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2016 DIGILAW 871 (ORI)

Pitambar Amat v. State of Orissa

2016-09-24

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT S.N.PRASAD, J. - The writ petition has been filed for issuance of direction upon the opposite parties to act as per Section 12 (5) of the Industrial Disputes Act, 1947 and to refer the existing industrial dispute for adjudication. 2.Fact of the case of the petitioner that he has joined on 5.10.1982 as Laboratory boy in the Orissa Industries Limited and thereafter was under probation for a period of six months, confirmed on 14.4.1985 and was drawing consolidated wage of Rs.340/- per month in addition to dearness allowance and other perquisites. The petitioner was charge sheeted and suspended on 12.6.1986 subjected to disciplinary proceeding and thereafter terminated from service on 5.8.1986. Petitioner has raised industrial dispute before the deputy Labour Commissioner, Rourkela rejecting the conciliation proceeding but conciliation failed and failure report was submitted on 8.6.1988 but appropriate Government has not taken decision in view of the provisions as contained in Section 10 (1) of the Industrial Disputes Act, 1947, hence this writ petition. 3.Counter affidavit has been filed by the opposite party No.1 intr alia therein it has been stated that the writ petition is grossly delayed at least for about 10 years and as such same should not be opened which may create administrative inconvenience to the industry, opposite party No.2 as such the writ petition may not be entertained. It has been stated that on the failure report submitted by the Conciliating Officer order has been passed by the appropriate Government on 24.12.1988 communicating to the petitioner that the dispute cannot be referred before the Labour Court. 4.We have heard learned Counsel for the parties and perused the documents available on record. We, before appreciating rival submissions, have gone through the statutory provision as contained in Section 12 (5) of the Industrial Disputes Act, 1947 which stipulates a provision that if, on 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 my 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. Provision as contained in Section 12 (5) authorizes appropriate Government to make reference and power to refuse to make reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. Provision as contained in Section 12 (5) authorizes appropriate Government to make reference and power to refuse to make reference. The first of the Statute speaks of the power of the appropriate Government to make a reference lays down that if on a consideration of the report under Sub-Section (4), the appropriate Government is satisfied that there is a case for reference. The first part of the Sub-Section has to be read as part of sub-Section (1) of Section 10 which empowers the appropriate Government to make a reference of the dispute. The combined effect of these provisions is that ordinarily the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. It is evident from the statutory provision that the Government is bound to refer the dispute to the appropriate Court or forum for adjudication. 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 Workman 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. In the case of Telco Convoy Drivers Mazdoor Sangh and another 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. 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 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 Singh 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 Sngh and anaother Vrs. State of Bihar and others (supra) their Lordships has been pleased to hold at paragraph 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 Sngh and anaother Vrs. State of Bihar and others (supra) their Lordships has been pleased to hold at paragraph 13 and 15 which is being quoted below: “13. Thus, it can safely be concluded that a writ of mandamous would be issued to the appropriate Government to reconsider the refusal to make a reference, where (i) the refusal is an 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 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.” The Hon’ble Apex Court in the case of Kuldeep Singh v. G.M. Instrument design Development & Facilities Centre & anr., reported in AIR 2011 SC 455 has been pleased to hold at paragraph- 21 which is being quoted herein below : “ In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate Government ‘at any time’ refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists when it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10 (1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for latches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous day, it would certainly be fatal. xxx” 5.So far as fact of the case in hand is concerned, the petitioner has specifically prayed to issue direction upon the State Government to act as per Section 12 (5) of the Industrial Disputes Act. In the counter affidavit the letter of refusal to refer the matter before the Labour Court or appropriate forum for its adjudication has been annexed to the writ petition as Annexure-A/1 dated 24.12.1988 and the contents of the said letter is under ‘draft for approval” which is being quoted hereunder : DRAFT FOR APPROVAL. 19-228/88Date. 24.12.88 Sub:I.D. betweens the management of M/s. Orissa Industries Ltd., Lathikata and its workman Sri Pitambar Amat represented through Lathikata Mazdoor Sabha, Rourkela. Ref:Letter No.10569 (2) dt. 8.6.88 of the ALO-cum-CO, Rourkela. 19-228/88Date. 24.12.88 Sub:I.D. betweens the management of M/s. Orissa Industries Ltd., Lathikata and its workman Sri Pitambar Amat represented through Lathikata Mazdoor Sabha, Rourkela. Ref:Letter No.10569 (2) dt. 8.6.88 of the ALO-cum-CO, Rourkela. On consideration of the above referred conciliation failure report the State Government are satisfied that there is no merit in the dispute for reference to adjudication as assault on Supervisory staff of the gate is a case of serious misconduct and the termination from service of the workman from..... By order of the Governor, Dy.Secy. to Govt. Xxxxxxxxx From perusal of the contents of the draft for approval dated 24.12.88 it is evident that the appropriate Government itself has reached to conclusion that there is no merit in the dispute for reference to adjudicate and as such decision has been taken by the appropriate Government which clearly has been barred under Section 12 (5) read with Section 10 (1) of the Industrial Disputes Act, 1947. It is further important to note here that the provision under Section 12 (5) stipulates that in case of refusal of reference reason shall be recorded which shall be communicated to the parties concerned its reason thereof but from the “draft for approval” under Annexure-A/1 annexed to the counter-affidavit dated 24.12.1988 we find that it has not been communicated to the parties concerned rather the copy forwarded only to the L.S. Orissa/ALO-cum-CO, Rourkela/DLC, Rourkela/ The Joint Managing Director, Orissa Industries Ltd., Lathikata, Dist. Sambalpur, however it has not been communicated to the workman concerned and it is only by way of counter affidavit the petitioner has been communicated with the said draft which meant for its approval, meaning thereby that the draft has not yet been approved as on 24.12.1988 and on the basis of the non-approval of draft containing decision of the appropriate Government on merit of the dispute, the same has not been referred before the appropriate forum for its adjudication. 6.We have already discussed the legal position regarding the power of the appropriate Government as per the provision as contained in Section 12 (5) read with Section 10 (1) of the Industrial Disputes Act, 1947 which is purely administrative in nature and appropriate Government in no stretch of imagination can decide the claim on merit in order to refuse the reference to be referred before the appropriate forum, reason being the appropriate Government while exercising power under Section 12 (5) read with Section 10 (1) of the Industrial Disputes Act, 1947 acts as an administrative authority and as such the appropriate Government is not authorised to adjudicate the issue. The opposite party Sate has raised point that this writ petition since has been filed after delay of ten years hence it cannot be entertained, but same, according to us, has got no force it is for the reason that the Industrial Disputes Act is a beneficial legislation although no limitation is provided to make reference under Section 10 (1) of the Industrial Disputes Act, 1947 and the same has to be made within reasonable period but this principle will not be applicable here as the petitioner has prayed for issuance of writ of mandamus directing the State Government to act as per Section 12 (5) of the I.D. Act and to refer the existing dispute for adjudication and for making prayer reason behind it is that no order has been communicated to the petitioner as per provision of Section 12 (5) of the Industrial Disputes Act, 1947 and thereafter he has preferred this writ petition, hence for the latches committed on the part of the State Government the workman cannot be made to suffer, in other words if order passed u/s.12 (5) of the I.D. Act, 1947 would have been communicated to the workman, then matter would have been different and then only the plea of the Government of delay could have been considered. 7.Considering the fact that the petitioner has raised a dispute and the order of rejecting to refer the dispute before the appropriate forum has not been communicated to the petitioner before filing of the writ petition as would be evident from Annexure-A/1 and also considering the fact that the letter contained in Annexure-A/1 dated 24.12.1988 is under heading “draft for approval” although signed by the Deputy Secretary to Government by order of the Governor but not having been communicated to the petitioner as per Section 12 (5) of the I.D.Act, the writ petition cannot be thrown out only for the reason that the writ petition has been filed after lapse of ten years since the Government raised this point has also not acted bonafidely and as per the statutory provision as discussed above and we are also satisfied that in view of the discussions made hereinabove the workman cannot be blamed for delay and there was all along hope that one day his grievance would be considered by the management or by the State Government. 8.Considering the aforesaid fact and the legal position as has been discussed herein above, we are of the conscious view that since the appropriate Government has not decided to refer the dispute before the appropriate forum by taking decision on merit of the dispute, hence the said decision dated 24.12.1988 cannot be said to be just and proper rather it is contrary to the statutory provision of the Industrial Disputes Act, 1947 and settled proposition of law as has been discussed herein above, the decision is not sustainable and accordingly quashed. 9.In the result, we direct the State Government to reconsider the matter in the light of the observations made above and take decision on the request for reference of the dispute in the Industrial Adjudicator which shall be taken within four weeks from the date of receipt of copy of this order and after reference having been made by the appropriate Government, it is for the Industrial Adjudicator to consider the dispute on merit on the basis of the materials placed before it uninfluenced by the observations made in this order. With the above observation and direction, the writ petition is disposed of. Petition disposed of.