Bank of Baroda Employees' Association and Anr. Vs. Union of India (UOi) and Ors. (31.01.2005 - CALHC) - Court Judgment

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- d.k. seth, j.in re : can 642 of 20051. affidavit filed today be taken on record.1.1 an alleged industrial dispute was raised before the conciliation officer for adjudication thereof. on the report of the conciliation officer, the state government had formed an opinion that the alleged dispute was not fit for reference under section 10 of the industrial disputes act, 1947. this has been challenged in a writ petition, since dismissed, being w.p. no. 8194 (w) of 2004 by or under judgment and order dated 7th december, 2004. this appeal arises out of the said decision.1.2. the learned counsel for both the parties, while addressing the court on the application for stay, addressed on the merit of the appeal. in the circumstances, having heard the learned counsel for the respective parties at length, we feel that while disposing of the application for stay, nothing remains to be decided in the appeal. therefore, the appeal, by consent of the parties, is treated as on day's list for hearing and is taken up along with the application for stay and is being disposed of as hereafter.appellants' contention :2. the main thrust of the contention of mr. supriya chattopadhyay, the learned counsel for the appellants, is that the state government had virtually adjudicated the dispute, which has since been reiterated by the learned single judge in the decision under appeal. in course of conciliation, the conciliation officer cannot adjudicate except as to the existence of the dispute unless agreed to the parties to settle the dispute between themselves. on the report, the state government cannot undertake the exercise of deciding the case on merit and adjudicate the dispute by itself. it can only form an opinion; but that formation of opinion cannot lead to a decision on merit of the dispute. he had referred to several decisions to support his contention. we shall be referring to those decisions at appropriate stage.respondents' contention :3. the learned counsel, mr. aninda mitra, ably assisted by mr. l.k. gupta for the respondents, on the other hand, contended that the state government has to form an opinion on the basis of the prima facie case and it cannot close its eyes and refer all disputes whenever it comes before it. the primary consideration is the existence of dispute and such dispute must be an industrial dispute fit for being referred to for adjudication. in order to form an opinion, it has to look into the materials placed before it and come to a conclusion as to the existence of a dispute and that such dispute is in the nature of an industrial dispute fit for reference. it is only when a dispute exists and it is expedient for being referred to, the state government shall be bound to refer it and not otherwise. reference has been made to certain decisions and the decisions cited by the learned counsel for the appellant were also distinguished. we shall be referring to such decisions at appropriate stage.section 10(1) : formation of opinion : scope and extent :4. as rightly pointed out by the learned counsel for the appellants that a notice under section 9a would be necessary whenever there is an attempt to withdraw any customary right or concession given to an employee, as prescribed in clause 8 of the fourth schedule to the 1947 act. he has also rightly pointed out that whenever a notice of strike is given under section 22(1) of the said act, by reason of sub-section (3), it is incumbent upon the state government to refer the dispute for adjudication when it appears that there are certain merits in it without adjudicating the merits itself. according to him, in view of the provisions contained in section 10(1) second proviso, the state government cannot decide the dispute or adjudicate the merits of the demand raised by the employees in course of its process to form an opinion as to whether the dispute should be referred to or not.4.1. the law is well-settled, as has been held in workmen of hindustan lever ltd. v. hindustan lever limited, 1985 scc (l & s) 6 : 1984(2) llj 391; management of indian oil corporation limited v. workmen, 1975(2) llj 319; ram avtar sharma and ors. v. state of haryana and anr., : (1985)iillj187sc ; abad dairy dudh vitran kendra sanchalak mandal v. abad dairy and ors., 1983(3) llj (suppl.) 885; sankari cement alai thozhilalar munnetra sangam v. government of tamil nadu and anr., 1983(1) llj 460 (sc); m.p. irrigation karamchari sangh v. state of m.p. and anr., : (1985)illj519sc ; sharad kumar v. government of nct of delhi and ors., : (2002)iillj275sc ; telco convoy drivers mazdoor sangh and anr. v. state of bihar and ors., : (1989)iillj558sc and u.p. state bridge corporation ltd. and ors. v. u.p. rajya setu nigam s. karamchari sangh, 2004 sol case no. 122, cited by the learned counsel for the appellants.4.2. so far as the proposition of law, it does not admit of any second opinion or dispute. the principle is well-settled, the state government has to form an opinion for the purpose of making a reference under section 10(1). in course of such formation of opinion, the state government has no jurisdiction to decide the dispute or adjudicate on the merit of it. it cannot ascertain the rights of the parties. the only scope left with the state government in the formation of opinion is confined to the examination as to the existence of a dispute and to decide whether such dispute is an industrial dispute and that it would be expedient to refer such dispute for adjudication. within this confined scope the state government can form its opinion on the basis of the materials placed before it. in the process of formation of opinion, the state government has to examine the materials and to find out that there is a prima facie case as to the existence of the dispute and that such dispute is an industrial dispute and that it is expedient to refer the dispute for adjudication. it can also examine as to whether such dispute is frivolous or as to whether the materials support the existence of such dispute.4.3. this proposition can be supported by the decision in secretary, india tea association v. ajit kumar barat and ors., : (2000)illj809sc and the decision in bombay union of journalists and ors. v. state of bombay and anr., : (1964)illj351sc cited by mr. mitra. in bombay union of journalists (supra), the supreme court had held that the government while forming such opinion was not precluded from considering prima facie the merit of the dispute and refuse to refer the dispute under section 10. the learned counsel for the appellant, however, points out that this decision was subsequently overruled by the decision in sharad kumar (supra). in sharad kumar (supra), it was held that in a case where the determination of the question requires examination of factual matters for which materials including oral evidence are required to be considered cannot be undertaken by the state government and thereby arrogate on itself the power to adjudicate on the merit of the question itself. this decision does not overrule the decision in bombay union of journalists (supra) to the extent of consideration of prima facie case, which is repeated in ajit kumar barat (supra).4.4. there is a distinction between the decision oh merit leading to adjudication on the dispute and examination of the existence of the dispute having regard to the materials placed before it. admittedly, the state government, while forming an opinion, does not act either as a rubber stamp or a mere post office. it has to apply its mind in order to form an opinion as to the existence of the dispute and to find out that such dispute is an industrial dispute expedient to be referred to. no opinion can be formed without applying its mind to the materials placed before it. examination of the materials for the purpose of formation of opinion would not amount to adjudication unless it purports to decide disputed question on facts.the present case : the principle applied : whether a concession or right :5. in this case the dispute was based on the claim for accommodation in the office premises provided to the head peon. in fact from page 23 of the injunction application, it appears that this accommodation was not a concession but an obligation on the part of the head peon to stay in the premises. for the purpose of arriving at an opinion on the basis of the materials on record, no amount of disputed question of facts is required to be decided. the letter itself indicates that it is not a concession or a right but an obligation on the part of the head peon to remain in the office even outside duty hours. at the same time, it appears from paragraph 159 of the shastri award that such accommodation in the office premises is not a right conferred on the employee and is not a concession. however, on this question the learned counsel for the appellants points out that this shastri award was given sometimes in 1953, whereas section 9a and the fourth schedule was introduced on 10th of march, 1957. introduction of this provision had virtually superseded paragraph 159 of the shastri award .5.1. this proposition does not seem to be of any substance. section 9a read with the fourth schedule, clause 8 requires giving of a notice when a customary right or concession being a condition of service, is sought to be withdrawn. whereas, the accommodation in the office, which was held not to be a concession or a right or condition of service or employment, would not be converted into a concession or a customary right or condition of service simply because of an amendment of the provisions of the statute viz: by reason of introduction of section 9a and the fourth schedule, what was not a concession nor a customary right would not be converted as such by reason of any enactment until it is made part of the conditions of service by appropriate amendment in the statute governing the service of the employees. at the same time, it is admitted, in his usual fairness, by mr. chattopadhyay that the head peons/the workmen despite being required to stay in the office, draw house rent allowance. therefore, the alleged condition of service on which the dispute was sought to be based, on the face of it appears to be non est and the dispute, as rightly found by the state government, seems to be frivolous and inexpedient for being referred to.conclusion :6. in order to be referred to, a dispute must be an industrial dispute. industrial dispute is a dispute, which is related to the condition of service. unless it is established or particularly when it appears that on the face of the records that such a condition does not exist at all and for which no amount of evidence is necessary except looking at the records, in such cases it can be held to be frivolous and that no such dispute exists.6.1. therefore, the finding of the learned single judge would not amount to adjudication on the merit of the case but is a reasoning given to support its finding that there was no prima facie case, as was rightly found by the state government in the process of its formation of opinion and that it was not a case expedient for being referred to.order :7. for all these reasons, we are not inclined to interfere with the decision of the learned single judge. though not happily drafted, the grounds on which the state government had refused the reference seems to make out a case that it had formed an opinion that no industrial dispute existed which was expedient for being referred to.7.1. the appeal and the application for injunction, thus, stand dismissed. the judgment appealed against is hereby affirmed.7.2. there will, however, be no order as to costs.7.3. urgent xerox certified copy, if applied for, be given on priority basis.soumitra pal, j.8. i agree.