Back
High Court of Judicature at Calcutta
ANIRUDDHA BOSE
C.E.S.C. Limited
Versus
State of West Bengal & Others
W.P. Appeal No.113 of 2007
Decided On : 22-01-2008
INDUSTRIAL DISPUTE - CONCLILIATION OFFICER - JURISDICTION - CERTIFICATE OF PENDENCY - ISSUANCE - INDUSTRIAL DISPUTE ACT, 1947 - SECTION 10(1B) - WEST BENGAL INDUSTRIAL DISPUTE RULES, 1958 - RULE 12A - Held, that the Conciliation Officer is not authorized to issue a certificate of pendency under Section 10(1B) of the Industrial Disputes Act, 1947, without conducting an investigation and satisfying himself that an industrial dispute exists. The satisfaction of the Conciliation Officer cannot be implied from the mere lapse of the prescribed time limit of 60 days. The time frame provided in Section 10(1B) comes into operation only if there is a subsisting industrial dispute. The provisions of Section 10(1B) do not dispense with the necessity of formation of opinion on the part of the Conciliation Officer as regards the existence of an industrial dispute and enable a workman to have direct access to the adjudicatory authorities merely on the lapse of the prescribed time. The right of such parties to approach the Labour Court (or the Tribunal) does not accrue only from the fact of lapse of time frame, if no industrial dispute exists.
Fact of the Case:
The petitioner company and a licensee under the Electricity Act, 2003, challenged the legality of a certificate issued in Form-S as per Rule 12A(3) of the West Bengal Industrial Disputes Rules, 1958, and a notice issued by the learned Judge, Second Labour Court, requiring the appearance of the petitioners before the Court for framing of issues. The certificate in form S stipulates pendency of a conciliation proceeding for more than sixty days. The notice of the Labour Court requires appearance of the petitioners for hearing regarding framing of issues in connection with a dispute between the petitioners and the respondent no. 4. The controversy out of which the present writ petition arises, relates to the allegation of illegal termination of service of the respondent no. 4 by the petitioners. It was at his instance the Assistant Labour Commissioner, being the Conciliation Officer (respondent no. 2) had issued the impugned certificate ("Pendency Certificate") in exercise of his power under Section 10(1B)(b) of the Act. The notice directing appearance of the petitioners before the Labour Court for hearing regarding framing of issues was issued by the learned Judge, Second Labour Court under the provisions of Section 10(1B)(d) of the Act.
Finding of the Court:
The Court held that the Conciliation Officer is not authorized to issue a certificate of pendency under Section 10(1B) of the Industrial Disputes Act, 1947, without conducting an investigation and satisfying himself that an industrial dispute exists. The satisfaction of the Conciliation Officer cannot be implied from the mere lapse of the prescribed time limit of 60 days. The time frame provided in Section 10(1B) comes into operation only if there is a subsisting industrial dispute. The provisions of Section 10(1B) do not dispense with the necessity of formation of opinion on the part of the Conciliation Officer as regards the existence of an industrial dispute and enable a workman to have direct access to the adjudicatory authorities merely on the lapse of the prescribed time.
Issues: 1. Whether the Conciliation Officer is authorized to issue a certificate of pendency under Section 10(1B) of the Industrial Disputes Act, 1947, without conducting an investigation and satisfying himself that an industrial dispute exists? 2. Whether the satisfaction of the Conciliation Officer can be implied from the mere lapse of the prescribed time limit of 60 days? 3. Whether the time frame provided in Section 10(1B) comes into operation only if there is a subsisting industrial dispute? 4. Whether the provisions of Section 10(1B) dispense with the necessity of formation of opinion on the part of the Conciliation Officer as regards the existence of an industrial dispute and enable a workman to have direct access to the adjudicatory authorities merely on the lapse of the prescribed time?
Ratio Decidendi: 1. The Conciliation Officer is not authorized to issue a certificate of pendency under Section 10(1B) of the Industrial Disputes Act, 1947, without conducting an investigation and satisfying himself that an industrial dispute exists. 2. The satisfaction of the Conciliation Officer cannot be implied from the mere lapse of the prescribed time limit of 60 days. 3. The time frame provided in Section 10(1B) comes into operation only if there is a subsisting industrial dispute. 4. The provisions of Section 10(1B) do not dispense with the necessity of formation of opinion on the part of the Conciliation Officer as regards the existence of an industrial dispute and enable a workman to have direct access to the adjudicatory authorities merely on the lapse of the prescribed time.
Final Decision: The writ petition was allowed and the certificate issued in Form-S as per Rule 12A(3) of the West Bengal Industrial Disputes Rules, 1958, and the notice issued by the learned Judge, Second Labour Court, requiring the appearance of the petitioners before the Court for framing of issues were quashed. The Conciliation Officer was directed to examine the case and records as to whether there subsists an "industrial dispute" between the petitioner and the respondent no. 4 within a period of four weeks from the date of communication of this order. Further steps in the conciliation proceeding may be taken on the basis of such decision of the part of the Conciliation Officer.
ANIRUDDHA BOSE, J.:-
1. In the present writ petition, under challenge in substance is the legality of a proceeding initiated under the provisions of Section 10(1B) of the Industrial Disputes Act, 1947 (as amended in West Bengal). I shall describe this statute in the later part of this judgment as “The Act”. The petitioners, who are a company and a licensee under the Electricity Act, 2003 have approached this Court mainly for quashing of a certificate issued in Form-S as per Rule 12A(3) of the West Bengal Industrial Disputes Rules, 1958, and a notice issued by the learned Judge, Second Labour Court, requiring the appearance of the petitioners before the Court for framing of issues. I shall henceforth refer to these Rules as the said Rules. The certificate in form S stipulates pendency of a conciliation proceeding for more than sixty days. The notice of the Labour Court requires appearance of the petitioners for hearing regarding framing of issues in connection with a dispute between the petitioners and the respondent no. 4. These two documents have been made Annexures “P8” and “P10” of the writ petition.
2. The controversy out of which the present writ petition arises, relates to the allegation of illegal termination of service of the respondent no. 4 by the petitioners. It was at his instance the Assistant Labour Commissioner, being the Conciliation Officer (respondent no. 2) had issued the impugned certificate (“Pendency Certificate” in short) in exercise of his power under Section 10(1B)(b) of the Act. The notice directing appearance of the petitioners before the Labour Court for hearing regarding framing of issues was issued by the learned Judge, Second Labour Court under the provisions of Section 10(1B)(d) of the Act.
3. The original status of the respondent no. 4 as a workman of the petitioners is not in dispute in the present proceeding. The case of the petitioners is that he had retired from his service on 31st December 2005 upon having attained the age of superannuation, being 60 years. The case of the respondent no. 4 on the other hand is that his date of birth is 1st February 1949 and hence he would attain the age of superannuation only in the month of February 1949. His allegation is that he is being illegally compelled to retire before attaining the age of superannuation.
4. The respondent no. 4 was initially served with a notice of retirement issued on 8th September 2005 informing him that his retirement would take effect on 31st December 2005. He had raised objection on this count by a communication of 15th September 2005, contending that at that point of time his age was 56 years only, as his year of birth was 1949. According to him, he was to attain the age of superannuation in the year 2009. By a communication dated 14th November 2005 the petitioners themselves had taken cognizance of the grievance of the respondent no. 4 that there was legitimate doubt in recordal of his age, and took a decision to refer the matter before a medical board. A medical board was constituted, comprising of one Dr. Arun Banerjee, Presidency Surgeon, and the Chief Medical Officer and Deputy General Manager (Medical) of the petitioners. The medical board assembled on 28th November 2005, and the respondent no. 4 duly appeared before the board on that date. The medical board determined his age to be above sixty years at that point of time, and the said decision was communicated to the respondent no. 4 by a letter dated 1st December 2005.
5. Thereafter, the respondent no. 4 received his provident fund dues and retiring gratuity on 2nd and 31st January 2006 respectively. From annexure “P4” of the writ petition, to which my attention has been drawn by Mr. Sengupta, learned counsel appearing for the petitioners, I find that the respondent no. 4 had accepted the sums under these heads by signing on documents acknowledging receipt of the same. These documents on which the respondent no. 4 has endorsed his signature reflects that the a
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
