MOHIDIN M SANGAM Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule. Heard forthwith. The petitioner has moved this Court to impugn the communication of September 4, 2006 whereby the Central government as the appropriate Government has rejected the reference sought for by the petitioner in the manner of his status as workman employed with respondent No. 2. It is the case of the petitioner that he was employed by respondent No. 2 as driver-cum-operator since from 1999 and since then he was in continuous service till the time of his termination. Initially, the petitioner was receiving his payments of fixed monthly amount directly from respondent No. 2. The petitioner's case is that subsequently to deprive him of his regular benefits after few years, respondent No. 2 through camouflage arrangement engaged the petitioner through a contractor i. e. Trust Us Security Service without the knowledge of the petitioner. It is further case of the petitioner that he does not know to read, write and/or to understand english though he signs in English language. On August 1, 2005, it is the petitioner's case that the Station In-charge respondent No. 2 asked workman not to join the duty and thereafter, he was not allowed to join the duty which results in refusal of work and ultimately resulted in his termination without complying with the requirements of law and consequently, said termination is illegal. The petitioner aggrieved by the action of the respondent No. 2 raised industrial dispute through Gomantak Majdoor Sangh by letter dated. August 14, 2005 calling on commissioner, Labour and Employment, government of Goa to intervene in the matter of his illegal termination. The Conciliation proceedings were commenced. The proceeding ended in failure on account of according to the petitioner the adamant attitude of respondent no. 2. The Conciliation Officer forwarded its failure report to the Government. The failure report made available to the petitioner is only in the nature of communication as to what had transpired. The real failure report which the Conciliation officer normally forwards to the appropriate govt, has not been made available to the petitioner or to the employer. Subsequent to the failure report, petitioner received communication dated. September 4, 2006 giving the reasons for not referring the matter to the Industrial Tribunal. The letter read as under:

(2.) The petitioner aggrieved by his rejection, preferred this petition. A reply has been filed on behalf of respondent No. 2. The respondent No. 2 it is stated was appointed as operation assistance for a period of one year. The first contract was entered into on January 1, 2001 for the period of one year till December 31, 2001 on a payment of a consolidated amount of Rs. 34,800/- p. a. and after expiry of the said contract, a fresh contract was entered into by respondent No. 2 with the petitioner for further period of one year from January 1, 2002 to December 31,2002 on consolidated amount of Rs. 38,400/- p. a. On the expiry of contracts, the terms was extended for the period of 3 months till March 2003. It is set out that that on the expiry of said period of contract, the petitioner joined another contractor of respondent No. 2, 'trust Us security Service' from April 2003 and continued the employment in July 2005. It is their case that the petitioner repeatedly stopped attending the duties at even Trust Us Security service. These facts it is stated, would reveal that the petitioner was not employed by respondent No. 2. In these circumstances, the issue of entry pass by the Port Authorities, cannot lead to the inference that there is employer and employee relationship. It is not necessary to address to the other facts which are set out on record.

(3.) There can be no dispute that it is open to the appropriate Government to refuse to make a reference but in doing so, it must record its reasons. In the instant case, the reason given is that the petitioner had not shown any documentary evidence to prima facie show that he is a workman. The petitioner in fact had produced two documents. The question is, whether the reasons given by the appropriate govt in refusing to make reference can be sustained. It is not the case of the appropriate Government that documentary evidence produced does not establish that the petitioner is a workman. On the contrary, the reason given is that the Union could not produce documentary evidence in support of their contention. Factually that appears to be incorrect. Apart from that by communication dated November 25,2006 the Union had drawn the attention of the Secretary, Ministry of labour after the communication of rejection of reference that documents in support had been produced. Cognizance was also not taken of this document and the representation was rejected.