The Commissioner of Labour v. The Secretary to Government

2. The Commissioner of Labour,Labour Welfare Building,DMS Compound, Chennai - 600006.3. The Joint Commissioner of Labour,Dr.Balasundaram Road,Coimbatore - 641018.2 & 3rd Respondent in WP.13742/074. The Management of Pricol Ltd.,Perianaickanpalayam,Coimbatore - 641020.4th Respondent in WP.13742/072nd Respondent in WP.13743/07WP.No.14024 of 2007 :Pricol Limited,Perianaickenpalayam,Coimbatore - 641020,rep. by its Senior Manager - HRand Authorised Representative,Mr.M.Manickam.Petitioner in WP.14024/07vs1. The Secretary to Government,Labour and Employment Department,Fort St.George, Chennai - 600009.2. The General Secretary,Kovai Maavatta Pothy Thozhilarlargal Munnetra Sangam,Coimbatore (LPF)3. The General Secretary,Proiyeal Pothu Thozhilalar Sangam (AITUC)Coimbatore.4. The General Secretary,Kovai Maavatta General Engineering andMechanical Workers Union (CITU)5. The General Secretary,Desiya Engineering and General,Employees Union (INTUC)Coimbatore.6. The General Secretary,Pricol Working Peoples Trade Union,Coimbatore.7. The General Secretary,Kovai Mavatta Pricol ThozhilalarThozhirsangam, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

8. The General Secretary,Kovai Maavatta Pricol Employees Trade Union,Coimbatore.Respondents in WP.14024/07WP.No.18075/07 :The Secretary,Kovai Mavatta Pricol Employees Trade Union(Regd.) 122A1, Soundarya Illam,Ranga Nagar, Perianaickanpalayam,Coimbatore - 641020.Petitioner in WP.18075/07vs1. Government of Tamil Nadu,Rep. by The Secretary to Government,Labour and Employment Department,Fort St. George, Chennai - 600009.2. The Joint Commissioner of Labour,Dr.Balasundaram Road,Coimbatore - 641018.3. The Management of Pricol Ltd.,Perianaickanpalayam,Coimbatore - 641020.Respondent in WP.18075/07Writ Appeal filed against the order dated 30th May, 2007, passed bylearned single Judge in MP.No.2/2007 in W.P. No.19077 of 2007.MP.No.2/2007 filed for the orer of interim stay of operation of theorder of the 1st respondent dated 24.05.2007 in G.O(D).No.398 pendingdisposal of WP.No.19077/2007, filed under Article 226 of the Constitutionof India, praying for the issuance of a Writ of Certiorari, calling forthe records of the 1st Respondents dated 24.05.2007 in G.O(D) No.398 andquash the same.Petitions filed under Article 226 of the Constitution of India,1) praying for the issuance of a Writ of Certiorari, calling for therecords of the 1st respondent dated 24.05.2007 in G.O(D) No.397 and quashthe same (WP.19078/07)2) Praying for issuance of a Writ of Mandamus, directing the 1strespondent herein to issue orders under Section 10-B of the IndustrialDisputes Act 1947 to both parties to restore status quo as on 02.03.2007viz-a viz all the issues related to the strike as well as lockout (inWP.13742/07). https://hcservices.ecourts.gov.in/hcservices/ 3) praying for issuance of a Writ of Certiorari, calling for therecords from the fileds of the 1st respondent relating to the impugnedG.O.No.287, Labour & Employment (D1) Department, dated 10.04.2007 andquash the same (in WP.14024/07)4) praying for issuance of a Writ of Mandamus directing 1strespondent herein to dispose of the representation of the petitioner dated22.04.2007 and to take action against the 3rd respondent for committingunfair Labour practise under Section 25-U of this Industrial Disputes Act1947 (in WP.18075/07).5) praying for issuance of Writ of Certiorarified Mandamus callingfor the records from the files of the 1st respondent relating to theimpugned G.O (D) 287, Labour and Employment (D1) Department dated10.04.2007 and quash the same and consequently direct the 1st respondentto refer all the issues namely (i) the justifiability of partial lock outdated 16.03.2007 imposed on the employees of Satellite Vendor units of theManagement of Pricol Ltd., (ii) Justifiability of termination of hundredsof so called other contract labourers of the Management of Pricol Ltd.,during conciliation proceedings (iii) justifiability of partial lock outdated 05.04.2007 of Ms.Neelaveni, Geetha Rani, Murali Manoharan, Selvaraj,and Sivasami (iv) justifiability of punishment of Break-in-servie imposedon 70 employees by letter - dated 05.04.2007 and (v) justifiability ofpartial lock-out dated 05.04.2007 of M/s. K.Kaliannan and 5 others foradjudication and to pass such other order or direction as this HonourableCourt may deem fit and proper in the circumstances of the case, and thusrender justice.*Prayer amended as per order dated 16.04.2007 by KCJ in MP.No.3/07 inWP.13743/07.(WP.No.13743/07).For Appellant: Mr. S.Kumaraswamyin WP.No.777/07For Petitioners : Mr.S.Kumaraswamy in WP 13742 & 13743/07 Mr. Sanjay Mohan for M/s. Ramasubramaniam Associates in in WP 14024/07 Mr. A.L.Somayaji, SC for M/s.T.S.Gopalan & Co. in WP 19077 & 19078/07 Mr. K.Suresh in WP 18075/07For Respondents : Mr.A.L.Somayaji, SC, for M/s.T.S.Gopalan & Co. in WA 777/07 for R1 Mr. D.Srinivasan, AGP for RR-2 & 3 in WA 777/07; for R-1 in WP 13743, WP.13742, 14024 && for RR-1 & 2 in WP 18075/07, 19077, 19078/07 Mr. Sanjay Mohan for M/s.Ramasubramanian Associates for R-2 in WP 13743/07 Mr. S.Kumaraswamy for RR-1 to 7 in WP 14024/07. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENTS.J.MUKHOPADHAYA, J.In all these cases, as common question of law involved and arise outof dispute between the parties, they were heard together and disposed ofby this common judgment.2. Under the Management of Pricol Ltd. - petitioner in some cases,(hereinafter referred to as 'Company'), a number of workmen were working.Apart from Kovai Mavatta Pricol Thozhilalar Thozhir Sangam and the KovaiMavatta Pricol Employees Trade Union (hereinafter referred to as 'TradeUnion'), there are other recognised trade unions in the company.Six workers of the company, who were posted at Coimbatore (State ofTamil Nadu), were suddenly transferred to a far off place in the State ofUttrakhand. Such transfer gave rise to a strike call given by theworkers. There being dispute, the State Government had to refer suchdispute and had to pass prohibitive orders u/s 10 (3) of the IndustrialDisputes Act, 1947 (hereinafter referred to as the 'Act') as also orderu/s 10-B of the Act. The company and trade unions have challenged suchorder in their respective writ petitions as detailed hereunder :-i) W.P. No.13742/07 – preferred by the trade union for direction onthe State to issue order u/s 10-B of the Act and to restore status quo ason 2nd March, 2007.ii) W.P. No.13743/07 – preferred by the trade union against G.O. (D)No.287 dated 10th April, 2007, issued u/s 10 (1) (d) of the Act.iii) W.P. No.14024/07 – preferred by the management of the companyagainst the aforesaid G.O. (D) No.287 dated 10th April, 2007.iv) W.P. No.18075/07 – preferred by trade union for direction onrespondents to dispose of their representation and to take action againstthe management of the company u/s 25-U of the Act for committing unfairtrade practice.v) W.P. No.19077/07 – preferred by management of the company againstG.O. (D) No.398 dated 24th May, 2007, issued by the State u/s 10-B of theAct.vi) W.P. No.19078/07 – preferred by the management of the companyagainst G.O. (D) No.397 dated 24th May, 2007, issued u/s 10 (1) (d) of theAct.In one of the writ petition, W.P. No.19077/07, learned single Judgehaving passed interim order on 30th May, 2007, W.A. No.777/07 has beenpreferred by the trade union against the interim order.3. At the time of hearing, learned counsel appearing on behalf of thetrade union submitted that in view of notification issued u/s 10-B of theAct, W.P. No.13742/07 has become infructuous. It was further informedthat during the pendency of the writ appeal and other writ petitions, inview of interim order passed by this Court in the writ appeal, asindustrial peace is existing, the trade union has decided not to pressW.P. Nos.13743 and 18075/07. He requested to dispose of W.A. No.777/07taking into consideration the submission of the parties and to dismiss the https://hcservices.ecourts.gov.in/hcservices/ rest three writ petitions preferred by the management of the company onits own merits.4. It appears that 4 workers of Plant-III and 2 workers of Plant-Iwere transferred by the company on 3rd March, 2007 from Coimbatore (Stateof Tamil Nadu) to a far distance to Uttrakhand. About 600 workers ofPlant-III immediately proceeded on strike followed by 1500 workers ofPlant-I, who proceeded on strike on 5th March, 2007. The parties took upthe matter with the Assistant Commissioner of Labour (C), Coimbatore on 7thMarch, 2007 and 9th March, 2007, but the management of the company refusedto recall the order of transfer. There was a road blockade agitation on9th March, 2007. Demonstrations were made by about 1000 workers of Plant-Iand Plant-III, which continued till 10th March, 2007. Coimbatore-Mettupalayam road was obstructed. The State officials such as RevenueDivisional Officer and Assistant Commissioner of Labour had to reach thespot to persuade the workers to withdraw the strike. On 10th March, 2007,about 2166 workers were arrested by police, including 500 women andworkers working in ancillary units of the company. They were released onthe same day. The Joint Commissioner of Labour, Coimbatore also tried tosettle the dispute, but failed to persuade. The management demanded thatthe workers should withdraw the strike and give an individual undertakingbefore reporting to work. The workers wanted recall of the order oftransfer. In absence of any reconciliation, the management declaredlockout on 16th March, 2007 in respect of 16 workers of Plant-I and 15workers of Plant-III. On 17th March, 2007, lockout was also declared inregard to 17 workers of Plant-I and 17 workers of Plant-III. According tothe management, they had declared partial lockout in respect of 64 workerson 16th March, 2007.On 20th March, 2007, about 200 workers reported for work. TheCommissioner of Labour also intervened on 2nd April, 2007, but failed.About 1500 workers entered the company on 3rd April, 2007 and instigatedthe other workers not to work. On the complaint of the management, thepolice tried to remove the striking workers, many of whom threatenedimmolation, but in view of disturbance, the police had to use force.A number of students of Coimbatore Law College, in support of theworkers, observed fast on 4th April, 2007, along with 80 workers of thecompany. It was also informed that the striking workers were persuadingthe traders, public and political parties to render their support. Thiswas reported by the Joint Commissioner of Labour, Coimbatore, who alsoinformed that the situation was grave and serious. On 4th April, 2007,proposal was sent for referring the dispute to Tribunal and to prohibitthe strike and lockout. Revised proposal was forwarded by Commissioner oflabour on 5th April, 2007, for such reference u/s 10 (1) (d) and forissuance of prohibitory order u/s 10 (3) of the Act.On the same day, 5th April, 2007, management imposed punishment ofbreak-in-service on 147 workers. In the aforesaid situation, the StateGovernment had to make reference of the dispute u/s 10 (1) (d) by G.O. (D)No.286 dated 10th April, 2007. Further, taking into consideration thesituation, the State Government issued prohibitory order u/s 10 (3) videG.O. (D) No.287 dated 10th April, 2007, gist of which could be derived fromthe order, as quoted hereunder :- https://hcservices.ecourts.gov.in/hcservices/ “LABOUR AND EMPLOYMENT (D1) DEPARTMENTG.O. (D) No.287 Dated : 10.04.20071. G.O. (D) No.286, Labour and Employment Departmentdated 10.04.20072. From the Commissioner of Labour, LetterNo.A4/12886/2007, dated 10.3.2007, 12.3.2007, 13.3.2007,27.3.2007, 4.4.2007 & 5.4.2007Order :Whereas the Government by Government order first readabove have referred the 7 issues relating to (i) the transfer of certain workers of Pricol Limited,Coimbatore to their Plant at Uttaranchal State.(ii) Legality and justifiability of the strike byworkmen of Pricol Limited, Coimbatore.(iii) Partial Lockout of 64 employees, by themanagement of Pricol Limited, Coimbatore.(iv)Engagement by the management of new Contract Laboursthrough new contractors pending conciliation when theworkmen are on strike.(v) The justifiability of the insistence of themanagement of Pricol Limited, Coimbatore, that allworkmen should give individual undertaking.(vi) The justifiability of the demand of the KovaiMavatta Pricol Thozhilalar Thozirsangam and KovaiMavatta Pricol Employees Trade Union that themanagement of Pricol Limited, Coimbatore, shouldnegotiate only with them.And whereas the Government after considering all theaspects of the Commissioner of Labour, the circumstances ofthis dispute, the sequence of events masting from thetransfer of workmen leading to the commencement of thestrike by the workmen of Pricol Limited, Coimbatore, Plant-I and III, the consequent road blockade resorted to by theworkmen, large number of workmen involved in the disputeand the reluctance of the management and the Union to setright the issues through conciliation, are of the opinionthat the strike in Pricol Limited, Coimbatore, Plant-I andPricol Limited, Coimbatore, Plant-III and the partiallockout of workmen of Pricol Ltd., Plant-I and Plant-III,numbering 64, should be prohibited.Now, therefore, in exercise of the powers conferred bysection 10 (3) read with section 23 (b) of the IndustrialDisputes Act, 1947, the Governor of Tamil Nadu hereby makesthe following order:- https://hcservices.ecourts.gov.in/hcservices/ ORDER :Pending adjudication of the industrial disputes referredfor adjudication to the Industrial Tribunal, Chennai, inthe Government order first read above, the Governmentprohibit the continuance of the strike by the workmen ofPricol Limited, Coimbatore, Plant-I and Pricol Limited,Coimbatore, Plant-III and the partial lock out of 64workmen of Pricol Limited, Coimbatore, Plant-I and PricolLimited, Coimbatore, Plant-III, as listed in the Annexureto this order, with immediate effect.”In view of the prohibitory order, the lockout was withdrawn, theworkers also returned for work except 6 workers of Plant-III and 5 workersof Plant-I in respect of which partial lockout was declared by themanagement. The management also ordered break-in-service in respect of 92workers of Plant-I and 54 workers of Plant-III, total of 147 workers.A number of workers, who were working in the satellite vendor unit ofthe company, in respect of them, notice u/s 25-FFA was issued proposingclosure of the unit. Having noticed the situation, the Commissioner ofLabour, Coimbatore, requested the State to issue notification u/s 10-B,but the management opposed the same and by letter dated 2nd May, 2007,requested the Minister of Labour not to pass such order u/s 10-B of theAct.In the meantime, a number of new workers were engaged by themanagement. This aggravated the situation. The State Government havingnoticed all the relevant facts, issued G.O. (D) No.397 dated 24th May,2007, referring further dispute u/s 10 (1) (d). Another order, G.O. (D)No.398 was issued on 24th May, 2007, u/s 10-B whereby the State Governmentdirected the management and workers to follow certain norms and it wasordered not to give effect to the order of transfer or break-in-service.5. Mr. A.L.Somayaji, learned senior counsel appearing on behalf of themanagement took the following plea while assailing the order, G.O. (D)No.287 dated 10th April, 2007, issued u/s 10 (3) of the Act :-a) The State Government cannot avail power u/s 10 (3), the very sameissue, i.e., lockout and strike being matters of adjudication before theLabour Tribunal. According to him, order prohibiting strike or lockoutu/s 10 (3) could be passed in connection with reference of some otherdispute, but not in connection with reference, wherein strike and lockoutis the dispute referred.b) Strike and lockout having referred to as dispute for adjudicationu/s 10 (1) (d), any order prohibiting strike or lockout u/s 10 (3) willamount to interference with the procedure of industrial tribunal, whichhas to give final verdict.c) The power u/s 10 (3) cannot be exercised except in rarest case,where public interest is involved.d) The impugned order has to be tested on the basis of the reasonsmentioned in the Government Order, which do not satisfy the principle ofreasonableness and so the order must fail. https://hcservices.ecourts.gov.in/hcservices/ e) It was incumbent on the part of the State to give opportunity tothe management before issuance of order u/s 10 (3), failure of whichresulted in violation of rules of natural justice.6. So far as the order issued u/s 10-B vide G.O. (D) No.398 dated 24thMay, 2007, is concerned, the following submission was made by the learnedsenior counsel for the management :-i) The State Government had no jurisdiction to issue order u/s10-B,the company being not a public utility service.ii) In absence of any disturbance of public order, road blockadeagitation having come to an end on 10th March, 2007, notification u/s 10-Bwas not called for.iii) The order u/s 10-B having passed without notice to the companyand in violation of Chapter V of the Act, it violates rules of naturaljustice.7. The management has also challenged the reference as made by theState u/s 10 (1) (d) vide G.O. (D) No.397 dated 24th May, 2007 on theground that there was no industrial dispute for reference. According tothe learned senior counsel, there should be a demand by union forconstituting a dispute and in its absence no dispute could be referred.8. We have heard the parties and noticed the rival contentions. It isnot in dispute that the State Government is empowered to refer any disputefor adjudication u/s 10 (1), if in its opinion a dispute exists or isapprehended. Under Section 10 (3), the appropriate Government may alsoprohibit continuance of any strike or lockout in connection with disputealready referred, as evident from the said provision and quotedhereunder :-“10. Reference of disputes to Boards, Courts or Tribunals ********(3) Where an industrial dispute has been referred toa Board, [Labour Court, Tribunal or National Tribunal]under this section, the appropriate Government may byorder prohibit the continuance of any strike or lock-out in connection with such dispute which may be inexistence on the date of the reference.”From the aforesaid provision it will be evident that there are twoingredients to be satisfied before issuance of order u/s 10 (3), i.e., a) an industrial dispute has been referred for adjudication; andb) there is a strike or lockout in existence on the date of referencein connection with such dispute.9. The aforesaid provision – Section 10 (3) fell for considerationbefore different Courts from time to time. In the case of MaharajaKishangarh Mills Ltd. - Vs – State of Rajasthan reported in AIR 1953 Raj188 :: (1953) II LLJ 214 (Raj) :: Manu/RH/0067/1953., a Division Bench ofthe Rajasthan High Court observed as follows :- https://hcservices.ecourts.gov.in/hcservices/ “In order that the strike or lock-out may be inconnection with a dispute it is necessary that the strikeor lock-out should be something different from the disputeitself. A strike or lock-out which is the subject-matterof the dispute itself cannot be termed to be a strike orlock-out in connection with such a dispute within themeaning of Section 10 (3). A strike or lock-out which isitself;f a dispute would not justify an order under Section10 (3) for its prohibition because the language of Section10 (3) requires that a strike or lock-out should be inconnection with a dispute, in order that an order for itsprohibition might be made by the Government. Where thestrike is not in connection with a dispute but it itself adispute the matter is quite different and would not justifyan order of prohibition. The discretion of the Governmenttherefore which has been exercised in the present case inmaking an order of prohibition is beyond the scope ofSection 10 (3).”Another Division Bench of the Andhra Pradesh High Court in the case ofEenadu Press Workers Union & Anr. - Vs – Government of Andhra Pradesh &Anr. reported in 1979 (1) LLJ 391, having noticed the fact that strike wasin connection with a dispute referred, namely, dispute relating to claimfor wages and D.A., held that the State Government was entitled to issueprohibitory orders u/s 10 (3). The Court further observed that it is notnecessary for the State Government to issue a show cause notice to theparties before issuance of order u/s10 (3). Though right to strike is avaluable right in the hands of the employees, but that is not afundamental right.In another case of State Transport Employees Federation, Orissa – Vs –State of Orissa & Ors. reported in 1990 LIC 1591, a Division Bench ofOrissa High Court held that for invoking power u/s 10 (3), two conditionsmust exist, (i) there must be an industrial dispute in existence and (ii)such dispute must have already been referred for adjudication. The Courtfurther held that the prohibition u/s 10 (3) cannot be exercised inrespect of industrial dispute not referred.The view taken by the various High Courts was also affirmed by theSupreme Court in the case of Delhi Administration – Vs – Workmen of EdwardEventers & Anr. reported in 1978 (II) LLJ 209 (SC). The relevantobservation of the Supreme Court is quoted hereunder :-“2. A plain reading of the sub-section leaves no room fordoubt in our mind that the High Court has correctlyinterpreted it. Indeed, the learned Judges have gone intodetails, although we in this affirming judgment desire toexpress ourselves only briefly. Two conditions arenecessary to make S. 10 (3) applicable. There must be anindustrial dispute existing and such existing dispute musthave been referred to a Board, Labour Court, Tribunal orNational Tribunal under this section, namely, S. 10 (1).Section 10 stands as a self-contained code as it were so https://hcservices.ecourts.gov.in/hcservices/ far as this subject-mater is concerned. The prohibitorypower springs into existence only when such dispute hasbeen made the subject of reference under S. 10 (1). Whatthen is such dispute? The suchness of the dispute isabundantly brought out in the preceding portion of the sub-section. Clearly, there must be an industrial dispute inexistence. Secondly, such dispute must have been alreadyreferred for adjudication. Then, and then alone, the powerto prohibit in respect of such referred dispute can beexercised.********4. Shri Aggarwal pressed before us a ruling reported inKeventers Karmachari Sangh v. Lt. Governor of Delhi andanother, [1971-II-LLJ 375], decided by the Delhi HighCourt. Although the ratio there is contrary to the sameHigh Court's ruling which is the subject matter of thepresent appeal, we are obviously inclined to adopt thereasoning of the judgment under appeal. Imaging twentygood grounds of dispute being raised in a charter ofdemands by the workmen and the appropriate Governmentunilaterally and subjectively deciding against the workmenon nineteen of them and referring only one foradjudication, how can this result in the anomaloussituation of the workmen being deprived of their basicright to go on strike in support of those nineteen demands.This would be production not of industrial peace, which isthe object of the Industrial Disputes Act but counter-productive of such a purpose. If Government feels that itshould prohibit a strike under S. 10 (3) it must give scopefor the merits of such a dispute of demand being gone intoby some other adjudicatory body by making a reference ofall those demands under S. 10 (1) as disputes. In regardto such disputes as are not referred under S.10 (1), S.10(3) cannot operate. This is suppressed by a prohibitoryorder and is not allowed to be ventilated for adjudicationbefore a Tribunal will explode into industrial unrest andrun contrary to the policy of industrial jurisprudence.5. Thus, on principle and the text of the law, we areconvinced that S. 10 (3) comes into play when the basis ofthe strike is covered by S. 10 (1). Reference of a disputeand prohibition of a strike on other demands isimpermissible.”10. From the plain language of Section 10 (3) and the observation madeby the different Courts and the Supreme Court, it will be evident that theState Government has power to invoke Section 10 (3) if an industrialdispute has been referred and in connection with the referred dispute astrike or lockout is in existence on the date of reference. If thecompetent Government feels necessity to prohibit a strike or lockout formaintaining industrial peace and for proper adjudication of the dispute,it can do so on deliberation of merit of such disputed demand, but such https://hcservices.ecourts.gov.in/hcservices/ order being administrative in nature, no prior notice is called for beforeissuance of such order u/s 10 (3) of the Act.11. It is not in dispute that 4 workers of Plant-III and 2 workers ofPlant-I were transferred on 3rd March, 2007 from Tamil Nadu to Uttrakhand.Other workers proceeded on strike since 3rd/5th March, 2007. Inspite ofsteps taken by the Assistant Commissioner of Labour (C), Coimbatore on 7thMarch, 2007 and discussion made by the Commissioner of Labour, the matterwas not settled giving rise to reference made u/s 10 (1) (d) vide G.O. (D)No.286 dated 10th April, 2007, which is not under challenge. The disputerelated to transfer of the workers from one State to a far off State inthe north and it is only for such dispute the workers had to proceed onstrike and the management had to issue order of lockout in respect of 64workers. Such dispute not connected with lockout or strike having beenalready referred, it was always open to the State, in public interest, toissue order u/s 10 (3) prohibiting continuance of strike and lockout. Sofar as the strike is concerned, if legality of such strike has beensimultaneously referred along with other dispute, it will not divest theState from its power to issue order u/s 10 (3) of the Act.12. In respect of order u/s 10-B of the Act is concerned, we are alsoof the opinion that no prior notice was required for passing such orderu/s 10-B of the Act.In the case of Malayalam Plantation (India) Ltd. & Anr. - Vs – Workmenof Kaliyar Estate & Ors. reported in 1984 (II) LLJ 247, a single Judge,while noticed that action as was taken without advertance to all relevantacts, which were necessarily to be considered before taking action u/s 10-B, held the action unrelated to the objective behind the section andprompted by extraneous factors, held the said order bad. But such is notthe position in the present case and no allegation has been made that itwas prompted by factors extraneous to the condition.In the case of State of Karnataka – Vs – BPL Group of Companiesreported in 2003 (II) LLN 999, a Division Bench of Karnataka High Courtheld that the order issued u/s 10 (1) (d) is purely administrative.However, in respect of order u/s 10-B, it was observed that it cannot bestated to be purely administrative and could be passed on subjectivesatisfaction of the Government. The Court held that if the conditionprecedent as envisaged u/s 10 (3) are present, the Government cansimultaneously or immediately pass orders in terms with the said provisionand for that reasonable opportunity should be offered to the parties.However, it has not been made clear as to how simultaneously orders couldbe passed u/s 10 (1) (d) and Section 10-B, if reasonable opportunity is tobe afforded to the parties.In another case of M/s.Metal Box India Ltd. - Vs State of Tamil Nadureported in 1996 (I) LLJ 763 :: 1995 (11) LLN 814, a Division Bench ofthis Court held that Section 10-B applies to public utility service andnot maintaining of industrial peace can be ground for invoking power u/s10-B of the Act. https://hcservices.ecourts.gov.in/hcservices/ A learned single Judge of this Court in the case of Premier Mills Ltd.- Vs – State of Tamil Nadu reported in 2003 (I) LLJ 993, held that forissuance of order u/s 10-B, the Government has to form opinion for thenecessity to issue order and principle of natural justice to be followed.However, no deliberation has been made on the issue as to how order u/s 10(1) and 10-B can be passed simultaneously, if principles of naturaljustice is to be followed.13. For proper appreciation of the matter, it is desirable to quoteSection 10-B, as hereunder :-“10-B. Power to issue order regarding terms and conditionsof service pending settlement of disputes.- (1) Where anindustrial dispute has been referred by the StateGovernment to a Labour Court or a Tribunal under sub-section (1) of Section 10 and if, in the opinion of theState Government, it is necessary or expedient so to do forsecuring the public safety or convenience or themaintenance of public order or supplies and servicesessential to the life of the community or for maintainingemployment or industrial peace in the establishmentconcerning which such reference has been made, they may, bygeneral or special order, make provision -(a) for requiring employers or workmen or both toobserve such terms and conditions of employment as maybe specified in the order or as may be determined inaccordance with the order, including payment of moneyby the employer to any person who is or has been aworkman.(b) for requiring any public utility service not toclose or remain closed and to work or continue to workon such terms and conditions as may be specified inthe order; and(c) for any incidental or supplementary matter whichappears to them to be necessary or expedient for thepurpose of the order.********(2) An order made under sub-section (1) shall cease tooperate on the expiry of a period of six months from thedate of the order or on the date of the award of theLabour Court or the Tribunal, as the case may be,whichever is earlier.”From plain reading of Section 10-B it will be evident that order u/s10-B can be passed simultaneously with order making reference u/s 10 (1)for securing public safety or convenience or maintenance of public orderor supplies and services essential to the life of the community or formaintaining employment or industrial peace in the establishment, etc.Such power of maintenance of public safety, public order or supplies andservices essential to the life of the community being administrative innature, we are of the view that the order u/s 10-B is an administrativeorder. https://hcservices.ecourts.gov.in/hcservices/

14. Almost similar provision fell for consideration before the SupremeCourt in the case of Basti Sugar Mills Company Ltd. - Vs – State of U.P.reported in 1978 (II) LLJ 412. Under Section 3 of the U.P. IndustrialDisputes Act, State Government was empowered to prevent strike, lockout,etc, in connection with any industrial dispute. Relevant portion ofSection 3 of the U.P Industrial Disputes Act is quoted hereunder :-“3. Power to prevent strikes, lock-outs, etc. - If, in theopinion of the State Government it is necessary orexpedient so to do for securing the public safety orconvenience or the maintenance of public order of suppliesand services essential to the life of the community, or formaintaining employment, it may be general or special order,make provision - (Emphasis added)(a) for prohibiting, subject to the provisions of theorder, strikes or lock-outs generally, or a strike orlock-out in connection with any industrial dispute;(b) for requiring employers, workmen or both toobserve for such period, as may be specified in theorder, such terms and conditions of employment as maybe determined in accordance with the order;(c) for appointing committees, representative both ofthe employer and workmen for securing amity and goodrelations between the employer and workmen and forsettling industrial disputes by conciliation ; forconsultation and advice on matters relating toproduction, organisation, welfare and efficiency;(d) for constitution and functioning of ConciliationBoard for settlement of industrial disputes in themanner specified in the order;*******Provided that no order made under cl. (b) --(i) shall require an employer to observe terms andconditions of employment less favourable to theworkmen than those which were applicable to them atany time within three months preceding the date ofthe order;******The Supreme Court, in the said case of Basti Sugar Mills (supra),having noticed the aforesaid provision, held as follows :-“26. ............ Section 3 serves this limited purposeof legalising administrative intervention to preventdisorder without prejudice to judicial justice which willeventually be allowed to take its course. An order underS.3 (b) is administrative ; a proceeding under the BonusAct is judicial. The former manages a crisis, the latterdetermines rights. Even when a direction under theexigency power involve payments towards bonus or otherclaim it never can posses finality and is subject tojudicial decision – except, of course, where parties agreeto settle their claims, and then the agreement gives itvitality.27. The jural scheme of S. 3 is dual, each operating in https://hcservices.ecourts.gov.in/hcservices/ its own stage and without contradicting the power of theother. The first say, in crisis management, belongs to theTribunal. The pragmatic dichotomy of the law is flexibleenough not to put all its peace-keeping eggs in thejudicial basket. Government acts when the trouble brawsand when the storm has blown over judicial technology takesover. There are no right compartmentalisations.Sometimes, the judicial process itself has quick-actingprocedures. Likewise, sometimes the executive profers toconsult before going into action. Under our constitutionalorder, guidelines are given by the statute to ensurereasonableness in administrative orders. And in aGovernment with social justice as the watchward, valuejudgments are essential to exclude arbitrariness. So it isthat the executive power under S. 3 has the leading stringswrit right at he top. The power shall be used only for“public safety” or convenience or the maintenance of publicorder or supplies and services essential to the life of thecommunity or for maintaining employment. It prevails forthe nonce, produces (hopefully) tentative truce, and thenthe judicial process decides decisively. It is like anexecutive magistrate passing a prohibitory order regardingdisputed possession or unruly assembly to prevent breach ofthe peace and making over to a judicial magistrate to hearand decide who is in actual possession or whether therestriction on movement was right. Or, may be, it is likea magistrate quickly passing orders regarding a possessorydispute leaving it to the civil Court to adjudicate onvalid title. No one can argue that preventive magisterialpower, admittedly provisionally and reasonably, isinconsistent with the civil judicial machinery which speaksfinally.”As power invested u/s 10-B of the Act is almost similar to the powerinvested u/s 3 of the U.P. Industrial Disputes Act, in view of the SupremeCourt decision in Basti Sugar Mills case (supra) also, we hold that thepower u/s 10-B is also an administrative order and, thereby, do not callfor prior notice or hearing before passing such order.15. Further, as for securing public safety or maintaining of publicorder, or for industrial peace in the establishment, it is open to theState to pass order u/s10-B of the Act requiring the employer or workmenor both to observe such terms and conditions of employment as may bespecified in the order, it cannot be confined only to public utilityservice.In the present case, having noticed the relevant fact, includingstrike, closure, mass agitation, road blockade agitation, politicalinvolvement in the matter and for maintaining public order and industrialpeace, if the State has issued an order u/s 10-B, no interference iscalled for against such order. https://hcservices.ecourts.gov.in/hcservices/

16. So far as challenge to a reference of a dispute is concerned, itis open to a party to show that there is no industrial dispute or what hasbeen referred is not an industrial dispute. In the case of Shambu NathGoyal – Vs – Bank of Baroda, Jullundur reported in 1978 (1) LLJ 484 (SC),the Supreme Court observed as follows :-“A bare perusal of the definition would show that wherethere is a dispute or difference between the partiescontemplated by the definition and the dispute ordifference is connected with the employment or non-employment or the terms of employment or with theconditions of labour of any person there comes intoexistence in any particular, specific or prescribed manner.For coming into existence of an industrial dispute awritten cause is not a sine qua non unless of course in thecase of public utility service, because S.22 forbids goingon strike without giving a strike notice.The key words in the definition of industrial dispute are“dispute” or “difference”. That is the contention of thesetwo words. In Beetham v. Trinidad Cement Ltd., All K.S.244 at 249, Lord Denning while examining the definition ofexpression “Trade dispute” in S.2 (1) of Trade Dispute(Arbitration and Inquiry) Ordinance of Trinidad observed :-“By definition a 'trade dispute' exists whenever a'difference' exists and a difference can exist longbefore the parties became locked in a combat. It isnot necessary that they should have come to blows.'It is sufficient that they should be sparring for anopening.”5. Thus the term “industrial dispute” connotes a real andsubstantial difference having some element of persidencyand continuity till resolved and likely if not adjusted toendanger the industrial peace of the undertaking or thecommunity. When parties are at variance and the dispute ordifference is connected with the employment or non-employment or the terms of employment or with theconditions of labour there comes into existence anindustrial dispute. To read into definition therequirement of written demand for bringing into existencean industrial dispute would tantamount to re-writing thesection.”In the case of Secretary, India Tea Association – Vs – Ajith Kumar,Bharath & Ors. reported din 2000 (2) LLN 25, similar observation was madethat it would be open to a party to show that what has been referred to byGovernment is not an industrial dispute within the meaning of the Act.The Apex Court further held that order u/s 10 (1) is an administrativeorder.While similar observation was made in the case of ANZ Grindlays BankLtd. @ Standard Chartered Grindlays Bank Ltd. – Vs - Union of Indiareported in 2006 (2) CTC 589 (SC), Supreme Court cautioned and observedthat a normal writ petition under Article 226 of the Constitution of Indiashould not be entertained against an order of appropriate Government https://hcservices.ecourts.gov.in/hcservices/ making reference u/s 10 of the Act as the parties would get opportunity tolead evidence before the labour court or industrial tribunal to show thatthe claim made is either unfounded or there is no occasion for makingreference. It is only where it is found that the reference is futility,which can be demonstrated from bare reading of the terms of reference andadmitted facts, the Court could examine the proceeding under Article 226. In the present case, from bare reading of the terms of reference andadmitted facts it cannot be held that there is no dispute between theparties. The only question as raised is whether the parties made anyclaim before reference and it was not entertained? It is brought to thenotice of the Court by the State that the Labour Commissioner tried tosettle the dispute amicably. In this background, it cannot be held thatthe reference as made is futility, though on the basis of the evidence itis always open to the management to show that the claim as made isunfounded or there is no occasion for making such reference.17. Having regard to the facts that one of the writ petition, W.P. No.13742/07 has become infructuous and the trade union has not pressed thetwo writ petitions, i.e., W.P. Nos.13743/07 and 18075/07, they aredismissed as infructuous and for non-prosecution. So far as the writpetitions, W.P. Nos.14024/07, 19077/07 and 19078/07 are concerned, in viewof our observation and as we find no merit, they are also dismissed.Further, in view of the interim order dated 13th May, 2007, as challengedin W.A. No.777/07, as industrial peace has been restored during thependency of the reference, we do not want to disturb the position and,thereby, not inclined to interfere with the order passed by learned singleJudge dated 13th May, 2007. The said order dated 13th May, 2007, shallcontinue till the dispute as referred are finally adjudicated by thetribunal. The parties are supposed to co-operate in the matter. Theindustrial tribunal is advised to decide the reference on an early datewithout giving unnecessary adjournments to the parties. Consequently,connected miscellaneous petitions are closed. But there shall be no orderas to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarGLNTo1. The Secretary to Government Labour & Employment Department Secretariat, Chennai 600 09. https://hcservices.ecourts.gov.in/hcservices/

2. The Presiding Officer Industrial Tribunal Chennai 600 009.3. The Commissioner of Labour,Labour Welfare Building,DMS Compound, Chennai - 6.4. The Joint Commissioner of Labour,Dr.Balasundaram Road,Coimbatore - 641018.1 cc To Mr.S.Kumaraswamy, Advocate, SR.72869.1 cc To M/s.T.S.Gopalan & Co., Advocate, SR.72622.1 cc To The Government Pleader, SR.72873. W.A. NO. 777 OF 2007 W.P. NO. 13742, 13743, 14024, 18075, 19077 & 19078 OF 2007BS(CO)RVL 02.01.2008.