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Delhi District Court

Sh. Ashwani Kumar vs M/S G­4 S Security Services (India) Pvt. ... on 30 November, 2012

              IN THE COURT OF SH. CHANDRA GUPTA
 PRESIDING OFFICER LABOUR COURT­X  KARKARDOOMA 
                               COURTS, DELHI.
D.I.D. No. 74/2011


In the matter of 
Sh. Ashwani Kumar, S/o Sh. Prem Singh,
C/o Group 4 Securitas Karamchari Sangh (Regd.),
affiliated Bhartiya Mazdoor Sangh,
5239, Ajmeri Gate, Delhi­110006
R/o H. No. 415, Tuglaqabad, 
New Delhi­110044                                                   ...... Workman

Vs. 

M/s G­4 S Security Services (India) Pvt. Ltd.
16, Community Centre, C­ Block, 
Janakpuri, New Delhi­110058                                        ...Management

O R D E R

Vide this order I would dispose of arguments heard on the preliminary issue as framed in the instant case viz. Whether the instant statement of claim is maintainable under the provisions of Section 2 A (2) of the I.D. Act, 1947 (as amended upto date) as also taken by the management by way of preliminary objection no. 1 in its written statement, in view of the provisions of the Industrial Disputes (Amendment) Act, 2010 w.e.f. 15.09.2010 which inter alia provides vide the mandatory provisions of Sub­Section (2) of Section 2 A of the Industrial Disputes Act, 1947 (as amended upto date) that a workman whose services have either been discharged, dismissed, retrenched or 1 otherwise terminated can approach the concerned Labour Court or Industrial Tribunal for adjudication of the dispute falling under Sub­ Section (1) of Section 2 A of the Industrial Disputes Act, 1947 (as amended upto date) only after the expiry of 45 days from the date the workman has made application to the competent and concerned Conciliation Officer for conciliation of the concerned dispute.

It is the submission of the AR for the workman that the statement of claim is maintainable in law under the provisions of Section 10 (4 A) of the Industrial Disputes Act, 1947 (as amended upto date), a Delhi State Amendment which provides for filing of a direct statement of claim on the part of the workman in respect of a dispute falling within the scope of Section 2 A of the Industrial Disputes Act, 1947 (as amended upto date) within twelve months from the date of commencement of the dispute.

AR for the management, however, argues to the contrary and submits that in the present case which is governed under the provisions of Section 2 A (1), (2) and (3) of the I.D. Act, 1947 (as amended upto date) by virtue of having been filed after the amendment of the Industrial Disputes Act, 1947 (as amended upto date) vide the Industrial Disputes (Amendment) Act, 2010 w.e.f. 15.09.2010 by way of addition of provisions of Sub­Sections (2) & (3) to the existing Section 2 A (now Sub­Section (1) of Section 2 A) of the said Act, on 05.04.2011 with the alleged date of termination of services of the workman having been given in the same as 11.02.2011, the claimant/workman has neither 2 made any application to the concerned and competent Conciliation Officer for conciliation of the alleged dispute nor the statutory condition of expiry of 45 days from the date of making of such application to the concerned Conciliation Officer for conciliation of the alleged dispute forming subject matter of a dispute as defined under the provisions of Sub Section (1) of Section 2 A of the Industrial Disputes Act, 1947 (as amended upto date) complied with on the part of the claimant/workman on the date of institution of the present statement of claim. It is further the submission of the AR for the management that the Industrial Disputes (Amendment) Act, 2010 bringing about the amendment to the provisions of Section 2 A of the Industrial Disputes Act, 1947 by way of incorporating the provisions of Section 2A (2) & (3) to the same w.e.f.15.09.2010 is a Central Legislation which would prevail upon the provisions of any State Amendment/Legislation in the Industrial Disputes Act, 1947 in view of the provisions of Article 254 of the Constitution of India in this regard; that hence the pre­conditions for enabling a workman to make a direct application regarding a dispute falling under Sub­Section (1) of Section 2 A of the Industrial Disputes Act, 1947 (as amended upto date) as in the present case are not satisfied in the instant case and accordingly the instant statement of claim filed by the claimant/workman is not entertainable/maintainable in law.

I find force in the submissions of the AR for the management, as abovesaid. It is seen that consequent to coming into effect of The Industrial Disputes (Amendment) Act, 2010 w.e.f. 15.09.2010, Section 3 2A of the Industrial Disputes Act, 1947 has been amended as follows:­ [2A. Dismissal , etc., of an individual workman to be deemed to be an industrial dispute.­ [(1)] 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.] [(2)] Notwithstanding anything contained in Section 10, any such workman as specified in sub­section (1) may, make any application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after, the expiry of forty­five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.] [(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 4 termination of services as specified in sub­section (1).] It is thus, seen from the amended Section 2A of the Industrial Disputes Act, 1947 (as amended upto date) that before making an application direct to this Court for adjudication of a dispute as mentioned in Sub­Section 2A (1) of the Industrial Disputes Act, 1947 (as amended upto date), the applicant/claimant has to make an application in respect of the same to the Conciliation Officer of the appropriate Government for conciliation of the dispute and only thereafter, he can approach this court by way of application in respect of the said dispute on the expiry of 45 days from the date he has made the application to the Conciliation Officer for conciliation of the subject dispute, as abovesaid and only on the completion of such requirement, this court shall have powers and jurisdiction to adjudicate upon the dispute, as it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.

It is further seen that vide Sub­Section (3) of Section 2A of the Industrial Disputes Act, 1947 (as amended upto date), the period for moving of such application/statement of claim to the Labour Court or Tribunal is fixed at before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in Sub­Section (1) of the same.

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Admittedly, in the instant case, the instant statement of claim has been filed consequent to 15.09.2010, the date on which the amendment in Section 2A of the Industrial Disputes Act, 1947 (as amended upto date) has been brought about by The Industrial Disputes (Amendment) Act, 2010 and accordingly, provisions of the amended Section 2A of the said Act would apply to the instant statement of claim, in which the date of alleged termination of services of the applicant/workman is mentioned as 11.02.2011 i.e. consequent to 15.09.2010.

I find from the record that no conciliation proceedings as mandatorily envisaged vide Sub­Section (2) of Section 2A of the Industrial Disputes Act, 1947 (as amended upto date) in respect of the subject dispute under the provisions of Sub­Section (1) of Section 2 A of the Industrial Disputes Act, 1947 (as amended upto date) viz. alleged termination of services of the claimant/workman on the part of the management on 11.02.2011 has been moved/filed by the workman, on record, in the instant statement of claim on behalf of the workman under Section 10 (4A) of the Industrial Disputes Act, 1947 (as amended upto date).

I further find that the amendment effected in the Industrial Disputes Act, 1947 by way of Section 2 A (1), (2) & (3), as abovesaid, vide The Industrial Disputes (Amendment) Act, 2010, which are Central legislations, would prevail over the provisions of Section 10 (4A) of the Industrial Disputes Act, 1947 (as amended upto date) which is a State 6 amendment as follows:­ "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 to the order of of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial disputes (Delhi Amendment) Act, 2003, whichever, is later, apply in the prescribed manner, to the Labour Court or the Tribunal, as the case may be, for adjudication of the dispute and the Labour Court or Tribunal, as the case may be, shall dispose of such application in the same manner as a dispute referred under sub­section (1)."

in view of the provisions of Article 254 of the Constitution of India 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 7 provision of 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 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 8 so made by the Legislature of the State." In view of my above findings, I find that the instant statement of claim moved on behalf of the applicant/workman is not maintainable in law. In view of the same, the preliminary issue, as framed, is decided in favour of the management and against the workman and the instant statement of claim is dismissed as not maintainable in law. File be consigned to the Record Room.

Announced in the open court 30.11.2012. (CHANDRA GUPTA) Presiding Officer Labour Court­X Karkardooma Courts, Delhi 9