Shridhar T. Shetty vs Speedy Transport Company Pvt. ...
2001 Latest Caselaw 419 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. The petitioner was employed as a Forklift Supervisor in the service of the first respondent and was a permanent workman, A disciplinary enquiry was commenced against the petitioner in respect of the charge that on 6th April, 1982 when he was on duty and was required to supervise a forklift, he was involved in a theft of the contents of certain containers of the 'employer. A chargeshcet was issued on 9th November, 1982, after which the disciplinary enquiry was held. A Criminal prosecution had also been instituted against the petitioner in respect of the same events. The petitioner has set out several grievances in regard to the manner in which the enquiry was conducted. The grievance of the petitioner is, inter alia, that he was not furnished, together with the chargesheet, with a statement of allegations that would enable him to defend himself; that the documents which were relied upon by the employer were not supplied; and that the material evidence on the basis of which he was chargesheeted was not made available to him. The petitioner has also made a grievance of the fact that an adjournment which was sought by his defence representative on medical grounds was refused and that the enquiry was conducted in violation of the principles of natural justice. According to the petitioner, the result of the enquiry was not communicated to him.

2. The case of the employer is that the petitioner was dismissed from service after the enquiry was concluded, by an order dated 15th February, 1983, upon the charge of misconduct being held to be proved.

3. Insofar as the criminal proceedings are concerned, the petitioner who was arraigned as the second accused, was acquitted by a Judgment and Order dated 14th December, 1991 of the charge that he had committed an offence under Section 379 read with Section 114 of the Indian Penal Code. On 4th January, 1992, the petitioner wrote to the first respondent-employer seeking his reinstatement in service in view of his acquittal in the criminal proceedings. On 4th August, 1992 and on 14th September, 1992, the petitioner thereafter, sought the intervention of the Deputy Labour Commissioner in conciliation under the provisions of the Industrial Disputes Act, 1947. By a communication dated 29th Mafch, 1993, the Conciliation Officer has declined to intervene in the dispute for the reasons which he has recorded in his communication. The Conciliation Officer stated that he does not accept the contention of the petitioner that he was not allowed to resume his duties from April 1982. According to the Conciliation Officer, the petitioner absented from duties from 8th April, 1982 without permission though he had attended the enquiry and collected his bonus payment in November 1992. According to the Conciliation Officer, the petitioner was neither obstructed in the performance of the duties, nor was he kept under suspension. The Conciliation Officer also rejected the case of the petitioner that he was dismissed from service on 15th February, 1983 without assigning any reason. The Conciliation Officer has stated that a disciplinary enquiry was held against the petitioner and on the basis of the finding which was arrived at therein, he was dismissed from service. The Conciliation Officer has also adverted to the fact that the petitioner had raised a dispute almost after 9 years and that this delay could not be explained with reference to the fact that it was only in January 1992 that the criminal prosecution ended in the acquittal of the petitioner. The Conciliation Officer has stated that the petitioner could have well raised a dispute either at the time when he was allegedly prevented by the management from joining duties or even after he was dismissed from service.

4. In these proceedings under Article 226 of the Constitution, the petitioner prays for a suitable writ or direction for quashing of the impugned communication of the Conciliation Officer and for a direction that the conciliation proceedings be pursued under the provisions of the Act.

5. Section 12 of the Industrial Disputes Act, 1947 deals with the duties of the Conciliation Officer. Where an industrial dispute exists or is apprehended, the conciliation officer may, under Sub-section (1) hold conciliation proceedings in the prescribed manner. In the case of a public utility service, a distinction has made by Sub-section (1) of Section 12, in that the Conciliation Officer shall hold conciliation proceedings in a case where an industrial dispute exists or is apprehended and a notice under Section 22 of the Act has been given. Therefore, in the case of an Undertaking which is not a public utility service, the statute confers a discretion upon the Conciliation Officer as to whether or not to hold conciliation proceedings. The discretion which is conferred upon the Conciliation Officer has, however, to be exercised reasonably and fairly. The power of the Conciliation Officer on whether or not to admit the dispute in conciliation cannot be exercised arbitrarily or capriciously. All administrative discretion has to be structured in its exercise with reference to the purpose for which it is conferred by law. The exercise of discretion under Section 12 is not an exception to this principle.

6. The object underlying the initiation of conciliation proceedings set out in Section 12 of the Act is to make an effort to bring about a settlement or resolution of the Industrial dispute. The Conciliation Officer is not an adjudicator. His function as prescribed in Sub-section (2) of Section 12 is to bring about a settlement of the dispute. For this purpose, the Conciliation Officer has to investigate the dispute and all matters affecting the merits and the right settlement thereof. The statute gives him a power to do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. If a settlement is arrived at, the Conciliation Officer is required to submit his report together with a memorandum of settlement signed by the parties to the dispute to the appropriate Government. If no settlement is arrived at, the Conciliation Officer has to submit a report to the appropriate Government under Sub-section (4). This report, in common parlance, is referred to as "a failure report". After the receipt of the report, it is open to the appropriate Government to make a Reference for adjudication before the Labour Court or the Industrial Tribunal. The provisions of Section 12 would thus, demonstrate that conciliation is a step anterior to the process of adjudication and has been laid down by the Industrial law with a view to ensure that the dispute between the parties are expeditiously resolved by settlement. The provision for conciliation in the Statute is in pursuance of a salutary object because it fosters Industrial peace. The Conciliation Officer is not an adjudicator and he does not in that sense enter into the arena of an adjudication of the merits of the dispute. Adjudication is a quasi judicial function. The power of the Conciliation Officer must, therefore, be contradistinguished with the adjudicatory power which is vested in the Tribunal or Labour Court, as the case may be, after a Reference to adjudicate is made.

7. The statute has conferred a discretion upon the Conciliation Officer on whether or not to admit a dispute into conciliation in the case of Undertakings other than those which constitute a public utility service. The Conciliation Officer may in a given case, decline to admit the dispute into conciliation where he is of the view that there is no industrial dispute at all within the meaning of Section 2(k) of the Industrial Disputes Act, 1947. The discretion which is to be exercised by the Conciliation Officer under Sub-section (1) of Section 12 has to be construed in the light of the object underlying conciliation which is to promote a settlement or resolution of industrial disputes. The delay of an aggrieved party in moving the Conciliation Officer is undoubtedly a circumstance which can weigh the Conciliation Officer but whether the delay is such as to disentitle the party to invoke the conciliation proceedings must necessarily depend upon the facts and circumstances of each case. There is, in this sense, no hard and fast, rule or strait jacketed formula. The facts of each individual case have to be thrown into balance and have to be duly considered. On the question as to whether the appropriate Government would be justified in declining to make a Reference to adjudication under Section 10 of the Industrial Disputes Act, 1947, on the ground of delay, the Supreme Court has held that it is reasonable that disputes should be referred to adjudication as soon as possible after they have arisen and after conciliation proceedings have failed. Stale claims should not generally be encouraged or allowed unless there is a satisfactory explanation for the delay. Whether a claim has become too stale or not would depend upon the facts and circumstances of each case. These principles are well settled in view of the Judgment of the Supreme Court in Shalimar Works Ltd. v. Their Workmen, , Inder Singh and Sons Ltd. and their Workmen, 1961 II LLJ 89 S.C. These Judgments were referred to in a recent judgment of the Learned Single Judge of this Court in Digambar R. Kalaskar v. Chief Manager, Staff Administration, Bank of Maharashtra, 2000 III CLR 191.

8. The law, and to this Industrial law is no exception, frowns upon the agitation of stale claims. The law requires a degree of repose and a party which has not pursued a claim over a long period of lime would ordinarily be disentitled from invoking the provisions of Industrial law for the resolution of the dispute. Whether there has been a delay so as to disentitle the party from seeking access to the machinery under the Industrial Disputes Act, 1947 must depend upon the facts of each case. The circumstances of the case and the nature of the delay may be such as to signify an abandonment of the claim.

9. In the present case, the admitted position is that the criminal prosecution was in fact pending against the petitioner (C.C. No. 1257/P/1982) and it was by a Judgment and Order dated 14th December, 1991 that the petitioner along with certain other co-accused was acquitted by the Metropolitan Magistrate on the ground that the prosecution had failed to substantiate the charge. Immediately thereafter, the petitioner addressed a letter to the employer on 4th January, 1992 claiming reinstatement in service on the basis of the order of acquittal. True the pendency of the criminal prosecution was not a bar to the petitioner moving the Conciliation Officer at an earlier stage. The facts and circumstances of the case would show that this is not one of those cases where an employee or a workman has allowed a claim to become stale so as to signify an abandonment of the claim. In Kalaskar's case (supra) which was decided by the Learned Single Judge and to which a reference has been made earlier, the workman had sought to move the Central Government only in 1991 after he came to be dismissed in September 1973. The dispute by this time had become completely stale and the Government was held to be justified in forming the view that there can be no reference to adjudication of the stale claim. In the present case, added to the circumstance that the criminal prosecution, was pending until December 1991 is the fact that in para 9 of the Petition, it has been averred that the result of the enquiry was never communicated to the petitioner. The petitioner has in several paragraphs of the Writ Petition made a grievance of the fact that the findings of the enquiry were never made available to him. In fact, one of the grievances of the petitioner is that the enquiry itself had not been duly completed. The petitioner has contended that it was only on 1st December, 1992 that the result of the enquiry was submitted before the Conciliation Officer and according to the petitioner, the enquiry was incomplete and what was produced before the Conciliation Officer was a back dated document. There is no reply to the Writ Petition and the allegations which have been made in the Petition have not been controverted.

10. In these circumstances, I am of the view that the Conciliation Officer has erred in declining to take this dispute into conciliation. The object of the Conciliation Officer ought to be to try to attempt resolution of the dispute. There is clearly an industrial dispute in the present case within the meaning of Section 2(k) of the Act arising out of the dismissal of the petitioner. The Conciliation Officer has exercised his discretion on extraneous grounds, extraneous in the sense that the reasons which have been furnished in the impugned communication dated 29th March, 1993 are not germane to the scope and object of the underlying provisions of Section 12 of the Act. In the circumstances, the petitioner is entitled to succeed. The second respondent, the Assistant Commissioner of Labour is directed to forthwith initiate conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947 and thereupon to proceed in accordance with law. The impugned order dated 29th March, 1993 is quashed and set aside.

10-A. The Writ Petition is accordingly allowed in the aforesaid terms. Rule made absolute. There shall be no order as to costs.