Delhi District Court
Ashish Agarwal vs . M/S Jukaso Foods & Anr. Did No. 216/11 on 11 March, 2014
Ashish Agarwal Vs. M/s Jukaso Foods & Anr. DID No. 216/11
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI .
DIRECT INDUSTRIAL DISPUTE (DID No. 216/11)
UNIQUE CASE ID No. 02402C0353172011
In the matter of:
Ashish Agarwal S/o Mr. Shyam Sunder Agarwal
R/o H. no. 171, Bada Bazar, Jhansi.
................Claimant.
V/s.
1.M/s Jukaso Foods 50, Sunder Nagar, Mathura Road, New Delhi.
Also at:
Jukaso Foods (Foods Division) Khasra No. 110/18, Min - I - 13, Village Mundka, New Delhi - 110041
2. M/s Parle Agro Pvt. Ltd.
Western Express Highway, Sahar - Chakala Road, Parsiwada, Andheri (E), Mumbai - 400099 ........Managements.
Date of Institution : 17.11.2011 Date of reserving for award : 11.03.2014 Date of award : 11.03.2014 AWARD :
1. Workman filed this direct industrial dispute on 17.11.2011 alleging illegal / unjustified termination of his services by the management. Allegedly, workman was working w.e.f. 15.09.2009 and his services were terminated illegally / unjustifiably on 28.07.2011. Management, allegedly, violated the provisions of section 25F of the Industrial Disputes Act, 1947 while terminating the services of the workman. Workman Page 1 to 6 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/11.03.2014 Ashish Agarwal Vs. M/s Jukaso Foods & Anr. DID No. 216/11 served legal notice dated 01.08.2011 upon the management no.1 and, as the management no.1 neither replied the said notice nor reinstated the workman, workman filed this direct industrial dispute before the Court regarding alleged illegal termination of his services by the management.
2. Both the managements contested the claim of the workman by filing their detailed WSs. Workman filed separate rejoinders to the WSs of the managements. On 19.07.2012, following issues were framed:
(i) Whether there existed no relationship of "an employer and an employee"
between the Managements and the workman? OPW/OPM.
(ii) Whether the services of the workman were terminated illegally and / or
unjustifiably by the Management? OPW
(iii) Relief, if any.
3. Workman examined himself as WW1 Ashish Agarwal. Managements examined M1W1 Mr. Ashish Saxena and M2W1 - Mr. Sanjeev Kiyawat.
4. On 01.03.2014 case was fixed for final arguments and Court passed the following order: "01.03.2014 Present: Workman with Mr. A. K. Sharma, advocate.
Mr. Rajesh Narang, Advocate for the management no.1.
Mr. Vijender Kumar, Advocate for the management no.2.
I have heard ld. counsel for the parties at length. It is revealed that it is a direct industrial dispute filed on 17.11.2011. However, there is no compliance of Section 2 A (2) of the I. D. Act, 1947.
Put up on 11.03.2014 for consideration on the point of the effect of non - compliance with the provisions of Section 2A(2) of the I. D. Act, 1947 on this direct industrial dispute."
5. ARGUMENTS ON MAINTAINBILITY ISSUE.
Page 2 to 6 (ANAND SWAROOP AGGARWAL)
POLC- XI/KKD/DELHI/11.03.2014
Ashish Agarwal Vs. M/s Jukaso Foods & Anr. DID No. 216/11
I have heard Sh. A. K. Sharma, Adv. for workman, Mr. Rajesh Narang, Advocate for the management no.1 and Sh. Deep Chand, Advocate proxy counsel for Mr. Vijender Kumar, Adv. for management no.2 on the issue referred to in order dated 01.03.2014. Issue referred in the order dated 01.03.2014 pertains to maintainability / non- maintainability of this direct industrial dispute on account of non compliance with the provisions of section 2A (2) of the Industrial Disputes Act, 1947. Ld. counsel for workman submitted that liberty may be given to the workman to raise his dispute again, and again approach the Court after following the procedure as prescribed by the provisions of Industrial Disputes Act, 1947. Further, ld. counsel for workman submitted that order may be passed so that workman does not suffer on account of law of limitation for raising the industrial dispute. On the other hand, ld. counsel for the managements submitted that for want of compliance of provisions of section 2 A (2) of the Industrial Disputes Act, 1947 direct industrial dispute filed by the workman is not at all maintainable and same is liable to be rejected.
6. DECISION ON MAINTAINABILITY ISSUE.
Section 10 (4A) of the Industrial Disputes Act, 1947 was inserted as a Delhi Statement Amendment vide Delhi Act 9 of 2003, section 2 (w.e.f. 22/8/2003) in the following terms : "(4A) Notwithstanding anything contained in section 9C and in this section, in the case of a dispute falling within the scope of section 2A, the individual workman concerned may, within twelve months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Disputes (Delhi Amendment) Act, 2003, whichever, is later, apply in the prescribed manner, to the Labour Court or the Tribunal, as the case may be, for adjudication of the dispute and the Labour Court or Tribunal, as the case may be, shall dispose of such application in the same manner as a dispute referred under sub Page 3 to 6 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/11.03.2014 Ashish Agarwal Vs. M/s Jukaso Foods & Anr. DID No. 216/11 section (1)."
Section 2A(2) of the Industrial Disputes Act, 1947 was inserted as a Central/Parliamentary Amendment vide The Industrial Disputes (Amendment) Act 2010 (24 of 2010) (w.e.f. 15.9.2010) in the following terms : "(2) Notwithstanding anything contained in section 10, any such workman as is specified in subsection (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of fortyfive days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers 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 this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government."
Both the abovesaid provisions of law deal with the same subject matter (i.e. filing of dispute of an individual workman arising out of his discharge dismissal, retrenchment or termination directly before the Labour Court or Tribunal). As per section 10(4A) of the Industrial Disputes Act, 1947 such workman can directly file his claim in the Labour Court or the Tribunal. But as per section 2A(2) of the Industrial Disputes Act, 1947 workman has to firstly file an application to the Conciliation Officer of the appropriate Government for conciliation of the dispute and he can file his claim before the court after the expiry of 45 days from the date of his moving / filing of abovesaid application to the Conciliation Officer. In terms of section 2A(2) of the Industrial Disputes Act, 1947 evidently, workman cannot file his claim before the Labour Court or the Tribunal without complying with the provisions of section 2A(2) of the Industrial Disputes Act, 1947 (i.e. filing an application to the Conciliation Officer of the appropriate Government for conciliation of the dispute and, also, waiting for expiry of 45 days after the filing of Page 4 to 6 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/11.03.2014 Ashish Agarwal Vs. M/s Jukaso Foods & Anr. DID No. 216/11 such an application). It is noted that provisions of section 2A(2) of the Industrial Disputes Act, 1947 overrides the provisions of section 10(4A) of the Industrial Disputes Act, 1947 in as much as section 2A(2) of the Industrial Disputes Act, 1947 starts with a non obstante clause to the effect that, "... Notwithstanding anything contained in section 10.......". Section 10 obviously includes section 10 (4A) of the Industrial Disputes Act, 1947 inserted through State Amendment w.e.f. 28.02.2003 vide Delhi Act 9 of 2003, sec. 2. Also, section 10(4A) of the Industrial Disputes Act, 1947 & 2A (2) of the Industrial Disputes Act, 1947 can be said to be repugnant to each other in as much as if a claim is filed strictly in terms of section 10(4A) of the Industrial Disputes Act, 1947 such a claim would not be complying with the provisions of section 2A(2) of the Industrial Disputes Act, 1947 as to filing application to the Conciliation Officer as mentioned in section 2A(2) of the Industrial Disputes Act, 1947. In terms of provisions of Article 254 of the Constitution of India, section 10(4A) of the Industrial Disputes Act, 1947 being a State Amendment cannot be given effect to, to the extent the same is repugnant to the provisions of section 2A(2) of the Industrial Disputes Act, 1947. Thus, after the coming into force of section 2A(2) of the Industrial Disputes Act, 1947. Thus after the coming into force of section 2A(2) of the Industrial Disputes Act, 1947 w.e.f. 15.9.2010 by virtue of the provisions of The Industrial Disputes Act (Amendment) Act, 2010 (24 of 2010) (Central/ Parliamentary Enactment), direct industrial dispute can be filed in the Labour Court or the Tribunal only in compliance with the provisions of section 2A(2) of the Industrial Disputes Act, 1947 & not otherwise. In this case direct industrial dispute was filed on 17.11.2011 & there is not even an averment that claimant before approaching the Labour Court filed an application before the Conciliation Officer for conciliation of the dispute. Also, during trial no evidence has been led to prove compliance with the provisions of section 2A(2) of the Industrial Disputes Act, 1947.
Page 5 to 6 (ANAND SWAROOP AGGARWAL)
POLC- XI/KKD/DELHI/11.03.2014
Ashish Agarwal Vs. M/s Jukaso Foods & Anr. DID No. 216/11
Thus, this direct industrial dispute is held to be not maintainable for want of compliance with the provisions of section 2A(2) of the Industrial Disputes Act, 1947 and is liable to be dismissed. It is noted that provisions of the Limitation Act, 1963 does not apply to proceedings before industrial adjudicators under the provisions of the Industrial Disputes Act, 1947. Also, it is noted that even after the dismissal of this direct industrial dispute filed by the workman without complying with the provisions of section 2A(2) of the Industrial Disputes Act, 1947, workman can always approach the Court again after complying with the provisions of the Industrial Disputes Act, 1947 either by way of direct industrial dispute or as a reference case. As the claim filed by the workman has been found to be not maintainable for want of compliance with the provisions section 2A(2) of the Industrial Disputes Act, 1947 and workman can always again approach the Court for the adjudication of same dispute, this Court does not think it appropriate to give its issuewise findings on merits. Alternately, as direct industrial dispute has been held to be not maintainable for compliance with the provisions section 2A(2) of the Industrial Disputes Act, 1947, this Court can be said to be having no jurisdiction to express its opinion on merits. This direct industrial dispute filed by the workman is, accordingly, hereby dismissed as not maintainable.
7. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 11.03.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
Page 6 to 6 (ANAND SWAROOP AGGARWAL)
POLC- XI/KKD/DELHI/11.03.2014