MYPOWER MAZDOOR WELFARE UNION Vs. SECRETARY AND COMMISSIONER SOCIAL WELFAREAND LABOUR DEPARTMENT GOVERNMENT OF KARNATAKA BANGALORE

JUDGEMENT

(1.) THE scope of Section 10 of the Industrial Disputes Act (hereinafter called the "act") in relation to the powers of the appropriate Government of making reference to Labour Court, board or Tribunal, is sought to be settled in this appeal. Does the Government have the powers to determine the merits of the claim of the workmen before making reference or is it obligatory upon the Government to make a reference where a prima facie dispute is shown to be in existence? The learned Judge, vide the order impugned in this appeal held that the nature and scope of the scrutiny envisaged under Section 10 authorised the government to examine the merits of the claim and declined to make a reference upon being satisfied that the grievance projected was baseless, without substance, frivolous or unjustified.

(2.) IN order to appreciate the controversy regarding the scope and ambit of Section 10 of the Act, some of the facts which are not in dispute are required to be taken note of. The appellant-Union representing the employees who are in the employment of respondent-Corporation raised a dispute with respect to their service conditions. It was contended by the workers that they possessed the requisite skills and qualifications for the higher post of Operatives (General) and operatives (Works) and Junior Assistants, but were wrongly retained in the Helper cadre only depriving them the benefits of the posts of Operatives and Junior Assistants. They claimed that they were entitled to in service recruitment to the higher post which was denied. This averment of the workmen was denied by the Management, who stated that the workmen were unsuitable for the higher posts. The case was referred to conciliation and the concerned officer submitted a failure report. Upon consideration of the failure report, the respondent-Government vide endorsement dt. 17-6-1992 held that the case projected by the workmen was not a fit case in which a reference could be made. Detailed reasons were set-out in the order passed by the respondent. The Government vide its order dated 25-6-1993 reiterated the position by declaring that no case existed for making a reference. Aggrieved by the aforesaid two orders, the appellant-Union filed the writ petition in this Court which was dismissed by the learned Single Judge vide the order impugned in this appeal.

(3.) SECTION 10 of the Act provides that where the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, refer the dispute to a Board, Court or Tribunal in accordance with the procedure prescribed under the said Section. The opinion to be formed for the purposes of making the reference does not envisage the adjudication of dispute itself. Appropriate government has the power to prima facie determine the existence of the industrial dispute which does not mean the conferment of power to finally dispose of the dispute itself. While exercising power under Section 10 (1) of the Act, the Government performs the administrative function and not a judicial or quasi-judicial function. In Ram Avtar Sharma v State of haryana, the Apex Court held: "now if the Government performs an administrative act while either making or refusing to make a reference under section 10 (1), it cannot delve into the merits of the dispute and take upon itself the determination of Us. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on ground irrelevant, extraneous or not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review".