Patna High Court
General Secretary, Dalmia Nagar ... vs State Of Bihar And Ors. on 4 October, 1966
Equivalent citations: AIR1968PAT41, (1969)ILLJ358PAT, AIR 1968 PATNA 41, 1968 LAB. I. C. 41, 34 FJR 19, (1969) 1 LABLJ 358
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. The General Secretary Dalmianagar Mazdoor Union, has obtained a rule from this Court under Article 226 of the Constitution of India against the State of Bihar (respondent No. 1), the Under Secretary, Department of Labour and Employment, Government of Bihar (respondent No. 2). Works Director, Rohtas Industries, Ltd. (respondent No 3), and the Director, Ashoka Cement, Ltd. (respondent No. 4), to show cause why a writ in the nature of mandamus be not issued directing respondents Nos. 1 and 2 to refer the remaining dispute to adjudication by remaining disputes, it is meant the matters of demand as contained in the letter of the petitioner which were not referred by the State Government under the Industrial Disputes Act, 1947 (Central Act 14 of 1947) (hereinafter referred to as the Act). Cause has been shown on behalf of respondents Nos. 3 and 4 by Mr. Lalnarayan Sinha and by the learned Additional Standing Counsel on behalf of respondents Nos. 1 and 2.
2. The petitioner's case is that a strike notice as required under Section 22 of the Act was sent to respondents Nos. 3 and 4 along with a charter of demands, a copy of which is Annexure A to the writ application. Under section 12 of the Act, the conciliation officer made a half-hearted attempt to discharge the formalities of holding a conciliation to bring about a settlement; but it proved abortive. The petitioner's case further is that, on the report of the Conciliation Officer, the State Government decided to refer the disputes to adjudication, and in pursuance of that decision, a letter dated the 8th, June, 1966, was sent to the petitioner by the Superintendent of Labour, Shahbad, intimating him of the fact that the disputes had been referred to adjudication. A copy of the said letter is Annexure B. On receipt of the letter (Annexure B), the petitioner gave a call to the workmen not to go on strike and the strike did not take place; but the notification issued by the State Government, referring the disputes for adjudication, disclosed that only items Nos. 2 and 3 out of six demands mentioned in the charter of demands were referred for adjudication to the Industrial Tribunal, and moreover, the Mazdoor Union, which had initiated the disputes and had given the strike notice, was not made a party to the reference. Copies of the two notifications, referring the disputes, are Annexures C and C-1.
The action of the State Government, according to the petitioner's case, in not referring all the disputes for adjudication is mala fide, and has badly jeopardised the interest of the workers. Further, the State Government have not even cared to intimate to the petitioner as to why only two disputes have been referred for adjudication and not the others, when all the demands contained in the charter of demands (Annexure A) were important. It is further stated in the writ application that the petitioner has applied under Section 18 of the Act for being made a party to the reference made under the notifications (Annexures C and C-1), and the application is pending before the Presiding Officer of the Industrial Tribunal, Patna The action of the State Government in not referring the remaining disputes for adjudication is not only mala fide but is an infringement of the provisions of Sub-section (5) of Section 12 of the Act. On these allegations, a prayer has been made for directing respondents Nos. 1 and 2 to refer the remaining disputes for adjudication.
3. A counter affidavit has been filed by respondent No. 2 on behalf of respondents Nos.
1 and 2. In this counter affidavit, the stand taken is that no step as required under Section 12 of the Act for a conciliation proceeding was taken by the Conciliation Officer. The letter (Annexure B) was not written by the Superintendent of Labour, Shahbad, in his capacity as a Conciliation Officer. The two concerns, Rohtas Industries, Ltd., and Ashoka Cement Ltd., are concerns relating to public utility service. Therefore, steps were taken by the State Government under Section 10 (1) (d) of the Act in issuing notifications (Annexures C and C-1). The letter (Annexure B) was sent to the petitioner because the matter concerned the pubilc utility service. The State Government have taken the steps as they thought it fit and proper and in the bona fide way. It is further asserted in the counter affidavit that, under Section 10 of the Act, it is open to the State Government to examine the nature of the dispute and to refer only some items of the disputes. It is further stated in the counter affidavit that action was taken by the State Government under Section 10 of the Act on the dispute raised by Rohtas Industries Mazdoor Sangh, Dalmianagar, which is a recognized Union.
4. During the course of argument, the original file leading to the issuance of the notifications dated the 8th of June, 1966, contained in Annexures C and C-1, was produced before us on behalf of the State. I shall now refer to the points urged on behalf of the petitioner which necessitated our looking into the original file for the purpose of disposal of this case.
5. The petitioner's argument is that it was incumbent upon the Conciliation Officer under Section 12 (1) of the Act to hold conciliation proceedings where a notice under Section 22 as been given relating to a dispute appertaining to a public utility service. On the language of the letter (Annexure B), it should be presumed and held in this case (1) that such a proceeding was, as a matter of fact, held and the State Government on a consideration of the report made by the Conciliation Officer under Sub-section (4) of Section 12, took steps for referring some disputes to the Industrial Tribunal, and, in that event, it was incumbent upon them to record and communicate to the petitioner their reasons for refusing to refer the remaining disputes; and (2) that it is not clear from the counter affidavit filed on behalf of the State that the charter of demands or all the demands made by the petitioner were at all considered by the State Government while issuing the notifications (Annexures C and C-1) and making the reference to the Industrial Tribunal. In that view of the matter, the State Government should be directed to consider the demands of the petitioner as contained in Annexure A, and then either to Start a conciliation proceeding or to make a reference under Section 10 (1) (d) of the Act.
6. The strike notice was given on the 25th of May 1966 by the petitioner to respondents Nos. 3 and 4, with copies to various officers, as mentioned in that letter, including the Secretary. Department of Labour, Government of Bihar. The demands mentioned in the charter of demands are the following:
"1. Withdraw the writ application from the Patna High Court and implement the Arbitrator's award.
2. Pay to every employee of Rohtas Industries and Ashoka Cement 4 months wages as Bonus for each of the years 1962/63 and 1963/ 64.
"3. A rise of Rs. 30 or 30%, whichever be higher, be given in the wages of every employee of Rohtas Industries and Ashoka Cement not covered by the Wage Boards.
"4. Such casual employees of Rohtas Industries and Ashoka Cement who have completed two years service be made permanent.
"5. Gratuity Scheme as applicable to employees of Rohtas Industries Ltd., Dalmianagar, e introduced and enforced in Ashoka Cement, Ltd.
"6. Workmen of the labour category in Rohtas Industries Ltd., and Ashoka Cement, Ltd., be allowed the same quantum of leave as are allowed to employees of staff category."
7. Shri B. K. Narain, Superintendent of Labour, Shahbad, wrote to the members of the Action Committee as also to the Secretary Dalmianagar Mazdoor Union (the petitioner), on the 8th June, 1966, as follows:--
"I am directed to inform you that the State Government of Bihar have been pleased to refer the disputed matters between the managements of the R. I. Ltd. and Ashoka Cement Ltd. and their workmen for adjudication.
"You are, therefore, advised not to resort to strike as proposed, in contravention of the provisions of the Industrial Disputes Act, 1947.
Please note that under the circumstances stated above the strike if called as proposed will be illegal."
8. The notifications however, issued by the State Government on the 8th June, 1966, say that they were being issued in exercise of the powers conferred by Clause (d) of Sub-section (1) of Section 10 of the Act, and, by the notification (Annexure C), the dispute referred for adjudication was in these terms :--
"Whether the wage structure of the workmen should be revised? If so, what should be the wage structure?"
On the same date, another notification as contained in Annexure C-1 was issued in exercise of the same powers, referring the following disputes:
"1. Whether the workmen are entitled to bonus for the year 1962-63 and 1963-64? If so, what should be the quantum of bonus?
"2. Whether the workmen are entitled to more than 4 per cent of their wages as bonus for the year 1964-65? _ If so, what should be the quantum of bonus?"
9. In my opinion, there is no justification in this case for taking the view that, as a matter of fact, a conciliation proceeding was held by the Conciliation Officer in accordance with Section 12 or that it must be presumed to have been held. In the letter (Annexure B), there is not a whisper of any conciliation proceeding. The statement contained in the counter affidavit filed on behalf of the State in this regard is correct, and, thereafter, the first point urged On behalf of the petitioner must be rejected as incorrect and unsound. The reference under Section 10 (1) (d) undoubtedly will be made under cither of the circumstances, viz, when there was a conciliation proceeding or even without it. On the facts placed before us in this case on the basis of the annexures, referred to above, it is clear that the power was exercised by the State Government straightway under Section 10 (1)(d) without there being any conciliation proceeding. That being so, the State Government were not obliged to record and communicate to the petitioner their reasons for not referring some of the disputes to the Industrial Tribunal for adjudication in accordance with Sub-section (5) of Section 12 of the Act.
10. The second point led to some confusion in the absence of a clear statement in the Counter affidavit filed on behalf of the State Government as to whether the demands made by the petitioner had been considered or not at the time of making the reference. A clear statement was made in the letter (Annexure B) that the Superintendent of Labour had been directed to inform the petitioner that the State Government had been pleased to refer the disputed matters between the Rohtas Industries, Ltd., and their workmen for adjudication, suggesting that all the disputed matters as contained in the charter of demands (Annexure A) had been referred for adjudication. There was, therefore, some confusion and apparent contradiction between the statement contained in Annexure B and the stand taken in the counter affidavit. This was one of the reasons which persuaded us to adjourn the hearing of the case yesterday and to direct the learned Additional Standing Counsel to produce the original file in connection with the reference in question before us, which has been done today.
11. On examination of the original file, it appears that, sometime in the year 1965, several demands had been made by Rohtas Industries Mazdoor Sangh a recognised union, including, in one form or the other, demands Nos. 2 to 6 as contained in the charter of demands of the petitioner; but, before the reference was made on those demands, the notice given by the petitioner in May, 1966, was also received. The demands made therein were also considered. One of the reasons for not making a reference in express terms at the instance of the petitioner's demands in the notice as stated in the file is that Dalmianagar Mazdoor Union is not a recognised union. The reference made on the points of the disputes by the notifications contained in Annexures C and C-1 covered demands Nos. 2 and 3 made on behalf of the petitioner also, as is his specific case. The other demands, Nos. 4 to 6, do not seem to have been specifically considered probably because, in one form or the other, they were contained in the demands made by the Mazdoor Sangh but were not considered fit to be referred for adjudication by the State Government. I am constrained to refer to all these matters from the original file to avoid me issuance or an unnecessary writ, which, ultimately, would have been futile, or to avoid the delay in proceeding with the adjudication which is pending before the Industrial Tribunal in pursuance of the notifications (Annexures C and C-1).
12. In Members of the Sasemuse Workers Union v. State of Bihar, AIR 1952 Pat 210 it was pointed out that, reading the whole Sub-section (1) of Section 10 of the Act, including the second proviso, which was the first proviso then before the Amending Act of 1956 (36 of 1956), "it is clear that the statute has granted a power rather than imposed a duty, that it has conferred a discretion but did not impose an obligation. The section merely intends to give the appropriate Government a power to refer for settlement or adjudication an industrial dispute relating to a public utility service when strike notice has been given notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced. It is a power or discretion which is given and not duty or obligation". In that view of the matter, it was further pointed out, following the Full Bench decision of this Court in Bagararn Tuloule v. State of Bihar, AIR 1950 Pat 387 (FB) that no writ of mandamus under Article 226 of the Constitution can be issued by this Court to the State Government directing them to refer the remaining matters which are alleged to be in dispute between the workers' union and the management of the industrial concern.
13. The position, therefore, comes to this that, in one form or the other, the demands raised on behalf of the petitioner were considered by the State Government, and, for the reasons stated in that file, which they were not bound to communicate to the petitioner, they did not consider it necessary to make a separate reference on the basis of the demands made by the petitioner, as those which could be referred were covered by the notifications issued on the basis of the demands made by the Mazdoor Sangh. That being so, it is abundantly clear that, even if the State Government are directed to consider the demands of the petitioner on the footing that there is no clear statement in the counter affidavit saying that they have been so considered, it is manifest that the reply merely would be that the demands have been considered, and such disputes as were found to be referable have been referred by the notifications (Annexures C and C-1), and the rest of the demands are not fit to be referred. In such a situation, as I have said above, the issuance of any writ for the technical defect of the counter affidavit will be futile and infructuous in the end.
14. It may also be added that demand No. 1 could not be a matter of industrial dispute, and, in any event, it is stated on behalf of the petitioner that it is infructuous now as the writ application, referred to therein, has since been disposed of by the Patna High Court. Demand No. 4 does not seem to be couched in a language which would indicate a real and genuine dispute between the workmen and the management. That demand, in general terms, is that causal employees, who have completed two years of service, should be made permanent. This does not seem to be quite a legitimate demand, but I must hasten to add that I express no final opinion in this regard. Demands Nos. 5 and 6 can more appropriately be dealt with under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), especially after the amendment of the said Act in 1956, as pointed out in paragraph 13 of the judgment of the Supreme Court in Guest, Keen, Williams Pr. Ltd., Calcutta v. P. J. Sterling, AIR 1959 SC 1279. In this regard also, I must not be under-stood to be expressing any final opinion. By making these observations, what I want to point out is that the State Government may have been Influenced by these considerations in not incorporating demands Nos. 4, 5 and 8 in the reference which they made on the 8th of June, 1966. It may well be that these demands were not specifically considered; but the similar ones contained in the charter of demands of the Mazdoor Sangh seem to have been considered.
15. As regards the grievance of the petitioner that the reference was made without making him a party to it, it was conceded on his behalf that the State Government cannot be forced to make the petitioner a party to the reference. The remedy of the petitioner is before the Industrial Tribunal, which, as stated by him in the application, has been followed. The State Government cannot be forced to make the petitioner a party to the reference.
16. On a careful consideration of all the matters involved in this case, I have come to the conclusion that it is not a fit case where any kind of writ should be issued against the State Government, directing them either to start a conciliation proceeding or to make a reference in express terms at the instance of the petitioner or to make a reference of all the demand made by the petitioner. In this view of the matter, the application fails, and it is dismissed but I would make no order as to costs.
S.N.P. Singh, J.
17. I agree.