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Delhi District Court

Shri Avinash Mahajan S/O Shri Chunni Lal vs The Deputy Commissioner on 11 July, 2013

                         IN THE COURT OF SHRI SANJAY SHARMA
                        PRESIDING OFFICER : LABOUR COURT­XIX  
                            KARKARDOOMA COURTS : DELHI.

LIR/D No. 1623/2011
Unique Case ID No. 02402C0 312432011

Shri Avinash Mahajan S/o Shri Chunni Lal
R/o B­A/493, DDA Janta Flats,
Trilokpuri,  Delhi - 110 091            .................CLAIMANT
      Versus

1.

The Deputy Commissioner Municipal Corporation of Delhi CSE Department, Shahdara (South) Zone, Vishwas Nagar, Delhi

2. The Commissioner Municipal Corporation of Delhi MCD Building, Behind PS Kamla Nagar, Delhi ...............MANAGEMENT Date of institution of the case : 07.10.2011 Date of reserving the Award : 04.7.2013 Date of passing the Award : 11.7.2013 (Claim u/s 10 (4A) of the Industrial Disputes Act, 1947) A W A R D The claimant has filed his statement of claim directly U/S 10 (4A) of the ID Act wherein he alleged that he joined the management LIR/D No. 1623/2011 1 of 12 initially for 89 days and sanction of the same was continued and renewed from time to time. He was allowed in employment vide letter dt. 21.7.2005 without any break till 20.1.2010 as Safai Karamchari and his last drawn salary was Rs. 4083/­ per month. He alleged that he was removed/dismissed from his services w.e.f. 20.1.2010 without any notice. Hence, through this claim the workman has prayed for setting aside of the dismissal order issued by the management and to pass an award for reinstatement in service with continuity of service, back wages with all consequential benefits.

2. The management appeared and opposed the claim by filing WS wherein it was submitted that the present claim is time barred as per Section 10 (4A) of the ID Act as the same has been filed after lapse of one year. It was further asserted that the present claim is also not maintainable as per provisions of Section 2­A(2) of the ID Act as he had not approached Conciliation Officer prior to filing of the present claim. It was further asserted that the claimant got himself engaged as substitute Safai Karamchari and said fact was brought to the notice of management by one Navjyoti MCD Safai Karamchari. The Management made a vigilance investigation and found 21 such Safai Karamcharis including the claimant were found to be forged and fabricated and accordingly the services of claimant and 20 others were discontinued vide order dt. 19.1.2010. It was submitted that his termination was not retrenchment as defined in Section LIR/D No. 1623/2011 2 of 12 2(oo) of the ID Act and that his engagement as substitute Safai Karamchari was covered under Section 2(oo)(bb) of the ID Act. Other allegations were denied specifically and categorically.

3. Workman filed rejoinder to the said written statement and reaffirmed the averments as made in the statement of claim. From the pleadings of the parties, following issues were framed on 15.10.2012 as under :­ ISSUES :­

1. Whether the present claim is not maintainable in view of the amended provisions of Section 2­A(2) of the ID Act?OPM

2. Whether the workman was substitute Safai Karamchari and therefore, the present claim is not maintainable? OPM

3. Whether the services of the workman were of contractual nature and the claim is barred under Section 2(oo)(bb) of the ID Act? OPM

4. Whether the workmen completed 240 days in service in the 12 months preceding his termination? OPW

5. Whether the services of the workman were terminated illegally and/or unjustifiably by the management? OPW

6. Relief

4. The matter was fixed for workman's evidence. However, the management moved an application for framing of additional issue raising legal objection that the claimant could not have filed the present claim directly before the Court before exhausting conciliation proceedings for LIR/D No. 1623/2011 3 of 12 45 days in terms of the provisions contained in Section 2A(2) of the ID Act, as amended by the Central Act No. 24 of 2010 (w.e.f. 15.9.2010). Issue in this regard was already framed as Issue No. 1. Hence, application has become infructuous. However, issue No. 1 was treated as preliminary issue.

5. I have heard Shri Gopi Chand ­ Ld. Authorized Representative for the workman and Ms. Rajni ­ Ld. AR for the Management on the preliminary issue.

6. Before 22.8.2003, there was no provision in the Act for filing of any claim/dispute directly before the Court and the only way to approach the Court was through reference made by the appropriate Government.

7. With effect from 22.8.2003, Section 10(4A) was inserted in the Act by the Delhi State (hereinafter referred to as 'the State amendment') which is as follows :

10 (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 LIR/D No. 1623/2011 4 of 12 termination or the date of commencement of the Industrial Dispute (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 sub­section (1)".

8. The following amendments were carried out by the Parliament in the Act which came into force w.e.f. 15.9.2010 (hereinafter "the Central amendment") :­ "Section 2A of the principal Act shall be numbered as sub­section (1) thereof and after sub­section (1) as so numbered, the following sub­sections shall be inserted, namely :­ "(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 three months 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 be the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such LIR/D No. 1623/2011 5 of 12 adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.

(3)The application referred to in sub­section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub­section (1)."

9. Admittedly, in the entire claim, it is not stated by the workman that before filing the claim, he approached the Conciliation Officer.

10. It was argued on behalf of the management that the provisions contained in the amended Section 2A are directly in conflict with the provisions of Section 10(4A) of the State Act as the said provision do not provide for any conciliation period which has been made mandatory U/S 2A of the Act and as such the provisions of Section 10(4A) are repugnant to the provisions of Section 2A . It was further argued that since section 2A has been inserted through Central Legislation and is later in time, it would prevail over Section 10 (4A) of the State Act and as such, the present claim cannot be entertained as no conciliation proceedings were ever undertaken by the claimant.

11. On the other hand, Shri Gopi Chand on behalf of the LIR/D No. 1623/2011 6 of 12 workman contended that the ID Act is a welfare legislation and therefore, the provisions contained herein shall be construed harmoniously even if there is some conflict inter­se the two provisions.

12. In M. Karunanidhi Vs. Union of India AIR 1979 SC 898, it was observed that before any repugnancy can arise, the following conditions must be satisfied :

1. That there is a clear and direct inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.

It was further held that where the provisions of a Central Act and a State Act in the concurrent list are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

13. It is not in dispute that the matter in dispute falls in the concurrent list and both the Centre and the State has power to legislate. It is to be observed that the Central Act, i.e. Section 2A starts with the non­ obstante clause reading, "notwithstanding anything contained in section LIR/D No. 1623/2011 7 of 12 10", meaning thereby that it gives an overriding effect to the Central amendment over anything contained in section 10 of the Act and renders inapplicable, and thereby repeals impliedly, section 10(4A) as inserted by the Delhi Act. There cannot be any doubt that Section 10 includes section 10 (4A) inserted by the Delhi State.

14. Section 10 (4A) of the State Act enables the workman to file his claim directly before the Court within a period of 12 months without any precondition whereas this period of filing direct claim before the Court has been extended to three years by the Central Act U/s 2A (2), however, with a rider that it cannot be filed before the expiry of 45 days from the date he has made an application to the Conciliation Officer for conciliation of the dispute. Thus, in that regard the provision contained in Section 10 (4A) of the State Act is directly in conflict with the provisions contained in Section 2A and hence is clearly inconsistent and repugnant with it.

15. Article 254 of the Constitution of India provides as follows:­ "254. Inconsistency between laws made by Parliament and laws made by the Legislature of States. ­­ (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters LIR/D No. 1623/2011 8 of 12 enumerated in the Concurrent list, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
16. A perusal of the provision shows that in case a matter enumerated in concurrent list, if any law made by a State legislature is contradictory to the law made by Parliament on the same subject matter, the law made by the Parliament shall prevail and the law made by the state legislature to the extent of contradiction is void. The verdict in M. Karunanidhi's case (supra) supports this provision of the Constitution .
17. There cannot be any doubt that both the provisions are LIR/D No. 1623/2011 9 of 12 contradictory to each other. For example, in case a workman files a claim on 17.9.2010 against his dismissal on 16.9.2010, directly before the court without approaching the Conciliation Officer, he complies with the State amendment but violates the Central amendment. Hence, in view of Article 254 of the Constitution of India, the Central amendment repeals the State amendment.
18. In view of the above discussion , the effect of the Central amendment is that section 10 (4A) inserted by State amendment stands impliedly repealed. Since the Central amendment came into force w.e.f 15.9.10, it is clear that on the said date (i.e on 15.9.10), section 10 (4A) stood impliedly repealed, the former amendment having overriding effect upon it.
19. As per the claim, the workman was terminated on 19.1.2010 (i.e after 15.09.2010), i.e. after the Central Act came into force and in view of the fact that the workman never exhausted the remedy before the Conciliation Officer for 45 days as provided by Section 2A (2) he could not have filed the claim directly before the Court. Hence, there cannot be any doubt that the claim is not maintainable.
20. There is no doubt that the Industrial Disputes Act is a beneficial piece of legislature and therefore, the provisions have to be LIR/D No. 1623/2011 10 of 12 construed harmoniously. It may, however, be noted that the Central Amendment has given more space to the workman by enhancing the period for filing the claim directly before the court from 12 months to three years. The rider for exhausting the remedy before the Conciliation Officer has been inserted by the legislation in its wisdom only to curtail the work load of the courts and also in order to propagate the ADR system. It is worthwhile to mention that even the Civil Procedure Code was amended and Section 89 was inserted providing mandatory conciliation proceedings. The Parliament is not oblivious of the fact that the Courts in India are over loaded with cases and ADR mechanism is the only way to reduce the pendency. Hence, in my view this mandatory provision of referring the dispute first to the Conciliation Officer under Section 2A (2) is nothing but an extension of the beneficial provisions contained in the Act and therefore, strict compliance of the same is mandatory. This amended provision in any manner takes away the beneficialness of the legislation .
21. In view of the above discussion , it is held that the claim is not maintainable considering the fact that the workman never approached the Conciliation Officer before filing the present claim. Hence, the preliminary issue is decided in favour of the management and against the workman . The claim of the workman is dismissed and liberty is granted to him to file a fresh claim before the Conciliation Officer.
LIR/D No. 1623/2011 11 of 12 Let the requisite number of copies of Award be sent to the appropriate government for publication of the award. Case file be consigned to record room.

ANNOUNCED IN OPEN COURT ON 11th day of July 2013 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURT­XIX KARKARDOOMA COURTS, DELHI LIR/D No. 1623/2011 12 of 12