ORDER
P.V. Sanjay Kumar, J.
1. A reference under Section 10(1)(d) of the Industrial Disputes Act, 1947 (for brevity, 'the Act of 1947') by the Government of Andhra Pradesh is called in question in this writ petition.
2. The petitioner is a public limited company engaged in the manufacture of Paper and Paper Boards. The third respondent is a registered Trade Union of its workmen, by name 'A.P. Paper Mills United Employees' Union'. The petitioner company claims to have promoted 19 of its employees from Grade B-3 to Grade M-8 in 1999, whereby they became Assistant Technical Officers. According to the petitioner company, these 19 employees attained the status of Officers and also became members of an Officers' Union known as 'A.P.P.M. Officers' Association'.
3. While so, it appears that the third respondent Workmen's Union raised a dispute before the Assistant Commissioner of Labour, Rajahmundry, stating that these 19 employees were subjected to discrimination in the matter of fixation of pay scales and other allowances and that these anomalies have to be rectified. The petitioner company, by its representation dated 10.01.2001, raised a preliminary objection that these 19 officers were not 'workmen' under the Act of 1947 and hence, the third respondent Union could not espouse their cause.
4. By his report in Rc. No. A/1601/2000 dated 16.01.2001, the Assistant Commissioner of Labour, Rajahmundry, reported failure of the conciliation proceedings and closed the same under Section 12(4) of the Act of 1947. Thereupon, the Government of Andhra Pradesh made the subject reference under Section 10(1)(d) of the Act of 1947, vide G.O.Rt. No. 2345, Labour Employment Training and Factories (LAB.I) Department, dated 17.09.2001. The G.O. reads as hereunder:
Order:
Whereas, the Government of Andhra Pradesh is of the opinion that an industrial dispute exists between the management of A.P. Paper Mills Ltd., Rajahmundry and the General Secretary, A.P. Paper Mills United Employees' Union, G.1425, Rajahmundry in respect of the matters specified in the Annexure to this order.
And whereas, in the opinion of the Government of Andhra Pradesh it is necessary to refer the said dispute for adjudication.
Now, therefore, in exercise of the powers conferred by Clause (d) Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) the Government of Andhra Pradesh hereby refers the said dispute for adjudication to the Industrial Tribunal-cum-Labour Court, Visakhapatnam. The Industrial Tribunal-cum-Labour Court, Visakhapatnam shall submit its award on the above dispute to the Government within a period of six months from the date of this G.O.
(By Order And In The Name of The Governor of Andhra Pradesh)
B. Danam
Principal Secretary To
Government
The Annexure appended to the G.O. details the Industrial Dispute referred for adjudication to the Industrial Tribunal-cum-Labour Court (hereinafter referred to as 'the Industrial Tribunal'), Visakhapatnam, and reads as under:
Annexure
Whether the Assistant Technical Officers Grade M-8 cadre are workmen?
If so, whether the demand of the A.P. Paper Mills United Employees' Union, Rajahmundry for rectification of anomalies in salaries to the 19 Employees shown in Annexure-A is justified?
If justified, to what relief the workmen are entitled?
5. The said reference was taken on file by the Industrial Tribunal as I.D. No. 200 of 2001 and the petitioner company entered appearance by filing a counter statement, wherein it reiterated that the third respondent/Claimant Workers' Union did not have locus stand to raise an Industrial Dispute on behalf of the 19 promoted employees. It appears that the proceedings before the Industrial Tribunal went on upto the stage of recording of evidence and at that stage the present writ petition was filed questioning the very reference.
6. In its counter, the third respondent Union stated that the writ petition was liable to be dismissed on the ground of delay as it was filed nearly two and a half years after the reference. With regard to the merits of the case, the third respondent Union alleged that the 19 employees in question were not promoted and it was merely a case of a re-designation. It is stated that these 19 employees, who were earlier designated as Chemists/Junior Shift In-charges, were redesignated as Assistant Technical Officers/Assistant Process In-charges/Assistant Plant Engineers. Mere change in their nomenclature did not negate the fact that they continued to be workmen owing to the nature of the duties performed by them even after such re-designation. It is averred that they did not have any managerial or supervisory powers. It is denied that they were discharging the duties of Officers. The third respondent Union contended that the status of these employees, being a mixed question of fact and law, could only be decided by the Industrial Tribunal on the basis of evidence and therefore, the reference in effect was valid and correct. It was however admitted that these 19 employees became members of the Officers' Association. The third respondent Union accordingly prayed for dismissal of the writ petition.
7. It may be noted that in the first instance, this Court granted stay of all further proceedings in I.D. No. 200 of 2001, but upon the vacate stay petition filed by the third respondent Union, the stay order was modified on 17.11.2004 permitting further proceedings in the I.D. to go on except for passing of the final award. It is however stated by the learned Counsel that the said order was not given effect to in view of the fact that the records pertaining to the I.D. were not transmitted back to the Industrial Tribunal.
8. Sri Vedula Srinivas, learned Counsel for the petitioner company, contended that the subject reference was not in conformity with the provisions of Section 10 of the Act of 1947 and thus, could not be sustained. He submitted that the Government of Andhra Pradesh was statutorily required to form an opinion as to the existence of an Industrial Dispute which, in turn, required it to form an opinion as to the status of these 19 employees. He pointed out that the reference of the question as to whether these employees were 'workmen' clearly indicated that the Government abdicated it's statutory function, thereby rendering the reference itself unsustainable in law.
9. Per contra, Sri G. amachandra Rao, learned Counsel for the third respondent Union, argued that the status of the 19 mployees, being a mixed question of fact and law, could not be decided by the Government in exercise of its administrative power under Section 10 of the Act of 1947. He submitted that this aspect has to be decided by the Industrial Tribunal on evidence and therefore, the reference of this issue to the Industrial Tribunal by the Government could not be found fault with.
10. Both the learned Counsel placed reliance on case law in support of their respective contentions.
11. Section 10 of the Act of 1947, to the extent it is relevant for the purposes of this case, reads as hereunder:
Section 10. Reference of disputes to Boards, Courts or Tribunals:
(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing,-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) refer the dispute or any matter appearing to be connected with or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
12. The provision manifests that the appropriate Government, in the present case - the Government of Andhra Pradesh, must form an opinion that an Industrial Dispute exists or is apprehended and thereafter refer the dispute for adjudication to the Tribunal. The formation of the opinion is as to the existence or apprehension of an 'Industrial Dispute'. Section 2(k) of the Act of 1947 defines an 'Industrial Dispute':
Section 2(k) 'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;
13. In the present case, the dispute is between the employer and persons projected to be workmen. It would therefore be necessary to examine the definition of 'workman' under the Act of 1947. Section 2(s) thereof defines 'workman' to mean:
any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or, as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an Officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him functions, mainly of a managerial nature.
Thus, the Act of 1947 excludes persons employed in managerial or administrative capacities from the definition of 'workman'. So also, those employed in a supervisory capacity drawing in excess of one thousand six hundred rupees wages per month are excluded. Unless the employees, whose dispute is the subject matter of the reference, fall within the four corners of the definition under Section 2(s) of the Act of 1947, they cannot claim the benefits or the protection of the said Act. Therefore, the Government of Andhra Pradesh necessarily had to form a prima facie opinion as to the status of the 19 employees whose cause is sought to be espoused by the third respondent Union; thereafter examine as to whether an Industrial Dispute as defined in Section 2(k) of the Act of 1947 existed or is apprehended and then make a reference in writing under the provisions of Section 10 of the Act of 1947.
14. In the present case, except for a bald statement in the impugned G.O. that the Government has formed an opinion about the existence of an Industrial Dispute between the parties hereto in respect of the matters specified in the Annexure, there is no evidence of any preliminary exercise on the part of the Government in forming an opinion as statutorily required.
15. Further, the first point of the reference is whether the persons in question are 'workmen'. This clearly demonstrates that the Government merely subjected the question of their status for adjudication by the Industrial Tribunal without even indicating a prima facie opinion on the point. Such prima facie opinion is mandated by Section 10 of the Act of 1947.
16. It is no doubt true that exercise of power under Section 10 by the appropriate Government is an administrative function and in exercise thereof, the appropriate Government cannot decide issues which are essentially amenable to judicial determination. However, the same would not absolve the appropriate Government from forming an opinion in the first instance as is required by Section 10 of the Act of 1947. It may be noted that the appropriate Government is not merely discharging a 'post-box' function by routing the dispute for adjudication to the Industrial Tribunal. It is statutorily expected to play a role in the process by forming an opinion prior to taking the administrative decision to refer a particular dispute for adjudication under Section 10 of the Act of 1947.
17. Reference in this regard may be made to the Judgment of the Supreme Court in Secretary, Indian Tea Association v. Ajit Kumar Barat : (2000) 3 SCC 93 : 2000 (3) ALT 9.1 (DNSC), where the Government had refused to make a reference under Section 10 of the Act of 1947 on the ground that the employee was not a workman. Referring to the precedential law on the scope of Section 10 of the Act of 1947, the Apex Court summarized the law on the point as follows:
1. The appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an Industrial dispute exists or is apprehended and if such a reference is made it is desirable wherever possible, for the Government to indicate the nature of dispute in the order of reference.
2. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi-judicial one and the court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial order.
3. An order made by the appropriate Government under Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government.
4. If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the court may in a given case consider the case for a writ of mandamus.
5. It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act.
The Supreme Court thereafter observed as under:
10. Before making a reference under Section 10 of the Act the appropriate Government has to form an opinion whether an employee is a workman and thereafter has to consider as to whether an industrial dispute exists or is apprehended.
18. Thus, the Government of Andhra Pradesh was under a duty to form an opinion whether these 19 employees were workmen and thereafter consider whether an Industrial Dispute existed or was apprehended.
19. It is also to be noted that the Industrial Tribunal, upon a reference under Section 10(1)(d) of the Act of 1947, cannot examine the validity of the reference. In National Enginering Industries Ltd. v. State of Rajasthan : 2000 (1) An.W.R. 70 (SC) : (2000) 1 SCC 371, the Supreme Court observed that the Industrial Tribunal is the creation of the statute and it gets jurisdiction on the basis of the reference and therefore, it cannot go into the question of the validity of the reference. It was held in the said Judgment that the High Court would have the jurisdiction to entertain a writ petition when there is any allegation that there is no Industrial Dispute which could be the subject matter of a reference for adjudication to the Industrial Tribunal under Section 10 of the Act of 1947. This was held to be a question of jurisdiction of the Industrial Tribunal which could be examined by the High Court in its writ jurisdiction.
20. Therefore, notwithstanding the delay on the part of the petitioner company in approaching this Court challenging the subject reference, as the matter goes to the very 'root' of the jurisdiction of the Industrial Tribunal to entertain the reference and as the Industrial Tribunal itself cannot decide this issue, the delay on the part of the petitioner company cannot be held to be fatal. Normally, lack of jurisdiction cannot be cured by mere passage of time.
21. Sri G. Ramachandra Rao, learned Counsel, placed reliance upon the Judgment of the Supreme Court in Sharad Kumar v. Govt, of NCT of Delhi : 2002 (II) LLJ 275 : 2002 (4) ALT 9.1 (DNSC) in support of his contention that mere change of designation is not determinative of the status of an employee, to qualify as a 'workman'. In the said case, the reference of the dispute to the Industrial Tribunal was called in question on the ground that the employee was not a 'workman' within the meaning of Section 2(s) of the Act of 1947. The State Government, being the appropriate Government under Section 10 of the Act of 1947, declined to refer the dispute on the ground that the employee was not a 'workman'. Upon examination of the issue, the Supreme Court came to the conclusion that the designation of the post was not determinative of the nature of the employment and that the same would depend upon the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. However, it is to be noted that the appropriate Government in the said case did form an opinion as to the status of the employee and acted thereupon. Such is not the case before this Court, where the subject reference was made by the Government of Andhra Pradesh without apparent application of mind and without formation of a prima facie opinion.
22. Reference may also be made to the observations of the Supreme Court in the aforestated Judgment with regard to the exercise of administrative jurisdiction by the Government for the limited purpose of satisfying itself whether the dispute raised is an Industrial Dispute within the meaning of Section 2(k) of the Act of 1947. The Court stated that while deciding the question, designation of the employee is not of much importance and certainly not conclusive in the matter as to whether or not he is a workman under Section 2(s) of the Act of 1947.
23. This clearly posits that the Government must, at least for the limited purpose of satisfying itself before making a reference under Section 10 of the Act of 1947, form an opinion as to the existence or apprehension of Industrial Dispute which necessarily would require it to form an opinion as to the status of the employee concerned to qualify as a 'workman' under Section 2(s) of the Act of 1947.
24. This view is further fortified by the Judgment of the Supreme Court in Mukand Ltd. v. Mukand Staff and Officers Association : JT 2004 (3) SC 474, wherein the Supreme Court observed that disputes under the Act of 1947 could be raised only by workmen. The Court held that if nonworkmen were given the status and protection available to workmen, it would mean that the entire machinery and procedure of the Act of 1947 would apply to non-workmen and such a situation was not envisaged by the Act, which was solely designed to protect the interests of the workmen as defined in Section 2(s) of the Act.
25. In the light of the aforestated legal position, the Government of Andhra Pradesh was statutorily required to form an 'opinion' as to the status of the 19 employees whose cause was sought to be espoused by the third respondent Union. Without formation of such prima facie opinion, the reference simpliciter of the issue as to their status to the Industrial Tribunal for adjudication, is in violation of the provisions of Section 10 of the Act of 1947. Further, the validity of the reference could not be gone into by the Tribunal itself, as it gets its jurisdiction from the said reference. In such view of the matter, the reference under challenge is found lacking, legally and in terms of the statutory procedure.
26. The writ petition is accordingly allowed declaring the action of the Government of Andhra Pradesh in making the subject reference vide G.O.Rt. No. 2345 dated 17.09.2001 as illegal and unsustainable. In the circumstances of the case, there shall be no order as to costs.