Judgment:
(Prayer: This petition is filed under Article 226 of the Constitution of India, praying to quash the G.O. dated 6.11.2012 at Annexures-A and N passed by R1 in prohibition of strike and a reference to the Industrial Tribunal, Hubli or issue any other appropriate writ or direction, ect.)
1. Two Orders, both dated 6.11.2012, passed by the State Government; (1) prohibiting strike in exercise of power under sub-section (3) of Section 10 of Industrial Disputes Act, 1947 (for short ‘the Act’), vide Annexure-A, and (2) an Order of reference made under Section 10 (1)(d) of the Act, vide Annexure-N, have been assailed in this writ petition.
2. Material facts not in dispute are:
The petitioner is a Trade Union. On 4.10.2012, vide Annexure-D, the petitioner requested the 2nd respondent-Management, for resolving the grievances of the employees, otherwise, a protest dharana would be commenced from 8.10.2012. Annexure-D has a charter of 15 demands. The petitioner served a notice of strike dated 13.10.212 vide Annexure-F, on the Management, stating that the workers would go on strike on 29.10.2012. The Deputy Labour Commissioner sent a notice dated 18.10.2012 vide Annexure-G, proposing to hold a conciliation meeting on 20.10.2012. Conciliation Meeting convened was adjourned to 30.10.2012. On 1.11.2012, the petitioner served on the 2nd respondent a notice as at Annexure-J, that consequent to no improvement in the stand of the Management in respect of the demands raised, that in the Special General Body Meeting held on 30.10.2012, it was unanimously decided by the workers to go for an indefinite strike from 2.11.2012. In response, the Management published a notice, as at Annexure-K, notifying the workers to drop the proposed strike and extend co-operation. The Management indicated that, if strike is resorted to, some would be illegal and the workers who go on strike will not be entitled to salary etc. The petitioner sent a reply dated 4.11.2012 as at Annexure-L. The petitioner by submitting a representation dated 5.11.2012 as at Annexure-M, requested the Management to take necessary action as provided under Section 25-U of the Act and give relief to the workers to organize and continue the functioning of the Trade Union. The State Government intervened and passed the orders dated 6.11.2012 as at Annexure-A and N.
3. Sri T.S. Anantharam, learned advocate, in support of the prayers in the writ petition contended that;
(i) Out of 15 demands in the charter as at Annexure-D, the state Government having made a reference in respect of only 9, vide Annexure-N, was incompetent to pass the prohibitory order by exercising the Power under sub-Section (3) of Section 10 of the Act and therefore, the Order passed as at Annexure-A is illegal.
(ii) 2nd respondent is not covered under ‘public utility service’ and the Government has not notified the 2nd Respondent-establishment as rendering ‘public utility service’ and in the absence of any Notification, Section 24 (1) of the Act is not applicable and the reference made to the said provision in Annexure-A, alleging violation of item 2(II) of Schedule-V is illegal.
(iii) Failure to exercise the power under Section 10 (B) of the Act by the Government and the non passing of an order regarding terms and conditions of the service pending settlement of disputes referred to the Tribunal is arbitrary.
(iv) The Government having succumbed to the Management has mechanically passed the Orders as at Annexures-A and N, which being vitiated and prejudicial to the interest of the workers, warrant interference.
4. Sri S.N. Murthy, learned Senior Counsel, on the other hand, by taking me through the statement of objection filed to the writ petition by the 2nd respondent, firstly, contended that the main demands in the charter as at Annexure-D, having been referred to the Tribunal for adjudication, the Government in exercise of the power under sub-Section (3) of Section 10 of the Act has rightly passed the Order as at Annexure-A, prohibiting the strike and hence, no interference is warranted. However, learned counsel conceded that it was unnecessary for the Government to have made reference the provisions of the Act contained in Section 24 (1) and item 2 (II) of Schedule V of the Act, while passing the Order as at Annexure-A. Learned counsel submitted that the invalid part of the Order as at Annexure-A being severable, the rest of the Order being valid, the same is liable to be upheld. Secondly, merely on account of not referring few of the trivial demands in the charter as at Annexure-D, there is no need to interfere with the Order of reference as at Annexure-N. Thirdly, the action of the workers in resorting to the strike being illegal, having been at the behest of vested interests and also at the risk of the patients of the hospital, that in the public interest, the Government is justified in prohibiting the strike by issue of the Order as at Annexure-A. Learned counsel submitted that the deficiency, if any, in the impugned Orders being curable, the writ petition may be dismissed. 5. Sri Jagadeesh Mundargi, learned HCGP, made available the file pertaining to the matter maintained by the Department of the Government and submitted that the Government prohibited the strike in order to maintain the industrial peace and harmony in the hospital, which is a duty of the Government, apart from public interest involved, i.e., the paramount interest of the patients of the 2nd respondent –hospital. He submitted that on account of the filing of this writ petition, the claim made by the petitioner for grant of interim relief could not be taken up and, if permitted, the same would receive immediate consideration of the competent authority. He further submitted that the left out demands, if directed, will be referred for adjudication by the Tribunal, by issuing an addendum to the Order of reference as at Annexure-N. In fairness, learned HCGP conceded that the Government ought to have referred all the demands in the charter as at Annexure-D, to the Tribunal for adjudication.
6. Keeping in view the rival contentions and the record of the case, the points that arise for consideration are:
(1) Without reference of all the demands in the charter as at Annexure-D, whether the Order passed by the Government as at Annexure-A, Prohibiting the strike by the workers is valid?
(2) Whether the valid and invalid parts of the Order as at Annexure-A is severable and if so, whether after excision of the invalid part, the rest remains viable and self-contained and can operate?
(3) Whether the Government has the authority to selectively refer the demands/disputes for adjudication by the Tribunal?
(4) Whether the non-consideration by the Government of the claim made by the Trade Union for ordering payment of interim relief to the workers is arbitrary?
(5) In the facts and circumstances of the case, is there a need to mould the relief?
7. There are 15 demands in the charter as at Annexure-D. The Government in the Order of reference made vide Annexure-N, has referred only 9 out of 15 demands to the Tribunal for adjudication. In the case of DELHI ADMINISTRATION, DELHI VS. WORKMAN OF EDWARD KEVENTERS AND ANOTHER, REPORTED IN 1978 SCC (LandS) 181, in a situation analogous to the present one, to the question that had arisen, as to when the power to prohibit a strike with which the State/appropriate Government is armed under Section 10(3) of the Act can be put into operation, the Apex Court has held as follows:
“Government feels that is should prohibit a strike under Section 10(3) it must give scope for the merits of such a dispute or demand being gone into by some other adjudicatory body by making a reference to all those demands under Section 10(1) as dispute. In regard to such disputes as are not referred under Section 10(1), Section 10(3) cannot operate. This stands to reason and justice and a demand which is suppressed by a prohibitory order and is not allowed to be ventilated for adjudication before a Tribunal will explode into industrial unrest and run contrary to the policy of industrial jurisprudence.
Thus, on principle and the text of the law, we are convinced that Section 10(3) comes into play when the basis of the strike is covered by Section 10(1). Reference of a dispute and prohibition of a strike on other demands is impermissible.”
8. In the case of EMPIRE INDUSTRIES LIMITED VS, STATE OF MAHARASHTRA AND OTHERS, REPORTED IN (2010) 4 SCC 272, the Apex Court, while considering a contention that, as long as all the demands leading to the strike or lockout, as the case may be, are not referred for adjudication in exercise of power under Section 10(1) of the Act, has held as follows:
“The point so carefully crafted by Mr. Shanti Bhushan appears to be quite unexceptionable and there may not be any quarrel with the proposition that in a case where the strike or the lockout is in connection with a number of disputes, the appropriate Government would derive the authority and the power to prohibit the lockout or the strike, as the case may be only if all the disputes are referred for adjudication under Section 10(1) of the Act.”
9. Since, out of the 15 demands in the charter as at Annexure-D, the government has referred only 9 out of them and yet has issued the Order as at Annexure-A, prohibiting the strike, the same being not in consonance with the provision contained under S.10(3) of the Act and the ratio of law laid down in the decisions noticed supra, is illegal. However, it is unnecessary to quash the entire order as at Annexure-A, in the view which I will be taking in the matter.
10. It is trite that, while exercising the power of making a reference under Section 10(1) of the Act, the appropriate Government performs an administrative and not a judicial or a quasi-judicial Act (SEE RAM AVATAR SHARMA VS, STATE OF HARYANA – (1985) 3 SCC 189). In the instant case, the Government has selected 9 out of 15 demands and has made the reference vide Annexure-N to the Tribunal for adjudication. No reasons have been assigned by the Government for not referring the other 6 demands to the Tribunal for adjudication. Hence, the impugned action of the Government i.e., in the matter of reference made vide Annexure-N has to be termed as arbitrary. In the circumstances of the case, in my considered view, the petitioner has made out a clear case for grant of writ of mandamus i.e., to direct the Government to refer the remaining 6 demands in the charter as at Annexure-D for adjudication to the Tribunal.
11. Undeniably, the petitioner had approached the Government with an application under Section 10(B) of the Act, to direct the Management to grant interim relief to the workers. The said application has not received the consideration, may be on account of filing of this writ petition. Since, the reference made vide Annexure-N to the Tribunal has been registered and is pending and since the petitioner can make an application under Section 10(B) of the Act, even before the Tribunal for grant of interim relief, there is no need to direct the Government to pass an order on the said application. Instead, the petitioner can be permitted to file an application before the Tribunal for consideration and early decision.
12. While passing the order as at Annexure-A, it was unnecessary for the Government to have made any reference to Section 24(1) and item 2 (II) of Schedule V of the Act. The said part of the Order, keeping in view the facts of the case, noticed supra, is invalid. Without making any reference to the said provisions, the Government in exercise of the power under Sub-Section (3) of the Section 10 of the Act, upon making a reference of all the demands to the Tribunal for adjudication, can prohibit a strike or lockout, as the case may be. The said invalid part of the Order as at Annexure-A being severable, the rest of the order being viable and self-contained, can operate. The invalid part only is liable to be quashed.
13. Keeping in view the need for maintaining industrial peace between the workers and the 2nd respondent and also in the interest of the patients of the hospital, though the impugned Orders of the 1st respondent as at Annexures-A and N are vitiated and suffer from legal infirmities noticed supra, I do not deem it just to quash the said orders in their entirety and allow the stalemate to continue. Having regard to the facts of the case and in the interest of justice, there is need to mould the relief.
For the foregoing reasons, it is ordered as follows:
(1) The 1st respondent/State Government is hereby directed to issue an addendum on or before 10.12.2012 and refer the remaining 6 demands in the charter at Annexure-D, for adjudication, to the Industrial Tribunal, Hubli.
(2) The order passed by the 1st respondent prohibiting the strike by the workers of the petitioner/Union vide Annexure-A, to the 02-11-2012 1947 24(1) Schedule V 2(II) being illegal, is hereby quashed.
(3) An application under S.10B of the Act, for grant of interim relief to the workers of the petitioner/Union, if filed, on or before 13.12.2012, the Industrial Tribunal, Hubli, is directed to decide the same in accordance with law, expeditiously and on or before 7.1.2013.
(4) The 2nd respondent / Management is directed to file its counter before 22.12.2012, to the application for grant of interim relief.
(5) The workers/members of the petitioner/Union shall report to duty in the 2nd respondent hospital, on or before 7.12.2012.
(6) The Industrial Tribunal, Hubli, is directed to adjudicate the reference and decide the same with all expedition.
Parties to bear their respective costs.
A carbon copy of this order be supplied to the learned advocates appearing for the parties.