1. The petitioner, a company incorporated in the U.S.A with limited liabilities and having its branch office at 21, Old Court House Street, Calcutta, has obtained this rule against an order of reference made under S. 10 (1) (d) of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act), which is in annexure I to the petition.
2. The petitioner-company carries on business, inter alia, of banking. It is their case that in or about 1970, an agreement was entered into between them and the American Express Employees' Union, which incidentally was the only union representing the petitioner's entire work at Calcutta and formed a temporary pool of workmen for the purpose of filling up purely temporary vacancies arising out of and under sick leave availed of by their permanent workmen. Such agreement appears to have been implemented in 1970, when a list of approximate eight persons to form a temporary pool, for the purpose of filling up temporary leave vacancies, was made. The petitioner has stated that whenever such thing or any occasion arose, they took the help of the employees from the pool and that too strictly on rotational basis. It is their case that the creation of such temporary pool was creating a lot of administrative difficulties and the same was abolished by another agreement. They have also stated that in terms of the agreement of 1970, respondents 3 to 7 were enlisted in the temporary pool and they were provided with temporary appointment from time to time, on the basis as indicated above.
3. In 1973, there was a fresh agreement after due negotiations between the petitioner and the union as aforesaid and it was ultimately agreed that the temporary pool would be abolished on recruitment of five permanent workmen in the clerical cadre. This agreement regarding the abolition of the temporary pool and the recruitment of five workmen in the permanent clerical cadre, was incorporated in the letter of 3 August 1973, and such agreement has also been stated to be acted upon and is still binding on the petitioner and its existing workman. It is the case of the petitioner that all subsequent appointment, temporary employment and recruitment in the permanent vacancies in their organization, are guided by the subsequent agreement and recruitment in permanent positions are done by them on the basis of a formula arrived at between the management and the union concerned and in course of preparation of such formula, they called all the persons enlisted in temporary pool, for a written test, with a view to give them equal opportunities along with other applicants from the employment exchange. The respondent employees, according to the petitioner, were also given due and equal opportunities but their performance were not satisfactory. As such none of them were called for interview. On that, a representation to the Regional Commissioner (Central) was made for necessary intervention and ultimately, such authorities did not consider the action of the management to be unjustified or mala fide and, therefore, they refused to refer the matter for adjudication by their communication, dated 19 July 1974, in annexure G. Thereafter, it is stated that without any reference or further reference from the Government, the petitioners were served with a notice in annexure H, which is dated 11 November 1974, from the Presiding Officer, Central Industrial Tribunal, Calcutta, respondent 2 and they have stated that from such communication, they have come to know for the first time that the Government of India have referred the matter to the same Tribunal, a purported industrial dispute between the company and their workmen, by an order of reference No. L/12012/24/74.LR III, dated 21 October 1974.
4. This order of reference, has been claimed by the petitioner, to be illegal and void, apart from being without any basis or jurisdiction in view of the earlier determination by the appropriate authorities that there was no dispute in existence between the parties on the same cause of action.
5. Ordinarily, referring of a dispute under S. 10 being an administrative act no interference in terms of the determination as made, should be made, but there may be special circumstances, where such interference may be made and Sri Das has appropriately submitted that this is a case which would come within such special circumstances, because of the earlier determination as made by the appropriate authorities under the said Act. It was contended by him that in view of their earlier determination refusing to make a reference, the authorities concerned should not have subsequently made the order of reference ex pane, without hearing the petitioners or without giving any opportunity to them. In support of such submissions, Sri Das has relied on the determination in the case of Tiruchi Steel Rolling Mills v. S. Gnanasambandam [1975-I L.L.N 76]. In that case on the non-extension of the temporary service of a workman, the workmen raised an industrial dispute, which the appropriate Government declined to refer for adjudication under S. 10 (1) of the said Act. On representation from third party and on a subsequent petition by the workmen, the Government reconsidered its earlier decision and referred the dispute for arbitration without giving a hearing to the employers. On a writ petition by the employers challenging the order, the learned single Judge held that though an order under S. 10 (1) (c) of the said Act, was an administrative one, the Government was bound by the principle of natural justice, as its order affected the civil rights of the parties to the dispute and quashed the order. On a reference to the Division Bench, it has been held that the principle of natural justice was applicable and the Government order of reference, made without giving notice to the employers, was invalid. The present case do come appropriately within the determination as referred to hereinbefore. Reliance was next placed by Sri Das, on the case of Indian Telephone Industries Ltd. v. State Of Karnataka & Ors. [1978-I L.L.N 620]. This case has also followed the determination in the case of A.K Kraipak v. Union of India [(1969) 2 SCC 262 : A.I.R 1970 S.C 150] and Mohinder Singh Gill v. Chief Election Commissioner [I.L.R (1977) 2 Del. 265], and has laid down that since the reference made under S. 10 entailed civil consequence to the employers, failure to pre-hear them rendered the reference illegal and unjust. In that case also a reference under S. 10 was asked for, which was declined by the appropriate authorities. Later on, on a representation by the workers, such appropriate authorities reversed its decision and made the reference.
6. This rule was made ready as regards service on 23 September 1975, and although there has been an appearance entered through a learned advocate, but no affidavit seems to have been filed. In fact, nobody appeared to oppose the prayers as made.
7. Thus, after hearing Sri Das and when I find that on the self-same facts, a similar dispute on due adjudication, was refused to be referred to by the appropriate authorities and they have subsequently reconsidered the case and made the reference, they should have heard the petitioner-company or give the necessary opportunities to them to establish that no industrial dispute, in fact, was existing or existed. Such opportunities, not having been admittedly given, this rule should succeed and as such, I order accordingly. The rule is made absolute. The order of reference as made is quashed. There will be no order as to costs.
8. This will not, however, prejudice the respondents from taking steps and to make a reference in accordance with law, if they are so advised and that too, after following the determination as made herein.