- (1.) BOTH these petitions have been filed challenging the reference made by the Appropriate Government under the provisions of the Industrial Disputes Act, 1947 (for short, "the Act") dated 6.11.99 on the ground that earlier, vide order dated 5.7.95, in respect of the same workmen, the Appropriate Government refused to make a reference and as the said workmen had been appointed for a fixed term, the termination of their services was covered by the provisions of Section 2(oo)(bb) of the Act and, therefore, there could be no industrial dispute and the Appropriate Government committed an error in making the reference, hence the same deserves to be quashed.
(2.) THE facts are not in dispute. THE workmen, in respect of whom the reference has been made, had been employed by the present petitioner and their services stood terminated. Earlier, inspite of raising the industrial dispute, the Appropriate Government refused to make a reference, however, at a later stage, the reference has been made. Hence these petitions. I have considered the rival submissions made by the learned counsel for parties and perused the record. Public Policy manifested in the industrial legislation is to achieve the aimed justice and maintain industrial peace. In Workmen of Indian Standard Institute vs. Management of Indian Standard Institution (1), the Hon'ble Supreme Court observed as under :- ".......it is necessary to remember that the Industrial Disputes Act, 1947 is a legislation intended to bring about peace and harmony between management and labour in an `industry' so that production does not suffer and at the same time, labour is not exploited and discontended and, therefore, the tests must be so applied as to give the widest, possible connotation to the term `industry'. Whenever a question arises whether a particular concern is an `industry', the approach must be broad and liberal and not rigid or doctrinaire. We cannot forget that it is a social welfare legislation we are interpreting and we must place such an interpretation as would advance the object and purpose of the legislation and give full meaning and effect to it in the achievement of its avowed social objective." It is settled legal proposition that while making a reference under Section 10(1) of the Act, the Appropriate Government performs an administrative act. The order is purely administrative in nature and certainly not of a judicial or quasi-judicial nature. (Vide State of Madras vs. C.P. Sarathy (2), State of Bombay vs. K.P. Krishnan & Ors. (3), and Onkarnath Kapoor vs. Union of India & Ors. (4). There can be no force in the contention raised by the petitioner that once the Appropriate Government refused to make a reference in 1995, there was no justification to make a reference again as such a contention has been negatived by the Hon'ble Supreme Court in Binny Ltd. vs. Their Workmen & Anr. (5). In the said case, the Appropriate Government had refused to make a reference not only at one occasion but on two previous occasions, observing that no reference was called for. However, the Hon'ble Supreme Court observed that there was no bar to make a reference again. Such a view was taken for the reason that there may be some material at the later stage which may have persuaded the Appropriate Government to make a reference.
(3.) IN M/s. Western INdia Watch Co. Ltd. vs. Western INdia Watch Company's Workers Union & Ors. (6), the Hon'ble Supreme Court observed as under :- "It would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a re- consideration of the matter either because new facts have come to light for because it has misunderstood the existing fact or for any other relevant consideration and decided to make the reference.... The function of the Government either under Section 10(1) of the Central Act or under a similar provision in the State Act being administrative principle, such as res-judicata applicable to judicial act did not apply and such a provision cannot be imported for consideration when the Government first refused to refer and later changed its mind. IN fact, when the Government refuses to make a reference, it does not exercise its power; either it refused to exercise its power and it is only when it decides to refer that it exercises its power. Ultimately the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage... IN this view, the mere fact that there has been a lapse of time or that a party to dispute was, by the earlier refusal, led to believe that there would be no reference and acted upon such belief does not affect the jurisdiction of the Government to make the reference." Similarly, in M/s. Avon Services Production Agencies (P) Ltd. vs. Industrial Tribunal, Haryana (7), the Apex Court observed as under :- "It follows that the Government does not lack the power to make the reference in respect of the same industrial dispute which it once declined to refer.... It is not absolutely necessary that there ought to be fresh material before the Government for reconsideration of its earlier decision." The Court further observed that the adequacy or sufficiency of the material, on which the opinion was formed, is beyond the pale of judicial scrutiny. ;