# Bankers Institute of Rural Development , Lucknow (6610 M/S 10) v. Rashtriya Krishi Evam Bankers Gram Vikas Sansthan Karmchari

- **Citation:** (2016) 8 ILRA 1126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-04
- **Bench:** Amreshwar Pratap Sahi, Dr. Vijay Laxmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bankers-institute-of-rural-development-lucknow-6610-m-s-10-v-rashtriya-krishi-44147
- **Pages:** 7

## Headnote

A.S.G., Shri Virendra Misra

Held -

Introduction & Scope of Appeal: This Special Appeal challenges a Single Judge's judgment dated July 5,

## Text

1126 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1126
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.08.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Special Appeal No.- 315 Of 2016

Bankers Institute of Rural Development , Lucknow (6610 M/S 10) ...Appellant
Versus
Rashtriya Krishi Evam Bankers Gram Vikas Sansthan Karmchari ...Respondent

Counsel for the Appellant:
Shri Vijyant Nigam

Counsel for the Respondent:
A.S.G., Shri Virendra Misra

Held -

Introduction & Scope of Appeal: This Special Appeal challenges a Single Judge's judgment dated July 5,
2016. The underlying dispute arose from a February 12, 2009 order by the Ministry of Labour (Government of
India), which had refused to refer an industrial dispute-concerning the allegedly illegal termination of workers
represented by the respondent Union-to adjudication.
The Government's Refusal Order: The Ministry of Labour had declined the reference on the grounds that
the management held a Certificate of Registration under the Contract Labour (Regulation & Abolition) Act,
1970, and that the Union had failed to establish a direct employer-employee relationship, rendering the
dispute unmaintainable.
Arguments of the Appellant: Counsel for the appellant argued that the Union's original complaint admitted
the workers were contracted via an intermediary, proving no direct employment existed. They further
contended that the 1970 Act operates as a complete code that ousts the jurisdiction of the Industrial Disputes
Act, 1947, meaning these contract laborers did not qualify as "workmen." Thus, they argued the Ministry was
fully justified in applying its mind and refusing a meritless reference.
Arguments of the Respondents: Counsel for the respondents countered that the Ministry exceeded its
administrative jurisdiction by actively adjudicating the complex question of an employer-employee relationship
rather than merely forming a prima facie (at first sight) opinion on whether an industrial dispute simply
existed or was apprehended.
Court's Analysis & Precedents: The High Court observed that while the government has the administrative
power to form an opinion on whether a dispute exists, it cannot step into the shoes of a tribunal and decide
the merits of the case. Citing settled Supreme Court precedents, the Court noted that deciding whether a
worker is an employee or a contract laborer is a matter for judicial adjudication, not administrative dismissal.
Final Decision: The High Court held that the Ministry's abrupt conclusion-that a registration certificate
under the 1970 Act automatically erased an employer-employee relationship-constituted an impermissible
adjudication on merits. Finding no error in the Single Judge's directive for the government to reconsider the
matter afresh, the High Court rejected the Special Appeal.
8 All. Bankers Institute of Rural Development , Lucknow (6610 M/S 10) Vs Rashtriya Krishi
 Evam Bankers Gram Vikas Sansthan Karmchari
1127
List of Case Law Citations
1. The following judicial precedents were cited within the judgment text:
2. Ram Shiromani Yadav v. Conciliation Officer and others, 2012 (4) ADJ 347
3. Bombay Union of Journalists v. The State of Bombay and others, AIR 1964 SC 1617
4. Steel Authority of India Limited and others etc. etc. v. National Union Water Front Workers
and others etc. etc., 2002 UPLBEC (2) 228
5. Telco Convoy Drivers Mazdoor Sangh and another v. State of Bihar and others, (1989) 3 SCC
271
6. Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nadu, (1983) 1 SCC
304 : 1983 SCC (L&S) 139 : (1983) 1 Lab LJ 460
7. Ram Avtar Sharma v. State of Haryana, (1985) 3 SCC 189 : 1985 SCC (L&S) 623 : (1985) 3 SCR
686
8. M.P. Irrigation Karamchari Sangh v. State of M.P., (1985) 2 SCC 103 : 1985 SCC (L&S) 409 :
(1985) 2 SCR 1019
9. Nirmal Singh v. State of Punjab, 1984 Supp SCC 407 : 1985 SCC (L&S) 38 : (1984) 2 Lab LJ 396
10. Dhanbad Colliery Karamchari Sangh v. Union of India and others, 1991 Supp (2) SCC 10

(Delivered by Hon'ble Amreshwar Pratap Shahi, J.
&
Hon'ble Dr. Vijay Laxmi, J.)

1. Heard Dr. Ashok Nigam, learned Senior Counsel for the appellant, Sri Ajai Kumar
Singh, learned Counsel for the respondent No.1 and Sri Virendra Misra, learned Counsel for the
respondent No.2.

2. This Special Appeal questions the correctness of the judgment of the learned Single
Judge dated 5.7.2016 arising out of the order passed on 12.2.2009 by the Government of India,
Ministry of Labour, whereby it has refused to refer a dispute as raised by the first respondent. In
order to understand the controversy, the order passed by the Government of India is extracted
hereunder:-

"NO - L-12011/115/2008 - IR (B-II)
Government of India//Bharat Sarkar
Ministry of Labour/Shram Mantralaya

New Delhi, Dated: 12/02/2009

To,

1. The Chief General Manager
NBSC
Sector - 'H', LDA Colony, Kanpur Road
Lucknow

2. The President
1128 INDIAN LAW REPORTS ALLAHABAD SERIES

NBARD Sansthan Karmachari Sabha, 25/26
Union Bhavan Arya Nagar
Lucknow

Subject: I.D. between the management of NABARD/NBSC/BIRD and President,
National Bank for Agriculture & Rural Development Sansthan Karmachari Sabha, Lucknow over
the issue in illegal termination of services by the management - reg.

Sir,

I am directed to refer to the Failure of Conciliation Report No.K 7(9)/2008-E.1
dated 18.8.2008 from the RLC (Kanpur (U.P.)) received in this Ministry on 28/08/2008 on the
above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit
for adjudication for the following reasons:

"The management has taken certificate of Registration under sub-section 2 of the
Contract Labour (Regulation & Abolition) Act, 1970 and the Contract Labour (R&A) Central
Rules, 1971. The Union failed to provide employer-employee relationship between the
management and the workman. Hence, the dispute raised is not maintainable."

Yours faithfully

(Rajinder Kumar)
DESK OFFICER
T.No. - 23001147
Email - irb2@lisd.delhi.nic.in

Copy to:
1. Regional Labour Commissioner (Central), Kanpur (U.P.)
2. Assistant Labour Commissioner (Central), Kanpur (U.P.)"

3. The aforesaid order had been passed on the complaint dated 6.4.2005, copy whereof is at
page - 126 of the paper book. The relevant paragraph of the said complaint is extracted hereunder:-

"mDr izfr"Bku ij Bsdk Je 1⁄4mRlknu ,oa fofu;eu1⁄2 vf/kfu;e 1970 ykxw gksrk gS A lsok;kstdksa }kjk
fu;fer izd`fr ds dk;Z dks Bsdsnkj ds ek/;e ls fu;ksftr deZpkfj;ksa ls djk;k tk jgk gS] ijUrq mUgsa fu/kkZfjr osru rFkk
vU; lqfo/kk,a tks lh/ks lsok ls fu;ksftr deZpkjh gS] muds lerqY; ugh ns jgs gS] cfYd tks osru fn;k tk jgk gS og cgqr
de fn;k tkrk gS A ;gh rd fd dsUnz vkSj izns'k ljdkj }kjk fu/kkZfjr vlaxfBr {ks= ds Jfedksa dks ns; osru vkSj eagxkÃ
HkRrk Hkh ugh fn;k tkrk gSA budk ih0,Q0 ugh dkVk tkrk] esfMdy ugh fn;k tkrk gS A R;ksgkjh] okf"kZd vkSj vkdf"ed
fdlh izdkj dh NqVVzh ugh nh tkrh gS A"

4. Learned Counsel for the appellant has vehemently urged that the nature of the complaint
itself clearly amounts to an admission of the fact that the workers were contract labourers of the
8 All. Bankers Institute of Rural Development , Lucknow (6610 M/S 10) Vs Rashtriya Krishi
 Evam Bankers Gram Vikas Sansthan Karmchari
1129
Contractor and there was admittedly no employer-employee relationship so as to construe an
industrial dispute and therefore the conclusion drawn by the authority was correct. This aspect of
the matter has been overlooked by the learned Single Judge and therefore, the order is vitiated.

5. The next argument of the learned Counsel for the appellant is that the Contract Labour
(Regulation & Abolition) Act, 1970 is itself a complete Code where any such relief can be claimed
and therefore, the jurisdiction of the Industrial Court under the Industrial Disputes Act, 1947 is
clearly ousted.

6. The third contention is that in view of the definition of the word 'workman' contained in
the 1947 Act and compared to that of the 1970 Act, it is clear that the contract labourers represented
by the first respondent were not workmen as per the said definition. It is therefore submitted that in
view of all these submissions, the conclusion drawn by the Central Government is correct for which
reliance is placed on the same judgments that have been referred to by the learned Single Judge in
the impugned judgment dated 5.7.2016.

7. Sri Nigam has relied on the observations in Para 10 of the learned Single Judge in the
case of Ram Shiromani Yadav vs. Conciliation Officer andothers [2012 (4) ADJ 347] as well as
the apex Court decisions referred to therein particularly the case of Bombay Union of Journalists
v. The State of Bombay and others [AIR 1964 SC 1617]. It has further been added that in view of
the decision in the case of Steel Authority of India Limited and others etc. etc. v. National Union
Water Front Workers and others etc. etc. [2002 UPLBEC (2) 228 paragraph 121], it is clear that
the members of the respondent No.1/Union were neither workmen nor there was any employeremployee relationship and therefore this issue having been prima facie looked into by the
competent authority, it was absolutely justified in refusing to make a reference. The contention
therefore is that the authority is not a mere post office for making a reference and having the power
to prima facie apply its mind has rightly passed the order which has been not viewed by the learned
Single Judge in correct perspective.

8. Learned counsel for the respondents submits that what the authority has done is an
adjudication of the very issue of the existence of employer-employee relationship so as to deny the
reference. In such a situation, it cannot be said that the order that was impugned before the learned
Single Judge was an order not without jurisdiction. To the contrary, the authority has acted in
excess of jurisdiction by adjudicating the issue of employer-employee relationship and the
argument of the learned counsel for the appellants that there was an admission in this regard is
absolutely incorrect. It is urged that the issue with regard to the claim which existed and was also
apprehended ought to have been sent for adjudication.

9. Having considered the submissions raised, what we find is that the learned Single Judge
appears to have rightly relied on the judgment in the case of Ram Shiromani Yadav v. Conciliation
Officer and others [2012 (4) ADJ 347], inasmuch as the said judgment in turn relied on the
judgment in the case of Telco Convoy Drivers Mazdoor Sangh and another v. State of Bihar and
others [(1989) 3 SCC 271]. Paragraph - 13 of the judgment in Ram Shiromani's case (supra) is
1130 INDIAN LAW REPORTS ALLAHABAD SERIES

extracted hereunder:-

"13. Again in Telco Convey Drivers Mazdoor Sangh and another v. State of Bihar
and others, (1989) 3 SCC 271, the Apex Court observed that while considering the question of
making a reference under Section 10 (1) the Government is entitled to form an opinion as to
whether as industrial dispute "exists or is apprehended" but it is not entitled to adjudicate the
dispute itself on merit. The formation of opinion as to whether industrial dispute exists or
apprehended is not the same thing as to adjudicate the dispute itself on its merits. It was
further observed that when Government refusal to make reference is to be found unjustified, Court
can direct the Government to make a reference to appropriate tribunal. The pertinent observation
made by the Apex Court in this regard contained in paras 11, 15 and 16 of the decision are
extracted as under:

11. It is true that in considering the question of making a reference under Section
10 (1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or
is apprehended", as urged by Mr. Shanti Bhusan. 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. In the instant case, as already stated, the dispute is as to whether the convoy drivers
are employees or workmen of TELCO, that is to say, whether there is relationship of employer and
employees between TELCO and the convoy drivers. In considering the question whether a refer,
should be made or not, the Deputy Labour Commissioner and/or the Government have held that the
convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has
been decided by the Government which is undoubtedly, not permissible.

15. We are, therefore, of the view that the State Government, which is the
appropriate Government, was not justified in adjudicating the dispute, namely, whether the convoy
drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the
Deputy Labour Commissioner acting on behalf of the Government and that of the Government itself
cannot be sustained.

16. ...........In several instances this Court had to direct the Government to make a
reference under Section 10 (1) when the Government had declined to make such a reference and
this Court was of the view that such a reference should have been made. See Sankari Cement Alai
Thozhilalar Munnetra Sangam v. Government of Tamil Nadu, (1983) 1 SCC 304:1983 SCC (L&S)
139: (1983) a Lab LJ 460; Ram Avtar Sharma v. State of Haryana, (1985) 3 SCC 189: 1958 SCC
(L&S) 623:(1985) 3 SCR 686; M.P. Irrigation Karamchari Sangh v. State of M.P.,(1985) 2 SCC
103:1985 SCC (L&S) 409:(1985) 2 SCR 1019; Nirmal Singh v. State of Punjab, 1984 Supp SCC
407:1985 SCC (L&S) 38:(1984) 2 Lab LJ 396."

10. Not only this, the said judgment further goes on to reiterate the position of law as held
by the Hon'ble Supreme Court in the case of Dhanbad Colliery Karamchari Sangh v. Union of
India and others [1991 Supp (2) SCC 10]. The concluding part of the judgment clearly spells out
the ratio of the aforesaid decisions that where the authority itself has decided the dispute in relation
8 All. Bankers Institute of Rural Development , Lucknow (6610 M/S 10) Vs Rashtriya Krishi
 Evam Bankers Gram Vikas Sansthan Karmchari
1131
to this legal question of existence of employer-employee relationship based on merits, then this
would amount to deciding the dispute and not merely refusing to refer the reference on a prima
facie opinion. The aforesaid conclusion, in our opinion, is founded on the correct position of law,
inasmuch as here the complaint as extracted here-in-above had raised a dispute which can be said to
be existing or apprehended.

11.The authority that passed the order, did not look into these aspects of the matter but
simply concluded that since the contractor is registered under the 1970 Act therefore there is no
employer-employee relationship. This snap decision and abrupt conclusion therefore was not
founded on any prima facie consideration as required under the judgments referred to here-inabove. The learned Single Judge was therefore right in calling upon the authority to proceed to reconsider the entire matter afresh under the impugned judgment dated 5.7.2016. We therefore do not
find any merit in the appeal.

12. Rejected with the aforesaid observations.
-----------
1132 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1132
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2016

BEFORE

THE HON'BLE ARUN TANDON, J.
THE HON'BLE MRS. SUNITA AGARWAL, J.

Special Appeal Defective No.- 471 Of 2016

Shashi Prabha Dwivedi ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Shri Shri Rishikesh Tripathi

Counsel for the Respondents:
C.S.C., Shri Ashok Kumar

Held -

Paragraph 1: Nature of the Challenge
This special appeal was filed by Shashi Prabha Dwivedi (the petitioner-appellant) challenging a Single Judge
order dated April 29, 2016. The Single Judge had denied her the academic "session benefit," which would
have allowed her to continue teaching until the end of the newly modified academic session on March 31,
2016.

Paragraph 2-3: Factual Matrix and Statutory Framework
The appellant, born on May 1, 1951, served as an Assistant Teacher in a primary school regulated by the U.P.
Basic Education Teacher Service Rules, 1981. Under Rule 29 of these statutory rules, teachers normally retire
on the last day of the month they turn 62. However, a specific proviso explicitly dictates that if a teacher's
retirement falls within an academic session, defined in the text as "July 1 to June 30," their employment is
automatically extended via a legal fiction until June 30 to prevent mid-session classroom disruption.

Paragraph 4-5: Impact of the National Award and the Policy Shift
Because the appellant received the prestigious President's National Award, she was granted a special twoyear service extension, moving her superannuation age to 64. She reached this age on April 30, 2015. In the
meantime, the State Government issued an executive order shifting the academic calendar for 2015-16 to
run from April 1, 2015, to March 31, 2016. The appellant argued that since her retirement fell inside this fresh
April-March calendar, she should stay until March 31, 2016, making her involuntary retirement on June 30,
2015, illegal.

Paragraph 6: The Single Judge's Rejection