Amitava Lala, J. - (1.) Grievance under the writ petition has been made by the Bank of Baroda Employees' Association and its General Secretary on the representative capacity to protect the interest of Head Peons occupying the accommodation given by the Bank in the various branches and/or offices. According to them, there was a clear understanding that if anybody is selected for the post of Head Peon he would have to stay within the branch/office premises in the accommodation provided by the respondent Bank. Such accommodation continued uninterruptedly for decades and became conditions of service of the workmen under item no. 8 of the 4th Schedule read with 9A of the Industrial Disputes Act to hold such accommodation as a 'customary concession' and/or a 'privilege' and/or a 'usage'. Whosoever earlier secured accommodation on rental basis have given up the same after being selected for the post of Head Peons as the accommodation is given to them. In July 2003, the Bank started issuing eviction orders directing them to vacate such accommodation within a period of seven days from the date of receipt of such notice. The petitioner no.1 felt it is unwarranted, arbitrary, unjustified and whimsical and served notice under Section 22(1) of the Industrial Disputes Act, 1947 to go on strike. The petitioners contended that strike was not there at the time of conciliation but before the same. Upon receipt of such notice the Assistant Labour Commissioner (Central) being the Conciliation Officer wanted to conciliate in the dispute and as such the eviction order was not enforced and status quo was continued. Such Conciliation ended in failure. Central Government declined to make reference of the dispute for adjudication by the appropriate Court/Tribunal for following reasons:- "It is a fact that the Head Peons are entitled for House Rent Allowance irrespective of the fact whether they are allotted living space within the bank premises. The union failed to establish that the management has violated any of the provisions of the settlement by their action. It is further noted that the conditions of service of the workmen are not adversely affected by the management's decision. Hence, the demand for adjudication of the dispute raised by the union is found to be not maintainable."
(2.) The petitioners contended that although the conciliation failed but the dispute cannot be resolved without proper adjudication by the Labour Court/Industrial Tribunal. But the administrative authority under Government of India, Ministry of Labour thought it fit that the dispute does not require consideration by the process of adjudication as aforesaid with reasons stated therein. According to the Learned Counsel appearing for the petitioners such dispute cannot be decided by any authority under administrative capacity. The reasons are to be proved and established by satisfactory evidences to come to a definite finding by such judicial authority. The reasoning which has been incorporated in the letter dated 18th March, 2004 being "P-6" in the writ petition is the judicial reasoning by an administrative authority. Therefore, the same cannot be sustainable. Particularly, in accordance with law, when a strike notice has been issued by the employees to the employer prior to conciliation it is desirable that the matter should be referred to an appropriate Labour Court/Industrial Tribunal for the purpose of adjudication. In AIR 1989 Supreme Court 1565 (Telco Convoy Drivers Mazdoor Sangh & Anr. v. State of Bihar & Ors.) it was held that in exercising power under Section 10(1) of the Act, the appropriate Government is discharging an administrative function but not the judicial or quasi judicial function and that in performing administrative function the Government cannot delve into the merits of the dispute and take 'upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by the Act. It is true that in considering such question the Government is entitled to form an opinion as to whether an industrial dispute 'exists or is apprehended'. But the formation of opinion as to whether an industrial dispute 'exits or is apprehended' is not the same thing as to adjudicate the dispute itself on its merits. There the dispute was whether the persons raising the dispute were workmen or not. In deciding the question the ratio of AIR 1985 SC 860 (The M.P. Irrigation Karamchari Sangh v. State of M.P. & Anr.) and AIR 1985 SC 915 (Ram Avtar Sharma & Ors. v. State of Haryana & Anr. with another matter) were followed which have been referred hereunder. Therefore, there is no justiciability to reiterate such contentions once again.
(3.) In 1975 (2) LLJ 319 (S.C.) (Management of Indian Oil Corporation Limited v. Its Workmen) four Judges Bench of the Supreme Court held that in respect of withdrawal of payment of compensatory allowance is an occasion of interference with the implied conditions of service. As such same cannot be done unilaterally. By showing such factual aspect of the matter the Learned Counsel appearing for the petitioners wanted to establish that giving accommodation to the petitioner is also similarly placed condition of service, which cannot be withdrawn unilaterally. As a result whereof that adjudication of dispute by the Labour Court/Industrial Tribunal is obvious. AIR 1987 SC 695 (V. Veerarajan & Ors. v. Government of T.N. & Ors.) and 1983 (1) LLJ 406 (Mad.) (Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nadu & Anr. with another matter) are speaking about the power of the Court to direct the Government to refer the dispute for adjudication. In 1993 (3) LLJ (supple.) 855 (S.C.) (Abad Dairy Dudh Vitran Kendra Sanchalak Mandal v. Abad Dairy & Ors.) it was also held that whether the employees are workmen or not that has to be determined by the Tribunal on a proper reference. In AIR 1987 SC 1490 (T.N. Joint Action Council & Textile Trade Union v. Government of T.N. & Or s. with another matter) the court held that when there is an industry-wise dispute the mills should have also been included in the reference and it should have been left to the managements of the mills to object to the reference before the Tribunal.;