1. Petitioner-union has filed this writ petition seeking quashing of order, dated 13 May, 1998, passed by respondent No. 1 whereby it has refused to make reference of the dispute raised by petitioner-union on behalf of its members. Petitioner-union is employee of respondent No. 2 namely M/s. Management Development Institute. The petitioner-union raised industrial dispute on behalf of the workers of respondent No. 2 seeking their regularisation. The reasons given by respondent No. 1 in its order, dated 13 May, 1991, refusing to make reference are as under:
“The establishment against which the statement of claims for regularisation of workmen has been filed is situated in Haryana State and therefore matter cannot be referred for adjudication for want of jurisdiction.”
Factual background which led to passing of the aforesaid order by the appropriate Government is narrated hereunder.
2. Respondent No. 2 is stated to be the instrumentality of State, had employed several workers through a contractor. These workers are members of the petitioner-union. Petitioner-union on their behalf sent demand notice, dated 13 March, 1987, seeking regularisation of their services with respondent No. 2 on the ground that these workers were performing work of permanent nature. However as respondent No. 2 did not, pay any heed to the request contained in demand notice, dated 13 March, 1987, petitioner-union raised dispute by preferring statement of claim, dated 3 April, 1987, before the Labour Commissioner, Delhi, for reference to industrial dispute to the Labour Court/Industrial Tribunal. However, thereafter it withdrew the said claim and filed Civil Writ Petition No. 2418 of 1987 in this Court. In the meantime, services of these workers were terminated with effect from 1 June, 1987. When the writ petition came up for hearing, on 28 August, 1995, it was disposed of with permission to the petitioner to raise industrial dispute. Following order was passed by the Division Bench of this Court on 28 August, 1995:
“The prayer made in the writ petition is that respondents be directed to regularise the services of the casual workmen with retrospective effect, i.e, from the date they got their first appointment and not to terminate their services. The petitioner-union has also prayed for directions to the respondents for payment of equal pay for equal work.
In view of the decision of the Supreme Court in Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat v. Hind Mazdoor Sabha [1995 (2) L.L.N 59]. learned counsel for the petitioner submits that the petitioner would not press for grant of relief praved for in the petition but would instead raise an industrial dispute and directions as were issued by the Supreme Court for adjudication of the industrial dispute in the said case be also issued in this matter. Learned counsel for respondents 2 and 3 agrees. In this view we direct that if and when as industrial adjudicator should dispose of the same as far as possible within six months thereof.
Writ petition and the application are disposed of in the above terms. The rule is made absolute.
Y.K Sabharwal, Judge
D.K Jain, Judge.”
3. Thereafter, the union filed statement of claim. Respondent No. 2 was served with notice of the statement of claim and in response thereto it filed its objections to the aforesaid statement of claim. In its objections, respondent No. 2 did not advert to the merits of the claim of the union but submitted that Delhi Government was not appropriate Government on the ground that Management Development Institute where these workers were employed was carrying out its activities in the State of Haryana and therefore it is State of Haryana only which could make reference. Relevant portion of the objection reads as under:
“That this Delhi Administration is not the appropriate Government with reference to the raising of the present dispute and this can be seen even from a prima facie examination of the matter. The Management Development Institute in carrying out its activities in the State of Haryana and has its campus, hostel and lecture halls and residential fiats at Sukhali Village in Gurgaon District in Haryana. Even the persons in respect of whom the statement of claim has been filed are working at Haryana and are not doing any work at Delhi. It is the statutes as applicable in the State of Haryana which would be applicable to and regulate the establishment of the Management Development Institute. In these circumstances the conciliatory adjudicatory and enforcement machinery of the Haryana Government's Labour Department would only have jurisdiction to deal with any dispute that may be raised.
That earlier, a dispute has been raised in respect of the same matter and had been rejected on the ground that the Delhi Administration had no jurisdiction in the matter. A copy of the relevant order is annexed herewith as Annexure A. It is clear that the filing of the statement of claim before the same forum is an exercise in futility and that the dispute as raised here is frivolous and vexatious.
That it is submitted that even if it is assumed that the Delhi Administration also has jurisdiction in the matter, then also it would be more appropriate to reject the claim filed here and requires the claimants to pursue their remedy, if any in the State of Haryana.”
4. Petitioner-union filed rejoinder and contended that the preliminary objection raised by respondent No. 2 was conceived inasmuch as registered office of respondent No. 2 was situated in Delhi and therefore conciliation office in Delhi had the authority to entertain the claim. It was also submitted that matter was placed before the Conciliation Officer, Delhi after the direction of High Court of Delhi. In support of its contention petitioner-union relied upon the following judgments:
(i) Upton, Ltd. v. Their Employees reported in A.I.R 1959 S.C 676.
(ii) Workmen of Sri Ranga Vilas Motors v. S.R.V Motors reported in A.I.R 1967 S.C 1040.
5. When the conciliation proceedings failed and failure report was submitted by the Conciliation Officer, respondent No. 1 passed the impugned order, dated 13 May, 1998, which inter alia states that all the documents as well as the submissions of the parties and report of the Conciliation Officer have been perused and it is found that this is not a fit case for reference to Industrial Tribunal or Labour Court, Delhi for adjudication for the reasons given in the impugned order. Thereafter, the order records the following reasons:
“The establishment against which the statement of claim for regularisation of workmen has been filed is situated in Haryana State and therefore matter cannotbereferredforadjudication for want of jurisdiction.”
6. In the present writ petition filed by the petitioner it is mainly contended that the Government while exercising its power under S. 10 of the Industrial Disputes Act is exercising only administrative power and not judicial or quasi-judicial power but by giving the findings that the matter cannot be referred for adjudication for want of jurisdiction, it has infact recorded a subjective finding deciding the matter of jurisdiction which can be decided only by way of adjudication and after leading the evidence in the Court. Therefore, respondent No. 1 has exercised the adjudicatory function of the Labour Court/Industrial Tribunal which it was not competent to do so. It should have made the reference for adjudication and only Industrial Tribunal to which the matter could have been referred, could give its finding about the jurisdiction. As against the aforesaid contention of the petitioner, respondent No. 2 has argued that Management Development Institute is carrying out its activities in the State of Haryana and therefore Delhi Government is not appropriate Government and therefore it has rightly passed order refusing to refer the matter as Courts in Delhi will have no territorial jurisdiction over respondent No. 2. It is also submitted that it is only earlier that respondent No. 2 had its office at 64-A, DDA, SFS, East of Kailash, New Delhi, but respondent No. 2 does not carry out its activities at Delhi. The main cause of action arose in Haryana where the workers were working and their services were terminated. This is what is mentioned in counter-affidavit highlighting the aforesaid aspect:
“The respondent No. 2 had earlier its office at 64A, DDA, SFS, East of Kailash, New Delhi-65. The respondent does not carry out its activities at Delhi and hence this Court will have no territorial jurisdiction over respondent No. 2 and hence the petition is liable to be dismissed. The whole cause of action arose in Haryana where the petitioners allege they were working and their services terminated. The institute is situated in Haryana where from all the educational and administrative activities are being carried on. The Head of Institute and Registrar and Secretary, Administrative and Accounts Department are located at Gurgaon. The provident fund of the employees is also under the jurisdiction of the Regional Provident Fund Commissioner, Faridabad, Haryana.”
7. It was further submitted that respondent No. 1 while making reference had to form an opinion as to whether industrial dispute exists or not and while forming such an opinion and before referring the dispute for adjudication it had right to come to the conclusion as to whether it was “appropriate Government” which could make reference at all or not. Respondent relied upon the following judgment in support of its submissions:
(i) Workmen of Sri Ranga Vilas Motors (P) Ltd. v. Sri Ranga Vilas Motors (Private), Ltd. reported in A.I.R 1967 S.C 1040 (vide supra);
(ii) Hindustan Aeronautics, Ltd. v. Workmen reported in 1975 (2) L.L.N 235.
8. In the counter-affidavit filed on behalf of respondent No. 1 the impugned order is justified stating that the submissions made by the petitioners were illusory and devoid of merits. Section 10 confers power on the Government to refuse to refer the matter in certain cases and the present case was found to be fit for rejection for which the reasons were communicated to the petitioner as it was found that dispute falls within the jurisdiction of Government of Haryana and petitioner could move the Government of Haryana for appropriate remedy. The relevant portion of the counter-affidavit on which emphasis was made by respondent No. 1 may be reproduced at this stage:
“The deponent submits that the Industrial Disputes Act, 1947, enjoins upon the appropriate Government to take action in regard to the industrial disputes falling within its jurisdiction and not in regard to the disputes falling in the jurisdiction of other appropriate Governments. In the present case the dispute relates to the Government of Haryana. It is not the choice of the Union/persons or workmen to file the claim before any appropriate Government and force it to make reference for adjudication irrespective of the facts whether it relates to that appropriate Government or not. In the present case the workers were employed in the Haryana and the appropriate Government was considered to be that of the State of Haryana and not the Government of NCT of Delhi. It would have been the case to be referred by the Government of NCT of Delhi for adjudication as the same is not having any jurisdiction in the matter.
Grounds D to F. That in reply to grounds D to F deponent submits that the dispute was wrongly raised for conciliation at Delhi and on consideration of the facts of the matter the Government of NCT of Delhi found that the matter is not within its jurisdiction and refused to make the reference for adjudication by it on the grounds mentioned in the rejection order. The scheme of the Industrial Disputes Act does not make it mandatory for all the disputes not settled to be referred for adjudication by the appropriate Government irrespective of the fact whether the dispute raised falls in the domain of the said appropriate Government or not.”
9. Before deciding as to whether the impugned order passed by respondent No. 1 is appropriate authority let us first examine the scope and nature of jurisdiction of the Government under S. 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, for short) in making or refusing to make reference.
10. It is now well established that while making or refusing to make reference the “appropriate Government” discharges administrative function WIMCO v. WIMCO Workers Union reported in 1976-II L.L.J 256. I have dealt with this aspect in detail in my judgment of even date rendered in Civil Writ Petition No. 5050 of 1998 entitled Dharamvir v. Government of NCT of Delhi. Suffice is to state here that under S. 10 of the Act it is the “appropriate Government” which has to make reference and “appropriate Government” is defined under S. 2(o) of the Act. Section 10(1) stipulates that “appropriate Government” may at any time, by order in writing, refer the dispute to a Board/Labour Court/Industrial Tribunal where it “is of the opinion that any industrial dispute exist or is apprehended”.
11. It has been held in number of judgments that while performing this administrative function, the Government would not decide the dispute between the parties which may be termed as judicial function and such judicial function is to be discharged by the Labour Court/Industrial Tribunal only. In Ram Avtar Sharma v. State of Haryana reported in 1985 (2) L.L.N 280, Supreme Court held that if the Government, while refusing to make reference delves into the merits of the dispute, it is not presumably under law, the appropriate course is to make reference and such dispute are to be settled/decided by the Labour Court/Industrial Tribunal as an adjudicatory authority. Following observations of the Supreme Court in the aforesaid case is worth noting, in Paras. 6 and 7, at page 284:
“6.… Therefore the view that while exercising power under S. 10(1) the functions performed by the appropriate Government is an administrative function and not a judicial or quasi-judicial function is beyond the pale of controversy.
7. Now if the Government perform an administrative act while either making or refusing to make a reference under S. 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 S. 10. S. 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 claim is frivolous or bogus or put forth extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on ground relevant and germane to the exercise of power. If the admnistrative 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…”
12. The question to be determined is as to whether the respondent No. 1, while refusing to make reference on the grounds stated in the impugned order has delved into the merits of the dispute or has exercised administrative function. However, as noted above, before making a reference the appropriate Government is to form an opinion as to whether any industrial dispute exist or is apprehended. Therefore, it is permissible for the Government while forming an opinion, to take admitted facts into questions and form the opinion as to whether industrial dispute at all exist or not. Such an exercise if, on the facts and circumstances of a particular case, based on admitted facts comes within the realm of administrative function it would be permissible for the appropriate Government to indulge into this exercise while discharging this administrative function or to say while forming the opinion under S. 10(1) of the Act. Likewise, under S. 10(1) of the Act it is the “appropriate Government” which has the power to make reference hence the reference of a dispute by Government which is not the “appropriate Government” will not be valid:
The referring Government not the “appropriate Government”— S. 10(1) opens with the words “where the appropriate Government is of opinion.” Hence, if the Government making the reference is not the appropriate Government within the meaning of S. 2(a) of the Act, the reference will not be a valid reference. But in cases where certain disputed questions of fact are involved, the proper course would be to raise a preliminary objection before the Tribunal. The correctness of the order of the Tribunal on the preliminary question then can be challenged before the Writ Court.
13. Thus conversely in those cases where facts are not disputed and on admitted facts it can be inferred that the Government is not the appropriate Government competent to make reference, it would be open to the Government to refuse to make a reference as otherwise making of reference by such Government which is not “appropriate Government” would be incompetent in law. In support of this proposition one may take shelter under the recent judgment of the Apex Court in the case of Secretary, Indian Tea Association v. Ajit Kumar Barat reported in 2000 (2) L.L.N 25. In that case “appropriate Government” refused to make reference on the ground that the concerned employee who had raised the dispute was not “workman” within the meaning of S. 2(s) of the Act. While doing so Government considered the salary and allowances drawn by the employee as well as the nature of work performed by him including his power to sanction expenses incurred by his office. The concerned employee (respondent in the aforesaid case) filed writ petition against the order of the “appropriate Government” refusing to make reference and High Court in that writ petition directed the Government to make the reference as to whether he was a workman. Appeal filed by the appellant was also dismissed and in these circumstances the appellant preferred special leave petition and that is how the matter came up for consideration before the Supreme Court. Granting the leave and ultimately allowing the appeal of the appellant, Supreme Court set aside the judgment of the High Court and upheld the order of the Government refusing to make reference. Relying upon its earlier judgment in the case of State of Madras v. C.P Sarthy [A.I.R 1953 S.C 53] Prem Kakar v. State of Haryana reported in 1976 (1) L.L.N 494 and Sultan Singh v. State of Haryana reported in 1996 (1) L.L.N 439, the Court observed that the order under S. 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:
“(1) The appropriate Government would not be justified in making a reference under S. 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.
(2) The order of the appropriate Government making a reference under S. 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 the 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.
(3) An order made by the appropriate Government under S. 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.
(4) If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the Court may in a given case consider the case for a writ of mandamus; and
(5) It would, however, be open to party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act.”
14. Judging the present case from this angle, it would be seen that the impugned order made by respondent No. 1 is legal and valid. From the pleadings before the Conciliation Officer and as reproduced above it is clear that the petitioner-union did not dispute that the workers on whose behalf the dispute was raised are the workers of Management Development Institute which is having its administrative office, viz., campus hostel and lecture halls and residential flats at Sukhali village at Gurgaon District, Haryana. It is also not disputed that these workers were employed through contractor. Infact the wages were paid to these workers by the said contractor in Haryana. Provident fund of the employees was also under the jurisdiction of R.P.F.C, Faridabad, Haryana. There services also, allegedly, were terminated in Haryana. Therefore, no cause of action arose in Delhi. The only averments made by the petitioner on the basis of which it is contended that Delhi Government is the appropriate Government, is that registered office of Management Development Institute, i.e, respondent No. 2 is situated in Delhi. Therefore facts in the case are not in dispute. On the basis of these facts respondent No. 1 formed the opinion that it was not the “appropriate Government” and that the “appropriate Government” is State of Haryana. Formation of such an opinion is proper and legally correct. The matter would have been different if there were disputed questions of fact requiring evidence and only after ascertaining the correct facts that it could be decided as to whether respondent No. 1 was “appropriate Government” competent to make reference or not.
15. The judgment cited by the petitioner-union are of no avail and do not advance the case of the petitioner. In the case of Upton, Ltd. (vide supra), Supreme Court held that reference made by Delhi State Government was proper as it was the “appropriate Government” within the meaning of S. 2(a) of the Act. This was held on the facts of that case where it was found that the concerned workmen were employees at the Delhi office but were posted outside Delhi. All the workmen in the Delhi office, whether they worked in Delhi or not received their salaries from Delhi office, they were controlled from Delhi office in the matters relating to leave, transfer, supervision, etc. On these facts it was held that Delhi Government was the “appropriate Government” competent to make the reference. In the present case, the petitioner-union has not even suggested that the workers were paid their salaries from Delhi office or controlled from the Delhi office in respect of their service conditions. The only averment made is that respondent No. 2 has registered office in Delhi. On the other hand in the objections filed before the Conciliation Officer, respondent No. 2 has specifically mentioned that it does not carry out its activities at Delhi. The institute is situated in Haryana wherefrom all educational and administrative activities are being carried on and all these workers were working in Haryana and their services was terminated there. It is even mentioned that head of the institute and office of the Registrar and Secretary as well as administrative and accounts department are located in Gurgaon and R.P.F.C and provident fund comes under the jurisdiction of R.P.F.C, Faridabad, Haryana. Thus these workers who were employed through contractor, were paid in Haryana and in response of their service condition they were controlled in Haryana. Respondent No. 2 has even gone to the extent of submitting that no activities are carried out in Delhi and these averments made by respondent No. 2 in its objections filed before the Conciliation Officer are not denied by the petitioner-union in its rejoinder. Similarly, the judgment of Workmen of Sri Ranza Vilas Motors (vide supra) is not applicable in the instant case. That was a case where the concerned employee was transferred from Bangalore (Karnataka) to Krishnagiri (Mysore). The fellow workmen through their union passed resolution in a meeting at Krishnagiri (Mysore) and State of Mysore was treated as “appropriate Government” competent to make reference. This case obviously is not applicable to the facts and circumstances of the present case as a part of cause of action arose there.
16. I therefore hold that respondent No. 1 has not performed any adjudicatory function and has acted within its domain and on the basis of admitted facts came to the right conclusion that it is not the “appropriate Government” and therefore incompetent to make reference. It had jurisdiction to form such an opinion which it is required to dp under S. 10(1) of the Act before it decides to make or refuse to make reference.
17. Before concluding, let me deal with another contention of the petitioner which was not pressed seriously, although taken in the petition. It is contended that Delhi Government could make the reference because this Court in its order, dated 28 August, 1995, in Civil Writ Petition No. 2418 of 1987 directed it to do so. However, there is no such direction to Delhi Government to make a reference. In fact perusal of the order would show that the case was disposed of on the submission made by counsel for the petitioner that the petitioner-union in view of the decision of Supreme Court in the case of Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat v. Hind Mazdoor Sabha reported in 1995 (2) L.L.N 59 (vide supra), would raise an industrial dispute rather than pressing for this relief in the writ petition. Thus it can be clearly inferred that in view of the aforesaid judgment of the Supreme Court, it was felt by the petitioner-union that appropriate remedy was to raise industrial dispute rather than to agitate the matter in this petition and upon the statement made by counsel for the petitioner, this Court passed the direction that if and when such industrial dispute is raised, industrial adjudicator shall dispose of the same as far as possible within six months. Court was not deciding as to which Government was the “appropriate Government” and this issue was neither raked up nor came up for consideration nor was decided. As respondent No. 1 is not the “appropriate Government” and therefore not competent to refer the matter as it has no jurisdiction to do so, no such jurisdiction can be conferred upon it even by the consent of the parties. On the contrary, had it referred the matter, such reference would have been stuck down as without jurisdiction. Accordingly, this writ petition is dismissed. Rule stands discharged.
No order as to costs.