SHEROO KALIKUSHROO FATAKIA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was appointed as Stenographer by the second respondent, Bank of America, vide letter dated September 12, 1966 with effect from November 1, 1966. She was confirmed as manager's Steno/secretary by a communication dated May 1,1967. In October, 1982, she was designated as Financial Analyst. However, by a letter dated July 11, 1988 she was demoted to the post of Assistant Financial Analyst. According to the petitioner she was made to tender her resignation effective from September 1, 1988 on August 2, 1988 but she withdrew her resignation by a telegram dated August 4, 1988. However, according to second respondent, the petitioner was informed on August 4, 1988 itself that her resignation was accepted with immediate effect waiving notice period of one month. Thereafter, on August 10, 1988 the petitioner raised a demand on the second respondent that she should be allowed to resume work but with no success. The petitioner then moved the Conciliation Officer i. e. Assistant commissioner of Labour (Central) -III, Bombay (the third respondent) and the dispute was admitted in conciliation. At the hearing of the conciliation proceedings, the second respondent-bank took a plea that the petitioner was not a "workman" under Section 2 (s) of the industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' ). On March 10, 1989, the third respondent submitted a failure report upon which the Deputy Secretary of the Ministry of labour, Government of India, refused to refer the dispute to the Labour Court/industrial tribunal for adjudication on the ground that the petitioner was not a "workman" by a communication dated August 18/21, 1989. Feeling aggrieved, the petitioner invoked the writ jurisdiction of this Court under Article 226 of the Constitution and filed this writ petition.

(2.) IN support of the petition, Mr. Talsania urged that it was not for the Government to have adjudicated upon a dispute whether the petitioner was a "workman" or not and at any rate in refusing reference to the petitioner, the Government gave no acceptable reasons and that is how the impugned order was bad-in-law. Controverting the submissions of Mr. Talsania, Mr. Tulzapurkar representing the second respondent-bank submitted that the Government was within its powers and competence to go into the question whether the petitioner was a workman or not and this Court while exercising writ jurisdiction under Article 226 of the Constitution cannot interfere with the action of the Government refusing the reference to the petitioner on the ground of inadequacy of the reasons therefor. Mr. Mehta, learned Government Counsel, appearing on behalf of the Union of India and the Assistant Commissioner of Labour submits to the orders of the Court.

(3.) NOW, the submissions of Mr. Tulzapurkar are that (i) the appropriate Government while exercising discretionary powers under Section 10 (1) read with Section 12 (5) of the Act is entitled to take into consideration such material as was placed before it by the Conciliation officer, (ii) the appropriate Government is entitled to consider the prima facie merits of the dispute to ascertain whether the dispute is frivolous; (iii) before making a reference the appropriate Government is required to be satisfied whether an industrial dispute within the meaning of Section 2 (k) of the Act exists or not; (iv) the aforesaid question required the appropriate Government to decide whether the person raising the dispute is a workman within the meaning of Section 2 (s) of the Act or not; (v) the aforesaid decision is a pre-condition of making a reference; (vi) a reference can only be made of an industrial dispute and unless the employee is a workman there cannot be an industrial dispute within the meaning of Section 2 (k)of the Act; (vii) the decision as to whether the employee is a workman or not does not amount to adjudication of the dispute on merits by the appropriate Government; (viii) what the appropriate government is prohibited from doing is the adjudication of the dispute on merits and not adjudication of the jurisdictional fact; and (ix) on consideration of various authorities, the statement of law pronounced by the Division Bench of this Court in A Sundarambal v. Government of Goa, Daman, Diu and Ors. 1983 1983 M. L. J. 881 which was upheld by the supreme Court and reported in A. I. R. 1988 S. C. 1700, is based on the decision of the larger bench of the Supreme Court in State of Bombay (now Maharashtra) and Anr. v. K. P. Krishnan and Ors. AIR 1960 SC 1223 and Bombay Union of Journalists and Ors. v. The State of Bombay and Anr. AIR 1964 SC 1617. Mr. Tulzapurkar further submitted that in the event of this Court finding that there are conflicting decisions, on the law of precedents pronounced by the Full bench of Karnataka High Court in case of Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. and Anr. AIR 1980 Karnataka 92 this Court should follow the larger bench decision. Mr. Tulzapurkar also submitted that the decision of the appropriate Government can be challenged if it is perverse or there is non-application of mind or is based on any extraneous or irrelevant considerations and in the instant case there was ample material in the form of failure report of the Conciliation Officer and detailed submissions of the parties made before the Government. The impugned order cannot be equated with a judgment of a Court so as to require analysis of facts or submissions, further urged Mr. Tulzapurkar. According to him, this Court has to be satisfied that the reason given by the appropriate Government was based on material which is germane and that there was proper application of mind and further that this Court cannot quash the impugned order on the ground of insufficiency or inadequacy of reasons. In the final analysis, Mr. Tulzapurkar submitted that the impugned order does not suffer from any defect and cannot be assailed on any ground and should be upheld by this Court. In support of his contentions, Mr. Tulzapurkar relied upon cases of (i) State of Bombay (now Maharashtra) v. K. P. Krishnan and Ors. AIR 1960 S. C. 1223; (ii) Bombay Union of Journalists and Ors. v. The state of Bombay and Anr. 1964 S. C. 1617; (iii) Shambu Nath Goyal v. Bank of Baroda AIR 1978 S. C. 1088; (iv) Ram A vtar Sharma and Ors. v. State of Haryana and Anr. AIR 1985 S. C. 915; (v) A. Sundarambal v. Government of Goa, Daman, Diu and Ors. AIR 1985 L. L. J. 881; (vi)A. Sundarambal v. Government of Goa, Daman, Diu and Ors. 1988 II C. L. R. 316; (vii)Workmen employed by Hindustan Lever Limited v. Hindustan Lever Limited AIR 1984 S. C. 1683; and (viii) Hochtief Gammon v. State of Orissa and Ors. AIR 1975 S. C. 2226.