Punjab-Haryana High Court
Glaxosmithkline Consumer Healthcare ... vs The State Of Punjab & Others on 7 May, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N. Jindal
Civil Writ Petition No.6067 of 2011 & other connected cases
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision:- 07.05.2012
(1) Civil Writ Petition No.6067 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
(2) Civil Writ Petition No.1980 of 2011
M/s Mahindra & Mahindra Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
(3) Civil Writ Petition No.12766 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
(4) Civil Writ Petition No.13373 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
(5) Civil Writ Petition No.14040 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
(6) Civil Writ Petition No.14075 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
Civil Writ Petition No.6067 of 2011 & other connected cases
2
(7) Civil Writ Petition No.15516 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
(8) Civil Writ Petition No.15519 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
(9) Civil Writ Petition No.15520 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
(10) Civil Writ Petition No.15686 of 2011
Glaxosmithkline Consumer Healthcare Ltd. ...Petitioner
Vs.
The State of Punjab & others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. M.L.Sarin, Senior Advocate with
Mr. Nitin Sarin, Advocate,
for the petitioner in CWP No.6067 of 2011.
Mr. Gurdeep Singh, Advocate,
for the petitioner in CWP No.1980 of 2011.
Mr. P.K.Mutneja, Advocate,
for petitioner(s) except CWP Nos.1980 & 6067 of 2011.
Mr. Sandeep Moudgil. DAG, Punjab,
for the respondent-State.
Mr. S.K.Sharma, Advocate,
for the private respondents.
Civil Writ Petition No.6067 of 2011 & other connected cases
3
HEMANT GUPTA, J.
The question, which arises for consideration of this court is "Whether, the notification dated 19.3.2008, delegating the powers of the State Government on the Conciliation Officers suffers from vice of excessive delegated legislation?"
The State Government under Section 39 of the Industrial Disputes Act, 1947 (for short 'the Act') issued a notification dated 19.03.2008 to the effect that powers exercisable by the State Government under Section 10 and under sub-Sections (3), (4), (5) & (6) of Section 12 of the Act in relation to industrial disputes falling under Section 2 A of the Act shall also be exercisable by the Assistant Labour Commissioner/ Labour-cum-Conciliation Officers within their respective jurisdiction in the State.
Challenge in the writ petitions is to the above-said notification and also to the action taken by such authority to refer the disputes to the Labour Court for adjudication, but this order shall dispose of the challenge to the notification dated 19.03.2008. Since the issue is legal, therefore, it is not necessary to state the facts in detail.
The Industrial Disputes Act, 1947 was enacted with the object to remove causes of friction between the employer and workmen in the day-to-day working of the establishment and to promote measures for securing amity and good relations between them. A reference to an Industrial Tribunal would lie where both the parties to an industrial dispute apply for such reference and also where the appropriate Government considers it expedient so to do. Certain statutory provisions are relevant to be extracted before we consider the Civil Writ Petition No.6067 of 2011 & other connected cases 4 respective arguments. The same are as under:
"2. Definitions - In this Act, unless there is anything repugnant in the subject or context -
xxx xxx xxx
(d) "conciliation officer" means a conciliation officer
appointed under this Act.
(e) "conciliation proceedings" means any proceeding held by a conciliation officer or Board under this Act.
xxx xxx xxx
(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute - Where any employer discharges, dismisses, retrenches 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 or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
10. Reference of disputes to Boards, Courts or Tribunals - (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing -
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or xxx xxx xxx
12. Duties of conciliation officers - xxx xxx (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report Civil Writ Petition No.6067 of 2011 & other connected cases 5 thereof to the appropriate Government or an officer authorized in this behalf by the appropriate government together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If, on a consideration of the report referred to in sub-
section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
xxx xxx xxx
39. Delegation of powers - The appropriate Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also, -
(a) where the appropriate Government is the Central Government, by such officer or authority subordinate to the Central Government or by the State Government or by such officer or authority subordinate to the State Government, as may be specified in the notification; and
(b) where the appropriate Government is a State Government, by such officer or authority subordinate to the State Government as may be specified in the notification."
Exercising the powers conferred under Section 39 of the Act, the State Government has issued notification dated 19.03.2008, which reads as under:
Civil Writ Petition No.6067 of 2011 & other connected cases 6 "No.1/22/04-4Lab/1091 - In continuation of Punjab Government Labour Department Notification No.1/22/04-4Lab.II/4927 dated 19th November, 2004 and in exercise of the powers conferred under Section 39 of the Industrial Disputes Act, 1947 (Central Act No.XIV of 1947), and all other powers enabling him in this behalf, the Governor of Punjab is pleased to direct that powers exercisable by the State Government under Section 10 and under sub-section (3), (4), (5) and (6) of Section 12 of the said Act, in relation to an Industrial Dispute falling under Section 2-A of the said Act, shall also be exercisable by the Assistant Labour Commissioner/Labour-
cum-Conciliation Officers within their respective jurisdiction in the State, with immediate effect."
In reply, the State has referred to the notification dated 09.08.1988 vide which the Additional Labour Commissioner was delegated the powers to exercise the powers of the State Government under Section 10 and under sub-Section (3), (4), (5) & (6) of Section 12 of the Act in relation to an industrial dispute falling under Section 2A of the Act. On 19.09.1988, the powers were delegated to Labour Commissioner in respect of disputes defined under Section 2 (k) or as envisaged in Section 2A of the Act. Subsequently, on 19.11.2004, the powers of the State Government have been delegated to the Deputy Labour Commissioner in respect of the disputes falling under Section 2A of the Act.
Learned counsel for the petitioner(s) have vehemently argued that the scheme of the Act particularly that of Section 12 is that the Conciliation Officer is to hold conciliation proceedings and to investigate the dispute and all matters affecting the merits and the settlement thereof. Sub-section (3) of Section 12 contemplates sending of a report to the appropriate Government, if there is settlement of disputes during the course of conciliation proceedings. Sub-section (4) Civil Writ Petition No.6067 of 2011 & other connected cases 7 of Section 12 contemplates that in case no settlement is arrived at, the report is to be sent to the appropriate Government. It is under sub- section (5) of Section 12, the appropriate Government on being satisfied would refer the reference. It is contended that since the Act contemplates submission of report to the State Government, therefore, the Conciliation officer in terms of the impugned notification will submit report to himself and, thus, there will be no opportunity for a superior authority to consider the report and to take suitable action thereon. Thus, the Conciliation Officer shall not only investigate the dispute and explore the settlement, but also refer the dispute to the Labour Court for adjudication, which is against the statutory provisions contemplating report for conciliation by a higher authority other than the Conciliation Officer. Section 20 of the Act was also referred in respect of commencement and conclusion of conciliation proceedings. Particular reference is made to clause (b) of sub-clause (2), which contemplates that a conciliation proceeding shall be deemed to have concluded in the event no settlement is arrived at and when the report of the conciliation officer is received by the appropriate Government. Thus, it is contented that there will be utter chaos as it will not be known that when the Conciliation Officer is submitting report to himself to exercise the powers of the appropriate Government.
It is argued that the notification is an act of excessive delegated legislation, as it delegates essential legislative powers of the appropriate Government to a Conciliation Officer, much lower in hierarchy. Thus, the consideration at the higher level to promote industrial peace and harmony stands compromised. Reference is made Civil Writ Petition No.6067 of 2011 & other connected cases 8 to a Hon'ble Supreme Court judgment reported as Vasu Dev Singh & others Vs. Union of India & others (2006) 12 SCC 753.
On the other hand, learned counsel for the respondents have pointed out that, in fact, notification has been published to give effect to the following directions given by the Hon'ble Supreme Court in case of The Rajasthan State Road Transport Corporation & another etc. Vs. Krishna Kant etc. AIR 1995 SC 1715 "(5). Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e. without the requirement of a reference by the Government - in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act." It is pointed out that earlier the consideration of the question as to whether, the reference is required to be made to the Labour Court was at the level of Labour Commissioner or Deputy Labour Commissioner. Such process was causing delay as another step in the hierarchy though the role of the State Government is minimal in making reference to the Labour Court. The merits of the dispute cannot be examined by the State Government. The State Government is only to examine the frivolous or otherwise patently untenable dispute. The reference is made to Telco Convoy Drivers Mazdoor Sangh & another v. State of Bihar & others (1989) 3 SCC 271 and Kuldeep Singh Vs. General Manager, Instrument Design Development & Facilities Centre & another (2010) 14 SCC176 apart from the judgments of this Court in Ram Diya Vs. State of Haryana & another 1994 (3) PLR 413 and Gurbej Singh Vs. State of Punjab Civil Writ Petition No.6067 of 2011 & other connected cases 9 2003 (3) SCT 399.
In Telco Convoy Drivers Mazdoor Sangh case (supra), the Hon'ble Supreme Court held as under:
13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1)of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi- judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See Ram Avtar Sharma v. State of Haryana (1985) 3 SCC 189; M.P.Irrigation Karamchari Sangh v. State of M.P. (1985) 2 SCC 103; ShambhuNath Goyal v. Bank of Baroda, Jullundur (1978) 2 SCC
353.
14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M.P.Irrigation Karamchari Sangh case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory.
15. We are, therefore, of the view that the State Government, which is the appropriate Government, was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner acting on behalf of the Government and that of the Government itself cannot be sustained. In Kuldeep Singh's case (supra), it was held as under:
Civil Writ Petition No.6067 of 2011 & other connected cases 10
31. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate court or forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate court or forum for adjudication.
32. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to dis-entitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along hoping that one day his grievance would be considered by the management or by the State Government.
It is contended that since the Conciliation Officer in each of the Districts interact with the representatives of the employer and the workmen, they are better equipped to understand the problems and being seized of the dispute are the most suitable persons as to whether the dispute required to be referred for adjudication to the Labour Court as delegatee of the appropriate Government.
It is also pointed out that in terms of the directions of the Hon'ble Supreme Court, Section 2A has since been amended w.e.f. 01.09.2010 vide Parliament Act No.24 of 2010. The amended provisions permit the workman to make an application directly to the Civil Writ Petition No.6067 of 2011 & other connected cases 11 Labour Court or Tribunal for adjudication of the disputes after the expiry of forty-five days from the date, he has made an application to the Conciliation Officer of the appropriate Government. Such amendment in the Act is in compliance of the directions of the Supreme Court to facilitate the early adjudication of the disputes between the warring factions to promote industrial peace and harmony.
We have heard learned counsel for the parties and find that the issue raised in the present writ petitions pertains to power of Conciliation Officer, as a delegatee of the appropriate Government to make reference of disputes to the Labour Court for the period from 19.09.2008 to 01.09.2010. Still further, the aforesaid notifications show that the appropriate Government has delegated its powers under Section 10 and sub-section (3), (4), (5) & (6) of Section 12 of the Act in respect of disputes falling within the scope of Section 2A of the Act.
Section 2A of the Act relates to the individual disputes pertaining to discharge, dismissal, retrenchment or termination of the services of workman. In respect of such individual disputes alone, the Conciliation Officer will exercise jurisdiction in terms of the notification issued to act as an appropriate Government for refering the disputes to the Labour Court or Industrial Tribunal. However, the industrial dispute as falling within the scope of Section 2 (k), which is dispute or difference between the employers and the employers, or between employers and workmen, or between workmen and workmen, connected with the employment or non-employment or the terms of employment or with the conditions of labour, the power of the appropriate Government is required to be exercised by Labour Civil Writ Petition No.6067 of 2011 & other connected cases 12 Commissioner or Additional/ Deputy Labour Commissioner. Thus, while issuing the notification, a distinction has been made to authorize the officers in each of the Districts to refer disputes of individuals to the Labour Court directly to cut down delay for effective and early adjudication of the disputes and the disputes which are pertaining to industry which may have affect on large number of people. Keeping in view the object of maintenance of industrial harmony and peace and the object of early disposal of all disputes pertaining to industry, it is in fact a progressive step taken by the State, when the power of the appropriate Government is conferred on the Conciliation Officer. Such confirmation of power avoids another step in the hierarchy, cuts down delay and bring efficiency as the role of appropriate Government in referring disputes is minimal. Therefore, in view of the judgments of Hon'ble Supreme Court, referred to above, the delegation of power of the Government on the Conciliation Officer cannot be said to be unwarranted or in excess of the powers conferred on the State Government.
The argument that the Conciliation Officer will submit report to himself in terms of Section 12 of the Act is not of much consequence. Sub-section (1) of Section 12 of the Act is in respect of any industrial dispute exists or is apprehended. Such industrial dispute is the one referred to in Section 2(k) of the Act. Sub-section (3) contemplates sending of a report to the appropriate Government or an officer authorized in this behalf by the appropriate Government. The purpose for submitting the report in case of failure of settlement is to facilitate the reference to the Board, Labour Court, Tribunal or National Civil Writ Petition No.6067 of 2011 & other connected cases 13 Tribunals in terms of sub-section (5) of Section 12 of the Act. Such report to the appropriate Government has no other object to achieve. Therefore, if the Conciliation Officer himself is authorized, the dispute stands referred to the Labour Court forthwith without another ladder in the hierarchy and shall avoid delay. Therefore, such notification in fact facilitates early disposal of disputes. We may state that frequently, the workmen have to invoke the jurisdiction of this Court for directing the appropriate Government to make reference for the reason the Government has not made reference. It is to avoid such eventuality, the State Government has decided to delegate its powers to the Conciliation Officer.
Similarly, the argument based upon Section 20 of the Act is also without any merit. In fact, delegation of power to the Conciliation Officer removes the ambiguity after the submission of the report and before the appropriate Government takes cognizance. Since the Conciliation Officer himself is a delegatee of the appropriate Government, therefore, the conciliation proceedings will come to an end only when reference is made to the Court in terms of Section 20 of the Act. Therefore, we do not find any illegality in the process of delegation of powers to the Conciliation Officer.
The judgment referred to by learned counsel for the petitioners in Vasu Dev Singh's case (supra) is not helpful to the arguments raised. In para 111, it has been held that the Executive Government can exercise its power of exemption under the East Punjab Urban Rent Restriction Act, 1949 when the same would come within the purview of the delegated legislation. In fact, in the said case, the Civil Writ Petition No.6067 of 2011 & other connected cases 14 notification exempting the building from the said Act was set aside for the reason that the distinction between the National Housing Policy and the Legislative Policy was missed by the Administrator. It was held to the following effect:
"117. The Administrator in issuing the notification has missed the relevance of the distinction between the National Housing Policy and the legislative policy. The power of exemption could be exercised having regard to the legislative intent and policy whereas the National Housing Policy could be given effect to by the legislature in modifying, varying or altogether doing away with the existing legislative policy and laying down a new policy therefor. Change of legislative policy with the aid of the National Housing Policy was not within the domain of the Administrator. It was the sole prerogative of the legislature.
118. A statute can be amended, partially repealed or wholly repealed by the legislature only. The philosophy underlying a statute or the legislative policy, with the passage of time, may be altered but therefor only the legislature has the requisite power and not the executive. The delegated legislation must be exercised, it is trite, within the parameters of essential legislative function is impermissible. It is essential for the legislature to declare its legislative policy which can be gathered from the express words used in the statute or by necessary implication, having regard to the attending circumstances. It is impermissible for the legislature to abdicate its essential legislative functions. The legislature cannot delegate its power to repeal the law or modify its essential features."
Keeping in view the said reasoning, the finding recorded is that the Administrator cannot change the basic features of law or the Act. There is no such eventuality in the present case as the notification does not lack any legislative competence or contravenes any policy. The State Government has to act through its officers and such power is being exercised at different times by different officers. The substantive effect of the delegation is that the disputes will be referred to the Labour court for adjudication without delay.
Civil Writ Petition No.6067 of 2011 & other connected cases 15 Consequently, we do not find any merit in respect of challenge to the notification dated 19.9.2008. The validity of the notification having upheld, the matters be placed before, the learned single Judge on 06.08.2012 for decisions on the other questions arising in the writ petitions.
(HEMANT GUPTA) JUDGE (A.N. JINDAL) 07.05.2012 JUDGE Vimal