M.Y.EQBAL, J. - (1.) PETITIONER is aggrieved by the order issued by the appropriate Government refusing to refer the dispute raised by the petitioner for adjudication.
(2.) THE case of the petitioner -Union is that the concerned workman was working in Madhuban Coal Washery which is under direct control and supervision of the management of BCCL. When the management failed to pay his salary a dispute was raised by the Union. The conciliation proceeding before the Assistant Labour Commissioner, ended in failure, failure report was submitted to the Government for referring the dispute for adjudication. The appropriate Government namely, the Central Government, however declined to refer the dispute to appropriate Tribunal. The appropriate Government was of the view that there did not exist relationship of employer and employee between the management and the concerned workman, who was engaged by the contractor in relation to a contract. From perusal of Annexure -2 to the writ application which is reply of the management before the conciliation officer it appears that the management stated inter alia the BCCL being principal employer is responsible for paying in case the contractor or sub -con -tractor did not pay the wage under the Minimum Wages Act prescribed by the Government of Bihar. In such circumstances, I am of the opinion that refusal by the appropriate Government to refer the dispute for adjudication by holding that no relationship of employee and employer existed amounts to entering into the merit of the case of the parties. The Apex Court in the case of Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers, (2001) 7 SCC 1 overruling the earlier Judgment rendered in Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377 observed as follows : "On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so -called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder. (6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications."
(3.) THEREFORE . I am of the opinion that the appropriate Government has exceeded its jurisdiction by refusing to refer the dispute for adjudication by the industrial adjudicator.;