officer
and also by the Labour Court.

18. In the decision reported in (1994-II-LLJ-888) it has been held by the Supreme Court as
follows at p. 890 :

"In recent times, there is an increasing evidence of this, perhaps well meant but wholly
unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and
process. The reliefs granted by the Courts must be seen to be logical and tenable within the
framework of the law and should so not incur and justify the criticism that the 101 jurisdiction of
Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is
essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They
must emanate logically from the legal findings and the judicial results must be seen to he
principled and supportable on those findings, Expansive judicial mood of mistaken and
misplaced compassion at the expense of the legitimacy of the process will eventually lead to
mutually irreconcilable situations and denude the judicial process of its dignity, authority,
predictability and respectability."
19. In the decision reported in 1997 (1) L.L.N. 391, a Division Bench of this Court, while
construing the powers of the Labour Court under Section 11-A of the Act, has held as follows :

"The Court should not entertain a misplaced sympathy towards a workman and should not
prejudice the issue from the angle of rehabilitation. The question of rehabilitation and
reformation could arise in a case of minor delinquency or misconduct. Where the charges are
grave in nature, can the Labour Court exercising power under Section 11A of the Act impose on
a management a workman whose presence is likely to affect the morale and discipline of the
entire factory ? Should the management be embarrassed by the reinstatement of such a workman
by denying the managerial function to which a management is entitled to, having regard to the
facts and circumstances of the case ? The acceptance of such a proposition (sic.) would only lead
to interfering with the managerial functions to the extent of destroying the discipline and control
in the entire factory. Section 11A of the Act is not intended to embarrass the management to such
extent. The Labour Courts and Tribunals cannot mechanically use the words 'the punishment
being disproportionate to the charges'. As observed by the Supreme Court of India unless the
Labour Court finds the punishment to he highly disproportionate to the charges, the Labour
Court should not interfere. Having found the 2nd Respondent guilty of the charges, while
exercising the function of imposing a punishment, the Labour Court is in fact in the position of
management and the sentiments expressed by the management, when they terminated the
services of the 2nd Respondent have to be kept in mind and different principles will not apply to
Labour Court while determining the punishment to he awarded to the guilty worker ..... In this
case, the first charge relates to negligence in the performance of duties, causing considerable
embarrassment to the management. This charge by itself may amount only to loss of confidence,
but the second charge relates to dishonesty and temporary misappropriation. It was sought to be
argued that temporary misappropriation cannot he equated to theft. But the intention the worker
and his general attitude are visible from the proof of the said The third charge relates to the
demand'of bribe of Rs. 100/-. This is a very serious charge and could undermine the very
reputation of the management. When the Court is faced with three charges, all of which have
been proved by evidence adduced before the Labour Court itself, it would be improper to have
an misplaced sympathy in favour Of the worker. The question of rehabilitation would only result
in the destructioil of discipline and morality in the entire !factory. Section 11A of the Act was
not certainly intended to cause such an embarrassment to the management ..... The award of
Labour Court set aside and non-employment of employee is held to be justified."

20. We shall now consider the authorities cited by the learned counsel for the 2nd
Respondent/workman. First he relied on the decision reported in (1973-I-LLJ-278)(SC) and he
referred to paragraphs 27, 28, 29 and 33 particularly in the said judgment. We have already, held
and exhaustively referred to the evidence and the various fmdings rendered by the Labour Court
while adjudicating the dispute relating to dismissal and held that a proper enquiry was held by
the employer and the finding of misconduct is a plausible conclusion flowing from the evidence
adduced at the said enquiry. In the above judgment, the Supreme Court has laid down the
principles broadly emerged in cases like this. The Supreme Court has also observed in the said
judgment that the interference with the decision of the employer or the labour Court will be
justified only when the finding arrived at, at the enquiry is perverse or the management is guilty
of victimisation, unfair labour practice or mala fades. In our opinion, the learned counsel for the
2nd Respondent has not substantiated his contention that the fmding arrived at, at the enquiry is
perverse or the management is guilty of victimisation. Before imposing the punishment on the
2nd Respondent/workman, the appellant/management has conducted a proper enquiry in
accordance with the provisions of the Standing Orders and followed the principles of natural
justice. The enquiry was conducted in a proper manner and the Labour Court, on the evidence
adduced before it, has decided that the misconduct alleged is proved. In the above cited
judgment, the Supreme Court has categorically observed that once the misconduct is proved
either by an enquiry or by the evidence placed before a Tribunal, the punishment imposed cannot
be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest
victimisation. Therefore, in our opinion, in the instant case, there is no scope for interference
with the findings of the Enquiry Officer and of the Labour Court on the ground that it is
perverse.

21. Mr. K. M. Ramesh has cited another decision of a Division Bench of this Court rendered by
P. R. Gokulakrishnan and S. Nainar Sundaram, JJ (as they then were) in (1985-I-LLJ-46)
(supra), wherein the Bench held that any conclusion to be reached by Tribunals must be, on the
basis of acceptable evidence and such evidence must have some degree of definiteness even
though the Tribunals are not governed by the strict and technical rules of evidence. The Bench
has also held that if the Tribunal has rendered a finding based on no acceptable evidence, that
could be regarded as an error of law to be corrected by a writ of certiorari. There is no quarrel or
dispute over the proposition of law laid down by the Division Bencn. But, in this case, as already
noticed, the Labour Court has reached its conclusion on the basis of the evidence tendered before
it and there is no indefiniteness in the evidence adduced. On the other hand, the evidence
tendered by the witnesses and the documents marked on both sides are categoric in nature.
Therefore, this judgment will have no application to the facts and circumstances of the case on
hand.

22. In support of his contention that the gainful employment of the 2nd Respondent cannot he
put against him for compensation, Mr. K. M. Ramesh cited the decision reported in (1984-II-
LLJ-517) (SC). That was a case of the employee staying with his father-in-law and helping him
in his business for maintaining family during the period of unemployment. The Supreme Court
held that it is not a gainful employment and hence full backwages must be granted. The case on
hand is not one such. In this case, it has been clearly proved that the 2nd Respondent was having
an engineering work-shop under the name and style of Sri Ganapathi Enterprises and engaged in
the business of fabrication and manufacture of fancy grills, shutters, steel ses, water tanks and
concrete mixer machines. An enlarged copy of same was annexed to the affidavit filed in support
of the writ petition, and marked as Annexure 'A'. It is also further averred that the 2nd
Respondent had been supplying wooden packing cases to one of the concerns which is closely
associated with the appellant. He is having a lucrative business and the present litigation is being
pursued to cause embarrassment to the appellant. Under these circumstances, the award of
monetary compensation by the Labour Court Cannot be said to be wholly unjustified, in any
event, having regard to the fact that the 2nd Respondent is engaged in a lucrative business and as
more than 13 years have passed since the order of dismissal, as rightly contended by the learned
counsel for the appellant, any relief other than monetary compensation would not be in the
interest of ffle parties. The 2nd Respondent has not filed any reply to the counter affidavit filed
by the Assistant Manager, Personnel of the appellant
23. The decision reported in (1991-I-LLJ-291) (Mad) cited by the learned counsel for the 2nd
Respondent, deals with the quantum of punishment. That was a case of reinstatement converted
into monetary relief. The Court held that monetary relief should he fixed with reference to
position of reinstatement and present pay if reinstated.

24. The decision reported in (1992-I-LLJ-469) (SC) is also a case of reinstatement with
backwages. In that case, the order of termination of the employee's services was quashed.
Consequently, he was directed to be reinstated in service. The Court held that the employee shall
be entitled to the full backwages upto the date of his enrollinent as a lawyer and from the date of
his enrollment upto the date of reinstatement, he shall be entitled to the backwages at the rate of
half of the subsistence allowance per month. The above judgment will have no application to the
case on hand. As already stated, the above was a case of reinstatement with backwages.
Therefore, the Court ordered that the employee shall be entitled to full wages and other
consequential benefits.

25. In the instant case, the Labour Court after holding the 2nd Respondent/workman guilty of all
the charges, has, however, considered the payment of some lump sum compensation and flxed
Rs. 3,000/- as reasonable compensation. This was challenged by the workman in the Court. The
learned single Judge having held that it is an admitted fact that the workman was involved in a
proved misconduct of sleeping while he was on duty, has, however, interfered with the award of
the Labour Court and set aside the award of compensation of Rs. 3,000/-. We have already
observed that the learned Judge has simply set aside the award but has neither directed
reinstatement of the workman nor set aside the order of termination. The learned Judge has also
not indicated any substituted punishment. The order of the learned Judge is is totally without
jurisdiction. It is for this reason, the Writ Appeal preferred by the management against the order
of the learned Judge was admitted by this Court.

26. We have absolutely no doubt in our mind that the enquiry conducted by the Domestic
Enquiry Officer and the findings rendered by the Labour Court are fully justified on the facts and
circumstances of the case. Therefore, we have no hesitation in confirming the finding of the
Labour Court ordering dismissal of the 2nd Res-pondent from service. We are also fully aware
that carelessness on the part of any workman would justify a serious punishment. Equally, we are
conscious of the fact that once the Labour Court in exercise of its power under Section 11-A of
the Act, evaluates the gravity of the misconduct for the purpose of punishment to be imposed on
a workman and exercises its discretion, this Court, exercising jurisdiction under Article 226 of
the Constitution, in the absence of any important legal principle, should not undertake to re-
examine the question of adequacy or inadequacy of the materials for interference by the Labour
Court. However, the judicial discretion of this Court in enhancing the monetary Compensation is
not taken away and there is no bar for exercising such jurisdiction in the peculiar facts and
circumstances of the case. We, therefore, propose to exercise that discretionary power in this
case for the reasons to be stated infra.

27. It is not in dispute that the 2nd Respondent/workman was in gainful occupation for the last
13 years. He is running an engineers workshop and was earning income from his lucrative
business. He had 13 years of service to go in the year 1985. Under such circumstances, the award
of monetary compensation at Rs. 3,000/- by the Labour Court is too low. We are of the view, that
a compensation of Rs. 20,000/- is just and proper on the facts and circumstances of the case.

28. For the fore-going reasons, while confirming the order of the Labour Court dismissing the
2nd Respondent/workman from service, we enhance the lump sum compensation to Rs. 20,000/-
(Rupees twenty thousand only) to be paid to the 2nd Respondent/workman by the
appellant/management within two months from to-day. The Writ Appeal is ordered accordingly.
However, there will be no order as to costs. Consequently, C.M.P. No. 4174 of 1996 is dismissed
as no longer necessary.

CASE 8 : SUKHBIR SINGH VS UNION OF INDIA 1994

JUDGMENT Anil Dev Singh, J.

1. In this writ petition under Article 226 of the Constitution of India, the petitioner challenges the
order of the Central Government refusing to refer the Industrial Disputes raised by the petitioner
to the Industrial Tribunal.

2. The facts giving rise to this writ petition are as follows :

3. On August 14, 1970 the Syndicate Bank [for short 'Bank'], appointed the petitioner as a
temporary attender for a period of two months on a salary of Rs. 92/- with a special allowance of
Rs. 7/- and House Rent Allowance of Rs. 11/- per month. Pursuant to the order of appointment,
the petitioner join the service of the bank. By a written communication dated January 22, 1971
the Custodian of the bank in suppression of the earlier letter of appointment dated August 14,
1970 informed the petitioner that he had been appointed as a probationary attender to work at
Delhi - Mayapuri Branch of the bank form August 17, 1970 on a salary of Rs. 116/-, special
allowance of Rs. 10/-, HRA of Rs. 14/- and city compensatory allowance of Rs. 15 per month.
According to the said communication the appointment of the petitioner in the first instance was
on probation for a period of six months, which could be extended and on the expiration of the
period six months or the extended period, as the case may be, the petitioner could be confirmed
if his work and conduct were found to be satisfactory. The petitioner was further informed that
during the period of probation his services could be terminated by giving him one month's notice
or salary in lieu thereof. On February 16, 1971 the probation of the petitioner was extended for a
further period of three months. The memorandum extending the period of probation stated that
during this period, the work and conduct of the petitioner will be watched. On May 12, 1971 the
period of probation of the petitioner was again extended for a further period of 11 days as he had
availed of 11 days extraordinary leave from April 19, 1971 to April 29, 1971. The extended
period of probation came to an end on May 27, 1971. Since the probation of the petitioner was
not extended nor was he confirmed, his services stood terminated with effect from May 27, 1971.
Again on January 25, 1972 the bank once more appointed the petitioner as a probationary
attender at the Delhi-Shahdara Branch. But the appointment of the petitioner did not last for long
as his services were terminated by the bank on November 10, 1972. It is alleged by the petitioner
that a day prior to the said termination order viz. November 9, 1972 his wife sustained burn
injuries and on receipt of this information, he applied for leave from November 10, 1972 which
was not granted and instead his services were terminated by the Bank, the fourth respondent.
Thereafter, the petitioner on February 9, 1973 filed a representation to the Custodian of the Bank
against the order of his termination on the ground that the same was unfair, arbitrary and illegal.
The petitioner however, did not receive any reply thereto.

4. On April 25, 1973 the petitioner filed a statement of claim before the Assistant Labour
Commissioner in which it was urged that he was entitled to reinstatements with full back wages
and continuity of service. In reply the fourth respondent alleged that the performance of the
petitioner during the probationary period was not satisfactory; that he was not found suitable to
be absorbed in the permanent service of the bank; that the petitioner was also involved in a case
of gambling, for which a FIR was lodged against him on December 27, 1971; that in connection
with the alleged offence of gambling the petitioner was arrested and them let off bail and that in
view of these facts, the services of the petitioner were terminated on November 10, 1972 i.e.
before the expiry of the period of probation. By a communication dated 12th /13th June, 1973 the
Assistant Labour Commissioner (Central) cum Conciliation Officer under Section 12(4) of the
Industrial Disputes Act, 1947 (for short the Act) reported to the Central Government that the
dispute could not be resolved and the conciliation proceedings did not fructify in any agreement
between the parties. It was also pointed out that the suggestions were made to the parties "for"
reference of the dispute for adjudication" under the Code of Discipline or under the Industrial
Disputes Act, 1947 or for joint reference of the dispute to adjudication", but the fourth
respondents was not agreeable. The report of the Assistant Labour Commissioner (Central) was
received by the Government of India on June 13, 1972. The petitioner also by means of a written
request asked the Central Government to refer the dispute to the Industrial Tribunal for
adjudication. On July 26, 1973 the Government of India rejected the demand of the petitioner for
reference of the dispute to the Industrial Tribunal on the ground that the respondent was justified
in terminating his service during the probationary period in terms of conditions of his
appointment. Aggrieved by the decision of the Central Government, the petitioner filed another
representation claiming reference of the dispute to the Industrial Tribunal for adjudication. This
representation of the petitioner was also rejected by the Central Government on August 28, 1973.
Undaunted by the failure, the petitioner again filed a representation on November 28, 1973. On
January 2, 1974 he was informed by the Central Government that his representation was under
active consideration. However, on March 5, 1974 the Central Government intimated the
petitioner that there was no justification to revise the decision already conveyed to him.

5. Learned counsel appearing for the petitioner submits that the Central Government was not
justified in refusing to make a reference of the dispute to the Industrial Tribunal. He submits that
according to Section 12(5) of the Act Appropriate Government was bound to communicate to the
parties reasons for not making a reference. He contends that the order dated July 26, 1973
refusing to refer the dispute to the Industrial Tribunal is hardly a speaking order. His further the
contention is that the petitioner had also sought the reference on the ground that the action of the
fourth respondent was mala fide and the impugned order passed by the Government says nothing
about it. This dispute raised by the respondent could only be decided by the Industrial Tribunal,
submits the learned counsel. He further canvasses that the Central Government while stating that
the termination of the petitioner was justified had decided the dispute of merits which the Central
Government was not competent to do under Section 10 or Section 12(5) of the Act.

6. Learned counsel for the respondent, on the other hand submits that the order of the first
respondent dated July 26, 1973 does not suffer from any illegality whatsoever. According to the
learned counsel the Central Government was justified in coming to the conclusion that the
services of the petitioner were rightly terminated during his probation. He also contends that the
Central Government had given sufficient reasons for the refusal to refer the dispute to the
adjudication of the Industrial Tribunal.

7. I have considered the respective contentions of the learned counsel for the parties. It is well
settled that the Central Government acting under Section 10 or Section 12(5) of the Act has no
power to decide the merits of the controversy. The conciliation Officer found that there was a
dispute between the parties and attempts to arrive at an agreement between them had failed. In
view of this failure he reported the matter to the Central Government. The Central Government
refused the make a reference of the dispute to the industrial Tribunal for adjudication on the
ground that the fourth respondent was justified in terminating the service of the petitioner, he
being on probation.

8. The question as to whether the services of the petitioner were rightly or wrongly terminated by
the fourth respondent is a question which falls within the domain of the Industrial Tribunal being
a question which touches the merits of the controversy.

9. Under Sections 10 and 12(5) the Appropriate Government can only determine whether dispute
exists. It has no power to adjudicate the dispute. The power of adjudication is conferred only on
the Industrial Tribunal which is competent to render decision on the merits of the controversy
between the parties. The Government cannot delve into the merits of the case and encroach upon
the adjudicatory power of the Tribunal, while determining the question whether or not the
dispute exists for the purpose of making or refusing reference to the Industrial Tribunal. The
power to make or refuse reference under the aforesaid provisions does not confer the power to
adjudicate. But in exceptional cases on proper examination of the demand of the workman the
Government may refuse to make a reference if a stale claim is preferred or if the demand is
patently perverse or frivolous.

10. In the statement of claim of the petitioner dated April 25, 1973 filed before the Conciliation
Officer, his various representations and requests for reference of the dispute to the Industrial
Tribunal, is as specifically alleged by the petitioner that the termination of his services was made
in colourable exercise of power by the respondent and the action was mala fide. The respondent
in its comments on the representation of the petitioner filed before the Asst. Labour
Commissioner cum Conciliation Officer asserted that the action of the respondent in terminating
the services was a bona fide one and was taken in the interest of the bank. It was also averred
that the petitioner indulged in gambling and in this regard a FIR was lodged against him on
December 27, 1971. Besides, it was asserted that in view of this fact and also having regard to
the performance of the petitioner his services were terminated. Considering the respective stands
of the parties, it seems to me that a dispute between the parties did exist, which required its
adjudication on merits. It was a clear case of the petitioner that his services were terminated
when he applied for leave on the ground that his wife had sustained burn injuries and his
presence was required beside her. The questions raised by the petitioner before the Central
Government in connection with his demand for reference of the dispute for adjudication by the
Industrial Tribunal namely, whether the termination order was unfair, arbitrary and illegal, or
was actuated by mala fides or was made in colourable exercise of power are questions of fact
which can only be decided by the Industrial Tribunal and the Government cannot decide the
merits of the controversy. The impugned order dated July 26, 1973 says nothing about the plea of
mala fides and the other pleas of the petitioner. This by itself vitiates the order of the Central
Government. Moreover, whether the fourth respondent could have considered the alleged
incident of gambling, which occurred in December, 1971, for terminating the services of the
petitioner when it has re-appointed the petitioner second time on January 25, 1972 despite the
said incident, also required consideration.

11. In the M. P. Irrigation Karmachari Sangh v. State of M. P. and Anr. 1985 II CLR 10 the
Supreme Court observed that the Government should be very slow to attempt an examination of
the demand on merits with a view to decline reference. In this regard, it was observed as follows
:

"Therefore, while conceding a very limited jurisdiction to the State Government to examine
patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands
made by workman should be left to the Tribunal to decide. S. 10 permits appropriate
Government to determine whether the dispute exists or is apprehended and then refer it for
adjudication on merits. The demarcated functions are [1] reference, [2] adjudication. When a
reference is rejected on the specious plea that the Government cannot bear the additional burden,
it constitutes adjudication and thereby usurpation of the power of a quasi judicial Tribunal by an
administrative authority namely, the Appropriate Government. In our opinion, the reasons given
by the State Government to decline reference are beyond the power of the Government under the
relevant sections of the Industrial Disputes Act. What the State Government has done in this case
is not a prima facie examination of the merits of the question involved. To say that granting of
dearness allowance equal to that of the employees of the Central Government would cost
additional financial burden on the Government is to make a unilateral decision without necessary
evidence and without giving an opportunity to the workmen to rebut this conclusion. This
virtually amounts to a final adjudication of the demand itself. The demand can never be
characterised as either perverse or frivolous. The conclusion so arrived at robs the employees of
an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the
demand."

12. The appropriate Government, therefore, is precluded from considering the merits of the
dispute while deciding the question whether or not the same is to be referred to the Industrial
Tribunal under Section 10(1) or Section 12(5) of the Act, when prima facie the demand for
reference of the dispute is neither perverse nor frivolous.

13. There is another aspect of the matter as well. According to Section 12(5) of the Act, the
Appropriate Government, while rejecting the request for reference of the dispute to the Industrial
Tribunal is obliged to give reasons. In my view, merely stating that the action of the management
in terminating the services of the workman during the probationary period in terms of conditions
of service was justified, is not reason enough and falls short of the requirements of Sections 10
and 12(5) of the Act.

14. Having regard to the above discussion, the order of the first respondent dated July 26, 1973
refusing reference of the dispute to the Industrial Tribunal and its subsequent orders dated
August 28, 1973 and March 5, 1974, which were passed on the representation of the petitioner,
are erroneous in law.

15. The writ petition succeeds and accordingly, the orders dated July 26, 1973, August 28, 1973
and March 5, 1974 are hereby quashed. The Central Government is directed to reconsider the
matter and pass the order afresh under Section 10 or 12(5) of the Industrial Disputes Act
according to law. There will be no order as to costs.