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2016 DIGILAW 608 (ORI)

Brundaban Maharana v. Govt. of India

2016-08-08

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. The petitioner has filed this application seeking for a direction to the opposite parties to initiate conciliation proceeding and/or to refer the dispute for adjudication on the provisions of the Industrial Disputes Act, 1947. 2. Opposite parties 1 and 2 have filed counter affidavit stating therein that the conciliation process having failed, the Asst. Labour Commissioner submitted Failure Report on 31.05.1996 under Section 12(4) of the I.D. Act, 1947 to opposite party no.1. On receiving the said report, opposite party no.1 rejected the same without referring the dispute to the Tribunal for adjudication on the ground of delay. 3. Before going through the fact of the case, it would be relevant to go through the provision of Section 10 (1) which confers power upon the appropriate Government to the effect that where the appropriate Government is of the opinion that any industrial dispute exists or it apprehended, it may at any time by order in writing refer the dispute to the competent court. Thus, the word “at any time” used in Section 10(1) do not admit any limitation in making an order of reference. 4. However, policy of the industrial adjudication is that very stale claims should not be generally encouraged or allowed unless there is satisfactory explanation for delay, as, apart from the obvious risk to industrial peace from entertaining the claims after long lapse of time. In the case of Shalimar Works Ltd. vrs. Their Workmen reported in AIR 1959 SC 1217 , the Hon’ble Supreme Court has pointed out that though there is no limitation prescribed in making a reference of disputes to Industrial Tribunal under Section 10(1) even so it is only reasonable that disputes should be referred as soon as possible after it has arisen and after conciliation proceeding have failed. In another judgment rendered by the Hon’ble Supreme Court in the case of Mahavir Singh vrs. U.P. State Electricity Board and another reported in (1999) 9 SCC 178 , it has been held that merely on the ground of delay of 9 years, reference cannot be denied and that mere delay does not cease the dispute. 5. With respect to the issue involved in this case, the proposition as laid down from the judgment rendered by the Hon’ble Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another Vrs. 5. With respect to the issue involved in this case, the proposition as laid down from the judgment rendered by the Hon’ble Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another Vrs. State of Bihar and others reported in (1989) 3 SCC 271 whereby and where under their Lordships have been pleased to hold at para-11 that in considering the question of making a reference under Section 10(1), the government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended, but it is not entitled to adjudicate the dispute itself on merits. Further at paragraph-13, it has been held that while exercising power under Section 10(1) of the Act, function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and in performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act and thereafter taking into consideration the judgments rendered by the Apex Court in the case of Ram Avtar Sharma vrs. State of Haryana reported in (1985) 3 SCC 189 ; M.P. Irrigation Karmachari Sangh Vrs. State of M.P. reported in (1985) 2 SCC 103 ; Shambhu Nath Goyal Vrs. Bank of Baroda, Jullundur reported in (1978) 2 SCC 353 , their Lordships in these cases has been pleased to hold that the issue regarding the merit is to be adjudicated by making a reference before the Tribunal under Section 10(1) of the Act. In another judgment rendered by the Apex Court in the case of Sarva Shramik Sangh Vrs. Indian Oil Corporation Ltd. & Ors., reported in AIR 2009 SC 2355 where relying upon the ratio laid down by the Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another Vrs. State of Bihar and others (supra) their Lordships has been pleased to hold at paragraphs 13 and 15 which is being quoted below:- “13. Indian Oil Corporation Ltd. & Ors., reported in AIR 2009 SC 2355 where relying upon the ratio laid down by the Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another Vrs. State of Bihar and others (supra) their Lordships has been pleased to hold at paragraphs 13 and 15 which is being quoted below:- “13. Thus, it can safely be concluded that a writ of mandamus would be issued to the appropriate government to reconsider the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate government examining the merits of the dispute and prejudging/adjudicating/determine the dispute; (iii) the refusal is mala fide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the failure report of the Conciliation Officer or is not supported by any reason. 15. in view of the above we allow this appeal and direct the Central Government to reconsider the matter in the light of the observations above and take an appropriate decision on the request for reference of the dispute to the industrial adjudicator. As and when the state government makes the reference, it is for the Industrial Tribunal to consider the dispute on merits, on the basis of materials placed before it, uninfluenced by the observations of the High Court or this Court.” Thus, from the proposition laid down by the Hon’ble Apex Court, there is no dispute about the fact that when any dispute exists or is apprehended, the matter is to be referred by the appropriate government in exercise of power conferred under Section 10(1) of the I.D. Act. Thus, it is settled proposition of law that if there is any dispute which has to be adjudicated and for which reference is necessary to be made. 6. So far as fact of the case in hand is concerned, it is evident that the conciliation process having failed, the Asst. Labour Commissioner (Central) submitted his Failure of Conciliation Report on 31.05.1996 under Section 12(4) of the Industrial Disputes Act, 1947 to the Govt. of India, Ministry of Labour, New Delhi for appropriate action. 7. 6. So far as fact of the case in hand is concerned, it is evident that the conciliation process having failed, the Asst. Labour Commissioner (Central) submitted his Failure of Conciliation Report on 31.05.1996 under Section 12(4) of the Industrial Disputes Act, 1947 to the Govt. of India, Ministry of Labour, New Delhi for appropriate action. 7. The reference has been refused by the Central Government through its Ministry of Labour vide communication dated 3.10.1996 (Annexure-8 to the counter affidavit) assigning the reason that the dispute was raised belatedly without furnishing adequate reasons to justify the delay. 8 Admittedly, the conciliation process having failed, the Conciliating Officer has submitted the Failure Report on 31.05.1996 and the reference has been refused having been communicated vide communication dated 3.10.1996. It further appears from Annexure-1 dated 13.04.1994 issued under the signature of Asst. Labour Commissioner (Central) addressed to the General Manager, Indian Rare Earths Ltd., Dist.- Ganjam that the issue of regularization of service of the petitioner was under consideration as on 13.04.1994, since the Asst. Labour Commissioner (Central), Bhubaneswar has requested the General Manager to offer his comments in the matter within 10 days from the date of receipt of the letter. The General Manager, Indian Rare Earths Ltd.-opposite party no.3 after receiving the notice from opposite party no.2 submitted a report of the Asst. Labour Commissioner indicating that the opposite party-workman has got no case on merit and after taken note of the same, the Asst. Labour Commissioner (Central) has submitted the Failure of Conciliation Report on 31.05.1996. It further appears from the stand of the opposite parties, which has been taken by them in the counter affidavit at para-8 that the industrial dispute over regularization of services of the petitioner has already been disposed of by opposite parties 1 and 2. 9. Thus, there is no dispute about the fact that the employer has come out with the specific stand that the dispute regarding regularization of service of the petitioner has already been decided and thereafter the opposite party-workman being not satisfied has made an application before the Asst. Labour Commissioner (Central) to adjudicate the dispute and on failure of conciliation, Failure Report was submitted on 31.05.1996 but the appropriate Government i.e., the Central Government in exercise of power conferred under Section 12(5) of the Industrial Disputes Act, 1947 has refused to refer the dispute on the ground of delay. Labour Commissioner (Central) to adjudicate the dispute and on failure of conciliation, Failure Report was submitted on 31.05.1996 but the appropriate Government i.e., the Central Government in exercise of power conferred under Section 12(5) of the Industrial Disputes Act, 1947 has refused to refer the dispute on the ground of delay. 10. However, the reference has been refused on the ground of delay, but the appropriate Government without mentioning therein that who is at fault in causing the delay whether the delay is on the part of the employer or the delay in raising dispute on the part of employee, this issue is also forms a part of the merit to be adjudicated by an independent forum having its competency and also refusing the dispute on the ground of delay cannot said to be justified one. 11. Accordingly and applying the principle laid down by the Hon’ble Apex Court, we are of the conscious view that the matter regarding the claim of the petitioner needs to be considered, but taking into account the fact that the conciliation has failed in the month of May, 1996 as such it would not be appropriate to remit the matter before appropriate Government to pass fresh order, to refer the matter before the appropriate court of law for adjudication of the dispute after lapse of twenty years rather in the facts and circumstances of the case, it would be appropriate to direct appropriate government to make reference under Section 10(1) of the Industrial Disputes Act, 1947 within three months from the date of receipt of copy of this order and thereafter it is for the Industrial Tribunal to consider the case on merit on the basis of material before it. It will be decided by the Tribunal without being prejudice by any observation made by this Court. Accordingly, the writ petition stands disposed of.