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Judgment
Prabha Sridevan, J.—The Management is the petitioner who seeks a writ of prohibition for restraining the first respondent from adjudicating
the dispute raised by the second respondent in I.D.No.616 of 1995 as it was not preceded by any conciliation.
The second respondent was working as a Helper with the petitioner. A charge-sheet was issued by the petitioner to the second respondent for
the misconduct of absence without leave. Thereafter an enquiry was held and the second respondent was dismissed from service on 27-08-1983.
The second respondent raised an industrial dispute by G.O.Ms.No.1602 dated 21-07-1984. The Government declined to refer the dispute for
adjudication. This was not challenged by the second respondent. In the mean time, the second respondent was convicted for murder and
sentenced to imprisonment for life in S.C.NO.70 of 1983. On appeal, the conviction was set aside on 28-04-1988. In July 1990 another petition
was filed by the second respondent for reconsideration of the refusal to refer the dispute for adjudication. On 27-10-1992, his petition for
reconsideration was refused. Against that the second respondent filed W.P.No.3585 of 1995. This writ petition was dismissed in limine. But while
dismissing the writ petition, this Court observed, ""the petitioner may therefore, approach the Labour Court u/s 2A(2) of the Industrial Disputes
Act, if he is entitled to do so in law"". Therefore, the second respondent filed I.D.No.616 of 1995 for adjudication of the dispute relating to his non-
employment.
According to the learned counsel for the petitioner, the Labour Court cannot adjudicate the dispute that is raised since it is not preceded by any
conciliation proceedings. According to the learned counsel, the order passed in the writ petition cannot be construed as giving the second
respondent a right to apply straightaway to the Labour Court in contravention of the provisions of the Act.
Reference was made to Executive Engineer, UPSEB Vs. Prescribed Authority/Assistant Labour Commissioner, Varanasi and Others, which
related to an appeal under payment of Wages Act where the non-compliance with Section 17(i)(a) of the said Act was attempted to be defended
and the High Court held that if a statute prescribes a thing to be done in a particular manner it has to be done in that manner alone and in no other
way. Therefore, when Section 2A(2) clearly contains the following words ""where no settlement is arrived at in the course of the conciliation
proceedings"", that cannot be ignored.
The learned counsel for the respondent on the other hand would submit that conciliation proceedings had failed and only thereafter, the
reference was sought for and therefore, it was meaningless to require the respondent to go before the Conciliation Officer again. The learned
counsel for the respondent also referred to JOHN AND MANI AGENCIES V. THIRD ADDL. LABOUR COURT 1999 (2) LLN 727 where it
was held as follows:
From a careful perusal of the Industrial Disputes Act, 1947, as well as the Tamil Nadu Act V of 1988, it will be clear that no limitation is any
where prescribed in the Act for approaching the appropriate Labour Court to ventilate the grievance of the workmen.
But before me the point of limitation has not been raised, the only point raised was that the respondent had not gone before the Conciliation Officer
before applying for adjudication of the dispute and therefore, the first respondent could not decide the matter.
The question is whether the workman should again go before the conciliation officer. The proceedings before the Conciliation Officer had
resulted in failure and the Assistant Commissioner of Labour, Madras had forwarded its conciliation report dated 05-05-1984. The Government
on examining the conciliation report came to the conclusion that the charges were proved and since the workman had also been convicted for life
there is no case for adjudication. Rule 25(b) of the Tamil Nadu Industrial Dispute Rules which was introduced on 15th March 1989 deals with
application to Labour Court by workman. This only shows that on receipt of intimation from the Conciliation Officer that no settlement was arrived
at in the course of the conciliation proceedings, the aggrieved individual has a right to apply in Form C1 to the Labour Court. The introduction of
Rule 25(b) is consequent to the introduction of Section 2A(2). Prior to the Amendment Act, 1988, the workman had to await the result of the
Reference by the Government for commencing the adjudication proceedings. But, now that formality has been dispensed with in the case of
dismissal of an individual workman. Section 2A(2) reads thus:
Where no settlement is arrived at in the course of any conciliation proceeding taken under this Act in regard to an industrial dispute referred to in
subsection(1), the aggrieved individual workman may apply in the prescribed manner, to the Labour Court for adjudication of such dispute and the
Labour Court shall proceed to adjudicate such dispute, as if such dispute has been referred to it for adjudication and accordingly all the provisions
of this Act relating to adjudication of industrial disputes by the Labour Court shall apply to such adjudication.
In RUSTOM AND HORNSBY INDIA LTD. V. T.B. KADAM 1975 II LLN 254 an attack was made on Section 2A that new rights had
been created under the said section and to make Section 2A which came into force on 01-12-1965 applicable to the affected workman would
amount to giving retrospective effect to the provisions of Section 2A. The Supreme Court repelled this objection and held that since Section 2A
uses the words ""where any employer discharges ....."" and not, ""when any employer discharges ....""; it does not deal with the question as to when
that was done but it refers to the situation or a state of affairs. In other words, wherever there is a discharge, dismissal etc. in relation to an
individual workman it becomes an industrial dispute. Further, the Supreme Court observed that there was no creation of individual rights. Even
before the introduction of Section 2A, the dispute relating to an individual workman could become an industrial dispute, if it was sponsored by a
labour union or a group of workman and the change made by Section 2A was that even if it is not so sponsored it would still be an ""industrial
dispute"".
Likewise, in this case the petitioner had sought for a reference, since at that point of time, Section 2A(2) had not come into force. The
Government declined to grant it. He again renewed his prayer for reference. That was declined again. The correctness of the order came up for
judicial review before this Court. The writ petition was dismissed giving the respondent the liberty to apply to the Labour Court, availing of the right
given to the workman by Section 2A(2). Strictly, the power of the appropriate Government to refer the matter for adjudication is not equivalent to
the power to adjudicate upon such question. The power to adjudicate purely vests with the Industrial Tribunal or the Labour Court. It is true that
the respondent had not challenged the earlier order of rejection. But in the writ petition, the respondent may have been able to persuade this Court
to accept his case that the refusal to order reference was not justified. In that event this Court might have directed the Government to refer the
dispute as has been done in several cases by the Supreme Court and this Court. But since in the mean time Section 2A(2) had come into force, the
workman raising an industrial dispute u/s 2A did not have to go through that formality. Had the Amending Act not come into force and had he
succeeded this Court might have directed the Government to refer the dispute. If one were to accept the petitioner''s case then in every case where
the High Court or the Supreme Court set aside the Government''s refusal to order reference, the workman or workmen must go through the
routine of conciliation proceedings. This will be a wasteful exercise.
In Sharad Kumar Vs. Govt. of NCT of Delhi and Others, the appellant was holding the post of Area Sales Executive. His service was
terminated. The matter was taken up for conciliation. The Conciliation Officer submitted a failure report on 23-10-1996. On receipt of the
conciliation officer''s report, the State Government declined to refer to the dispute to the Industrial Tribunal on the ground that the application is not
a workman defined under Act. The High Court concurred with the view that the appellant is not a workman. The Supreme Court held that the
High Court fell in error in confirming the order of rejection of reference. The examination of factual matters including oral evidence would have to
be considered by the authorities and the State Government cannot arrogate to itself the power to adjudicate on the question. Therefore, the
Government was directed to refer the dispute raised by the appellant including the question whether he was a workman. No direction was given to
approach the Conciliation Officer once again.
According to the learned counsel for the petitioner once the Government refuses to order reference the conciliation proceedings come to an
end and cannot thereafter, form the basis for an application for adjudication of the dispute. This cannot be accepted. If that were so in the decision
cited above the appellant would have had to go back to the conciliation officer for a fresh failure report. This cannot be the intention of Section
2A(2). As observed by the Supreme Court in the decision referred to earlier Section 2A(2) also uses the word ""where no settlement is arrived at"".
Therefore, it is clear that what is required is failure to arrive at a settlement in the conciliation proceedings.
In V. Veerarajan and others Vs. Government of Tamil Nadu and others, conciliation proceedings were initiated with regard to seven dismissed
workmen and on its failure the Government was asked to make a reference and the Government declined to do so. The Supreme Court after
hearing both the counsel came to the conclusion that the State Government ought to be directed to make a reference. The counsel appearing for
respondent No.3 urged that there might be some other relevant grounds which may still be required to be considered by the State before deciding
whether to make a reference or not and the case should therefore, go back to the State Government to reconsider the question. While the matter
was pending before the Supreme Court the State Government again declined to refer the case. So the appeal was further heard by the Supreme
Court. There it urged that even if the Supreme Court took the view that the grounds advanced by the State Government were neither relevant nor
germane, the matter should go back to the State Government for fresh disposal. But the Supreme Court held that this was a fit case where a
direction should be given to the State Government to refer the dispute for adjudication and in fact, to fix the time frame within which the dispute
shall be referred. The workmen were not asked to go through the conciliation proceedings again. It is difficult to see why the respondent herein
should go through the empty formality. The effort at conciliation has failed. The new section does not introduce a new right. The Workman''s right
to have the dispute adjudicated takes a shorter route that is all.
Before Section 2A(2) came into force, even with regard to an aggrieved individual workman, the Government would consider the report
referred to in Section 12(4) and decide whether there is a case for reference. The report u/s 12(4) is sent if no settlement is arrived at. But now,
where no settlement is arrived at, the aggrieved individual workman may straightaway apply in the prescribed manner to the Labour Court. That is
the only difference. Here, there has been a failure to arrive at a settlement and the workman had applied to the Labour Court. The objection raised
by the petitioner has no legal basis. Unfortunately, by taking this stand seven years have been lost. The writ petition is dismissed with costs of
Rs.3000/-.