Andaman Sarvajanik Nirman Vibagh Mazdoor Sangh And ANR. v. The Chief Secretary And ORS.
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction Appellate Side [ CIRCUIT BENCH AT PORT BLAIR ] ...
WPA/242/2022 Andaman Sarvajanik Nirman Vibagh Mazdoor Sangh and another Vs.
The Chief Secretary and others Mr. Gopala Binnu Kumar ... for the petitioners Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the respondents December 20, 2022 [SR] Item No.7 The subject matter of challenge of the order dated 17th June, 2022 passed by the Assistant Secretary (Labour), Andaman and Nicobar Administration refusing to refer the dispute between the petitioners and the Executive Engineer, Work Shop Division, Andaman Public works Department to the Industrial Tribunal (Labour Court), in terms of Section 10(1) of the Industrial Disputes Act, 1947.
The petitioners claim that they are entitled to 1/30th Pay plus DA equivalent to a regular and permanent HVDs and LVDs under the Workshop Division by the APWD. The management-respondents have contended that the petitioners have been engaged through an outsourcing contractor and hence they are not entitled to such benefit. The respondents contend that the petitioners are not workman within the meaning of the ID Act.
The conciliation proceedings failed and the Conciliation Officer/Assistant Labour Commissioner-HQ, has communicated such failure to the Secretary (Labour), Andaman and Nicobar Administration.
The Assistant Secretary (Labour) has, in a five lined order, refused to refer the matter under Section 10 of the ID Act. The Assistant Secretary (Labour) has merely held that the petitioners were engaged through an outsourcing firm and hence O.M.No.289 dated 28th September, 2017 shall not applicable.
This Court finds that no reasons whatsoever recorded by the appropriate Government as mandated under Section 10(5) of the Act, 1947.
Even the dicta of the Supreme Court as laid down in paragraph 17 of the decision in the case of State of Bombay vs. K. Krishnan and others reported in AIR 1960 SC 1223 has not been followed.
In those circumstances, the impugned order dated 17th June, 2022 is set aside.
The Secretary (Labour), respondent no.2, shall pass a reasoned order in terms of section 10(5) of the Act, 1947 and communicate the same to the petitioners within a period of two weeks from date mandatorily and positively. In default, a reference shall be deemed to have been made by this Court for adjudication by the Labour Court, to
decide as to whether the petitioners are workmen within the meaning of the Act, 1947 and are in fact entitled to the benefit of the 1/30 pay plus DA, under O.M. No.289 dated 22nd September, 2017.
WPA/242/2022 stands disposed of without any order as to costs.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
( Rajasekhar Mantha, J. )