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2014 DIGILAW 428 (CAL)

Saj Industries Pvt. Ltd. v. State of West Bengal

2014-05-08

SOUMEN SEN

body2014
JUDGMENT Soumen Sen, J. This writ application is directed against an order passed by the First Labour Court on 23rd March, 2011 rejecting an application filed by the petitioner for deciding the maintainability of the application filed by the private respondent workman under Section 10(1B) as a preliminary issue. The writ petitioner contends that the private respondent workman was appointed on 8th October, 2000 in the Managerial Rank with effect from 10th October, 2000. The said appointment was initially on probation for a period of one year. The nature of the job to be performed by the respondent No.4 involved periodic analysis of finished products from warehouse and jobs associated with quality control of inputs and finished products as per instruction of the Technical Manager. During the probationary period of service, the performance of the respondent No.4 was not found to be satisfactory. The Administrative Manager by a letter dated 30th November, 2000 had brought to the aforesaid fact to the notice of the Chairman. The respondent No.4 was also found to be absent from duty since 13th March, 2001 and the service of the respondent No.4 was found to be below the standard required of a Chemist. On 12th January, 2001, the Chairman of the Company had requested the respondent No.4 to look for a suitable employment elsewhere. Subsequently, on 12th February, 2001, the respondent No.4 was offered one month’s salary without attendance so as to enable him to look for a suitable job in some other organization and in the meantime, he was advised to collect his one month’s notice pay on 5th April, 2001. The respondent No.4, however, by two several letters dated 30th March, 2001 and 17th April, 2001 alleged that he was not allowed to enter the factory premises and the company had refused to allow him to attend to his work. In view of lack of performance and inefficiency, the petitioner company was constrained to terminate the probationary period of service of the respondent No.4 by a letter dated April 18, 2001 within a period of 6 months from the date of appointment of the respondent No.4 as probation. In view of lack of performance and inefficiency, the petitioner company was constrained to terminate the probationary period of service of the respondent No.4 by a letter dated April 18, 2001 within a period of 6 months from the date of appointment of the respondent No.4 as probation. After the termination of service of the respondent No.4, the said respondent raised an industrial dispute with the Conciliation Officer by a letter dated 1st May, 2001 and subsequently he referred the dispute to the Conciliation Officer under the Industrial Disputes Act, 1947 on 4th June, 2001 and 14th August, 2001 respectively. The management participated in the conciliation proceeding after having received the conciliation memos. It is contended that the dispute raised by the respondent No.4 before the Conciliation Officer suffered inherent lack of jurisdiction inasmuch as the said respondent was not a “workman” within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The respondent No.4 applied for a certificate regarding pendency of the conciliation proceeding on expiry of the period of 60 days and on that basis the Conciliation Officer had issued a certificate in Form “S” regarding pendency of the conciliation proceeding. On the basis of the said certificate, the respondent No.4 filed an application under Section 10(1B) of the Industrial Disputes Act, 1947 before the learned First Labour Court, West Bengal. The learned First Labour Court being the respondent No.3 on the basis of such application framed the following issues for adjudication:- a) Is the application of the workman/petitioner in the present form under Section 10(1B) of the I.D. Act, 1947 maintainable according to law? b) Whether the termination order dated 18.04.2011 and report of employment w.e.f. 15.03.2011 are illegal, wrongful, mala fide? c) Is the applicant entitled to relief as prayed for in the instant case and to what other reliefs, if any, is the applicant entitled to? The learned Labour Court, thereafter, pronounced an ex parte award on 17th August, 2006 which, however, was set aside by an order dated 29th November, 2007 passed by this Hon’ble Court in W.P.No.1661 of 2006 filed by the writ petitioner. The matter was remanded to the respondent No.3 without going into the merits of the case. The learned Labour Court, thereafter, pronounced an ex parte award on 17th August, 2006 which, however, was set aside by an order dated 29th November, 2007 passed by this Hon’ble Court in W.P.No.1661 of 2006 filed by the writ petitioner. The matter was remanded to the respondent No.3 without going into the merits of the case. After remand, the petitioner company filed an application dated 4th June, 2008 praying, inter alia, for a direction upon the Assistant Labour Commissioner, Uluberia, Howrah to produce the records relating to the case of respondent No.4 for the purpose of verification from the conciliation records as to whether the Conciliation Officer on receipt of a representation from the respondent No.4 had investigated the matter and satisfied himself as regards existence of an industrial dispute and, thereafter, had taken steps for the purpose of inducting the parties to come to speedy, fair and amicable settlement of the dispute. In other words, the said application was filed inviting the learned Labour Court to decide the issue as to whether pre-conditions of Rule 12A of the West Bengal Industrial Disputes Rules, 1958 (as amended) had been complied with by the Conciliation Officer or not. On 3rd February, 2009, the representative of the respondent No.2 had produced the conciliation records pertaining to the case before the respondent No.3. The petitioner, thereafter took inspection of the conciliation records and it was found that the conciliation file does not record the satisfaction of the Conciliation Officer. The petitioner company thereafter filed an application on 29th April, 2009 stating that the pre-conditions of Rule 12A of the West Bengal Industrial Dispute Rules, 1958 having not been fulfilled by the Conciliation Officer before issuing the certificate in Form “S” and, accordingly, the initiation of proceeding before the learned Labour Court and maintainability of the case before the learned Court under Section 10 (1B)(d) of the I.D. Act, 1947 is unsustainable and dehors the provision of the statute. This application filed by the petitioner company was dismissed by the Tribunal. Mr. Soumya Majumdar, the learned Counsel appearing on behalf of the petitioner submits that the Conciliation Officer under the provisions of Section 10(1B) of the Industrial Disputes Act, 1947 read with Rule 12A of the West Bengal Industrial Disputes Rules, 1958, is required and obliged to ascertain if an industrial dispute exists and only thereafter the learned Labour Court could have assumed jurisdiction. It is argued that the bare perusal of the record of the Conciliation Officer would show that the said Form “S” has been issued by the Conciliation Officer without investigation as to the existence of an industrial dispute between the respondent No.4 and the petitioner company. The said certificate in Form “S” had been issued by the Conciliation Officer mechanically and without application of mind inasmuch as there were no material available on record to arrive at a conclusion or any satisfaction whatsoever regarding existence of an industrial dispute relating to the condition of service of the respondent No.4. The learned Counsel has referred to Section 10(1B) of the Industrial Disputes Act, 1947 as amended and Rule 12A of the West Bengal Industrial Dispute Rules, 1958. The said provisions and rules are set out hereinbelow:- “S.10(1B) (a)Notwithstanding anything contained elsewhere in this Act, where in a conciliation proceeding of an industrial dispute relating to an individual workman, no settlement is arrived at within a period of sixty days from the date of raising of the dispute, the party raising the dispute may apply to the Conciliation Officer in such manner and in such form as may be prescribed, for a certificate about the pendency of the conciliation proceedings. (b) The Conciliation Officer shall, on receipt of the application under clause (a), issue a certificate within seven days from the date of receipt, in such manner, in such form and containing such particulars as may be prescribed. A copy of the certificate shall also be sent to the appropriate Government for information. (c) The party may, within a period of sixty days from the receipt of such certificate or, where such certificate has not been issued within seven days as aforesaid, within a period of sixty days commencing from the day immediately after the expiry of seven days as aforesaid, file an application in such form and in such manner and with such particulars of demands as may be prescribed, to such Labour Court or Tribunal as may be specified by the appropriate Government by notification. Different Labour Courts or Tribunals may be specified for different areas or different classes of industries. Different Labour Courts or Tribunals may be specified for different areas or different classes of industries. (d) The Labour Court or Tribunal specified under clause (c) shall, within a period of thirty days from the date of receipt of an application under clause (c), give a hearing to the parties and frame the specific issues in dispute, and shall thereafter proceed to adjudicate on the issues so framed as if it were an industrial dispute referred to in sub-section (1). R.12A. Settlement of dispute on representation from individual workman. – (1) The Conciliation Officer on receipt of a representative relating to an individual workman, shall investigate the matter and if he is satisfied that an industrial dispute exists, he shall take all such steps as he thinks fit and proper for the purpose of inducing the parties to come to a speedy, fair and amicable settlement o the dispute. (2) If no settlement of the industrial dispute mentioned in sub-rule (1) is arrived at within a period of 60 days from the date of raising of the dispute the party raising the dispute may apply to the Conciliation Officer personally or by registered post with acknowledgement due in Form P 4 for a certificate about the pendency of the conciliation proceedings before such Conciliation Officer. (3) The Conciliation Officer, on receipt of the application referred to in sub-section (1B) of section 10, shall within 7 days from the date of receipt of such application, issue a certificate about the pendency of conciliation proceedings to the applicant in Form S. (4) The party may, within a period of 60 days from the date of receipt of such certificate or, when such certificate has not been issued within 7 days under sub-rule (3), within a period of 60 days commencing from the day immediately after expiry of 7 days as aforesaid, file an application in Form T to such Labour Court or Industrial Tribunal as may be specified by the State Government by notification in the Official Gazette.” The learned Counsel submits that the sequence of events contemplated under Rule 12A has not been followed. The Conciliation Officer first under the said rule is required to investigate into the matter and satisfy himself about the existence of an industrial dispute. The Conciliation Officer first under the said rule is required to investigate into the matter and satisfy himself about the existence of an industrial dispute. Thereafter, he is required to take steps for inducing the parties to come to a speedy, fair and amicable settlement of the dispute. If the dispute remains unresolved within a period of 60 days from the date of raising the dispute, the right to apply for certificate accrues. Just because no time frame is provided within which the Conciliation Officer to arrive at his satisfaction that an industrial dispute exists does not mean that even for that satisfaction the right would accrue to a party to apply before the Labour Court or the Tribunal. Any contrary interpretation would render sub-clause (1) of Rule 12A otiose. The necessity of pre-existence of an industrial dispute is sine qua non to initiate a proceeding under Section 10(1B) of the Act and the same is also apparent from the provisions of Rule 12A which lays down the implementation process of this resolution mechanism. A composite reading of the said provisions, the learned Counsel would argue, that is Section 10(1B) of the Act and Rule 12A would reveal that the duty of the Conciliation Officer is divided into two parts, one without a time frame and the other with a time frame with a further provision as to what would happen if the time lapses. The aforesaid argument is based on a decision cited and relied upon by Mr. Majumdar reported in 2008 (3) CHN 329 (C.E.S.C. Limited Vs. State of West Bengl & Ors.). Au Contraire, Mr. Saibal Mukherjee, the learned Counsel for the workman submits that the filing of the present writ application is a clear afterthought with a view to delay the hearing of the main matter. It is submitted that on an earlier occasion, the writ petitioner has deliberately avoided to appear before the learned First Labour Court and after an award was passed, they have challenged the said award in a writ petition being No.1661 of 2006. The writ petition was allowed by setting aside an ex parte order with an observation that the Tribunal shall decide the issues. Thereafter, the petitioner filed the said application for deciding the question of maintainability of the proceeding as a preliminary issue on the basis of the conciliation records produced by the Conciliation Officer. The writ petition was allowed by setting aside an ex parte order with an observation that the Tribunal shall decide the issues. Thereafter, the petitioner filed the said application for deciding the question of maintainability of the proceeding as a preliminary issue on the basis of the conciliation records produced by the Conciliation Officer. The learned Counsel has referred to the minutes of the proceeding before the Conciliation Officer and submitted that the writ petitioner has never challenged the status of the private respondent in the course of conciliation proceeding. It is submitted that from a conjoint reading of the provisions of Section 10(1B) of the Act read with Rule 12A of the Rules, it is apparent that in the event of failure on the part of the Conciliation Officer to act in accordance with the provisions of the Act, that is to say, if the Conciliation Officer does not decide the matter at all, the Labour Court is not precluded to form an opinion on the basis of the materials available on record. The principal ground of challenge in this writ petition appears to be that the Form “S” has been issued by the Conciliation Officer without investigation as to the existence of the dispute between the respondent No.4 and the petitioner Company. The petitioner has annexed the relevant records produced by the Conciliation Officer in terms of order passed by the Labour Court dated 3rd February, 2009 and 16th February, 2009. The propriety and legality of the said certificate issued in Form “S” has to be judged on the basis of the record available and produced before the Labour Court. In a country governed by rule of law, there has to be an easy access to justice. Courts and/or Tribunals, as the case may be, are established to administer justice. Industrial Disputes Act, having regard to the object, it seeks to achieve, namely, an expeditious mode of settlement of the industrial dispute establishes Labour Court and Tribunals to look into and adjudicate industrial disputes. The Act makes provisions for investigation and settlement of industrial disputes and for certain other purposes appearing from the statute itself. The subject matter of industrial disputes is to be adjudicated by Tribunals and/or Labour Courts only as the case may be. The jurisdiction of Civil Courts is ordinarily excluded. The Act makes provisions for investigation and settlement of industrial disputes and for certain other purposes appearing from the statute itself. The subject matter of industrial disputes is to be adjudicated by Tribunals and/or Labour Courts only as the case may be. The jurisdiction of Civil Courts is ordinarily excluded. In order to maintain industrial peace and harmony, parties are first required to initiate dialogue in order to resolve their dispute. In the event, private negotiations and/or discussions fail then the parties are required to approach an officer who is designated as a Conciliation Officer under the Act who is required to facilitate a negotiation in order to arrive at a settlement. The Conciliation Officer is required to investigate to find out the nature of the dispute and in the event of failure on consideration of such failure report, the appropriate Government may decide to refer such dispute to an industrial adjudicatory body. Mr. Majumdar is right in his submission that the procedure under Section 10(1B) of the Act read with Rule 12A of the Rules contemplates that before the Conciliation Officer if the parties fail to arrive at a settlement within a period of 60 days from the date of raising the dispute, the party raising the dispute might apply to the Conciliation Officer in such a manner and in such form as may be prescribed for a certificate about the pendency of the conciliation proceeding. In the instant case, the private respondent has approached the Labour Court with this certificate which is in Form “S” and on the basis of such certificate, the Tribunal framed specific issues before proceeding to adjudicate the dispute. The Section does not say about any investigation to be carried out by the Conciliation Officer. However, Rule 12A requires the Conciliation Officer to investigate the matter and if he is satisfied that the industrial dispute exists then he is required to take all such steps which he would think fit and proper for the purpose of inducing the parties to come to a speedy, fair and amicable settlement of the dispute. In my view, the use of the word “inducing” in the rules is not an appropriate expression and it should have been “facilitating” instead of ‘inducing’. In my view, the use of the word “inducing” in the rules is not an appropriate expression and it should have been “facilitating” instead of ‘inducing’. However, the said rules provide if no settlement is reached within a period of 60days from the date of raising the dispute, the party raising the dispute may apply to the Conciliation Officer personally or by a registered post in Form ‘P’ for a certificate about the pendency of the conciliation proceeding before such Conciliation Officer. The Conciliation Officer, on receipt of such application referred to in subsection (1B) of Section 10, shall within 7 days from the date of receipt of such application, issue a certificate about the pendency of conciliation proceeding to the applicant in Form “S”. In the instant case, it is an admitted position that no settlement has been arrived at before the Conciliation Officer. Raising of a demand and denial of it is the basic element of a dispute. The assertion of right and putting up a defence to resist such claim is the essential feature of a dispute. The documents produced before the Conciliation Officer during conciliation shows that the parties have failed to arrive at a settlement within the time prescribed under the statute. The private respondent applied for issuance of certificate in Form “S”. The Conciliation Officer has issued such certificate. The issuance of the said certificate cannot be said to have been issued mechanically. Even if one assumes for the sake of argument that the Conciliation Officer has issued the said certificate without any application of mind, when the party applies to the Tribunal on the basis of such certificate and a plea is raised before the Labour Court that there is no recording of any satisfaction that an industrial dispute exists, the Labour Court would not be without jurisdiction and incompetent to look into the records before the Conciliation Officer in order to arrive at a finding that an industrial exists. The formation of opinion at the stage of receiving an application and framing of the issues, is not conclusive and subject to the final haring, that is to say, in such a reference the writ petitioner is competent to raise issue that the applicant workman before the Tribunal is not a workman. The formation of opinion at the stage of receiving an application and framing of the issues, is not conclusive and subject to the final haring, that is to say, in such a reference the writ petitioner is competent to raise issue that the applicant workman before the Tribunal is not a workman. The Conciliation Officer at the time of investigation cannot form an opinion with regard to the status of the person raising the dispute. The investigation is only for the purpose of ascertaining if an industrial dispute exists. Even on the basis of the averments made in this writ petition, it clearly appears that there exists industrial dispute which does not necessarily mean that in arriving at such a conclusion, the Tribunal or for that matter this Court has to definitely pronounce a judgment or arrive at a finding as to the status of the private respondent. The Act and the Rules do not require the Conciliation Officer to arrive at such a finding. Any decision on the merits of the dispute, it is needles to mention is to be arrived at by the Tribunal when the issues are to be decided on evidence and on merits. The records before the Conciliation Officer are the evidence of the nature of the dispute canvassed before such Conciliation Officer and if it appears on the basis of such materials that a dispute exists just because that the file may not record a satisfaction by the Conciliation Officer would not render the proceeding invalid. The Conciliation Officer cannot take a decision relating to the merits of the industrial dispute or pass an interim and final order during the conciliation proceeding. It is not for the Conciliation Officer to enter into the merits of the industrial dispute. At the conciliation proceeding what is relevant note is that if ex facie on the consideration of the demands, they do not partake or have the character of conditions of service or terms of employment, the Conciliation Officer cannot be called upon to enter into conciliation proceeding as prima facie demands would not fall within the definition of an industrial dispute. There cannot be any doubt that the object of the Industrial Disputes Act, 1947 was not to encourage frivolous and aimless litigation but to promote industrial harmony and cordial relationship between the management and the workman and the Conciliation Officer had got a definite role and purpose. Unlike Section 11(1) of the Industrial Disputes Act, 1947 as regards the authorities like Court, Labour Court, Tribunal prescribed the procedure to be followed, there is no particular provision made as regards the procedure to be followed by a Conciliation Officer. In fact, a Conciliation Officer is not invested with a duty to decide any dispute at all. The Conciliation Officer does not deal with any lis between the parties before him so as to adjudicate upon and decide the same. It is more an investigation into the causes of the dispute than any adjudication upon the rights of the parties. On the basis of the documents on record, it is not apparent and as has been rightly held by the first Labour Court that the demand would not fall within the definition of the industrial dispute. Although the entire process of reasoning rejecting the application may have some pitfalls but not the entirety of it and some reasoning given by the Labour Court in rejecting the application, in my view, are sufficient and in accordance with law. Moreover, the writ petitioner did not take the point in the earlier writ petition that the Conciliation Officer has mechanically issued the said certificate without application of mind, although it was open for the writ petitioner to question the same in the earlier writ petition. It is trite law that acquiescence and/or waiver may not confer a jurisdiction upon a Tribunal or a Court which the said Court or Tribunal otherwise does not possess, that is to say, an inherent lack of jurisdiction. In the instant case, it is not one of inherent lack of jurisdiction. The matter is at large before the Tribunal who is competent to decide the matter. Mr. Majumdar submits that while it is true that at the stage of conciliation, the Conciliation Officer is not required to decide the status of the private respondent in relation to the writ petitioner but the fact remains that he is required to hold an investigation for the purpose of arriving at a satisfaction that an industrial dispute exists. Mr. Mr. Majumdar submits that while it is true that at the stage of conciliation, the Conciliation Officer is not required to decide the status of the private respondent in relation to the writ petitioner but the fact remains that he is required to hold an investigation for the purpose of arriving at a satisfaction that an industrial dispute exists. Mr. Majumdar has relied upon various paragraphs of the judgment, namely, C.E.S.C. Ltd. (supra) and submitted that in the said decision it has been held that the satisfaction contemplated in Rule 12A could not mean implied satisfaction to be inferred from the actions of the authorities concerned. In C.E.S.C. Ltd. (supra) the question that had fallen for determination was whether the Conciliation Officer to whom a representation has been made by the industrial workman can issue a certificate about the pendency of the proceeding in terms of Rule 12A(3) without conducting any investigation into the matter and without satisfying himself that an industrial dispute exists in terms of Rule 12A(1) of the said Rules and as a consequence thereof whether the adjudicatory authority under the Act when approached thereafter in terms of Rule 12A(4) of the said Rules would be empowered to initiate proceeding for resolving such dispute upon framing of issues in the absence of any investigation and without recordal of satisfaction on the part of the Conciliation Officer about the existence of an industrial dispute. In the said decision, it was held that there must exist an industrial dispute before the matter reaches the Labour Court or the Tribunal. The learned Judge called for record and after examining the said record and observed “I am not examining here the manner in which he conducted investigation, but the deficiency in discharge of his duty I find in this case is recordal of his satisfaction that an industrial dispute exists. I do not think such satisfaction could be implied in this case, as from the records produced by Mr. Das, I could not find any material from which it could be inferred that the Conciliation Officer had made any attempt to collect any evidence or applied his mind on the rival contentions, barring receipt of communications from the respective parties, and passing it on to the other party under cover of a letter”. Das, I could not find any material from which it could be inferred that the Conciliation Officer had made any attempt to collect any evidence or applied his mind on the rival contentions, barring receipt of communications from the respective parties, and passing it on to the other party under cover of a letter”. In the instant case, the proceedings before the Conciliation Officer would show that there exists an industrial dispute between the parties. The same would be more clear and evident from record of the proceeding held on 26th November, 2001 which is stated below:- “Both the parties appeared. The workman resented the way of illegal termination of his service. He demands immediate reinstatement of service with full back wages. But since the representative of the management refused to reinstate Sri Maity, the workman Sri Maity requests/ demands disposal of the case as per provisions of the law.” The representations made before the Conciliation Officer and the other documents forming part of the writ petition clearly show that an industrial dispute exists which needs to be adjudicated by a Tribunal or a Labour Court as the case may be. This, of course, does not mean that there is a determination of the status of the private respondent. The status of the said respondent can be decided by the Tribunal or the Labour Court if such an issue is raised before it. Mr. Majumdar does not dispute the proposition that it is for the Industrial Tribunal/Labour Court to decide the said status if an issue is raised. However, the grievance of the writ petitioner appears to be that condition precedent to the acceptance of the said application under Section 10(1B) has not been complied with and, accordingly, the assumption of jurisdiction by the Labour Court/Tribunal is wrong and erroneous. The Conciliation Officer during investigation is required to arrive at a subjective satisfaction on objective consideration before issuing Form “S” that the Conciliation Officer has failed to do which the Tribunal has overlooked and ignored is the other limb of challenge to the impugned order. Would the Labour Court be incompetent to accept such application if it appears to the Labour Court that there are sufficient materials on record from which it can be inferred that an industrial dispute exists. The recordings made by the Conciliation Officer during the conciliation proceeding are not in dispute. Would the Labour Court be incompetent to accept such application if it appears to the Labour Court that there are sufficient materials on record from which it can be inferred that an industrial dispute exists. The recordings made by the Conciliation Officer during the conciliation proceeding are not in dispute. I have already considered this mater in the earlier paragraphs of the judgment and I am of the opinion that if the materials before the Conciliation Officer justify issuance of a certificate showing pendency of the conciliation proceeding, the Labour Court is not precluded from proceeding with the matter on acceptance of the said Form “S”. The decision cited by Mr. Majumdar, in my respectful reading does not apply to the present case and is distinguishable on facts. Moreover, the said judgment, in my respectful reading does not say that if the Tribunal on the basis of the materials on record found that the issuance of certificate by the Conciliation Officer does not suffer from non-application of mind would still then dismiss the application filed by the party obtaining such certificate and again would require the parties to go through the rigmarole of Section 10(1B). In the instant case, it cannot be said that the Tribunal lacks a jurisdiction to accept Form “S” and to sustain it on the basis of perusal of record of the conciliation proceeding. That the dispute exists between the parties are undeniable and self-evident. In view of the aforesaid, the writ application fails, however, there shall be no order as to costs. It is, however, made clear that I have not gone into the merits of the dispute and the Tribunal shall decide the matter on merits without being influenced by the observation made by the Tribunal in dismissing the application filed by the writ petitioner or by any observation made in this order in upholding the impugned order.