The General Secretary, General ... vs Assistant Labour Commissioner ...
2022 Latest Caselaw 1692 Guj

     C/SCA/18964/2019                                    JUDGMENT DATED: 14/02/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18964 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA                                          Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                    NO

2     To be referred to the Reporter or not ?                                 YES

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                        NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                      NO
      of India or any order made thereunder ?

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         THE GENERAL SECRETARY, GENERAL WORKMENS UNION
                              Versus
             ASSISTANT LABOUR COMMISSIONER (CENTRAL)
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Appearance:
MR K R MISHRA(6312) for the Petitioner(s) No. 1
PRABHATSINH J PARMAR(7996) for the Petitioner(s) No. 1
MS ARCHANA U AMIN(2462) for the Respondent(s) No. 2,3,4,5
MS VYOMA K JHAVERI(6386) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 14/02/2022

                                ORAL JUDGMENT

1. The present petition has been filed, inter alia, for the following prayer:-

"7(b) This Hon'ble Court may be pleased to issue a Writ of Mandamus or any other appropriate writ or order or direction in the nature of mandamus directing the respondent no.1 to decide for referring the conciliation case copy at Annexure-G by quashing and setting aside the order passed by learned respondent no.1 i.e. Assistant Labour Commissioner (Central) at Ahmedabad at Annexure-A"

C/SCA/18964/2019 JUDGMENT DATED: 14/02/2022

2. The brief facts of the case are as under:-

2.1. The petitioner is a registered trade union under Trade Union Act, 1926 which is taking up cause of workers working under Central Government establishment like Railway and other organizations. The officer of respondent nos.4 and 5 are working under the office of respondent no.3, which is one of divisions of Western Railway i.e. respondent no.2.

2.2. Mr. Shankarbhai Dalsukhbhai Baria (hereinafter referred as concerned workman), who had joined as a Gangman at Limkheda, Gujarat under the office of respondent no. 4 since 1981 was removed from service on 05.10.1991 after holding a departmental inquiry, which was challenged by the concerned workman before Industrial Tribunal, Vadodara vide Reference (IT) No. 1 of 1995 and the Industrial Tribunal had, on 07.04.1999, allowed the reference directing the respondent employer to reinstate the concerned workman with full back wages and all consequential benefits. The award passed by the Tribunal was challenged by the respondents no. 2 and 3 before this Court vide Special Civil Application No.6729 of 1999, wherein this Court had, on 29.03.2000, passed an interim order directing the petitioner employer to reinstate the concerned workman and finally allowed the writ petition partly confirming the reinstatement without back wages on 25.08.2005.

2.3. It is the case of the petitioner that the respondent no. 4 had, during the pendency of Special Civil Application before this Court, transferred the concerned workman on 24.04.2000 from Dahod in Gujarat to Shihor in Madhya Pradesh. Thereafter, the concerned workman tendered an application for voluntary retirement on 26.03.2007.

C/SCA/18964/2019 JUDGMENT DATED: 14/02/2022

2.4. Thereafter the concerned workman filed an application under the Payment of Wages Act before Labour Court at Godhara to get his retirement benefits in 2008 vide Payment of Wages Case No. 37 of 2008. It is the case of the petitioner-Union that the concerned workman came to know for the first time on 25.03.2010 that he had been removed from service by the respondent no. 5 with effect from 01.04.2005 vide order no. E/308/2/3 dated 10.04.2005, when the respondent employer filed its reply in the said application. Subsequently, the workman filed an appeal before the appellate authority of Railway establishment on 20.10.2010, which was not decided till long compelled him to file representation on 30.05.2018 to decide the appeal. When the workman did not get any result from the respondent employer, in January 2019 he raised an industrial dispute through the petitioner union under section 10(1) before the Assistant Labour Commissioner (Central) and Conciliation Officer at Ahmedabad, which has been rejected by the impugned order.

3. Learned advocate Mr.K.R.Mishra has submitted that the Assistant Labour Commissioner (Central), Ahmedabad could not have rejected his application on the ground of jurisdiction since the same would not come within his domain. He has submitted that the Assistant Labour Commissioner (Central), Ahmedabad has in fact refused to initiate the conciliation proceedings on the ground of jurisdiction which would be contrary to the established law. In support of his submissions he has placed reliance on the judgment of the Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh & Anr. Vs. State Of Bihar & Ors., (1989) 3 SCC 271. It is submitted by him that in fact the petitioner is residing at Godhra and the conciliation officer could not have rejected his application on the ground of jurisdiction. Further, it is submitted by him

C/SCA/18964/2019 JUDGMENT DATED: 14/02/2022

that in fact the petitioner was originally appointed in Gujarat and the earlier proceedings have also undertaken before the authorities as well as the courts of Gujarat and hence, the impugned order may be set aside.

4. Per contra, learned advocate Ms.Archana Amin appearing for the respondent nos.2 to 5 has submitted that the impugned order does not require any interference since at the time of tendering application for voluntary retirement, the workman was working or serving under the respondent no.3 at Ratlam and hence, the impugned order has been appropriately passed.

5. This Court has heard the learned advocates appearing for the respective parties. The documents, as pointed out by them, are also perused.

6. As the facts would suggest that the petitioner raised an industrial dispute with regard to his removal from service. By the order dated 25.01.2019, the Assistant Labour Commissioner (Central), Ahmedabad, has passed the following order:-

"Please refer to you demand notice dated 17.1.2019 on the subject cited above. In this connection, it is to inform you that the concerned last place of posting of the ex-workman is not fall under the jurisdiction of this authority.

Therefore, you are advised to apply before the appropriate authority."

Thus, the Assistant Labour Commissioner (Central), Ahmedabad has refused to initiate the conciliation proceedings on the ground that the same would not fall within its jurisdiction.

7. At this stage, it would be apposite to refer to the judgment of the Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh &

C/SCA/18964/2019 JUDGMENT DATED: 14/02/2022

Anr. (supra), wherein the Supreme Court has held thus:-

"13.....while exercising power under section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that 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.

Thus, the Supreme Court has held that, while exercising power under section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that 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.

8. Thus, the appropriate Government cannot refuse the conciliation proceedings on the ground of jurisdiction and it has to refer the dispute to the concerned Tribunal/Labour Court, which would then decide after examining the necessary facts whether the particular dispute would fall within its jurisdiction or not.

9. In the present case, as noticed hereinabove, the petitioner was initially appointed in Gujarat and the earlier proceedings were also undertaken in Gujarat. Thereafter, he was reinstated at Shihor under Ratlam Division, Madhya Pradesh.

10. It appears that, before the petitioner tendered his application for voluntary retirement, he was removed by the Railway Authorities of Ratlam Division after holding disciplinary proceedings. Thus, the appropriate authority would be the Central Government Industrial

C/SCA/18964/2019 JUDGMENT DATED: 14/02/2022

Tribunal, Ahmedabad (CGIT), who can examine all the facts and upon examination of the facts, the Tribunal can form an opinion that it does not have the jurisdiction.

11. Thus, the impugned order dated 25.01.2019 passed by the Assistant Labour Commissioner (Central), Ahmedabad is hereby quashed and set aside. The Assistant Labour Commissioner (Central), Ahmedabad is directed to initiate the appropriate conciliation proceedings on the industrial dispute raised by the present petitioner. Appropriate orders shall be passed after calling upon or hearing the respondent authorities in this regard. It is clarified that, this Court has not expressed anything on merits.

12. The present petition is allowed. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/70