Decided on August 18,1992

National Carbon Company Appellant


Motilal B. Naik, J. - (1.)This writ petition is filed by the National Carbon Company Contract Mazdoor Sangh (BMS), represented by its Vice-President, P. Mahender. The members of the petitioners Union are engaged as operators, general mazdoors, etc. in engineering, cleaning and maintenance departments. It is stated that the workers represented by the Union have been discharging their duties regularly and have been working for the past several years. They are being treated as contract workmen though the Government of Andhra Pradesh issued G.O. Ms. No. 287, dated 7.5.1991 prohibiting engagement of contract labour. It is averred that whenever regular vacancies are filled in the 2nd respondent-Company, contract labour were given preference over the outsiders. For reasons best known to the 2nd respondent, they have deviated from the earlier procedure and started making recruitment to the post of general mazdoors, etc. by outsiders without giving preference to contract labour. Under these circumstances, on 30.4.1990 an application was made to the conciliation officer the union. It is further stated that during the conciliation, the management of the 2nd respondent addressed a letter through the Labour Commissioner on 28.7.1990 inter alia stating that whenever any recruitment takes place, preference would be given to the contract labour. Despite this categorical statement, the 2nd respondent failed to give preference to the workers. Under this background, the Government of Andhra Pradesh was pleased to refer the matter to the Labour Court for adjudication, vide G.O. Rt. No. 1843, Women Development, Child Welfare and Labour (Lab.I) Department, dated 6.9.1991. The following is the reference, which is pending adjudication before the forum settling industrial disputes;
"Whether the demand of the National Carbon company contract Mazdoor Sangh (BMS) (R.No. A1553) for giving preference to the following 25 workers in the recruitment contemplated by the management of the Union Carbon India Limited is justified

1. P. Mahender

2. N. Prabhanand

3. B. Sailoo

4. G.T. Venugopal

5. K. Ramakrishna

6. N. Narasimha

7. G.Yadigiri

8. B. Raghavender

9. K. Swamy

10. K. Anand

II. M. Dayanand

12. K.N. Rao

13. P. Satyanarayana

14. M. Sardar

15. A. Veeraiah

16. Surender Singh

17. A. Yadagiri

18. N. Prakash

19. T. Sudhakar

20. N. Prakash

21. S.K. Khadeer

22. Md. Osman

23. S. Srinivas

24. M. Francies

25. G. Muthyam.

If so, what relief was numbered as I.D.No. 270/91 and the same is pending before the Labour Court, Hyderabad., the 1st respondent herein. It is stated that the 2nd respondent, during the pendency of the reference, has started recruiting for the posts of general mazdoors by outsiders without giving preference to the workmen. Under this background, the present writ petition is filed seeking a writ of mandamus declaring the action of the 2nd respondent in seeking to make recruitment to the posts of general mazdoors without giving preference to the persons referred to in I.D.No. 270/91 during the pendency of the said dispute, as illegal and arbitrary. W.P.M.P. No. 5244/92 was also filed seeking stay of recruit mental process till the disposal of the said Industrial dispute."

(2.)This Court, while admitting the writ petition, granted interim stay for two weeks preventing the 2nd respondent from finalising the recruit mental process.
(3.)The 2nd respondent filed a detailed counter inter alia contending that the writ petition is not maintainable. It is also contended that the writ petition has been filed on the ground that there is violation of the provisions of Sec. 33 of the Industrial Disputes Act (for short the Act). It is contended by Sri K. Srinivasa Murthy, Learned counsel appearing for the 2nd respondent, that Sec. 33 of the Act deals with the service conditions of the workmen, according to which the condition should remain unchanged during the pendency of the proceedings, whereas the subject matter of the reference is as to whether the members of the petitioner union, in all 25, could be given preference in recruitment's contemplated by the management of the 2nd respondent. Under the guise of the reference, it is contended that the petitioner Union is seeking fresh direction from the Tribunal to give them the said relief, which, according to the 2nd respondent, the Tribunal has no power. Sri Srinivasa Murthy has further contended that the question to be decided is whether the 2nd respondent could be prevented by this Court from completing the recruit mental process till the disposal of I.D. No. 270/91. He further contended that the issue under reference would not fall within the ambit of Sec. 33 of the Act and, therefore, the writ petition is not maintainable and is misconceived.

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