Writ Petition No. 149 of 1989

2nd March, 1996

Petitioner Counsel: Mr. B. M. KHAN
Respondent Counsel: Mr. A. G. MUJUMDAR, Mr. V. G. WANKHEDE

JUDGMENT

ORDER :- In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner prays that the communication dated 9.6.1989 sent by the Assistant Commissioner of Labour, Chandrapur to the petitioner closing proceedings in the application under Section 2A of the Industrial Disputes Act be quashed and set aside.

2. The petitioner Abdul Khalik Sk. Bhuru (for short, the 'workman') was employed as Conductor with the respondent no.3 Maharashtra State Road Transport Corporation (for short, the 'employer'). The workman was charge-sheeted for his misconduct while working as Conductor on Tadoba to Chandrapur Road and upon conclusion of the departmental enquiry, by the order dated 5.2.1986, the workman was dismissed from service. Under the prevalent discipline and appeal procedure of the employer, the workman preferred appeal before the Divisional Controller, Appellate Side, and the appeal was dismissed on 19.12.1986. A further appeal was preferred by the workman before the 2nd Appellate Authority and the 2nd Appellate Authority also dismissed the appeal on 9.1.1988. Thereafter on 29.8.1988, the workman made an application under Section 2A of the Industrial Disputes Act, 1947 (for short, the 'IDA') and the Assistant Labour Commissioner by the communication dated 9.6.89, intimated the workman that since the application under Section 2A has been filed almost after 2 1/2 years, the proceedings in the application dated 29.8.1989 made under section 2A of the IDA have been closed on 16.10.1988. The said communication dated 9.6.1989 is under challenge in the writ petition.

3. Section 2A of the IDA reads as under :-

" 2A. 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 workman is a party to the dispute."

4. A plain reading of the said section 2A of the IDA would indicate that the dispute about dismissal of workman shall be deemed to be an industrial dispute notwithstanding that the other workmen or union or workmen is not party to the dispute. Therefore, when the existence of the industrial dispute relating to dismissal of the workman from his service was brought to the notice of the Assistant Labour Commissioner, who admittedly, was Conciliation Officer for the purposes of the Industrial Disputes Act, was required to discharge his duties.

5. Section 12 of the ID Act reads as under :-

" 12 (1) Where an industrial dispute exists or apprehended the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given shall, hold conciliation proceedings in the prescribed manner.

(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and right settlement 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.

(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 thereof to the appropriate Government or an officer authorised 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 settlement 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.

(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government.

Provided that subject to the approval of the conciliation officer the time for the submission of the report may be extended by period as may be agreed upon in writing by all the parties to the dispute ".

3. It would be seen that where an existence of industrial dispute is brought to the notice of conciliation officer, he is required to hold conciliation proceedings in the prescribed manner. First of all, for bringing a settlement between the parties to the dispute, the conciliation officer has to investigate into the dispute and consider all matters affecting the merits of the dispute and do his best to see that the parties reach fair and mutual settlement. All out effort is sought to be made by the conciliation officer to ensure mutual and amicable settlement between the parties. If the parties arrive at the settlement in the course of conciliation proceedings, the conciliation officer is required to send report to that effect to the appropriate Government or the officer authorised in that behalf by the appropriate Government along with the memorandum of settlement signed by the parties to the dispute. However, where no such settlement is arrived at and the conciliation officer is unable to induce the parties to come to a fair and amicable settlement to the dispute, the conciliation officer shall, at the earliest after closure of the investigation, under sub-section (2) of Section 12 send report to the appropriate Government setting out the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about the settlement thereof and his own assessment of the reasons which led to failure of conciliation. Meaning thereby, if the settlement is not arrived at between the parties despite the best efforts made by the conciliation officer, the conciliation officer has to send failure report to the appropriate Government setting out the reasons and the causes which led to failure of his efforts in bringing the settlement between the parties. Upon receipt and consideration of the failure report submitted by the conciliation officer, if the appropriate Government is satisfied that the industrial dispute deserves to be referred for adjudication to the concerned Labour Court or the Tribunal, the appropriate Government has to refer such industrial dispute for adjudication and the concerned parties are intimated about the reference of industrial dispute having been made for adjudication to the concerned Labour Court or the Tribunal. It would be, thus, seen that once the employee is aggrieved by his dismissal by the employer and such dismissal is disputed by the workman, under section 2A such dispute relating to dismissal of an employee would be an industrial dispute and once existence of an industrial dispute is brought to the notice of the conciliation officer, he is duty-bound under section 12 of the ID Act to proceed in accordance with the provisions contained therein for the purposes of bringing settlement of the dispute between the parties and if his effort failed, then to submit failure report to the appropriate Government and the appropriate Government upon consideration of the failure report and its satisfaction, may refer the industrial dispute for adjudication to the concerned Labour Court or Tribunal. There is no time-limit prescribed either under Section 2A or under section 12 of the ID Act. Moreover, in the facts and circumstances of the case, it cannot be said that the application made by the workman on 29.8.1986 was stale or grossly belated. Nor in the facts and circumstances of the case, it can be inferred that the workman was not pursuing his remedy diligently or that he unreasonably sat over the matter relating to his dismissal and brought to the notice of the conciliation officer the industrial dispute relating to his dismissal after a long lapse of time. The order of workman's dismissal was, admittedly, passed on 5.2.1986. The said order of dismissal was challenged by the workman before the 1st and 2nd departmental appellate authorities and ultimately, by the order passed by the 2nd departmental appellate authority on 9.1.1988, his second appeal was rejected and thereafter on 29.8.1988 he moved the application before the conciliation officer under section 2A of the ID Act bringing to his notice the existence of the Industrial dispute relating to his dismissal from service by the employer. This application dated 29.8.1988 has been rejected by the conciliation officer on 16.10.1988 and the workman was intimated by the communication dated 9.6.1989 that since the application was made after about 2 1/2 years, the proceedings upon his application under Section 2A of the ID Act have been closed. On the plain facts aforesaid, the conciliation officer, viz. the Assistant Commissioner of Labour failed to exercise the jurisdiction vested in him under law and also failed to discharge his duties under section 12 of the ID Act and, therefore, the communication dated 9.6.1989 and closing of the proceedings on the application filed by the workman under Section 2A of the ID Act cannot be sustained.

4. Accordingly, the writ petition is allowed. The communication dated 9.6.1989 and the closure of proceedings on the application filed by the workman under section 2A of the ID Act by the order dated 16.10.1988 are quashed and set aside. The Assistant Commissioner of Labour (conciliation officer), Chandrapur is directed to investigate into the industrial dispute raised by the workman in his application on merits by proceeding in accordance with law under section 12 of the Industrial Disputes Act, 1947. No costs. Rule is made absolute in aforesaid terms.

Rule made absolute.