2000 (2) TMI 868

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....rder of transfer. He complained of his dismissal to Labour Commissioner, Government of West Bengal. Conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947 (for short the Act) were held and appellant submitted its comments stating that respondent No. 1 was not a workman. A failure report dated 2nd July, 1997 was submitted by the Joint Labour Commissioner, recommending a reference, as according to him, the question whether respondent No. 1 was a workman required adjudication. The Government did not act, therefore, respondent No. 1 moved Calcutta High Court. The High Court directed the Government to take a decision under Section 12(5) of the Act within the time fixed. By order dated 14th July, 1998 the Government communicated its decision in writing wherein it regretted its inability to make a reference as respondent No. 1 was not a workman. Again respondent No. 1 moved the High Court against the said order of State Government. The learned single Judge directed the appropriate Government to make a reference as to whether the respondent No. 1 was a workman. The appeal filed by the appellant was dismissed by the impugned judgment and the State Government was dire....

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.... Kakar v. State of Haryana [1976]3SCR1010 . In that case a question arose whether an employee was a workman. The Government informed the workman that his case was not covered by the definition of the term "workman" under the Act, therefore, refused to make a reference. The workman approached the High Court for writ of mandamus which was dismissed. This Court was approached and the appeal was dismissed. In appeal it was contended before this Court that the question whether an employee was a workman is a disputed question of facts and law and, therefore, could only be decided by Labour Court on a reference and not by the State Government while exercising its powers under Section 12(5) of the Act, which was rejected. The Court also held that the order of the Government acting under Section 10(1) read with Section 12(5) of the Act passed after subjective satisfaction is an administrative order and not a judicial or a quasi-judicial one. It was also held that in entertaining a writ of mandamus against such an order the Court does not sit in appeal and is not entitled to consider the propriety or the satisfactory character of the reasons. However, if it appears from the reasons given in ....

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....as Assistant Secretary in the Indian Tea Association and subsequently promoted to the post of Joint Secretary. Besides the basic pay you are given child allowance, house rent subsidy, furnishing allowance. House maintenance allowance, Transport subsidy, Re-embracement of Fuel and Electricity charges. Entertainment expenses, Re-embracement of servant's wages, monthly club subscription. Leave Travel Allowance and Re-embracement of Hospitality Expenses, Your duties also included power of sanction of expenses on behalf of Indian Tea Association. So your pay and perquisites and the status enjoyed by you in the Organization and also the power of sanction of expenses suggest that you were a part of the management. Hence you cannot be treated as a workman within the purview of the Industrial Disputes Act. Government therefore, regrets its inability to refer your dispute to any Industrial Tribunal/Court under Section 12(5) of the Industrial Disputes Act, 1947. 8. The appropriate Government would be justified in making a reference under Section 10 of the Act, if it is satisfied on the facts and circumstances brought to its notice that an industrial dispute exists or ....

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....sideration any irrelevant or foreign matter. We, therefore, hold that the above administrative order was passed by the State Government after taking into consideration material available on record and it could not be faulted. 14. Mr. Barat has urged that the question whether he was a workman is a disputed question of fact and can be decided only by the Industrial Tribunal and not by the State Government. In this connection, he has placed reliance on a decision of this Court in Abad Dairy Dudh Vitran Kendra Sanchalak Mandal v. Abad Dairy (1993) III LLJ (Suppl) 1993. This Court observed as follows: Having regard to the facts and voluminous evidence sought to be adduced by both parties, the question whether the appellants are workmen requires detailed investigation of facts. The issue requires detailed examination and can be satisfactorily adjudicated upon only by a Tribunal. 15. Thus, it appears in that case the question required detailed investigation in view of voluminous evidence sought to be adduced but it is not so in the case in hand. Therefore, the above decision is not relevant for our purpose. The ratio laid down by this Court in Prem Kakar [1976]3SCR1010 (sup....