Bombay High CourtBharat Petroleum Corporation ... vs H.N. Thadani, Asstt. Commissioner Of ... on 9 October, 1990Equivalent citations: 1991(2)BOMCR364JUDGMENT
 

S.M. Daud, J.1. The 1984 petition afore-mentioned stands supplanted by the 1987 petition in view of a change in the law.2. The Bharat Petroleum Corporation Ltd. being a respondent in both the petitions has employees in the blue-collar as also white-collar varieties. The petitioner-Union represents the employees in the matter of labour disputes and wage settlement etc. The employer had on its roll a number of workmen who were continued as temporary employees. This apart, the employer wanted to retire the blue-collar employees on their attaining the age of 55 years, whereas the white-collar employees were to be continued in employment upto their attaining the age of 58 years. The refusal to grant permanency to temporary employees and the discrimination made in the ages of retirement between manual and mental workers exercised the minds of employees. They showed their resentment in various ways and on 16-1-1982 the Corporation's management came out with a notice proclaiming a restraint upon workmen alleging that these persons had gone on an illegal strike. The petitioner-Union took exception to the notice contending that the resentment of the workmen had been manifested in a spontaneous demonstration which did not amount to a strike. In fact, using the demonstration as an excuse the Corporation had chosen to lock-out the workmen which lock-out was in contravention of the law. Eventually, wiser Counsels prevailed upon both the parties and a settlement was reached between the Corporation on the one hand and its employees represented by the petitioner-Union on the other. The resultant settlement was recorded in the form of a Memorandum and the settlement was described as an instrument falling under section 12(3) read withsection 18(3)of the Industrial Disputes Act, 1947(ID Act). Para 2.2 of the Memorandum, to the extent relevant, read as follows:-"In consideration of the Union's,a) Entering into an abiding by this settlement for the period hereinafter stated,b) undertaking not to raise or pursue, during the period of this settlement, any demand involving directly or indirectly any financial commitment on the part of the Com pany in respect of permanent labour workmen,c) ....d) ....e) undertaking to resume normal duties immediately, the Company will grant benefits to the workmen, as hereinafter set out."Pare 6.1 of the Memorandum said -"This settlement shall be in force for a period of four years effective from 1-1-1982 and shall continue to remain in force after that period till such time as it is terminated in accordance with the provisions ofsection 19of the Industrial Disputes Act, 1947."Matters came to normalcy and on 24-11-1982 the Union addressed a demand to the Corporation in these words:-"All employees who were in the payroll of the Refinery on the 15th January, 1982, and continued to be on the payroll of the Refinery on 17th June, 1982 shall be paid all the wages, including Basic, D.A. , Shift Allowance etc. for the period 15-1-1982 to 17-6-1982 immediately."The Corporation was called upon to consider the demand and give its response early. The Corporation did not and therefore the Union approached the State Government, that Government then being the appropriate Government within the meaning ofsection 10of the ID Act. The Union wanted the State Government to make a reference of the dispute raised by it. The Assistant Commissioner of Labour on 26-4-1984 gave a reply expressing his dis-inclination to intervene in the matter. The Union took the matter to the Commissioner of Labour and that Officer on 16-6-1984 sent a reply to the Union. In this reply an attempt was made to explain the cryptic order of the Assistant Commissioner of Labour. Briefly, the Commissioner of Labour pointed out that the Union despite the providing of a full opportunity had failed to furnish evidence of an alleged lock-out by the Corporation, and next, that the demand appeared to be precluded by certain terms of the settlement. This, according to the Commissioner, left the Assistant Commissioner with no alternative but to decline intervention. The decisions of the Assistant Commissioner and the Commissioner are assailed in the 1984 petition, it being the Union's contention that the two Officers had arrogated to themselves a function falling exclusively with the domain of adjudicatory bodies. The petition was admitted and during its pendency the Petroleum industry was declared as a controlled industry. As a consequence, the appropriate Government for the purposes ofsection 10of the ID Act, was the Central Government and that is why Writ Petition No. 3870 of 1987 has been filed. This petition was also filed after a refusal by the Central Government to make a reference. The reasons for the Central Government's refusal are set out in its communication dated 12-10-1987. The relevant portion from that letter is as follows:-"I am directed to say that it is reported that the management had not declared any lockout in the establishment during the period in question, but they were forced to put a halt to the process operations for security reasons as the workmen abstained from work, which resulted in a serious situation. It is further reported that a few of the employees, who were not on strike during the period in question were paid their due wages, which shows that there was no lock-out. It is also found that the dispute is highly belated inasmuch as it has been raised after a lapse of about 5 years without giving any justification for delay. The Central Government is, therefore, of the opinion that there are prima-facie no grounds for reference of the dispute for adjudication by a Tribunal."Again, the petitioner-Union complains of a non-application of mind and usurpation of jurisdiction by the Central Government which jurisdiction is vested exclusively in adjudicatory bodies.3. The Corporation in its return contends that the dispute raised by the Union was covered by the Memorandum of settlement. That being the position, a dispute neither existed nor could be apprehended. The demand raised by the Union was perverse and/or frivolous. The refusal to make a reference in respect of such a demand was perfectly justified and could not be said to be an act in excess of jurisdiction. Alternatively, the Government of India could be directed to give a proper reasoning for refusing to make reference, and this, in case its communication dated 12-10-1987 was found to be deficient in any respect whatsoever. A third alternative suggested by the Corporation's Counsel is that the issue of demand raised by the Union being precluded by the settlement, be left to be re-agitated before an adjudicatory body if a reference is made to it.4. So far as the legal position is concerned,section 10of the Id Act provides for an appropriate Government making a reference by order in writing provided it be of opinion that any industrial dispute "exists or is apprehended". Doubtless as the power vested in the appropriate Government bysection 10of the Id Act is, the same is not a licence to do what it likes. It has to ascertain the existence or otherwise of a dispute and this confers on it a very limited jurisdiction.InBombay Union of Journalists v. State of Bombay, , the Court held:-"But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised undersection 10(1)read withsection 12(5)or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not....... Similarly on disputed questions of fact, the appropriate Government can not purport to reach final conclusions, for that again would be the province of the Industrial Tribunal."The above decision was quoted with approval in theM.P. Irrigation Karmachari Sangh v. State of M.P. and another,  and the ratio culled therein was stated in these words :-"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 workmen should be left to the Tribunal to decide.Section 10permits appropriate Government to determine whether 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 therefore, 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 a reference are beyond the powers of the Government under the relevant sections of theIndustrial Disputes Act. What the State Government has done in this case is not a Prima-facie examination of the merits of the question involved."Tested in this light can it be said that the authorities of the Central Government and the State Government exercising the power conferred undersection 10(1)of the ID Act have strayed beyond the limitations placed upon them? The Commissioner of Labour's attempt to supply the deficiencies in the refusal of the Assistant Commissioner of Labour contain only one ground viz. the existence and continuance of the Memorandum of settlement which precluded the raising of and therefore consideration being accorded to the demand raised by the Union. That this can be a legitimate ground for refusal to make a reference is sought to be supported by the Counsel representing the Corporation by certain observations made in the judgement of the Supreme Court in the case ofBarauni Refinery Pragtisheel Shramik Parishad v. Indian Oil Corporation Ltd., 1990 (II) C.L.R. 207. Let it be first made clear that this was not a decision arising from a reference or, refusal to make a reference undersection 10(1)of the Id Act. The portion relied upon reads thus:-"It may be seen on a plain reading of sub-sections (1) and (3) ofsection 18that settlements are divided into two categories, namely, (i) those arrived at outside the conciliation proceedings and (ii) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all parties to the industrial dispute, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. Therefore, a settlement arrived at in course of conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement, but also on others. That is why a settlement arrived at in the Court of conciliation proceedings is put on par with an award made by an adjudicatory authority. The High Court was, therefore, right in observing; "when the settlement had been arrived at between the workmen and the company and which is still in force, the parties are to remain bound by the terms of the said settlement. It is only after the settlement is terminated that the parties can raise any dispute for fresh adjudication".Mr. Kapadia on the basis of the above observation, in particular the last line of the first quote from the judgement, contends that the Memorandum of settlement effectively decided all pending disputes between the employer and employees, that the settlement was to be in force for four years effective from 1-1-1982 and that during its continuance, the employees were precluded from raising a demand which was raised by them earlier and which must be deemed to have been considered and decided one way or the other by the terms of the Memorandum. For that reasons, it could not be said that an industrial dispute either "existed or was apprehended". The condition precedent for the making of a reference being non-existent, the appropriate Government was right in declining to make a reference. The matter is not as simple as learned Counsel wants it to be understood. Careful examination of what preceded the so-called strike or lock-out will have to be made. This will require recording of evidence. Next, correspondence exchanged between the parties prior to commencement of conciliation proceedings will have to be gone through. Thirdly, the Memorandum of settlement will have to be scruntinised. Then only will it be possible to say whether or not the demand raised by the Union could not give rise to conditions precedent for the making of a reference undersection 10of the ID Act. The grounds given by the Government of India include two which are clearly something in the nature of a usurpation of the jurisdiction vested in an adjudicatory body. In the communication of the said Government, a conclusion has been reached that there was no lock-out. This was trespassing into territory outside the reach of administrative bodies. The other reason given in the Government of India's communication is patently an instance of non-application of mind. The reason given is the gross delay in the raising of the dispute by about five years and without there being any explanation to justify the delay. In the representation which the Union made to the Central Government, a detailed explanation as to the stages preceding the approach to the said Government was given. This included the approach made to the State Government, its refusal to accede to the said request and the pendency of the petition challenging the State Government's decision. It could not therefore be said that the approach made for getting a reference initiated was belated, much less that the delay was unexplained. The approach to the Central Government was on account of a pendente-lite change in the appropriate Government vis-a-vis the petroleum industry. Therefore the approach to the Central Government was neither belated nor was the delay unexplained.5. Mr. Kapadia's request that the order passed on 12-10-1987 be set aside with a direction to the Central Government to give proper reasons to explain its decision cannot be acceded to. The matter has been already delayed and endless opportunities to the government to make good their deficiencies, do not really solve any problem.6. Mr. Gadkari takes exception to the third alternative proposed by Mr. Kapadia viz. making it clear that the Memorandum of settlement precludes the Union from raising the demand for which it wanted a reference undersection 10of the ID Act. This will be an important issue to be decided by the adjudicatory body to whom a reference will be made. It will therefore be best not to say anything which may unwittingly influence the adjudicatory body in the making of an award. The matter will be considered by the said body upon the appropriate Government making a reference as required by law. Hence the order.ORDER
 

Writ Petition No. 2031 of 1984 does not survive and the rule issued therein is hereby discharged.In the 1987 petition the impugned order dated 12-10-1987 is hereby quashed and the first respondent viz. the Union of India, directed to make a reference as sought by the petitioner -Union. The adjudicatory body to whom the reference will be made shall consider all questions, allied and incidental, to the determination of the dispute. Rule in these terms made absolute, with parties being left to bear their own costs.