Telco Convoy Drivers Mazdoor Sangh v. State of Bihar(1989) 3 SCC 271 : AIR 1989 SC 1565

Case Summary

Full Case Details

M.M. DUTT, J.

3. The appellant Sangh represents about 900 convoy drivers. By a letter of demand dated 16-10-1986
   addressed to the General Manager of the Tata Engineering and Locomotive Co. Ltd., Jamshedpur, the
   Sangh demanded that permanent status should be given by the management to all the convoy drivers, and
   that they should also be given all the facilities as are available to the permanent employees of TELCO on
   the dates of their appointment. The said demand proceeds on the basis that the convoy drivers are all
   workmen of TELCO. The dispute that has been raised in the said letter of demand is principally whether
   the convoy drivers are workmen and/or employees of TELCO or not. In other words, whether there is
   relationship of employer and employees between TELCO and the convoy drivers.
   -. The appellants, Telco Convoy Drivers Mazdoor Sangh, Jamshedpur, and another,
   have preferred this appeal against the judgment of the Patna High Court whereby the High Court
   dismissed the writ petition of the appellants challenging the order of the State of Bihar refusing to make a
   reference of the disputes raised by the appellants to the Industrial Tribunal under Section 10 of the
   Industrial Disputes Act, 1947, hereinafter referred to as “the Act”.
4. The Deputy Labour Commissioner by his letter dated 26-2-1979 informed the appellant Sangh that
   in view of the opinion of the Law Department of the year 1973 to the effect that there was no relationship
   of master and servant between TELCO and the convoy drivers, the demands of the convoy drivers did not
   come within the purview of the Act and, accordingly, it was not possible to take any action in regard to
   the dispute of convoy drivers under the Act. The appellant Sangh being aggrieved by the said refusal to
   make a reference under Section 10(1) of the Act, moved before the Ranchi Bench of the Patna High Court
   a writ petition praying for a writ of mandamus commanding the State of Bihar to refer the dispute under
   Section 10(1) of the Act. A learned Single Judge of the High Court, who heard the writ petition, took the
   view that the letter of the Deputy Labour Commissioner only referred to the Law Departments opinion of
   the year 1973 without indicating in what context and under what circumstance, he rejected the demand for
   a reference. In that view of the matter, the learned Judge granted liberty to the Sangh to reagitate the
   matter before the appropriate government and expressed the hope that the appropriate government would
   consider the matter in a proper perspective in the light of the documents and the materials that would be
   placed by the Sangh, in accordance with law. The writ petition was dismissed subject, however, to the
   observation and direction mentioned above.
5. Pursuant to the liberty granted by the High Court, the Sangh made a representation to the
   government for a reference of the dispute under Section 10(1) of the Act. The Deputy Labour
   Commissioner, Jamshedpur, by his letter dated 6-11-1986 gave the same reply and refused to make a
   reference.
6. Again, the appellant Sangh moved a writ petition before the High Court and, as stated already, the
   High Court summarily dismissed the same holding that the appellants had failed to prima facie satisfy that
   they were employed either by TELCO or by the Telco Contractors’ Association. Hence this appeal.
7. It has been urged by Mr Pai, learned counsel appearing on behalf of the appellants, that the
   government exceeded its jurisdiction in purporting to decide the dispute raised by the appellant Sangh in
   the said letter of demand. Counsel submits that in the facts and circumstances of the case, the government
   should have made a reference to the Industrial Tribunal under Section 10(1) of the Act for the
   adjudication of the dispute of the convoy drivers and should not have embarked upon the task of deciding
   the dispute on its merits through the Deputy Labour Commissioner.
8. On the other hand, it has been vehemently urged by Mr Shanti Bhushan, learned counsel appearing
   on behalf of TELCO, that the Government has the jurisdiction to consider whether any industrial dispute
   exists or not and, in considering the same, as the government found that the convoy drivers were not even
   workmen of TELCO or, in other words, there had been no relationship of master and servants between
   TELCO and the convoy drivers, the government refused to make a reference of the dispute under Section
   35
   10(1) of the Act. It is submitted that the refusal by the Government to make a reference was perfectly
   within its jurisdiction inasmuch as, in the opinion of the government, there was no existence of any
   industrial dispute.
9. After conclusion of the hearing, we took the view that the Government should be given one more
   chance to consider the question of making a reference and, accordingly, we by our order dated 30-3-1989
   directed the Government to reconsider the question of referring the dispute raised by the convoy drivers to
   the Industrial Tribunal under Section 10 of the Act, keeping the appeal pending before us.
10. The learned counsel, appearing on behalf of the government, has produced before us an order
    dated 13-4-1989 of the government whereby the government has, upon a reconsideration of the matter,
    refused to make a reference under Section 10(1) of the Act. In refusing to make a reference, the
    government has adjudicated the dispute on its merits.
11. It is true that in considering the question of making a reference under Section 10(1), the
    government is entitled to form an opinion as to whether an industrial dispute “exists or is apprehended”,
    as urged by Mr Shanti Bhushan. The formation of opinion as to whether an industrial dispute “exists or is
    apprehended” is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as
    already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that
    is to say, whether there is relationship of employer and employees between TELCO and the convoy
    drivers. In considering the question whether a reference should be made or not, the Deputy Labour
    Commissioner and/or the government have held that the convoy drivers are not workmen and,
    accordingly, no reference can be made. Thus, the dispute has been decided by the government which is,
    undoubtedly, not permissible.
12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and
    employees or, in other words, unless those who are raising the disputes are workmen, there cannot be any
    existence of industrial dispute within the meaning of the term as defined in Section 2 (k) of the Act. It is
    urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of
    the factors that has to be considered by the government is whether the persons who are raising the
    disputes are workmen or not within the meaning of the definition as contained in Section 2(k) of the Act.
13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well
    settled that, while exercising 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, and that 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.
14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that
    the government was not justified in deciding the dispute. 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) of the Act. As has been held in
    M.P. Irrigation Karamchari Sangh [(1985) 2 SCR 1019], 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. Further, the government should be very 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 that to allow the government to do so would be to render Section 10 and Section 12(5) of
    the Act nugatory.
15. We are, therefore, of the view that the State Government, which is the appropriate government,
    was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or
    employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner
    acting on behalf of the government and that of the government itself cannot be sustained.
    36
16. It has been already stated that we had given one more chance to the government to reconsider the
    matter and the government after reconsideration has come to the same conclusion that the convoy drivers
    are not workmen of TELCO thereby adjudicating the dispute itself. After having considered the facts and
    circumstances of the case and having given our best consideration in the matter, we are of the view that
    the dispute should be adjudicated by the Industrial Tribunal and, as the government has persistently
    declined to make a reference under Section 10(1) of the Act, we think we should direct the government to
    make such a reference. In several instances this Court had to direct the government to make a reference
    under Section 10(1) when the Government had declined to make such a reference and this Court was of
    the view that such a reference should have been made.
17. In the circumstances, we direct the State of Bihar to make a reference under Section 10(1) of the
    Act of the dispute raised by the Telco Convoy Drivers Mazdoor Sangh by its letter dated 16-10-1986
    addressed to the General Manager, TELCO, to an appropriate Industrial Tribunal within one month from
    today.
18. The appeal is allowed and the judgment of the High Court and the impugned orders are set aside