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2003 DIGILAW 649 (PNJ)

Dalip Chand v. State Of Haryana

2003-05-07

S.S.NIJJAR

body2003
Judgment S.S.Nijjar, J. 1. This writ petition was admitted on 17.09.1987. The petitioner was employed with the respondents as a turner on 5.8.1975 on a permanent job. His last pay drawn was Rs. 850/- per month. According to the averments made in the petition, he was forcibly made to sign on a resignation letter against his wishes and consent. Actually, the respondents wanted to terminate the services of the petitioner as he was rendered unfit to do the job that he was earlier doing. In these circumstances, the respondents would have to put the petitioner on a light job. Instead of adopting this humane approach the respondents compelled him to resign. He served a Demand Notice on 17.12.1986. The Conciliation Officer summoned both the parties for reconciliation. Since the matter could not be reconciled, he gave the necessary failure report. On receipt of the Failure Report respondent No. 1 has refused to make a reference by order Annexure P-3 dated 6.3.87. The aforesaid order reads as under;- "Subject: Demand Notice dated 17.12.1986 served by Shri Dalip Chand on M/s Jitendra Steel Tubes Ltd. 14/4, Mathura Road, Faridabad. On the above subject, you are informed that on going through your case the Government do not find it fit to refer to the court for adjudication because you had tendered your resignation voluntarily and also received full and final payment. In this situation, there is no justification to demand for reinstatement into service." 2. The respondents have filed a written statement, it is stated that the petitioner voluntarily resigned from the job because of weak eyesight. The resignation of the petitioner was accepted and he was paid all sums of money which were due to him including the cheque worth Rs. 11000/- which he got encashed on 17.6.1986. 3. Mr. Bhandari submits that aforesaid action of the respondents is clearly contrary to law laid down by the Supreme Court in a number of cases. Mr. Sharma submits that the petitioner, having voluntary resigned from the job and having accepted the full and final payment, cannot now be permitted to take the plea that he had not voluntarily resigned. He further submits that respondent No. 1 has not committed any error of jurisdiction by passing the impugned order, Annexure P-3. 4. Mr. Sharma submits that the petitioner, having voluntary resigned from the job and having accepted the full and final payment, cannot now be permitted to take the plea that he had not voluntarily resigned. He further submits that respondent No. 1 has not committed any error of jurisdiction by passing the impugned order, Annexure P-3. 4. Having given my anxious thought to the submissions made by the learned counsel for the parties, I am of the view that the writ petition deserves to be allowed. Under the Industrial Disputes Act, 1947 (hereinafter referred to the Act) the functions of various authorities are clearly bifurcated. It is function of the Conciliation Officer to make efforts for reconciliation between the Management and the workman. If no settlement is arrived at the Conciliation Officer has to send the Failure Report to the appropriate Government. This report has to contain a full statement of facts and circumstances and the reasons on account of which a settlement could not be reached. This report commonly known as Failure Report is to be sent under Section 12(4) of the Industrial Disputes Act, 1947 (hereafter referred to as the Act). Thereafter, the appropriate Government has to consider the report under Section 12(5) of the Act. If the appropriate Government is satisfied that there is a case for reference to the Labour Court it may make such a reference. Where the appropriate Government does not make such a reference it has to record and communicate to the parties, the reasons for not making the reference. Order Annexure P-3 dated 6th March 1987 has been passed by the appropriate Government under Section 12(5) of the Act. It is a settled proposition of law that the appropriate Government has a very limited jurisdiction to examine if the demands made by the Workman are frivolous or misconceived. The appropriate Government would have no jurisdiction to enter into an adjudication of the demands made by the workman. The adjudication of the industrial disputes on merits has been left to the Labour Court to decide under the Act. This proposition of law has been laid down by the Supreme Court in a number of cases. In the petition, itself the petitioner has relied on a judgment of the Supreme Court of India in the case of The M.P. Irrigation Karmachari Sangh v. State of Madhya Pradesh and Anr., (A.I.R. 1985 Supreme Court 860). This proposition of law has been laid down by the Supreme Court in a number of cases. In the petition, itself the petitioner has relied on a judgment of the Supreme Court of India in the case of The M.P. Irrigation Karmachari Sangh v. State of Madhya Pradesh and Anr., (A.I.R. 1985 Supreme Court 860). In the aforesaid judgment, the Supreme Court has held as under:- "While conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workman should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute, "exists or is apprehended" and then refer it for adjudication on merits. The demarcated functions are (1) reference (2) adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the powers of a quasi-judicial Tribunal by an administrative authority namely the Appropriate Government. There may be exceptional cases in which the State Government, on a proper examination on the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act negatory (A.I.R. 1964 S.C. 1617, explained) (Paras 5, 7). 5. I am of the considered opinion that the aforesaid ratio of law is fully applicable to the facts and circumstances of this case. 6. In view of the above, the petition is allowed. Respondent No. 1 is directed to make a reference to the appropriate Labour Court/Tribunal within a period of two months of the receipt of a certified copy of this order. No costs.