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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Vijay Shankar Tiwari – Petitioner
Versus
The State of Maharashtra and Others – Respondents
Writ Petition No. 10795 of 2019
Decided On : 22-03-2022
Industrial Disputes Act, 1947 - Sections 10 and 12 - Employment - Industrial Dispute - Superannuated - Petitioner has superannuated from employment after joining duties - He raised an industrial dispute putting forth two grievances - Firstly that, his annual increment was stopped for one year, he was imposed penalty of Rs. 25,000/- - Secondly, since he was suspended prior to issuing order of punishment, his suspension period was maintained - Therefore, he was not paid the entire wages for suspension period, besides suspension allowance – Held, In case in hand, Conciliation Officer, after receiving notice issued by workman, should have caused a hearing in matter to assess whether, dispute was required to be admitted in conciliation - Merely because worker had received his retiral benefits, would not extinguish his relationship with the employer if he has a claim against employer with regard to his service benefits - It is case of Conciliation Officer, going by affidavit in reply filed by him, that a disciplinary enquiry was conducted against workman, he was found guilty of charges, he was issued with second show cause notice, he had replied to said notice and finally, by order, he was punished with stoppage of one increment permanently - He was also saddled with a fine of Rs. 25,000/- by way of punishment - When petitioner has raised a dispute with regard to punishment awarded to him and has raised certain issues in connection with such punishment, Conciliation Officer has to conciliate between parties and if conciliation fails, he is mandated by law to submit his failure report - It is then left to appropriate Government to decide whether, dispute needs to be referred to Tribunal for adjudication - Respondent No. 2, therefore, could not have refused to admit dispute raised by petitioner in conciliation, in facts and circumstances of this case - In Court view, in light of Sections 10 and 12 of Industrial Disputes Act, 1947, Conciliation Officer has to submit a failure report - He cannot conclude that there is no dispute existing only because employee has superannuated from service or has accepted his retiral dues - Petition allowed.
ORDER :
1. I have considered the strenuous submissions of the learned advocates appearing for the respective parties.
2. A very short issue is raised in this petition. Whether, the Assistant Commissioner of Labour, exercising jurisdiction as Conciliation Officer, can refuse to submit a failure report when the dispute raised before him is not resolved post conciliation.
3. The petitioner has superannuated from employment on 31.08.2013 after joining duties on 26.06.1979. He raised an industrial dispute on 06.09.2017 putting forth two grievances. Firstly that, his annual increment was stopped for one year by order dated 21.02.2012 and by order dated 04.05.2012, he was imposed penalty of Rs. 25,000/-. Secondly, since he was suspended prior to issuing the order of punishment dated 21.02.2012, his suspension period was maintained. Therefore, he was not paid the entire wages for the suspension period, besides the suspension allowance.
4. The Conciliation Officer has closed the file without tendering the failure report to the appropriate Government, which is the Deputy Commissioner of Labour, on the ground that as the petitioner has superannuated on 31.08.2013, no employer-employee relationship exists between him and his employer. He has been paid his retiral benefits and therefore, he cannot approach the Conciliation Officer. Instead, he should have gone to the Court.
5. The learned AGP has strenuously supported the impugned order in the light of the affidavit in reply filed on 29.07.2021. In paragraph 7 of the affidavit in reply, the Conciliation Officer submits that as the petitioner has accepted his retiral benefits on superannuation, he cannot raise an industrial dispute once he has accepted his benefits.
6. The learned advocate for respondent Nos. 3 and 4 has vehemently opposed this petition and submits that the Conciliation Officer has rightly passed the impugned order.
7. It is settled law that the role of the Conciliation Officer is to conciliate. When an industrial dispute is raised before him, he has to admit the dispute in conciliation. If the conciliation fails, he has to tender a failure report to the competent authority, which ultimately takes a decision of referring the dispute to the Tribunal if an industrial dispute exists.
8. In the instant case, the petitioner has raised two issues. One is that his one annual increment has been withheld for one year and his suspension period is maintained and secondly, he was illegally imposed with costs of Rs. 25,000/- by the employer. He has approached the Conciliation Officer five years after his superannuation.
9. Paragraphs 12, 13 and 14 of the Associated Cement Staff Union vs. State of Maharashtra and Others, 2009 (3) Mh. L.J. 915, read as under:
A Conciliation Officer can initiate conciliation proceeding only when prima facie an industrial dispute exists or is apprehended pertaining to terms of employment and conditions of service. The Conciliation Officer cannot enter into the merits of the dispute. What is relevant to note is that if ex-facie on the consideration of the demands, they do not partake or have the character of conditions of service or terms of employment, the Conciliation Officer cannot be called upon to enter into conciliation proceedings as prima facie demands would not fall within the definition of an industrial dispute. If he cannot enter into conciliation proceedings, the question of su
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