Calcutta High Court (Appellete Side)
Eastern Coalfields Limited vs Union Of India & Ors on 19 March, 2026
19.3.2026
Item no. 10
Court no. 30
g.b.
266012
WPA 5451 of 2026
Eastern Coalfields Limited
Vs.
Union of India & Ors.
Mr. Manik Das
...... For the Petitioner
Mr. Pinaki Bhattacharyya
Mr. Asit Kumar De
....For the Respondent Nos. 1, 2 and 3
1. Affidavit of service filed be kept with the record.
2. The writ application has been preferred praying for
direction upon the respondent authorities to
cancel and/or withdraw the impugned Reference
made by the respondent no.1 vide order no.
I(53)/2024/E dated 10-09-2025 or in the
alternative to set aside or quash the impugned
Reference made by the respondent no.1 vide order
no. I(53)/2024/E dated 10-09-2025.
3. Learned counsel for the petitioner submits that the
Reference is bad in law as the same has not been
done by invoking Section 10 of the Industrial
Disputes Act.
4. Relying upon the judgement of the Supreme Court
in the case of State of Bombay Vs. K. P.
Krishnan and Ors.(Paragraphs 9, 10, 11, 12 and
15), learned counsel for the petitioner submits
that the said order of Reference is required to be
2
cancelled and set aside. The following paragraphs
are quoted below:
9. It is true that s. 12(5) provides that the
appropriate Government may make such reference
and in that sense it may be permissible to say that
a power to make reference is conferred on the
appropriate Government by s. 12(5). The High
Court was apparently inclined to take the view that
in cases falling under s. 12(5) reference can be
made only under s. 12(5) independently of s. 10
(1). In our opinion that is not the effect of the
provisions of s. 12(5). If it is held that in cases
falling under s. 12(5) reference can and should be
made only under s. 12(5) it would lead to very
anomalous consequences. Section 10(3) empowers
the appropriate Government by an order to prohibit
the continuance of any strike or lock-out in
connection with an industrial dispute which may
be in existence on the date of the reference, but this
power is confined only to cases where industrial
disputes are referred under s. 10(1). It would thus
be clear that if a reference is made only under s.
12(5) independently of s. 10(1) the appropriate
Government may have no power to prohibit the
continuance of a strike in connection with a dispute
referred by it to the tribunal for adjudication; and
that obviously could not be the intention of the
Legislature. It is significant that ss. 23 and 24
prohibit the commencement of strikes and lock-outs
during the pendency of proceedings therein
specified, and so even in the case of a reference
made under s. 12(5) it would not be open to the
employer to declare a lock-out or for the workmen
to go on strike after such a reference is made; but if
a strike has commenced or lock-out has been
declared before such a reference is made, there
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would be no power in the appropriate Government
to prohibit the continuance of such a strike or such
a lock-out. Section 24(2) makes it clear that the
continuance of a lock-out or strike is deemed to be
illegal only if an order prohibiting it is passed
under s. 10(3). Thus the power to maintain
industrial peace during adjudication proceedings
which is so essential and which in fact can be said
to be the basis of adjudication proceedings is
exercisable only if a reference is made under s.
10(1). What is true about this power is equally true
about the power conferred on the appropriate
Government by s. 10(4), (5), (6) and (7). In other
words, the material provisions contained in sub-ss.
(3) to (7) of S. 10(1) which are an integral part of the
scheme of reference prescribed by Chapter III of the
Act clearly indicate that even if the appropriate
Government may be acting under s. 12(5) the
reference must ultimately be made under s. 10 (1).
Incidentally it is not without significance that even
in the petition made by the respondents in the
present proceedings they have asked for a writ of
mandamus calling upon the appellant to make a
reference under ss. 10(1) and 12(5).
10. Besides, even as a matter of construction,
when s. 12(5) provides that the appropriate
Government may make such reference it does not
mean that this provision is intended to confer a
power to make reference as such. That power has
already been conferred by s. 10(1); indeed s. 12(5)
occurs in a Chapter dealing with the procedure,
powers and duties of the authorities under the Act;
and it would be legitimate to hold that s. 12(5)
which undoubtedly confers power on the
appropriate Government to act in the manner
specified by it, the power to make a reference
which it will exercise if it comes to the conclusion
that a case for reference has been made must be
found in s. 10(1). In other words, when s. 12(5)
says that the Government may make such
reference it really means it may make such
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reference under s. 10(1). Therefore it would not be
reasonable to hold that s. 12(5) by itself and
independently of s. 10(1) confers power on the
appropriate Government to make a reference.
11. The next point to consider is whether, while the
appropriate Government acts under s. 12(5), it is
bound to base its decision only and solely on a
consideration of the report made by the conciliation
officer under s. 12(4). The tenor of the High Court’s
judgment may seem to suggest that the only
material on which the conclusion of the appropriate
Government under s. 12 (5) should be based is the
said report. There is no doubt that having regard to
the background furnished by the earlier provisions
of s. 12 the appropriate Government would
naturally consider the report very carefully and
treat it as furnishing the relevant material which
would enable it to decide whether a case for
reference has been made or not; but the words of s.
12(5) do not suggest that the report is the only
material on which Government must base its
conclusion. It would be open to the Government to
consider other relevant facts which may come to its
knowledge or which may be brought to its notice,
and it is in the light of all these relevant facts that it
has to come to its decision whether a reference
should be made or not. The problem which the
Government has to consider while acting under s.
12(5)(a) is whether there is a case for reference.
This expression means that Government must first
consider whether a prima facie case for reference
has been made on the merits. If the Government
comes to the conclusion that a prima facie case for
reference has been made then it would be open to
the Government also to consider whether there are
any other relevant or material facts which would
justify its refusal to make a reference. The question
as to whether a case for reference has been made
out can be answered in the light of all the relevant
circumstances which would have a bearing on the
merits of the case as well as on the incidental
question as to whether a reference should
nevertheless be made or not. A discretion to
consider all relevant facts which is conferred on the
Government by s. 10(1) could be exercised by the
Government even in dealing with cases under s.
12(5) provided of course the said discretion is
exercised bona fide, its final decision is based on a
consideration of relevant facts and circumstances,
and the second part of s. 12(5) is complied with.
12. We have already noticed that s. 12 deals with
the conciliation proceedings in regard to all
5
industrial disputes, whether they relate to a public
utility service or not. Section 12(1) imposes an
obligation on the conciliation officer to hold
conciliation proceedings in regard to an industrial
dispute in respect of public utility service provided
a notice under s. 22 has been given. If in such a
dispute the efforts at conciliation fail and a failure
report is submitted under s. 12(4) Government may
have to act under s. 12(5) and decide whether
there is a case for reference. Now, in dealing with
such a question relating to a public utility service
considerations prescribed by the second proviso to
s. 10(1) may be relevant, and Government may be
justified in refusing to make a reference if it is
satisfied that the notice given is frivolous or
vexatious or that reference would be inexpedient.
Just as discretion conferred on the Government
under s. 10(1) can be exercised by it in dealing
with industrial disputes in regard to non-public
utility services even when Government is acting
under s. 12(5), so too the provisions of the second
proviso can be pressed into service by the
Government when it deals with an industrial
dispute in regard to a public utility service under s.
12(5).
15. On the other hand, if the power to make
reference is ultimately to be found in s. 10(1) it
would not be easy to read the relevant portion of s.
12(5) as imposing an obligation on the Government
to make a reference. Section 12(5) when read with
s. 10 (1) would mean, according to the appellant,
that, even after considering the question, the
Government may refuse to make a reference in a
proper case provided of course it records and
communicates its reasons for its final decision. In
this connection the appellant strongly relies on the
relevant provisions of s. 13. This section deals with
the duties of Boards and is similar to s. 12 which
deals with conciliation officers. A dispute can be
referred to a Board in the first instance under s.
10(1) or under s. 12(5) itself. Like the conciliation
officer the Board also endeavours to bring about a
settlement of the dispute. Its powers are wider
than those of a conciliator but its function is
substantially the same; and so if the efforts made
by the Board to settle the dispute fail it has to
make a report under s. 13(3). Section 13(4)
provides that if on receipt of the report made by the
Board in respect of a dispute relating to a public
utility service the appropriate Government does not
make a reference to a Labour Court, Tribunal or
National Tribunal under s. 10, it shall record and
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communicate to the parties concerned its reasons
therefor. The provisions of s. 13 considered as a
whole clearly indicate that the power to make a
reference in regard to disputes referred to the
Board are undoubtedly to be found in s. 10(1).
Indeed in regard to disputes relating to non-public
utility services there is no express provision made
authorising the Government to make a reference,
and even s. 13(4) deals with a case where no
reference is made in regard to a dispute relating to
a public utility service which means that if a
reference is intended to be made it would be under
the second proviso to s. 10(1). Incidentally this
fortifies the conclusion that whenever reference is
made the power to make it is to be found under s.
10(1). Now, in regard to cases falling under s. 13(4)
since the reference has to be made under s. 10 that
can be no doubt that the considerations relevant
under the second proviso to s. 10(1) would be
relevant and Government may well justify their
refusal to make a reference on one or the other of
the grounds specified in the said proviso. Besides,
in regard to disputes other than those falling under
s. 13(4) if a reference has to be made, it would
clearly be under s. 10(1). This position is implicit in
the scheme of s. 13. The result, therefore, would be
that in regard to a dispute like the present it would
be open to Government to refer the said dispute
under s. 12(5) to a Board, and if the Board fails to
bring about a settlement between the parties
Government would be entitled either to refer or to
refuse to refer the said dispute for industrial
adjudication under s. 10(1). There can be no doubt
that if a reference has to be made in regard to a
dispute referred to a Board under s. 13 s. 10(1)
would apply, and there would be no question of
importing any compulsion or obligation on the
Government to make a reference. Now, if that be
the true position under the relevant provisions of s.
13 it would be difficult to accept the argument that
a prior stage when Government is acting under s.
12(5) it is obligatory on it to make a reference as
contended by the respondent.
5. On hearing the learned counsel for the parties, the
matter be listed on 30th March, 2026 for further
hearing and necessary orders.
6. Pending hearing of the writ application the
impugned Reference and the related Reference
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case under challenge in the present case be stayed
till 28th of April, 2026 or until further orders,
whichever is earlier.
( Shampa Dutt (Paul), J.)
