- (1.) D. K. Seth, J. Mr. S. N. Verma, counsel appearing for the petitioners raises an interesting question as to whether there could be a second reference under Section 4-K of the U. P. Industrial Disputes Act, hereinafter referred to as 'the said Act', after having once refused to refer the matter under the provisions of the said Act and whether the State Government had the power to review or revise its own order passed under Section 1-K of the said Act at an earlier point of time even when no fresh material has been proceed and when there is no finding that the earlier representa tion was based on frault on fraudulent representation or whether such a reference could be made without giving any opportunity to the employed when once earlier declined.
(2.) HE further contends that the second reference having been made on me basis of a recommendation made by the Minister, the same is without application of mind. Another contention of his is that the petitioners' organisation is not an industry and the said fact has not been taken into account. HE contended further that nothing has been indicated as to what was the report earlier and why the same is being departed or deviated from and, therefore, the reference is void. His last contention was that the reference relates to a stale case became of long lapse of time in between. In order to appreciate the situation, it/is necessary to refer to the brief facts of the present case which is as hereinafter. M/s. Viklang Kendra is a voluntary humanitarian establishment run and managed by a Society under the Rotary Sponsored Crippled and Youth Welfare Society, Allahabad registered udder the Societies Regis tration Act. It is purely a humanitarian and charitable establishment in which the volunteers from different walks of life participate in the activity of Kendra for the rehabilitation of physically disable persons. The Kendra had to forgo a very ambitious scheme for the benefit of the physically disabled persons on account of the activities of some politically motivated persons. The Kendra attends not only to medical aspect of physi cally disabled and crippled persons but is also engaged in providing vocational and occupational training within the limits of physical ability of an individual for rehabilitating such persons in life. It undertakes to determine the Orthopedic, Psycho-social assessments, nature of disability and therapies required for rehabilitation. It provides physiotherapy, occupational therapy, horticulture play and hydrotherapies. Where necessary, special education is given to integrate the physically and mentally retarded children and cerebral palsy cases. Suitable vocational/occupa tional training is given to selected cases with intention that they may be able to rehabilitate themselves in life through gainful employment. No free is charged from the medical patients or the persons who join the vocational or occupational training except a token of Re. 1. The finances are obtained mostly through donations and charities. Stipends are given to those persons undergoing training for six months for helping them while they pick up the vocational/occupational skills. The period of, training vanes according to individual disability. The Kendra carries out its activities with the aid of persons with humanitarian and charitable disposition who volunteer to serve because of the concern they feel to have for humanity and out of an urge to contribute whatever little they can to mitigate the woes of physically disabled person. The persons who have sought to raise the dispute had entered the predicts of the said Kendra as Volunteers. Out of the 23 persons raising the dispute, 15 were taken in as disabled persons for therapy and rehabilitation. They joined those persons while still they were in the process of rehabilitation and had been receiving stipend. Such persons themselves had stopped partici pating in the activities of the Kendra on 12th October, 1987. Therefore, there was no question of terminating their services who were only volunteers. There was no relationship of employer and employee between the Kendra and the said persons. The said persons were never appointed as employees of the Kendra. Neither any appointment letter was ever issued to them nor any letter of termination was ever issued and those volunteers themselves had stopped coming to Kendra on 12th October, 1987. Despite repeated requests having been made, those persons were not participting in the activities. Therefore, a notice was issued on 1st February, 1988 to the effect that those persons where no more required to participate in the activities of the Kendra. The said persons made an application before the Conciliation Officer on 31st May, 1988 alleging that their services have been terminated. The said application was registered as C. C. Case No. 66 of 1988. The petitioner filed its objections before the Conciliation Officer. After the concilitation was over, the Conciliation Officer submitted a report to the State Government did not think the alleged dispute to be fit for reference under Section 4-K of the said Act. The said order was communicated to the petitioner on 1st May, 1989. (Annexure 4j. In the said communication, it has been stipulated that the purported dispute is unfit for reference under Section 4-K. Subsequently a representation was submitted to the Labour Minister of the State who endorsed it to the conciliation officer to take necessary action on the said representation. Thereupon, the Deputy Labour Commissioner, without applying his mind issued notice on 24th January, 1990 (Annexure 5 ). The petitioner submitted their objection on 30th May, 1990. In the said objection it was pointed out that since after 12th January, 1987, no volunteers have been taken and t le entire work of the Kendra has been organised in a manner that it may be carried out by the existing volunteers. Certain vocational units had to be closed down. It was also pointed out that the Kendra is not a commercial establishment and does not carry out any business activity. It is a voluntary organisation catering to the need of Social Welfare of disabled and cripples. The Deputy Labour Commissioner, however, without applying his mind, submitted a report on 4th May, 1990 wherein he had found that the organisation carries on humanitarian activities and while doing so it earns profit. On the basis of the said report, the Deputy Labour Commissioner issued a show-cause notice without giving opportunity to file objection or hearing. By an order of reference dated 2nd January, 1992 contained in a com munication dated 14-1-1992, it was intimated to the petitioner that the matter was sought to be referred. It is against this order that the present writ petition has been moved wherein the above question has been raised.
(3.) ON the other hand, the learned Counsel Mr. A. P. N. Giri appear ing on behalf of the respondents contends that the writ petition is premature since the present question could be raised as preliminary objection before the Industrial Tribunal and could be decided therein. He further contends that Article 350 of the Constitution entitles a person to make a representation. If a representation is made, the same is to be decided in accor dance with law and has been so decided and, therefore, the same cannot be questioned. He contends further that the reference made by the Minister is to be treated as a reference by the Government. He relies on the case of Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, In support of his contention that a Ministers' reference is a reference by the Government. Now looking into the contention of Mr. Verma with regard to the question of maintainability of a second reference, I do not find any reason to accept such a contention that once a reference is refused there cannot be any second reference, Inasmuch as making of a reference is neither a judicial action nor quasi- judicial activity. The making of reference is purely administrative action. Therefore, the principle of res judicata cannot be attracted.;