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Bombay High CourtIndian Cases

Allahabad Bank Employees’ Union vs Union Of India (Uoi) And Ors. on 19 September 1987

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Bombay High Court
Allahabad Bank Employees’ Union vs Union Of India (Uoi) And Ors. on 19 September, 1987
Equivalent citations: (1995)IIILLJ74BOM
JUDGMENT

H.H. Kantharia, J.

1. The petitioner-union raised a demand on behalf of the workmen of the second respondent bank that after retirement of “Officer Head Cashier” from Fort, Bombay Branch on 31st July, 1983, the management wanted to fill up the vacancy from Officers cadre only thus depriving the rights of the workmen which should not be permitted. In this demand of the petitioner- union, the Assistant Labour Commissioner-(C)II, Bombay submitted a failure report under Section 12(4) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). The Government of India (first respondent) refused to make a reference about the demand of the petitioner by their order dated 22nd August, 1985 which has been impugned by the petitioner- union in this petition under Article 226 of the Constitution of India.

2. Now, after a Conciliation Officer submits a failure report under Section 12(4) of the Act, the appropriate Government is required to consider whether a reference should or should not be made to the appropriate authority. Sub-section (5) of Section 12 of the Act provides:

“If, on consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal), it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.”
It may be noted here that if the Government decides to make a reference it has to be done under Section 10(1) of the Act which provides:

“Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c):
A plain reading of these provisions of law makes it clear that the powers vested in the Government to make a reference are discretionary. But when the Government chooses not to make a reference, it has to record reasons for not doing so and communicate the same to the concerned parties. This is a mandatory duty of the Government.
3. In our case, the first respondent passed the following order refusing to make a reference under Section 10(1) read with Section 12(5)of the Act.

“Government of India Works Ministry New Delhi 22nd August 1985
1. Regional Manager, Allahabad Bank, Bombay Branch Manager, 18, Dr. Gopalrao Deshmukh Marg, Bombay 400 026.
2. General Secretary, Allahabad Bank Employees’ Union, 37, Bombay Samachar Marg, Bombay 400 023. Sub:- Non-filling of the vacant post of Head Cashier/Cashier in the Bombay Kalbadevi Branch and the resulting Industrial dispute between the Allahabad Bank Management of Bombay and the Allahabad Bank Employees Union. Dear Sir, With reference to the letter dated 6.4.1985 of this Ministry on the abovementioned subject, I have been directed to say that it is the principal right of the management to keep any important post vacant or abolish it and to fill it up only in case of exigency. Therefore, it is the view of the Central Government that there is no basis for making a reference to the Industrial Tribunal in regard to this industrial dispute. Sd/ For N.K. Varma”
4. A mere glance at this order shows that the first respondent did not give adequate and convincing reasons for refusing to make a reference. The functions of the Government in this regard have to be exercised reasonably with utmost care and caution. While exercising such powers Government should be slow in declining to make a reference because in doing so, the Government attempts to usurp the powers of the Labour Court or Industrial Tribunal in going into the merits of the matter. Government should bear in mind that it is only when it is of the considered opinion that the claim preferred by the workmen was perverse or frivolous or bogus or was inordinately delayed that the Government may use its discretion and refuse to make a reference. The reasons given here are not convincing for refusing to make a reference. The impugned order is cryptic and appears to have been passed without proper application of mind. The discretion vested in the Government has to be exercised properly and with acceptable reasons for the decision. If any authorities are needed on the point, they are in cases of (i) Nirmal Singh v. State of Punjab and Ors, 1984 II LLJ 396, (ii) Workmen of Syndicate Bank, Madras v. Government of India and Anr. 1985 1 LLJ 93, (iii) an unreported judgment of a Division Bench of this Court (Bharucha and Tipnis, JJ) in Appeal No. 627 of 1981, arising from Writ Petition No. 451 of 1981 decided on 27th August, 1987, (iv) The M.P. Irrigation Karmachari Sangh v. The State of Madhya Pradesh and Anr. 1985 I LLJ 519 and an unreported judgment of this Court in Writ Petition No. 627 of 1984 decided on 4th Sept., 1987.

5. In the result, this petition succeeds and the same is allowed. The impugned order (Exh. “H: to the petition) is quashed and set aside. I direct the first respondent, Government of India, to refer the dispute raised by the petitioner to appropriate Labour Court or Industrial Tribunal under Section 10(1) read with Section 12(5) of the Act for proper adjudication within two weeks of the receipt of the writ.

6. Rule is accordingly made absolute. There shall be no order as to costs.