The General Secretary, Petroleum Employees Union (Eastern Branch) Vs. Union of India (Uoi) and ors. Semantic Analysis

Semantic Analysis by spaCy

The General Secretary, Petroleum Employees Union (Eastern Branch) Vs. Union of India (Uoi) and ors.

Decided On : Oct-29-2007

Court : Orissa

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]Code Context

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			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  I am directed to refer to the Failure of Conciliation Report No. Parties 4 and 5 submits that the facts involved in the case are good enough to support the order passed in Annexure-4. Because of modernization of the system, assistance of manual source has been drastically cut and because of that the permanent employees made a demand and a settlement was arrived at to the effect that there shall not be any retrenchment because of modernization and that under such circumstances the management is constrained to maintain the surplus staff. He argues that casual labourers are engaged only in cases of exigencies or otherwise, thus, their demand for regularization in service is like baying at the moon. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law.',
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			'judgement' => '<p style="text-align: justify;">1. Heard the parties and the Writ Petition is disposed of in the following manner.</p><p style="text-align: justify;">Petitioner as General Secretary, Petroleum Union (Eastern Branch) has filed this Writ Petition challenging to the order, Annexure 4 passed by the Government of India in the Ministry of Labour Department. Relevant portion of Annexure-4 reads as follows:</p><p style="text-align: justify;">I am directed to refer to the Failure of Conciliation Report No. 8(9)/2001 dated 24.5.2001 from the ALC (Bhubaneswar (Orissa)) received in this Ministry on 06/06/2001 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons:It is seen that none of the workmen involved in the dispute have completed 240 days of service during the proceeding 12 calender month prior to their date of termination'.</p><p style="text-align: justify;">2. Learned Counsel for the Petitioner with reference to the averments in paragraph-10 in the Writ Petition states that there is no quarrel on the number of days the workmen were employed in a calendar year, but the claim of the Petitioners for employment on the basis of their casual engagement is independent of the provision of Section 25 of the Industrial Disputes Act and therefore, the Labour Officer rightly made a recommendation for referring the dispute to the adjudicatory forum and wrongly Opp. Party No. 1 has refused to refer the matter on the basis of the above quoted illegal order. In support of his contention, Petitioner relies on the case of Mohan Ch. Sahoo and Ors. v. Government of Orissa and Anr. 2000(1) OLR 443.</p><p style="text-align: justify;">3. Mr. J.K. Tripathy, Learned Senior Advocate arguing before the Court on behalf of Opp. Parties 4 and 5 submits that the facts involved in the case are good enough to support the order passed in Annexure-4. Because of modernization of the system, assistance of manual source has been drastically cut and because of that the permanent employees made a demand and a settlement was arrived at to the effect that there shall not be any retrenchment because of modernization and that under such circumstances the management is constrained to maintain the surplus staff. He argues that casual labourers are engaged only in cases of exigencies or otherwise, thus, their demand for regularization in service is like baying at the moon. A direction for making a reference would not be of any help to the casual workers, save and except, entering into a litigation between Labour Union and the employer. He further argues that in the process of consideration as to whether a labour dispute exists or not, the status of the persons claiming employment can be considered by the State with reference to legal provision and in this case admittedly when none of the casual labourers has worked for 240 days in twelve calender months as per the provision of Section 25B of the I.D. Act, therefore, their claim for regularization of service has no merit and under such circumstances the state Government has the jurisdiction to decide that aspect on administrative side and to pass order for no reference. In support of that contention he relies on the case of Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. : (2000)ILLJ809SC . Learned Standing Counsel for the Government of India on the other hand supports the order, Annexure-4 but declines to place any citation.</p><p style="text-align: justify;">4. The factual aspect involved between the parties i.e. Union of India and Bharat Petroleum Corporation Ltd. is not in dispute. The workers empanelled for casual employment/engagement claimed for regularization of their services, independent of the provision of Section 25 of I.D, Act and they pursue their demand through their Union. Under such circumstances, the decision taken by Opp. Party No. 1, as quoted above, is not solely on administrative ground, but it trespasses into the adjudicatory process as has been held by this Court in the case of Mohan Ch. Sahoo (supra), following the ratio from the case of M.P. Irrigation Karmachari Sangh v. State of Madhya Pradesh : (1985)ILLJ519SC this Court reiterated that:</p><p style="text-align: justify;">8. The power to refer or not to refer a dispute, vests with the appropriate Government under the Act and the decision to be taken thereon, is purely administrative in nature. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law. It is no doubt true that in Sanskari Cement Alai Thozhilar Munnetra Sangam v. Government of Tamil Nadu (1983) 1 LTJ 460, and Nirmal Singh v. State of Punjab : (1984)IILLJ396SC , the Apex Court had directed the State Government to make a reference of the dispute for adjudication within a stipulated period. But, it ought not to be forgotten that the Apex Court under Article 142 of the Constitution of India has the power to pass appropriate orders to do complete justice between the parties. However, there is no provision akin to Article 142 of the Constitution investing similar powers with the High Courts. Thus, in the case at hand, the appropriate course would be to quash the impugned order with a direction to Opposite Party No. 2 to re-consider the matter and pass fresh orders in exercise of powers under Sub-section (5) of Section 12 of the Act within a period of twelve weeks from the date of communication of our order. We order accordingly.</p><p style="text-align: justify;">In the case of Indian Tea Association (supra) the fact involved was however entirely different and therefore, the scope of consideration on administrative side therein cannot be equated with the scope of consideration on administrative side in the present case so as to fit in the principle therein with the tacts and circumstances involved in this case. It is the settled principle of law that a ratio is to be followed only on finding its applicability on the basis of factsand circumstances involved.</p><p style="text-align: justify;">5. Mr. Tripathy, as noted above, also argued that a direction for reference would be a futile exercise inasmuch as the casual employees have no legal basis in support of their claim for regularization in service and that should be visualized while considering the prayer of the Petitioners under Article 226 of the Constitution of India. So far as the factual aspect as to whether services of the casual employees/labourers would be regularized or not that cannot be decided in a writ proceeding. The employees may not have a legal stand, but by adopting bargaining process they may achieve their demand either in part of full. What is the scope and extent thereof, the Court cannot foresee at this stage.</p><p style="text-align: justify;">6. Relying on the above quoted ratio of the Apex Court this Court in the case of Mohan Ch. Sahoo (supra) has observed that Government cannotencroach upon the adjudicatory process and the administrative decision must be taken accordingly. In the present case administrative decision was made on encroaching into the jurisdiction of the adjudicatory process.</p><p style="text-align: justify;">Therefore, while quashing the order, Annexure-4 we direct Opp. Party No. 1 to consider the matter afresh and pass appropriate order within a period of two months from the date of receipt of a copy of this order and to that extent the Writ Petition is allowed. In the peculiar facts and circumstances of the case we direct that the parties to bear their respective cost of litigation.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  I am directed to refer to the Failure of Conciliation Report No. Parties 4 and 5 submits that the facts involved in the case are good enough to support the order passed in Annexure-4. Because of modernization of the system, assistance of manual source has been drastically cut and because of that the permanent employees made a demand and a settlement was arrived at to the effect that there shall not be any retrenchment because of modernization and that under such circumstances the management is constrained to maintain the surplus staff. He argues that casual labourers are engaged only in cases of exigencies or otherwise, thus, their demand for regularization in service is like baying at the moon. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law.',
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		'judgement' => '<p style="text-align: justify;">1. Heard the parties and the Writ Petition is disposed of in the following manner.</p><p style="text-align: justify;">Petitioner as General Secretary, Petroleum Union (Eastern Branch) has filed this Writ Petition challenging to the order, Annexure 4 passed by the Government of India in the Ministry of Labour Department. Relevant portion of Annexure-4 reads as follows:</p><p style="text-align: justify;">I am directed to refer to the Failure of Conciliation Report No. 8(9)/2001 dated 24.5.2001 from the ALC (Bhubaneswar (Orissa)) received in this Ministry on 06/06/2001 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons:It is seen that none of the workmen involved in the dispute have completed 240 days of service during the proceeding 12 calender month prior to their date of termination'.</p><p style="text-align: justify;">2. Learned Counsel for the Petitioner with reference to the averments in paragraph-10 in the Writ Petition states that there is no quarrel on the number of days the workmen were employed in a calendar year, but the claim of the Petitioners for employment on the basis of their casual engagement is independent of the provision of Section 25 of the Industrial Disputes Act and therefore, the Labour Officer rightly made a recommendation for referring the dispute to the adjudicatory forum and wrongly Opp. Party No. 1 has refused to refer the matter on the basis of the above quoted illegal order. In support of his contention, Petitioner relies on the case of Mohan Ch. Sahoo and Ors. v. Government of Orissa and Anr. 2000(1) OLR 443.</p><p style="text-align: justify;">3. Mr. J.K. Tripathy, Learned Senior Advocate arguing before the Court on behalf of Opp. Parties 4 and 5 submits that the facts involved in the case are good enough to support the order passed in Annexure-4. Because of modernization of the system, assistance of manual source has been drastically cut and because of that the permanent employees made a demand and a settlement was arrived at to the effect that there shall not be any retrenchment because of modernization and that under such circumstances the management is constrained to maintain the surplus staff. He argues that casual labourers are engaged only in cases of exigencies or otherwise, thus, their demand for regularization in service is like baying at the moon. A direction for making a reference would not be of any help to the casual workers, save and except, entering into a litigation between Labour Union and the employer. He further argues that in the process of consideration as to whether a labour dispute exists or not, the status of the persons claiming employment can be considered by the State with reference to legal provision and in this case admittedly when none of the casual labourers has worked for 240 days in twelve calender months as per the provision of Section 25B of the I.D. Act, therefore, their claim for regularization of service has no merit and under such circumstances the state Government has the jurisdiction to decide that aspect on administrative side and to pass order for no reference. In support of that contention he relies on the case of Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. : (2000)ILLJ809SC . Learned Standing Counsel for the Government of India on the other hand supports the order, Annexure-4 but declines to place any citation.</p><p style="text-align: justify;">4. The factual aspect involved between the parties i.e. Union of India and Bharat Petroleum Corporation Ltd. is not in dispute. The workers empanelled for casual employment/engagement claimed for regularization of their services, independent of the provision of Section 25 of I.D, Act and they pursue their demand through their Union. Under such circumstances, the decision taken by Opp. Party No. 1, as quoted above, is not solely on administrative ground, but it trespasses into the adjudicatory process as has been held by this Court in the case of Mohan Ch. Sahoo (supra), following the ratio from the case of M.P. Irrigation Karmachari Sangh v. State of Madhya Pradesh : (1985)ILLJ519SC this Court reiterated that:</p><p style="text-align: justify;">8. The power to refer or not to refer a dispute, vests with the appropriate Government under the Act and the decision to be taken thereon, is purely administrative in nature. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law. It is no doubt true that in Sanskari Cement Alai Thozhilar Munnetra Sangam v. Government of Tamil Nadu (1983) 1 LTJ 460, and Nirmal Singh v. State of Punjab : (1984)IILLJ396SC , the Apex Court had directed the State Government to make a reference of the dispute for adjudication within a stipulated period. But, it ought not to be forgotten that the Apex Court under Article 142 of the Constitution of India has the power to pass appropriate orders to do complete justice between the parties. However, there is no provision akin to Article 142 of the Constitution investing similar powers with the High Courts. Thus, in the case at hand, the appropriate course would be to quash the impugned order with a direction to Opposite Party No. 2 to re-consider the matter and pass fresh orders in exercise of powers under Sub-section (5) of Section 12 of the Act within a period of twelve weeks from the date of communication of our order. We order accordingly.</p><p style="text-align: justify;">In the case of Indian Tea Association (supra) the fact involved was however entirely different and therefore, the scope of consideration on administrative side therein cannot be equated with the scope of consideration on administrative side in the present case so as to fit in the principle therein with the tacts and circumstances involved in this case. It is the settled principle of law that a ratio is to be followed only on finding its applicability on the basis of factsand circumstances involved.</p><p style="text-align: justify;">5. Mr. Tripathy, as noted above, also argued that a direction for reference would be a futile exercise inasmuch as the casual employees have no legal basis in support of their claim for regularization in service and that should be visualized while considering the prayer of the Petitioners under Article 226 of the Constitution of India. So far as the factual aspect as to whether services of the casual employees/labourers would be regularized or not that cannot be decided in a writ proceeding. The employees may not have a legal stand, but by adopting bargaining process they may achieve their demand either in part of full. What is the scope and extent thereof, the Court cannot foresee at this stage.</p><p style="text-align: justify;">6. Relying on the above quoted ratio of the Apex Court this Court in the case of Mohan Ch. Sahoo (supra) has observed that Government cannotencroach upon the adjudicatory process and the administrative decision must be taken accordingly. In the present case administrative decision was made on encroaching into the jurisdiction of the adjudicatory process.</p><p style="text-align: justify;">Therefore, while quashing the order, Annexure-4 we direct Opp. Party No. 1 to consider the matter afresh and pass appropriate order within a period of two months from the date of receipt of a copy of this order and to that extent the Writ Petition is allowed. In the peculiar facts and circumstances of the case we direct that the parties to bear their respective cost of litigation.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  I am directed to refer to the Failure of Conciliation Report No. Parties 4 and 5 submits that the facts involved in the case are good enough to support the order passed in Annexure-4. Because of modernization of the system, assistance of manual source has been drastically cut and because of that the permanent employees made a demand and a settlement was arrived at to the effect that there shall not be any retrenchment because of modernization and that under such circumstances the management is constrained to maintain the surplus staff. He argues that casual labourers are engaged only in cases of exigencies or otherwise, thus, their demand for regularization in service is like baying at the moon. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law.',
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			'court' => 'Orissa',
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			'judgement' => '<p style="text-align: justify;">1. Heard the parties and the Writ Petition is disposed of in the following manner.</p><p style="text-align: justify;">Petitioner as General Secretary, Petroleum Union (Eastern Branch) has filed this Writ Petition challenging to the order, Annexure 4 passed by the Government of India in the Ministry of Labour Department. Relevant portion of Annexure-4 reads as follows:</p><p style="text-align: justify;">I am directed to refer to the Failure of Conciliation Report No. 8(9)/2001 dated 24.5.2001 from the ALC (Bhubaneswar (Orissa)) received in this Ministry on 06/06/2001 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons:It is seen that none of the workmen involved in the dispute have completed 240 days of service during the proceeding 12 calender month prior to their date of termination'.</p><p style="text-align: justify;">2. Learned Counsel for the Petitioner with reference to the averments in paragraph-10 in the Writ Petition states that there is no quarrel on the number of days the workmen were employed in a calendar year, but the claim of the Petitioners for employment on the basis of their casual engagement is independent of the provision of Section 25 of the Industrial Disputes Act and therefore, the Labour Officer rightly made a recommendation for referring the dispute to the adjudicatory forum and wrongly Opp. Party No. 1 has refused to refer the matter on the basis of the above quoted illegal order. In support of his contention, Petitioner relies on the case of Mohan Ch. Sahoo and Ors. v. Government of Orissa and Anr. 2000(1) OLR 443.</p><p style="text-align: justify;">3. Mr. J.K. Tripathy, Learned Senior Advocate arguing before the Court on behalf of Opp. Parties 4 and 5 submits that the facts involved in the case are good enough to support the order passed in Annexure-4. Because of modernization of the system, assistance of manual source has been drastically cut and because of that the permanent employees made a demand and a settlement was arrived at to the effect that there shall not be any retrenchment because of modernization and that under such circumstances the management is constrained to maintain the surplus staff. He argues that casual labourers are engaged only in cases of exigencies or otherwise, thus, their demand for regularization in service is like baying at the moon. A direction for making a reference would not be of any help to the casual workers, save and except, entering into a litigation between Labour Union and the employer. He further argues that in the process of consideration as to whether a labour dispute exists or not, the status of the persons claiming employment can be considered by the State with reference to legal provision and in this case admittedly when none of the casual labourers has worked for 240 days in twelve calender months as per the provision of Section 25B of the I.D. Act, therefore, their claim for regularization of service has no merit and under such circumstances the state Government has the jurisdiction to decide that aspect on administrative side and to pass order for no reference. In support of that contention he relies on the case of Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. : (2000)ILLJ809SC . Learned Standing Counsel for the Government of India on the other hand supports the order, Annexure-4 but declines to place any citation.</p><p style="text-align: justify;">4. The factual aspect involved between the parties i.e. Union of India and Bharat Petroleum Corporation Ltd. is not in dispute. The workers empanelled for casual employment/engagement claimed for regularization of their services, independent of the provision of Section 25 of I.D, Act and they pursue their demand through their Union. Under such circumstances, the decision taken by Opp. Party No. 1, as quoted above, is not solely on administrative ground, but it trespasses into the adjudicatory process as has been held by this Court in the case of Mohan Ch. Sahoo (supra), following the ratio from the case of M.P. Irrigation Karmachari Sangh v. State of Madhya Pradesh : (1985)ILLJ519SC this Court reiterated that:</p><p style="text-align: justify;">8. The power to refer or not to refer a dispute, vests with the appropriate Government under the Act and the decision to be taken thereon, is purely administrative in nature. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law. It is no doubt true that in Sanskari Cement Alai Thozhilar Munnetra Sangam v. Government of Tamil Nadu (1983) 1 LTJ 460, and Nirmal Singh v. State of Punjab : (1984)IILLJ396SC , the Apex Court had directed the State Government to make a reference of the dispute for adjudication within a stipulated period. But, it ought not to be forgotten that the Apex Court under Article 142 of the Constitution of India has the power to pass appropriate orders to do complete justice between the parties. However, there is no provision akin to Article 142 of the Constitution investing similar powers with the High Courts. Thus, in the case at hand, the appropriate course would be to quash the impugned order with a direction to Opposite Party No. 2 to re-consider the matter and pass fresh orders in exercise of powers under Sub-section (5) of Section 12 of the Act within a period of twelve weeks from the date of communication of our order. We order accordingly.</p><p style="text-align: justify;">In the case of Indian Tea Association (supra) the fact involved was however entirely different and therefore, the scope of consideration on administrative side therein cannot be equated with the scope of consideration on administrative side in the present case so as to fit in the principle therein with the tacts and circumstances involved in this case. It is the settled principle of law that a ratio is to be followed only on finding its applicability on the basis of factsand circumstances involved.</p><p style="text-align: justify;">5. Mr. Tripathy, as noted above, also argued that a direction for reference would be a futile exercise inasmuch as the casual employees have no legal basis in support of their claim for regularization in service and that should be visualized while considering the prayer of the Petitioners under Article 226 of the Constitution of India. So far as the factual aspect as to whether services of the casual employees/labourers would be regularized or not that cannot be decided in a writ proceeding. The employees may not have a legal stand, but by adopting bargaining process they may achieve their demand either in part of full. What is the scope and extent thereof, the Court cannot foresee at this stage.</p><p style="text-align: justify;">6. Relying on the above quoted ratio of the Apex Court this Court in the case of Mohan Ch. Sahoo (supra) has observed that Government cannotencroach upon the adjudicatory process and the administrative decision must be taken accordingly. In the present case administrative decision was made on encroaching into the jurisdiction of the adjudicatory process.</p><p style="text-align: justify;">Therefore, while quashing the order, Annexure-4 we direct Opp. Party No. 1 to consider the matter afresh and pass appropriate order within a period of two months from the date of receipt of a copy of this order and to that extent the Writ Petition is allowed. In the peculiar facts and circumstances of the case we direct that the parties to bear their respective cost of litigation.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'The General Secretary, Petroleum Employees Union (Eastern Branch) Vs. Union of India (Uoi) and ors.',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  I am directed to refer to the Failure of Conciliation Report No. Parties 4 and 5 submits that the facts involved in the case are good enough to support the order passed in Annexure-4. Because of modernization of the system, assistance of manual source has been drastically cut and because of that the permanent employees made a demand and a settlement was arrived at to the effect that there shall not be any retrenchment because of modernization and that under such circumstances the management is constrained to maintain the surplus staff. He argues that casual labourers are engaged only in cases of exigencies or otherwise, thus, their demand for regularization in service is like baying at the moon. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law.',
		'caseanalysis' => null,
		'casesref' => ' and Nirmal Singh v. State of Punjab;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-10-29',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' P.K. Tripathy and; R.N. Biswal, JJ.',
		'judgement' => '<p style="text-align: justify;">1. Heard the parties and the Writ Petition is disposed of in the following manner.</p><p style="text-align: justify;">Petitioner as General Secretary, Petroleum Union (Eastern Branch) has filed this Writ Petition challenging to the order, Annexure 4 passed by the Government of India in the Ministry of Labour Department. Relevant portion of Annexure-4 reads as follows:</p><p style="text-align: justify;">I am directed to refer to the Failure of Conciliation Report No. 8(9)/2001 dated 24.5.2001 from the ALC (Bhubaneswar (Orissa)) received in this Ministry on 06/06/2001 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons:It is seen that none of the workmen involved in the dispute have completed 240 days of service during the proceeding 12 calender month prior to their date of termination'.</p><p style="text-align: justify;">2. Learned Counsel for the Petitioner with reference to the averments in paragraph-10 in the Writ Petition states that there is no quarrel on the number of days the workmen were employed in a calendar year, but the claim of the Petitioners for employment on the basis of their casual engagement is independent of the provision of Section 25 of the Industrial Disputes Act and therefore, the Labour Officer rightly made a recommendation for referring the dispute to the adjudicatory forum and wrongly Opp. Party No. 1 has refused to refer the matter on the basis of the above quoted illegal order. In support of his contention, Petitioner relies on the case of Mohan Ch. Sahoo and Ors. v. Government of Orissa and Anr. 2000(1) OLR 443.</p><p style="text-align: justify;">3. Mr. J.K. Tripathy, Learned Senior Advocate arguing before the Court on behalf of Opp. Parties 4 and 5 submits that the facts involved in the case are good enough to support the order passed in Annexure-4. Because of modernization of the system, assistance of manual source has been drastically cut and because of that the permanent employees made a demand and a settlement was arrived at to the effect that there shall not be any retrenchment because of modernization and that under such circumstances the management is constrained to maintain the surplus staff. He argues that casual labourers are engaged only in cases of exigencies or otherwise, thus, their demand for regularization in service is like baying at the moon. A direction for making a reference would not be of any help to the casual workers, save and except, entering into a litigation between Labour Union and the employer. He further argues that in the process of consideration as to whether a labour dispute exists or not, the status of the persons claiming employment can be considered by the State with reference to legal provision and in this case admittedly when none of the casual labourers has worked for 240 days in twelve calender months as per the provision of Section 25B of the I.D. Act, therefore, their claim for regularization of service has no merit and under such circumstances the state Government has the jurisdiction to decide that aspect on administrative side and to pass order for no reference. In support of that contention he relies on the case of Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. : (2000)ILLJ809SC . Learned Standing Counsel for the Government of India on the other hand supports the order, Annexure-4 but declines to place any citation.</p><p style="text-align: justify;">4. The factual aspect involved between the parties i.e. Union of India and Bharat Petroleum Corporation Ltd. is not in dispute. The workers empanelled for casual employment/engagement claimed for regularization of their services, independent of the provision of Section 25 of I.D, Act and they pursue their demand through their Union. Under such circumstances, the decision taken by Opp. Party No. 1, as quoted above, is not solely on administrative ground, but it trespasses into the adjudicatory process as has been held by this Court in the case of Mohan Ch. Sahoo (supra), following the ratio from the case of M.P. Irrigation Karmachari Sangh v. State of Madhya Pradesh : (1985)ILLJ519SC this Court reiterated that:</p><p style="text-align: justify;">8. The power to refer or not to refer a dispute, vests with the appropriate Government under the Act and the decision to be taken thereon, is purely administrative in nature. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law. It is no doubt true that in Sanskari Cement Alai Thozhilar Munnetra Sangam v. Government of Tamil Nadu (1983) 1 LTJ 460, and Nirmal Singh v. State of Punjab : (1984)IILLJ396SC , the Apex Court had directed the State Government to make a reference of the dispute for adjudication within a stipulated period. But, it ought not to be forgotten that the Apex Court under Article 142 of the Constitution of India has the power to pass appropriate orders to do complete justice between the parties. However, there is no provision akin to Article 142 of the Constitution investing similar powers with the High Courts. Thus, in the case at hand, the appropriate course would be to quash the impugned order with a direction to Opposite Party No. 2 to re-consider the matter and pass fresh orders in exercise of powers under Sub-section (5) of Section 12 of the Act within a period of twelve weeks from the date of communication of our order. We order accordingly.</p><p style="text-align: justify;">In the case of Indian Tea Association (supra) the fact involved was however entirely different and therefore, the scope of consideration on administrative side therein cannot be equated with the scope of consideration on administrative side in the present case so as to fit in the principle therein with the tacts and circumstances involved in this case. It is the settled principle of law that a ratio is to be followed only on finding its applicability on the basis of factsand circumstances involved.</p><p style="text-align: justify;">5. Mr. Tripathy, as noted above, also argued that a direction for reference would be a futile exercise inasmuch as the casual employees have no legal basis in support of their claim for regularization in service and that should be visualized while considering the prayer of the Petitioners under Article 226 of the Constitution of India. So far as the factual aspect as to whether services of the casual employees/labourers would be regularized or not that cannot be decided in a writ proceeding. The employees may not have a legal stand, but by adopting bargaining process they may achieve their demand either in part of full. What is the scope and extent thereof, the Court cannot foresee at this stage.</p><p style="text-align: justify;">6. Relying on the above quoted ratio of the Apex Court this Court in the case of Mohan Ch. Sahoo (supra) has observed that Government cannotencroach upon the adjudicatory process and the administrative decision must be taken accordingly. In the present case administrative decision was made on encroaching into the jurisdiction of the adjudicatory process.</p><p style="text-align: justify;">Therefore, while quashing the order, Annexure-4 we direct Opp. Party No. 1 to consider the matter afresh and pass appropriate order within a period of two months from the date of receipt of a copy of this order and to that extent the Writ Petition is allowed. In the peculiar facts and circumstances of the case we direct that the parties to bear their respective cost of litigation.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'pubs' => '105(2008)CLT14',
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		'respondent' => 'Union of India (Uoi) and ors.',
		'sub' => 'Labour and Industrial',
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LAW: Section 25, the Industrial Disputes Act, Section 25B, the I.D. Act, Section 25 of I.D, Act, Article 142 of the Constitution of India, Article 142 of the Constitution, Section 12, Article 226 of the Constitution of India

CARDINAL: 1, 4, 24.5.2001, 12, 1, 2000(1, 443.3, 4, 5, 2000)ILLJ809SC, 1, 1985)ILLJ519SC, 1, 2, 5, 1

ORG: the Writ Petition, Petroleum Union, the Government of India, the Ministry of Labour Department, the Failure of Conciliation Report No, ALC, Bhubaneswar (Orissa, this Ministry on 06/06/2001, Ministry, termination'.2, Learned Counsel, Petitioners, Labour, Learned Senior Advocate, Court, Labour Union, State, Indian Tea Association, Ors, Learned Standing Counsel, the Government of India, Union of India, Bharat Petroleum Corporation Ltd., Court, M.P. Irrigation Karmachari Sangh v. State of, Court, Government, Sanskari Cement Alai Thozhilar, the Apex Court, the State Government, the Apex Court, the High Courts, Opposite Party, Indian Tea Association, Petitioners, Court, the Apex Court, Court, the Writ Petition

DATE: 8(9)/2001, 240 days, paragraph-10, the number of days, a calendar year, 240 days, twelve calender months, 1983, twelve weeks, a period of, two months

GPE: Opp, Opp, Opp, Opp

PERSON: Mohan Ch, Anr, J.K. Tripathy, Kumar Barat, Mohan Ch, Nirmal Singh v. State of Punjab, Tripathy, Mohan Ch