Calcutta High Court
C.E.S.C. Limited vs State Of West Bengal And Ors. on 22 January, 2008
Equivalent citations: (2008)1CALLT443(HC)
Author: Aniruddha Bose
Bench: Aniruddha Bose
JUDGMENT Aniruddha Bose, J.
1. In the present writ petition, under challenge in substance is the legality of a proceeding initiated under the provisions of Section 10(1B) of the Industrial Disputes Act, 1947 (as amended in West Bengal). I shall describe this statute in the later part of this Judgment as "The Act". The petitioners, who are a company and a licensee under the Electricity Act, 2003 have approached this Court mainly for quashing of a certificate issued in Form-S as per Rule 12A(3) of the West Bengal Industrial Disputes Rules, 1958, and a notice issued by the learned Judge, Second Labour Court, requiring the appearance of the petitioners before the Court for framing of issues. I shall henceforth refer to these Rules as the said Rules. The certificate in form S stipulates pendency of a conciliation proceeding for more than sixty days. The notice of the Labour Court requires appearance of the petitioners for hearing regarding framing of issues in connection with a dispute between the petitioners and the respondent No. 4. These two documents have been made annexures "P8" and "P10" of the writ petition.
2. The controversy out of which the present writ petition arises, relates to the allegation of illegal termination of service of the respondent No. 4 by the petitioners. It was at his instance the Assistant Labour Commissioner, being the Conciliation Officer (respondent No. 2) had issued the impugned certificate ("Pendency Certificate" in short) in exercise of his power under Section 10(1B)(b) of the Act. The notice directing appearance of the petitioners before the Labour Court for hearing regarding framing of issues was issued by the learned Judge, Second Labour Court under the provisions of Section 10(1B)(d) of the Act.
3. The original status of the respondent No. 4 as a workman of the petitioners is not in dispute in the present proceeding. The case of the petitioners is that he had retired from his service on 31st December, 2005 upon having attained the age of superannuation, being 60 years. The case of the respondent No. 4 on the other hand is that his date of birth is 1st February, 1949 and hence he would attain the age of superannuation only in the month of February 1949. His allegation is that he is being illegally compelled to retire before attaining the age of superannuation.
4. The respondent No. 4 was initially served with a notice of retirement issued on 8th September, 2005 informing him that his retirement would take effect on 31st December, 2005. He had raised objection on this count by a communication of 15th September, 2005, contending that at that point of time his age was 56 years only, as his year of birth was 1949. According to him, he was to attain the age of superannuation in the year 2009. By a communication dated 14th November, 2005 the petitioners themselves had taken cognizance of the grievance of the respondent No. 4 that there was legitimate doubt in recordal of his age, and took a decision to refer the matter before a medical board. A medical board was constituted, comprising of one Dr. Arun Banerjee, Presidency Surgeon, and the Chief Medical Officer and Deputy General Manager (Medical) of the petitioners. The medical board assembled on 28th November, 2005, and the respondent No. 4 duly appeared before the board on that date. The medical board determined his age to be above sixty years at that point of time, and the said decision was communicated to the respondent No. 4 by a letter dated 1st December 2005.
5. Thereafter, the respondent No. 4 received his provident fund dues and retiring gratuity on 2nd and 31st January 2006 respectively. From annexure "P4" of the writ petition, to which my attention has been drawn by Mr. Sengupta, learned Counsel appearing for the petitioners, I find that the respondent No. 4 had accepted the sums under these heads by signing on documents acknowledging receipt of the same. These documents on which the respondent No. 4 has endorsed his signature reflects that the amount was being received by him in full and final settlement of his account.
6. It appears that before accepting such dues, however, on 30th December, 2005, the respondent No. 4 had raised a grievance before the Labour Commissioner, Government of West Bengal to the effect that the management, implying the petitioners, were continuing to pressurize him to retire on 31st December, 2005 though his actual date of retirement would be in the month of February 2009. His case, as made out in the communication addressed to the Labour Commissioner, was that his date of birth is recorded with the Electro urban Co-operative Credit Society Limited as 1st February 1949 and that is his actual date of birth. He requested the Labour Commissioner to take appropriate action so that the petitioners could not terminate his service on 31st December, 2005.
7. The petitioners had received a memorandum from the office of the Assistant Labour Commissioner issued on 17th March 2006, captioned "Grievances of Sri Nutu Behari Kuila" (i.e. the respondent No. 4). The letter of the respondent No. 4 dated 30th December 2005 was enclosed with this communication, and the petitioners were directed to submit their comments. The petitioners claim to have had submitted their comments as required.
8. Thereafter, the Conciliation Officer sent a communication dated 21st June 2006, being the conciliation memo to the petitioners requesting them to send competent representatives for a joint conference with the representatives of Sri N.B. Kuila. This communication carried the caption "Alleged illegal termination of service of Sri Nutu Bihari Kuila." To this communication was annexed a letter of the respondent No. 4 dated 2nd June 2006. This letter was addressed to the same authority, i.e. the Assistant Labour Commissioner, Government of West Bengal, and in this letter, the respondent No. 4 attributed the action of the petitioners with which he was aggrieved to the fact that he was an office bearer of a union, which he described to be "opposite to ruling union." In this letter, allegation was also made that he had reported to the company doctor to carry out the order of the company (by which he possibly implied directive of the petitioners) to appear for preliminary medical examination before examination by the Board. The petitioners were asked to send their representative for a joint conference scheduled on 14th July, 2006. The petitioners sent their further comments on 11th July 2006. It has been pleaded by the petitioners that they were not aware of any further developments in connection with the conciliation proceeding.
9. It appears from records that the respondent No. 4 had thereafter applied before the Conciliation Officer for a certificate about the pendency of conciliation proceeding on or about 28th August, 2006. In this application, the respondent No. 4 claims to have had raised an industrial dispute on 30th December, 2005. The certificate as requested was issued on 31st August, 2006 in the prescribed form, in pursuance of the provisions of Section 10(1B) of the Act read with Rule 12A(3) of the said Rules. On receiving the certificate, the respondent No.4 applied before the learned Judge, Second Labour Court for taking cognizance of the application and for issuance of notices to the parties for hearing the matter and framing issues for adjudication as per the provisions of Section 10(1B)(d) of the Act. On the basis of this application, the impugned notice of hearing which is annexure "P10" to the writ petition, was issued.
10. It is the admitted position that the petitioners had appeared before the learned Labour Court and had sought for adjournment on the date which was fixed for framing of issues. In this writ petition, it has been pleaded that subsequent thereto, the petitioners had been advised that the issuance of the certificate, which is annexure "P8" to the writ petition and the proceeding initiated by the learned Labour Court is without jurisdiction. It is on the basis of such advise the petitioners claim to have filed the present writ petition.
11. The main ground on which the impugned certificate and the proceeding culminating in issuance of the notice has been challenged is that it was not open to the workman to apply directly before the statutory authorities for relief before raising the dispute with the employer. There was no industrial dispute subsisting at that point of time warranting intervention by the adjudicatory authority under the said Act. Moreover, without determination being made by the Conciliation Officer on the question as to whether industrial dispute exists or not, the learned Labour Court ought not to have had assumed jurisdiction an the subject dispute by issuing the notice requiring appearance of the petitioners for hearing regarding framing of issues.
12. The learned Labour Court issued the notice, in exercise of its jurisdiction in this matter, under the provisions of Section 10(1B) of the Act, which has been introduced to the Industrial Disputes Act, 1947 by way of an amendment of the statute under West Bengal Act 33 of 1989. The said provision stipulates:
10(1B)(a) Notwithstanding anything contained elsewhere in this Act, where in a conciliation proceeding of an industrial dispute relating to an individual workman, no settlement is arrived at within a period of sixty days from the date of raising of the dispute, the party raising the dispute may apply to the Conciliation Officer in such manner and in such form as may be prescribed, for a certificate about the pendency of the conciliation proceedings.
(b) The Conciliation Officer shall, on receipt of the application under Clause (a), issue a certificate within seven days from the date of receipt in such manner, in such form and containing such particulars as may be prescribed. A copy of the certificate shall also be sent to the appropriate Government for information.
(c) The party may, within a period of sixty days from the receipt of such certificate or, where such certificate has not been issued within a period of sixty days from the receipt of such certificate or, where such certificate has not been issued within seven days as aforesaid, within a period of sixty days commencing from the day immediately after the expiry of seven days as aforesaid, file an application in such form and in such manner and with such particulars of demands as may be prescribed, to such Labour Court or Tribunal as may be specified by the appropriate Government by notification. Different Labour Courts or Tribunals may be specified for different areas or different classes of industries.
(d) The Labour Court or Tribunal specified under Clause (c) shall, within a period of thirty days from the date of receipt of an application under Clause (c) give a hearing to the parties and frame the specific issues in dispute, and shall thereafter proceed to adjudicate on the issues so framed as if it were an industrial dispute referred to in Sub-section (1).
13. The mechanism for giving effect to the aforesaid provision is contained in Rule 12A of the said Rules, which is set out below:
West Bengal Industrial Dispute Rules 12A. Settlement of dispute on representation from individual workman.--(1) The Conciliation Officer on receipt of a representation relating to an individual workman, shall investigate the matter and if he is satisfied that an industrial dispute exists, he shall take all such steps as he thinks fit and proper for the purpose of inducing the parties to come to a speedy, fair, and amicable settlement of the dispute.
(2) If no settlement of the industrial dispute mentioned in Sub-rule (1) is arrived at within a period of 60 days from the date of raising of the dispute the party raising the dispute may apply to the Conciliation Officer personally or by registered post with acknowledgment due in Form P-4 for a certificate about the pendency of the conciliation proceedings before such Conciliation Officer.
(3) The Conciliation Officer, on receipt of the application referred to in Sub-section (1B) of Section 10, shall within 7 days from the date of receipt of such application, issue a certificate about the pendency of conciliation proceedings to the applicant in Form S. (4) The party may, within a period of 60 days from the date of receipt of such certificate or, when such certificate has not been issued within 7 days under Sub-rule (3), within a period of 60 days commencing from the day immediately after expiry of 7 days as aforesaid, file an application in Form T to such Labour Court or Industrial Tribunal as may be specified by the State Government by notification in the Official Gazette.
14. In the writ petition, the constitutional validity of Section 10(1B) of the Industrial Disputes Act 1947 and Rule 12A of the West Bengal Industrial Disputes Rules 1958 has been challenged. In course of hearing, however, practically no argument has been advanced on the aspect of constitutional validity of the aforesaid provisions. As I have already indicated in the earlier part of this Judgment, what has been challenged in this writ petition is the issuance of a certificate showing pendency of the conciliation proceeding which is made annexure "P8" to the writ petition, as also assumption of jurisdiction on the issue by the learned Labour Court in an application filed by the respondent No. 4 on basis of such certificate. Argument advanced on behalf of the petitioners have also remained confined to this aspect of the controversy only. The prayers of the petitioners also include quashing of the application made by the respondent No. 4 for issuance of certificate by the conciliation officer about pendency of the conciliation proceeding and the application filed by the respondent No. 4 before the learned Second Labour Court for taking cognizance of his application and for issuing notices to the parties for hearing the matter and for framing of issues.
15. The main submission of Mr. Partha Sarathi Sengupta, the learned Counsel appearing for the petitioners is that no industrial dispute subsisted between the parties warranting initiation of the proceeding under the Act as the respondent No. 4 did not raise any dispute with the employer before approaching the authorities under the said Act as regards the decision of the medical board. It is his further submission that in any event it was incumbent upon the Conciliation Officer to be satisfied first as regards the existence of an industrial dispute between the petitioners and the respondent No. 4 before the Issuance of the certificate and failure to do so renders all the subsequent proceedings including the issuance of notice for hearing upon assumption of jurisdiction by the learned Labour Court invalid. His argument is that the dispute over his age raised by the letter of 15th September, 2005 stood resolved and concluded upon setting up of the medical board. The workman did not raise any dispute over the decision of the medical board communicated to him by the letter dated 1st December, 2005, but on the other hand he had accepted the sum paid to him in full and final settlement of his provident fund account and gratuity. Thus, he had accepted the finding of the medical board without raising any further dispute with the management. Under these circumstances, he submitted that there could not be any industrial dispute in existence warranting commencement or continuation of the proceeding under challenge in this writ petition.
16. Reliance has been placed by Mr. Sengupta on the decision of the Hon'ble Supreme Court of India in the case of Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat and Ors. in support of his submission that if an employee does not raise any dispute with the employer, an industrial dispute does not come into existence and the Labour Court could not take cognizance of the dispute raised by the respondent No. 4 with the Conciliation Officer. Two other decisions of this Court have been cited by him on the same point, being the cases of Management, Ludlow Jute Mills v. Sheikh Mayur and Ors. 2005 LLR 606 (DB) and Capital Ltd. v. Eighth Industrial Tribunal (2006) 3 CHN 180. He has also drawn my attention to another decision of this Court in the case of Standard Chartered Grindlays Bank Ltd. v. Union of India and Ors. 2006 (111) FLR 1151 in support of the proposition that the Conciliation Officer must have had satisfied himself first as to whether an industrial dispute existed or not upon making investigation before issuing the certificate signifying pendency of the conciliation proceeding for over sixty-days.
17. Appearing on behalf of the respondent No. 4, Mr. Sandip Kumar Bhattacharyya strongly resisted the plea of the petitioner that the proceeding before the Labour Court ought to be quashed. His case is that the investigation envisaged in Rule 12A merely involves collection of evidence relating to an industrial dispute and is a preliminary step in the entire process of adjudication. So far as the scope of the dispute is concerned, he has argued that since this case relates to dismissal or termination of a workman, in view of the provisions of Section 2A of the Industrial Disputes Act, it automatically acquires the character of an industrial dispute. As regards the scope and meaning of the expression "investigation" in Sub-rule (1) of Rule 12A, he has relied on a decision of the Hon'ble Supreme Court in the case of Union of India and Anr. v. W.N. Chadda reported in AIR 1990 SC 1082. His case is that the action of the Labour Court is in consonance with the rights of the responderit No. 4 guaranteed under Article 21 of the Constitution of India as the act of dismissal would deprive his client of his livelihood. He has stressed on the fact that the Industrial Disputes Act, 1947 is a beneficial legislation enacted to protect the rights of workmen, and the provisions of the statute should be liberally construed, and the dispute resolution process under the said statute ought not to be stalled on mere technical grounds.
18. Mr. Bhattacharyya also argued that issuance of a pendency certificate by the Conciliation Officer is merely a ministerial act, and the Conciliation Officer has not been vested with the power to refuse issuance of such certificate after the lapse of the prescribed period of two months after receiving the representation from the individual workman. On the aspect of the duty of the Conciliation Officer to investigate the matter as contemplated under Sub-rule (1) of Rule 12A of the said Rules, he submitted that the Conciliation Officer would look at the evidence for investigation only if such scrutiny is necessary for his satisfaction about existence of an industrial dispute. Otherwise, his scope of enquiry is limited to verification as to whether there existed an employer workman relationship and that there was severance of such relationship inspite of objection from the workman. If these two conditions stood satisfied, subsistence of dispute would be automatically presumed, and the adjudication mechanism prescribed under the statute ought to come into operation. According to him, it was always open to the petitioners to take the maintainability point before the Labour Court.
19. No affidavit has been filed in this matter by the State. On the aspect of necessity of recordal of satisfaction by the Conciliation Officer, since substantial argument was advanced on this point, I had directed the learned Counsel appearing for the state respondents to produce the records maintained with the Conciliation Officer to ascertain if there was recordal of his satisfaction to the effect that an industrial dispute existed in the present case. The records were produced and on persual of such records, I found that there was no satisfaction recorded to that effect. Learned Counsel for the workman however contended that there was no requirement in law for recording satisfaction in writing. He reiterated his argument on this point that in view of the provisions of Section 2A of the Act, the moment a workman is dismissed, discharged or refused employment or otherwise ousted from employment, "industrial dispute" comes into existence automatically. As regards the ratio of the decision of the Hon'ble Supreme Court in the case of Sindhu Resettlement (supra) he submitted that raising of dispute with the employer is no more a necessary pre-condition in view of the Section 2A, which was introduced by way of an amendment of the Industrial Disputes Act, 1947 in the year 1965. In the case of Sindhu Resettlement (supra), the Hon'ble Supreme Court delivered the Judgment considering the law prevailing prior to the date of introduction of the said provision. It is also the case of the respondent No. 4 that in any event he had raised dispute with the employer by raising his grievance as regards the date of his retirement by his letter of 15th September 2005.
20. Mr. Ashis Das, learned Counsel appearing for the state respondents defended the action of the Conciliation Officer and the learned Labour Court. His case is that Rule 12A of the 1958 Rules mandates issuance of pendency certificate, and there is no provision in the rule under which the Conciliation Officer can decline to issue such certificate if the proceeding before him remains pending for over sixty-days. A workman can also independently approach the Labour Court even if such certificate is not issued within the stipulated period, as per the provisions of the said Rules. Thus, there has been no infirmity on the part of any of the authorities under the Act.
21. His submission is that the investigation contemplated in Sub-rule (1) of Rule 12A is only for inducing the parties to arrive at a settlement. The power to issue the certificate under Sub-clause (3) of Rule 12A can be exercised even if there is no recordal of satisfaction on his part that an industrial dispute exists. It can be implied satisfaction of the Conciliation Officer also in a given factual context.
22. The basic question that falls for determination in this writ petition is as to whether the Conciliation Officer, to whom a representation has been made by an individual workman can issue a certificate about the pendency of the proceeding in terms of Rule 12A(3) without conducting any investigation into the matter and without satisfying himself that an industrial dispute exists in terms of Rule 12A(1) of the said Rules. And as a consequence thereof, whether the adjudicatory authority under the said Act (being the Labour Court in this writ petition), when approached thereafter in terms of Rule 12A(4) of the said Rules is empowered to initiate proceeding for resolving such dispute upon framing of issues in the absence of any investigation and without recordal of satisfaction on the part of the Conciliation Officer about existence of an industrial dispute.
23. I shall deal first with the argument of the respondent No. 4 that even if there is procedural infirmity in issuing the certificate of pendency of conciliation proceeding in the present case, since the allegation of the workman comes within the ambit of disputes specified in Section 2A of the Act, the Labour Court could assume jurisdiction to adjudicate on the complain of the workman. For examining this argument of the respondent No. 4, interpretation of the provisions of Section 2A becomes necessary, and the said provision, as applicable in the State of West Bengal, is reproduced below:
2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute--Where any employer discharges, dismisses, retrenches, refuses employment or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment, refusal of employment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union or workmen is a party to the dispute.
24. Mr. Sengupta's response to this argument has been that this provision has no impact on the subject of controversy in this writ petition, as the said provision only contemplates raising of a dispute by an individual workman even if he is not sponsored by a union and the said dispute is not a dispute raised by a group of workmen. This provision, according Mr. Sengupta, does not do away with the requirement to raise a dispute with the employer and to comply with the pre-adjudicatory mechanism provided in the Act, before reaching the Tribunal or Labour Court.
25. I accept this submission of Mr. Sengupta. There is no provision in the Act to the effect that dispute relating to dismissal etc., can be raised directly before the Labour Court or Tribunal if the complainant is an individual workman not being sponsored by a union. So far his right of access to the Tribunal or the Labour Court is concerned, it remains the same as in other cases, where the grievance is made out by a group of workmen or a union. The interpretation sought to be given by Mr. Bhattacharyya to Section 2A of the Act in my opinion is not the correct interpretation of the said provision of the Act.
26. This point, though in a different factual context was considered by an Hon'ble single Judge of this Court in the case of Standard Chartered Grindlays Bank Ltd. (supra). In that case, the decision of the Regional Labour Commissioner (Central Calcutta) referring a dispute raised by an employee over his dismissal to the Central Government Industrial Tribunal-cum-Labour Court was challenged before this Court. The case arose out of an order of dismissal of a bank employee. The employer had received a communication from the Regional Labour Commissioner (Central), Calcutta proposing to discuss the dispute between the management and the dismissed employee. The bank raised a preliminary objection over the jurisdiction of the said authority to initiate conciliation proceeding in that matter, on the ground that the dispute involved was not an industrial dispute as the concerned employee was not a workman. There was subsequent exchange of communications among the parties, and the dispute relating to the said order of dismissal was eventually referred to the Industrial Tribunal-cum-Labour Court. One of the grounds of challenge to the order of reference was that the appropriate government, prior to the passing of the order of reference had failed to form an opinion as regards the existence of an industrial dispute between the petitioner and the concerned employee.
27. The main defence of the dismissed employee to such challenge has been recorded in the Judgment of the Hon'ble single Judge, and the same is reproduced below:
6. Mr. Barat appearing on behalf of the respondent No. 6 submits that after incorporation of Section 2-A in the said Act the scope of Industrial Dispute has been enlarged. According to Mr. Barat a dispute between the employee and the employer can be deemed to be Industrial Dispute subject to determination of status of the employee. Such status of the employee is to be ascertained from the nature of the job actually the employee performs. This can only be done by the appropriate Tribunal. Since the conciliation officer was not vested with the power to decide the preliminary objection, the conciliation officer was right in keeping silent on the preliminary objection raised by the petitioner-bank before him. According to Mr. Barat if there is any error in naming the parties or in framing the issues, the order of reference cannot be held to be bad. He strenuously argued that the Tribunal is the only competent forum to decide the preliminary objection raised by the petitioner-Bank.
28. This contention was repelled and it was held by this Court:
17. With regard to the cases cited by Mr. Sengupta, i.e., the cases of Ram Bharosey Agarwal v. Har Swamp Maheshwari, Orient Paper Mills Sramik Congress v. State of Orissa and Ors. Moolchand Kairati Ram Hospital Karmachari Union v. Labour Commissioner and Ors., and the case of Secretary, India Tea Association v. Ajit Kumar Barat and Ors., all the decisions are applicable in this case. It is open for the Court sitting in writ jurisdiction to examine as to whether the Central Government acted in accordance with the provisions of Clause (d) of Sub-section (1) of Section 10 of the said Act to refer industrial dispute to a Tribunal by passing an order of reference under the above section. In doing so the Court can examine the decision-making process of the appropriate Government by verifying the records whether there is formation of the opinion as to the fact that industrial dispute exists or is apprehended in between the parties.
29. The position of law in my opinion, thus is clear that it is obligatory for an employee to raise dispute with the employer before setting in motion both the administrative and adjudicatory mechanism under the Act. The introduction of Section 2A of the Act cannot be construed to have diluted this fundamental requirement. The ratio of the decision of the Hon'ble Supreme Court in the case of Sindhu Resettlement (supra) still holds the field on this point.
30. I shall now address the issue as to whether there was legal necessity on the part of the Conciliation Officer to come to a satisfaction that there existed "industrial dispute" or not, upon investigating the matter, or mere lapse of two months time after grievance was raised with him made it obligatory for him to issue the pendency certificate. This issue is of critical importance in the present case, in the light of specific assertion made on behalf of the petitioners that the respondent No. 4 had never raised any grievance with them before approaching the Conciliation Officer, and on the strength of such assertion, Mr. Sengupta has contended that no industrial dispute exists between the petitioner and the respondent No. 4 warranting intervention by the Labour Court.
31. There are authorities for the proposition that in cases where a dispute is referred to the Tribunal or the Labour Court by the appropriate government, prior to referring the dispute, the latter must form an opinion as regards existence of industrial dispute. An Hon'ble Division Bench of this Court held in the case of Management, Ludlow Jute Mills (supra):
The law is clear and well settled. A reference can be made to the Industrial Tribunal by the State Government on the basis of the failure report by the Conciliation Officer, provided the State Government forms an opinion that an industrial dispute exists and the same is expedient to be referred to the Tribunal. It is also a settled proposition of law that an industrial dispute comes to existence only when a demand is made by the workmen to the employer and such demand remains unresolved giving rise to a dispute between the workmen and the employer....
32. In the case of Standard Chartered Grindlays Bank Ltd. (supra) the requirement of formation of opinion on the part of the appropriate government on the point of existence of industrial dispute before making an order of reference was held to be mandatory under Section 12(5) of the Act. The Court observed:
12. Therefore, the provisions of Sub-section (5) of Section 12 of the said Act cast an obligation upon the appropriate Government to be satisfied that there is case for reference, and in order to refer a dispute to a Tribunal in accordance with the provisions of Section 10 of the said Act. the appropriate Government must form an opinion that the dispute is an industrial dispute or difference as defined in Sub-section (k) of Section 2 of the said Act read with the provisions of Section 2-A of the said Act. In order to come within the purview of the provisions of Section 2-A, it must be a case of dismissal etc., of an individual workman as defined in Sub-section (s) of Section 2 of the said Act.
Similar view has been taken in another decision of an Hon'ble single Judge of this Court in the case of Capital Ltd. (supra).
33. The present case however relates not to an order of reference, but the Labour Court in this matter has been set in motion by a pendency certificate issued by the Conciliation Officer under the provisions of Section 10(1B) of the Act. There is a time frame provided under this section, being sixty-days, and if no settlement is arrived at within that period, the Conciliation Officer is bound to issue the pendency certificate.
34. The main contention of the respondents is that the time-frame is the determinant factor of Section 10(1B) of the Act, and if the prescribed time limit lapses, the Conciliation Officer is under statutory duty to issue the certificate contemplated under the said provision. A workman has also been empowered to approach the adjudicatory authority directly, if the certificate is not issued within seven days of making of application on lapse of sixty-days from the date of receipt of the representation by the Conciliation Officer. Thus, according to the learned Counsels appearing for the respondents, even if the Conciliation Officer does not come to satisfaction as regards existence of industrial dispute within the prescribed period of sixty days, then also he is bound to issue the pendency certificate. In the absence of such certificate, the workman can approach the Labour Court or Tribunal, whichever may be the proper forum in the case directly and it would be open to the employer to make his grievance before the Tribunal or Labour Court that there exists no industrial dispute in such a case.
35. But do the provisions of Section 10(1B) of the Act dispense with the necessity of formation of opinion on the part of the Conciliation Officer as regards the existence of an industrial dispute and enables a workman to have direct access to the adjudicatory authorities, being the Tribunal or the Labour Court merely on lapse of the prescribed time?
36. Before I decide this question, I shall examine the argument of the respondent No. 4 that in fact there has been compliance of all the provisions, of Rule 12A, and satisfaction can be implied on the point of existence of dispute. Mr. Das has also advanced similar argument.
37. I do not accept the contention of Mr. Bhattacharyya" that the expression "investigation" as used in Rule 12A only implies collection of evidence and the satisfaction contemplated in the same Rule can be implied satisfaction. The case relied on by Mr. Bhattacharyya on this point is a decision of the Hon'ble Supreme Court in the case of Union of India v. W.N. Chadda (supra). In this decision the Hon'ble Supreme Court was dealing with the question as to whether an accused has any right of prior opportunity of hearing at the stage of investigation under Chapter XII of the Code of Criminal Procedure. The Hon'ble Supreme Court held that barring certain exceptions, the accused has no right to participate during the course of an investigation of a case instituted on a police report or otherwise till the investigation culminates in filing of final report under Section 173(2) of the Code or till the process is issued under Section 204, as the case may be. In this case, the Hon'ble Supreme Court held:
Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but where the occasion for its attraction exists at all.
38. But there is a distinction in the meaning of the expression "investigation" in Chapter XII of the Code and Rule 12A of the Rules. The investigation contemplated in Rule 12A is for a specific purpose, and the purpose is that the Conciliation Officer should be satisfied that an industrial dispute exists. This investigation is not for the purpose of only collection of evidence. The main complain of the petitioners in this case is that the Conciliation Officer had skipped his statutory duty of being satisfied about existence of industrial dispute. I am not examining here the manner in which he conducted investigation, but the deficiency in discharge of his duty I find in this case is in recordal of his satisfaction that an industrial dispute exists. I do not think such satisfaction could be implied in this case, as from the records produced by Mr. Das, I could not find any material from which it could be inferred that the Conciliation Officer had made any attempt to collect any evidence or applied his mind on the rival contentions, barring receipt of communications from the respective parties, and passing it on to the other party under cover of a letter.
39. I am also of the opinion that the satisfaction contemplated in Rule 12A could not mean implied satisfaction, to be inferred from the actions of the authority concerned. If a statute requires satisfaction on the part of an authority on certain issue, it inevitably follows that before being satisfied, he must have considered the competing factors and surrounding circumstances before reaching conclusion, and such mental exercise must reflect on the records, along with his conclusion. This is a fundamental principle of administrative law and I find in this case that there has been a breach on compliance of such requirement.
40. Now the question which arises is that in the event there is no satisfaction on the part of Conciliation Officer about existence of industrial dispute, is he bound to issue the certificate of pendency on the strength of which the Labour Court or the Industrial Tribunal will issue notice for hearing on framing of issues? The law laid down by the Hon'ble Supreme Court in the case of Sindhu Resettlement (supra) is that before a dispute arising from grievance of a workman transforms into an industrial dispute, the same should be raised with the employer. In this case the Hon'ble Supreme Court held:
A mere demand to a Government, without a dispute being raised by the workmen with their employer cannot become an industrial dispute. Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the Tribunal, had ever existed between the appellant Corporation and the respondents and the State Government in making a reference obviously committed an error in basing its opinion on material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement....
41. Section 10(1B) of the Act in reality provides a fast-track procedure for resolving an industrial dispute by the adjudicatory mechanism without keeping it pending for a long time at the conciliation stage. If the time-frame lapses without there being any settlement, the parties to the dispute have been authorised to approach the Labour Court or the Tribunal directly, with a certificate of pendency issued by the Conciliation Officer, or even without such certificate in the circumstances specified in the Act.
42. But the right of such parties to approach the Labour Court (or the Tribunal) do not, in my opinion, accrues only from the fact of lapse of time frame, if no industrial dispute exits. Rule 12A also specifically lays down that the Conciliation Officer must investigate into the matter and come to a finding that an industrial dispute exists, and if he is satisfied that an industrial dispute exists, he shall try to make the parties arrive at a settlement. In my opinion, the time frame envisaged in Section 10(1B) would come into operation only if there is a subsisting industrial dispute. This is apparent from the provisions of Sub-section (a) of Section 10(1B), which contemplates subsistence of an industrial dispute in a conciliation proceeding relating to an individual workman to set in motion the mechanism provided in that section. Thus, this sub-section envisages existence of an industrial dispute, and only if there is a subsisting industrial dispute, the provisions prescribed for redressal of dispute contemplated in that section would come into operation.
43. Rule 12A, which stipulates the procedural mechanism for proper application of Section 10(1B) casts a duty on the Conciliation Officer to investigate and satisfy himself that there is an industrial dispute, and once he is satisfied to that effect, then only he is to take measures for conciliation. The time frame stipulated therein cannot be applied in the event the fundamental requirement about satisfaction of the Conciliation Officer on existence of an industrial dispute is not complied with.
44. The steps specified in Rule 12A are interlinked, and one step comes into operation only after the exhaustion of the other, in the sequence prescribed in the said Rules. First comes the duty of the Conciliation Officer to investigate into the matter and satisfy himself that there is an industrial dispute. Thereafter, he is to take step for inducing the parties to come to a speedy, fair and amicable settlement of the dispute, if the dispute, is not settled within sixty days from the date of raising the dispute the right to apply for certificate accrues. Just because no time frame is provided within which the Conciliation Officer has to arrive at his satisfaction that an individual dispute exists does not mean that even without such satisfaction the right would accrue to a party to apply before the Labour Court or the Tribunal. Any contrary intention would render Sub-clause (1) of Rule 12A otiose, and principles of statutory construction go against an interpretation of a statutory provision which would make part of a statute otiose.
45. In Sub-clause (a) of Section 10(113), the party raising the dispute is empowered to apply before the Conciliation Officer for a certificate about the pendency of the conciliation proceeding if no settlement is arrived at within sixty days from the date of raising of dispute. Thereafter, the mandatory time-frame sets in its course. In this sub-clause, however, the expression "dispute" has been used twice. In order to attract the provisions of this sub-section, there must be a subsisting industrial dispute in relation to a single workman in which a conciliation proceeding is set in motion. This is apparent from the said provision, in which the first time there has been use of the expression "dispute", in conjunction with the expression "industrial". The expression "industrial dispute" as used in the said provision would be an "industrial dispute" within the meaning of Section 2(k) of the Act. The second time the word "dispute" has been used in Section 10(1B)(a) is in relation to counting of the period of sixty days, and here the expression is used in isolation, as opposed to its use in conjunction with the word "industrial" in the first part of this sub-clause. Here, the phrase "raising of the dispute" appears to imply making one's grievance known to the Conciliation Officer. Thus, the legislative intent is clear that there must be pre-existence of an industrial dispute before the single workman makes his grievance known to the Conciliation Officer. The "industrial dispute" does not come into existence from the date of making the grievance known to the Conciliation Officer.
46. The necessity of pre-existence of an industrial dispute to take the aid of the resolution mechanism provided in Section 10(1B) of the Act is also apparent from the provisions of Rule 12A, which lays down the implementation process of this resolution mechanism. As per the said Rule, the Conciliation Officer is first required to investigate the matter. Then he is required to satisfy himself that an industrial dispute exists. It is only after that he is required to apply his mediation skill. However, under the aforesaid provisions, if this entire process is not completed within sixty days, a party to the dispute becomes entitled to approach the Labour Court or the Tribunal with the pendency certificate, or even without it, in the manner and under the circumstances provided in the statute.
47. But would not such a construction, i.e. mandatory requirement on the part of the Conciliation Officer to be satisfied about the existence of an industrial dispute before issuing the pendency certificate render the provisions of Sub-clause (b) of Section 10(1B) otiose? I propose to examine the subject-controversy from this perspective now. There is no time-frame provided in the said Rules within which the Conciliation Officer has to complete his investigation and come to satisfaction about existence of "industrial dispute". And under the provisions of Section 10(1B), the right conferred on a party to the dispute to approach the Labour Court or Tribunal accrues after sixty days from the date of making one's complaint known to the Conciliation Officer, if the same does not yield any result.
48. In my opinion, however, just because the time-frame has been provided with the date of filing of the application as the starting date, the said provision cannot be construed to have done away with the requirement of pre-existence of an industrial dispute altogether, before the Conciliation Officer starts taking steps to induce the parties to come to a settlement. Just because no time-limit is given to the Conciliation Officer, it cannot mean that such officer can altogether choose to ignore to discharge his statutory duty. The mandate of the statute is that within the time-frame prescribed, he shall at least determine that there exists an industrial dispute. Otherwise, the adjudicatory mechanism under the Act could be propelled into motion even without raising of an industtial dispute, which is impermissible in view of the ratio of the decision of the Hon'ble Supreme Court in the case of Sindhu Settlement (supra). In the event the Conciliation Officer fails to discharge his statutory duty in arriving at a satisfaction within the time-frame, then all the subsequent steps would be illegal, including the issuance of the certificate of pendency.
49. In my opinion, the principle of construction vis-a-vis a beneficial statute cannot be applied in this case, because in this case, I do not find the aforesaid provisions of law can be construed in any manner other that the manner in which it has been interpreted in the preceding paragraphs. The legislative provisions, as construed in various authorities I have discussed in the earlier part of this Judgment are clear on the proposition that there must exist an industrial dispute before the matter reaches the Labour Court or the Tribunal and interpreting the said provisions in any other manner would cause violence to the express provisions of the statute. The respondents are seeking to construe the said provision on the basis that an authority (being the Conciliation Officer in this case) would default in discharge of his statutory duties and the time-frame is provided on the presumption of such default. Such construction which would create a fundamental breach of the statute. I am unable to accept this submission.
50. It is always not necessary for the legislature to always bind a statutory authority with a time-frame within which such authority is to discharge his statutory duty. In the context of the present case, a composite reading of the said provisions, i.e. Section 10(1B) of the Act and Rule 12A would reveal the duty of the Conciliation Officer is divided in two parts, one without a time frame and the other with a time frame, with a further provision as to what would happen if the time frame lapses. The overall scheme of the statute, however, provides for filtering of a dispute at least at one level for the limited purpose of ascertaining if it is an industrial dispute before the dispute can reach the litigation stage in the Labour Court or the Tribunal. When construed in that light, in my opinion, it cannot be concluded that the part of the duty the performance for which no time frame has been prescribed would be of secondary importance, and the part of the duty whose performance is qualified with a time frame would have the primacy while interpreting the said provision. When construed in that light, it would be a reasonable expectation that a Conciliation Officer being aware of the time-frame provided in the said provision, he would discharge his-duties in such manner that the statutory provision is complied with within the timeframe. As per the provision of Section 10(1b)(b), the obligation of the Conciliation Officer to issue the certificate arises only if no settlement is arrived at within sixty-days. This implies that by that time, the Conciliation Officer at least would have commenced the conciliation proceeding upon making requisite investigation after having been satisfied about existence of an industrial dispute. In my opinion, if the Conciliation officer fails to come to a satisfaction as to whether industrial dispute exists or not within a reasonable time, an aggrieved party may invoke the Constitutional Writ Jurisdiction to ensure compliance of such statutory duty. But the aforesaid provisions relating to time frame cannot bypass the requirement of recordal of satisfaction as regards existence of an industrial dispute.
51. Argument was also advanced on behalf of the respondent No. 1 that Sub-clause (1) of Rule 12A is applicable only for the purpose of inducing the parties to come to a speedy, fair and amicable settlement, but if no settlement is arrived at, the said provision becomes inoperable. This submission has to be rejected straightway, as I have already observed that the various sub-clauses of Rule 12A are interlinked, and one comes into operation only after the exhaustion of the steps contemplated in the preceding clause.
52. Mr. Sengupta had also submitted that the respondent No. 4 had not raised any dispute with the employer and hence there was no industrial dispute in existence, and on this ground the proceedings ought to be quashed. Rival argument was that the dispute raised by the respondent No. 4 by this letter of 15th September, 2005 had continued and there was no necessity of raising of fresh dispute. I would not like to enter into the controversy as to whether dispute was raised by the respondent No. 4 or not, since the statute has vested the power to decide dispute of this nature with the Conciliation Officer under Rule 12A. I also decline to consider the plea of the respondent. No. 4 that the medical test report was erroneous as no ossification test was conducted, in support of which Mr. Bhattacharyya relied on certain authorities. That issue may be decided by the appropriate authority at the appropriate stage if necessary.
53. Next comes the question as to whether by appearing before the Labour Court and obtaining adjournment of the proceeding, the petitioners could be said to have waived their right to raise objection about the maintainability of the proceeding? In my view, however, the principle of waiver or acquiescence would not apply in the present case, since the proceeding has been challenged on jurisdictional ground. Since the objection of the petitioners go to the very root of the proceeding, I do not think they can be precluded from raising this issue before this Court.
54. In the light of above facts and the legal position, I am of the opinion that issuance of the certificate, which is annexure "P8" to the writ petition and the notice issued by the Labour Court, which is annexure "P10" to the writ petition cannot be sustained as the pendency certificate was issued by the respondent No. 2 without conducting any investigation and without recording his satisfaction about the existence of an industrial dispute. Annexures "P8" and "P10" to the writ petition accordingly shall stand quashed.
55. I am also of the view that the grievance of the workman also cannot be kept pending for an indefinite period. Accordingly, I direct the respondent No. 2 to examine the case and records as to whether there subsists an "industrial dispute" between the petitioner and the respondent No. 4 within a period of four weeks from the date of communication of this order. Further steps in the conciliation proceeding may be taken on the basis of such decision of the part of the Conciliation Officer.
56 The writ petition is allowed in the above terms.
There shall, however, be no order as to cost.
Later:
Let an urgent xerox certified copy of this order, if applied for, be supplied to the parties forthwith, subject to compliance with all requisite formalities.