w w w . L a w y e r S e r v i c e s . i n



Central India Machinery Manufacturing Co. Ltd. v/s State of Rajasthan & Others

    Civil Writ Petition Nos. 1722 & 1723 of 1981

    Decided On, 07 June 1982

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE N.M. KASLIWAL

    For the Petitioner: S.S. Ray, M. K. Sharma, Advocates. For the Respondents: B.L. Samdaria, Advocate, Ajay Purohit, Asstt. Govt Advocate.



Judgment Text

1. Both the above writ petitions are disposed of by one single order as they relate to identical facts and circumstances. In Writ Petition No. 1722/81 challenge has been made to a reference made by the State Government under S. 10 (1) read with S. 12 (5) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act)hhh of the disputes whether the lockout declared on 6-10-1980 was valid and whether it was valid on the part of the employers not to declare bonus to the employees at the rate of 15% for the year 1979-80. In Writ Petition No. 1723/ 81 challenge has been made to a reference made by the State Government of the dispute whether the termination of 69 employees who are represented by CIMMCO Workers Union (Citu), Bharatpur, was valid. By these writ petitions the employer Central India Machinery Manufacturing Company Ltd., Bharatpur (hereinafter referred to as the petitioner) has sought a writ of mandamus or any other appropriate writ, order or direction directing the State of Rajasthan to withdraw and/or cancel the order of reference made under section 10 of the Industrial Disputes Act and to forbear from taking any steps or action in pursuance thereof.2. Briefly stated the facts leading to these writ petitions are that the petitioner is a company having its registered office at Birla Nager, Gwalior. It has several divisions and one of such divisions is the Wagon and Structural Division at Bharatpur, which is engaged in the manufacture and supply of railway wagons and structurals. In the aforesaid wagon factory at Bharatpur there are about 2500 workmen and employees. The workmen of this Wagon factory have from time to time formed seven trade unions, all of whom are registered under the Indian Trade Unions Act, 1926. All the aforesaid seven Trade unions are respondents in the writ petitions from numbers 4 to 10. It may be mentioned that the dispute now between the petitioner and its employees is about the employees who are represented by CIMMCO Workers Union, respondent No. 10 (hereinafter referred to as the workers union). According to the petitioner the workmen of the Wagon factory raised certain demands in June, 1980 and the matter was referred to the Conciliation Officer for settlement. Some time in July, 1980, a settlement was arrived at in the course of conciliation proceedings and the terms of said settlement dated July 27, 1980 have been annexed and marked 'II'. According to the petitioner, the said memorandum of settlement had been signed by the petitioner and respondents Nos. 4 to 9, who were 6 trade unions and also by the Conciliation Officer. It is further alleged that a similar memorandum of settlement dated July 28, 1980 was also signed on behalf of the petitioner and the respondent No. 10, workers union. It may be mentioned at this stage that the respondent No. 10 workers union has denied the signing of the settlement dated 28th July, 1980 as alleged by the petitioner or presenting the same before the Conciliation Officer. The case of the petitioner further is that though all matters between the petitioner and the workmen of the Wagon Factory were settled in the course of conciliation proceedings, in spite of that, the Conciliation Officer did not send any report under S. 12 (4) of the Act. It is further allege that in spite of the settlement referred to above, some of the workmen of the Wagon factory aided and abetted by a large number of strangers indulged in committing various illegal and criminal acts in and around the Wagon factory. The workmen, inter alia, destroyed the properties of the petitioner and inflicted grievous injuries to various persons in the Wagon, factory. The grave and serious law and order situation compelled the petitioner to declare a lockout from Oct 6, 1980. In view of such criminal acts and large scale destruction of property, the petitioner was compelled to dismiss workmen who were guilty of criminal acts. According to the petitioner, the total number of the workmen dismissed was 58. In the beginning of Feb. 1981 the situation unproved and the petitioner lifted the lockout w. e. f. Feb 9, 1981. Since Feb 9, 1981 the production in the Wagon factory has been improving and still continues to improve from day to day. By a letter dated March 9, 1981, the workers union raised the demands to the Conciliation Officer, inter alia, on the following matters :(i) Wages during the period of the said lockout.(ii) Taking back the workmen on lifting of lockout who had been removed.(iii) 13 nus for the year 1979-80.According to the petitioner, no such demand was made with the petitioner either by the workers union or any of the workmen. On the basis of the demands contained in the said letter dated March 9, 1981, the Conciliation Officer commenced proceedings under S. 12 of the At. By a letter dated April 3, 1981, the petitioner gave a reply. While the Conciliation Proceedings were pending, direct negotiations took place between the petitioner and the workmen and it wag agreed that all matters raised by the said demand dated March 9, 1981 would be amicably settled between the parties without any reference to the Conciliation Officer or any other authority. However, in respect of take conciliation proceedings initiated, the Conciliation Officer submitted a failure report on April 21, 1981 to the State Government. In the said report, it was stated by the Conciliation Officer that none of the parties had appeared before him on various dates. According to the petitioner, the failure report dated April 21, 1981 given by the Conciliation Officer was misconceived, arbitrary, fanciful, without any basis and wholly illegal. The Conciliation Officer failed to apply his mind to the relevant matters and his report is vitiated because of the non-application of his mind to the questions and facts involved. The Conciliation Officer had not made any investigation as he was required to make under S. 12 (2) of the Act. Had he made such investigation, he would have ascertained and found that the petitioner and its workmen had agreed to settle the matter amicably among, themselves and, therefore, the conciliation proceedings had not followed but had become in fructuous. It is further alleged that in fact by a memorandum of settlement dated Aug 22, 1981 all demands raised vide letter dated March 9, 1981 were settled between the petitioner and the workmen. A copy of the memorandum of settlement dated Aug, 22, 1981 is annexed with the writ petition and marked Ex. IX. According to the petitioner, under the terms and conditions of the said memorandum of settlement dated Aug, 22, 1981, the workmen of the Wagon factory became entitled to substantial financial benefits which are, inter alia, as follows : -(i) each workman would get an ex gratis amount of Rs. 250/- on account of the of wages during the period of the said lockout.(ii) each workman of the Wagon factory would receive an additional amount of Rs. 207/- per month on account of the production target stipulated in the said memorandum of settlement dated Aug, 22, 1981 being achieved.In the said memorandum, it was further agreed that all disputes i. e. future disputes between the parties would be decided by joint committee to be constituted in terms of the said memorandum of settlement. According to the petitioner the said memorandum of settlement dated Aug, 22, 1981 has been implemented and acted upon and every workman of the wagon factory has received the said amount of Rs. 250/- and has also received and still continues to receive the said further amount of Rs. 207/- per month. It is further alleged that since April, 1981, there has been and there is now no dispute whatsoever between the petitioner and the workmen of the Wagon factory. Further, in order to enable the achievement of the production target stipulated in the said memorandum of settlement dated Aug. 22, 1981, the Deputy Secretary, Ministry of Labour and Employment, Government of Rajasthan has himself made orders under the Factories Act, 1948 permitting the workmen of the Wagon factory to work on Sundays. Further in terms of the said settlement a joint committee has also been constituted to deal with and settle any dispute that may arise in future. A provincial committee has also been constituted consisting of Shri V. N. Goenka, Shri Hajari Lal Sharma (who is General Secretary of Indian National Trade Union Congress), Jaipur and Shri Raghuveer Sarma Nirmal, who is Joint Secretary of Hind Mazdoor Sabha), Jaipur. The said provincial Committee has been constituted to deal with any matter which the said joint Committee is unable to decide. In the above circumstances, it is alleged that there has been and there is now no dispute between the petitioner and workmen. As regards the persons whose services have been terminated by the petitioner, it is alleged that they had indulged in illegal and criminal activities and constituted an undesirable violent element among the workmen and if the petitioner is compelled to take back the said persons industrial peace and harmony in the Wagon factory will again be irreparably disrupted and the Wagon Factory will be ruined. It is further alleged that various criminal proceedings are pending against each of the said persons whose services have been terminated in Criminal Courts at Bharatpur in respect of various offences including attempt, to murder, causing grievous injuries, criminal trespass, mischief and robbery. The persons whose services have been terminated are restrained by orders made by the District and Sessions Judge, Bharatpur on Aug, 6, 1980 from holding committees (meetings?) and from indulging in various undesirable activities. The said orders have been confirmed by the High Court and are still in force. Further orders have been made against some of the said persons under Sections 107 and 167, Cr. P. C., 1973. It is further alleged that on inspection of records of respondent No. 2, the Deputy Secretary, Ministry of Labour and Employment, Government of Rajasthan. the petitioner came to learn that on or about July 22, 1981, the respondent No.1 required the respondent No. 3, Labour Welfare and Conciliation Officer to give comments on the reasons why the conciliation proceedings had failed. On August 4, 1981 the respondent No. 3 replied and alleged that the conciliation proceedings had failed because the petitioner had not given any reply to the letter dated March 9, 1981. The petitioner states that the said reply given by the respondent No. 3 is false and patently erroneous. The petitioner has thus alleged that in face of the circumstances mentioned above, the State Government had no jurisdiction to make a reference under S. 10 (1) of the Act. The action of the State Government in making reference under the provisions of S. 10 read with S. 12 was thus arbitrary, illegal and ultra wires. The case of the petitioner is that when there was no industrial dispute in existence in the facts and circumstances mentioned above. the condition precedent for making an order of reference under section 10 of the Act did not exist. The order of reference has been made without application of emend either to the existence of any dispute or to the expediency of making such reference. The order has been made an extraneous and irrelevant consideration and by ignoring the circumstances that are relevant and material and as such the order being arbitrary, fanciful and without any basis, is liable to be quashed. By the impugned orders, State Government has sought to refer the disputes which have been already settled and/or abandoned.3. On a notice issued to the respondent Nos. 1 to 10 to show cause as to why the writ petition should not be admitted, the respondent No. 10 Workers Union has put in appearance and has filed a reply to the show cause notice. The Workers Union in the reply has alleged that the order of references is quite legal, just and valid. The reference has been made as the Conciliation officer had submitted the failure report and thereafter, the matter was fully considered and references, has been made after fully applying its mind. It is alleged that the respondent No. 10 Workers Union represented a majority of the workmen of the petitioner company. If a reference is made to a conciliation settlement dated 5-9- 70 where all the 7 trade unions and the petitioner agreed to accord recognition to the majority Union on the basis of secret ballots, it would be revealed that the Workers Union secured 1673 votes out of 2361 votes and it was declared as the only representative Union in accordance was the terms of the said conciliation agreement dated 5-9-78. No sooner the results of the secret ballots were out the petitioner company by letter dated 26-9-78 recognised the Workers Union as majority union for a period of 2 years. It is alleged that in view of these circumstances, the petitioner company was bound to settle all the disputes across the table with the workers union during the aforesaid period of two years. After the expiry of the period of 2 years no fresh secret ballots for recognising any other union has been held hitherto and the workers union still continues to be a recognised majority union. According to the Workers Union, a charter of demands was submitted by them to the petitioner on 26-6- 80. The demands included revision of pay scales, wage increase, revision of the rate of D. A., house rent allowance, rate of gratuity and leave facilities etc. These demands were of general nature, which affected all the workmen. As such, the other union also submitted their charter of demands. The charter of demands as submitted by the Workers Union was admitted into conciliation by the respondent No. 3, Conciliation Officer. In the meantime, the petitioner clandestinely entered into secret negotiations and llbld conclaves with respondents Nos. 4 to 9 at the back of the Workers Union who was the true representative Union. The petitioner company and respondents Nos. 4 to 9 entered into an agreement on 27-7-80 and manoeuvred with the conciliation officer to get it register as a conciliation settlement, at his house in the dead of night. The said settlement, according to the Workers Union is absolutely illegal and has no binding effect on the workmen of the company, as the workers union, who was true representative of the workmen, was not a party to it. According to them the charter of demands submitted by them on 26-6-80 still subsisted. It was emphatically denied that the workers union ever signed a similar settlement or represented before the Conciliation Officer or its President snatched away its copy or that the same was in their possession. The fact according to the workers union is that as the settlement with the non recognised and non-representative unions, was signed and registered, the petitioner brought undue influence, pressure upon the workers union and its office bearers to sign a similar settlement. The workers union suggested certain modifications, additions and alterations to enable it to sign similar settlement dated 27-7-80, but as the petitioner did not agree to such modifications, additions and alterations, no such settlement was signed by the Workers Union.4. In the backdrop of these circumstances, the industrial unrest continues and the agitation by its the members of the workers union continued to remain in existence. It is further alleged that the management of the petitioner company launched a campaign of vilification, victimisation and persecution of members of the workers union commencing from 5-6-80 to 4-10-80. It dismissed 69 workers without holding any enquiry. It also filed false reports with the police involving and implicating 100 workmen in false and bogus police cases. In majority of these complaints the police itself has given a final report and refused to register cases. In none of these cases filed before the court, any workman has so far been held guilty. In fact the City Magistrate, Bharatpur, has acquitted a few of the workmen in some cases. It is further alleged that various demands were raised by the workers union in their letter dated 9-3-81, which read as under :"1. Wages for the period of illegal lockout from 6-10-80 to 8-2-81."2. Reinstatement of all dismissed employees since 27-7-80."3. Wages to workers who were on duty but denied wages prior to lockout."4. Modifications in 27th July, 1980 settlement."5. Bonus for 1979-89 at 15%"6. Re-employment of labour under contract, not employed after lockout lifting.5. The above demands were taken and admitted into conciliation. According to the workers union, they are not in receipt of any reply ever submitted by the petitioner company on the aforesaid demands raised by them. No direct negotiations were held thereafter as alleged by the petitioner or any settlement was reached with the workers union. The failure report submitted by the Conciliation Officer was quite legal and fully justified. The petitioner company ought to have participated in the tripartite negotiations and conciliation proceedings in order to fully apprise the conciliation officer from day to day developments. This court in its exercise of extraordinary jurisdiction under Article 226 of the Constitution cannot go into investigation of facts. The report of the conciliation officer is explicitly clear that he had fully considered each and every aspect of the industrial disputes and had thereafter submitted the failure report for consideration by the Government. The workers union did not enter into any memorandum of settlement dated 22-8-81 as alleged by the petitioner. It is not at all signed by the workers Union. which had espoused the cause of workmen and was the recognised and only majority union. The so called settlement dated 22-8-81 has not been arrived at during the conciliation proceedings nor it is in accordance with any rules or law. It is further alleged that in any case, this settlement dated 22-8-81 does not settle any of the disputes raised by the workers union in its letter dated 9-3-81. It is not the jurisdiction of this court to go into the disputed questions of fact and it is the duty of the Industrial Tribunal to judge whether substantial financial benefit had been conferred upon the workers or not, particularly in the absence of any settlement signed by the wotiters union. According to the workers union, there still existed a dispute between the petitioner and their employees with regard to the demands raised in the charter of demands dated 9-3-81. It is also pleaded that the petitioner company hid an alternative adequate legal remedy before the Industrial Tribunal, where the company could place all the documents and advance arguments in order to determine the legality and justness of the reference order. The reference order itself shows that it had been made after careful consideration by the respondent No. 2 and after inviting comments from the conciliation officer.6. Mr. S. S. Ray, learned counsel appearing for the petitioner has mainly challenged the order of reference on the ground that there was no industrial dispute in existence and this being a condition precedent for making an order of reference u/s 10 of the Act, the order of reference made in the present case , is without jurisdiction. It is also agreed that the order of reference has been made on extraneous and irrelevant consideration and the important, relevant and material considerations have been ignored and as such also the order of reference is bad. It is contended that the State Government before making a reference should have applied its mind to the circumstances that all outstanding disputes and issues between the petitioner and the workmen of the Wagon factory had already been settled amicably and the factory was functioning smoothly and its production was increasing and the relations between the petitioner and its workmen were peaceful and harmonious. The impugned order of reference will result in disrupting the present peaceful and harmonious relations between the petitioner and its workmen and will introduce and create new disputes which did not exist. It is contended that even the conciliation officer did not apply his mind to the aforesaid facts and circumstances of the case and without making such investigation, submitted his failure report. The memorandum of- settlement dated August 22, 1981 has been implemented and acted upon and every workman of the Wagon factory has received an ex gracia amount of Rs. 250/- on account of loss of wages during the period of lockout and has also received an additional amount of Rs. 207/- p. m. on account of the production target stipulated in the said settlement dated Aug, 22, 1981. It is also argued that the petitioner had sent his reply to the conciliation officer on 3-4-81 to the demands raised by the Workers Union by their letter dated 9-3-81 and thereafter when both the parties did not appear before the conciliation officer, he should have applied his mind on the merits and should not have given failure report. It was further argued that no demand was raised by the workers union before the petitioner and merely raising a demand before the conciliation officer, cannot be considered as a dispute existing between the petitioner and its workmen for making a reference under section 10 of the Act. Reliance is placed on A. I. Sindu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujrat, AIR 1968 SC 529, and New Delhi Tailoring Mazdoor Union v. S. C. Sharma & Co. (P) Ltd. (1979) 39 Fac LR 195 (Delhi).7. On the other hand, it was contended by Mr. Samdiria, learned counsel for the Workers Union that the Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. The term means industrial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment or non-employment or terms of employment or with the condition of labour there comes into existence an industrial dispute. Even if an application is moved before the conciliation 'officer raising certain demands and the same are disputed by the employers, the industrial dispute comes into existence in fact and in these circumstances if the State Government takes a decision that there existed an industrial dispute the court cannot go into the question whether there was any material before the Government or about the sufficiency of such matter. The question whether a reference is to be made or not, is an administrative decision of the government, which is based purely on its subjective satisfaction and the court cannot go on the justifiability of such action. It is further argued that in the facts and circumstances of this case as mentioned in the reply, no settlement was ever arrived at between the Workers Union and the petitioner on any of the questions now sought to be referred by the State Government in the Order of Reference. Even according to the petitioner's own allegations there was no settlement arrived at between the parties with regard to the question of terminating the services of 69 employees whose cause has been espoused by the SIMMCO Workers Union. In the alternative, it is also contended that there was no ground or basis for rushing to this court by filing a writ petition under Article 226 of the Constitution of India, when the petitioner had a right to take all these pleas before the Industrial Tribunal. When efficacious alternative remedy is available to the petitioner, the writ petitions are liable to be thrown out on this ground alone. Mr. Samdaria placed reliance on, Udaipur Cotton Mills v. Suti Mill Mazdoor Union 1980 Lab IC 1207, Raj and Shambhu Nath v. Bank of Baroda, AIR 1978 SC 1088 .8. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. It would not be necessary for me to go for the events happening prior to the lockout declared on Oct. 6, 1980, and lifting the same w. e. f. Feb. 9, 1981, as in my opinion the events happening thereafter" are sufficient for disposal of these writ petitions. I am also not dealing with the events prior to 6th Oct. 1980 as the petitioner-has alleged that a memorandum of settlement had been arrived at on July 27, 1980, which was not only signed by six unions representing the employees but was also signed by the Workers Union on July 28, 1980. The signing of such settlement dated July 28, 1980 by the Workers Union is emphatically denied by the Workers Union in their reply and this being a disputed question of fact, cannot be decided by this court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution. It is also pertinent to mention here that demands were raised by the workmen some time in July, 1980 and the matter was pending before the conciliation officer but the alleged settlement dated 27th and 28th July, 1980 were not accepted by the conciliation officer nor any report was submitted by the conciliation officer, on the basis of such agreement as contemplated u/s 18 of the Act.9. Be that as it may, it is apparent that the demands now raised by the Workers Union in their letter dated 9-3-81 submitted before the conciliation officer, were not and could not have been considered in the alleged settlement of July, 1980. The Workers Union in its letter dated 9-3-81 had raised the demands mainly on the grounds that the employees were entitled to full wages for the entire period of lockout i. e. 6-10-80 to 8-2-81, the employees whose services were terminated from 27th July, 1980 and onwards should be reinstated with full back wages and the employees should be given bonus at the rate of 15% for the year 1979-80. These demands were raised by the CIMMCO Workers Union and find mention in the Annexure VI dated 9-3-81 addressed to the Labour Welfare and Conciliation Officer which has been annexed by the petitioner with the writ petition. The petitioner has taken the stand that the demands raised in this letter were never sent to the petitioner but the stand of the workers union is that a copy of this demand was also sent to the petitioner. Even if, for arguments sake it may be accepted that no such demand was made with the petitioner directly by the Workers Union before submitting an application to the Conciliation Officer, it will not make any difference in the facts and circumstances of this case, for the reasons I am presently going to discuss. The petitioner themselves have placed on record Annexure VII dated, 3rd April, 1981, which is a reply sent by the Petitioner to the Conciliation Officer and which clearly makes a mention of the subject matter as demands raised by the CIMMCO Workers Union by their letter dated 9-3-81. This reply is admitted by the petitioner to have been sent by them to the Conciliation Officer. In this reply dated 3-4- 81, the petitioners have refused to meet the demands made by the workers union and have disputed the correctness and the justifiability of such demands. This clearly goes to establish that the petitioner had at least received notice of the demands raised by the Workers Union by their letter dated 9-3-81, when the matter had come for consideration before the conciliation officer. In Udaipur Cotton Mills v. Suti Mill Mazdoor Union (1980 Lab IC 1207) (Supra), a Division Bench of this Court considered the question whether it was the bounden duty of the workmen to have made a demand for reinstatement from the management before taking the matter to the Conciliation Officer and in case, this is not done whether the reference becomes incompetent. The Bench considered the case of the Delhi High Court in Fedders Lloyd Corporation (Pvt) Ltd v. Lt. Governor, Delhi, AIR 1970 Delhi, 60, in which a view had been taken that decision of the Supreme Court in Sindhu Resettlement Corporation (P) Ltd v. Industrial Tribunal of Gujarat (1968 Lab IC 526 (Supra), had finally established the proposition that a demand by the workmen must be raised first on the management and rejected by them before an industrial dispute can be said to arise and exist and that the making of such demands to the Officer and its communication by him to the management, who reject the same as not sufficient to constitute an Industrial dispute, The Division Bench while dealing with the judgement Court in Sindhu Resettlement Corporation (P) Ltd. v. Industrial Tribunal of Gujarat, (Supra) distinguished that case by marking following observation (at . P. 1209) :-"In our humble opinion, the judgment of the Supreme Court in Sindhu Resettlement Corporation v. Industrial Tribunal of Gujrat, should be read in the background of the facts and circumstances of that case. The question whether on industrial dispute exists on the date of the reference is a question of fact to be determined on' the material placed before the Tribunal. In that case the employer contended that the demand raised before the employer was about retrenchment compensation and not about reinstatement of the retrenched workmen and, therefore, the Government was not competent to make a reference as if the demand was one for reinstatement. The demand which was referred to the Tribunal was whether Shri R. S. Ambuancy should be paid his wages from February 21, 1950. On the basis of the evidence the Supreme Court held that the retrenched workmen in their claim put forward before the management of the employer requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. In these circumstances the Supreme Court held that only reference will be the Government could have made had to be related to the payment of retrenchment compensation which was the only subject matter of dispute between the appellant and the respondents and therefore, the reference to the extent of adjudication for reinstatement was held to be incompetent. Thus it is clear that the decision in , the Sindhu Resettlement Corporation (Supra) truned purely on the facts on that case."It was further held that the application before the Conciliation Officer was clearly a representation questioning the decision of the management dismissing the workman for service and praying for reinstatement. When the Union approached the Conciliation Officer, the management appeared and contested the claim for reinstatement. That must clearly be constituted as a demand for reinstatement addressed to the employer and nothing else. There was thus unimpeachable evidence that the concerned workman demanded his reinstatement from the management. If in the background the Government came to the conclusion that there there exited a dispute concerning a workman and it was an industrial dispute because there was a demand for reinstatement and a reference was made, such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did not come into existence. Reliance was also placed on the decision GL the Supreme Court in Sambhu Nath Goyal v. Bank of Baroda's case (1978 Lab IC 961), (Supra) where, when the enquiry was held, the workman appeared and claimed reinstatement and after his dismissal he preferred an appeal to the appellate forum and contended that the order of dismissal was wrong, and in any event he should be reinstated in services and the appeal itself is a representation questioning the decision of the management dismissing the workman from service and praying for reinstatement. It was further observed that when the Union approached the Conciliation Officer and the Management appeared and contested the claim for reinstatement, it must be held to be an unimpeachable evidence that the workman persistently demanded reinstatement. In these circumstances, it was observed that there existed an industrial dispute because there was a demand for reinstatement. The learned Judges of the Division Bench of this Court thus held that the decision of the Supreme Court in Sambhu Nath Goyal's case (Supra) applied with full force to the facts and circumstances of the case before them and in this view oaf the matter they found themselves unable to subscribe to the view taken by the Delhi High Court in Fedders Lloyed Corporation (P) Ltd. v. Lt. Governor, Delhi, (1970 Lab IC 421).10. Mr. Ray had also placed reliance on a decision of a decision of Delhi High Court in New Delhi Tailoring Mazdoor Union and S. C. Sharma (P) Ltd. (1979-39 Fac LR 195) (Supra.) In the above ,came the New Delhi Tailoring Mazdoor Union challenged by way of writ petition the award dated I1th March, 1969 made by the Industrial Tribunal, Delhi. By a letter dated 4th Dec. 1961, sent by the contractors through the New Delhi Trade Employees Association, following demands were raised before the conciliation officer :"This is to bring to your kind notice that the workmen of the above mentioned concern had been in the employ of the above management for a long period on piece rate basis as tailors. These workmen had put forward certain demands before the management some time back. But the management instead of meeting the demand have locked out the concern quite illegally and unjustly w. e. f. 2-12-61. This arbitrary and unwarranted action of the management have greatly agitated the minds of all the tailors all over Delhi.You are requested to kindly intervene immediately before the situation goes out of control. Hoping for speedy consideration and thanking you."The Industrial Tribunal held that it was clear that the demand for lifting of a lockout did not contemplate, the alleged illegal termination of the services of the concerned workman. In the above facts and circumstances, Delhi High Court in the above case took the view that it was obvious that the demand which was covered by the reference was neither made in the telegram of 2nd Dec. 1961 nor in letter by the Association to the Conciliation Officer. Even in the statement of the claim, same position was reiterated on behalf of the workmen of the Association. The application dated ?rd April, 1962 and the letter of 3rd April, 1962 to the Conciliation Officer, wherein a contention was alleged to have been made to the effect that it was not a case of lockout but a case of termination of services was not brought to the notice of the management. The file of the Conciliation Officer was summoned to ascertain, if the copies of the documents have been handed over to the management or it had knowledge of the same. There was nothing to indicate that the management had been apprised of the alteration. The conclusion thus arrived .at was, that the demand of the workmen with the management was only for lifting of the lockout which had been declared by the employer so that the workmen could go back and work in the factory. In these circumstances, Delhi High Court placed reliance on the decision of the Supreme Court in Sindhu Resettlement Corporation (P) Ltd. Case 1968 Lab IC 52(b) (Supra) and held that the reference was not competent as the demand with regard to wrongful termination of workers was not raised.11. The above case renders no assistance in the case before me. The facts of New Delhi Tailoring Mazdoor Union case clearly show that no demand was raised even before the Conciliation Officer, regarding illegal termination of the services of the concerned workmen and in these circumstances, no such dispute could have been referred as an industrial dispute, by the Government. However, the facts of the case in consideration before me prove beyond any manner of doubt and. unimpeachable evidence on record that a demand was raised by the Workers Union in their application dated 9-3-81 before the Conciliation Officer and the same was disputed as illegal and unjustified by the petitioner in their reply submitted before the conciliation officer on 3-4-81. I am thus, clearly of the view that the reference made by the Government to the Industrial Tribunal is of disputes on which parties are at variance and it cannot be said that no such demand was ever made with the petitioner so as not to afford any jurisdiction to the State Government to make all reference under S. 10 of the Act.12. I do not find any force in the arguments advanced by the learned counsel for the petitioner that in view of the reply sent by the petitioner on 3-4-81, to the demands raised by the Workers Union, the Conciliation Officer could not have given failure report specially when both the parties did not appear before him. The order of the Conciliation Officer Annexure VIII dated 21-4-81 shows that the comments of the management i. e. petitioner were sought on the complaint filed by the workers union dated 9-3-81 and both the parties were called for negotiations on 31-3-81. As both the parties were absent on that date, the talk for negotiations was adjourned to 3-4-81. On 3-4-81, representatives of the workers union were present but nobody came from the side of the management. The case was then adjourned to 13-4-81, on which both the parties remained absent and then the case was again adjourned to 20th April, 81 on which date also both the parties remained absent. In these circumstances, the Conciliation Officer submitted a failure report. There was reply sent by the petitioner dated 3-4-81 by which it had not agreed with the demands and as such their was no option left with the Conciliation Officer except to make a failure report. It cannot thus be said that there was no material on record to submit a failure report. It was a clear case- where no settlement had been arrived at in the course of conciliation proceedings and the order Annexure VIII dated 21-4-81 does not suffer from any illegality.13. As regards the power of the appropriate Government to make reference under section 10 of the Act, it is the subjective opinion of the appropriate Government that any industrial dispute exists or is apprehended. In Shambhu Nath Goyal v. Bank of Baroda (1978 lab IC 961), (Supra), the Hun'ble Supreme Court while referring to the language of Section 10 (1) pointed out that power conferred on the Government by this provision to refer the dispute can b

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e exercised only when there was an existing or apprehended industrial dispute. From the material placed before it, the Government reaches an administrative decision whether there exists an existing or apprehended, industrial dispute. In either events it can exercise its powers under this section. But in making the order of reference, the Government is doing an administrative act and the fact that it has to form an opinion as to factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. Thus the jurisdictional facts on which the appropriate Government may act, are formation of an opinion that an industrial dispute exists or is apprehended which undoubtedly is a subjective one, the next step of making reference is an administrative act of the Government as the expression is understood in contradistinction to judicial or quasi judicial function. The adequacy or the sufficiency of the material on which the opinion is formed, is beyond the pale of judicial scrutiny. If the action of the Government in making reference is impugned by a party, it would be open to such a party to show that what was referred was not an industrial dispute and that the tribunal had no jurisdiction to make award. But if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the court to hold the reference back and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government, on which it could have come to an affirmative conclusion on these matters.14. Mr. Ray, learned counsel for the petitioner also contended that no reply has been filed to show cause notice by the State Government and as such the contention of the petitioner that the appropriate Government did not apply its mind, should be taken to be correct.15. I see no force in this contention. Learned Assistant Government Advocate, Mr. Ajay Purohit appeared on behalf of the State of Rajasthan and adopted the arguments advanced by Mr. Samdaria, learned counsel for workers union. That apart Annexure X dated 11-5-81 (Sic) by Secretary to the petitioner and the workers union clearly makes a mention that the Government had received the failure report sent by the Conciliation Officer and vide Annexure XI, the petitioner had sent a reply on May 29, 1981 to the Deputy Secretary of his letter Annexure X dated May 11, 1981. The petitioner in that letter had mentioned that there was no subsisting dispute and as such it was requested not to take any further steps. Thereafter the State Government passed an order making reference u/s 10 of the Act in which it has been clearly mentioned there because the Conciliation Officer, Bharatpur had submitted a failure report and the State Government, after taking into consideration the aforesaid report, was satisfied that it was a fit case for making a reference. From a perusal of the aforesaid order, it is clear that there was material on record and it cannot be said that the State Government took into consideration any extraneous matters and this court cannot go into the sufficiency of the matter or propriety of such opinion, which is a subjective satisfaction of the Government.16. Apart from the above discussion. there is aspect of the case that reference has yet to be decided on merits by the Industrial Tribunal. The petitioner is entitled to raise all the contentions before the Industrial Tribunal, which have been raised in this writ petition. The Tribunal can go into disputed questions of facts as well and is an appropriate forum for even deciding the question whether any industrial dispute existed or not. There being an adequate and efficacious remedy available to the petitioner, on this ground also the petitioner does not deserve any interference by this Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution.17. In the result, I find no force in these writ petitions and the same are dismissed with costs to the contesting respondent workers union.
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