Punjab-Haryana High Court
Bachni Devi vs Assistant Labour Commissioner And Ors on 20 November, 2014
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CWP No.25108 of 2013 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No.25108 of 2013
Date of decision: 20.11.2014
Bachni Devi ... Petitioner
Vs.
Assistant Labour Commissioner & others ... Respondents
CORAM: HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. Ravi Gakhar, Advocate for the petitioner.
Mr. Amit Chaudhary, Addl. Advocate General, Punjab.
.....
TEJINDER SINGH DHINDSA, J.
Petitioner has challenged the order dated 23.05.2013 (Annexure P-5) passed by the Assistant Labour Commissioner, Patiala, whereby her demand notice dated 22.02.2013 has been rejected. Further challenge is to the order dated 05.09.2013 (Annexure P-8) whereby representation filed by the petitioner against the rejection of the demand notice has also been declined by the Assistant Labour Commissioner, Patiala.
Pleaded case of the petitioner is that she was appointed on 01.01.1993 as Chowkidar-cum-Peon in the office of Principal, Government High School, Manakpur, Tehsil Rajpura, District Patiala and had served as such for a period of almost 20 years. She had approached the management for her absorption on regular basis against the vacant post of Peon. Petitioner had even submitted a representation and the same having evoked no response, CWP No.1471 of 2012 was filed in this Court and which was HARJEET KAUR 2014.12.03 03:52 I attest to the accuracy and authenticity of this document CWP No.25108 of 2013 -2- disposed of with a direction to the respondent-authorities to consider her claim in accordance with law. The respondents thereafter are stated to have passed an order rejecting the claim of the petitioner. However, during the pendency of the representation, services of the petitioner are stated to have been verbally terminated w.e.f. 08.01.2013. The petitioner issued a demand notice under Section 2-A of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the 'Act') upon the Secretary, Education Department, Punjab, District Education Officer, Education Department, Patiala, Principal, Government High School, Manakpur, Rajpura and with a copy to the Assistant Labour Commissioner, Patiala for early intervention. Such demand notice was responded to in terms of a reply dated 09.04.2013 having been filed before the Assistant Labour Commissioner, Patiala at Annexure P-4 taking a stand that the petitioner/work-woman had not been appointed in the school in the year 1993 but was rather engaged as a Helper (Class IV) w.e.f. 07.11.2008 by the PTA Committee on 89 days' basis. A further stand was taken in the reply that services of the work-woman were terminated vide PTA Committee resolution No.41 dated 20.12.2012. The reasons for termination was cited as lack of funds.
Vide impugned order dated 23.05.2013 (Annexure P-5), the Assistant Labour Commissioner, Patiala/respondent No.1 has rejected the demand notice dated 22.03.2013 in the following terms:
"Subject: Demand notice 22.03.2013 against M/s (1) Secretary Education Department, Punjab, Chandigarh (2) The District Education Officer, Education Department, Patiala (3) The Principal Government High School, Manakpur, Tehsil Rajpura District Patiala.
It is clarified in view of the above mentioned demand CWP No.25108 of 2013 -3- notice that the demand in demand notice is not able to send for adjudication because during the conciliation proceedings you have produced strong proof regarding your job. As per the version of management you were being paid salary from Parent-teacher fund, not from the government treasury. Therefore, your demand notice is being rejected."
Apparently, the petitioner submitted a representation to the Assistant Labour Commissioner, Patiala against the rejection of demand notice and treating the same to be an appeal and the same has been declined vide order dated 05.09.2013 at Annexure P-8. It is against such brief factual backdrop that the instant writ petition has been filed impugning the order dated 23.05.2013 at Annexure P-5 as also dated 05.09.2013 at Annexure P-8.
Counsel for the parties have been heard at length. For the purpose of examining the validity of the impugned order in terms of which the Conciliation Officer has rejected the demand notice of the petitioner, it would be expedient to refer to certain relevant provisions i.e. Section 10(1), Section 11(2) and (4) and Section 12 of the Act and the same are quoted below:
"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 CWP No.25108 of 2013 -4- 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 in expedient 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 the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government;] xxxx xxxx xxxx
11. Procedure and powers of conciliation officers, Boards, Courts and Tribunals.
(2) A conciliation officer or a member of a Board, [or Court or the presiding officer of a Labour Court, Tribunal or National Tribunal]may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.
xxxx xxxx xxxx (4) A conciliation officer [may enforce the attendance of any person for the purpose of examination of such person or call CWP No.25108 of 2013 -5- for] and inspect any document which he has ground for considering to be relevant to the industrial dispute [or to be necessary for the purpose of verifying the implementation of any award or carrying out any other duty imposed on him under this Act, and for the aforesaid purposes, the conciliation officer shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), [in respect of enforcing the attendance of any person and examining him or of compelling the production of documents.
xxxx xxxx xxxx
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.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government [or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute.
(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 CWP No.25108 of 2013 -6- 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 therefore.
(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government:
[Provided that, [subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.]"
A combined reading of the provisions reproduced herein above would clearly indicate that the Conciliation Officer is under a duty to hold conciliation proceedings, where any industrial dispute exist or is apprehended. The Conciliation Officer is not vested with any power to reject the demand raised by an employee. Furthermore, the Conciliation Officer does not even have the power to enter into the merits of the dispute and to take a decision whether any dispute exists or not. The Conciliation Officer is also not entitled to decide whether or not he should send a report to the Government. He is duty bound to send a report to the Government and it is for the Government to consider the matter and to pass appropriate order under Section 12(5).
A reference in this regard may be made to a Division Bench CWP No.25108 of 2013 -7- judgment of this Court in Lal Chand Vs. State of Haryana & others, 1996 (2) SCT 835. It is also well settled that while exercising power under Section 10(1) or Section 12(5), the Government is not empowered to decide a dispute. The Government cannot examine the merits of the case for the purpose of recording a finding whether claim made by the workman is justified or not. The only thing which the Government is required to look into is whether there exist industrial dispute or whether one is apprehended?
In Rajasthan State Transport Corporation & another Vs. Krishan Kant etc., 1995(2) SLR 784 : 1994(1) SCT 23 (SC), the Supreme Court has made the following observations regarding the power of the Government to make a reference:
"The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex-facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex- facie frivolous, not meriting adjudication."
A reading of Sections 11 and 12 of the Act would further clarify that the power of the Government cannot be exercised by the Labour-cum-Conciliation Officer. In the present case, the Assistant Labour Commissioner, Patiala while rejecting the demand notice of the petitioner/work-woman has clearly exceeded his jurisdiction. Conciliation proceedings having failed, it was imperative for the Conciliation Officer to have forwarded a report to the Appropriate Government setting forth the steps taken by him for ascertaining the facts as also circumstances relating to the dispute and together with the statement of such facts and CWP No.25108 of 2013 -8- circumstances and reasons which in his opinion were germane for a settlement not having been arrived at. It was certainly not open for the Conciliation Officer to have entered into the matter on merits and thereby to reject the demand notice.
For the reasons recorded above, the present writ petition is allowed. The impugned orders dated 23.05.2013 (Annexure P-5) and 05.09.2013 (Annexure P-8) are set aside. Respondent No.1 is directed to send forthwith to the Appropriate Government a full report as contemplated under Section 12(4) of the Act. The Appropriate Government shall thereafter act upon the report strictly in accordance with law and shall exercise its power under Section 10(1) read with Section 12(5) of the Act without any further delay.
The writ petition is allowed in the aforesaid terms.
November 20, 2014. (TEJINDER SINGH DHINDSA) harjeet JUDGE Note: Whether referred to the Reporter? Yes