- (1.) THESE two writ appeals are directed against the Judgment of Venkataswami, J. in W. P. No. 4024 of 1983. The first writ appeal has been filed by the Tamil Nadu Co-operative Milk Producers Federation Limited (hereinafter referred to as the Federation) and the second writ appeal has been filed by the State of Tamil Nadu. The circumstances under which the said writ petition came to be filed by the Tamil Nadu Dairy Development Corporation Employees Union (hereinafter referred to as the Union) may briefly be stated. The Dairy Development Department of the State of Tamil Nadu established two dairies one at Madhavaram and the other at Ayanavaram. Later a Corporation known as the Tamil Nadu Dairy Development Corporation was formed and the two dairies were transferred to the said Corporation. The Corporation also established and ran a third dairy at Ambattur. On 1st February, 1981 the Tamil Nadu Co-operative Milk Producers Federation was formed. The Union issued a notice of token strike in support of various demands and in fact observed a token strike on 19th November, 1980. According to the Tamil Nadu Dairy Development Corporation Employees Union and the said strike was legal and justified, and after the token strike on 19th November, 1980, the members of the Union reported for duty on the next day but they were refused employment by the Federation. Thereafter, in view of the said attitude of the Federation, the Union was compelled to launch an agitation demanding that its members be taken back to work. The agitation was continued and lasted for several months. In spite of several meetings with the Minister in charge of the Dairy Development and assurance held out at such meetings, nothing took place and therefore the agitation continued. After waiting for more than a year the Union served a notice upon the Federation on 10th January, 1982 intimating that the workers were always ready and willing to resume duty and it was only the Federation which had refused to employ them. After the said notice, the members of the Union presented themselves physically for duty on 15th February, 1982. But the Federation did not permit entry. Thereafter, on 16th February, 1982 individual letters were sent by each of the members of the Union putting the blame on the Federation for refusing employment. In reply to the said individual letters, the Federation served an order to each of the members of the Union stating that the members of the Union were absent from duty on 19th November, 1980 and they did not report for duty thereafter and that in view of their long absence from duty the Federation had come to the conclusion that the members of the Union had abandoned their employment with effect from 19th November, 1980 and therefore they ceased to be in the service of the Federation. The said communication also called upon the members of the Union to settle their accounts. This dispute between the Union and the Federation relating to the nonemployment of the members of the Union by the Federation was the subject matter, of conciliation proceedings and the Special Deputy Commissioner of Labour after consideration of the rival contentions put forward by the parties during the conciliation by his report dated 16th November, 1982 gave a report of failure of conciliation to the Government. The Union made representations to the Government to refer the dispute for adjudication by a competent tribunal as it involved the lively hood of a large number of workmen numbering 901. However, the Government passed G. O. Ms. No. 371 Labour and Employment dated 14th February 1983 declining to refer the said dispute for adjudication and the reasons set-out in the Government Order of declining a reference are four-fold. They are (i) The strike from 19th November, 1980 was in direct contravention of Section 22 (a) of the Industrial Disputes Act in that no notice to the employer as required there under was given and this has rendered the strike illegal; (ii) the Federation is running a public utility service; (iii) having resorted to an illegal strike and continuing the same, the workers had caused hardship to the society at large in the supply of milk and milk products and (iv) in such an essential service, the workmen ought not to have gone on strike without exhausting the legal remedies' and without complying with the statutory requirement.
(2.) AGGRIEVED by the said order of the Government refusing to refer the dispute, the Union filed W. P. No. 4024 of 1983. In the said writ petition the Union complained that the Government had not applied its mind to the nature of 2 the dispute, that the reasons given by the dispute, that the reasons given by the Government for declining the reference have no relevance whatsoever to the dispute raised, that the reference of a dispute regarding non-employment of workmen may be declined only if prima facie the government comes to the conclusion that the non-employment was fair and proper and that nonemployment was effected after a properly conducted enquiry or under the Standing Orders 3 or under any other provisions of law. It is also the case of the Union that the order of the Government declining reference is vitiated by malice in law as well as malice on facts in that the Federation acted on the dictates of the State Government and in particular the Minister in charge and as such the Government has not approached the matter in a fair and honest manner but sought to protect the interests of the Federation overlooking the interests of the a workmen concerned and that the reasons given in the impugned order also bristles with inaccuracies of fact in that, according to the workmen, the lightning strike was only for one day on 19th November, 1980 and that it was quite legal and the same does not contravene Section 22 (a) of the Industrial Disputes Act as has been assumed by the Government.
(3.) THE said writ petition was opposed both by the State of Tamil Nadu and the Federation who were respondents 1 and 2 therein. The first respondent filed a counter affidavit to the following effect: The workmen in question, struck work from 19th November, 1980 to 20th November, 1980 in contravention of the provisions of Sections 22 and 23 of the Act and that too, during the pendency of Conciliatory talks before the Deputy Commissioner of Labour II, Madras. Having resorted to an illegal strike in public utility services, the workmen continued the strike causing hardship to the community at large in the supply of milk and milk products. In short the workmen had abandoned their jobs/contracts. Therefore, the contention of the workmen that they were refused employment and were not allowed to join duty or resume work is totally unfounded. In G. O. Ms. No. 371 Labour and Employment dated 14th February, 1982, the Government have declined to refer the dispute for adjudication for the reasons set out therein which are valid and would amply justify the decision of the government.;