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TMI Blog2009 (4) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... d (b) a direction to IOC to absorb/regularize the services of the said workers. The writ petition was dismissed for want of prosecution on 11.11.2003. 2. Thereafter the appellant again approached the High Court in W.P. No. 853/2004 contending that the contracts between IOC and the canteen contractor was sham and bogus and seeking a direction to the Union of India to make a reference of the dispute raised by them in regard to the demand for permanency of the canteen workers to the Industrial Tribunal. The High Court vide order dated 22.4.2004 disposed of the said writ petition with a direction to the Central Government to consider and dispose of the request for reference with a further direction to maintain status quo in regard to concerned workmen till disposal of the reference application. In pursuance of it conciliation proceedings were held and the Assistant Labour Commissioner (Central)-III, Mumbai, sent a Failure of Conciliation Report dated 2.9.2004, Government of India by order dated 21.12.2004 refused to make a reference of the dispute under Section 10(1) of the Industrial Disputes Act, 1947 (`ID Act' for short). The Labour Ministry of the Government of India was of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act labour can, on the plea that the contract between principal employer and the contractor is sham and nominal, first claim the relief that contract labour system should be abolished and they should be absorbed; and if such relief is refused or found to be inappropriate, then seek a declaration that they are really the direct employees of the principal employer. 6. On the other hand, the first respondent-IOC contended that the appellant cannot be permitted to take contradictory and inconsistent stands. It is submitted that the prayer in the first writ petition was on the assumption that there was a valid contract between IOC and the canteen contractor and the workers were in fact the employees of the contractor, and that the contract labour system for the canteen in the establishment of IOC (marketing department) should be abolished under the CLRA Act and that after such abolition, the workers should be absorbed as employees of the IOC. It is contended that having taken such a specific stand in the first petition, the appellant cannot in the second petition take a plea that the contract entered between the IOC and the canteen contractor was sham and bogus and that the canteen w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctually controlling, and supervising the canteen; and that only as a camouflage, the contractor was shown as running the canteen to create a pretence that the workmen of IOC were the workers of the contractor, when in fact they were the employees of IOC. In short, the appellant had contended that the contract was sham and nominal, in the first petition. Even in the second writ petition (WP No. 1673/2005) the contention was that the contract was sham and a camouflage to avoid extending benefits of regular employees to the canteen workers. Therefore, the High Court committed a serious error in assuming that in the first writ petition, the appellant had conceded that the contract between the IOC and the canteen contractor was valid and genuine and that in the second writ petition the appellant had taken a contrary stand that the contract was sham and a camouflage. 9. The stand of the appellant and the workers was always consistent. But before the decision of a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001)IILLJ1087SC , for short referred to as `SAIL-I), it was thought that the appropriate relief available was to seek an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the facts alleged, a party is not prohibited from taking alternative pleas available in law. Similarly, on the same facts, different or alternative reliefs can also be claimed. When the case of the workers is that the contract was sham and nominal, they could seek a relief that they should be declared as the direct employees of the principal employer; and if that contention failed and it is found that the contract was valid, then they can seek issue a direction to the Central Government to consider their representation for abolition of contract labour. Similarly where the workers contend that the contract between principal employer and the contractor was sham and merely a camouflage to deny them the benefits of labour laws, and if their prayer for relief under CLRA Act is rejected, they can then seek relief under the ID Act. The contention of IOC that on account of the dismissal of the first petition, the second petition for a different relief was barred either by principle of res judicata or by principle of estoppel is liable to be rejected. 11. We will next consider whether the decision in SAIL-II relied on by the respondents, is in any way applicable. That decision relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed the writ petition and directed the Union of India to treat the writ petition as a petition submitted by the Union raising an industrial dispute in terms of Section 2(k) read with Section 12(1) of the ID Act as also under the provisions of CLRA Act. The learned Judge further directed the central government to refer the said dispute to the Industrial Tribunal. The appeal filed against the said judgment of the learned Single Judge was dismissed by a division bench. Aggrieved thereby SAIL approached this Court. It is in that background this Court held that the workmen having taken a definite stand that they were working under the contractors, and as the dispute that was referred was one which arose under the CLRA Act, the workmen could not, by amending the claim statement filed before the Labour Court, take a contradictory and inconsistent plea that the contract between VISL and the contractor was sham and bogus and they were the direct employees of VISL. This Court observed that it was impermissible to raise such mutually destructive pleas in law, having regard to the principles of estoppel, waiver and acquiescence which were also applicable in industrial adjudication. 11.3. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence are matters entirely for the government to decide. (iii) The order making a reference is an administrative act and it is not a judicial or a quasi-judicial act. (iv) The order of reference passed by the government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution to see if the government had material before it to support the conclusion that the dispute existed or was apprehended. 12.1. The opening words of Section 10 of ID Act if any industrial dispute exists or is apprehended the appropriate government may were replaced by the words where the appropriate government is of the opinion that any industrial dispute exists or is apprehended it may at any time by Act 18 of 1952. The issue was thereafter again considered in Rohtas Industries Ltd. v. S.D. Agarwal [1969]3SCR108 . After referring to the propositions in Sarathy, this Court held: This interpretation of Section 10(1) is based on the language of that provision as well as the purpose for which the power in question was given and the effect of a reference. That decision cannot be considered as an authority for the proposition that whenever a provision of law confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate Government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not... in entertaining an application for a writ of mandamus against an order made by the appropriate Government under Section 10(1) read with Section 12(5), the Court is not sitting in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the said Government... It is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no reference is made, because the object of Section 12(5) appears to be to require the appropriate Government to state its reason for refusing to make a reference, so that the reasons should stand public scrutiny; but that does not mean that a party challenging the validity of the Government's decision not to make a reference can require the court in writ proceedings to examine the propriety or correctness of the said reasons. This Court however made it clear that if the appropriate government refuses to make a reference for irrelevant considerations, on extraneous grounds or acts mal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the reference is impugned by a party it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the Award but if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before Government on which it could have come to an affirmative conclusion on those matters. Merely because the government rejects a request for a reference or declines to make a reference, it cannot be said that the industrial dispute has ceased to exist.... The industrial dispute may nonetheless continue to remain in existence and if at a subsequent stage the appropriate government is satisfied that in the interest of industrial peace and for promoting industrial harmony it is desirable to make a reference, the appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng power under Section 10(1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi- judicial function. In performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. However, there may be exceptional cases in which the state government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. But the government should be slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and to allow the government to do so would be to render Section 10 and Section 12(5) of the Act nugatory. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the government in exercise of its administrative function under Section 10(1). When the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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