BAL KISHAN GUPTA Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) THIS appeal is directed against judgment dated December 7, 1989, passed by the learned Single Judge, by which the learned single Judge dismissed the writ petition filed by the petitioner and maintained the order of the Central Government by which the Central Government refused to make a reference for adjudication to the Tribunal.

(2.) APPELLANT - petitioner Bal Kishan Gupta was appointed as an agent by M/s. S. Gupta and Co. (Mining Department) at Kalaguman Emerald Mine, Udaipur district at the salary of Rs. 500a per month. By the notice dated July 15, i 978 the employer terminated the service of Bal Kishan Gupta with effect from July 31, 1978. Shri Bal Kishan Gupta raised an industrial dispute before the Conciliation Officer, which ended in failure. The Assistant Labour Commissioner (Central), Ajmer, on August 31, 1979, submitted the failure report. The failure report, submitted by the Reconciliation Officer was considered by the Central Government and the Central Government, by its order dated January 7, 1980 refused to refer the dispute for adjudication to the Tribunal as according to the Centra) Government, Bal Kishan Gupta does not fall within the category of 'workman' as defined in the Industrial Disputes Act, 1947 (for short 'the Act1 ). Dissatisfied with the order dated January 7, 1980 passed by the Central Government refusing to make a reference to the Tribunal, appellant - petition Bal Kishan Gupta filed the writ petition before this Court which was dismissed by the learned single Judge by his judgment dated December 7, 1989. It is against this judgment passed by the learned single Judge that the appellant has preferred this appeal.

(3.) IT is contended by the learned counsel for the appellant that the order of the Central Government refusing to refer the dispute for adjudication to the Tribunal on the ground that the appellant is not a workman, does not contain any reasons why the appellant is not a workman and this infirmity goes to the root of the case. It has, also been contended by the learned counsel for the appellant that the Central Government, while refusing to make reference, has gone into the merits of the case and decided the dispute which is in excess of the powers conferred upon the Central Government under Section 10 read with Section 12 (5) of the Act and the order passed by the Central Government refusing to make a reference, deserves to be quashed and set-aside. It has, also been contended by the learned counsel for the appellant that the order, passed by the learned single Judge, also deserves to be quashed and set aside as he has not properly considered the position of law set in various judgments of the Supreme Court. In support of his contention learned counsel for the appellant has placed reliance over : Kendriya Sarvodaya Sahkari Satniti Ltd. , Jaipur v. Jawan Singh Ranawati 1967 RLW 73, Bombay Union of Journalists and Ors. v. State of Bombay and Anr. (1964-1llj-351), Shambu Nath Goyal v. Bank of Baroda (1978-I-LLJ-484), Nirmal Singh v. State of Punjab and Ors. (1984-II-LLJ-396), The Madhya Pradesh Irrigation Karamchari Sangh v. State of 'madhva Pradesh and Anr. (1985-I-LLJ-519), Workmen of Syndicate Bank, Madras v. Government of India and Anr. 1985-51 FLR 131, Telco Convoy Drivers Mazdoors Sangh and Anr. v. State of Bihar and Ors. (I989-II-LLJ-558) and R. S. R. T. C. and Ors. v. Shri Ram Yadav 1995 (3) WLC 16. Leaned counsel for the respondents, on the other hand has supported the judgment passed by the learned single Judge and has submitted that it is not each and every case which should be referred for adjudication to the. Tribunal and the Central Government, while making a reference, has to prima facie consider whether there exists any industrial dispute which should be referred for adjudication to the Tribunal and while forming an opinion the appropriate Government has, prima facie, to look into the merits of the case. As the appellant petitioner was not a workman, the Central Government has rightly refused to make a reference to the Tribunal. In support of his contention, learned counsel for the respondent has placed reliance over : Bombay Union of Journalists and Ors. v. The State of Bombay and Ors. (supra) and Kalu Ram v. The State of Rajasthan and Ors. I992wlr Raj 166.