# Ram Shiromani Yadav v. The Conciliation Officer and others

- **Citation:** (2012) 1 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-24
- **Case number:** Civil Misc. Writ Petition No. 2239 of 2008
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shiromani-yadav-v-the-conciliation-officer-and-others-42198
- **Pages:** 12

## Headnote

U.P. Industrial Dispute Act, 1947-Section
10
(1)-oral
termination-without
following
statutory
provision-without
taking
recourse
of
reconciliation
proceeding-rejection
of
reference
by
Govt. apparent error-already 6 years
elapsed-No fruitful purpose will serve by
referring matter before the Govt. for
considering
to
make
referencemandamus issued to refer the dispute
before
Industrial
Tribunal
for
adjudication.

Held: Para 19

In instant case besides other assertions
since petitioner has stated before the
respondent no.1 that his services were
terminated
on
4.3.2006
without
compliance of provisions of Industrial
Dispute Act and since then a period of
about six years have already passed,
therefore, it would not be expedient in
the interest of justice to relegate the
matter before appropriate government
for reconsideration of the issue for
referring
the
dispute
for
industrial
adjudication to the appropriate tribunal
or labour court, which will again take
some considerable time. In wake of facts
and circumstances of the case, referred
herein before, in my opinion, it is fit case
where a writ of mandamus should be
issued to the respondent no.1 to refer
the dispute for industrial adjudication to
the appropriate industrial tribunal or
labour court forthwith. Accordingly, a
writ of mandamus is issued directing the
respondent
no.1/appropriate
government to refer the dispute raised
by
the
petitioner
for
industrial
adjudication
before
the
appropriate
industrial
tribunal
or
labour
court
forthwith on receipt of certified copy of
the order passed by this court.

## Text

_Characters 0–39,991 of 40,129. This is a partial read: ask again with offset=39991 for what follows._

46 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2012

BEFORE
THE HON'BLE SABHAJEET YADAV,J.

Civil Misc. Writ Petition No. 2239 of 2008

Ram Shiromani Yadav
 ...Petitioner
Versus
The Conciliation Officer and others

 ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Srivastava
Sri Manu Mishra

Counsel for the Respondents:
Sri V. Singh
Sri K.K. Pandey
C.S.C.

U.P. Industrial Dispute Act, 1947-Section
10
(1)-oral
termination-without
following
statutory
provision-without
taking
recourse
of
reconciliation
proceeding-rejection
of
reference
by
Govt. apparent error-already 6 years
elapsed-No fruitful purpose will serve by
referring matter before the Govt. for
considering
to
make
referencemandamus issued to refer the dispute
before
Industrial
Tribunal
for
adjudication.

Held: Para 19

In instant case besides other assertions
since petitioner has stated before the
respondent no.1 that his services were
terminated
on
4.3.2006
without
compliance of provisions of Industrial
Dispute Act and since then a period of
about six years have already passed,
therefore, it would not be expedient in
the interest of justice to relegate the
matter before appropriate government
for reconsideration of the issue for
referring
the
dispute
for
industrial
adjudication to the appropriate tribunal
or labour court, which will again take
some considerable time. In wake of facts
and circumstances of the case, referred
herein before, in my opinion, it is fit case
where a writ of mandamus should be
issued to the respondent no.1 to refer
the dispute for industrial adjudication to
the appropriate industrial tribunal or
labour court forthwith. Accordingly, a
writ of mandamus is issued directing the
respondent
no.1/appropriate
government to refer the dispute raised
by
the
petitioner
for
industrial
adjudication
before
the
appropriate
industrial
tribunal
or
labour
court
forthwith on receipt of certified copy of
the order passed by this court.

(Delivered by Hon'ble Sabhajeet Yadav,J. )

1. Heard learned counsel for the
parties.

2. By this petition, the petitioner has
challenged the order dated 13.8.2007
passed by the respondent no.1 (Annexure6 to the writ petition), whereby the
petitioner's application for referring the
industrial dispute to the Labour court has
been rejected. A writ of mandamus is also
sought for directing the respondents no. 2
and 3 to reinstate the petitioner in service
as Peon in the institution in question and
pay increments & salary for the period of
illegal removal from the institution.

3. The brief facts leading to the case
are that the petitioner was duly appointed
as Peon (Paricharak) in the Allahabad
Public School Subedarganj, Chaufatka,
Allahabad (hereinafter referred to as the
'Institution')
on
23.1.2001
but
the
respondents were taking work from him
from morning 6.00 a.m. to evening 7.00
p.m. everyday and were compelled the
petitioner to do 'Jhadu Pochha' work. It is
stated that the respondents were paying
1 All] Ram Shiromani Yadav V. The Conciliation Officer and others
47
salary to the petitioner at the rate of Rs.
800/- per month in the year 2002, Rs.
1000/- per month in the year 2003, Rs.
1200/- per month in the year 2004, Rs.
1400/- per month since 2005 and
thereafter Rs. 1500/- per month and were
not paying salary to the petitioner as per
Scheme of minimum wages at all. On
4.3.2006 the respondents have orally
terminated the services of the petitioner.
Against
said
oral
termination
the
petitioner
filed
an
application
on
12.4.2006 before the respondent no.1 and
prayed for constitution of reconciliation
Board with regard to the industrial dispute
and for grant of relief of continuity in
service and for payment of his increased
salary of entire period. Copy of the Memo
of C.P. No. 49 of 2006 (Ram Shiromani
Yadav Vs. Principal, Allahabad Public
School & College and others) is on record
as Annexure-1 to the writ petition.

4. It is further stated that the
petitioner submitted before the respondent
no. 1 various documents which are the
basis of his claim on 22.1.2007 and
27.1.2007 from which it is fully proved
that the petitioner was duly appointed
Peon of the institution and he had worked
in the institution continuously since date
of his appointment i.e. from 23.1.2001 to
4.3.2006. The respondents no.2 and 3
filed their written statements on 4.1.2007
and denied the claim of the petitioner.
Against the written statement of the
respondents no. 2 and 3 the petitioner/
claimant filed his written statement/
replication on 27.1.2007 and given para
wise reply of the same. But without
considering the documents and evidence
in respect of the petitioner's appointment
and working in the Institution as Peon
since 23.1.2001 to 04.3.2006 continuously
without
any
break
in
service
the
respondent no. 1 rejected the claim
petition of the petitioner holding that the
petitioner
could
not
prove
his
employment in the institution. The
impugned order was published by the
State Government on 13.8.2007. The copy
of the impugned order dated 13.8.2007
passed by the opposite party no. 1 is on
record as Annexure No. -6 to this writ
petition. It is further stated that the
petitioner is filing some documents and
photographs
which
prove
that
the
petitioner had worked in the Institution
since 23.1.2001 to 4.3.2006. A true
photostat copy of the character certificate
issued by the respondent no.2 on
9.10.2001 and 22.1.2004 and some
photographs of the petitioner which have
been taken during service of the petitioner
in the Institution as Peon are on record as
Annexure No. 7 to the writ petition. The
petitioner is ready to file several other
documents and photo stat copy of the
Attendance Register and Salary Register
etc. before this Hon'ble Court which fully
prove that the petitioner has worked in the
Institution since 23.1.2001 to 4.3.2006
continuously without any break, if this
Hon'ble Court requires the same.

5. It is further stated that since the
petitioner has worked in the Institution
continuously since 23.1.2001 to 4.3.2006
without any break in service and has
completed 240 days in three calender
years, therefore, his services could not be
terminated orally without following the
procedure laid down in the Industrial
Disputes Act. But illegally and arbitrarily
without following the procedure laid
down in the Industrial Disputes Act, the
respondents no.2 and 3 have orally
terminated the petitioner's services on
4.3.2006 and ousted him from the
Institution. It is stated that the petitioner is
48 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
entitled to be reinstated in continuity of
his service and is entitled to get
outstanding arrears of salary for the
period in which he has been illegally and
arbitrarily ousted from the employment of
the Institution. The actions of the
respondents are wholly arbitrary, illegal
and against the provision of the Industrial
Dispute Act, hence, the impugned order
dated 13.8.2007 is liable to be set aside
and the petitioner is entitled to be
reinstated in service in continuity of his
old services and entitled to get all
consequential benefits.

6. Learned counsel for the petitioner
has contended that impugned order dated
13.8.2007
passed
by
Dy.
Labour
Commissioner
indicates
that
the
application of petitioner for referring the
industrial dispute to the Labour Court has
been rejected on the ground that the
petitioner
could
not
prove
his
employment in the institution. Thus, the
Dy. Labour Commissioner-respondent
no.1
has
finally
adjudicated
the
relationship of employer and employee
between the petitioner and institution on
merit which was not within the province
of Dy. Labour Commissioner working on
behalf of State Government. While
deciding the question as to whether
reference should be made or not, the
respondent no.1 has acted illegally and
improperly. The relevant scheme of the
Industrial Disputes Act as disclosed by
Section 12 is clear. When any industrial
dispute exists or is apprehended, the
conciliation officer may hold conciliation
proceeding in the manner prescribed in
Section 12. If the conciliation officer's
efforts to bring out a settlement of dispute
failed then he makes a report under
Section 12(4) and Section 12(5), provides
inter alia that if on consideration of report
referred to in Sub-section (4) the
appropriate Government is satisfied that
there is case for reference to the tribunal,
it may make such reference. It however
adds
that
where
the
appropriate
government does not make such reference
it shall record and communicate to the
parties concerned its reason there for. But
the respondent no.1 refused to make
reference without recording any reason
instead thereof final conclusion on merits
of dispute has been communicated by
respondent no.1 through impugned order,
thus he has acted beyond his jurisdiction
in proceeding to consider the merit of
dispute while deciding whether the
reference should be made or not.

7. It is further contended that
although from the material placed before
the respondent no.1, the petitioner has
proved relation of master and servant,
employer and employee between him and
the institution and also proved the
existence of industrial dispute between
him and employer but respondent no.1
has failed to consider the same and
without recording any reason as to why
the petitioner could not establish the
relationship of employer and employee
between him and the institution and
existence of dispute, has communicated
merely his decision through the impugned
order that petitioner did not prove his
employment in the institution. Such
finding arrived at by the respondent no.1
on disputed question of fact, was not
within
the
province
of
respondent
no.1/State
Government,
wherein
the
government is not supposed to reach final
conclusion on merits of the case on
disputed question of fact which is within
provisions of industrial tribunal or Labour
court. While elaborating his arguments,
learned counsel for the petitioner has
1 All] Ram Shiromani Yadav V. The Conciliation Officer and others
49
submitted that while exercising the power
under Section 10(1) of Industrial Disputes
Act,
the
function
of
appropriate
government is an administrative function
and not a judicial or quasi judicial
function, and that in performing this
administrative function the government
can not delve into the merits of the
dispute
and
take
upon
itself
the
determination of the lis, which would
certainly be in excess of the power
conferred on it by Section 10 of the said
Act.

8. Contrary to it, the submission of
learned counsel appearing for respondents
is that Section 10 of the Industrial Dispute
Act confers discretion on the appropriate
Government either to refer the dispute or
not to refer it for industrial adjudication
wherein it has to form opinion on factual
basis as to whether an industrial dispute
exists or apprehended and in its opinion, it
is expedient to refer the industrial dispute
or not and while doing so the appropriate
government
is
not
precluded
from
considering the prima facie merit of the
dispute and refuse to refer the dispute to
the Labour court or Industrial Tribunal
when it is found that the claim made by
the party is patently frivolous, or is clearly
belated, and likewise if the impact of
claim on general relations between the
employer and employees in the region is
likely to be adverse, the appropriate
Government may take into account in
deciding whether a reference should be
made or not, therefore, it cannot be said
that examination of prima facie merits of
dispute is foreign to the inquiry which the
appropriate Government is entitled to
make in dealing with a dispute under
Section 10(1).

9. Having considered the rival
submissions of learned counsel for the
parties, the question which arises for
consideration of this court is that as to
whether the government is precluded
from considering the prima facie merit of
the dispute and is precluded from refusing
to refer the dispute under Section 10 of
Industrial Disputes Act?

10.

This
question
has
been
considered by Apex Court earlier at
several occasions. In Bombay Union of
Journalists and others Vs. The State of
Bombay and another, AIR 1964 S.C.
1617. While dealing with the issue in para
6 of the decision the Apex Court observed
that when the appropriate government
considers the question as to whether a
reference should be made under Section
12(5) it has to act under Section 10(1) of
the Act which confers discretion on the
appropriate government either to refer the
dispute, or not to refer it, for industrial
adjudication. In para-13 of the aforesaid
decision, it was also observed that a writ
of mandamus can be validly issued in
such a case if it is established that it was
the duty and obligation of the respondent
no.1 to refer for adjudication an industrial
dispute. For ready reference the pertinent
observations made by Apex Court in
aforesaid case in para 6 and 13 are
extracted as under:

"6.
When
the
appropriate
Government considers the question as to
whether a reference should be made
under Section 12(5), it has to act under
Section 10(1) of the Act, and Section
10(1)
confers
discretion
on
the
appropriate Government either to refer
the dispute, or not to refer it, for
industrial adjudication according as it is
of the opinion that it is expedient to do so
50 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
or not. In other words, in dealing with an
industrial dispute in respect of which a
failure report has been submitted under
Section
12(4)
the
appropriate
Government
ultimately
exercises
its
power under Section 10(1), subject to this
that Section 12(5) imposes an obligation
on it to record reasons for not making the
reference when the dispute has gone
through conciliation and a failure report
has been made under Section 12(4). This
question has been considered by this
Court in the case of the State of Bombay
V. K.P. Krishnan, (1961) 1 SCR
227:(AIR 1960 SC 1223). The decision in
that case clearly shows that when the
appropriate Government considers the
question as to whether any industrial
dispute
should
be
referred
for
adjudication or not, it may consider,
prima facie the merits of the dispute and
take
into
account
other
relevant
considerations which would help it to
decide whether making a reference would
be expedient or not. It is true that if the
dispute in question raises questions of
law, the appropriate Government should
not purport to reach a final decision on
the said questions of law, because that
would normally lie within the jurisdiction
of the Industrial Tribunal. Similarly, on
disputed questions of fact, the appropriate
Government cannot purport to reach final
conclusions, for that again would be the
province of the Industrial Tribunal. But it
would not be possible to accept the plea
that the appropriate Government is
precluded from considering even prima
facie the merits of the dispute when it
decides the question as to whether its
power to make a reference should be
exercised under Section 10(1) read with
Section 12(5), or not. If the claim made is
patently frivolous, or is clearly belated,
the appropriate Government may refuse
to make a reference. Likewise, if the
impact of the claim on the general
relations between the employer and the
employees in the region is likely to be
adverse, the appropriate Government may
take that into account in deciding whether
a reference should be made or not. It
must, therefore be held that a prima facie
examination of the merits cannot be said
to be foreign to the enquiry which the
appropriate Government is entitled to
make in dealing with a dispute under
Section 10(1)".

13 . . . . . .A writ of mandamus could
be validly issued in such a case if it was
established that it was the duty and the
obligation of respondent no.1 to refer for
adjudication an industrial dispute where
the
employee
contends
that
the
retrenchment effected by the employer
contravenes the provisions of Section 25F (c). Can it be said that the appropriate
Government is bound to refer an
industrial dispute even though one of the
points raised in the dispute is in regard to
the
contravention
of
a
mandatory
provision of the Act? In our opinion, the
answer to this question cannot be in the
affirmative.
Even
if
the
employer
retrenches the workman contrary to the
provisions of Section 25-F (c), it does not
follow that a dispute resulting from such
retrenchment must necessarily be referred
for industrial adjudication. The breach of
Section 25-F is no doubt a serious matter
and
normally
the
appropriate
Government would refer a dispute of this
kind for industrial adjudication; but the
provisions contained in Section 10(1)
read with Section 12 (5) clearly show that
even where a breach of Section 25-F is
alleged, the appropriate Government may
have to consider the expediency of making
a reference and if after considering all the
1 All] Ram Shiromani Yadav V. The Conciliation Officer and others
51
relevant
facts,
the
appropriate
Government comes to the conclusion that
it would be inexpedient to make the
reference, it would be competent to it to
refuse to make such a reference. We ought
to add that when we are discussing this
legal
position,
we
are
necessarily
assuming
that
the
appropriate
Government acts honestly and bona fide.
If the appropriate Government refuses to
make
a
reference
for
irrelevant
considerations, or on extraneous grounds,
or acts mala fide, that, of course, would
be another matter; in such a case a party
would be entitled to move the High Court
for a writ of mandamus."

11. In M.P. Irrigation Karamchari
Sangh Vs. State of M.P. and another,
(1985) 2 SCC 103, while dealing with the
content and scope of Government's
powers to examine frivolousness and
perversity of workman's demand and to
reach to a prima facie conclusion against
making a reference in para 5 of the
decision the Apex Court observed as
under:

"5. . . . . . . Therefore, while
conceding a very limited jurisdiction to
the State Government to examine patent
frivolousness of the demands, it is to be
understood as a rule, that adjudication of
demands made by workmen should be left
to the Tribunal to decide. Section 10
permits
appropriate
Government
to
determine whether dispute 'exists or is
apprehended' and then refer it for
adjudication on merits. The demarcated
functions
are
(1)
reference,
(2)
adjudication. When a reference is rejected
on the specious plea that the Government
cannot bear the additional burden, it
constitutes
adjudication
and
thereby
usurpation of the power of a quasijudicial Tribunal by an administrative
authority
namely
the
appropriate
Government.. . . .".

12. In Ram Avtar Sharma and
others Vs. State of Haryana and
another, (1985) 3 SCC 189, while
considering the government powers to
make or refuse the reference, the Apex
Court
observed
that
though
the
government
can
examine
the
frivolousness of the demand in order to
reach to a prima facie conclusion, it is not
competent to assume quasi judicial
function of the tribunal by going into
merits of the demand to decide whether or
not to make reference. In para 5 and 7 of
the decision the Apex Court observed as
under:

"5. The first question to be posed is
whether while exercising the power
conferred by Section 10 to refer an
industrial dispute to a Tribunal for
adjudication, the appropriate Government
is discharging an administrative function
or a quasi-judicial function. This is no
more res integra. In State of Madras V.
C.P. Sarathy, 1953 SCR 334, 346: AIR
1953 SC 53: (1953) 1 LLJ 174: 4 FJR
431, a Constitution Bench of this Court
observed as under :

But, it must be remembered that in
making a reference under Section 10(1)
the
Government
is
doing
an
administrative act and the fact that it has
to form an opinion as to the factual
existence of an industrial dispute as a
preliminary step to the discharge of its
function does not make it any the less
administrative in character. The Court
cannot, therefore, canvass the order of
reference closely to see if there was any
material before the Government to
52 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
support its conclusion, as if it was a
judicial or quasi-judicial determination.

Explaining the ratio of the decision
in Sarathy case, in Western India Match
Co. Ltd. V. Western India Match Co.
Workers
Union,
(1970)
3
SCR
370:(1970) 1 SCC 225:(1970) 2 LLJ 256,
it was observed as under :

In the State of Madras V. C.P.
Sarathy this Court held on construction of
Section 10(1) of the Central Act that the
function of the appropriate Government
thereunder is an administrative function.
It was so held presumably because the
Government cannot go into the merits of
the dispute, its function being only to refer
such a disute for adjudication so that the
industrial relations between the employer
and his employees may not continue to
remain disturbed and the dispute may be
resolved through a judicial process as
speedily as possible.

After
referring
to
the
earlier
decisions on the subject in Shambhu
Nath Goyal Vs. Bank of Baroda,
Jullunder, (1978) 2 SCR 793: (1978) 2
SCC 353: 1978 SCC (L&S) 357, it was
held that "in making a reference under
Section
10(1),
the
appropriate
Government is doing an administrative
act and the fact that it has to form an
opinion as to the factual existence of an
industrial dipuste as a preliminary step to
the discharge of its function does not
make it any the less administrative in
character". Thus, there is a considerable
body of judicial opinion that while
exercising power of making a reference
under Section 10(1), the appropriate
Government performs an administrative
act and not a judicial or quasi-judicial
act.

7. Now if the Government performs
an administrative act while either making
or refusing to make a reference under
Section 10(1), it cannot delve into the
merits of the dispute and take upon itself
the determination of lis. That would
certainly be in excess of the power
conferred by Section 10. Section 10
requires the appropriate Government to
be satisfied that an industrial dispute
exists or is apprehended. This may permit
the appropriate Government to determine
prima facie whether an industrial dispute
exists or the claim is frivolous or bogus or
put forth for extraneous and irrelevant
reasons not for justice or industrial peace
and
harmony.
Every
administrative
determination must be based on grounds
relevant and germane to the exercise of
power. If the administrative determination
is based on the irrelevant, extraneous or
grounds not germane to the exercise of
power it is liable to be questioned in
exercise of the power of judicial review.
In State of Bombay V. K.P. Krishnan,
(1961) 1 SCR 227, 243 : AIR 1960 SC
1223 : (1960) 2 LLJ 592 : 19 FJR 61, it
was held that a writ of mandamus would
lie against the Government if the order
passed by it under Section 10(1) is based
or induced by reasons as given by the
Government are extraneous, irrelevant
and not germane to the determination. In
such a situation the Court would be
justified in issuing a writ of mandamus
even in respect of an administrative
order. May be, the Court may not issue
writ
of
mandamus,
directing
the
Government to make a reference but the
Court can after examining the reasons
given by the appropriate Government for
refusing to make a reference come to a
conclusion that they are irrelevant,
extraneous or not germane to the
1 All] Ram Shiromani Yadav V. The Conciliation Officer and others
53
determination and then can direct the
Government to reconsider the matter.
This legal position appears to be beyond
the pale of controversy."

13. Again in Telco Convoy Drivers
Mazdoor Sangh and another Vs. State
of Bihar and others, (1989) 3 S.C.C.
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 an 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 para
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 from an opinion as to whether an
industrial
dispute
"exists
or
is
apprehended", as urged by Mr. Shanti
Bhushan. 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
reference 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 Section10 (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 Vs.
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".

14. Similar view has also been taken
by Apex Court in Dhanbad Colliery
Karamchari Sangh Vs. Union of India
and others, 1991 Supp (2) S.C.C. 10.
The pertinent observations made by the
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Apex Court contained in para 2 and 3 of
the decision are extracted as under:

"2. The appellant Union raised a
dispute that the workmen employed in the
mines run and maintained by M/s Bharat
Coking Coal Ltd., Lodhra Area, Dhanbad
were engaged by a contractor without
obtaining a licence and in fact the
workmen
were
under
the
direct
employment of the management of M/s
Bharat Coking Coal Ltd. They claimed
relief for a declaration to that effect. The
workmen
approached
the
Central
Government for referring the dispute to
Industrial Court under Section 10 of the
Industrial
Disputes
Act,
1947.
The
Central Government by its order dated
May 5, 1989 refused to refer the dispute
on the ground that Union had failed to
establish that the disputed workmen were
engaged in prohibited categories of work
under the Contract Labour (Regulation
and Abolition) Act, 1970 and further that
they were engaged by contractor and not
by the management of the respondent
Company. The government further held
that there appeared to be no employeremployee
relationship
between
the
management of the respondent-company
and the workmen involved in the dispute.
The
appellant
challenged
the
government's order before the High Court
by means of writ petition but the same
was dismissed in limine. Hence this
appeal.

3. After hearing learned counsel for
the parties and having regard to the facts
and circumstances of the case, we are of
the opinion that this appeal must succeed.
The Central Government instead of
referring the dispute for adjudication to
the appropriate Industrial Court under
Section 10 of the Industrial Disputes Act,
1947, it itself decided the dispute which is
not permissible under the law. We,
accordingly, allow the appeal, set aside
the order of the High Court and of the
Central Government and direct the
Central Government to refer the dispute
for adjudication to the appropriate
Industrial Court under Section 10 of the
Industrial Disputes Act, 1947. We further
direct the Central Government to make
the reference within three months."

15. Again in Sharad Kumar Vs.
Government of NCT of Delhi and
others, (2002) 4 S.C.C. 490, after
considering the entire case law on the
point in para 31 of the decision the Apex
Court observed as under:

"31. Testing the case in hand on the
touchstone of the principles laid down in
the decided cases, we have no hesitation
to hold that the High Court was clearly in
error in confirming the order of rejection
of
reference
passed
by
the
State
Government merely taking note of the
designation of the post held by the
respondent i.e. Area Sales Executive. As
noted
earlier
determination
of
this
question depends on the types of duties
assigned to or discharged by the
employee
and
not
merely
on
the
designation of the post held by him. We
do not find that the State Government or
even the High Court has made any
attempt to go into the different types of
duties discharged by the appellant with a
view to ascertain whether he came within
the meaning of Section 2(s) of the Act.
The State Government, as noted earlier,
merely considered the designation of the
post held by him, which is extraneous to
the matters relevant for the purpose.
From the appointment order dated
21.4.1983/22.4.1983
in
which
are
1 All] Ram Shiromani Yadav V. The Conciliation Officer and others
55
enumerated certain duties which the
appellant may be required to discharge it
cannot be held therefrom that he did not
come within the first portion of Section
2(s) of the Act. We are of the view that
determination of the question requires
examination of factual matters for which
materials including oral evidence will
have to be considered. In such a matter
the State Government could not arrogate
on to itself the power to adjudicate on the
question and hold that the respondent was
not a workman within the meaning of
Section
2(s)
of
the
Act,
thereby
terminating the proceedings prematurely.
Such a matter should be decided by the
Industrial Tribunal or the Labour Court
on the basis of the materials to be placed
before it by the parties. Thus the rejection
order passed by the State Government is
clearly erroneous and the order passed by
the High Court maintaining the same is
unsustainable."

16. Thus, from the legal position
stated by Apex Court from time to time, it
is clear that when the appropriate
government considers the question as to
whether a reference should be made for
industrial adjudication or not, it has to
exercise its discretion conferred by
Section 10 of the Act and while doing so
it may consider prima facie merit of the
dispute and take into account other
relevant factors which would help it to
decide whether making a reference would
be expedient or not. If the dispute in
question raises questions of law, the
appropriate
government
should
not
purport to reach a final decision on the
said questions of law, because that would
normally lie within the jurisdiction of
industrial tribunal. Similarly on disputed
questions
of
fact,
the
appropriate
government cannot purport to reach final
conclusions, for that again would be the
province of the Industrial Tribunal. But it
would not be possible to accept the plea
that the appropriate Government is
precluded from considering even prima
facie merits of the dispute when it decides
the question as to whether its power to
make reference should be exercised under
Section 10(1) read with Section 12(5), or
not. If the claim made is patently
frivolous, or is clearly belated, the
appropriate Government may refuse to
make a reference. Likewise, if the impact
of claim on the general relations between
employer and employees in the region is
likely to be adverse, the appropriate
Government may take into account in
deciding whether a reference should be
made or not. It must, therefore be held
that an examination of a prima facie
merits cannot be said to be foreign to the
inquiry
which
the
appropriate
Government is entitled to make in dealing
with
dispute
under
Section
10(1).
However, when the Government decides
not to make reference for industrial
adjudication, it is under an obligation to
record its reason for not making such
reference.

17. While exercising the power
conferred by Section 10 of the Act to refer
an industrial dispute to a tribunal for
adjudication, the appropriate Government
is discharging an administrative function
wherein it has to form an opinion as to
factual existence of an industrial dispute
as a preliminary step to the discharge of
its function. If the Government performs
an administrative function while either
making or refusing to make a reference
under Section 10(1), it cannot delve into
the merits of the dispute and take upon
itself the determination of lis. Section 10
requires the appropriate Government to be
56 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
satisfied that an industrial dispute exists
or is apprehended. Such exercise permits
the appropriate Government to examine
prima facie merit of the dispute as
whether an industrial dispute exists or the
claim is frivolous or bogus or put forth for
extraneous and irrelevant reasons not for
justice or industrial peace or harmony.
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
merit.
The
adjudication of dispute on its merit
requires examination of factual matters on
the basis of documentary and oral
evidence,
as
such
appropriate
Government cannot finally decide the
dispute which is within a province of
Industrial Tribunal or Labour Court.

18. Testing the case in hand on the
touchstone of the principles laid down in
the decided cases referred herein before,
I have no hesitation to hold that the
Government/respondent no.1 was clearly
in error in rejecting the application of
petitioner for reference of dispute to the
industrial adjudication. As noted earlier
the State Government instead of referring
the dispute for adjudication to the
appropriate industrial tribunal or Labour
court under relevant provisions of
Industrial Dispute Act, it itself decided
the dispute holding that there appeared to
be no employer-employee relationship
between the management of respondents'
institution and the petitioner-workman
and while doing so, in my opinion, the
State Government itself decided the
dispute finally which is not permissible
under law. The determination of such
dispute
finally
depends
upon
examination and assessment of various
oral and documentary evidence to be
adduced by the parties before the Labour
court or Industrial Tribunal, therefore, it
could not have been decided by the
appropriate government while forming
opinion about the existence of industrial
dispute between the employer and
employee.
If
facts
stated
in
the
application moved by the petitioner
before the appropriate government is
taken to be correct, in my considered
opinion, in that eventuality there exists
prima
facie
merit
in
respect
of
relationship of employer and employee
between the institution and the petitioner
and also there exists an industrial dispute
between them. Therefore, in such facts
and circumstances of the case, the
appropriate government was under legal
obligation to refer the dispute for
industrial adjudication either before the
appropriate industrial tribunal or labour
court but it could not refuse to refer the
same
as
no
reason
has
been
communicated which is relevant for
refusing to refer the dispute for industrial
adjudication.

19. In instant case besides other
assertions since petitioner has stated
before the respondent no.1 that his
services were terminated on 4.3.2006
without compliance of provisions of
Industrial Dispute Act and since then a
period of about six years have already
passed, therefore, it would not be
expedient in the interest of justice to
relegate the matter before appropriate
government for reconsideration of the
issue for referring the dispute for
industrial adjudication to the appropriate
tribunal or labour court, which will again
take some considerable time. In wake of
facts and circumstances of the case,
referred herein before, in my opinion, it
is fit case where a writ of mandamus
should be issued to the respondent no.1
1 All] Gauri Shankar Gupta V. The State of U.P. and others
57
to refer the dispute for industrial
adjudication to the appropriate industrial
tribunal
or labour court forthwith.
Accordingly, a writ of mandamus is
issued
directing
the
respondent
no.1/appropriate government to refer the
dispute raised by the petitioner for
industrial
adjudication
before
the
appropriate industrial tribunal or labour
court forthwith on receipt of certified
copy of the order passed by this court.

20. With the aforesaid observation
and direction, writ petition succeeds and
is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2012

BEFORE
THE HON'BLE AMAR SARAN,J.
THE HON'BLE RAMESH SINHA,J.

Public Interest Litigation (PIL) No. - 3400 of 2012

Gauri Shankar Gupta
 ...Petitioner
Versus
The State of U.P. Thru Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri A.P. Tewari
Sri S.S. Tripathi

Counsel for the Respondent:
C.S.C.
Sri N.N. Mishra

Constitution of India, Article 226-Public
Interest
Litigation-Petitioner
seeking
direction-non eviction from Ponds, tanks
situated
over
non-agricultural
landnothing
whisper
as
to
why
those
occupied such public Pond could not
individually approach-before the Courtheld-PIL on representative capacity-not
maintainable

Held: Para 5

The petitioner has not been able to
explain as to why he has filed this broad
based PIL petition and why the persons,
who are sought to be evicted from the
said lands by declaring them to be
ponds, have not themselves challenged
their eviction.
Case law discussed:
2001 (RD) 689; (2010) 3 SCC 402; Rishab Dev
Jain Vs. State of UP and others, (Writ B No.
57243 of 2011) decided on 20.10.2011

(Delivered by Hon'ble Amar Saran,J.)

1. Heard learned counsel for the
petitioner, Shri N.N. Mishra, learned
counsel for respondent No. 5 and learned
Standing Counsel representing the State.

2. This public interest litigation has
been filed by the petitioner, who claims to
be an advocate.

3. The prayer in this writ petition is
that the lands in urban areas in UP have
been shown as ponds even though the said
areas have been declared to be nonagricultural areas.

4. It was contended by the learned
counsel for the petitioner that the cases of
the persons who are tenure holders or
other persons, who are occupying ponds,
Pokharas and water channels etc. in nonagricultural
urban
areas
in
district
Gorakhpur should not be evicted from the
said lands, which have been declared to
be non-agricultural lands and their cases
would not be covered by the decision of
the Supreme Court in the case of Hinch
Lal Tiwari Vs. Kamla Devi, 2001 (92)
RD 689.