SUNIL Vs. UNION OF INDIA

JUDGEMENT

(1.) This Order shall also govern the disposal of W.P. Nos. 7890/2009 and 7891/2009 as in all the petitions appropriate Government has refused to refer the dispute raised by petitioner. The prayer in this petition is to quash the order Annexure-P/10, dated 26.6.2009 while in W.P. Nos. 7890/2009 and 7891/2009 the order are Annexure-P/9, dated 17.7.2009.

(2.) Learned Counsel for the petitioner submits that petitioner was working as Waterman temporarily w.e.f. 10.12.1988 and worked upto September, 2007. It is submitted that petitioner has worked for more than 240 days in every calendar year. It is submitted that since petitioner was not regularized, therefore, petitioner raised the dispute before appropriate Government and case was sent for conciliation wherein report was submitted, thereafter vide order dated 26.6.2009 appropriate Government passed the order Annexure-P/10 wherein it is alleged that since the petitioner has failed to produce any documentary evidence that he was engaged by the management, hence, the dispute is not deemed fit for adjudication. It is submitted that order Annexure-P/10 is contrary to the document Annexure-P/1. It is submitted that document Annexure-P/1 shown that petitioner has worked in different-different period i.e., w.e.f. 10.12.1988 to March, 1989, April, 1989 to December, 1989, 21.2.1992 to December, 1994 and 1.4.1996 to 31.1.2007. Learned Counsel placed reliance on a decision in the matter of Telco Convoy Drivers Mazdoor Sangh v. State of Bihar, 1989 59 FLR 734, wherein Hon'ble Apex Court has held that while exercising power under section 10(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 the lis, which would certainly be in excess of the power conferred on it by section 10. 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. Where, as in the instant case, the dispute was whether the persons raising the dispute are workmen or not the same cannot be decided by the Government in exercise of its administrative function under section 10(1) of the Act. The order of the Government refusing to refer the dispute on ground that the persons raising the dilute are not workmen is liable to be set-aside. It is submitted that keeping in view the aforesaid position of law petition filed by the petitioner be allowed and Annexure-P/10 be quashed.

(3.) Learned Counsel for the respondent No. 3 submits that petitioner has never worked as Waterman in the respondent/bank. It is submitted that no officer at the branch level of the bank has any authority to engage a person even on daily wages for any work of the bank. It is submitted that as per instructions contained in Bank's circular dated 7.9.1992 persons may be engaged only on scale wages/consolidated wages subject to prior written approval of the bank's General Manager if any person is engaged in terms of the said circular instructions, he would be issued an appointment letter to this effect. It is submitted that as per circular mentioned hereinabove it is deal that no one can be employed without specific written approval of the bank's General Manager and if in the past any branch has employed/engaged any person without such a permission, a post facto sanction should be obtained from the hank's General Manager. It is submitted that order Annexure-P/10 is not the order on merits. It is submitted that since no documentary proof was filed before Competent Authority, therefore, order has rightly been passed. It is submitted that before referring the dispute appropriate Government is required to form an opinion as to whether an industrial dispute is existing or is apprehended. It is submitted that since petition filed by the petitioner has no merits, therefore, the same be dismissed.