Dhirubhai Naranbhai Patel, J. - (1.) THIS Letters Patent Appeal has been preferred against the order passed by the learned single Judge in W.P. (L) No. 3725 of 2012 vide order dated 31st July, 2013, whereby, the petition preferred by the appellants was dismissed and referring the dispute to the Industrial Tribunal No. 2 at Dhanbad has been upheld by the learned single Judge, against which, this Letters Patent Appeal has been preferred. Learned counsel for the appellants (original petitioners) submitted that respondent No. 2 is not a workman within the definition of Section 2(s) of the Industrial Disputes Act, 1947 (for the sake of brevity hereinafter referred to as the "Act, 1947"). It is also not a case of retrenchment of respondent No. 2 and there is stale claim on the part of respondent No. 2 and once the reference is made by the Central Government under Section 10 of the Act, 1947, the Industrial Tribunal cannot decide whether there is retrenchment or not and whether respondent No. 2 is a workman within the definition of Section 2(s) or not? Learned counsel for the appellants is also relying upon Section 10(4) of the Act, 1947 and has submitted that these aspects of the matter have not been properly appreciated by the learned single Judge and, hence, the order passed by the learned single Judge in W.P. (L) No. 3725 of 2012 dated 31st July, 2013 deserves to be quashed and set aside.
(2.) LEARNED counsel for the respondents submitted that whether respondent No. 2 is a workman or not, that is not within the jurisdiction of the Central Government to decide. This question is to be decided by the Industrial Tribunal. Moreover whether there is employer -employee relationship or not, that will also be established by respondent No. 2 by cogent and convincing evidences before the Industrial Tribunal at Dhanbad. Whether there is any retrenchment of respondent No. 2 or not within the meaning of Section 2(00) of the Act, 1947, that will also be decided by the Industrial Tribunal at Dhanbad, where, reference is made. Thus, apprehension on the part of the appellants that in the terms of reference, the word retrenchment has been used, that does not mean that Labour Court or Industrial Tribunal has no power to decide whether there is any retrenchment or not? Every opportunity will be given to the management to lay down its evidence to prove their case that respondent No. 2 is not a workman or there is no retrenchment and whether there is stale claim or not? Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following reasons: "(i) Respondent No. 2 has raised an industrial dispute because initially he was in the services with the appellants and subsequently he was not allowed to work. There is no termination of his services nor there is any dismissal from the services of the appellants and, therefore, he gave an application on 28th April, 2011 for his reinstatement, which has not been positively replied by the appellants and, therefore, he has approached the appropriate Government under the Act, 1947 for raising the industrial disputes. (ii) Respondent No. 2 has raised industrial dispute about his retrenchment and ultimately under Section 10, the matter has been referred to the Industrial Tribunal -cum -Labour Court No. 2 at Dhanbad vide order dated 22nd May, 2012. The term of reference reads as under: "The Schedule Whether the action of the Management of Life Insurance Corporation of India, Divisional Office, Begusarai in retrenching Shri. Vinay Kumar Rai who worked in the management since March, 1991 to 19 -3 -2005 is legal and justified? If not, what relief the workman is entitled to - (iii) In view of the aforesaid term of reference, now the dispute will be decided by the Industrial Tribunal -cum -Labour Court No. 2 at Dhanbad. Learned counsel for the appellants submitted that there is no retrenchment under Section 2(00) of the Act, 1947 nor respondent No. 2 is a workman within the definition of Section 2(s) and, therefore, there was no need to make a reference. Moreover, claim made by respondent No. 2 is a stale claim. None of these arguments are being accepted by this Court to quash and set aside the reference making process under Section 10 by the appropriate Government to the Industrial Tribunal -cum -Labour Court No. 2 at Dhanbad mainly for the following reasons: (a) Neither the appropriate Government nor this Court can prejudge the issue namely whether respondent No. 2 is a workman within the definition of Section 2(s) or not, at this stage. (b) Neither the appropriate Government nor this Court while exercising writ jurisdiction can decide whether respondent No. 2 has been retrenched or not, especially in absence of evidence on record. (c) No issue can be pre -judged by the appropriate Government under the Industrial Disputes Act, much less, by this Court. (d) This type of plea by the management, whenever there is reference about retrenchment, is not unusual plea. Every management is raising such type of pleas that respondent No. 2 is not a workman, there is no retrenchment and the claim is stale one. These are old aged arguments, not to be entertained at all by this Court especially when we are exercising writ jurisdiction and therefore, there is no substance in these arguments. (iv) Employee will always be given opportunity by the Industrial Tribunal -cum -Labour Court to place his case as well as to lay down evidences before the concerned Tribunal. Thus, the appellants are not remedy less. Ubi just ibi remidum. The appellants have all remedies available with the Industrial Tribunal -cum -Labour Court No. 2 at Dhanbad to raise all possible pleas before the same. (v) Reference making authority should see only the fact that whether the respondent was ever working with the appellant or not, but, it is not a duty of the appropriate authority to decide in which capacity that respondent No. 2 was working whether as a temporary workman, permanent workman or contract workman, all these will be decided by the Tribunal. Prima facie, in past, there was employer -employee relationship. Respondent No. 2 has worked, admittedly with the appellants, may be in one capacity, which may not be sufficient as per the argument canvassed by the learned counsel for the appellants to fall within the meaning of Section 2 (s) of the Act, 1947, but, that cannot be the ground for rejection of the reference under Section 10 of the Act, 1947. (vi) So far as stale claim is concerned, it cannot be said that the claim made by respondent No. 2 is a stale claim. As we are not entertaining this Letters Patent Appeal and we are allowing the making a reference under Section 10 to the Tribunal, we are not giving threadbare discussion about how the claim made by respondent No. 2 is reoccur -ring. Every day is giving a new cause of action when the argument is about not giving employment, by the employer. (vii) It has been held by Hon'ble the Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh v. State of Bihar as, reported in : (1989) 3 SCC 271 : (AIR 1989 SC 1565), at paragraph Nos. 14 to 16 as under: "14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh case ( : AIR 1985 SC 860), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory. 15. We are, therefore, of the view that the State Government, which is the appropriate Government, was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner acting on behalf of the Government and that of the Government itself cannot be sustained. 16. It has been already stated that we had given one more chance to the Government to reconsider the matter and the Government after re -consideration has come to the same conclusion that the convoy drivers are not workmen of TELCO thereby adjudicating the dispute itself. After having considered the facts and circumstances of the case and having given our best consideration in the matter we are of the view that the dispute should be adjudicated by the Industrial Tribunal and, as the Government has persistently declined to make a reference under Section 10(1) of the Act, we think we should direct the Government to make such a reference. In several instances this Court had to direct the Government to make a reference under Section 10(1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made." (Emphasis supplied) (viii) It has been held by Hon'ble the Supreme Court in the case of Sharad Kumar v. Govt. of NCT of Delhi as, reported in : (2002) 4 SCC 490 : (AIR 2002 SC 1724, paras 26, 28 & 29), at paragraph Nos. 28, 30 and 31 as under: "28. In M.P. Irrigation Karamchari Sangh v. State of M. P. ( : AIR 1986 SC 860) taking note of the decision in the case of Bombay Union of Journalists v. State of Bombay ( : AIR 1964 SC 1617) wherein it was held that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5). or not, this Court held that the Court had made it clear in the same judgment that it was a province of the Industrial Tribunal to decide the disputed questions of facts. This Court made the following observations: (SCC pp. 108 -09, para 5) : (pp. 863 -864, para 5 of AIR) "5. Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute 'exists or is apprehended' and then refer it for adjudication on merits. The demarcated functions are (1) reference, (2) adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden it constitutes adjudication and thereby usurpation of the power of a quasi -judicial Tribunal by an administrative authority namely the appropriate Government. In our opinion, the reasons given by the State Government to decline reference are beyond the powers of the Government under the relevant sections of the Industrial Disputes Act. What the State Government has done in this case is not a prima facie examination of the merits of the question involved. To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the Government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterized as either perverse or frivolous. The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand." 30. The Rajasthan High Court, in the case of S.L. Soni v. Rajasthan State Mineral Development Corpn. Ltd. ( : 1986 Lab IC 468 (Raj)), through S.C. Agrawal, J. (as he then was) considering the question whether an Assistant Manager (Accounts) came within the meaning of the expression "workman" under Section 2(s) of the Act accepted the contention raised on behalf of the respondent therein that the question could not be agitated before the High Court under Article 226 of the Constitution and the appropriate remedy for the petitioner was to seek a reference under Section 10 of the Industrial Disputes Act, made the following observations: (Lab IC p. 472, para 10) (pp. 471 -472, para 10 of Lab IC) "In my view the aforesaid contention urged by Shri Rangarajan must be accepted. In the present case there is a dispute between the parties as to whether the petitioner was a workman under Section 2(s) of the Act at the time of the passing of the impugned order terminating his services. The said question involves determination of facts with regard to the nature of the duties that were being discharged by the petitioner while functioning as Assistant Manager (Accounts). Such a determination can only be made on the basis of evidence. The said question cannot be properly adjudicated in these proceedings under Article 226 of the Constitution and the appropriate remedy that was available for the petitioner was to raise an industrial dispute and have it referred for adjudication under Section 10 of the Act. The first contention urged by Shri. Singhvi cannot, therefore, be accepted." 31. Testing the case in hand on the touchstone of the principles laid down in the decided cases, we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State Government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the appellant with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him, which is extraneous to the matters relevant for the purpose. From the appointment order dated 21 -4 -1983/22 -4 -1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of Section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or the Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable." (Emphasis supplied) (ix) It has been held by Hon'ble the Supreme Court in the case of Kuldeep Singh v. Instrument Design Development & Facilities Centre as reported in : (2010) 14 SCC 176, at paragraph Nos. 30 and 31 as under: "30. In view of the above, law can be summarised that there is no prescribed time -limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is moreso in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate Government "at any time" refer the dispute to a board or court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. 31. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate court or forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate court or forum for adjudication." (Emphasis supplied) As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, there is no substance in this Letters Patent Appeal. No error has been committed by the learned single Judge in dismissing W.P.(L) No. 3725 of 2012 vide order dated 31st July, 2013 and we see no reason to take any other view than what is taken by the learned single Judge. Hence, this Letters Patent Appeal is, hereby, dismissed. Accordingly, I.A. No. 7577 of 2013 is also dismissed.;