Gujarat High Court
Co vs Uma on 15 June, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/6960/2009 34/ 34 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6960 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the Labour Judiciary ?
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CO
OPERATIVE BANK WORKERS UNION - Petitioner(s)
Versus
UMA
CO OPERATIVE BANK LTD & 1 - Respondent(s)
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Appearance
:
MR
SHALIN N MEHTA for
Petitioner(s) : 1,
MR KM PATEL, SR.ADVOCATE WITH MR SJ SHAH for
Respondent(s) : 1,
MR ND SONGARA for Respondent(s) : 1,
RULE
NOT RECD BACK for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/06/2010
ORAL
JUDGMENT
1. Heard learned advocate Mr.Shalin Mehta for petitioner and learned Senior Advocate Mr.K.M.Patel with learned advocate Mr.S.J.Shah on behalf of respondent.
1.1 Notice of Rule is not received back in respect of respondent No.2. However, respondent No.2 is not a real party but, he is a judicial officer.
2. The petitioner Union has challenged award passed by Industrial Court, Baroda in Reference (IC) No.1 of 2007, Exh.21, dated 17.3.2009, whereby, Industrial Court has allowed application Exh.7 filed by respondent bank while raising preliminary issue and also decided that reference which has been made by Conciliation Officer is contrary to legal provisions and same has been set aside.
3. Brief facts of present case are as under :
The petitioner - Co-operative Bank Workers' Union is a representative Union within the meaning of Section 2(33) of the Bombay Industrial Relations Act,1946 (for short the BIR Act ). It represents the employees of Uma Co-operative Bank Ltd. - respondent No.1 herein. The Uma Co-operative Bank ltd. is a Co-operative Society incorporated under the Gujarat Co-operative Societies Act,1961. An unregistered settlement signed by the rival parties was being acted upon since a long time. This settlement covers the service conditions of the employees of the bank, whom the petitioner represents. On 20.10.2005, the respondent bank issued a notice of change under Section 42(1) of the BIR Act read with Rule 51 of the Bombay Industrial Relations (Gujarat) Rules, 1961. The said notice of change was not accepted by the petitioner and they protested. The said notice of change sought to drastically diminish the pay and other service benefits of the employees of the respondent bank. On 16.3.2006, the said notice of change was recorded by the Conciliation Officer, Baroda means it has been admitted in conciliation. On 5.4.2006 and 22.5.2006, the Conciliation Officer, Baroda issued notice to the bank as well as the Union to remain present before him for conciliating on the notice of change dated 20.10.2005. On 21.4.2006, the respondent bank agreed in writing to refer the dispute for arbitration under Section 58(6) of the BIR Act. On 15.6.2006, petitioner Union followed suit by also agreeing in writing for referring the dispute to arbitration. According to petitioner Union, once both parties agreed for arbitration, nothing more was required to be done by the Conciliation Officer, Baroda, then to refer the dispute to arbitration in the Labour Court or Industrial Court. However, quite erroneously, the Conciliation Officer, Baroda, filed a Failure Report under Section 73(A) on 26.6.2006. This failure report was not communicated to the petitioner Union and petitioner was not even made aware by anyone that a failure report had been filed by the Conciliation Officer. Thereafter, respondent bank unilaterally enforced notice of change dated 20.10.2005 and implemented the same while reducing salary and other service benefits. According to petitioner Union, it violates Section 42(3) of the BIR Act. On 14.9.2006, the petitioner Union wrote to Conciliation Officer, Baroda to refer the dispute to the arbitration of Industrial Court. Thereafter, on 26.2.2007, the Conciliation Officer, Baroda referred the dispute between the parties to arbitration of Industrial Court and on next date i.e. on 27.2.2007, Conciliation Officer, Baroda revoked his earlier order dated 26.6.2006 recording failure of conciliation proceedings. These two orders were challenged by respondent bank by filing writ petition before this Court being SCA No.7257 of 2007 where this Court has passed following order on 26.3.2007.
1. Heard learned advocate Mr. K.M. Patel with learned advocate Mr. S.J. Shah and learned advocate Mr. N.D. Songara appearing on behalf of petitioner, learned AGP Mr. Shukla appearing on behalf of respondent No.1 State Authority and learned advocate Mr. Mansuri for learned advocate Ms. Hina Desai appearing on behalf of respondent No.3.
2. In the present case, looking to the prayers, petitioner has challenged the orders Annexure 'A' and Annexure 'B' passed by the respondents dated 26th February 2007 and 27th February 2007. The Conciliation Officer has referred the matter to the Industrial Court, Baroda by order dated 26th February 2007. On 27th February 2007, Conciliation Officer and Assistant Commissioner of Labour Court, Baroda has addressed a letter to the petitioner coming to the conclusion that certificate given under Section 73-A is set aside, because, in view of the afore certificate under Section 73-A, either party has not referred the matter to Industrial Court.
3. In light of these facts, learned advocate Mr. Patel has challenged the legality and validity of both the orders as referred above.
4. According to my opinion, whatever the contentions raised by the petitioner before this Court, petitioner having ample opportunity to raise all these contentions before the Industrial Court which are available and permissible according to law. Therefore, this Court has not entertained this petition only on that ground.
5. However, it is open for the petitioner to raise all the contentions including preliminary contentions which are permissible under the law before the Industrial Court. If, petitioner raised the preliminary contentions before the Industrial Court, in Reference (I.C.) No.1 of 2007, it is directed to Industrial Court to decide it as a preliminary issue in accordance with law after giving reasonable opportunity of hearing to respective parties.
6. In view of above observations and directions, present petition is disposed of without expressing any opinion on merits.
4. In view of aforesaid order passed by this Court, this Court has not entertained petition filed by respondent and it was kept open for respondent bank to raise all contentions before the Industrial Court which are raised before this Court in writ petition including to raise preliminary contention before Industrial Court in Reference (IC) No.1 of 2007. This Court has directed to Industrial Court to decide such contentions as a preliminary issue in accordance with law, after giving reasonable opportunity of hearing to respective parties. Therefore, this Court has disposed of aforesaid petition without expressing any opinion on merits. Thereafter, Industrial Court, Baroda has passed aforesaid award wherein preliminary issue raised by respondent has been allowed and order of reference has been set aside by award dated 17.3.2009.
5. Affidavit-in-reply is filed by respondent No.1 Janardan Kantilal Dhruv, General Manager, raising various contentions including reducing net profit of the bank from 2000 to 2009 and therefore, bank is unable to pay the then prevailing wages to it employees.
6. I have heard learned advocate Mr.Shalin Mehta on behalf of petitioner. According to him, Conciliation Officer could not have to submit failure report, because for that no such occasion arose for him under the provisions of BIR Act, because on 21.4.2006 (page-39), a request was made while giving consent to Conciliation Officer by respondent bank that if petitioner Union is having any dispute about notice of change, then under the provisions of BIR Act, dispute can be referred to Industrial Court for arbitration. Copy of this letter dated 21.4.2006 was not sent to Union. On 15.6.2006, same request was made by petitioner Union in response to letter of respondent bank dated 21.4.2006 to refer the industrial matter as mentioned in notice of change dated 20.10.2005 for arbitration of Industrial Court, Baroda. Therefore, learned advocate Mr.Mehta submitted that consent given by both parties under Section 58(5) and (6) (a) and (b). Therefore, Section 58(5) and (6) (a) and (b) are relevant, which are quoted as under :
58(5) Before the close of the proceeding before him the Conciliator shall ascertain from the parties whether they are willing to submit the dispute to arbitration.
58(6)(a) Notwithstanding anything contained in the foregoing sub-sections, if at any stage of a conciliation proceeding the parties agree in writing to submit the dispute to arbitration, the agreement shall be deemed to be a submission within the meaning of Section 66.
(b) Where the agreement provides for arbitration either by a Labour Court or by the Industrial Court the Conciliator shall forthwith refer the dispute to the Labour Court or the Industrial Court, as the case may be.
7. Mr.Mehta further submitted that once Section 58(5) and (6) is satisfied and followed, then there is no need to follow provisions of Section 66 or procedure to be adopted as per Section 66 and if procedural defect, if at all, there, it will not fatal statutory deeming fiction under Section 58(6)(a) (b) of the BIR Act. He also submitted that mistake committed by Conciliation Officer in submitting failure report in respect of having consent from both sides to refer the industrial matter for arbitration to Industrial Court, can be corrected by Conciliation Officer suo-motu without inviting any objection from either party. He also submitted that failure report dated 26.6.2006 has been issued under Section 73(A) which is totally irrelevant section considered by Conciliation Officer because there is no occasion to pass order under Section 73(A) for submitting failure report. He also submitted that Section 63 will not come into play because no decision has been taken by Conciliation Officer in respect to consent given by both parties dated 21.4.2006 and 15.6.2006. Therefore, so long decision is not taken as required under Section 63, conciliation proceedings deemed to be continued in respect of the fact that wrongly failure report has been submitted by Conciliation Officer dated 26.6.2006. He submitted that notice of change dated 20.10.2005 has been enforced after receiving failure report by respondent bank with effect from 30.8.2006, then Section 42 (3) becomes meaningless because it requires or having legal obligation of bank to issue fresh notice of change. He also submitted that Section 46 is also applicable in facts of this case because no employer shall make any change in any industrial matter mentioned in Schedule-II, which was giving notice of change as required under Section 42 (1), means legal and fair notice of change is necessary before making any change in any industrial matter mentioned in Schedule-II. He also submitted that question of violation of principles of natural justice by Conciliation Officer in cancelling failure report and referring the dispute of industrial matter to arbitration of industrial Court, does not arise because that opportunity was availed by respondent bank in filing petition before this Court and raising same contention before Industrial Court challenging action of Conciliation Officer cancelling failure report and referring the industrial matter to the arbitration of Industrial Court. He also pointed out that in case if order of reference has been set aside, then failure report is to be revived, which is apparently illegal and contrary to provisions of BIR Act. In short, his submission is that by notice of change, respondent bank wants to reduce the salary and benefits. Before that a safeguard which has been provided under statutory provision has not been properly followed by respondent bank and even Conciliation Officer, and because of mistake committed by Conciliation Officer ignoring two letters of consent 21.4.2006 and 15.6.2006, failure report has been submitted dated 26.6.2006 which is illegal and without jurisdiction. Therefore, he submitted that unilaterally notice of change has been enforced, which is contrary to provisions of BIR Act.
8. Learned Senior Advocate, Mr.K.M.Patel raised contention before this Court that Conciliation Officer in absence of any power cannot review its own order or decision submitting failure report and reopen the issue and cancel the failure report and thereafter, to refer industrial matter for arbitration to Industrial Court. He submitted that under Section 66, mutual agreement is necessary for giving consent by both parties for referring the dispute to the arbitration. He also submitted that failure report cancelled without giving any opportunity to respondent bank and same has been cancelled after notice of change has been enforced by respondent bank. A contention raised by Union that failure report is not received, is not correct. When bank has received it in an ordinary manner addressed of Union is correct then Union must have received copy of failure report. He submitted that reference itself is incompetent because order of failure report unilaterally cancelled by Conciliation Officer. He relied upon provision of Section 73 (A) where 60 days period is considered to be mandatory for making reference by representative Union. For that, he relied upon decision reported in 2004 II CLR 186 in case of Best Workers' Union v. Brihan Mumbai Electric Supply and Transport (BEST) Undertaking & Anr., wherein Bombay High Court has held that period of limitation of two months for filing application by representative Union under Section 73(A) of the Act is mandatory and not directory. Therefore, provision of Limitation Act, 1963 do not apply to a reference under Section 73(A) of the Act. In short, his submission is that Industrial Court has rightly examined the matter and rightly decided preliminary issue raised by respondent bank and for that Industrial Court has not committed any error which requires interference by this Court under Article 227 of the Constitution of India.
9. I have considered submissions made by both learned advocates. I have also perused award passed by Industrial Court, Baroda. Certain undisputed facts have been found from record that on 20.10.2005, notice of change issued by respondent bank under Section 42(1) read with Rule 51 of Bombay Industrial Relations (Gujarat) Rules,1964. Page-34 is an additional notice of change with addition and correction dated 24.10.2005. Copy of this notice of change was sent to the Conciliation Officer. On 16.3.2006, Conciliation Officer has admitted notice of change in conciliation proceedings. The Conciliation Officer has fixed hearing of conciliation on 5.4.2006 and 22.5.2006. A consent given by respondent bank to Conciliation Officer by letter dated 21.4.2006 was not sent to the Union but, it was merely addressed to Conciliation Officer. Thereafter, on 15.6.2006, in response to letter of respondent bank dated 21.4.2006, Union is also agreed to refer the industrial matter for arbitration to Industrial Court. Therefore, both parties were agreed before Conciliation Officer to refer industrial matter mentioned in notice of change dated 20.10.2005 / 24.10.2005 for arbitration of Industrial Court, Baroda. The conciliation proceeding deemed to be pending till order is not passed by making reference for arbitration to Industrial Court. At this stage, the question of submitting failure report does not arise, because both parties are agreed to refer industrial matter specified in notice of change for arbitration to Industrial Court, then question of failure in conciliation does not arise. Even though erroneous order has been passed while considering erroneous Section 73A of the BIR Act on 26.6.2006, which, according to my opinion, failure report is without jurisdiction and contrary to scheme of BIR Act. After receiving failure report by respondent bank, implemented notice of change on 30.8.2006. Against which, objection has been raised by Union while addressing letter to Conciliation Officer on 14.9.2006. Thereafter, decision has been taken by Conciliation Officer referring dispute for arbitration to Industrial Court dated 26.2.2007 and next date 27.2.2007 cancelled the failure report certificate which has been issued under Section 73A of the BIR Act.
10. In light of this background, certain Sections or provisions of BIR Act is relevant. Section 42(1) and (3):
"42.
(1) Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form, to the representative of employees.
He shall send a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. He shall also affix a copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other places as may be directed by the Chief Conciliator in any particular case.
(3)When no settlement is arrived at in any conciliation proceeding in regard to any industrial dispute which has arisen in consequence of a notice relating to any change given under sub-section (1) or sub-section (2), no fresh notice with regard to the same change or a change similar in all material particulars shall be given before the expiry of two months from the date of the completion of the proceeding within the meaning of Section 63. If, at any time after the expiry of the said period of two months, any employer or employee again desires the same change or a change similar in all material particulars, he shall give fresh notice in the manner provided in sub-section (1) or (2), as the case may be.
46(1) No employer shall make any change in any standing order settled under Chapter VII without following the procedure prescribed thereof in this Act.
(2) No employer shall make any change in any industrial matter mentioned in Schedule-II.
(3)(ai) before giving notice of the change as required by the provisions of sub-section (1) of Section 42;]
(i) within the period provided for in sub-section (1) of Section 44 unless an agreement is arrived at;
(ii) where no agreement is arrived at before the completion of the conciliation proceedings and during the period of ten days thereafter.]:
(iii) where no settlement is arrived at, after two months from the date of the completion of the proceedings before the Conciliator;
(iv) in cases where there is a registered submission or in which the dispute has been referred to arbitration, before the date on which the award comes into operation;
(v) in cases where such matter or a dispute regarding such matter has been referred to a Wage Board for decision, before the date on which the decision comes into operation.] 58(5) Before the close of the proceeding before him the Conciliator shall ascertain from the parties whether they are willing to submit the dispute to arbitration.
58(6)(a) Notwithstanding anything contained in the foregoing sub-sections, if at any stage of a conciliation proceeding the parties agree in writing to submit the dispute to arbitration, the agreement shall be deemed to be a submission within the meaning of Section 66.
(b) Where the agreement provides for arbitration either by a Labour Court or by the Industrial Court the Conciliator shall forthwith refer the dispute to the Labour Court or the Industrial Court, as the case may be.
63. A conciliation proceeding shall be deemed to have been completed--
(i) when a memorandum of the settlement arrived at in such proceeding is signed by the parties under sub-section (1) of Section 58, or
(ii) when the parties agree in writing to submit the dispute to arbitration, or
(iii) if no settlement is arrived at, when the report of the Conciliator or the Board is published by the [State] Government, or
(iv) when the time limit fixed for the completion of such proceeding under Section 62 has expired.
Explanation : - When an industrial dispute is settled in regard to some of the industrial matters included therein, the conciliation proceeding in regard to those matters only shall be deemed to have been completed withing the meaning of this Section.
64. No conciliation proceeding in respect of an industrial dispute shall--
(a) be commenced if-
(i) the representative of employees directly affected by the dispute is a registered union which is a party to a submission relating to such dispute or a dispute relating to an industrial matter similar to that regarding which the dispute has arisen;
(ii) it has been referred to arbitration under the provisions of Section 72 (or 73) (or referred for decision under Section 86C);
(iii) by reason of a direction issued under sub-section (2) of section 114 [or by reason of any of the other provisions of this Act] the employers and employees concerned are in respect of the dispute bound by a registered agreement, settlement, submission or award;
(b) be continued after the date on which -
(i) a submission relating to such dispute is entered into by the employer and employees concerned under section 58 or 66;
(ii) the dispute is referred to arbitration under section 72 [73 or 73-A] [or referred for decision under section 86-C or 86CC]; or
(iii) the direction referred to in sub-clause (iii) of clause (a) is issued.
66(1) Any employer and a Representative Union or any other registered union which is a representative of employers may, by a written agreement, agree to submit any present or future industrial dispute or class of such dispute to the arbitration of any person whether such arbitrator is named in such agreement or not. Such agreement shall be called a submission.
(2) Such submission may provide that the dispute shall be referred to the arbitration of a Labour Court or the Industrial Court:
[Provided that no such submission shall provide for reference of any such dispute to the arbitration of the Industrial Court where under any provision of this Act it I required to be referred to the Labour Court for its decision.] (3) A copy of every such submission shall be sent to the Registrar who shall register it in the register to be maintained for the purpose and shall publish it in such manner as may be prescribed.
11. In light of aforesaid provisions, the question is whether stage has come before Conciliation Officer to conclude conciliation proceeding and submitted failure report when two letters dated 21.4.2006 and 15.6.2006 are on record ?
12. The Conciliation Officer has not taken any decision in respect to aforesaid letters. Therefore, conciliation proceeding is deemed to be continued under provisions of BIR Act. The respondent bank has not withdrawn its consent letter dated 21.4.2006. So it remains on record and binding to respondent bank, then question of submitting failure report does not arise. Even though erroneously decision has been taken submitting failure report by Conciliation Officer in exercise of power under Section 73A, is totally without jurisdiction and contrary to provision and scheme of BIR Act. The mistake which has been committed by officer has been corrected after referring dispute for arbitration to Industrial Court. For that, administrative authority is entitled to correct his mistake suo-motu, if it has been brought to the notice of such officer. Similarly, in facts of this case, mistake committed by Conciliation Officer has been brought to the notice by petitioner Union vide letter dated 14.9.2006. Therefore, contention which has been raised by learned Senior Advocate Mr.K.M.Patel that conciliation proceeding has come to an end because of erroneous order, cannot be accepted. The Conciliation Officer has committed mistake apparently because there was no such occasion for him to submit failure report so long any decision is taken upon two consent letters dated 21.4.2006 and 15.6.2006 and upon such letter, he was under legal obligation to pass an order to refer the industrial matter for arbitration to Industrial Court. That under Section 73, the State Government may, at any time, refer an industrial dispute to arbitration of the Industrial Court, if State Government is satisfied that by reason of the continuance of the dispute being a serious or prolonged hardship to large section of the community is likely to be caused or the industry concerned is likely to be seriously affected or the prospect and scope for employment therein curtailed and the dispute is not likely to be settled by other means and if it is necessary in the interest of public to do so. Therefore, State Government has power to refer industrial dispute to the arbitration of Industrial Court at any time irrespective of report made by Conciliation Officer, if State Government is satisfied as required under Section 73 of the BIR Act. Therefore, Section 73 is quoted as under :
73. Notwithstanding anything contained in this Act, the [State] Government may, at any time, refer an industrial dispute to the arbitration of the Industrial Court, if on a report made by the Labour Court or otherwise it is satisfied that --
(1) by reason of the continuance of the dispute--
(a) a serious outbreak of disorder or a breach of the public peace is likely to occur; or
(b) serious or prolonged hardship to a large section of the community is likely to be caused; or
(c) the industry concerned is likely to be seriously affected or the prospects and scope for employment therein curtailed; or (2) the dispute is not likely to be settled by other means; or (3) it is necessary in the public interest to do so.
73.A Notwithstanding anything contained in this Act, a registered union which is a representative of employees and which is also an approved union may refer any industrial dispute for arbitration to the Industrial Court :
Provided that no such dispute shall be referred to the Industrial Court --
(i) after two months from the date of the completion of the proceedings before the Conciliator;
(ii) where the employer has offered in writing before the Conciliator to submit the dispute to arbitration under this Act, and the union has not agreed to do so;
(iii) unless the dispute is first submitted to the Conciliator and the conciliation proceedings are completed or the Conciliator certifies that the dispute is not capable of being settled by conciliation.
Provided further that no such dispute shall be referred to the Industrial Court where under any provision of this Act it is required to be referred to the Labour Court for its decision.]
13. It is necessary to note that notice of change given by respondent bank on 20.10.2005 under Section 42(1) of the BIR Act. This notice of change is not admitted by petitioner union but, it has been disputed. In such circumstances, respondent bank had approached Conciliation Officer and thereafter, on 16.3.2006, industrial matter raised in notice of change which has been admitted in conciliation by Conciliation Officer, Baroda. In this case, the conduct of respondent bank is very relevant. The respondent bank wants to take advantage of the mistake committed by Conciliation Officer, Baroda. The respondent bank was very well aware about the facts that petitioner union has not agreed with the notice of change which clearly appears from letter dated 21.4.2006 of respondent bank. No doubt, petitioner union has not given any reply but, it is also necessary to consider that petitioner union has also not agreed to notice of change. To reduce the salary and service benefits by way of issuing notice of change, respondent bank wants to take action or enforce action in reduction of existing salary and benefits. Naturally, before enforcing such change, independent adjudication is necessary unless it was agreed by representative union. Two consent letters 21.4.2006 and 15.6.2006 from both parties have been ignored by Conciliation Officer. That was his mistake. Ultimately, on 26.6.2006, by mistake Conciliation Officer has submitted failure report. Then immediately on 14.9.2006 it has been brought to notice by petitioner union to Conciliation Officer, that mistake has been committed by him in ignoring two consent letters as referred above. Therefore, Conciliation Officer being an administrative officer has re-considered the matter in light of letter dated 14.9.2006 of petitioner union and while re-considering it, referred the industrial matter for arbitration to Industrial Court and on next date, order of failure report has been cancelled while re-considering the matter by Conciliation Officer. The order of reference is an administrative order. Similarly, re-consideration of decision of issuing failure report dated 26.6.2006 by administrative officer, in both decision no lis or dispute decided by Conciliation Officer. This being an administrative order without determining merits of industrial matter and it will not, in either way, adversely affect right of respondent bank. In such circumstances, relevant provisions of Section 55, 56(1) and (2), 60(1) and 65, which are quoted as under :
55.
on receipt of the statement of the case under Section 54 the Conciliator shall, except in a case in which by reason of the provisions of Section 64 a conciliation proceeding cannot be commenced (within a week) enter the industrial dispute in the register kept for the purpose and thereupon the conciliation proceeding shall be deemed to have commenced from the date of such entry in the register, which date shall be communicated by him to the parties concerned.
1) The Conciliator shall hold the conciliation proceeding in the prescribed manner.
(2)It shall be the duty of the conciliator to endeavor to bring about the settlement of the industrial dispute and for this purpose the Conciliator shall enquire into the dispute and all matters affecting the merits thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute and may adjourn the conciliation proceeding for any period sufficient in his opinion to allow the parties to arrive at a settlement or for any other reason.
60(1) A Conciliator or a Board, as the case may be, shall subject to the provisions of this Act, follow in a conciliation proceeding such procedure as may be prescribed.
65. A conciliation proceeding which is discontinued under clause (b) of section 64 shall be deemed to have been completed on the date referred to in the said clause, and the provisions of section 58 with regard to the submission, forwarding and publication of reports shall apply to such conciliation proceeding.
14. The Conciliation Officer has power to do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute and may adjourn the conciliation proceeding for any period sufficient in his opinion to allow the parties to arrive at a settlement or for any other reason. That means the Conciliation Officer has to hold the conciliation proceeding in the prescribed manner having a power to do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. Section 55 of the BIR Act provides that on receipt of the statement of the case under Section 54 the Conciliator shall, except in a case in which by reason of the provisions of Section 64 a conciliation proceeding cannot be commenced (within a week) enter the industrial dispute in the register. Section 60 of the BIR Act provides that a Conciliator, as the case may be, shall subject to the provisions of this Act follow any conciliation proceeding such procedure as may be prescribed and Section 65 of the BIR Act provides that a conciliation proceeding which is discontinued under clause (b) of section 64 shall be deemed to have been completed on the date referred to in the said clause, and the provisions of section 58 with regard to the submission, forwarding and publication of reports shall apply to such conciliation proceeding. Under Section 64 of the BIR Act, no conciliation proceeding in respect of an industrial dispute shall be commenced where specific provisions have been made which apply to facts of this case.
15. In light of this background, when failure report submitted by Conciliation Officer, the respondent bank was knowing fully aware that in respect to two consent letters given by both parties, there was no question of submitting failure report by Conciliation Officer, then why the respondent bank has not immediately approached as a bonafide employer to Conciliation Officer and brought to the notice of the Conciliation Officer to the mistake which committed by him. It is because the respondent bank wants to take advantage of mistake committed by Conciliation Officer and waited for two months and thereafter, on 30.8.2006 after a period of two months, notice of change has been enforced unilaterally which adversely affect service conditions of concerned employees. Therefore, in such a matter, the conduct of respondent bank is not bonafide and found to be malafide, with an ulterior motive, remained silent after receiving failure report and waited for two months and not brought to the notice of Conciliation Officer for the mistake which he has committed in submitting failure report. Therefore, it suggests that respondent bank wants to implement notice of change without adjudication by arbitration to Industrial Court. That intention of respondent bank is totally contrary to the scheme of BIR Act and also contrary to object and safeguard provided to concerned employees in such a situation under provisions of BIR Act.
16. In Industrial Disputes Act, appropriate Government has power to refer the industrial dispute under Section 10(1). In case if dispute exists or apprehended, at any time appropriate Government can refer the dispute. This being an administrative order, it can be re-considered by appropriate Government even without giving any opportunity or notice to employer. Meaning thereby that initially if appropriate Government has not referred industrial dispute to Industrial Tribunal to re-consider it and then, to refer industrial dispute to Industrial Court, at that occasion, question of giving notice or hearing to the employer does not arise, because it was an administrative order which can be re-considered by appropriate Government without giving opportunity to employer and in such administrative order, there is no decision in lis between parties and there is no determination of merits of industrial matter between parties. Similarly, in facts of this case, Conciliation Officer has re-considered the matter on the basis of letter given by petitioner union dated 14.9.2006 and then, re-considered decision of submitting failure report and not to refer industrial matter for arbitration to Industrial Court and after re-considering it, a decision has been taken to refer the industrial matter for arbitration to Industrial Court and cancelled the failure report by order dated 26.2.2007 and 27.2.2007. At that occasion, the contention which has been raised by learned Senior Advocate Mr.K.M.Patel that opportunity was not given while cancelling failure report to employer, cannot be sustained in view of power of re-consideration on the administrative authority its earlier decision where there is no lis decided by Conciliation Officer between the parties and there is no decision on merits. Therefore, question of giving opportunity as contended by learned Senior Advocate Mr.K.M.Patel to employer does not arise. Similar question has been examined by Apex Court in case of Sultan Singh v. State of Haryana & Anr. reported in 1996 I LLJ 879. Relevant observations of aforesaid decision are in Para.1 to 5 which are quoted as under :
1. Two questions arise in this appeal, namely.(1) Whether the State should hear the respondent/employer before making a reference on a second representation under Section 10 of Industrial Disputes Act, 1947 (for short, 'the Act') since it was rejected on an earlier occasion: and (2) whether there is an order of reference by the State Government so as to entitle the appellant to have the dispute adjudicated by the tribunal.
2.
The facts are not in dispute. Way back in 1955, the appellant had joined the respondents as a workmen (Khalasi). He was promoted on September 6, 1972 as a tape-reader. He was served with a chargesheet on June 28, 1979 and his services were terminated on August 9, 1979. On June 30, 1981, he made a demand on the respondent/employer for reinstatement which was rejected. Thereafter, he made an application for reference under Section 10 of the Act to the State Government which was rejected by order dated October 20, 1981. The appellant again made a representation on March 25, 1982 and the Minister made a note on the representation directing to make a reference. However, since no communication was received by the appellant, he wrote a letter to the Labour Commissioner, Haryana, on April 26, 1984 but to no avail. He then filed the writ petition. By order dated August 6, 1984 in CWP No. 3885/84, the High Court dismissed the writ petition.
3. The first question is whether the State should give a hearing to the employer before making a reference on second application, since on an earlier occasion, it was rejected. Section 10 (1) of the Act provides that where an appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing refer the dispute to named authorities. Section 12 (5) of the Act postulates that on receipt and consideration of a report from the conciliation offer, if the Government is satisfied that there is a case for reference to the Board, Labour Court, Tribunal or National Tribunal, as the case may be, it will make such reference. Where the appropriate Government does not make such a reference it shall record reasons therefore and communicate to the parties concerned.
4. A conjoint reaching, therefore, would yield to the conclusion that on making an application for reference, it would be open to the State Government to form an opinion whether industrial dispute exists or apprehended and then either to make a reference to the appropriate authorities or refuse to make the reference. Only on rejection thereof, the order needs to be communicated to the applicant. Nonethless the order is only an administrative order and not a quasi-judicial order. When it rejects, it records reasons as indicated in sub-section (5) of Section 12 of the Act. The appropriate Government is entitled to go into the question whether an industrial dispute exists or is apprehended. It would be only a subjective satisfaction on the basis of the material on record. Being an administrative order no lis is involved. Thereby there is no need to issue any notice to the employer nor to hear the employer before making a reference or refusing to make a reference. Sub-section (5) of Section 12 of the Act does not enjoin the appropriate Government to record reasons for making reference under Section 10 (1). It enjoins to record reasons only when it refuses to make a reference.
5. The need for hearing is obviated, if it is considered on second occasion as even then if it makes reference, it does not cease to be an administrative order and so is not incumbent upon the State Government to record reasons therein. Therefore, it is not necessary to issue notice to the employer nor to consider his objections nor to hear him before making a reference. Accordingly, we are of the view that the High Court was wholly wrong in its conclusion that before making reference on second application, it was incumbent upon the State Government to give notice to the employer and to give an opportunity to the employer and record reasons for making reference. The previous decision of that Court relied on in the case at hand was wrongly decided.
17. In light of aforesaid decision where identical situation has been examined by Apex Court in respect to power of appropriate Government to re-consider the decision under Section 10(1) of the I.D.Act,1947. Similarly, Conciliation Officer under provisions of BIR Act has also have jurisdiction and implied power to re-consider its own decision submitting failure report dated 26.6.2006 after receiving letter from the representative union dated 14.9.2006. For that, no opportunity is necessary and there is no violation of principles of natural justice, as contended by learned Senior Advocate Mr.K.M.Patel. Therefore, order of cancellation or re-consideration of decision submitting failure report dated 26.6.2006 by order dated 27.2.2007 is legal and valid and it cannot consider to be illegal in any manner. Therefore, order of reference is also held to be legal and valid.
18. The Industrial Court, Baroda has discussed evidence on record as well as discussed relevant provisions of BIR Act and believed that Section 73A of the BIR Act is applicable to the facts of this case. Such reasoning is contrary to provisions of Section 73A because when conciliation proceedings deemed to be continued and no decision is taken by Conciliation Officer upon two consent letters, question of referring the dispute by representative union within two months does not arise. The Industrial Court has not given cogent reason in support of its conclusion. The Industrial Court has just discussed the facts and not understood the relevant provisions and legal effect in light of facts which are not in dispute between the parties. The Industrial Court has also committed gross error in coming to conclusion that once notice of change has been enforced by respondent bank by order dated 30.8.2006, thereafter reference is made. In fact, reference can be referred by Conciliation Officer while re-considering the decision of failure report. The Industrial Court has also committed gross error that opportunity is required to be given to employer by Conciliation Officer while re-considering decision of failure report. The Industrial Court can examine merits even after notice of change has been enforced by respondent bank. For that, there is no restriction provided under the provisions of BIR Act. A reference can be made after notice of change has been enforced by respondent bank, by State Government under Section 73 of the BIR Act. Therefore, basic question has been ignored and merely mis-interpreting and mis-understanding the relevant provisions in light of facts which are on record, the Industrial Court has passed an award which apparently erroneous award which required to be set aside. Otherwise injustice and great prejudice will be caused to concerned employees, whose salary has been reduced and benefits is also reduced unilaterally by respondent bank. For that, machinery of adjudication to arbitration of Industrial Court not made available to concerned employees. Therefore, Industrial Court has not considered the effect of notice of change enforced unilaterally without adjudication which will cause great prejudice and adversely affect right of concerned employees working with respondent bank. It is a matter of common sense in spite of taking advantage of technical plea or mistake committed by Conciliation Officer, that in such circumstances when respondent bank wants to reduce salary and benefits which must have to be justified before independent authority means in arbitration of Industrial Court, because notice of change is not admitted by representative union. This basic substance of the matter has been totally ignored by Industrial Court. Therefore, Industrial Court has committed apparent error which requires interference by this Court while exercising power under Article 227 of the Constitution of India.
19. It is necessary to note that every administrative authority has inherent and implied power to re-consider its decision if the mistake committed by him brought to the notice by either party. For that, there is no need to have specific provisions in statute. It is not a power of review which has been exercised by Conciliation Officer. But it was a power to re-consider the decision by an administrative authority, if apparent mistake has been brought to the notice by union to him. For that administrative authority has jurisdiction to re-consider its decision. That cannot consider to be a power of review but, it was a power of re-consideration of matter if apparent mistake has been brought to the notice by either party. Therefore, contention raised by learned Senior Advocate Mr.Patel that Conciliation Officer has no power to review, cannot be accepted and same is rejected.
20. There is no provision made in BIR Act which prohibits such re-consideration or correction of mistake in administrative order by Conciliation Officer. So there is no negative provision which prohibits Conciliation Officer not to re-consider administrative order once it has been passed. So impliedly Conciliation Officer being an administrative officer having power to correct the mistake or to correct erroneous order while re-considering the administrative order which has been passed apparently found to be contrary to law.
21. The Industrial Court, Baroda has committed gross error in coming to conclusion that once notice of change enforced by employer, question of reference become meaningless. This finding is contrary to law because even though notice of change has been enforced illegally. But same can be challenged by representative union and on that basis, reference can be made by State Government under Section 73 of the BIR Act or it can be challenged under Section 78/79 of the BIR Act. Therefore, this finding is totally perverse and contrary to law.
22. In this case, conciliation proceeding is not completed because there is no decision taken by conciliation officer upon two letters 21.4.2006 and 15.6.2006. Therefore, erroneous order of submitting failure report by order dated 26.6.2006, Conciliation Officer cannot consider to be functus officio because mistake apparently found from the record can be corrected by administrative authority suo-motu irrespective of whether specific such powers are with the administrative authority under the statute or not. It is always inherent and implied powers with the authority to correct the mistake if it is found from record and accordingly, Conciliation Officer has corrected the mistake and referred the dispute to arbitration under Section 58(6)(a) and (b) of the BIR Act and thereafter, cancelled the erroneous order dated 26.6.2006. In present case, Section 73A of the BIR Act is not applicable because there was no cause or occasion has arisen because of continuance of conciliation proceeding for representative Union to refer the industrial matter for arbitration within a period of two months from date of completion of proceedings before Conciliator.
23. Therefore, according to my opinion, the Industrial Court has, while deciding preliminary issue, Exh.7, not properly understood the relevant provisions of BIR Act and also the safeguard which has been provided to representative Union against notice of change given by employer under Section 42(1) of BIR Act. Section 42(3) also applicable to the facts of present case because no settlement is arrived at in conciliation proceeding in regard to any industrial matters which are raised because of Section 42(1) notice of change, then after expiry of said period of two months, if any employer again desire the same change or similar change in all material particulars, he shall have to give fresh notice in a same manner as required under Section 42(1). Section 58(5) provides that before the close of the proceeding before Conciliation Officer, he should have to ascertain from the parties whether they are willing to submit the dispute to arbitration. In this case, both parties are willing to submit the dispute to arbitration and in such circumstances, sub-section (6), which is relevant, provide that notwithstanding anything contained in the foregoing sub-sections, if at any stage of a conciliation proceeding the parties agree in writing to submit the dispute to arbitration, the agreement shall be deemed to be a submission within the meaning of Section 66, then detailed separate procedure prescribed under Section 66 is not necessary to be followed by both parties because it is a deeming fiction and such consent of both parties in writing is considered to be a submission under Section 66. Therefore, it is a legal obligation upon Conciliation Officer before close of proceedings of conciliation, he must have to ascertain from the parties whether they are willing to submit the dispute to arbitration or not. Such willingness was on record before Conciliation Officer dated 21.4.2006 and 15.6.2006 which has been ignored by Conciliation Officer and order dated 26.6.2006 wrongly passed which was apparent mistake on his part which has been rightly corrected. For that, Conciliation Officer has inherent power to correct a mistake because failure report was submitted ignoring aforesaid two consent letters from both parties. Therefore, in eye of law, there is no legal sanctity of failure report dated 26.6.2006. Therefore, order of reference has been rightly made and order of failure report has been rightly cancelled by Conciliation Officer. For that, Industrial Court has not properly appreciated the legal provisions and also not properly appreciated sufficient safeguard which has been given to representative Union in case of notice of change given by employer under Section 42(1). So unilateral change in absence of conciliation cannot be enforced against representative Union or workers working in establishment. Otherwise detailed procedure is not necessary for enforcing legal change by employer. There is a legal restriction upon employer not to enforce illegal change upon employees. For that, representative Union is there taking care of such right of employees and if Conciliation Officer has committed any error or any erroneous decision is passed, the management cannot take advantage of such situation raising technical stand while enforcing notice of change after a period of two months from date of failure report submitted by Conciliation Officer. The failure report is not decided right or lis between parties and similarly, order of reference is also not decided right of either parties or it is not a determination on merits. It is merely administrative decision of Conciliation Officer.
24. Therefore, according to my opinion, Industrial Court has not properly examined the preliminary issue and not rightly decided the question which has been raised by petitioner Union and while misunderstanding and misinterpreting the relevant provisions of law, mis-guided himself in understanding the relevant and effective provisions and safeguard, the Industrial Court has apparently committed an error in passing such order allowing Exh.7 filed by respondent bank and also declaring that the reference is illegal and same has been set aside. Therefore, award passed by Industrial Court, Baroda in Reference (IC) No.1 of 2007 is required to be set aside and accordingly, same is set aside holding reference is legal and valid, with a direction to Industrial Court, Baroda to decide Reference (IC) No.1 of 2007 means to decide notice of change dated 20.10.2005 given by respondent bank on merits, after giving reasonable opportunity of hearing to both parties, within a period of six months from date of receiving copy of present order. Meanwhile, whatever service conditions till decision on merits given by Industrial Court, Baroda, the present service conditions of employees of respondent bank is to be maintained by both parties for raising further dispute subject to final out come by award which will be passed by Industrial Court, Baroda. Accordingly, Rule is made absolute with no order as to costs. This Court has not expressed any opinion on merits.
(H.K.RATHOD,J.) (vipul) Top