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2011 DIGILAW 523 (GAU)

Sanjay Sarkar v. State of Nagaland

2011-06-15

A.K.GOSWAMI

body2011
ORDER Mr. Justice A.K. Goswami 1. The writ petition is directed against the order dated November 9, 2010 passed by the respondent No. 2, namely, Joint Labour Commissioner (HoD) Nagaland, Kohima, on the subject- "Observation on application to raise Industrial Dispute for setting aside the transfer order dated December 8, 2008, payment of compensation, incentive and back wages with continuity of service in specified H.Q. at Dimapur, Nagaland.' By order dated January 28, 2011, the names of respondents 3, 4 and 5 were deleted. The Respondent No. 3 was the employer of the writ petitioner and Respondent Nos. 4 and 5 were functionaries of DWD Pharmaceutical Ltd. 2. The basic facts for the purpose of disposal of the writ petition are that the petitioner was appointed under the DWS Pharmaceutical Ltd. as Medical Representative in the year 1997 by provisional appointment letter dated November 1, 1997, followed by appointment letter dated November 6, 1997. It is stated that the petitioner had excellent performance to show and he was entitled to incentives according to the policies of the Company. However, he was not paid incentives that he was legally entitled to. The petitioner was required to submit Sales Report at specific intervals of time. One such Sales Report was returned back by the Company alleging that the petitioner was transferred to Mumbai and therefore, the sales effected in his earlier place of posting at Dimapur was not acceptable. The petitioner claimed to have not received any such transfer order. Subsequently, photocopy of the transfer was furnished to the petitioner, which the petitioner stated to be a manufactured document. It is stated that from December 2008, the Company had stopped payment of salary and wages as also other allowances admissible to the petitioner for the service rendered. While stating that he is not adverse to the idea of going on transfer to Mumbai, he had stated that before he could actually move to Mumbai, he must be paid his entire salary with allowance and incentive by the Company and till such time it is paid, he be continued to be treated as on leave. It has also been stated that the Company had sent other Medical Representatives in the territory which the petitioner used to look after for sales purposes on the plea that the writ petitioner had voluntarily abandoned the Company service. 3. It has also been stated that the Company had sent other Medical Representatives in the territory which the petitioner used to look after for sales purposes on the plea that the writ petitioner had voluntarily abandoned the Company service. 3. The petitioner filed an application before the respondent No. 2 dated November 3, 2010 on the subject of- "An application to raise Industrial Dispute for setting aside the transfer order dated December 8, 2008, payment of compensation, incentive and back wages with continuity of service in specified H.Q. at Dimapur, Nagaland" with the following prayer:- "In the premises aforesaid, it is most humbly prayed that your honour would be pleased to allow the instant application raising Industrial Dispute and refer to Labour Court to set aside the transfer order dated December 8, 2008 and for payment of damages, compensation, incentives, back wages (as per the figure shown in the separate list) with continuity of service at specified H.Q. Dimapur and also interest and costs and such other relief or reliefs as may be deemed just and proper, in the interest of justice." 5. The respondent No. 2 by the impugned order dated November 9, 2010 passed the following order: In inviting a reference to your application on the subject cited above, the undersigned would like to offer the following observations as stated below: Observations As per page 9(a) of the petitioner, he had asked relief for 8 counts. In regard to first count i.e. Transfer, there is no material to interfere as per condition given by the company in the first appointment order at Annexure-2. With regard to the payment of ` 50,00,000/-award, he himself had agreed to take `5 Lakhs only as per record. Out of the ` 5 Lakhs he had already received ` 3 Lakhs and the balance of ` 2 Lakhs seems to be due. In regard to the salary/wages, the petitioner did not join on duty with effect from December 2008 till date. On this count any employee without performing his assigned official duties it may not be justified to interfere. With regard to the continuity of service, in the 6th count, there may be specific rules and norms regarding the service at Annexure-2. Page No. 13 may be important as it speaks about the headquarter, posting place and power of the Company Authority. With regard to the continuity of service, in the 6th count, there may be specific rules and norms regarding the service at Annexure-2. Page No. 13 may be important as it speaks about the headquarter, posting place and power of the Company Authority. In the substance as per the available copy of documents attached to the petitioner, Nagaland Joint Labour Commissioner Office do not have any jurisdiction to take up this issue. Therefore, it is regretted to return your application for further necessary follow up actions to be initiated from your end as per the provisions in records mentioned above. 5. Aggrieved, the writ petitioner has filed this application challenging the said order dated November 9, 2010. By order dated May 2, 2011, this Court, while listing the case for admission hearing on May 18, 2011, also observed that the writ petitioner shall address the Court on the maintainability of the writ petition in the absence of the employees. 6. I have heard Mr. M. Wapang, learned counsel for the petitioner and Mr. N.M. Jamir, learned Government Advocate for the State respondent. Both the counsel submitted that along with the question of maintainability, the matter should be heard also on merits. Accordingly, the writ petition is taken up for final disposal including the very maintainability of the writ petition. 7. The learned counsel for the petitioner submits that the order passed by respondent/No. 2 is an administrative order and by such order, no rights of the parties are adjudicated and determined. Therefore, when such an order is challenged by a party who had called upon the appropriate Government to decide on the question as to whether a reference to the Labour Court and Industrial Tribunal is called for and merited in a writ proceeding, the employer is neither a necessary party nor a proper party and therefore, the instant application is maintainable in absence of the employer. The learned counsel placed reliance on the judgment in the case of Government of Madras v. Workman, South India Saiva Siddhanta Works Publishing Society AIR 1964 Mad 468 : 1964-I-LLJ-228. 8. Mr. Jamir, learned counsel representing the respondents, submits that entire grievance of the writ petitioner is because of actions taken by his employer and therefore the writ petition, in absence of the employer, is clearly not maintainable, employer being a necessary party and, therefore, prays for dismissal of the writ petition. 9. 8. Mr. Jamir, learned counsel representing the respondents, submits that entire grievance of the writ petitioner is because of actions taken by his employer and therefore the writ petition, in absence of the employer, is clearly not maintainable, employer being a necessary party and, therefore, prays for dismissal of the writ petition. 9. So far as the legality of the order dated November 9, 2010 is concerned, the learned counsel for the petitioner submits that a bare perusal of the order would indicate that the Respondent No. 2 had arrogated himself to be an adjudicator and had gone on to decide the merit of the disputes raised by the petitioner, which is clearly beyond his jurisdiction. It is contended that order dated November 9, 2010 suffers from vagueness and it is not clearly discernible what is sought to be conveyed by the Respondent No. 2. It is not clear as to how having decided, on the merit of the disputes, he could have opined that he did not have any jurisdiction to take up the issues. It is also beyond anybody's comprehension as to what is sought to be conveyed by the last para of the order dated November 9, 2010. It is submitted that the order dated November 9, 2010 cannot be sustained in law and therefore, necessarily, the Respondent No. 2 is liable to be directed to reconsider the application dated November 3, 2010 in accordance with law. It is submitted by the learned counsel for the petitioner that, at any rate, on such application being filed by the petitioner at least a conciliation proceeding should have been drawn up by the Respondent No. 2. 10. Mr. Jamir, however, submits that there is no ambiguity in the order dated November 9, 2010 and the message is clear that the plea for referring the dispute to the Labour Court is regretted and turned down. 11. It will be only opposite to first decide on the issue of maintainability of the writ petition in view of the fact that the petitioner has chosen to delete the employers and its functionaries from the array of parties. 11. It will be only opposite to first decide on the issue of maintainability of the writ petition in view of the fact that the petitioner has chosen to delete the employers and its functionaries from the array of parties. To determine the issue it will be relevant to consider the nature of the order passed by the Respondent No. 2 on the application filed by the petitioner which, in essence was a request for raising an Industrial Dispute and to refer the same to the Labour Court to set aside the order dated December 8, 2008 and for payment of compensation, incentives, back wages etc. 12. Chapter III of the Industrial Dispute Act, 1947, for short, the Act, provides the scheme of reference of disputes to Boards, Courts or Tribunals. Section 10(1) of the Act provides that where the appropriate Government is of the opinion that any Industrial dispute exists or is apprehended, it may, at any time, by order in writing, refer the dispute to any of the authorities set out in Clauses (a) to (d). The main object of the Act is to provide an efficacious and expeditious forum for decision of industrial disputes by referring them to adjudication, and thereby avoiding industrial conflict. Section 10(1), as would appear, confers discretionary power to appropriate Government either to refuse or to refer an industrial dispute as provided therein. Needless to say, that discretion, undoubtedly, has to be exercised bona fide on relevant and germane consideration having regard to the material facts. Section 10A is not necessary for the purpose of the instant case and therefore it is not considered necessary to elaborate on the scheme of Section 10A. 13. Chapter IV deals with the procedure, powers and duties of authorities and in the context of the case, it may not be out of place to refer to Section 12 of the Act which deals with the duties of Conciliation Officers. Section 12(1) provides, amongst others, that where 'any industrial dispute exists or is apprehended,' the Conciliation Officer may hold conciliation proceeding in the manner prescribed in Section 12(2) to Section12(4). Section 12(1) provides, amongst others, that where 'any industrial dispute exists or is apprehended,' the Conciliation Officer may hold conciliation proceeding in the manner prescribed in Section 12(2) to Section12(4). Suffice it is to say that it should be his endeavor to induce the party to come to an amicable settlement of the dispute and he should send report to the appropriate Government in the case of arriving at settlement of the dispute and also in a case where settlement could not be arrived at. In the event the conciliation proceeding had failed, it would be the duty of the appropriate Government to consider such report of the Conciliation Officer and to make a reference, if the appropriate Government is satisfied that a case for reference is made out. Even in a case where the appropriate Government does not make a reference, the Section provides that reasons thereof should be communicated to the parties concerned. 14. The Supreme Court in the case of State of Madras v. C.P. Sarathy and Another; AIR 1953 SC 53 : 1953-I-LLJ-174, laid down the law that in making a reference under Section 10(1), the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any less administrative in character. It is in this perspective the validity of such order is to be judged and the principles applied in respect of judicial or Quasi-judicial determination cannot be applied in respect of such administrative orders. Such order being an administrative order, it is implicit that there are no two parties before the appropriate Government when it forms the opinion either to refer or not to refer for adjudication an industrial dispute by an appropriate Tribunal or Court and therefore, the question of affecting the right of any party by such an administrative decision on the part of the appropriate Government does not arise. It is now well settled that a writ of mandamus can issue even in respect of administrative decision. Section 10(1)casts a duty on the appropriate Government and therefore, there can be no manner of doubt that a writ of mandamus would lie against the Government, in case its refusal to refer a dispute is based on wholly irrelevant consideration and is not bona fide. Section 10(1)casts a duty on the appropriate Government and therefore, there can be no manner of doubt that a writ of mandamus would lie against the Government, in case its refusal to refer a dispute is based on wholly irrelevant consideration and is not bona fide. 15. It would, therefore, appear to me that a writ petition would be maintainable when an order refusing to refer a dispute is challenged by a workman, in absence of the management and/or his employers. The case relied on by Mr. Wapang in Madras v. Workman, South. India Saiva Siddhanta Works Publishing Society (supra) is also to the effect that it will be not necessary for any aggrieved person moving the writ Court for the issue of a writ of mandamus to direct the appropriate Government to refer an Industrial Dispute under Section 10(1) of the Act, to implead the employer as a party to the proceedings. Accordingly, I hold the writ petition to be maintainable in its present form. 16. The next question for consideration is the legality and validity of the order dated November 9, 2010. A perusal of the order would indicate that observation of the Respondent No. 2 with regard to transfer is that there is no material to interfere as per condition given by the Company in its first appointment order. His observation with regard to salary and wages are to the effect that the petitioner having not joined on duty w.e.f. December 2008, it may not be justified to interfere on that count. With regard to continuity of service, the respondent No. 2 also hinted some reservation having regard to the Rules and norms regarding his service. So also are his observations with regard to the authority of the Company in connection with place of posting. These observations tend to portray a picture as if the respondent No. 2 had adjudicated the disputes in a very summary manner. 17. Find substance in the argument of the learned counsel for the petitioner that it is not clear as to whether the Nagaland Joint Labour Commissioner's office did not have inherent jurisdiction to take up the application of the writ petitioner or the term jurisdiction has been used in a very loose form. 17. Find substance in the argument of the learned counsel for the petitioner that it is not clear as to whether the Nagaland Joint Labour Commissioner's office did not have inherent jurisdiction to take up the application of the writ petitioner or the term jurisdiction has been used in a very loose form. If the Respondent No. 2 did not have any inherent jurisdiction, there should have been no occasion for him to have ventured to give his opinion on the issues raised by the petitioner. It is also irreconcilable with his ultimate decision to return the application for further necessary follow up action to be initiated by the petitioner "as per the provision in record mentioned above." It has not been indicated what further necessary action is to be initiated. If application is returned, then there cannot be any further follow up necessary action. This Court is left to hazard a guess as to the meaning and purport of such observations. 18. No arguments have been advanced by the learned counsel for the State respondent that Respondent No. 2 is not the appropriate Government and is not entitled to decide the application submitted by the petitioner for raising an industrial dispute and for reference to the Labour Court. 19. Going back to Section 10(1) of the Act, I find that the appropriate Government is to form an opinion that any industrial dispute exists or is apprehended and it has to refer the dispute by an order in writing. This formation of opinion and consequent order in writing cannot be put on the same pedestal as a decision in a judicial adjudication. Nevertheless, for the formation of the opinion, it may be inevitable for the Government to go into the merit of the case to some extent for the purpose of deciding as to whether a reference is called for or not. But certainly it cannot go to the extent of virtually resulting in adjudication of the case on merits. In the instant case, it appears to me that is what has happened, at least on a few issues raised by the petitioner. I am constrained to hold that Respondent No. 2 has not addressed the issues raised by the petitioner in the right perspective and in the light of various provisions of the Act. 20. In the result, the writ petition is allowed. I am constrained to hold that Respondent No. 2 has not addressed the issues raised by the petitioner in the right perspective and in the light of various provisions of the Act. 20. In the result, the writ petition is allowed. The impugned order dated November 9, 2010 is set aside and quashed. Respondent No. 2 is directed to consider the application dated November 3, 2010 afresh and to pass orders thereon within a period of 6 weeks from the date of receipt of a Certified Copy of this order. The Respondent No. 2, while passing the order, will bear in mind the various provisions of the Act having a bearing on the issues. Respondent No. 2 is also further directed to communicate his decision to the writ petitioner forthwith on rendering of his decision. No costs. Petition allowed.