CORAMTHE HONOURABLE MR v. The Secretary to Government of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.12.2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P.No.7076 of 2003&W.P.M.P.No.9131 of 2003M.Prakash ..PetitionerVs.1. The Secretary to Government of India, Ministry of Labour, Shiram Shakthi Bhavan, Rafi Marg, New Delhi.2. The Chief Engineer, O/o, The Chief Engineer, South Zone I (CPWD), G-Wing, Rajaji Bhavan, Guest House, Besant Nagar, Chennai - 90.3. The Assistant Engineer (MIG), O/o. The Chief Engineer, G-wing, Rajaji Bhavan, Besant Nagar, Chennai - 90.4. The Junior Engineer, C.C.S.D. 3/11/CPWD, Rajaji Bhavan, Besant Nagar, Chennai - 90. ..RespondentsPetition filed under Article 226 of the Constitution of Indiapraying for issue a Writ of Certiorarified Mandamus calling for therecords pertaining to the order dated 05.12.2002 made in No-L-42012/102/2002-IR (CM-II) passed by the first respondent and quashthe same and further directing the first respondent to refer thedispute regarding non-employment raised by the petitioner to theIndustrial Tribunal, Chennai for adjudication of the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Nagarathinam For Respondents : Mr.J.Ravindran Assistant Solicitor General. ORDER The petitioner has challenged the rejection order passed by thefirst respondent by which the petitioner's claim to refer the disputeto the Industrial Tribunal was rejected.2. The case of the petitioner is that:-He was working from 10.11.1997 as Room Boy in the office ofthe second and third respondents and he was paid a monthly salary ofRs.1900/-. He was issued an identity card by the third respondent atthe time of entry into the service. He, further contended that thejob was permanent in nature. The petitioner submitted that the thirdrespondent promised his service would be regularised very soon and hewas continuously under the service of the respondents 2 to 4 andsubsequently he was orally terminated on 05.11.2000.3. The petitioner submitted that without any notice or anycompensation as per the Section 25-F of the Industrial Dispute Act1947, the petitioner was terminated. Hence he raised a disputeunder Section 2A of the Industrial Disputes Act before the RegionalCommissioner of Labour for reinstatement of the petitioner withcontinuity of service along with backwages and other attendantbenefits.4. The Conciliation Authority submitted a failure report on31.01.2002 to the first respondent who refused to refer dispute tothe industrial Tribunal for adjudication by an order dated05.12.2002. The said order is impugned before this Court.5. The learned counsel for the petitioner Mr.Nagarathinamsubmitted that the petitioner is a workman and the petitioner wasissued Identity Card by the third respondent and the first respondentshould refer the matter to the Industrial Tribunal and he should notgo into the merits and it is only the Industrial Tribunal has got thejurisdiction to decide about the same. He relied upon the Judgmentof the Division Bench of this Court in M/s.Shaw Wallace and CompanyLtd., Vs. The State of Tamil Nadu, Represented by The Commissionerand Secretary, Labour Department and Others reported in 1987 II LLJ177 in which it was held that the normal rule under Section 2A of theIndustrial Disputes Act, the Government should refer the dispute foradjudication and only in exceptional cases alone it can decline. Thelearned counsel relied upon especially paragraph 32 of the Judgmentwhere the exceptions are listed out. Relying upon the said Judgment,learned counsel submitted that it is only for the Tribunal to go intothe issue not for the Government and the prayer for reference of https://hcservices.ecourts.gov.in/hcservices/ dispute for adjudication should have been made by the Government.Without referring the matter to the Industrial Tribunal, the firstrespondent decided the matter on merits and therefore he prayed forsetting aside the order passed by the first respondent and to referthe matter to Industrial Tribunal for adjudication.6. Mr.J.Ravindran, Learned Assistant Solicitor General submittedthat the petitioner did not produce any document to show that heworked as workman under any of the respondents. Only onsatisfaction about the status of the petitioner only the Governmentcould refer to the matter for adjudication. In the absence of anyacceptable documentary evidence on the part of the petitioner, thefirst respondent rightly declined to refer the matter foradjudication. Further, he submitted that the Identity Card was issuedto have an entry into guesthouse and that itself would not make thepetitioner as a workman. He relied upon the Judgment of the Hon'bleSupreme Court in Secretary, Indian Tea Association Vs. AjitkumarBarat and others reported in 2000 (3) SCC 93. In that case it washeld that for making a reference under Section 10 of the IndustrialDisputes Act. The following pre-requisites should be present:-"1. Forming and opinion as to whether the employeeconcerned as a workman.2. Considering as to whether an Industrial Disputeexisted are so apprehend."By relying upon the said Judgment the learned counsel submitted thatbefore taking a decision regarding reference, the first respondenthas to decide the question as to whether the employee concern was aworkman or not. In this case, the learned Assistant SolicitorGeneral submitted that, the Government confirmed opinion that thepetitioner was not a workman as there was no sufficient proof in thisregard. Once the Government formed an opinion the same can not beinterfere with. Another Judgment relied upon by the counsel is inRashtriya Chemicals and Fertilizers Ltd., and Another Vs. GeneralEmployees Association and Others reported in 2007 (5) SCC 273. Inthat case it was held that the High Courts can not straight awaydirect the appropriate Government to refer the dispute and it is forthe appropriate Government to apply its mind to relevant factors andsatisfy itself as to the existence of a dispute before taking adecision to refer the dispute.7. In this case the petitioner alleged in paragraph 2 of theaffidavit that he was paid a monthly salary of Rs.1900/- If he was aworkman under respondents 2 to 4, there should be cheque payment fromrespondents 2 to 4 or Government Officials and the petitioner couldnot have been paid in cash. Moreover the contention of the petitionerthat he was appointed on 10.11.1997 as Room Boy and he was terminatedorally on 05.11.2000 would remain only as an allegation unless he https://hcservices.ecourts.gov.in/hcservices/ proves the same documentary evidence. The documents called "entrypass" can not give the petitioner the status of workman.8. The learned counsel for the petitioner submitted that thepetitioner was a contract labour and he would be covered by underSection 25 definition of workman. Even then, the petitioner has toprimafacie prove his status through document. In this case thepetitioner miserably failed to prove as there was no such documentshowing that he was a workman.9. The Government namely the first respondent applied its mindand formed an opinion stating that the petitioner could not produceany document to prove that he was appointed by the management ofCPWD. Unless the petitioner proves his status as a workman, theappropriate Government can not for the sake of asking, refer thematter for adjudication. Unless, the petitioner proves that thefirst respondent failed to exercise his jurisdiction in a judiciousmanner, this Court can not interfere with the opinion formed by thefirst respondent.10. Accordingly, this Writ Petition fails, the same isdismissed. Consequently, connected Miscellaneous Petition is closed.There will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsmnTo1. The Secretary to Government of India, Ministry of Labour, Shiram Shakthi Bhavan, Rafi Marg, New Delhi.2. The Chief Engineer, O/o, The Chief Engineer, South Zone I (CPWD), G-Wing, Rajaji Bhavan, Guest House, Besant Nagar, Chennai - 90. https://hcservices.ecourts.gov.in/hcservices/

3. The Assistant Engineer (MIG), O/o. The Chief Engineer, G-wing, Rajaji Bhavan, Besant Nagar, Chennai - 90.4. The Junior Engineer, C.C.S.D. 3/11/CPWD, Rajaji Bhavan, Besant Nagar, Chennai - 90.+ 1 c.c. to Mr. A. Nagarathinam, Advocate. S.R.No.68499.+ 1 c.c. to Mr. J. Ravindran, Assistant Solicitor General of India. S.R.No.69337. W.P.No.7076 of 2003 and W.P.M.P.No.9131 of 2003KSK (CO)GSK 24.02.2010.