Judgment:
P.C. Naik, J.
1. This petition under Article 226 of the Constitution of India has been filed for issuance of an appropriate writ/direction or order quashing the order of the State Government in the Labour and Employment Department dated October 18, 1993 whereby the Government has referred the said matter in dispute to the Presiding Officer, Industrial Tribunal Bhubaneswar. The petitioner also prays for quashing the notice dated February 3, 1995 issued by the Presiding Officer, requiring it to appear and file its written statement, list of witness and documents in the said dispute. The further prayer of the petitioner is for a declaration that the said industrial dispute case is not maintainable, as there is no industrial dispute in existence and, for restraining the Industrial Tribunal from proceeding with the said dispute.
2. The facts giving rise to this petition are hereinafter stated;
The Petitioner is a private Limited Company having its registered office at Jagatpur. It is engaged in the production of galvanised sub-station structures, transmission line tower members, flood lighting tower members and galvanising the steel structures. The opposite party No. 4 is the Secretary of the Jagatpur Industrial Workers' Union which has earlier submitted a charter of demands to the petitioner.
3. It appears that there was some dispute between the petitioner and the opposite party No. 4 regarding payment of minimum wages which, as alleged by the opposite party No. 4, were not being paid to the workers. Accordingly, a complaint was lodged by the opposite party No. 4 to the Deputy Labour Commissioner, Cuttack. On receiving the complaint a notice was issued to the petitioner regarding it to furnish its reply, so that conciliation proceedings may be taken up. The petitioner submitted its reply denying the claim of the workmen. Though the proceedings continued, no settlement could be brought about and accordingly a failure report was submitted to the State Government by the Deputy Labour Commissioner on July 11, 1991. Subsequently, a memorandum of settlement was entered into between the Management and its workmen on August 26, 1991 concerning the charter of demands dated August 6, 1991 which was submitted by the opposite party No. 4. The agreement was to be in force upto March 31, 1993.
4. However, on April 13, 1992 a letter singed by all the workers was sent to the petitioner through the opposite party No. 4 regarding the Management to fulfil certain demands failing which the letter may be treated as their letter of resignation. As the letter is the bone of contention between the parties, the English translation thereof (the letter is in Oriya) is quoted below:
'Date: April 16, 1992
To
The Managing Director, Utkal Galvanisers Private Ltd., Jagatpur Industrial Estate (New) Jagatpur Cuttack.
(Through the General Secretary of Jagatpur, Industrial Workers' Union)
Sir,
We beg to state that though we the undersigned workers have been working in your Industry since long, we are unable to manage ourselves and our family members with the wages we are getting.Now the market price is rising high and it is difficult for us to meet the house rent in this area. Though you have increased the salary of various categories of workers varying from Rs. 60/- to 750/- in spite of our repeated demands, you have refused to give our D.A, House rent and increment. Also being aggrieved towards our formation of an Union, you and some of your employees refused to fulfil our demands. Demanding D.A, House rent and increment from March, 1992, we are still not accepting the salary for the months of March, 1992. In spite of this, you are not showing your kindness towards us. By this attitude you are affecting our fundamental rights. We hope that you will be kind enough to consider our difficulties by April 19, 1992 or otherwise relieve us from our jobs from April 20, 1992 after paying all the dues to which we are entitled. Accept this letter as our resignation.
Yours faithfully,
(Containing Signatures of workmen)'
5. A mere perusal of the above letter shows that the workmen had clearly indicated that if the demands were not fulfilled the said letter may be treated as their letter of resignation. On receiving the letter, the Management, in view of the agreement dated August 26, 1991 expressed their inability to entertain their demands and informed the workmen that under the circumstances, they would accept their resignation with effect from May 14, 1992 (after one month's notice) and that the workmen may collect their dues when their resignation becomes effective on May 15, 1992 (Annexure-7). It appears that in the intervening period the workmen refused to work in the Galvanised plant. Accordingly, they were informed that because of their refusal, wages for the period they refused to work would be deducted. In view of the refusal of the workmen to work in the Galvanized plant, their resignations were accepted by the Management with effect from April 24, 1992 and accordingly, the said workmen ceased to be the employees of the petitioner.
6. As most of the workmen of the petitioner - Company had resigned, the Company issued an advertisement for fresh recruitment. In response to the advertisement, the workmen who had resigned also applied for re-employment with the petitioner. After due consideration most of them were taken back in service and given fresh appointments. This is reflected in the agreement dated May 18, 1995 which was entered into between the petitioner and the newly appointed workmen. A copy of the agreement is annexed to the petition. A copy of the agreement was duly forwarded to the Deputy Labour Commissioner-cum-District Conciliation Officer, Cuttack, for necessary action.
7. In the meantime, by its letter dated April 22, 1992 addressed to the petitioner, the opposite party No. 4 complained that services of 22 workmen has been terminated by the Management with effect from April 22, 1992 and that 19 workmen were refused employment with effect from April 24, 1992 which was illegal. A copy of this letter was also forwarded to the Conciliation Officer. On notice being issued, the petitioner replied that there was no question of the termination of service as the workers had voluntarily submitted a joint letter of resignation which was accepted by the Management. The matter was taken up in conciliation but as no settlement could be brought about between the parties, a failure report was submitted by the District Labour Officer, Cuttack on July 10, 1992. On considering of the failure report, the State Government formed an opinion that an industrial dispute exists between the Management and the workmen and accordingly, by order dated October 18, 1993 (Annexure-13), the following dispute was referred to the Industrial Tribunal, Bhubaneswar for adjudication.
'Whether the termination of service of 22 workmen (as per list) with effect from April 22, 1992 by way of relieving them from their services on the strength of joint conditional resignation letter dated April 13, 1992 and the termination of services of 16 workmen (as per list) from April 24, 1992 by way of refusal of employment by the Management of M/s. Utkal Galvanizers (P) Ltd. New Industrial Estate, Jagatpur without following the principle of natural justice are legal and justified and if not what relief the workmen are entitled to ?'
This is how the matter is now before the Court.
8. The learned counsel for the petitioner contends that the reference is bad as there was no material before the Government for forming an opinion that an industrial dispute between the Management and its workers exists or is apprehended. It is submitted that the very formation of the opinion is arbitrary and irrational because the actual facts were not before it nor were these reflected in the failure report. It is submitted that there is no question of termination of services or refusal to permit some workers to join their duties because the contract of service came to an end on the letter of resignation submitted by the workmen being accepted by the Management. Alternatively, it is submitted that assuming that there is a dispute but as this relates to the alleged termination of service it is a matter specifically covered by the 2nd Schedule of the Industrial Disputes Act, 1947 and comes within the jurisdiction of the Labour Court. Hence, the reference made by the State Government to the Industrial Tribunal is illegal and ought to be declared as such. It is also contended that the opposite party No. 4 which is a Union of Jagat-pur cannot represent the workmen of the petitioner's factory which is situated at Kapursing.
9. In reply, the learned counsel for the opposite party No. 4 contends that the petition is premature and ought not to be entertained. It is submitted that a reference having been made, all objections should be lodged before the Industrial Tribunal which after considering them on merits will give its finding which can ultimately be challenged by the petitioner in an appropriate higher forum. It is further submitted that though the letter of demand-cum-resignation was served on the Management by the workmen, they had no intention to resign but only wanted that the petitioner should sympathetically consider their grievance and fulfil the same to some extent. The acceptance of the resignation, contends the learned counsel for opposite party No. 4, amounts to termination of service arid as such, a dispute does not exist between the Management and its workmen. As regards its locus standi, it is submitted that the petitioner's factory and the Registered Office was at Jagatpur when the disputes came into existence arid therefore, the subsequent shifting of the factory to Kaprusing will not make any difference more so when the registered office of the Company is still at Jagatpur. It is further stated that though the factory has been shifted, the workmen still continue to remain members of the opposite pary No. 4 Union.
10. Having considered the rival contentions, we are of the opinion that the petition has no substance and merits dismissal. The term 'Industrial Dispute' within the meaning of Section 2(k) of the Industrial Disputes Act, 1947 connotes a real and substantial difference having some element of persistency and continuity till resolved and likely, if not adjudicated 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 the terms of employment or with the conditions of labour there comes into existence an industrial dispute. The conciliation proceedings and on its failure the power of the appropriate Government to refer an existing or apprehended Industrial Dispute for adjudication to the appropriate forum is with a view to promote industrial peace and harmony between the Management and the workmen and avoid a situation where the industrial peace of the undertaking or the community may be endangered. It is now well settled that the power conferred by Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 or the Government to refer the dispute can be exercised not only when an industrial dispute exits but when it is also apprehended. The decision whether there exists an industrial dispute or an industrial dispute is apprehended is an administrative decision which is formed by the Government on the basis of some material which is placed before it. It is the subjective opinion of the appropriate Government and once it forms an opinion as to whether an industrial dispute exists or is apprehended it is perfectly within its power to make a reference of the dispute under Sub-section (1) of Section 10 of the Act. The court cannot scrutinise the order of reference closely to see whether or not here was any material before the Government in support of its opinion because the formation of an opinion is not a judicial or quasi-judicial determination. However, it is open to a party seeking to challenge the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act and therefore, the Tribunal has no jurisdiction to pass the award. It will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because it is of the opinion that there was no material before the Government on the basis of which it could form an opinion that the industrial dispute exists or is apprehended (See The State of Madras v. C.P. Saraty and Anr., (1953-I-LLJ-174) (SC) and Shambunath Goyal v. Bank of Baroda, (1978-I-LLJ-484) (SC). The Contention of the petitioner, therefore, that the order of reference should be quashed cannot be accepted at this stage.
11. As we will presently see the contention regarding the maintainability of the reference also cannot be entertained at this stage. A preliminary objection regarding maintainability of the reference should rightly be raised before the Tribunal which would consider the question before examining the matter on merits and give a finding whether or not it has jurisdiction to proceed with the matter. Determination of the question depends on interpretation and interaction of the statutory provision in Sections 7 and 7A, and the second and third Schedules of the Industrial Disputes Act, 1947. It is also necessary to consider the pleadings of the parties and the nature of disputes raised in it for which evidence may have to be led. We may observe prima facie that as Section 7A reads, Industrial Tribunal has jurisdiction to adjudicate industrial disputes relating to any matter specified in the second or third schedule. Since the question will be considered by the Tribunal, if raised, we do not deem it appropriate to delve further into the matter.
12. The contention of the petitioner that opposite party No. 4 cannot represent the workmen is again a matter which might require a factual enquiry. This also is a matter which should first be raised before the Industrial Tribunal which would consider and decide the objection in accordance with law. In our opinion, this is not the stage at which this question ought to be gone into.
13. In view of the discussions aforesaid, we are of the opinion mat no case for interference at this stage is made out. It would be open to the petitioner to raise all objections sought to be raised before us before the Industrial Tribunal which would consider and dispose of the same in accordance with law. Accordingly, subject to the above observations, the petition is dismissed. No order as to costs.
D.P. Mohapatra, J.
I agree.