ATIC EMPLOYEES UNION Vs. STATE OF GUJARAT

JUDGEMENT

(1.) IN this petition, under Art. 226 of the Constitution, the petitioner -Union has sought the intervention of this Court against the order dated 8th February, 1984 passed by the First respondent -State of Gujarat refusing to refer an industrial dispute for adjudication by the Industrial Court under S. 10 of the Industrial Disputes Act on the ground that the dispute raised is not of such a nature which requires adjudication by the Industrial Court. It is pertinent to note that the main dispute which was raised by the petitioner -Union on behalf of its members was that respondent No. 2 - Company, which is the employer, was insisting that the workers should sign written undertakings before they can be permitted to resume duties after lifting of the lock out which had remained imposed by the company for quite some time. The reference application was decided by the first respondent after hearings the representatives of the petitioner -Union as well as respondent No. 2 - employer. Detailed reasons are given by the first respondent for rejecting the application for reference. It has been held that claim raised in the dispute by the Union is patently frivolous and the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse and that it is, therefore, not desirable to make reference as prayed for. Reliance is placed on the decision of the Supreme Court in the case of Bombay Union of Journalists and others v. State of Bombay and another, (A.I.R. 1964 S.C. 1617) in that connection. P. B. Gajendragadkar, J. speaking for the Supreme Court in the aforesaid judgment laid down as under : - 'When the appropriate Government considers the question as to whether a reference should be made under S. 12(5), it has to act under S. 10(1) of the Act and S. 10(1) confers discretion on the appropriate 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 other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under S. 12(4), the appropriate Government ultimately exercises its power under S. 10(1) subject to this that S. 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under S. 12(4). It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally be within the jurisdiction of the industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusion, for that again would be province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under S. 10(1) read with S. 12(5) or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie, examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under S. 10(1)'.

(2.) IN our view, the reason given by the first respondent for rejecting the reference application are well borne out on the facts and in the circumstances of the case. It is pertinent to note that there was a lingering lock out in respondent company which arose out of certain agitations of the employees which had turned violent. At the time when the lock out was lifted, on order to preserve industrial peace, and with a view to providing for a moral sanction for the concerned employees, respondent No. 2 company had asked the concerned employees to resume work after signing a written undertaking. If the first respondent found that by insisting on such an undertaking, the industrial peace was going to be maintained and that the dispute raised was a frivolous one, and hence, no reference was required, we cannot say sitting under Art. 226 that the reasons put forward by the first respondent are in any way perverse or unreasonable. We may note at this stage that in response to the notice issued by this Court pending admission of this petition, the personnel officer of the third respondent concern has filed his affidavit -in -reply opposing the present petition. It has been pointed out in para 3.3 of the affidavit -in -reply that total strength of the workmen of the company was 1501. Out of 1501 employees, 951 employees have signed the bonds and out of 951, 43 workmen subsequently cancelled the bond; while 527 employees did not sign and 43 employees who had signed the bonds subsequently cancelled the same. It thus appears that out of total employees aggregating 1501, large number of employees has signed such undertaking and resumed their work. About 500 and odd employees however refused to sign those undertakings and raised an industrial dispute for reference to the appropriate authority under the Industrial Disputes Act. Mr. K. S. Nanavati for the concern informs us that subsequently a large number of employees who had signed the undertakings and resumed work are working peacefully and if any dispute is now raised by the remaining employees for adjudication of the Tribunal about the illegality of the said undertaking, peace and tranquillity in the campus is likely to be affected and a substantial number of employees who have signed the undertakings are likely to raise further dispute. If the State Government in exercise of its discretion found the referring such a dispute for industrial adjudication would raise spirit of discontent on the part of a substantial number of workers who had already signed such undertakings and resumed work and it would amount to giving fillip to industrial unrest on spot and in that view, if the reference is refused, we cannot say that such discretionary order of the State Government is in any way perverse or uncalled for or it is liable to be interfered with in exercise of our powers under Art. 226 of the Constitution of India.

(3.) IN view of the aforesaid amicable arrangement between the parties, in our view, any reference at this state would be totally academic and not in the interest of the workmen or the respondent -company or in the interest of the industrial peace and harmony. Even on this additional ground the order of the first respondent stands justified and is not required to be interfered with at this stage. However, we may clarify that in the back wages proceedings which may be initiated by the petitioner -union on behalf of the concerned employees, all the legal pleas can be raised by both the sides in challenge and defence of the undertakings. Mr. Mishra, learned advocate for the petitioner -union made it clear before us that the undertakings have been signed by the concerned workmen as per the aforesaid arrangement without prejudice to the rights and interest of the workmen concerned. Mr. Nanavati for the respondent -company disputed this contention. We need out express any opinion on this controversy as that question will also remain open for the decision by the concerned Tribunal.