INDIAN RARE EARTHS VOLUNTARILY RETIRED EMPLOYEES ASSOCIATION v UNION OF INDIA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944** ## **WA NO. 1909 OF 2014** ## **AGAINST THE JUDGMENT IN WP(C) No.4728/2011 OF HIGH COURT OF KERALA APPELLANT:** INDIAN RARE EARTHS VOLUNTARILY RETIRED EMPLOYEES ASSOCIATION HAVING REGISTRATION NO.228/2002, MAGESTIC PLAZA, HIGH SCHOOL JUNCTION, KOLLAM - 691 10103, KERALA, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.R.SANJITH ## **RESPONDENTS:** - 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR, NEW DELHI110001. - 2 INDIAN RARE EARTHS LIMITED CHAVARA PLANT, KOLLAM, CHAVARA - 691 583, REPRESENTED BY ITS GENERAL MANAGER. 3 THE ADDITIONAL SECRETARY I M DEPARTMENT OF ATOMIC ENERGY, GOVERNMENT OF INDIA, CHATRAPAT, SHIVAJI MAHARAJ MARG, MUMBAI400038. WA No.1909/2014 -2- - 4 THE CHIEF LABOUR COMMISSIONER CENTRAL OFFICE OF CHIEF LABOUR COMMISSIONER (CENTRAL), NEW DELHI - 110001. - 5 THE ASSISTANT LABOUR COMMISSIONER CENTRAL T.C. 25/3534, UPPALAM ROAD, TRIVANDRUM - 01. - 6 THE INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT CENTRAL KARSHAKA ROAD, ERNAKULAM, COCHIN -682 016. - 7 INDIAN RARE EARTHS LIMITED PLOT NO.1207, VEER SAVARKAR MARG,PRABHADEVI, MUMBAI - 400028. BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.P.GOPINATH ## **OTHER PRESENT:** ADV. JAI MOHAN FOR R2 & R7 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA No.1909/2014 -3- ## **JUDGMENT** ## S.V. Bhatti, J. We have heard Mr Sanjith R., and Mr Jaimohan, for the parties. 2. The writ petitioner is the appellant. The appellant is a registered association formed for the welfare of the retired employees of the Indian Rare Earths Limited, Chavara Plant, Kollam/2[nd] respondent. The appellant prayed for the following reliefs: “i) To call for the records leading to the issuance of the Exhibit P6 order by the 1st respondent, examine its legality and propriety, and quash the same by issuing a writ of certiorari. ii) To issue a writ of mandamus and command the 1st respondent to refer the dispute covered under Exhibit P6 failure report to the 6[th] respondent Labour Court (Central), Ernakulam for adjudication under Section 10(1) (C) of the Industrial Disputes Act. iii) To pass any other and such other orders as this Honourable Court may deem fit and proper to pass in the nature and circumstances of the case iv) To award cost of this proceedings to the WA No.1909/2014 -4- ## petitioner.” 3. The circumstances referred in a nutshell preceding the filing of the Writ Petition are that in 1996, a dispute arose between the management of the 2[nd] respondent and its employees on the quantum of the bonus payable for the financial year 1995-96. The recognised union of the 2[nd] respondent pressing the demand for payment of the bonus staged a token dharna on 22.08.1996. The 1[st] respondent issued Ext.P2 communication dated 15.03.1997. The principle of ‘no work, no pay’ to be followed during the dharna period. The additional circumstance which should be contextually stated is that because of a few other factors intervening the dharna or boycott extended for some more period. The recognised unions questioned Ext.P2 order in OP Nos.5232 and 5276 of 1997. By judgement dated 19.06.2006, the Original Petitions were dismissed. However, liberty was granted to the recognised unions to work out their remedies before the competent court/authorities. The steps taken for conciliation WA No.1909/2014 -5- were terminated through the Labour Officer filing Ext.P5 dated 29.02.2008 before the appropriate Government. The Ministry of Labour, Government of India which is the competent authority under the Industrial Disputes Act, 1947, communicated as follows: “I am directed to refer to the Failure of Conciliation Report No.8(03)/2007/ALC-TVM dated 29/02/2008 from the ALC(Trivandrum) received in this Ministry on 01/04/2008 on the above-mentioned subject and to say that, prima facie this Ministry does not consider the dispute in respect of Demand No. 1 and 3 fit for adjudication for the following reasons: Demand No. 1. Payment of wages for the period from 22/8/1996 to 1/11/1996 "Two unions moved the Hon'ble High Court of Kerala against the order of "No-work, no Pay" The Hon'ble Court dismissed the petition". Demand No. 3. Introduction of incentive Scheme. "The Union could not file the details and other documents to justify their demand." 4. Hence, the union of retired employees on 10.02.2011 filed W.P.(C) No.4728/2011 for the reliefs already excerpted in paragraph 2. The respondents filed counter affidavit and opposed the writ prayers. For the view, the learned Judge has taken and WA No.1909/2014 -6- the view we are proposing to hold, we deem it unnecessary to refer to the stand taken by the respondents. Through the judgment under appeal, the learned Single Judge rejected the writ prayers. Hence the appeal. 5. Adv. Sanjith R. argues that the denial of pay on the ground of ‘no work’ to the members of the appellant-association is definitely a dispute between the employees and management. Therefore, the dispute is referred to by the competent authority for a resolution to the Industrial Tribunal. The individual retired employees cannot be expected to work out their individual and independent grievances before either the labour court or a competent authority under any of the labour laws. The reason, i.e that the Writ Petition is filed belatedly, in the judgment under appeal is incorrect in as much as the issue was pending before the competent Government to consider and refer the dispute for adjudication. There is a dispute over the denial of salary to the employees for the strike period. WA No.1909/2014 -7- 6. Adv. Jaimohan contends that Ext.P6 is in the nature of an administrative order. The scope of judicial review of the order rejecting the request for adjudication of a dispute by the labour court is fairly well established. The competent Government did not find the very disputes fit for adjudication. The learned Judge referred to the delay and latches and dismissed the Writ petition. 6.1. The counsel further argues that this Court cannot compel the competent Government to refer a dispute for adjudication. The function is primarily with the competent Government, and the decision now impugned does not suffer from any illegality or infirmity. He prays for dismissing the appeal. 7. The above narrative leads to the consideration of whether the judgment under appeal is tenable and whether grounds are made out for setting aside Ext.P5 and direct the competent Government to reconsider the issue or this Court, on being satisfied with the material available on record, issue WA No.1909/2014 -8- necessary directions to the respondents. 8. The Supreme Court in _Prabhakar v. Joint Director, Sericulture Department and another_[1] considered Sections 10(1) and 2(a) of the Industrial Disputes Act, 1947. The said decision deals with the case of a challenge to the order of the Government refusing to refer a dispute for adjudication by the Labour Court. The judgment has considered the effect of latches, the nature of order made by the competent Government, and the scope of judicial review. Hence, we preface our consideration of the circumstance of the case by excerpting the following paragraphs: “8. From the facts narrated above, it becomes clear that for a period of fourteen years no grievance was made by the petitioner qua his alleged termination. Though it was averred that the petitioner had approached the Management time and again and was given assurance that he would be taken back in service, there is nothing on record to substantiate this. No notice was served upon the Management. There is no assurance given in writing by the Management at any point of time. Such assertions are clearly self-serving. Pertinently, even the Labour Court has not 1 (2015) 15 SCC WA No.1909/2014 -9- accepted the aforesaid explanation anywhere and has gone by the fact that the dispute was raised after a delay of fourteen years. Therefore, keeping in mind the aforesaid facts, we would decide the issue which has arisen, namely, whether reference of such a belated claim was appropriate. *** *** *** 10. Before we proceed to deal with the aforesaid questions, it would be proper to discuss the power of "appropriate Government" under Section 10 of the Act in referring or refusing to refer the dispute for adjudication. It is a peculiar position provided under the Act that an aggrieved workman cannot approach the Labour Court or Industrial Tribunal directly for adjudication of "industrial dispute". Except those cases falling under Section 2-A of the Act, he has to seek reference of dispute to the Labour Court/Industrial Tribunal under Section 10 of the Act. "Appropriate Government", as defined under Section 2(a) of the Act, is empowered to refer the dispute. Section 10(1) stipulates that "appropriate Government" may, at any time, by order in writing, refer the dispute to a Board, Labour Court or Industrial Tribunal where "it is of the opinion that any industrial dispute exists or is c apprehended". Interpreting this Section, way back in the year 1953, this Court in State of Madras v. C.P. Sarathy stated the following propositions: (AIR p. 57, para 14) (i) The Government should satisfy itself, on the facts and circumstances brought to its notice, in its subjective opinion that an "industrial dispute" exists or is "apprehended": (ii) the factual existence of a dispute or its WA No.1909/2014 -10- apprehension and the expediency of making reference are matters entirely for the Government to decide; (iii) the order making a reference is an administrative act and it is not a judicial or a quasijudicial act; and (iv) the order of reference passed by the Government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution to see if the Government had material before it to support the conclusion that the dispute existed or was apprehended. These propositions were based on unamended Act which did not contain the words "where the appropriate Government is of the opinion". *** *** *** 15. Likewise, when the appropriate Government refuses to make reference, it is also amenable to judicial review if it is shown that the 9 appropriate Government did not take into consideration the relevant material which could show existence or apprehension of industrial dispute or if it is shown that the reasons for refusing to make reference are irrelevant or not germane to the formation of opinion. *** *** *** 19. The position in law was summarised as under in Ajit Kumar Barat (SSC pp. 96-97, para 7). (1) The appropriate Government would not be justified in making a reference under Section 10 of WA No.1909/2014 -11- the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is 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 Section 10 of the Act is an administrative order and not a judicial or quasijudicial 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 Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government. (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. (5) It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act." *** *** *** 42. On the basis of the aforesaid discussion, we summarise the legal position as under: 42.1. An industrial dispute has to be referred by the appropriate Government for adjudication and the WA No.1909/2014 -12- workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2-A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that "any industrial dispute exists or is apprehended". The words "industrial dispute exists" are of paramount importance, unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. 42.2. Dispute or difference arises when one party makes a demand and the other party rejects the same. It is held by this Court in a number of cases a that before raising the industrial dispute making of demand is a necessary precondition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful WA No.1909/2014 -13- termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists. 42.3. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to d be treated as "dead", then it would be non-existent dispute which cannot be referred. 42.4. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the Labour Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it WA No.1909/2014 -14- can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of f demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for a number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. 42.5. Take another example. A workman approaches the civil court by 9 filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the civil court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. 42.6. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an "existing dispute". In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can WA No.1909/2014 -15- be granted.” 9. Keeping the above legal principles in mind, let us look at the circumstances in the case on hand. The incident on which a dispute is canvassed relates to the year 1996. The recognised unions filed the Writ Petition in this Court challenging the decision of the 1[st] respondent in implementing ‘no work, no pay’. This Court dismissed the Writ Petition, however, granted liberty to work out the remedies in accordance with law. From Ext.P6, it is clear that efforts were taken only for conciliation, and nothing happened nearly seven years from the date of the incident. The failure report submitted by the conciliation officer is accepted through Ext.P6. After three years, the association questions the order refusing to refer the dispute for adjudication. The Ext.P6 notices that there is no dispute for reference. Further, the delay is appreciated by keeping in the back of our consideration the earliest point till the date of filing of the Writ Petition. To consider any of these prayers at this point, and issue directions to WA No.1909/2014 -16- the respondents would be clearly contrary to the principles laid down by the Supreme Court in _Prabhkar_ case (supra). Further, as rightly argued by Mr Jaimohan, this Court must avoid the exhuming of a non-existing dispute in exercise of its jurisdiction under Article 226 of the Constitution of India. We are in complete agreement with the said submission and dismiss the appeal. 10. After the result and judgment are dictated, Mr Sanjith R. requests the Court to observe that the adjudication by this Court should not be understood as, in any way, disqualifying the individual aggrieved and retired workmen/employees to work out their remedies on the denial of wages for the strike period in accordance with law. 11. The statement is placed on record. The retired individual workers, if so advised, are given the liberty to canvass the cause strictly in accordance with law. As and when a cause is WA No.1909/2014 -17- initiated, it is open to the respondents/management to raise objections both in fact and law. The appeal is dismissed with the above observations. **S.V.BHATTI JUDGE** **BASANT BALAJI JUDGE** JS