Gujarat High Court
National Labour Union vs The Assistant Labour Commissioner ... on 26 September, 2024
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C/SCA/16138/2019 ORDER DATED: 26/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16138 of 2019
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NATIONAL LABOUR UNION
Versus
THE ASSISTANT LABOUR COMMISSIONER (CENTRAL) AND
CONCILLIATION OFFICER & ORS.
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Appearance:
MR K R MISHRA(6312) for the Petitioner(s) No. 1
MR CB GUPTA(1685) for the Respondent(s) No. 2
MR PRABHAKAR UPADYAY(1060) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 26/09/2024
ORAL ORDER
1. With consent of both the parties, the matter is taken up
for final hearing.
2. This petition is filed for following prayers:
"7. The petitioner prays that in the above premises this Honorable
court may be pleased:
a) to issue a Writ of certiorari or any other appropriate writ or
order or direction in the nature of certiorari by quashing and
setting aside the order dated 24-11-2016 passed by the Assistant
Labour Commissioner and Conciliation Officer (central) vide No.
AH/RLC/50(Misc.)/2015 and directing the, Assistant Labour
Commissioner and Conciliation Officer (central) to proceed the
conciliation proceedings with respect to dispute raised by the
petitioner;
b) to protect the concerned workmen whose names appeared in
Annexure-B by way of not to be terminated till reference of the
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disputes before the learned Labour Court during the pendency of
the present proceedings;
c) to grant such other and further reliefs, as may be deemed to be
just and proper."
3. Gist of the case is that petitioner is General Secretary of
the registered trade union namely National Labour
Union and is filing the cases of workman working in
various industries and government departments and
respondent no.2 is Central Excise and Custom
Department who has permanent set up of employees and
recruitment procedure for the recruitment of staff.
Respondent no.3 is the contractor. Four workmen who
were working as a sweeper at division 1 and division 6 in
Ahmedabad since 1994 were not regularized by the
respondent no.2, therefore, the demand notice was sent
by the petitioner union to the respondent no.1 with an
allegation that, though several junior casual labourers
were regularized in past, however, the workmen who
approached the Union were not regularized.
4. The assistant labour commissioner (Central) and
conciliation officer, instead of starting the conciliation
proceedings, informed the petitioner Union that
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Department of Central Excise and Custom is not covered
under the definition of Industry as per section 2 (J) of the
Industrial Disputes Act, 1947(hereinafter referred to as
the "ID Act") and therefore, request was made to
approach the appropriate forum for redressal of the
grievance. The said communication is the subject matter
of challenge before this court.
5. Heard learned advocate Mr.K.R.Mishra for the
petitioner, learned advocate Mr.Gupta for respondent
no.2 and learned advocate Mr.Prabnhakar Upadyay for
the respondent no.3 i.e the contractor.
6. Learned advocate Mr.K.R.Mishra submits that function
of the Conciliation Officer under section 12 is limited to
the extend of making an investigation with regard to the
dispute and to see that amicable settlement be arrived
between the parties with regard to the dispute. In the
event when the settlement has not arrived during the
course of conciliation proceedings then conciliation
officer has to send the report to the appropriate
government describing the steps taken by the
Conciliation Officers for ascertaining the facts and
circumstances relating to the dispute and, for bringing
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the above settlement thereof. Learned advocate
Mr.K.R.Mishra submits that in any case the Conciliation
Officer cannot adjudicate the dispute and cannot refuse
to initiate the conciliation proceedings on the ground
that respondent Management is not falling under the
definition of Industry. Learned advocate Mr.K.R.Mishra
submits that, that would be the matter of evidence which
would be led before the appropriate forum however,
conciliation officer at the end when the failure report is
submitted has to refer the matter to the appropriate
government.
6.1. Learned advocate Mr.K.R.Mishra submits that in the
instant case the Conciliation Officer has exceeded the
jurisdiction and refused to refer the dispute to the
appropriate government while holding that the
department of central excise and custom does not fall
under the definition of industry as per section 2(J) of the
ID Act. By submitting the above facts, learned advocate
Mr.K.R.Mishra has submitted to quash the impugned
communication dated 24.11.2016 and prayed to direct
the Conciliation Officer to initiate the appropriate
proceedings on the disputes raised by the present
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petitioner.
6.2. Learned advocate has relied on the decision rendered
by this Court in the case of General Secretary, General
Workmens Union Versus Assistant Labour Commissioner
(Central) rendered in SCA No.18964 of 2019 and
submitted that under section 10(1) of the ID Act, the
function of the Conciliation Officer is an administrative
function and cannot act judicial or quasi judicial
authority.
7. Learned advocate Mr.Upadhyay representing the
respondent No.3 submits that the contract was awarded
to the respondent No.3 from 2003 to 2016, thereafter,
the same has not been extended to the present
respondent No.3 and therefore, he is not the appropriate
party against whom any direction can be issued.
8. Considering the submissions made by the learned
advocates for the respective parties, it transpires from
the record that the Assistant Labour Contractor on
receiving the notice from the petitioner Union has
communicated on 24.11.2016 that the CGST does not
fall under the definition of Industry and therefore,
request was made to approach to the appropriate forum.
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9. At this stage section 12 of the Industrial Dispute Act,
1947 is required to be referred which is reproduced
herein below:
"12. Duties of conciliation officers.
(1)Where any industrial dispute exists or is apprehended, the
conciliation officer may, or where the dispute relates to a public
utility service and a notice under section 22 has been given, shall,
hold conciliation proceedings in the prescribed manner.
(2)The conciliation officer shall, for the purpose of bringing about
a settlement of the dispute, without delay investigate the dispute
and all matters affecting the merits and the right settlement
thereof and may 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.
(3)If a settlement of the dispute or of any of the matters in
dispute is arrived at in the course of the conciliation proceedings,
the conciliation officer shall send a report thereof to the
appropriate Government [or an officer authorised in this behalf by
the appropriate Government] [ Inserted by Act 35 of 1965, Section
4 (w.e.f. 1.12.1965).] together with a memorandum of the
settlement signed by the parties to the dispute.
(4)If no such settlement is arrived at, the conciliation officer shall,
as soon as practicable after the close of the investigation, send to
the appropriate Government a full report setting forth the steps
taken by him for ascertaining the facts and circumstances relating
to the dispute and for bringing about a settlement thereof,
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together with a full statement of such facts and circumstances,
and the reasons on account of which, in his opinion, a settlement
could not be arrived at.
(5)If, on a 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] [ Substituted by Act 36 of 1956, Section 10, for " or
Tribunal" (w.e.f. 10.3.1957).], it may 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.
(6)A report under this section shall be submitted within fourteen
days of the commencement of the conciliation proceedings or
within such shorter period as may be fixed by the appropriate
Government: [Provided that, ] [ Inserted by Act 36 of 1956,
Section 10 (w.e.f. 10.3.1957).][subject to the approval of the
conciliation officer,] [ Inserted by Act 36 of 1964, Section 8
(w.e.f. 19.12.1964).][the time for the submission of the report may
be extended by such period as may be agreed upon in writing by
all the parties to the dispute. ] [ Inserted by Act 36 of 1956,
Section 10 (w.e.f. 10.3.1957).]
10. Considering these provisions it transpires that the
function of conciliation officer is only to make an attempt
on receiving the notice from the workman or from the
Union and in the event of unsuccessful report the same
has to be referred to the appropriate Government.
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11. The Judgment which was relied by the learned advocate
for petitioner wherein, this Court has held as under:-
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 & 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
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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.
12. Considering the above decision this Court deems it fit to
allow this petition. The order passed by Assistant Labour
Commissioner dated 24.11.2016 is hereby set aside.
The Assistant Labour Commissioner is directed to
initiate conciliation proceedings on the disputes raised
by the present petitioner. The appropriate orders shall
be passed after calling upon and hearing the respondent
authority in this regard.
13. This Court has clarified that, this Court has not gone into
the merits of the case. In view of the above the petition
is allowed.
(M. K. THAKKER,J)
NIVYA A. NAIR
