HARDESH KUMAR RAJARAM Vs. KV B UNNI

JUDGEMENT

(1.) Learned Advocate Mr. P. H. Pathak is appearing on behalf of the petitioner. Learned Advocate Mr. M. R. Shah is appearing on behalf of Respondent No. 1 and learned Advocate Mr. Bipin Mehta is appearing on behalf of Respondent Nos. 2 and 3.

(2.) In the present petition, the petitioner has challenged the order passed by Desk Officer dated 16-04-1998 under Sec. 12, sub-clause (5) of the I. D. Act, 1947. The petitioner has challenged the termination order by way of raising industrial dispute under the provisions of I. D. Act, 1947. The challenge of the petitioner is that the termination order is violating Sec. 25F, 25G and 25H of the I. D. Act. On the basis of the dispute raised by the petitioner, conciliation proceedings were initiated and ultimately a Failure Report was submitted by the Conciliation Officer dated 25-2-1998 and after receiving the same from the Conciliation Officer, the Ministry of Labour has examined the said dispute on 16-4-1998 and come to the conclusion that the Ministry does not consider this dispute fit for the following reasons. The reasons given by the Ministry are that it is found that the workman has not put in more than 240 days of service during the 12 months period prior to his alleged termination and as such cannot claim any protection under the I. D. Act, 1947. The petitioner has also requested to the Assistant Labour Commissioner, Adipur by an application for reconsideration dated 21-11-1998 wherein the certificate of completion of more than 240 days during 12 months in service was produced before the Assistant Labour Commissioner (Central), Adipur. However, the case of the petitioner has not been considered after the decision dated 16-04-1998. Theiefore, the present petition has been filed by the petitioner. In the present petition. Rule was made returnable on 22-03-2000 and in response to the Rule, affidavit-in-reply has been filed by the Respondent No. 3. In the reply, it was pointed out by the Respondent No. 3 that the service of the petitioner has not been terminated, but he left the work in January, 1991 on his own and even without intimation to the competent authority. According to the Respondent No. 3, in the year 1990-91, the workman concerned has completed only 105 days service, and therefore, the decision which has been taken by the Ministry of Labour is legal and valid which does not require any interference.

(3.) Learned Advocate Mr. Pathak submitted that the appropriate Government had no power to adjudicate the industrial dispute which has been raised by the petitioner. The decision that the petitioner has not completed 240 days continuous service during the 12 months period is a decision on merit which is required to be examined by the Labour Court or the Industrial Tribunal after the reference has been made to the appropriate Court. Therefore, according to Mr. Pathak the said decision is beyond the scope and power of Sec. 10 of the I. D. Act, and therefore, the authority has committed gross error in deciding the industrial dispute while coming to the conclusion whether industrial dispute exists or not. Such decision on merits is unwarranted in law. He relied upon the decision of the Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh & Ors. v. Stale of Bihar and Ors. reported in AIR 1989 SC 1565. The Apex Court has observed that while exercising powers under Sec. 10, sub-clause (1), 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 dispute, which would certainly be in excess of the powers conferred on it by Sec. 10. It is true that in considering the question of making a reference under Sec. 10 sub-clause (1), the Government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended. But 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.