W. P. No. 4542 of 1984

13th June, 1991

Petitioner Counsel: S. M. Dharap

JUDGMENT

JUDGMENT :- The petitioner-workman was employed by the first, respondent-company as a temporary workman with effect from June 4, 1979. His services were terminated with effect from October 31, 1981 for a certain misconduct. The petitioner, therefore, filed a complaint on November 3, 1981 before the Government Labour Officer, Kalyan. The first respondent-company was called by the Government Labour Officer on November 13, 1981 with necessary information and documents regarding the termination of services of the petitioner. Simultaneously, the petitioner also filed a complaint before the Assistant Commissioner of Labour, Kalyan requesting him to intervene in the matter. The Assistant Commissioner of Labour received the said complaint on November 3, 1981 and sent a letter dated December 5, 1981 to the first respondent-company. The Assistant Commissioner of Labour issued a notice regarding the reinstatement of the petitioner with full back wages and continuity of services to the first respondent-company. Thereafter the petitioner filed complaint (ULP) No. 3 of 1982 on January 18, 1982 in the Court of the Labour Judge presiding over the First Labour Court at Thane. The first respondent-company filed its written statement before the Labour Court, inter alia, contending that the unfair labour practice complained of was barred under section 59 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the MRTU and PULP Act') as the petitioner-workman had already instituted proceedings under the Industrial Disputes Act (hereinafter referred to as 'the I.D. Act'). The learned Labour Judge heard this objection raised on behalf of the first respondent-company and came to the conclusion that he had the necessary jurisdiction to entertain the unfair labour practice complaint. Feeling aggrieved, the first respondent-company filed revision application (ULP) No. 17 of 1984 in the Industrial Court, Maharashtra, bench at Thane.

2. The learned Member of the Industrial Court, Thane who heard the said revision application was of the view that the unfair labour practice complaint No. 3 of 1982 filed by the petitioner-workman was not maintainable as barred under section 59 of the MRTU and PULP Act by her judgment and order dated August 16, 1984. The petitioner-workman, therefore, invoked the supervisory writ jurisdiction of this Court under Article 227 of the Constitution by filing the present writ petition.

3. Now, section 59 of the MRTU and PULP Act reads as under :

"59. Bar of proceedings under Bombay or Central Act. - If any proceeding in respect of any matter falling within the purview of this Act is instituted under this Act, then no proceeding shall at any time be entertained by any authority in respect of that matter under the Central Act or, as the case may be, the Bombay Act; and if any proceeding in respect of any matter within the purview of this Act is instituted under the Central Act, or, as the case may be, the Bombay Act, then no proceeding shall at any time be entertained by the Industrial or Labour Court under this Act."

In other words, under this provision of law if a proceeding is instituted under the I.D. Act for a certain relief, no further proceedings can be instituted under the MRTU and PULP Act for the same purpose. But what is pertinent to note here is that the Assistant Commissioner of labour in this case had merely issued notice to the first respondent-company into the matter of allegations of the petitioner-workman about termination of his services. Issue of notice in this manner does not amount to instituting a conciliation proceeding by the concerned Assistant Commissioner of Labour. Thus, under section 11(2) of the I.D. Act, a conciliation officer may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates. Instead of doing so, he may as well issue a notice to the establishment to remain present before him to satisfy himself whether an industrial dispute really exists or apprehended. Further, under section 11(4) of the I.D. Act, a conciliation officer may enforce the attendance of any person for the purpose of examination of such person or call for and inspect any document which he has ground for considering to be relevant to the industrial dispute or to be necessary for the purpose of verifying the implementation of any award or carrying out any other duty imposed on him under the said Act and for the aforesaid purpose, the conciliation officer shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure in respect of enforcing the attendance of any person and examining him or of compelling the production of documents. In other words, in order to satisfy himself whether an industrial dispute exists or is apprehended regarding which he may admit the matter in concilialtion proceedings, he may issue notice to the parties concerned to remain present before him. Merely by issuing notice he does not admit the dispute in conciliation. It is also important to note that under Rule 11 of the Industrial Disputes (Bombay) Rules, 1957 where the conciliation officer receives any information about the existing or apprehended industrial dispute which relates to a public utility service but no notice of strike or lock-out is given under Rule 76 or Rule 77 or where the industrial dispute does not relate to a public utility service, and he considers it necessary to intervene in the dispute, he shall give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be specified therein. This rule, therefore, shows that if a conciliation officer considers it necessary to intervene, he has the powers to give formal intimation in writing to the parties showing his intention to commence the conciliation proceedings which means that before commencing conciliation proceedings he has the powers to issue notice to the concerned parties. This also goes to show that a mere issue of the notice does not amount to enter into conciliation proceedings.

4. it was observed by a Division Bench of this Court in East Asiatic and Allied Companies, Bombay vs. Shelke (B.L.), (1961) I LLJ 162 that :

"It is the duty of the conciliation officer to satisfy himself before undertaking conciliation proceedings as to whether the grievance which the union has put forward is genuine or not. Since the law confers a discretion upon the conciliation officer whether he should enter upon conciliation or not, it is only right and proper that he should satisfy himself by all means available to him about the propriety of undertaking conciliation. If for satisfying himself in this respect, he holds preliminary discussions with the representatives of the parties and even conveys proposals made by one of the parties to the other, it could not be said that he has commenced conciliation proceedings. He could do so to satisfy himself as to whether there is any genuine dispute and whether it is a matter in which he should undertake conciliation."

These observations made by this Court also clearly show that a mere issue of notice by the conciliation-officer does not amount to instituting a conciliation proceeding. Again, a Single Judge of this Court (Jamdar, J.) in the case of Mahendra Gajanan Kharsar and others vs. Zonal Manager, Maharashtra State Co-operative Marketing Federation Ltd., FLR 1984 (49) 232 had observed that even assuming that sending a copy of the approach application to the Assistant Commissioner of Labour amounts to institution of conciliation proceedings it would not bar a complaint under the Unfair Labour Practices Act because as held above, conciliation proceedings under the I.D. Act are not proceedings contemplated by section 59 of the Unfair Labour Practices Act which would act as bar to subsequent proceedings under the Unfair Labour Practices Act. Again, while dealing with a similar contention, a Division Bench of this Court in M/s. Consolidated Pneumatic Tool Co. (India) Ltd. vs. R. A. Gadekar and others, 1986 Mh.L.J. 238 = FLR 1986 (52) 467had observed :

"However, it is contended by Shri Kaka, learned counsel appearing for the petitioner that once it is shown that the proceedings in respect of the same matter were instituted under the MRTU and PULP Act, then the Industrial Tribunal has no jurisdiction to entertain the references under the Central Act in view of the specific wording of section 59 of the MRTU and PULP Act. It is not possible for us to accept this broad proposition. The word "institute" as used under section 59 can be taken as meaning "setting on foot an enquiry" which means something more than mere filing of complaint".

The Division Bench had respectfully agreed with the view expressed by the Madras High Court in case of S. Suppiah Chettiar vs. Chinnathurai and anr., AIR 1957 Mad. 216 that the word 'institute' means something more than mere filing of a claim. These observations make it crystal clear that mere issue of a notice by a conciliation officer showing his intention that he may institute conciliation proceedings would not amount to the conciliation officer admitting the dispute in conciliation.

5. In this view of the matter, the learned Member of the Industrial Court, Thane committed grave error which is apparent on the face of the record and that is how the impugned order is bad in law. The said order is accordingly quashed and set aside and the Rule is made absolute but with no order as to costs.

6. In the result, the Complaint (ULP) No. 3 of 1982 is restored back to the file of the learned Judge of the First Labour Court, Thane with a direction that he shall dispose it of on merits in accordance with law, as early as possible, but at any rate by the end of December, 1991.

7. The Office is directed to send down the writ immediately.

Order accordingly.