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HEMANT KUMAR AND ORS vs GOVT OF INDIA MINISTRY OF LABOUR AND EMPLOYMENT AND ORS

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 18th December, 2023
Pronounced on: 5th March, 2024

+ W.P.(C) 239/2018 and CM APPL.No.1037/2018

HEMANT KUMAR AND ORS ….. Petitioners
Through: Mr.M.N.Singh, Advocate

versus

GOVT OF INDIA MINISTRY OF LABOUR AND EMPLOYMENT AND ORS ….. Respondents
Through: Ms.Anju Gupta and Mr. Bhuvan Goel Advocates for R-1/UOI
Mr.Vivek Goyal, CGSPC for UOI
Mr. Yakesh Anand, Ms. Sonam Anand, Mr. Akshay Thakur for the Respondents No. 2 &3 ESIC.
Mr.Ishank Gupta, Advocate for R-5

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

J U D G M E N T

CHANDRA DHARI SINGH, J.
1. The instant petition under Article 226 of the Constitution of India has been filed on behalf of the petitioners seeking the following reliefs:
“(i).issue any appropriate writ, order or direction, thereby setting aside the impugned order no. LMH 26011/10/2017-IR(M) dated 25.08.2017 and to direct the respondent no. 1 to refer the industrial dispute/demands of the petitioners workmen for adjudication.
IV. pass any such other or further orders as may be deemed just and appropriate, in the facts and circumstances of the case and also in the interest of justice, in favor of the petitioner;
and
(iv) allow the present writ petition with cost, in favour of the petitioner.”

FACTUAL HISTORY
2. The petitioners-workmen have been working in the ESI Hospital Basai Darapur, i.e., respondent no. 2 herein, since past few years at various posts such as lift operator, generator operator, plumber civil, electrician, fire operator, pump operator, gardener, sewer man, helpers etc.
3. It has been stated that the work against which the petitioners-workmen have been working is permanent and perennial in nature and the posts at which they are working is under the complete supervision of the respondent no. 2 and its authorities.
4. It has been also stated that the petitioners-workmen were engaged through contractors and that the engagement of such contractors was sham with a view to evade liabilities of the respondents under various labour laws and to deprive them of the benefits of social security of permanent employment, and to conceal the real employer-employee relationship among the present parties. Moreover, the contractors were replaced from time to time but the petitioners-workmen continued to work at the same place.
5. Being aggrieved by the alleged unfair labour practice by the respondent no. 2 and 3, the petitioners-workmen through their union raised an industrial dispute. Thereafter, the petitioners filed statement of claim dated 1st April, 2016. In the said statement of claim, the following reliefs were sought:
a. conciliation proceedings;
b. absorption of the petitioners-workmen in the regular grade of the respondent management;
c. equal wages to the petitioners-workmen as being paid to the regular staff of the management performing similar work
d. addressing grievances related to PF, ESI etc.;
e. and in the event of failure of the conciliation proceedings, the matter may be sent to the appropriate government for making a reference of the dispute to the Labour Court/Industrial Tribunal for adjudication.
6. In the above said dispute, the matter was put up before the Assistant Labour Commissioner (C), Delhi-I, wherein, the respondents filed their respective replies seeking rejection of the petitioners’ claim. Subsequently, the Assistant Labour Commissioner (C), Delhi-I submitted its report of failure of conciliation bearing no. ALC-1/8 (29)/16, dated 12th April, 2017 stating that no amicable settlement could be arrived at by the parties and hence, the conciliation proceedings ended in failure.
7. Accordingly, the instant dispute was put up before the Appropriate Government, Government of India, Ministry of Labour and Employment, wherein, vide order bearing no. L-26011/10/2017-IR(M), dated 25th August, 2017 it was held that the dispute raised by the petitioners-workmen is not fit for adjudication by the Central Government Industrial Tribunal – cum – Labour Court (hereinafter “CGIT”) in light of the judgment passed by the Hon’ble Supreme Court titled Secretary, State of Karnataka v. Uma Devi1.
8. Being aggrieved by the above said order dated 25th August, 2017, the petitioners-workmen have approached this Court seeking setting aside of the same and also, seeking directions against the respondent no. 1 to refer the industrial dispute/demands of the petitioners-workmen for adjudication.

PLEADINGS
9. The petitioners have filed the instant writ petition on 16th December, 2017 and submitted the below stated arguments:

“…..B. Because the respondent no. 1 while illegally and arbitrarily rejecting the reference of industrial dispute transgressed its power under section 10 of I.D. Act, 1947 and delved into the merits of the dispute and decided the lis and thereby usurp the powers of the court/Industrial Tribunal.

C. Because the respondent no.l in rejecting the reference of industrial dispute has acted in complete violation of the principles and law laid by the Hon’ble Supreme court in the cases of Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others 1989 (3) see 271, See Ram Avtar Sharma vs. State of Haryana (1985 (3) SCC 189; M.P. Irrigation Karamchari Sangh vs. State of M.P. (1985) 2 SCC 103; Bombay Union of Journalists v. State of Bombay AIR 1964 SC 1617 and Shambhu Nath Goyal vs. Bank of Baroda, Jullundur (1978) 2 SCC 353.

D. Because in the case of Bombay Union of Journalists v. State of Bombay AIR 1964 SC 1617, it was held that appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the employer and the Industrial Tribunal has powers to lift the veil to find the reality behind the system. The said question is a disputed question of fact which can only be decided by the CGIT and not by the appropriate government. However, the respondent no. 1 in their impugned order held that that the contract labour system can only be abolished under section 30 of the Contract Labour Act which amounts to adjudication that the Contract Labour system employed by the respondent no.2 was genuine and not camouflage. The Impugned order is illegal as the same question could only be decided by the CGIT and not the appropriate government. The respondent no,l has therefore overstepped their jurisdiction and usurped the powers of the court.

H. Because the respondent no. 1 ignored the judgement in the case of the U.P. Electricity Board V/s Pooran Chandra Pandey and others (2007) 11 see 92, wherein the Hon’ble Supreme Court held that the Judgment of Uma Devi’s case cannot be applied to each and every case mechanically as if it were a Euclids formula without seeing the facts of a particular case. As a little difference in facts or even one question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not.

E. Because it has been laid down in the aforesaid judgments that the administrative powers of the appropriate government are very limited confined only to the examination of patent frivolousness of the demands and to see whether dispute exists or apprehended. The powers to adjudicate the demands have been left with Industrial Tribunal.

F. Because the dispute raised by the petitioners-workmen were genuine and dispute was not at stale. The dispute involved complicated and disputed questions of fact and law and applicability of the various legal propositions laid down by the Hon’ble High courts and Hon’ble Supreme courts and same could only be decided by a competent CGIT.
***

K. Because respondent no.l ignored the proposition laid down in the case of Hari Nandan Prasad V/s Food Corporation of India, wherein the Hon’ble Supreme court held that the Labour Courts/Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights, with the underlying objective to achieve social justice….”

10. In response to the present petition, the respondents no. 2 & 3 had filed their joint counter affidavit dated 5th January, 2019 wherein, the contentions advanced in the present petition is opposed by way of the following arguments:
“…PRELIMINARY SUBMISSIONS/ OBJECTIONS:
***
***

3. On 26.05.2014, the ESIC i.e. the Respondent No.2 had executed an agreement with M/s Vibhor Marketing Pvt. Ltd. i.e. Respondent No.4 for providing work of maintenance of Civil and Electrical works at ESIC Model Hospital, Basaidarapur, New Delhi. The said Agreement was executed for the period of one year. The relevant terms and conditions of the Agreement are as follows:-…

4. As per the Agreement between the Respondent No.2 & Respondent No.4, a consolidated amount was being paid by the ESIC to the agency for providing maintenance of civil and electrical works at ESI Hospital, Basaidarapur, New Delhi. The Respondent No. 4 had engaged some employees at the ESI Hospital, Basaidarapur, New Delhi for executing the work. The salary & other payments were being made by the Respondent No. 4 to all the employees engaged by them. The ESIC Management had nothing to do with the services of the Petitioners and other employees engaged by the Respondent No. 4.
***

6. That the Agreement between Respondent No.2 and Respondent Nos. 4 & 5 for providing Maintenance of Civil and Electrical Works at ESI Hospital, Basaidarapur, New Delhi had expired by efflux of time in the year 2016. Thereafter, ESIC had not executed any fresh Agreement with Respondent Nos. 4 & 5. Some of the Petitioners herein were employees of the Respondent No. 4 and some , are employees of the Respondent No.5. The Respondent Nos. 2 & 3 had no control and supeiwision over the employees engaged and employed by Respondent Nos. 4 & 5. The disputes if any are between the Petitioners and the Respondent Nos. 4 & 5, as they were the employees of the said Maintenance Agencies and continued to be their employees.
***

REPLY ON MERITS:
***
***
….It is submitted that there was no employer-employee relationship between the answering Respondent and the Petitioners. The ESI Hospital had been awarding the contract for civil and electrical maintenance at the ESI Hospital, Basaidarapur, New Delhi to the different contractors / Maintenance agencies i.e. to the Respondent Nos.4 & 5 for short duration of time. The contract with the said agencies had expired with the efflux of time. At present, there is no contract between the answering Respondents and Respondent Nos. 4 & 5 through which the Petitioners were engaged for contractual work in the ESIC Hospital. The Petitioners were employees of the Respondent Nos. 4 & 5. The engagement of the Petitioners in any case was on contractual / causal basis and as such they are not entitled to any service benefits as regular staff of ESIC as alleged in the Writ Petition or even otherwise. The Petitioners cannot be considered as regular employees of the management of ESI Hospital…..
***
1 l.The contents of Para 11 of the writ petition are wrong and denied. It is denied that the acts of the Respondents amounts to unfair labour practice and violation under Section 10 of the Industrial Disputes Act as alleged or otherwise.

It is submitted that Respondent No. 1 in the impugned order dated 25.08.2017 had given proper reasons while refusing to refer the disputes between the Petitioners and Respondents i.e. ESIC & Ors. to the Industrial Tribunal for adjudication. The Respondent No.l being a Competent Authority considered the merits of the disputes and came to the conclusion that the reference would not be justified. Section 12(5) of the Industrial Dispute Act, 1947 confers discretion on the appropriate government either to refer the dispute or not to refer it for Industrial adjudication. According to this section it is not necessary to refer all the disputes to the Labour Tribunal. However, it is necessary to set out the reasons given for not referring the dispute to the Tribunal….
***

18.The contents of Para 18 of the writ petition w.r.t. reference of the judgment passed by the Hon’ble Supreme Court of India in the matter of Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others 1989 (3) SCC 271 is matter of record. However, the said judgment is clearly distinguishable.

It is submitted that in the case of Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others 1989 (3) SCC 271, the Hon’ble Supreme Court in Para 14 while dealing with the question of law ‘whether the persons raising the dispute are workmen or not’ held that the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. It is pertinent to mention that the question of law involved in the said case is not in the subject matter of the present case. Hence, the said case referred by the Petitioners is distinguishable and does not pertain to the present facts of the case….
***
***
23.The contents of Para 23 of the writ petition w.r.t. the Hon’ble Supreme Court decision in the case of U.P. Electricity Board vs. Pooran Chandra Pandey and others (2007) 11 SCC 92 being referred in the corresponding para is distinguishable by the various Supreme Court judgments. The Hon’ble Bench of the Supreme Court in the said case has attempted to dilute the Constitution Bench judgment Secretary, State of Karnataka and Ors. Vs. Umadevi & Ors. (2006) 4 SCC 1 by suggested that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution of India…..”

11. The respondent no. 1 has also filed its written submissions on 16th September, 2023, wherein the following submissions have been made:
“…1. The Primary issue involved in the present matter is between the petitioners and contesting Respondent No.2 and 3 i.e. ESIC Hospital and ESIC and these both respondents have their own rules and regulations in Order to govern and manage the work force or the Workmen / Employees Employed either by them from time to time or being employed by their contractors. The petitioners and the other employees who are contractual workers are taken/employed on contract by the Contractor(s) concerned as per the terms and conditions which are stipulated at the time induction of such workmen like the petitioners herein by the respective contractors.

2. The respondent No.1 Union of India is the Nodal and Administrative head of the Respondent Nos. 2 and 3 but the said Respondents No.2 and 3 are working independently and following their own rules and regulations framed by them from time to time for the employment of the contractual workers like the petitioner herein through the independent contractors.

4. The detailed counter affidavit against the false, frivolous grounds of the petitioners, has already been filed by the respondents No.2 and 3 which is on record, to which the respondent No.1 reiterates and admit. The present case of the Govt. Of India i.e. respondent no. 1 is fully covered by the judgment passed by the Hon’ble Supreme Court of India in the matter of Secretary, State of Karnataka and anothers Vs. Uma Devi and others (2006) 4 SCC 1. In para no. 43 , 47 and 48 of the said judgment, the constitution Bench of S.C. laid down the ratio which clears the Crux of the present matter against the petitioners, unless the appointment is in terms of relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee.
***

6. On 11.03.2020, during the course of hearing of the present matter, Ld. Counsel Sh. Yakesh Anand for Respondent Nos. 2 and 3 rightly submitted before the court that issues involved in the present matter have already been decided in W.P. (C) No. 6891 /2019 titled as Sh. Hemant Kumar and Ors. Vs. Employees State Insurance Corporation and Ors. which was finally decided on 27.09.2019 and in view of the said decision dated 27.09.2019, nothing survives in the present writ petition as the issues raised in the present petition and the issues raised in the aforesaid petition already decided are similar / same in
nature. Therefore, the present petition is an abuse of process of law and as such may be dismissed.
***
***

11. However, in nutshell the Respondent No.1 follows the counter affidavit of the Respondent No.2 and 3 as well as the orders dated 27.09.2019 passed in W.P. (C) No. 6891/2019 (supra).

12. Under the guise of present petition the petitioners are bent upon to create anomaly and confusion in order to misinterpret the situation. All the statutory authorities have their independent jurisdiction and powers as conferred upon them under relevant laws , therefor , if any dispute or cause of action is available to the petitioners then they can approach the concerned lawful authority at any time….”

12. Written submissions dated 16th September, 2023 on behalf of the petitioners-workmen is also on record, relevant portions of which are as under:
“…(i) It is a clear legal proposition as laid down by the Hon’ble Supreme court in the case of Steel Authority Of India Ltd. & … vs National Union Water Front that in case the contractor labor system is declared to be sham or camouflage to conceal the real employer employee relationship between the principal employer and workmen, then the employees will be considered as direct employee of the principal employer on the terms and conditions to be decided by the Industrial Adjudicator. The Industrial Tribunal has the power to lift the veil to find out the reality behind the system. The said question is a disputed question of fact which can only be decided by the CGIT and not by the appropriate Government. However, respondent no.1 in their impugned order held that the contract labour system can only be abolished under section 10 of the Contract labour Act. The abolition of the contract labour system under section 10 arises only if the same is genuine. The respondent no.1 has therefore in reality adjudicated the complicated issue of fact that the contract labour system adopted by the respondent no.2 was genuine and not a camouflage which only CGIT could decide in exercise of it adjudicatory powers and not by respondent no.1 in its administrative powers. Respondent no.1 has therefore overstepped their jurisdiction and usurped the powers of CGIT as it decided the disputed and complicated question of fact as to whether the contractor system adopted by the ESIC was not sham/camouflage or genuine.
***
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(iii) The Hon’ble Supreme court in the case of U.P. Electricity Board V/s Pooran Chandra Pandey and others (2007) 11 SCC 92 held that the judgement of Uma Devi’s case cannot be applied in each and every case mechanically without seeing the facts of a particular case. The judgement of Uma Devi’s case does not limit the powers of the CGIT to grant appropriate relief in cases where the employer is found to be adopting unfair labour practice. In case the CGIT comes to conclusion that the principal employer resorted to unfair labour practice in employing the workmen as daily wager/contractual then it can grant direct absorption/regularization of workmen. Reference in this regard is made to the judgment of the Hon’ble Supreme court in the case of Maharastra State Road Transport Corporation and Anr. Vs. Casteride Rajya Parivahan Karamchari Sangthan (2009) 8 SCC 556, Hari Nandan Prasad Vs Foor Corporation of India on 17 February, 2014 in CIVIL APPEAL Nos.2417-2418 /2014, and Sabha Shanker Dube v. Divisional Forest Officer & Ors. (2019) 12 SCC 297 and Umrala Gram Panchayat Vs. The Secretary, Municipal Employees Union & Ors. [March 27, 2015]2015 Latest Caselaw 252 SC. In the said judgements it has been clarified that Industrial Adjudicator can grant regularization to the workers in appropriate cases.
***

(v) It is further submitted that the ESIC once disengaged the petitioners in June, 2018 on change of a contractor. The petitioners filed a civil writ petition W.P. (C) No. 6891/2018 thereby seeking directions that in view of the settled legal proposition as laid down by the Hon’ble Supreme court in the case of State of Haryana vs. Piara Singh (1992 4 SCC 118) and also laid down by Hon’ble High Court of Delhi in the case of Anil Lamba & Ors. Vs. Govt. of N.C.T.D & Ors. in W.P.(C) 1958 of 2017 decided on 06.03.2017 that a set of contract labor/casual labor cannot be replaced by another set of contract/causal labor, they should be continued in service through the incoming contractor and should not be replaced by fresh workers. This Hon’ble Court held that the proposition laid down in Para 6 Singh’s case applies even to the workers employed through the contractors and held that the petitioners shall be continued in service through the incoming contractors which ESIC may change from time to time. It is submitted that the orders/directions in the said writ petition do not bar the petitioners to get the issue as to the genuineness of contract labour system adopted by the principal employer decide from an Industrial Adjudicator. The directions issued in the said writ petition do not bar the reference of the said industrial dispute for deciding as to whether contractor system adopted by the principal employer is genuine or sham and its consequences…”

SUBMISSIONS
(submissions on behalf of the petitioners)
13. Learned counsel appearing on behalf of the petitioners-workmen submitted that the appropriate government has passed the impugned order in violation of the settled principles of law and the same is liable to be set aside.
14. It is submitted that the impugned order infringes upon the petitioners’ fundamental and legal rights making it illegal, unjustified, arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
15. It is submitted that while rejecting the reference of the industrial dispute, the respondent no. 1 illegally and arbitrarily transgressed its power under Section 10 of the Industrial Disputes Act, 1947 (hereinafter “the Act”) and delved into the merits of the dispute, and decided the lis, thereby, usurping the powers of the Labour Court/Industrial Tribunal.
16. It is submitted that rejection of the reference of the industrial dispute has led to a complete violation of the principles and law laid down by the Hon’ble Supreme Court in Bombay Union of Journalists v. State of Bombay2, wherein, it was held that the appropriate government is precluded from considering even prima facie the merits of the dispute.
17. It is submitted that grievances of the petitioners-workmen are disputed question of facts which can only be decided by the CGIT after recording of evidence and arguments, and the same cannot be decided by the appropriate government.
18. It is submitted that petitioners-workmen have been engaged by the respondent no. 2 through contractors who get replaced from time to time. It is also submitted that the said contractors exist for a mere purpose to screen out and conceal the real employee – employer relationship among the petitioners-workmen and the respondent no. 2.
19. It is further submitted that behind the veil of contractor, the petitioners were actually the employees of the respondent no. 2 and 3, and they were working under the complete control and supervision of the respondent no. 2, i.e., the hospital.
20. It is submitted that the aforesaid practice of the management of the respondent no. 2 is done under the garb of employing contractors and the same is a means to exploit the workmen in order to override the various provisions of labour laws which exist for the purpose of imparting social benefits.
21. It is further submitted that the aforesaid unfair practice also amounts to unfair labour practice under Item no. 10 of Schedule V of the act, which prohibits the employment of the workmen by the management as temporary, casual or badlis etc. against the permanent nature of work. It is submitted that the petitioners-workmen hence raised an industrial dispute through their union seeking lifting of the veil of the contractors.
22. It is also submitted that the appropriate government, i.e., the respondent no. 1, in the impugned order, held that the contract labour system can only be abolished under Section 30 of the Contract Labour (Regulation & Abolition) Act, 1970. In this regard, it is also submitted that the same amounts to adjudication that the contract labour system employed by the respondent no. 2 was genuine and not sham.
23. It is further submitted that the in view of the above, the appropriate government has overstepped its jurisdiction and usurped the powers of the Court/Tribunal which makes the impugned order illegal as the above said question of law can only be decided by a Court/Tribunal, i.e., CGIT herein, and not the appropriate government.
24. Learned counsel placed reliance upon the judgment passed by the Hon’ble Supreme Court in Telco Convoy Drivers Mazdoor Sangh & Anr. V. State of Bihar & Ors.3, submitting to the effect that while exercising powers under Section 10 (1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function, the said appropriate government cannot delve into the merits of the dispute and take upon itself the determination of the lis.
25. It is submitted that the respondent no. 1 failed to appreciate that the judgment of Uma Devi (Supra) does not limit the powers of the CGIT to grant appropriate relief in cases where the employer was found to be adopting unfair labour practices. Furthermore, the said judgment cannot be applied mechanically in all cases and has to be considered with respect to the peculiar facts of a particular case.
26. It is submitted that in light of the above submissions, it is evident that the reasoning given in the impugned order is perverse, arbitrary, irrational, and has no basis whatsoever in law, equity or justice, and thus, the appropriate government erred in appreciating the settled law. Hence, there is illegality in the impugned order making it liable to be set aside.
27. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be allowed and the reliefs may be granted as prayed for.
(submissions on behalf of the respondent no. 1)
28. Per Contra, the learned counsel appearing on behalf of the respondent no. 1 vehemently opposed the instant petition submitting to the effect that the same is liable to be dismissed being devoid of any merit.
29. It is submitted that the respondent no. 1 is the nodal and administrative head of the respondents no. 2 and 3 but the said respondents are working independently and following their own rules and regulations framed by them from time to time for the employment of the contractual workers, such as the petitioners-workmen, through independent contractors.
30. It is submitted that the detailed counter affidavit against the false, frivolous grounds of the petitioners-workmen, has already been filed by the respondent no. 2 which is already on record, to which the respondent no.1 reiterates and admits.
31. It is further submitted that the present case is fully covered by the judgment passed by the Hon’ble Supreme Court of India in the matter of Uma Devi (Supra). In paragraph nos. 43, 47 and 48 of the said judgment, the Hon’ble Court laid down the ratio which clears the crux of the present matter against the petitioners, as per which, unless the appointment is in terms of relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee/s.
32. It is submitted that respondent no. 1 rightly and legally rejected the false and frivolous request of the petitioners-workmen seeking the reference of the alleged dispute(s). It is also submitted that since there is no dispute of employer and workmen between the respondent no. 1 and the petitioners, the alleged dispute cannot be referred to as requested by the petitioners. Furthermore, since there is no privity of contract between the petitioners and the respondent no. 1, no question of making any reference arise at all.
33. It is submitted that under the guise of present petition, the petitioners are bent upon to create an anomaly and confusion in order to misinterpret the situation. All the statutory authorities have their independent jurisdiction and powers as conferred upon them under relevant laws, therefore, if any dispute or cause of action is available to the petitioners then they can approach the concerned lawful authority at any time.
34. It is submitted that the respondent has paid adequate and appropriate court fee and has correctly valued the suit in accordance with the law. The learned Trial Court has rightly adjudicated upon this issue, after taking into consideration the entire facts and circumstances.
35. Therefore, in view of the submissions made above, it is submitted that instant petition being devoid of any merits may be dismissed.
(submissions on behalf of the respondents no. 2 & 3)
36. The learned counsel appearing on behalf of the respondents no. 2 & 3 has also vehemently opposed the instant petition contending that there is no merit in the same which makes it liable to be dismissed.
37. It is submitted that the petitioners-workmen are casual/contractual workers working for maintenance agencies i.e. the respondents no. 4 and 5 herein. They are not employees of respondents no. 1 to 3. They had been deployed to work at ESI Hospital, Basaidarapur, New Delhi under different posts like lift operators, generator operators, plumbers, electricians, fire operators, pump operators, gardeners, sewer man, helpers etc. The petitioners-workmen are allegedly claiming all service benefits of permanent employment from the management of ESI Hospital as per the Act.
38. It is submitted that on 26th May, 2014, the respondent no. 2 executed an agreement with M/s Vibhor Marketing Pvt. Ltd. i.e., respondent no. 4 for providing work of maintenance of civil and electrical works at ESI Hospital and the said agreement was executed for the period of one year.
39. It is also submitted that as per the said agreement, a consolidated amount was being paid by the management to the agencies for providing maintenance of civil and electrical works at the hospital. The respondent no. 4 had engaged some employees at the hospital for executing the work. The salary & other payments were being made by the respondent no. 4 to all its employees (petitioners) engaged by them. The management had nothing to do with the services of the petitioners-workmen and other employees engaged by the respondent no. 4.
40. It is further submitted that after expiry of the said agreement, a fresh agreement was executed by the management with a different maintenance agency for a short duration of time. In January 2016, the management executed an agreement with another maintenance agency namely M/s Uttar Pradesh Rajya Nigam Maintenance Company for providing maintenance of civil and electrical works at the hospital and as per the said fresh agreement, the payment was being directly credited by the respondent no.2 in the account of said maintenance agency. The respondents no. 4 & 5 have been marking the attendance of their employees deputed for work at the hospital. The respondents no. 4 & 5 had been monitoring the work of their employees and used to sanction their leave.
41. It is submitted that the petitioners were always employees of the respondents no. 4 and 5 under different periods. They were never employed by the respondents no. 2 & 3. The respondent nos. 2 & 3 have been wrongly impleaded in the present matter. Moreover, the engagements of the petitioners were under the contractual/casual basis.
42. It is also submitted that taking the above into account, the petitioners in the present case are not entitled to any service benefits as a regular staff as prayed for in the present writ petition. They cannot be considered or treated as regular employees of the management of hospital. The petitioners-workmen being under contractual employment had worked with the hospital management for a short duration of time on behalf of respondents no. 4 and 5 over a different period of time.
43. It is further submitted that the respondents no. 2 & 3 had no control and supervision over the employees engaged and employed by the contractors. The disputes, if any, are between the petitioners and the respondent nos. 4 & 5, as they were the employees of the maintenance agencies.
44. It is submitted that the petitioners cannot claim legitimate expectations of absorption/regularization with respondents no. 2 & 3. The services of the petitioners were contractual by virtue of an agreement with the respondents no. 4 in as much as the government did not give and nor could have been given any assurances to the petitioners with regard to their regularization of services without following the regular recruitment process as per law.
45. It is submitted that taking into consideration the above mentioned facts and law, the appropriate government deemed it fit to not refer the alleged dispute of the petitioners-workmen to the CGIT and rightfully rejected the petitioners’ claim, and rightly followed the law laid down in the judgment of Uma Devi (Supra) by the Hon’ble Supreme Court.
46. Therefore, in view of the submissions made above, it is submitted that instant petition being devoid of any merits may be dismissed.
SCHEME OF THE ACT
(Section 10 of the Industrial Disputes Act, 1947)
47. At this stage, before delving into the technical paraphernalia of the facts of the instant matter, it is pertinent for this Court to set out the interpretation of Section 10 of the Act, around which the dispute in the present matter revolves. The relevant extracts of the said provision is as under:
“Section 10 – Reference of disputes to Boards, Courts or Tribunals
(1) [Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing,–
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
[(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):]

[Provided further that] where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:

[Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.]

[(1A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication.]

(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, [Labour Court, Tribunal or National Tribunal], the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.

7[(2A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government:

Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months:

Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit:

Provided also that in computing any period specified in this sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded:

Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed.]

(3) Where an industrial dispute has been referred to a Board, [Labour Court, Tribunal or National Tribunal] under this section, the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.

[(4) Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be], shall confine its adjudication to those points and matters incidental thereto.

(5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a [Labour Court, Tribunal or National Tribunal] under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in, or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of establishments.]

[(6) Where any reference has been made under sub-section (1A) to a National Tribunal, then notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal, and accordingly,–

(a) if the matter under adjudication before the National Tribunal is pending a proceeding before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as the case may be, in so far as it relates to such matter, shall be deemed to have been quashed on such reference to the National Tribunal; and
(b) it shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal.

[Explanation.–In this sub-section, “Labour Court” or “Tribunal” includes any Court or Tribunal or other authority constituted under any law relating to investigation and settlement of industrial disputes in force in any State.]

(7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government, is referred to a National Tribunal, then notwithstanding anything contained in this Act, any reference in section 15, section 17, section 19, section 33A, section 33B and section 36A to the appropriate Government in relation to such dispute shall be construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in this Act, any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government.]

[(8) No proceedings before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government.]..”

48. Perusal of the above mentioned provision of the Act states that the appropriate government is empowered to intervene in an industrial dispute by referring it to a conciliation officer or a board for resolution. It further states that if an employer or a group of employers, or any of their employees, or a group of employees, raises an industrial dispute, the appropriate government may refer the dispute to a conciliation officer for settlement by publishing a notification in the official gazette. The conciliation officer then attempts to resolve the dispute by bringing both the parties together and facilitating negotiations. In the event, the dispute is not resolved through the conciliation, the government may refer it to the forum for adjudication.
49. Before proceeding further, it is peculiar to observe that as per Section 12 (4) and (5) of the Act, wherever any industrial dispute exists or is apprehended, the conciliation officer shall hold conciliation proceedings for an amicable settlement of the said dispute. Further, in the event, no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. Thereafter, the appropriate government, if satisfied, may make such reference to the industrial adjudicator for adjudication of the dispute.
50. It determines a statutory process by which an industrial dispute between an employer and a group of employees, or between employers and employees, can be referred to an authority for resolution. The objective of Section 10 of the Act is to provide a legal framework for the resolution of industrial disputes in an orderly and peaceful manner. The said provision further embarks upon the intent of the Statute as per which the interests of workers and employers have to be protected and the disputes, if any, are to be resolved in accordance with the law. Relevant portion of Section 12 of the Act, is as follows:
“12. Duties of conciliation officers.—(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner.
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(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.

(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor…”

51. Tersely stated, the appropriate government must examine whether a dispute exists or not, and in case it is so satisfied, it should refer the same for adjudication before the appropriate forum. In this regard, the Hon’ble Supreme Court in Rahman Industries (P) Ltd. v. State of U.P.4 has held as under:
“3. We find force in the submission made by the learned counsel. In the scheme of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”), it is not as if the Government has to act as a post office by referring each and every petition received by them. The Government is well within its jurisdiction to see whether there exists a dispute worth referring for adjudication. No doubt, the Government is not entitled to enter a finding on the merits of the case and decline reference. The Government has to satisfy itself, after applying its mind to the relevant factors and satisfy itself to the existence of dispute before taking a decision to refer the same for adjudication. Only in case, on judicial scrutiny, the court finds that the refusal of the Government to make a reference of the dispute is unjustified on irrelevant factors, the court may issue a direction to the Government to make a reference.”

52. It has been further held in a catena of judgments some which have also has also been referred to in SAIL v. Union of India5, wherein, the Hon’ble Supreme Court held that it is for the appropriate government to apply its mind to the relevant factors and satisfy itself as to the existence of a dispute before deciding to refer the said dispute. Relevant paragraph of SAIL (Supra) reads as follows:

“18. Before adverting to the questions raised before us, we may at this juncture notice the contention of Mr V.N. Raghupathy that ` the appropriate Government a demand was raised by some of the workmen contending that they were workmen of the contractors, an industrial dispute could be raised that the contract was a sham one and in truth and substance the workmen were employed by the management.”

53. Therefore, the law with regard to Section 10 of the ID Act is clear and settled. The jurisdiction of an appropriate government under the scheme of the Act is to satisfy itself as to the existence of the dispute. In exercising the powers, the government is only required to examine whether an industrial dispute exists or is apprehended. For this purpose, the government can prima facie examine the matter to find out whether a dispute exists or not.

ANALYSIS AND FINDINGS
54. The matter was heard at length with arguments advanced by the learned counsel on both sides. This Court has also perused the entire material on record and has duly considered the factual scenario of the matter, judicial pronouncements relied upon by the parties, and pleadings presented by the learned counsel of the parties.
55. After hearing the submissions advanced by the parties and perusing the record, it is noted that the primary issue which has to be decided by this Court is whether the appropriate government’s refusal to refer the petitioners’ dispute to the industrial adjudicator was in violation of the statutory provisions and settled principles of law or not?
56. The case of the petitioners is that they have been serving in the establishment of ESI Hospital since last many years and the management of the said hospital has been adopting unfair labour practices by engaging the workmen through sham contractors to conceal the real employer-employee relationship between them and the petitioners-workmen.
57. It has been submitted on behalf of the petitioners-workmen that the contractor labour system adopted by the management hospital is sham and bogus. Reliance in this regard has been placed upon the judgment of Steel Authority of India Ltd. v. National Union Waterfront Workers6, as per which the industrial adjudicator has the power to lift the veil and can decide as to whether the contractor system adopted by the principal employer is a sham or not and in case the industrial adjudicator comes to conclusion that the contractors engaged by the principal employer are sham then the industrial adjudicator can order accordingly and direct absorption of the employees in the establishment of principal employer.
58. It has been further submitted that the above said judgement of the Hon’ble Supreme court in regard to the rights of workers engaged through the contractors and the power of the industrial adjudicator to declare contractor labour system adopted by the principal employer sham or genuine, has been prevailing till date.
59. The petitioners, therefore, raised an industrial dispute before the conciliation officer, thereby, seeking regularization/permanent absorption in the establishment of the ESI Hospital. The grievance of the petitioners-workmen arose when the conciliation officer submitted its failure report before the respondent no. 1 to refer the dispute for adjudication.
60. The respondent no. 1 instead of referring the case to the CGIT erroneously refused to refer the case for adjudication by saying that in view of the judgment of Uma Devi (Supra), the regularization cannot be granted to the petitioners-workmen and contract labour can be prohibited under Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970.
61. The petitioners in their writ petition have stated that the sham contract and the denial of regularization is in violation of Item no. 10 under Schedule V of the ID Act as per which, employing workmen as badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen amounts to unfair practice. For reference, it can be noted that Section 2 (ra) of the Act provides the definition of unfair labour practice which involves any practice specified in Schedule V. Relevant portion of Section 2 (ra) and Item no. 10 under Schedule V of the ID Act have been reproduced hereunder:

“Section 2 –Definitions
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[(ra) “unfair labour practice” means any of the practices specified in the Fifth Schedule;..”
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“THE FIFTH SCHEDULE
[See section 2(ra)]
UNFAIR LABOUR PRACTICES

I.—On the part of employers and trade unions of employers

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10. To employ workmen as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen…”

62. In this regard it has been submitted on behalf of the petitioners that that the respondent no. 1 overstepped its jurisdiction by declining the reference of dispute to the CGIT and has itself decided the dispute and, therefore, usurped the powers of the industrial adjudicator.
63. In rival submissions, the respondent no.1 has opposed the present petition submitting to the effect that the primary issue involved in the present matter is between the petitioners and contesting respondents no. 2 and 3. It has been submitted that both the respondents have their own rules and regulations to govern and manage their workmen/employees employed by them, either directly or through their contractors.
64. It has been further submitted that the petitioners-workmen and the other employees who are contractual workers are employed on contractual basis by their respective contractors as per the terms and conditions which were stipulated at the time of their induction. Since the petitioners-workmen are not the regular and permanent employees in any way, the petitioners have no relationship with the respondent no. 1 and all the petitioners are the contractual workmen of independent contractor(s) who employs them, and therefore, they cannot invoke such provision(s) of law as alleged by the petitioners.
65. The respondents no. 2 & 3 have also opposed the contentions advanced by the petitioners-workmen. It has been submitted that the present petition is liable to be dismissed with exemplary costs as no cause of action has arisen in favour of the petitioners against the respondents no. 2 and 3. The petitioners were never the employees of the management hospital, rather they were employees of the respondents no. 4 & 5. It has been also submitted that respondent no. 1 being a competent authority rightly decided the claims of the petitioners on merits and reject their demand for referring the disputes to CGIT in view of the guidelines laid down in the judgment of Uma Devi (Supra). In the said judgment, it has been made abundantly clear that before appointing persons on a regular/permanent basis, there have to exist recruitment rules or specific eligibility criteria laid down for the appointments. Hence, the present petitioners being contractual workers, not appointed through a due process, cannot be allowed to claim for regularization of their services.
66. Furthermore, it has been denied that the petitioners have been working in the ESI Hospital for last so many years as alleged or otherwise. The petitioners were not the employees of the answering respondents and they were the employees of respondent Nos. 4 & 5 at different period of time for short durations. The engagement of the petitioners was on contractual/causal basis through the maintenance agencies i.e., respondent nos. 4 & 5 and as such they are not entitled to any service benefits as regular staff. It has been also contended that the claim of the petitioners is not tenable as they were engaged through the contractors i.e., respondents no. 4 & 5 for contractual work for a short duration of time and they were their employees. Therefore, the petitioners cannot be considered as regular employees of the management of ESI Hospital.
67. At this stage, in order to decide the issue, this Court must understand as to while exercising the powers conferred by Section 10 of the Act, to refer an industrial dispute to the industrial adjudicator for adjudication, whether the appropriate government is discharging an administrative function or a quasi-judicial function. By doing so, the powers and the discretion conferred upon the appropriate government in referring a dispute will be crystalized.
68. Upon interpreting Section 10 of the Act, it seems that the function of the appropriate government is merely administrative. The appropriate government cannot go into merits of the case and due to the same reason its power has the mere role of imparting administrative functions. In State of Madras v. C.P. Sarathy7, the Hon’ble Supreme Court held that it’s only function is to refer such a dispute for adjudication and the same must not be disturbed, rather, solved through judicial process as speedily as possible. The relevant para is as under:
“14. This is, however, not to say that the Government will be justified in making a reference under Section 10(1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry, and it is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference. But, it must be remembered that in making a reference under Section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any less administrative in character. The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial determination. No doubt, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters. The observations in some of the decisions in Madras do not appear to have kept this distinction in view.”

69. Similar findings have also been given by the Hon’ble Supreme in Ram Avtar Sharma v. State of Haryana8, relevant paragraphs are as follows:
“6. The view that while exercising power under Section 10(1), the Government performs administrative function can be supported by an alternative line of reasoning. Assuming that making or refusing to make a reference under Section 10(1) is a quasi-judicial function, there is bound to be a conflict of jurisdiction if the reference is ultimately made. A quasi-judicial function is to some extent an adjudicatory function in a lis between two contending parties. The Government as an umpire, assuming that it is performing a quasi-judicial function when it proceeds to make a reference, would imply that the quasi-judicial determination of lis prima facie shows that one who raised the dispute has established merits of the dispute. The inference necessarily follows from the assumption that the function performed under Section 10(1) is a quasi-judicial function. Now by exercising power under Section 10, a reference is made to a Tribunal for adjudication and the Tribunal comes to the conclusion that there was no merit in the dispute, prima facie a conflict of jurisdiction may emerge. Therefore the view that while exercising power under Section 10(1) the function performed by the appropriate Government is an administrative function and not a judicial or quasi-judicial function is beyond the pale of controversy.

7. Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on the irrelevant, extraneous or grounds not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. In State of Bombay v.K.P. Krishnan [AIR 1960 SC 1223 : (1961) 1 SCR 227, 243 : (1960) 2 LLJ 592 : 19 FJR 61] it was held that a writ of mandamus would lie against the Government if the order passed by it under Section 10(1) is based or induced by reasons as given by the Government are extraneous, irrelevant and not germane to the determination. In such a situation the Court would be justified in issuing a writ of mandamus even in respect of an administrative order. Maybe, the Court may not issue writ of mandamus, directing the Government to make a reference but the Court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter. This legal position appears to be beyond the pale of controversy.
8. Accordingly, it is necessary to examine the reasons given by the Government to ascertain whether the determination of the Government was based on relevant considerations or irrelevant, extraneous or considerations not germane to the determination.

9. The reasons assigned by the Government for refusing to make a reference are to be culled out from the letter Annexure ‘A’ dated September 1, 1984 sent by the Joint Secretary, Haryana Government, Labour Department to the petitioners. It is stated in the letter that: “the Government does not consider your case to be fit for reference for adjudication, to the Tribunal as it has been learnt that your services were terminated only after charges against you were proved in a domestic enquiry”. The assumption underlying the reasons assigned by the Government are that the enquiry was consistent with the rules and the Standing Orders, that it was fair and just and that there was unbiased determination and the punishment was commensurate with the gravity of the misconduct. The last aspect has assumed considerable importance after the introduction of Section 11-A in the Industrial Disputes Act by Industrial Disputes (Amendment) Act, 1971 with effect from December 15, 1971. It confers power on the Tribunal not only to examine the order of discharge or dismissal on merits as also to determine whether the punishment was commensurate with the gravity of the misconduct charged. In other words, Section 11-A confers power on the Tribuna1/Labour Court to examine the case of the workman whose service has been terminated either by discharge or dismissal qualitatively in the matter of nature of enquiry and quantitatively in the matter of adequacy or otherwise of punishment. The workmen questioned the legality and validity of the enquiry which aspect the Tribunal in a quasi-judicial determination was required to examine. A bare statement that a domestic enquiry was held in which charges were held to be proved, if it is considered sufficient for not exercising power of making a reference under Section 10(1), almost all cases of termination of services cannot go before the Tribunal. And it would render Section 2-A of the Act denuded of all its content and meaning. The reasons given by the Government would show that the Government examined the relevant papers of enquiry and the Government was satisfied that it was legally valid and that there was sufficient and adequate evidence to hold the charges proved. It would further appear that the Government was satisfied that the enquiry was not biased against the workman and the punishment was commensurate with the gravity of the misconduct charged. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In other words, the reasons given by the Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. Therefore if the grounds on which or the reasons for which the Government declined to make a reference under Section 10 are irrelevant, extraneous or not germane to the determination, it is well-settled that the party aggrieved thereby would be entitled to move the Court for a writ of mandamus. (See Bombay Union of Journalists v. State of Bombay [AIR 1964 SC 1617 : (1964) 6 SCR 22 : (1964) 1 LLJ 351 : 26 FJR 32] .) It is equally well-settled that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Go