Chaubisi Plastic Pvt. Ltd. vs Deputy Labour Commissioner, Lucknow and others

Rajiv Sharma, J.—In all these petitions, the sole question involved is that whether the Conciliation Officer/Deputy Labour Commissioner is vested with the power to review its earlier order or not and, therefore, these writ petitions are being decided by a common judgment.

Brief facts, giving rise to these writ petitions, are that the workmen (private respondents) filed an application u/s 2-A of the U.P. Industrial Disputes Act, 1947 before the Deputy Labour Commissioner/Conciliation Officer alleging therein that their services have been terminated orally by the petitioner, which is a private limited company and is engaged in manufacturing of plastic and allied products. Cognizance was taken and notices were issued to which objections were filed by the petitioner denying the oral termination and it was further stated that the workmen have themselves resigned.

The Conciliation Officer after examining the matter came to the conclusion that as the employees have tendered resignation and as such, there was no industrial dispute which can be referred for adjudication. The said report of the Conciliation Officer/Assistant Labour Commissioner was accepted by the Deputy Labour Commissioner on 28.6.2002 and the parties were also informed accordingly.

Later on, the opposite parties moved an application dated 24.2.2005 for reviewing the aforesaid order, on which notice dated 4.7.2005 was issued annexing therewith the application dated 24.2.2005 submitted by the representative of the workmen. In the application dated 24.2.2005, the workmen have prayed for review of the earlier order by which the case was consigned to record. On receiving the aforesaid notice, the petitioner submitted a reply mentioning therein that the report submitted by the Assistant Labour Commissioner/Conciliation Officer has been accepted by the Deputy Labour Commissioner and the parties were informed that there exists no industrial dispute as such there was no occasion to proceed in the case, when it has already been ordered to be consigned to record.

It is contended by the learned Counsel for the petitioner that by the impugned order dated 5.10.2005, the Deputy Labour Commissioner, in a most arbitrary manner, referred the case for adjudication to the Labour Court inter-alia on the ground that the original resignation letter as also the original documents pertaining to full and final settlement given to the workmen at the time of their leaving services were neither produced nor placed by the employer. It was also observed that photocopy of the resignation letter has been produced which cannot be read in evidence.

According to learned Counsel for the petitioner, U.P. Industrial Disputes Act, 1947 and the rules framed thereunder do not provide for review of any order and as such, the application for review made by the workmen was not entertainable and the Deputy Labour Commissioner exceeded his jurisdiction in entertaining and allowing the same. It is a settled position of law that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden.

To strengthen his arguments, learned Counsel for the petitioner has relied upon the citations of Kapra Mazdoor Ekta Union Vs. Management of Birla Cotton Spinning and Weaving Mills Ltd. and Another, Bombay Union of Journalists and Others Vs. The State of Bombay and Another, and Smt. Harjeet Kaur v. Additional District Judge, Lucknow and others 2006 (62) ALR 826:

In Kapra Mazdoor Ekta Union''s case (supra), the Hon''ble Supreme Court observed that in case of procedural review, party seeking the same does not have to prove any of the grounds necessary to warrant review on merits, such as error apparent on face of record. Rather, it has to be establish that the procedure followed by the forum concerned suffered from such illegality that it vitiated the proceedings and invalidated the order made therein.

It is also contended by the learned Counsel for the petitioner that the dispute which is to be referred is on the application of Union on behalf of the workmen and as such it cannot be termed to be an industrial dispute u/s 2-1 of the Industrial Disputes Act in so far as it can be raised by the workman individually. In the instant case workmen have tendered their resignation and, therefore, it cannot be termed to be an industrial dispute. Moreover, the disputes which can be referred to as a dispute is in respect of discharge, dismissal or termination. Learned Counsel for the petitioner next contended that non-payment of pending dues to the workmen, will not establish any industrial dispute and the proper course available to the workmen was to make a reference u/s 4-K of the U.P. Industrial Disputes Act, 1947. In support, he has placed reliance on paragraph 18 of the decision rendered in Bharat Heavy Electricals Ltd. Vs. Anil and Others, Paragraph 18 reads as under:

"There is one more reason for coming to the above conclusion. There is a difference between an individual dispute which is deemed to be an industrial dispute u/s 2-A of the said 1947 Act on the one hand and an industrial dispute espoused by the union in terms of section 2 (1) of the said 1947 Act. An individual dispute which is deemed to be an industrial dispute u/s 2-A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute u/s 2(1) covers a wider field. It includes even the question of status. This aspect is very relevant for the purposes of deciding this case. In Radhey Shyam v. State of Haryana, it has been held after considering various judgments of the Supreme Court that section 2-A contemplates nothing more than to declare an individual dispute to be an industrial dispute. It does not amend the definition of industrial dispute set out in section 2(k) of the Industrial Disputes Act, 1947 (which is similar to section 2(1) of the said 1947 Act). section 2-A does not cover every type of dispute between an individual worker to raise an industrial dispute, notwithstanding, that no other workman or union is a party to the dispute. Section 2-A applies only to disputes relating to discharge, dismissal retrenchment or termination of service of an individual workman. It does not cover other kinds of disputes such as bonus, wages, leave facilities, etc."

On the other hand, Standing Counsel submitted that the order passed the Deputy Labour Commissioner does not suffer from any illegality or firmity as the Deputy Labour Commissioner while allowing the application has held that the petitioner could not produce the original resignation letter of the individual workman and also failed to produce the details of full and final payment made to them after their resignation in spite of several dates viz. 8.2005, 12.9.2005 and 21.9.2005 were fixed for the same. It was further held by them that the photo copies which were produced could not be read in evidence in support of the same and placing reliance upon the judgment rendered in the case State Employees Insurance Corporation v. Sharfuddin, wherein it has been propounded that until the original documents are produced, the photostat copies cannot be perused as evidence. Accordingly, the opposite party No. 1 came to the conclusion that the Industrial Dispute yet exists and referred the dispute to the labour Court for adjudication.

Placing reliance upon a decision of this Court in UP, State Spinning Mills Ltd. v. State of Uttar Pradesh and others, State Counsel further submitted that the junction of the Government either u/s 10(1) of the Central Act or under similar provision under the State Act, is administrative in nature and as such, principles of resjudicata are not attracted. He further submitted that if there is no adjudication of the matter on merit in earlier reference and an industrial dispute exists, such a matter can be referred again u/s 10 of the Act. Reliance in mis regard has been placed upon a Supreme Court''s decision rendered in Virendra Bhandari Vs. Rajasthan State Road Transport Corporation and Others, of the report reads as under:--

"A perusal of the award made on the earlier occasion will clearly indicate that there is no adjudication at all. All that was stated was that the concerned parties had not appeared before the Tribunal and in such an event, the Tribunal should have noted its inability to record the finding on the issue referred to it to that the dispute does not exist. When there is no adjudication of the matter on merit, it cannot be said that the industrial dispute does not exist. If the industrial dispute still exists, as opined by the Government, such a matter can be referred u/s 10 of the Industrial Disputes Act. What is to be borne in mind that in proceedings of this nature, the industrial disputes are referred to the Labour Court or the Industrial Tribunal for maintenance of industrial peace and not merely for adjudication of the dispute between two parties. That aspect seemed to have been lost sight of by the Tribunal on the first occasion and by the High Court in the order under appeal. In this background it was certainly permissible for the Government to have made second reference on which occasion after inquiring to the matter the Tribunal adjudicated the matter."

Learned Counsel appearing for the workmen has also emphatically lenied the allegations made in the writ petition and submitted that the Deputy Labour Commissioner while passing the impugned order has followed the due procedure of law and there is no illegality or infirmity in the impugned order. According to him, section 10 (1) of the Act confers a discretionary power which can be exercised on being satisfied that an industrial dispute exists or is being apprehended. Merely because the Government has declined to make a reference on earlier occasion, it cannot be said that the industrial dispute has ceased to exist and the concerned authority is competent to re-examine the matter again on an application moved by the workman. Be that as it may, the function u/s 10 (1) of the Act is administrative in nature, it is incorrect to say that there is no power to review or recall its earlier order. The expression ''at any time'' in section 10(1) substantiates the contention that the Government or the competent authority may examine the matter again, if certain relevant and material facts are brought to its notice or referring the facts which went unnoticed.

In support of the above contention, learned Counsel for the workmen has relied upon the citations of Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana and Others, State of Madras Vs. C.P. Sarathy and Another, M.P, Irrigation Karmachari Sangh v. State of M.P. 1985 (51) FLR 422 (SC) , Ram Avtar Sharma and Others Vs. State of Haryana and Another, and Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others,

In Ram Avtar Sharma and Others Vs. State of Haryana and Another, on which reliance has been placed by the State Counsel, the Hon''ble Supreme Court has held that while making or refusing to make a reference u/s 10(1) of the Act, it cannot delve into the merits of the dispute and take upon itself the determination of the lis. That would certainly be in excess of the power conferred by section 10. section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended.

In M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, and TELCO Convey Drivers Mazdoor Sangh (supra), the Supreme Court held that the Court would be justified in directing the Government of the competent authority to reconsider the matter in respect of an administrative order if the earlier order has not been passed on correct appreciation of the material on records or was based on irrelevant considerations.

It is settled proposition of law that the power to review must be conferred by statute either specifically or by necessary implication is applicable only where the Government exercises quasi-judicial powers vested in it by statute and not to purely administrative decisions. Government must be free to alter its policy or its decision in administrative matters. It may be pointed out that the function of the Government either u/s 10 (1) of the Central Act or under similar provision under the State Act, has been held to be administrative in nature and as such, principles of res judiciata are not attracted. Thus the Government or its officers are free to alter its policy or its decision in the administrative matters. The other factor which weakens the case of the petitioner is the principle enunciated by the Hon''ble Supreme Court in Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana and Others, , wherein it was held that if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction.

In the instant case it is also to be examined whether an employee whose resignation has been accepted by the employers falls within the first exclusion clause to the definition of term retrenchment. There can be no doubt that a resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases to be a voluntary act of the employee expressing a desire to quit service. In the instant case, the case of the petitioner is that the workmen have voluntarily tendered resignation but in the proceedings before the Labour Commissioner, they have failed to produce original copy of the resignation to substantiate their contention. On the contrary, the case of the workmen is that they never tendered resignation but their services were terminated orally by the employer on 31.10.2000.

The Hon''ble Supreme Court in the case of ANZ Grindlays Bank (supra) has clearly held that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of the appropriate Government making a reference u/s 10 of the Act, as the parties would get opportunity to lead evidence before Labour or Industrial Tribunal and to show that claim made is either unfounded or there was no occasion for making a reference. In the present case the parties have to lead evidence whether the workmen have actually tendered resignation or their services were orally terminated as alleged. This fact cannot be examined by this Court while exercising jurisdiction under Article 226 of the Constitution. In view of the legal principles, referred to above, and the foregoing conclusions, the cases relied upon by the petitioner are of no avail to him and cannot be applied in the facts and circumstances of the present case.

A perusal of the record also reveals that earlier, while passing the order dated 9.7.2002, the opposite party No. 1 has not adjudicated the matter on merit. When the workmen made applications before the authority concerned narrating the entire facts and also mentioning the fact that payments which were due have also not been made, a notice was issued to the petitioner, who submitted his reply but, as stated above, the petitioner failed to produce original resignation letter or the detail relating to full and final payment. Thus the opposite party No. 1 being subjectively satisfied that the Industrial Dispute yet exists referred the dispute to the Labour Court for adjudication, which function is an administrative function and not a judicial or quasi-judicial function. The reference has been made by the competent authority and the dispute as raised is only to be adjudicated upon by the Labour Court on the basis of reference made. Needless to say, that the impugned order was passed after affording reasonable opportunity of hearing to the petitioner.

For the reasons aforesaid, the reference is valid in the eyes of law. I find no infirmity or illegality in the impugned order and writ petitions are liable to be dismissed.

Accordingly, all the writ petitions are dismissed. Costs easy.