2013(7) ALL MR 72
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
A.P. LAVANDE AND U.V. BAKRE, JJ.
The Goa Port & Dock Workers Organisation Vs. M/S. Menezes & Sons & Ors.
Writ Petition No. 597 of 2012
17th December, 2012
Petitioner Counsel: Mr. Shivraj Gaonkar
Respondent Counsel: Mr. H.D. Naik,Mr. C.A. Ferreira
Industrial Disputes Act (1947), Ss.10, 12(5) - Power to make reference - Is administrative and not judicial or quasi-judicial - Whether retrenchment was legal or not is not for the Government to decide but for the authorities under the Act to decide.
Cases Cited:
Workmen of Syndicate Bank, Madras Vs. Government of India and another, 1986 (supp) SCC 483 [Para 5,8]
Sarva Shramik Sangh Vs. Indian Oil Corporation Limited, 2009 ALL SCR 1694 : (2009) 11 SCC 609 [Para 7,8]
JUDGMENT
A.P. LAVANDE, J. :- Heard Mr. Gaonkar, learned Advocate for the petitioner, Mr. H.D. Naik, learned Advocate for respondent no.1 and Mr. C.A. Ferreira, learned Assistant Solicitor General for respondent nos. 2, 3 and 4.
2. Rule. By consent heard forthwith.
3. By this petition, the petitioner challenges the communication dated 22/6/2012 issued by respondent no.2 on behalf of respondent no.2 by which respondent No. 4 has refused to refer the dispute arisen between the parties for adjudication.
4. According to the petitioner, some of members of the petitioner's organization, were illegally terminated by respondent no.1 vide communication dated 09/02/2011. The petitioner raised dispute. Thereafter, Conciliation Proceedings were held between the petitioner and the respondent no.1 by Conciliation Officer under section 11 of the Industrial Disputes Act, 1947 ('the Act', for short). The Conciliation Officer submitted failure report to respondent no.4 on 20/10/2011. By communication dated 22/06/2012 respondent no.2 informed the petitioner and respondent no.1 that respondent no.4 did not consider the dispute fit for adjudication for the following reason:
"The Management has complied with the provisions of law applicable to the workmen before retrenching their employment and the legal dues as per the provisions of ID Act, 1947. Hence, the dispute is not deemed fit for adjudication."
5. Mr. Gaonkar, learned Counsel for the petitioner submitted that under Section 10 of the Industrial Dispute Act, 1947 a limited discretion is vested in the appropriate Government while refusing to make reference in respect of dispute arisen under the Industrial Dispute Act, 1947 and ordinarily, it is for the authorities under the Industrial Dispute Act, 1947 to adjudicate the dispute between the parties and the appropriate government in the guise of refusing to make reference cannot adjudicate the dispute between the parties which is the function of the Industrial Court or Tribunal. According to Mr. Gaonkar, this proposition has been laid down by the Apex Court in a catena of decisions starting from Workmen of Syndicate Bank, Madras V/s. Government of India and another [1986 (supp)Supreme Court Cases 483]. Mr. Gaonkar therefore submitted that the impugned communication deserves to be set aside and respondent no.4 be directed to reconsider the matter afresh and pass appropriate order.
6. Mr. C.A. Ferreira, learned Assistant Solicitor General appearing for respondents no.2, 3 and 4 left the matter to the Court.
7. Mr. H.D. Naik, learned Counsel appearing for respondent no.1 placed reliance upon para 36 of the Judgment in the case of Sarva Shramik Sangh V/s. Indian Oil Corporation Limited, (2009) 11 Supreme Court Cases 609 : [2009 ALL SCR 1694], in which it has been held that the power exercised by the appropriate Government under Section 10(1) of the Industrial Dispute Act, 1947 is an administrative function and not a judicial or quasi-judicial function and while performing administrative function the Government cannot delve into merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. In exceptional cases the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. The Apex Court further held that the Government should be very slow to attempt an examination of the demand with a view to decline reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid dispute and to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory.
8. In our considered opinion having regard to reason given by respondent no.4 for refusing to make reference it cannot be said that exceptional circumstances have been made out for refusal to make reference by the appropriate Government in respect of the dispute raised by the petitioner. Whether the retrenchment was legal or not is for the authority under The Act to adjudicate and not for the appropriate Government. Therefore, in our view, having regard to the consistent law laid down by the Apex Court right from the case of Workmen of Syndicate Bank, Madras (Supra) to Sarva Shramik Sangh, [2009 ALL SCR 1694] (Supra) the impugned communication is unsustainable in law. Even in the judgment in the case of Sarva Shramik Sangh, [2009 ALL SCR 1694] (Supra) relied upon by the respondent no.1, the Apex Court held that in exceptional circumstances the Government can refuse to make reference under Section 10(1) of the Act.
9. In view of the above, the impugned communication dated 22/06/2012 of respondent no.4 which is unsustainable in law is set aside. Respondent no.4 to reconsider the issue and pass fresh order in accordance with law, having regard to law laid down by the Apex Court, expeditiously and in any case within a period of two months from the date of receipt of the order.