Allowed

P. Issac Samraj v. Ministry of Labour and Employment

Madras HC1 Jun 2023WA/1123/2023

Case brief

AI extract

What is this about?

The High Court held that where a dispute falls under Section 2A of the Industrial Disputes Act, 1947, the Government cannot decline to refer it nor can it decide the dispute. The employee is directed to file a claim before the Industrial Tribunal.

What did the court decide?

The employee is directed to file a Claim Statement before the Industrial Tribunal or the Labour Court to decide the dispute.

P. Issac Samraj Vs Ministry of Labour and Employment — Writ and Judicial Review | Madras HC (2023)

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W.A. No. 1123 of 2023

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IN THE HiGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.06.2023

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CORAM

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THE HON'BLE MR.JUSTICE S. VAIDYANATHAN

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AND

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THE HON'BLE MR. JUSTICE K. RAJASEKAR

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W.A. No. 1123 of 2023

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P. Isaac Samraj ..Appellant

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Vs.

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Ministry of Labour & Employment rep. by its Under Secretary, Govt. of India, Shram Sakthi Bhawan, Rafi Marg, New Delhi – 110 001.

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The Managing Director & CEO, Exide Life Insurance, 3rd Floor, JP Techno Park, No.3/1, Millers road, Bangalore, Karnataka – 560 001.

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https://www.mhc.tn.gov.in/judis

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W.A. No. 1123 of 2023

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The Executive Vice – President, Exide Life Insurance, Prince Kushal Tower, Anna Salai, Chennai -2. ..Respondents

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For Appellant :: Mr.S. Arunachalam For Respondents :: Mr.T.L. Thirumalaisamy for R1

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( Delivered by S. Vaidyanathan,J.)

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The present appeal has been preferred against the order dated

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11.01.2018 passed by the learned Single Judge dismissing the writ petition thereby confirming the order of the 1st respondent/Government in declining

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to refer the dispute with regard to the discharge of the appellant with effect from 01.03.2017 to the Central Government Industrial Tribunal cum Labour

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Court, Chennai for adjudication.

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The appellant/writ petitioner, questioning his discharge

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from service with effect from 01.03.2017, raised an industrial dispute before the Conciliation Officer and the Conciliation Officer submitted a failure report to the Government. On receipt of such report, the Central Government, after considering the same, may either refer the dispute for adjudication or refuse to do so, by exercising its powers under Section 10 of the Industrial Disputes Act, 1947 ('I.D. Act' in short). A reference is not required for a dispute raised under Section 2A of the I.D. Act, 1947. In the present case, taking note of the fact that the appellant/writ petitioner was appointed as an Assistant Sales Manager and was drawing a salary of Rs.34,805/-, the Government came to the conclusion that the appellant/writ petitioner was not a 'workman' within the meaning of Section 2(s) of I.D.Act, 1947 and passed an order dated 25.08.2017 declining to refer the dispute for adjudication. Challenging the said order, the writ petition came 3\9

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to be filed, which was also dismissed by the order under challenge. Hence,

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the present writ appeal.

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Heard the learned counsel for the appellant and the

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learned counsel for the 1st respondent.

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The Government cannot decide the dispute between the

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parties and it is only the industrial adjudicator, who, on a reference made,

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can render a finding taking note of the evidence let in, both oral and

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documentary. The designation or the salary drawn by an employee cannot

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decide the factum whether he is a workman or not. It is ultimately the nature

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of work that determines whether an employee is a workman or not. The

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Hon'ble Apex Court , in the decision rendered in Ananda Bazar Patrika (P)

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Ltd. V. The Workmen reported in 1969 2 LLJ 670 SC has categorically

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held as to how an employee comes within the purview of Section 2(s) of

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I.D.Act, 1947. There are a catena of decisions on this aspect. However,

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subsequently, the Apex Court in its decision in M.P. Irrigation Karamchari 4\9

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Sangh V. State of M.P. and Another reported in 1985-1-LLJ 519 (SC) has

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held that the Government cannot decide the dispute between the parties.

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In the present case, the Government has refused to refer

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the dispute for adjudication. Though we can remand the matter to the Government for fresh consideration, taking note of the decisions rendered by

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the Hon'ble Supreme Court in Sankari Cement Alai Thozhilalar Munnetra Sanga V. Government of Tamil Nadu ((1983) 1 SCC 304) V. Veerarajan

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V. Government of Tamil Nadu ((1987) 1 SCC 479) and Telco Convoy Drivers Mazdoor Sangh V. State of Bihar ((1989) 3 SCC 271), we are not inclined to do so in this case, as reference by the Government is not required

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in cases falling under Section 2A of the Industrial Disputes Act, 1947. Section 2A of the Industrial Disputes Act, 1947 was amended and certain provisions have come into effect w.e.f. 15.09.2010. For better understanding, Section 2A is scanned below:

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After amendment to Section 2A, more so insertion of

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certain provisions to Section 2A, which has come into effect w.e.f.

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15.09.2010, based on the conciliation failure report, the employee is entitled

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to approach the Labour Court or the Tribunal in cases falling under Section 2A of the Act. Hence, the employee is directed to file a Claim Statement

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before the Industrial Tribunal or the Labour Court and the said Tribunal shall entertain the industrial dispute and decide the same in accordance with

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law. The Industrial Tribunal which is going to hear the matter shall take into

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account Rule 10B-(8) of the Industrial Disputes (Central) Rules, 1957 and

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proceed with the matter without adjourning the same beyond seven working

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days at any given point of time and pass an Award as expeditiously as possible. The writ appeal is disposed of accordingly. No costs. (S.V.N.J.) (K.R.S.J.) nv 01.06.2023 S. VAIDYANATHAN,J.

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AND

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K. RAJASEKAR,J. nv To 1. Under Secretary, Ministry of Labour & Employment, Govt. of India, Shram Sakthi Bhawan, Rafi Marg, New Delhi – 110 001. W.A. No. 1123 of 2023 2. The Managing Director & CEO, Exide Life Insurance, 3rd Floor, JP Techno Park, No.3/1, Millers road, 8\9

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https://www.mhc.tn.gov.in/judis

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Bangalore, Karnataka – 560 001.

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