ALCOBEX METALS LTD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BOTH these petitions have been filed challenging the reference made by the Appropriate Government under the provisions of the Industrial Disputes Act, 1947 (for short, "the Act") dated 6.11.99 on the ground that earlier, vide order dated 5.7.95, in respect of the same workmen, the Appropriate Government refused to make a reference and as the said workmen had been appointed for a fixed term, the termination of their services was covered by the provisions of Section 2(oo)(bb) of the Act and, therefore, there could be no industrial dispute and the Appropriate Government committed an error in making the reference, hence the same deserves to be quashed.

(2.) THE facts are not in dispute. THE workmen, in respect of whom the reference has been made, had been employed by the present petitioner and their services stood terminated. Earlier, inspite of raising the industrial dispute, the Appropriate Government refused to make a reference, however, at a later stage, the reference has been made. Hence these petitions.

(3.) IN M/s. Western INdia Watch Co. Ltd. vs. Western INdia Watch Company's Workers Union & Ors. (6), the Hon'ble Supreme Court observed as under :- "It would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a re- consideration of the matter either because new facts have come to light for because it has misunderstood the existing fact or for any other relevant consideration and decided to make the reference.... The function of the Government either under Section 10(1) of the Central Act or under a similar provision in the State Act being administrative principle, such as res-judicata applicable to judicial act did not apply and such a provision cannot be imported for consideration when the Government first refused to refer and later changed its mind. IN fact, when the Government refuses to make a reference, it does not exercise its power; either it refused to exercise its power and it is only when it decides to refer that it exercises its power. Ultimately the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage... IN this view, the mere fact that there has been a lapse of time or that a party to dispute was, by the earlier refusal, led to believe that there would be no reference and acted upon such belief does not affect the jurisdiction of the Government to make the reference."