Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 642 (JK)

Om Parkash v. State

2009-12-15

VIRENDER SINGH

body2009
1. The case set up by the petitioner is that he was appointed as jobber by respondent No.4 (Project Manager IHDP, Udhampur) vide order No. 185-87 dated 21.11.1986 in the Handloom Corporation in Sewana C.F.C Chenani with effect from 1.12.1986 to supervise the work of weavers. With regard to some balance of raw material outstanding, against weavers of C.F.C Tandar, an enquiry was initiated against him by respondent-4 vide notice (annexure-A) and thereafter the petitioner was also served with the charge sheet vide annexure-B. The petitioner submitted his reply to the same vide annexure-C. However, respondent-4 sought some more information from the petitioner vide annexure-D which was also forwarded. However, the enquiry was not completed and ultimately vide letter No.IHDP-409-10 dated 21.2.1997 issued by respondent-4, the petitioner was disengaged from service with effect from July, 1992. He thereafter served respondents-4 and 5 with a demand notice dated 04-09-1997 calling upon them to grant all the reliefs but to no effect. He then filed an application (annexure-G) under section 12 of the Industrial Dispute Act, 1947 (for short hereinafter to be referred as the Act) before the Deputy Labour Commissioner (Conciliation Officer) Udhampur for initiating conciliation proceedings to which respondent-4 filed objections vide annexure-H. The petitioner also filed reply to those objections vide annexure-J. Respondent-3 made efforts to amicably settle the dispute between the petitioner and respondent-4 and after hearing both the sides, he finally made the failure report (annexure-K) under section 12 (4) of the Act. The said failure report was then forwarded by Labour. Commissioner, Udhampur to Labour Commissioner, Jammu vide his letter dated 18-02-2002 (annexure-L) for reference to the Tribunal. However, the matter was once again reconsidered by respondent-3 and disposed of vide order dated 23-10-2002 (Annexure-M). Petitioner is aggrieved of the same and seeks its quashment through the medium of the instant petition with a further prayer that respondents-1 to 3 be directed to refer the dispute for determination to the Labour Court/Industrial Tribunal. 2. The instant petition was admitted on 13.2.2004. At pre admission stage, reply/objections was filed on behalf of respondents-4 and 5 through Mrs. Sindhu Sharma, Advocate. However, after its admission, no counter has been filed by either of the respondents. When this case was taken up on 08-12-2009 for its final disposal, Mrs. 2. The instant petition was admitted on 13.2.2004. At pre admission stage, reply/objections was filed on behalf of respondents-4 and 5 through Mrs. Sindhu Sharma, Advocate. However, after its admission, no counter has been filed by either of the respondents. When this case was taken up on 08-12-2009 for its final disposal, Mrs. Sindhu Sharma, Advocate put in his appearance and stated that she had no instructions to assist this Court on behalf of the respondents-4 and 5 as the brief had been taken from her and since her name was reflected in the cause list, she thought it proper to apprise the Court of the factual situation. So after hearing Mr. Sharma, learned counsel for the petitioner, the present petition was kept reserved for order. 3. Mr. Sharma submits, that respondent-3 has exceeded, his jurisdiction by passing the impugned order (annexure-M) as he had no power to reconsider the dispute once again after submitting failure report under section 12 (4) of the Act. In this situation, the only course open to respondents-2 and 3 was to forward the failure report to the Government for making reference of dispute for its determination by the Labour Court/Industrial Tribunal. Mr. Sharma submits that there is no provision in the Act enabling the Conciliation Officer to make another effort for amicable settlement after filing of the failure report as this power does not vest in him. Therefore, the impugned order (annexure-M) has no legal force in it. 4. Mr. Sharma fairly submits that may be at one stage, during the pendency of the instant petition he had sought time to have the latest instructions as to whether the petitioner in terms of the order (annexure-M) had received any amount or not for the reason that after the admission of the instant petition, the petitioner had not contacted him for reasonably a long period. He states, that the latest instructions supplied to him are that the petitioner has not accepted any amount till date and therefore, the present petition still survives. 5. Although the respondents go un-represented, yet I feel it appropriate to refer to the objections filed by respodents-4 and 5 only in which the stand taken by them is that the petitioner had abandoned his job himself since July, 1992 and therefore, his case was not covered under the Act. 5. Although the respondents go un-represented, yet I feel it appropriate to refer to the objections filed by respodents-4 and 5 only in which the stand taken by them is that the petitioner had abandoned his job himself since July, 1992 and therefore, his case was not covered under the Act. It is further their case that once the conciliation proceedings were not conducted by the competent authority as required under the Act, the failure report submitted by respondent-3 could not be said to be legal one and therefore, it was not a case of referring the dispute to the Labour Court/Industrial Tribunal. 6. The only issue, in the present set of circumstances/ crops up for the determination of the Court is, whether the Conciliation Officer, Udhampur (respondent-3) was legally empowered to take up the matter once again for conciliation proceedings after having submitted his failure report under section 12 (4) of the Act to the Assistant Labour Commissioner, Udhampur who too had further forwarded it to Labour Commissioner, Jammu recommending it to be referred to the Tribunal. It is worth mentioning here that in the failure report the Conciliation Officer had rather framed the following two issues to be referred to Labour Court/Industrial Tribunal for its adjudication:- "1. Whether the termination/disengagement of the petitioner is in accordance with the provisions of I.D. Act, 1947. 2. If it is proved that termination/disengagement of the petitioner was in violation of the provisions of I.D. Act, 1947 to what relief the petitioner is entitled to." 7. Section 12 of the Act deals with the duties of Conciliation Officers. It reads, thus:- "(1) Where any industrial dispute exists or is 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. (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 authorized 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 statement 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. 8. Bare reading of sub-Section 4 of Section 12 makes it clear that if no settlement is arrived at between the parties, the Conciliation Officer shall send a full report to the appropriate Government not only setting forth the steps taken by him for ascertaining the facts and circumstances but also and the reasons on account of which, in his opinion, a settlement could not be arrived at. 9. Sub-Section 5 deals with, the next step to be taken by the appropriate Government after considering the report submitted by the Conciliation Officer under Section 12 (4). In case the appropriate Government does not make such a reference, it shall record the reason for the same and communicate it to the parties concerned. 10. 9. Sub-Section 5 deals with, the next step to be taken by the appropriate Government after considering the report submitted by the Conciliation Officer under Section 12 (4). In case the appropriate Government does not make such a reference, it shall record the reason for the same and communicate it to the parties concerned. 10. Reading of the aforesaid two sub-Sections leaves no room for doubt that once the Conciliation Officer submits his report under Section 12(4) by giving his opinion based on reason for not arriving at any amicable settlement he for all intent and purposes ceases to be a Conciliation Officer. The next step then is the satisfaction of the Government for making the reference under Section 12 (5) of the Act or not. The Conciliation Officer, in any case, legally, cannot assume the power or jurisdiction to reopen the case for any purpose. This jurisdiction under the Act does not vest in him. 11. In the case on hand, admittedly the Conciliation Officer submitted his failure report under Section 12 (4) of the Act after, framing two main issues to be referred to the Labour Court/Industrial Tribunal for adjudication. If the appropriate Government was not satisfied on the basis of the report referred to it under Section 12(4) of the Act, it could decline the reference after recording the reasons, but legally, the matter could not, be sent back to the Conciliation Officer once again as done in, the present case. Therefore, the order annexure-M impugned herein passed by him deserves to `be quashed, being nonest. 12. The net result, is that the petition on hand succeeds and the impugned order dated 23.10.2002 (annexure-M) is hereby quashed directing respondents-1 and 2 to initiate the case of the petitioner further strictly in accordance with the provisions of the Act.