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Judgment
A.K. Shrivastava, J.
By this petition under Article 226/227 of the Constitution of India the Petitioner is challenging the action of Respondent No. 1 in not referring the matter to the Central Government Industrial Tribunal-cum-Labour Court (Annexure P-1) dated 24-9-1999.
Learned Counsel for the Petitioner submits that de hors to the service rules and conditions the candidature of the workman Suresh Chand Rajak who is the member of the Union of the Petitioner-Union to recruit him on the post of messenger boy on regular pay scale has not been taken into account and therefore, an application was submitted u/s 2(k) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). The averments made in the application were denied by Respondent No. 2 and since the conciliation failed, therefore, according to the learned Counsel, the matter should have been referred to the Central Government Industrial Tribunal (for short "the CGIT"). Learned Counsel has invited my attention to the Second Schedule Item No. 6 of the Act and by placing reliance on the two decisions of the Supreme Court, Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, and Sharad Kumar v. Govt. of NCT of Delhi and Ors. AIR 2002 SCW 1670 it has been prayed by learned Counsel that this petition be allowed and the matter may be referred to the CGIT.
On the other hand, Shri Sujoy Paul, learned Counsel appearing for the Respondent No. 2 argued in support of the impugned order.
Having heard learned Counsel for the parties I am of the view that this petition deserves to be allowed.
On bare perusal of the application submitted by the Petitioner-Union it is gathered that Suresh Rajak was not called for interview for the selection on the post of messenger boy. Admittedly, said workman is under the employment of the Respondent-Bank and therefore, according to me, there was an industrial dispute as envisaged u/s 2(k) of the Act which reads, thus:
(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
Since the Respondent No. 2 did not agree with the submission put forth by the Union before the Conciliation Officer, therefore, its action amounts to an industrial dispute as envisaged u/s 2(k) of the Act. In this context, I may also place reliance on the Second Schedule Item No. 6 of the Act and, therefore, the Respondent No. 1 (appropriate Government) ought to have referred the matter to the CGIT.
The Supreme Court in Telco Convoy Driver Mazdoor Sangh (supra) has categorically held that appropriate government is not having any jurisdiction to entertain into the merits of the case and only function which it discharges is to see whether there is an industrial dispute or not and if there is an industrial dispute and the conciliation fails, it had no option except to refer the matter to the Labour Court. Similar view has been taken in the later decision by the Supreme Court in Sharad Kumar (supra).
For the reasons stated hereinabove, I am of the view that Respondent No. 1 has acted in flagrant violation of law by not referring the matter to the CGIT. Eventually, I have no option except to set aside the impugned order dated 24-9-1999 (Annexure P-1) passed by the Respondent No. 1.
This petition is accordingly allowed and the matter is referred to the CGIT. The Respondent No. 1 is hereby directed to frame necessary question and refer the matter to the CGIT on or before 28-2-2011. Since the matter is quite old, the CGIT is directed to decide the matter as early as possible preferably within a period of three months from the date of receipt of reference. Shri Sujoy Paul, learned Counsel for Respondent No. 2 is hereby directed to furnish certified copy of this order to the Respondent No. 1.