Gauhati High Court
The Workman Anuj Borkotoky vs The Management Of Rajgarh Tea Estate And ... on 31 March, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010125842017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1932/2017
THE WORKMAN ANUJ BORKOTOKY
S/O LT. ROBIN BORKOTOKY R/O SANTIPARA L SAIKIA ROAD, P.O. and P.S.
TINSUKIA, PIN - 786125, DIST. TINSUKIA, ASSAM
VERSUS
THE MANAGEMENT OF RAJGARH TEA ESTATE and ANR.
P.O. and P.S. RAJGARH, PIN - 786611, DIST. DIBRUGARH, ASSAM
2:THE STATE OF ASSAM
REP. BY THE SECRETARY and COMMISSIONER
LABOUR DEPARTMENT
DISPUR
GUWAHATI - 78100
Advocate for the Petitioner : MR.P KALITA
Advocate for the Respondent : MRS.A DASSR-1
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 31-03-2022 Heard Ms. A. Bhattacharjee, learned counsel for the petitioner and Mr. A. Dasgupta, learned Sr. counsel appearing on behalf of the respondent No. 1. Also heard Ms. B. Das, learned counsel appearing on behalf of the respondent No. 2 i.e. the State of Assam, Labour Page No.# 2/6 Department.
2. The present writ petition has been filed challenging the order dated 05.11.2015 passed by the Labour Court, Dibrugarh in Industrial Disputes Case No. 5/2015 whereby the Labour Court held that it had no jurisdiction to adjudicate the Reference and thereby, granting the liberty to the petitioner to approach the competent authority i.e. the appropriate Government which is the Central Government.
3. The brief facts of the instant case are that the petitioner was a permanent employee of the respondent No. 1 Tea Estate and he was initially appointed as a learner on 31.05.2005. Thereafter, he was appointed as a probationary 3rd Clerk. On the basis of certain allegations, a charge-sheet was issued on 02.05.2013 upon the petitioner by the respondent No. 1 to which the petitioner submitted a written explanation on 10.05.2013 denying the said allegations. A domestic enquiry was held on 22.06.2013, which the petitioner alleges to be in complete violation of the principles of natural justice. The Enquiry Officer gave a finding on 10.07.2013 holding that the petitioner was guilty of gross misconduct. Accordingly, the petitioner was dismissed from service on 17.10.2013. At this stage, it may be relevant herein to mention that a provision i.e. Section 2A(2) was inserted vide the Industrial Disputes (Amendment) Act, 2010 whereby notwithstanding anything contained in Section 10 of the Industrial Disputes Act, 1947 (for short "the Act of 1947") any workman as specified in sub-Section (1) of Section 2A may make an application directly to the Labour Court or the Tribunal for adjudication of the dispute referred to therein after the expiry of 45 days from the date he had made the application to the Conciliation Officer of the appropriate Page No.# 3/6 Government for conciliation of the dispute and in respect of such application, the Labour Court or the Tribunal have the power and jurisdiction to adjudicate upon the dispute as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of the Act of 1947.
4. In view of the said provision, the petitioner filed an application before the Labour Inspector-cum-Conciliation Officer, Dibrugarh for conciliation of the matter and as the conciliation proceedings failed, the petitioner by virtue of Section 2A(2) of the Act of 1947, filed an application before the Labour Court, Dibrugarh praying for setting aside the dismissal order dated 17.10.2013 and the said application was registered and numbered as Industrial Disputes Case No. 5/2015.
5. The respondent No. 1 herein, appeared before the Labour Court, Dibrugarh and filed an application questioning the jurisdiction of the Labour Court in entertaining the dispute. The point urged in the application challenging the jurisdiction was that the appropriate Government was the Central Government and as such, the Labour Court did not have the jurisdiction to decide the said dispute.
6. The Labour Court vide an order dated 05.10.2015 held that the said Labour Court did not have the jurisdiction to adjudicate the Reference and consequently dismissed the same. However, liberty was granted to the petitioner to approach the competent authority i.e. the appropriate Government-the Central Government.
7. At this stage, it may be relevant herein to mention that a perusal of the order dated 05.10.2015 shows that the Labour Court had decided the dispute on the basis of an amendment being carried out to Section 2(a) Page No.# 4/6
(i) vide the Industrial Disputes (Amendment) Act, 2010 whereby to the definition of "appropriate Government" the following portion was added:
"major port, any company in which not less than fifty-one per cent. of the paid-up share capital is held by the Central Government, or any corporation, not being a corporation referred to in this clause, established by or under any law made by Parliament, or the Central public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the Central Government, the Central Government."
8. The petitioner being aggrieved has filed the instant writ petition challenging the said order dated 05.10.2015 passed in Industrial Disputes Case No. 5/2015. During the pendency of the instant proceedings the Repealing and Amending Act, 2016 (for short 'the Act of 2016') was passed whereby in terms with Section 2 of the Act of 2016 the enactments specified in the 1st Schedule to the said Act of 2016 were repealed to the extent mentioned in the 4th column. From a perusal of the 1st Schedule, it would appear that the Industrial Disputes (Amendment) Act, 2010 as a whole was repealed.
9. Consequently in view of the repeal vide the Act of 2016 to the Industrial Disputes (Amendment) Act, 2010, Section 2A(2) and the above quoted portion of the definition of "appropriate Government" as contained in Section 2(a)(i) stood repealed. As a consequence of the same for the purpose of the disputes so raised by the petitioner, the Central Government is no longer the "appropriate Government" in terms Page No.# 5/6 with Section 2(a)(i) of the Act of 1947. Further to that as vide the impugned order dated 05.10.2015 the proceedings before the Labour Court stood culminated upon the dismissal of the Industrial Disputes Case No. 5/2015 initiated on the basis of Section 2A(2) and this being not an appellate jurisdiction, the saving clause stipulated in Section 4 of the Act of 2016 cannot save the jurisdiction conferred upon the Labour Court in terms with Section 2A(2) in respect to the instant case.
10. Be that as it may, the filing of the application before the Labour Court challenging the dismissal of the petitioner and thereafter filing of the instant writ petition shows that an industrial dispute still exists between the petitioner and the Respondent No. 1 and as such this Court is of the opinion and consequently directs the respondent No. 2 i.e. the State Government to consider the case of the petitioner in terms with Section 10 of the Act of 1947 for making a reference.
11. Taking into consideration that the petitioner was dismissed from service in the year 2013, industrial dispute still continues between the petitioner and the respondent No. 1, the Labour Department of the Government of Assam should complete the exercise of their jurisdiction under Section 10 of the Act of 1947 within a period of 2(two) months from the date a certified copy of this order is served upon to the Commissioner and Secretary, Government of Assam, Labour Department.
12. With above observations the instant petition stands disposed.
JUDGE Page No.# 6/6 Comparing Assistant