Desouza Ished Pedru vs State of Assam and Others

M. Sharma, J.—In this application under Article 226 of the Constitution of India the Petitioner has prayed for issuance of appropriate writ or direction to the Respondents 1 and 2 to refer the dispute relating to termination of his services as pharmacist of Durrung Tea Estate for adjudication under the Industrial Disputes Act.

The case of the Petitioner is that he was appointed Pharmacist on probation for a period of six months vide Annexure-B letter dated 1.2.90 by the Respondent No. 5. Thereafter, by Annexure-D letter dated 30.7.90 issued by the Manager of Respondent No. 5 Company the services of the Petitioner were terminated with effect from 1.8.90 as he was not considered suitable for confirmation in the said post. By Annexure-C letter dated 16.8.90 his service was confirmed as a permanent employee and he was asked to resume his duties immediately. But, subsequently by Annexure-E letter dated 15.9.90 the Management revoked the letter dated 16.8.90 and informed the Petitioner that the letter dated 30.7.90 would continue to remain in force, thereby terminating the services of the Petitioner with retrospective effect from 1.8.90. Thereafter, the Petitioner raised a dispute before the Assistant Labour Commissioner, Tezpur. Meanwhile, the Management (Respondent No. 5) filed a suit (Title Suit No. 3/91) before the Assistant District Judge, Tezpur for eviction of the Petitioner from the quarter. The Petitioner contested the suit by filing written statement and thereafter the learned Asstt. District Judge, Tezpur after hearing the parties stayed further proceedings of the said suit in view of the provisions of the Plantation and Labour Act and Rules framed thereunder and also u/s 33 of the Industrial Disputes Act.

Being aggrieved by the order passed in the title suit, the Respondent No. 5 as Petitioner filed a revision (Civil Revision No. 244/93) before this Court. This Court after hearing the parties disposed of the said civil revision holding that the Court below rightly stayed further proceedings of the title suit.

The main grievance of the Petitioner in this case is that though he raised a dispute before the Assistant Labour Commissioner, Zone-III, Tezpur, the Assistant Labour Commissioner vide his letter dated 7.12.90 informed the Petitioner that his termination from the post of pharmacist of Durrung Tea Easte, on expiry of the period of probation seemed to be justifed and did not merit a reference to adjudication. Therefore, the Petitioner filed appeal to the Labour Commissioner, Guwahati and in turn the Labour Commissioner directed the Assistant Labour Commissioner, Tezpur to hold a conciliation proceeding between the parties. The Asstt. Labour Commissioner by Annexure-H letter dated 18.9.93 informed the Respondent No. 5 Management that the matter would be taken up afresh for conciliation on 6.10.93 and requested them to attend the proceeding alongwith the relevant records. However, the Management vide letter dated 1.10.93 requested the Assistant Labour Commissioner not to proceed with the conciliation proceeding in view of the pendency of the cases before this Court. The Deputy Labour Commissioner, Assam, Guwahati vide Annexure-J letter dated 31.8.94 again directed the Asstt Labour Commissioner, Tezpur to hold conciliation. and submit the minutes of the proceeding together with a detailed report, however, nothing has been done as yet. Hence the present petition.

I heard Mr. TC Khetri, learned Counsel for the Petitioner and Mr SN Sarma. learned Counsel for the Respondent No. 5 Mamegement.

The learned Counsel for the parties have submitted that after failure of the conciliation proceeding the matter was not referred to the Government by the Assistant Labour Commissioner-cum-conciliation Officer, Zone-III, Tezpur as required under the previsions of the Industrial Disputers Act. It is seen that the Respondent No. 4 in reply to the complaint made by the Petitioner informed him that after going through the documents he found that the termination of the Petitioner''s service from the post of pharmacist of Durrung Tea Estate seemed to be justified and did not merit a reference to adjudication. Against this letter the Petitioner appealed to the Respondent No. 3 and the Respondent No. 3 directed the Aistt. Labour Commissioner, Tezpur to hold conciliation proceeding. The Asstt. Labour Commissioner vide his letter dated 18.9.93 asked the Management to attend the conciliation on 6.10.93, but the Management (Respondent No. 5) informed him that the matter is subjudice and pending before this Court. therefore, requested him not to proceed with the conciliation. Thereafter, the Respondent No. 4 has not taken any step for holding the conciliation. Accordingly, the Assistant Labour Commis- sioner, Tezpur kept the matter in abeyance till further intimation. The main grievances of the Petitioner in this case is that till date the dispute has not been referred by the State Government for adjudication as provided by the Industrial Disputes Act.

The point for consideration before this, court is-whether this Court can give direction to the Stats Government to refer the dispute under the Industrial disputes Act for adjudication. Mr Sarma, counsel appearing for the Respondent No. 5 has submitted that whether an Industrial disputes is to be referred to a Labour Court or not is absolutly within the domain of the appropriate Government and no writ of mandamus can be issued directing the appropriate Government to make an order of reference u/s 10 of the Industrial Disputes Act. In support of his contention he has placed reliance on the decisions of the Supreme Court in Workmen v. I.I.T.I. Cycles of India Ltd. and Ors. reported in 1995 (II) LLJ 668 and in Sultan Singh Vs. State of Haryana and another, On the other hand, Mr Khetri, counsel for the Petitioner has submitted that this Court in exercise of its writ jurisdiction has ample power to direct the authorities concerned of the Government to act in accordance with the requirements of the law. In support of his argument Mr Khetri has placed reliance on two decisions of this Court reported in 1987 (2) GLR 109 : 1988 (2) GLR 403.

In Workmen v. IITI Cycles of India Ltd. (Supra) the Apex Court dealt with a case where the State Government refused to make the reference of an Industrial Dispute for adjudication under the Industrial Disputes Act on the ground that there was a settlement between the management and the Recognised Union u/s 18(1) of the Industrial Disputes Act and the Industrial Tribunal accepted the terms of the settlement as fair and just when the validity of the settlement was questioned by two other minority unions, This order of the State Government Was upheld by the High Court. The Supreme Court in this case held thus:

...The Government has to weigh the facts keeping in mind the objective of industrial peace and smooth industrial relations between the parties. If, taking into consideration all the facts, the Government find that in the intercs of industrial peace, it is not necessary to make the reference, it may not do so.

In Sultan Singh v. State of Haryana (Supra), the services of a tape reader was terminated and he made application for reference u/s 10 of Industrial Disputes Act, 1947, but the State Government rejected the same. The workman made a representation and the Minister made a note on the representation to make a reference, however, the State Government did not take any step. The workmen filed a writ petition before the High Court but the petition was dismissed by the High Court, On appeal, the Supreme Court in this case held thus:

...the Minister made a note directing reference, but in the order communicated later to the Appellant by the Labour Department, it was indicated that in view of the decision already taken, the Government did not consider it necessary to reconsider the decision already taken. In other words, they were of the opinion that there existed no industrial dispute. They declined to make reference u/s 10(1). Therefore, there is no reference in fact, made to the appropriate Tribunal/Labour Court or Industrial Tribunal.

In these circumstances, we cannot give relief to the Appellant, since there is no reference made by the Government. The appeal is disposed of accordingly....

In Sushil Borkotoki v. Coal India Ltd. (1988) 2 CLR 403 (Supra) a Division Bench of this Court while dealing with a case under Industrial Disputes Act. 1947 directed the Government of India to make reference u/s 10 of the Act.

Relying on the ratio laid down by the Apex Court as well as the Division Bench of this Court, it is now well established that the High Court cannot issue a writ of mandamus invoking its writ jurisdiction to direct die Government to refer a matter for adjudication u/s 10(1) of the Industrial Disputes Act. The power of the Government u/s 10(1) of the Act is discretionary and it is open to the Government under certain circumstances by taking into consideration the relevant factors to refuse to make a reference. The procedure for recommending reference has been laid down in the Act. However, in the instant case, no reference has been pending before the State Government. Admittedly, the Conciliation Officer is yet to submit his report as directed by the Respondent No. 3. Duties of conciliation Officers and the manner of submitting reports etc. have been mentioned in Section 12 of the Act. All that a Conciliation Officer can do u/s 12 of the Industrial Disputes Act is to induce the parties to come to an amicable settlement on the matters in dispute. There is no provision for a final decision being given by a conciliation officer even when a settlement is arrived at between the parties, much less when no settlement is arrived at between them. As stated, on receipt of the report from the conciliation Officer, it is upto the State Government to decide whether the dispute should be referred to for adjudication.

For the reasons stated above, in my opinion, the petition has no merit and accordingly it is dismissed. However, the Conciliation Officer may proceed with the proceeding and lake necessary steps in accordance with the law. Considering the facts and circumstances of the case, I make no order as to costs.