The Management Vs The Additional Chief Secretary

To issue a Writ of Certiorari, call for the records of the 1^st Respondent in G.O.(D) No. 642 Labour and Employment (A2) Department and quash its order dated 18.12.2020 and pass such further orders as this Hon’ble Court may deem fit.

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Prayer in W.M.P.No. 2749 of 2021

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To grant interim stay of the impugned order of the 1^st Respondent in G.O.(D) No. 642 Labour and Employment (A2) Department dated 18.12.2020 during the pendency of the writ petition.

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Appearance of Parties:

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For Petitioner: Mr.S.Ravindran, Sr.Counsel For M/s. S.Bazeer Ahamed and C.Yamini, Advocates For R1 : Mr.K.Tippu Sulthan,

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Government Advocate For R2 : Mr.V.Ajay Ghose, Advocate

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JUDGMENT

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Heard.

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The writ petition has been filed by the management challenging the

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order of the Tamil Nadu Government issued in G.O.D. No. 642, Labour and

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Employment Department , dated 18.12.2020. By this order, the State

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Government (represented by the 1st Respondent), in the exercise of its powers under Section 10(1)(d) of the Industrial Disputes Act, referred the dispute between the petitioner management and the 2nd Respondent workman to the Labour Court, Kanchipuram, for adjudication. The Labour Court was requested to dispose of the industrial dispute within three months from the date of receipt of the order of reference. However, due to the interim stay obtained by the management from this Court, more than four years have now elapsed without any progress in the adjudication of the dispute.

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In the annexure to the order of reference, the terms of reference were

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specified. It was stated that the issue to be adjudicated was whether the claim of the trade union that 72 workers, whose names were listed in the order, were subjected to a lockout by the management was valid, and whether their demand

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for full wages and reinstatement for the period of the alleged lockout was justified. The Labour Court was directed to determine the issue and pass

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appropriate orders. The writ petition was admitted on 04.02.2021, and on the

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same day, an interim stay on the order of reference was granted in the miscellaneous petition.

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Upon notice from the Court, the 1st Respondent entered an

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appearance and filed a counter affidavit dated 11.01.2022. The workmen are

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represented by counsel.

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The petitioner’s learned counsel relied on the Division Bench

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judgment of the Madras High Court in W.A. No. 3622 of 2022 ( 2005 (2) CTC 1

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– ONGC Case ), citing the Supreme Court’s ruling in Ram Avtar Sharma &

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Others v. State of Haryana & Another (1985 (II) LLJ 187), to argue that while

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judicial review of an administrative order under Section 10(1) of the Industrial

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Disputes Act (ID Act) is limited, the writ court is not entirely precluded from interference when there is a lack of application of mind. The petitioner

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contended that the government's reference, issued in 2020, was stale, vague

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and meaningless as the alleged lockout dated back to 2008 and that the original

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dispute concerned non-employment but was wrongly framed as a lockout issue,

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demonstrating non-application of mind. The respondent countered that the reference was an administrative order, non-justiciable, and based on relevant materials, asserting that the workmen, who alleged a lockout, and the management, which denied it, had conflicting claims that justified the government’s careful wording of the reference. The respondent further argued that the dispute arose in 2008, the workmen raised their grievance within ten days, and any litigation delay was caused by the management, so no laches could be attributed to them, and the Tribunal could mould appropriate relief.

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On the Government side, referring to paragraph 9 of its affidavit, the learned Counsel maintained that it had sent communications regarding the status of 48 workmen, to which the management failed to respond, demonstrating the existence of a continuous dispute and validating the reference.

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Notably, this marks the second round of litigation initiated by the

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management, seemingly aimed at obstructing any relief sought by the workmen

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under the provisions of the Industrial Disputes Act. In the earlier instance, the

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https://www.mhc.tn.gov.in/judis management had filed W.P. No. 3094 of 2010 , challenging the conciliation 5/21

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proceedings initiated by the Joint Commissioner of Labour. In that petition, the

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management sought a writ of prohibition to restrain the Conciliation Officer

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from conducting conciliation talks.

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The said writ petition was dismissed by order dated 18.02.2010, with the following observations:

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“38. The Industrial Disputes Act is the only machinery provided for the workmen to have their grievance settled either by conciliation or by adjudication. There is no other third option open to the workmen. If attempt made by the management to thwart the proceedings by seeking a writ of prohibition, the very machinery will be jeopardized and the workmen will lose faith in the machinery created for the purpose of resolving the grievances of the workmen.

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39. It will not be out of place to refer to a recent judgment of the Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, in Civil Appeal No.587 of 2010 (arising out of SLP(C) No.6966/2009), dated 05.01.2010, wherein G.S.Singhvi, J. had observed as follows:

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"23....It need no emphasis that if a man is deprived of

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his livelihood, he is deprived of all his fundamental and

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constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employers “public or private."

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40. A.K.Ganguly, J., in his concurring opinion had observed as follows:

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"46. At this critical juncture the judges' duty,

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to my mind, is to uphold the constitutional focus on social justice without being in any way mislead by the glitz and glare of globalization."

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Following the dismissal of the writ petition, the management filed a

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writ appeal, W.A. No. 1450 of 2010 , before a Division Bench, challenging the

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order of the learned Single Judge. When the appeal was taken up for hearing on

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05.01.2017, the management chose to withdraw it. In its order dated

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https://www.mhc.tn.gov.in/judis 05.01.2017, the Division Bench permitted the withdrawal but explicitly 7/21

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recorded that no leave was granted to file a fresh writ appeal on the same cause

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of action.

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While the writ appeal proceedings were pending, the 2nd Respondent

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Trade Union submitted a detailed letter dated 17.02.2014 to the Assistant Commissioner of Labour, requesting intervention to facilitate a settlement between the parties under Section 12(3) of the Industrial Disputes Act. Before the Conciliation Officer, the management filed a reply statement dated 14.05.2014. In that reply, the following averments were made in paragraphs 4 to 6:

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“ nkw;fz;l jhthit vGg;gpa[s;s ikdhhpl;o r';fkhdJ. mjDila

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17.08.2009 njjpapl;l fojj;jpy; Fwpg;gpl;Ls;sJ nghy;. 02/01/2008. 10/01/2008. 20/01/2008. 10/02/2008////////. 19/03/2009 nghd;w btt;ntW njjpfspy;. mJt[k; rpy

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Fwpg;gpl;l bjhHpyhsh;fSf;F kl;Lk; eph;thfk; fjtilg;g[ bra;Js;sJ vd;w g[fhuhdJ Mr;rhpakhft[k;. mog;gilaw;wjhft[k; kw;Wk; rl;lg;go rhpapy;yhjjhft[k; cs;sJ vd;gij kPz;Lk; bjhptpj;Jf; bfhs;fpnwhk;/

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bkhj;jjpy;. mg;g[fhuhdJ n$hoj;J fw;gidahf j';fsplk;

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eph;thfj;jpw;F mtg;bgah; cz;lhf;f ntz;Lk; vd;w nehf;fj;JlDk; kw;Wk;

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VjhtJ fhuz';fis Twp gzpf;F tuhknyna ,Ue;J bfhz;L.

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'

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' eph;thfj;jplkpUe;J vt;thnwDk; gzk; gwpf;f ntz;Lk; ' vd;w nehf;fj;JlDk; rkh;g;gpf;fg;gl;Ls;sJ/

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bra;atpy;iy ' vdf; Twp jhthtpy; rk;ge;jg;gl;Ls;s kPjKs;s 67 bjhHpyhsh;fis (ntiyia uh$pdhkh bra;jth;fs; eP';fyhf) cldoahf gzpf;F bry;YkhW cj;jutpl;L jhthit js;Sgo bra;a kPz;Lk; ntz;Lfpnwhk” ;

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Despite the management’s stance, the Assistant Commissioner of

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Labour (Conciliation), Sriperumbudur, issued an elaborate Failure Report dated

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02.03.2016. In the report, he cited the relevant portions from the management's

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reply and noted that multiple conciliation meetings had been conducted on various dates. However, as both parties remained firm on their respective positions, a settlement could not be reached, resulting in the failure of conciliation. Following the submission of the failure report, the matter was

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under consideration by the government. It was during this period that the

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management, on 05.01.2017, withdrew the pending Writ Appeal No. 1450 of

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2010 .

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Upon receiving the failure report dated 23.03.2020, the State

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Government sought opinions from the Joint Commissioner of Labour, Chennai, on 16.09.2020 and the Commissioner of Labour on 09.11.2020. Based on these

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recommendations, the government issued the order of reference, which is now under challenge in this writ petition. Despite having previously contested the conciliation proceedings in an earlier writ petition, the petitioner management

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has once again approached this Court, this time challenging the order of reference. It is pertinent to note that conciliation proceedings, the issuance of a

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failure report, and the subsequent government reference for adjudication form a continuous legal process. No party can selectively challenge each stage of this process at different levels, thereby frustrating the very purpose of adjudication.

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Anticipating that the management, after withdrawing its writ appeal, might attempt to initiate fresh writ proceedings, the Division Bench explicitly recorded the following observation in paragraph 2 of its order dated 05.01.2017:

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“Placing on record the above, writ appeal is dismissed as withdrawn. No leave is granted to file a fresh writ appeal, on the https://www.mhc.tn.gov.in/judis

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same cause of action. No costs. Consequently, the connected Miscellaneous Petition is closed.”

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Undaunted by the orders of the Division Bench, it is not open to the

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Petitioner to institute another writ petition and attempting to challenge the order of reference which was the culmination of the receipt of the failure report

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by the govt. Already the division bench in the appeal filed by the Petitioner had clearly stated that no liberty has been given to them to file a fresh writ petition

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in respect of same cause of action. The learned single judge who dealt with the

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first W.P. has given elaborate reasons for declining to interfere at the stage of

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conciliation proceedings. In the present case, the conciliation proceedings have

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already culminated in an order of reference to the Labour Court, which is the appropriate forum to adjudicate the dispute based on the pleadings and evidence presented by both parties and pass an Award answering the terms of

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reference. It is unnecessary to emphasize that the Labour Court is fully competent to consider all objections raised by the management, including

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challenges to the validity of the reference and the factual basis of the alleged

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non-employment, before rendering its Award on the terms of reference.

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However, in the present writ petition, the management has merely

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raised a factual dispute, contending that no lockout had occurred and alleging

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that the government failed to apply its mind while issuing the order of reference. In paragraph (viii) of the grounds raised, the petitioner has specifically stated as follows:

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“It is well settled in industrial jurisprudence that if the decision making process has been exercised on non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous and liable to be set aside., Since the impugned order has been passed in a mechanical manner, it is subject to judicial scrutiny and the present writ petition is maintainable. The impugned order is liable to be quashed because there is no industrial dispute in the eye of law which could be subject matter of reference for adjudication. Further, uncontroverted facts clearly shows that there is no denial

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of employment to any of the 79 workers whose names are found in https://www.mhc.tn.gov.in/judis

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the annexure to the order of reference. Even the reference is not sure whether there is a prima facie case of lockout as alleged by the 2^nd respondent union. Therefore, the impugned order is liable to be quashed in writ proceedings.”

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In the counter affidavit filed by the 1st Respondent, this averment was specifically denied in paragraph 14 and it is as follows:

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“With regard to the averments made in grounds (viii) and

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(ix) of the Affidavit, it is submitted that the First Respondent in careful exercise of powers issued the impugned Government order. The Writ Petitioner only with an intention to drag the issue one way or other, filed this Writ Petition, as if the First Respondent on erroneous assumption of power issued the impugned order.”

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In the counter affidavit, the circumstances that necessitated the order

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of reference for adjudication are detailed in paragraphs 9, 10, and 11. These

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passages are relevant and may be usefully reproduced as follows:

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“9. ...... It is submitted that though failure report had been

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submitted on 02/03/2016 and since no settlement could be arrived

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between the parties, the Conciliation Authority issued necessary

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communication to the management, to ascertain the present https://www.mhc.tn.gov.in/judis

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status of the workmen and the status regarding the payment of salary and other emoluments, concerning the workmen. However, the Writ Petitioner management has not submitted any reply regarding the same. Thereby the Conciliation Authority forwarded all the communications to the First Respondent together with failure report, recommendation and the proceedings issued for ascertaining the present position regarding the workmen through the Commissioner of Labour. On receipt of which, the Respondent on careful scrutinization of the report and the recommendation, the First Respondent being the statutory authority, issued the impugned Government order recommending and forwarded the charter of demands for adjudication before Labour Court, Kancheepuram in strict compliance of powers and authorities vested upon it.

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10. ….the Conciliation Authority issued due communication

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to the Writ Petitioner management in order to ascertain the real status of the workmen and the payment of salary. Since no communication is received, and in view of non-cooperation, the Conciliation Authority could not be able to make his recommendation to the First respondent for making further

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progress in respect of the demand raised by the Second respondent Trade union.

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11. …. the Conciliation Authority Assistant Commissioner of Labour submitted failure report dated 02/03/2016. The Joint Commissioner of Labour, forwarded his communication dated 16/09/2020 together with recommendation. In furtherance of which, the Commissioner of Labour has forwarded the conciliation failure report with his recommendation dated 09.11.2020 to the First Respondent. The First Respondent on scrutiny of the failure report and recommendation issued the Government Order in G.O.(D).No.642 Labour and Employment (A2) Department dated 18/12/2020. In view of the same, there is no latches for delay on the part of First Respondent, as alleged by the Writ Petitioner.”

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The learned Senior Counsel for the petitioner relied on the judgment of the Supreme Court in Prabhakar v. Joint Director, Sericulture Department & Ors. , reported in 2015 (15) SCC 1, and specifically referred to the observations made in paragraphs 16 and 17, which are as follows:

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“16. From the aforesaid discussion, it clearly follows that

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even when making a reference by the appropriate Government is

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an administrative act, before making such a reference it has to form an opinion as to whether any industrial dispute exists or is apprehended. While forming this opinion, the appropriate Government is supposed to take all relevant facts into consideration touching upon this aspect. If the power is not exercised properly, it is amenable to judicial review. Thus, where an industrial dispute exists or his apprehended, but the appropriate Government refuses to make reference, such a refusal can be challenged in the court of law. Conversely, which is equally true, if the reference is made even when no dispute exists or is apprehended, such a reference will also be subject to judicial review.

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17. ....Relying upon its earlier judgment in the case of C.P.

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Sarathy8, Prem Kakar v. State of Haryana & Anr., and Sultan Singh v. State of Haryana & Anr., the Court observed that the order under Section 10 of the Act was an administrative order and the Government was entitled to go into the question whether industrial dispute exists or is apprehended and it will be only subjective satisfaction on the basis of material on records and being an administrative order no lis is involved. The position in law was summarised as under:

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(i) the appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or apprehended and if such a reference is made it is desirable, wherever possible, for the Government to indicate the nature of dispute in the order of reference;

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(ii) the order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi-judicial one and the Court, therefore, cannot canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial order;

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(iii) an order made by the appropriate Government under Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government;

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(iv) if it appears from the reasons given that the

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appropriate Government took into account any

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consideration irrelevant or foreign material, the Court may in a given case consider the case for a writ of mandamus and;

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(v) it would, however, be open to a party to show

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that what was referred by the Government was not an industrial dispute within the meaning of the Act.”

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The judgment in question arose in the context of whether a

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non-existent dispute could be entertained at a belated stage, particularly when

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there was no explanation for the delay. However, none of the grounds discussed

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in that case are applicable to the present writ petition. Moreover, the management remains bound by the earlier observations of the Division Bench,

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which explicitly stated that no liberty was granted for a second round of

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litigation. The mere fact that the government has issued an order of reference

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does not create a fresh cause of action for the management to challenge the

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matter once again. The government has filed a counter affidavit denying the

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allegation of non-application of mind in issuing the reference. The decision

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was not made arbitrarily; apart from considering the failure report, the

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government also took into account the opinions of the Joint Commissioner of

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Labour and the Labour Commissioner. Therefore, the reference was not made

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based on mere apprehension but was supported by substantial material

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evidence.

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In any event, once the order of reference has been issued and the

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adjudication proceedings before the Labour Court have commenced, no civil right of the management is adversely affected. On the contrary, the Labour Court, being a court of law, is fully empowered to adjudicate all issues, including any preliminary objections raised regarding the validity of the reference. Accordingly, as the writ petition lacks merit, W.P. No. 2435 of 2021

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stands dismissed.

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