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CASE NO.:

Appeal (civil) 1041 of 2000

PETITIONER:

SECRETARY, INDIAN TEA ASSOCIATION

RESPONDENT:

AJTT KUMAR BARAT AND ORS.

DATE OF JUDGMENT: 14/02/2000

BENCH:

G.T. NANAVATI & S.N. PHUKAN

JUDGMENT:

JUDGMENT

2000 (1) SCR 787

The Judgment of the Court was delivered by PHUKAN, J. Leave granted.

This appeal is directed against the judgment and Order dated 17th March,

1999 of the Calcutta High Court in appellate jurisdiction whereby order of

the learned single Judge dated 24th July, 1998 passed in W.P. No. 155 of

1998 was affirmed. The learned single Judge directed the State Government

to make reference under Industrial Disputes Act, 1947.

Briefly stated facts are as follows :

Respondent No, 1 was employed as Joint Secretary of India Tea Association -

appellant. On 27th November, 1995, respondent No. 1 was dismissed from

service for disobeying an order of transfer. He complained of his dismissal

to Labour Commissioner, Government of West Bengal. Conciliation proceedings

under Section 12 of the Industrial Disputes Act, 1947 (fur short the Act)

were held and appellant submitted its comments stating that respondent No.

1 was not a workman. A failure report dated 2nd July, 1997 was submitted by

the Joint Labour Commissioner recommending a reference, as according to

him, the question whether respondent No. 1 was a workman required

adjudication. The Government did not act, therefore, respondent No. 1 moved

Calcutta High Court. The High Court directed the Government to take a

decision under Section 12(5) of the Act within the time fixed. By order

dated 14th July, 1998 the Government communicated its decision in writing

wherein it regretted its inability to make a reference as respondent No. 1

was not a workman. Again respondent No. 1 moved the High Court against the

said order of State Government. The learned single Judge directed the

appropriate Government to make a reference as to whether the respondent No.

1 was a workman. The appeal filed by the appellant was dismissed by the

impugned judgment and the State Government was directed to make an

appropriate reference, keeping in view the nature of the dispute raised by

respondent No. 1. Hence this appeal.

Mr, Dipankar Gupta, learned counsel for the appellant relying on the

decision of this Court in State of Madras v. C.P. Sarathy and Anr., [1953]

4 SCR 334 has urged that while discharging its function under Section 10(1)

of the Act, Government was performing an administrative act, therefore,

Court could not have come to the finding that the refusal to refer the

matter was bad. We quote below the relevant paragraph of the judgement:

"This is, however, not to say that the Government will be justified in

making a reference under Section 10(1) without satisfying itself on the

facts and circumstances brought to its notice that an industrial dispute

exists or is apprehended in relation to an establishment or a definite

group of establishments engaged in a particular industry, and it is also

desirable that the Government should, wherever possible, indicate the

nature of the dispute in the order of reference. But, it must be remembered

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that in making a reference under section 10(1) the Government is doing an

ad-ministrative act and the fact that it has to form 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 ad-ministrative in

character. The Court cannot therefore, canvass the order of 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 determination. No

doubt, it will be open to a party seeking to impugn the resulting award to

show that what was referred by the Government was not an industrial dispute

within the meaning of the Act, and that, therefore, the Tribunal had, no

jurisdiction to make the award. But, if the dispute was an industrial

dispute as defined in the Act, its factual existence and the expediency of

making a reference in the circumstances of a particular case are matters

entirely for the Government to decide upon, and it will not be competent

for the Court to hold the reference bad and quash the proceedings for want

of jurisdiction merely because there was, in its opinion, no material

before the Government on which it could have come to an affirmative

conclusion on those matters." We may also refer to the decision of this

Court in Prem Kakar v. Slate of Haryana and Anr., [1976] 3 SCR 1010, In

that case a question arose whether an employee was a workman. The

Government informed the workman that his case was not covered by the

definition of the term "workman" under the Act, therefore, refused to make

a reference. The workman approached the High Court for writ of mandamus

which was dismissed This Court was approached and the appeal was dismissed.

In appeal it was contended before this Court that the question whether an

employee was a workman is a disputed question of facts and law and,

therefore, could only be decided by Labour Court on a reference and not by

the State Government while exercising its powers under Section 12(5) of the

Act, which was rejected. The Court also held that the order of the

Government acting under Section 10(1) read with Section 12(5) of the Act

passed after subjective satisfaction is an administrative order and not a

judicial or a quasi-judicial one. It was also held that in entertaining a

writ of mandamus against such an order the Court does not sit in appeal and

is not entitled to consider the propriety or the satisfactory character of

the reasons, However, if it appears from the reasons given in the order

that the appropriate government has taken into account any consideration

which is irrelevant or foreign, then the court may in a given case consider

the case of writ of mandamus.

In Sultan Singh v. State of Haryana & Am., [1996] 2 SCC 66, this Court held

that an order issued under Section 10 of the Act is an ad-ministrative

order and the Government is entitled to go into the question whether

industrial dispute exists or is apprehended and it will be only a

subjective satisfaction on the basis of material on record and being an

administrative order no lis is involved.

The law on the point may briefly be summarized as follows :

1. The appropriate Government would not be justified in making a reference

under Section 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

Section 10 of the Act is an administrative order and not a judicial or

quasi-judicial one and 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;

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4. If it appears from the reasons given that the appropriate govern-ment

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 a party to show that what was referred by

the Government was not an industrial dispute within the meaning of the Act;

We extract below the order of the State Government, which is speaking one :

"I am directed to say that in terms of the Hon'ble High Court's order dated

24.11.1997 in Writ Petition No. 22878 (w) of 1997 in the case of Shri Ajit

Kumar Barat Versus State of West Bengal Government has examined the matter

ia details.

After examination, it reveals that you were first appointed as Assistant

Secretary in the Indian Tea Association and subsequently promoted to the

post of joint Secretary. Besides the basic pay you are given child

allowance house rent subsidy, Furnishing allowance, House maintenance

allowance, Transport subsidy, reimbursement of Fuel and Electricity

charges, Entertainment expenses, reimbur-sement of servant's wages, monthly

club subscription, Leave Travel Allowance and reimbursement of Hospitality

Expenses, Yours duties also included power of sanction of expenses on

behalf of Indian Tea Association,

So your pay and perquisites and the status enjoyed by you in the

Organisation and also the power of sanction of expenses suggest that you

were a part of the management. Hence you cannot be' treated as a workman

within the purview of the Industrial Disputes Act. Government, therefore,

regrets its inability to refer your dispute to any Industrial

Tribunal/Court under Section 12(5) of the In-dustrial Disputes Act, 1947."

The appropriate Government would be justified in making a refer-ence under

Section 10 of the Act, if it is satisfied on the facts and circumstances

brought to its notice that an industrial dispute exists or is apprehended

and "industrial dispute" as per clause (k) of Section 2 of that Act means,

inter alia a dispute or difference between employees and employers, or

between employers and workmen. Clause (s) of Section 2 of the Act defines

"workman" but does not include any such person -

(1)...........

(ii) ..-.......

(in) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding

one thousand six hundred rupees per mensem or exercise, either by the

nature of the duties attached to the office or by reason of the powers

vested in him, functions mainly of a managerial nature.

Before making a reference under Section 10 of the Act the ap-propriate

Government has to form an opinion whether an employee is a workman and

thereafter has to consider as to whether an industrial dispute exists or is

apprehended.

In the present appeal we find that the State Government rightly approached

the question whether respondent No, 1 was a workman. Unless this condition

is satisfied no reference can be made.

From the order of the State Government we find that while deciding the

question whether respondent No. 1 was a workman, it took into consideration

the salary and allowances of respondent No, 1 drawn at the relevant time

and also the nature of work. Respondent No. 1 who has appeared in person

did not dispute the salary and allowances etc. as indicated in the order of

the Government but urged that his responsibilities were neither supervisory

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nor managerial in nature. Mr. Gupta, learned senior counsel appearing for

the appellant has drawn our attention to the circular dated 30th March 1994

issued by the appellant-association. This circular indicates duties of

respondent No. 1 who was functioning as a Joint Secretary at the relevant

time and we find Ms duties were to deal with ail legal matters and

proceedings, labour and land laws and publications (Labour legislations

Labour welfare). We also find from the records that respondent No. 1 had

power to sanction expen-ses incurred in litigation by the appellant. On the

above materials on record the State Government rightly formed the opinion

that respondent No. 1 was not a workman.

Respondent No. 1 has not been able to show that while passing the above

administrative order, State Government took into consideration any

irrelevant or foreign matter. We, therefore, hold that the above

administrative order was passed by the State Government after taking into

consideration material available on record and it could not be faulted.

Mr. Barat has urged that the question whether he was a workman is a

disputed question of fact and can be decided only by the Industrial

Tribunal and not by the State Government. In this connection, he has placed

reliance on a decision of this court in Abdul Dairy Dudh Vitran Kendra

Sanchalak Mandal v. Abad Dairy & Ors., (1993) III LLJ Suppl. 1993. This

Court observed as follows :

"Having regard to the facts and voluminous evidence sought to be adduced by

both parties, the question whether the appellants are workmen requires

detailed investigation of facts. The issue re-quires detailed examination

and can be satisfactorily adjudicated upon only by a Tribunal."

Thus it appears in that case the question required detailed investiga-tion

in view of voluminous evidence sought to be adduced but it is not so in the

case in hand. Therefore, the above decision is not relevant for our

purpose. The ratio laid down by this Court in. Prem Kumar (Supra) squarely

covers this appeal as it does not appear from the order that the State

Government took into consideration any irrelevant or foreign material.

Drawing out attention to the advertisement issued by the appellant-

association calling for application for the post of Assistant Secretary Mr.

Barat has urged that this advertisement would show the nature of the work

to be performed. In our opinion this advertisement could not help respon-

dent No. 1 inasmuch as it was for the post of Assistant Secretary to which

post respondent No. 1 was initially appointed but subsequently he was

promoted to the post of Joint Secretary. That apart we are concerned with

actual duties performed by respondent No. 1 at the time of his dismissal

from service which we have already indicated and were also taken into

account by the State Government.

Mr. Barat has further contended that his letter filed before the

Conciliation Officer was not considered by the State Government. We may

state here that the records were not placed by the State Government before

the High Court but were made available by Ms. A. Subhashini before this

Court. From the record we find that in the failure report the Conciliation

Officer has indicated all the contentions raised by respondent No. 1 in his

letter. Therefore, this contention has no force.

For the reasons stated above we hold that both the appellate court and the

learned single Judge of the High Court erred to law in issuing a mandamus

directing the State Government to make an appropriate refer-ence,

therefore, the judgment of the learned single Judge passed in writ petition

No, 155 of 1998 and the judgment of the appellate court are hereby set

aside.

In the result we find merit in the present appeal and accordingly it is

allowed. Considering the facts and circumstances of the case we direct the

parties to bear their own costs.

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