VIKRAMADITYA PRASAD, J. - (1.) THIS writ application has been filed under Article 226 of the Constitution of India for quashing the order dated 23.11.2001 contained in Annexure -1, whereby the competent authority, i.e. Labour Department in the Central Government refused to refer the matter to the Industrial Tribunal on the ground that there is no substance in raising the dispute regarding the date of birth at a lime proximate to the superannuation of the petitioner.
(2.) ACCORDING to the petitioner (Union), one person was a workman under the respondent No. 3 who had joined in Burragarh Colliery and his date and year of birth was recorded to be 1947 which is a subsidiary of C.I.L. IBCCL) for that the management had issued an identity card, then for the first time the respondent No. 3. General Manager. M/s. Bharat Coking Coal Ltd., issued a letter to the petitioner on 10.1.2001 staling therein that the concerned workman, has been forced to retire on 30.6.2001, by the management vide Annexure -1. Prior to this letter, the respondent No. 2 had no information that he was going to retire with effect from 30.6.2001. The petitioner was under a bona fide belief that he would be superannuating in the year 2007 as his date of birth was recorded as 1947. Thereafter the petitioner approached the Asstt. Labour Commissioner for conciliation, vide Annexure -2. The Asstt. Labour Commissioner issued notice, called both the parties for discussion, management appeared before the Commissioner, raised their objections, the petitioner filed rejoinder, but ultimately the conciliation failed and the Asstt. Labour Commissioner sent his failure report to the Deputy Secretary. Ministry of Labour. Government of India, and by the impugned annexure respondent No. 2 refused to refer the matter to the Industrial Tribunal. Consequently, this petitioner has knocked this Court in the writ jurisdiction. The petitioner also filed supplementary affidavit annexing the copy of the identity card. Annexure -5, and the copy of the voters list -Annexure -6, and of the identity card issued by the Election Commissioner -Annexure -6/1.
(3.) AFTER hearing both the parties, there is no dispute regarding the petitioner being an employee/workman with the respondent -Bharat Coking Coal Ltd. It is also not contended that the point in issue is not covered by the definition of workman as defined in Section 2(k) of the Industrial Disputes Act (hereinafter referred to as the Act). It is also not disputed that the Ministry of Labour which issued the impugned order is not the appropriate Government in the matter. Reference was made to Section 10 of the Act by the petitioner and it was argued that the competent authority may refer the dispute if in its opinion there exists a dispute to either to a Board for promoting the settlement or to a Court for enquiry or to a Tribunal. The main grievance of the petitioner is that by not referring the matter to the Tribunal, the competent authority has erred in law. In support of his argument, the learned counsel for the petitioner relied on a decision reported in AIR 1989 SC 1565 and said that in fact, by refusing to refer the matter to the Tribunal, the appropriate Government has adjudicated the matter itself, for which they were not competent. Their duty was not to adjudicate the matter but to refer it to the Tribunal because the dispute was there, but the dispute could not be decided by the Government in exercise of its executive power provided under Section 10(1) of the Act. In paragraph 14 of the aforesaid judgment, it has been observed that "the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will be put vigilance whenever Government attempts to usurp power of the Tribunal for adjudication of the valid disputes and not allowing the Government would be to render Section 10(1) and 12(5) of the Act nugatory". Another decision that was relied upon by he learned counsel for the petitioner is 1992 PLJR SC 98. It was argued that the Central Government, instead of referring the industrial dispute for adjudication to the appropriate Tribunal, deciding itself to dispose of the matter. It is not permissible in the law.;