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2018 DIGILAW 786 (KAR)

K. Varadaraya Nayak v. Government of India

2018-07-09

A.S.BOPANNA

body2018
ORDER : A.S. BOPANNA, J. 1. The petitioner is before this Court assailing the Communication/order dated 11.04.2013 at Annexure-A to the petition. The petitioner was working in the Respondent No. 3- Establishment. Certain disputes relating to the cessation of employees in respondent No. 3 had arisen. At the first instance, the petitioner having raised the dispute, the conciliation having failed, matter was referred to the Labour Court, Mangaluru, which was registered in Reference No. 9/2000 and the award dated 28.05.2003 was passed. The respondent No. 3 herein, claiming to be aggrieved by the said award, was before this Court in W.P. No. 46610/2003, which was disposed of on 30.11.2007. The petitioner herein claiming to be aggrieved by the said order, was before the Hon'ble Division Bench of this Court in W.A. No. 1158/2008 and respondent No. 3 herein also being aggrieved by the said order, was before the Hon'ble Division Bench in W.A. No. 35/2008. Both the appeals were clubbed and considered by the Hon'ble Division Bench through its order dated 02/12/2010. Insofar as the issues raised therein, the Hon'ble Division Bench had remitted the matter to the Labour Court by framing the questions that were required to be considered by the Labour Court. In that regard, the first aspect which was required to be considered by the Labour Court was with regard to the appropriate Government which is competent to refer the industrial disputes to the Labour Court. Pursuant thereto, the Labour Court having considered the matter, has through its award dated 26.10.2011 held that in the present case, the appropriate Government would be the Central Government to refer the industrial dispute to the appropriate Labour Court. It is in that background, the impugned order dated 11.04.2013 came to be passed by respondent No. 1. Therefore, in that background, the question is as to whether having taken note of the sequence in which the question relating to the appropriate Government, in the instant case was adjudicated, whether the manner in which respondent No. 1 has arrived at its conclusion that there is no dispute to be considered would be justified? 2. The respondent No. 3 has filed its objections to the writ petition and the learned counsel for the respondents have also sought to justify the action. 2. The respondent No. 3 has filed its objections to the writ petition and the learned counsel for the respondents have also sought to justify the action. In that regard, having heard the learned counsel for the parties, a perusal of the order at Annexure-A would disclose that, the respondent No. 1 has concluded that the petitioner herein had voluntarily tendered his resignation on 12.11.1998 and the same was accepted by the third respondent-Management and was conveyed to him. It is in that view, respondent No. 1 has arrived at the conclusion that there is no illegal termination and reference was not made. In that background, what is necessary to be taken note is that at the first instance when the petitioner was before the Conciliation Officer under the State Government, the Conciliation Officer having conciliated the matter having failed the Government had referred the same for adjudication, to the Labour Court. It is in that process, at the first instance an award dated 28.05.2003 had been passed and the same being challenged before this Court had concluded in the Writ Appeal. 3. In the Writ Appeal, the Hon'ble Division Bench had not concluded any other aspect, but had directed that consideration be made by the Labour Court firstly with regard to the appropriate Government to refer the matter to the Labour Court and thereafter the questions at 2(b) and 2(c) were also formulated i.e., as to whether the petitioner is a workman and as to whether the termination, if any of the respondent is legal and valid? If this aspect of the matter is taken into consideration, on remand, if the Labour Court was of the opinion that the State Government is the appropriate Government, the sequence would have been that the Labour Court would have proceeded to consider and adjudicate, the questions at 2(b) and 2(c) which had been formulated by the Hon'ble Division Bench, which included the question with regard to the validity of the termination as contended by the parties. If that be the position, the natural sequence should have been for the Labour Court to ultimately come to a conclusion on those aspects of the matter. 4. If that be the position, the natural sequence should have been for the Labour Court to ultimately come to a conclusion on those aspects of the matter. 4. If this is kept in perspective and the order at Annexure-A is taken note, in the said sequence of events, the only option that was available to respondent No. 1 was to refer the matter to the Competent Labour Court to adjudicate those aspects as well, instead respondent No. 1 has proceeded to adjudicate the dispute as to whether there was illegal termination or not?, which would not be in accordance with law. Though, the learned counsel for the respondent sought to refer to the provision contained in Section 10(1)(c) to contend that the Conciliation Officer on sending the failure report, the Government had the right to consider as to whether there was a dispute available to be referred, the said aspect would pale into insignificance in view of the earlier proceedings and the Hon'ble Division Bench of this Court itself directing that the issue relating to the illegal termination or otherwise is required to be adjudicated by the Labour Court. In that circumstance, in the instant case, since I have arrived at the conclusion that the order dated 11.04.2013 is not sustainable, in the normal circumstance the matter ought to have been remitted to the respondent No. 1 to take a fresh decision. However, in view of order in writ appeal, presently such option is not available to respondent No. 1. Hence, on setting aside the order dated 11.04.2013, the only direction that is necessary to be issued herein is that respondent No. 1 shall take a decision to refer the dispute to the Competent Labour Court in accordance with law. Such decision shall be taken within two months from the date on which a copy of this order is furnished. To enable the same, order dated 11.4.2013 is set aside. The petition is disposed of in the above terms. All contentions of the parties are left open to be urged before the Central Government Labour Court and the Industrial Tribunal.