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IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
King & Co. (Homoeo Chemist) Pvt. Ltd - Petitioner
Versus
State of West Bengal – Respondent
W.P. No. 37064 (W) of 2013
Decided on : 24-01-2014
For the Petitioner:Jayanta Dasgupta and Rananeesh Guha Thakurta, Advocates.
For the Respondent:Lovely Dasgupta, L. M. Ghosh and Ashmita Chatterjee, Advocates.
For the State :N.C. Bhattacharyya and Golam Mohammad, Advocates.
The Conciliation Officer is obligated to investigate the matter and record satisfaction as to the existence of the industrial dispute before issuing a pendency certificate. The date of raising the dispute for the purpose of calculating the 60-day period under section 10(IB) is the date when the individual workman makes a representation alleging the existence of a dispute before the Conciliation Officer.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 15(2)(b) - SECTION 10(IB) - WEST BENGAL INDUSTRIAL DISPUTES RULES, 1958 - RULE 12A - An interim application under section 15(2)(b) of the Industrial Disputes Act, 1947 was allowed by the Second Labour Court, Kolkata. The petitioner challenged the order on the ground that the proceedings were not maintainable as the Conciliation Officer did not hold any investigation required under Rule 12A of the West Bengal Industrial Disputes Rules, 1958. The court held that the Conciliation Officer is obligated to investigate the matter and record satisfaction as to the existence of the industrial dispute before issuing a pendency certificate. The date of raising the dispute for the purpose of calculating the 60-day period under section 10(IB) is the date when the individual workman makes a representation alleging the existence of a dispute before the Conciliation Officer.
Fact of the Case:
The petitioner, a company, dismissed the respondent, an employee, from service after an enquiry. The respondent raised an industrial dispute and the matter went before the Conciliation Officer. The Conciliation Officer issued a pendency certificate, and the respondent filed an application under section 15(2)(b) of the Industrial Disputes Act, 1947 before the Labour Court. The Labour Court granted interim relief to the respondent.
Finding of the Court:
The court found that the Conciliation Officer is obligated to investigate the matter and record satisfaction as to the existence of the industrial dispute before issuing a pendency certificate. The date of raising the dispute for the purpose of calculating the 60-day period under section 10(IB) is the date when the individual workman makes a representation alleging the existence of a dispute before the Conciliation Officer. The court also held that the petitioner's conduct in invoking the provisions of section 33(2)(b) of the Act, which applies to industrial disputes, indicated that they themselves believed that an industrial dispute existed.
Issues: 1. Whether the Conciliation Officer is obligated to conduct an investigation and record satisfaction as to the existence of an industrial dispute before issuing a pendency certificate. 2. Whether the date of raising the dispute for the purpose of calculating the 60-day period under section 10(IB) is the date when the individual workman makes a representation alleging the existence of a dispute before the Conciliation Officer.
Ratio Decidendi: 1. The Conciliation Officer is obligated to investigate the matter and record satisfaction as to the existence of the industrial dispute before issuing a pendency certificate. 2. The date of raising the dispute for the purpose of calculating the 60-day period under section 10(IB) is the date when the individual workman makes a representation alleging the existence of a dispute before the Conciliation Officer.
Final Decision: The court dismissed the writ petition and upheld the order of the Labour Court granting interim relief to the respondent.
Harish Tandon, J.
1. An interim application filed under section I5(2)(b) of the Industrial Disputes Act, 1947 at the instance of the workman stands allowed by the Second Labour Court, Kolkata, which is impugned in this writ petition.
2. The petitioner never took a stand that the interim application is not maintainable, but raises a dispute as to the maintainability of the proceedings on the basis of the pendency certificate issued by the Conciliation Officer to be non-maintainable because the Conciliation Officer did not held any investigation required under Rule 12A of the West Bengal Industrial Disputes Rules, 1958.
3. Before proceeding to decide the point canvassed by the respective advocates, it would be pertinent to record the salient facts of the instant writ petition. The respondent No. 3 was an employee of the petitioner and was working as Assistant Compounder at the Wholesale section. The complaint was made against the said respondent alleging the commission of misconduct for which a show-cause notice was issued. Subsequently charge-sheet was also issued upon the said respondent and he was kept under suspension. A domestic enquiry was held and the petitioner was imposed penalty of dismissal from service. Thereafter an application under section 33(2Xb) of the Industrial Disputes Act, 1947 was filed by the petitioner company before the Joint Labour Commissioner, Government of West Bengal for granting approval to the said order.
4. By an order dated October 22, 2008 the said Joint Labour Commissioner accorded the approval of the said respondents dismissal from service. Subsequently the said respondent raised an industrial dispute against the alleged termination from service and the matter went before the Conciliation Officer.
5. It came out from the pleadings made in the writ petition that since the Conciliation Officer did not complete the proceedings within the statutory period provided under section 10(1)(B) of the said Act, an application for issuance of the pendency certificate was taken out by the said respondent. Having received the pendency certificate issued by the Conciliation Officer, the said respondent has filed an application under the aforesaid provision before the Labour Court. In the pending proceeding an application for interim relief was taken out, which is disposed of by the Labour Court by passing the impugned order.
6. The learned advocate appearing for the petitioner vehemently submits that relief under section 15(2)(b) of the said Act can only be granted after recording the satisfaction relating to the maintainability of the proceedings. He further submits that Rule 12A of the West Bengal Industrial Disputes Rules, 1958 (hereinafter referred to as "the said Rules") provides the mechanism and the procedure for settlement of the dispute by the Conciliation Officer, which includes the duty cast upon the Conciliation Officer to investigate the matter and record his/her satisfaction as to the existence of the industrial dispute. In other words the Conciliation Officer before issuance of the pendency certificate should undertake the investigation and it is only after recording his/her satisfaction as to the existence of the industrial dispute the pendency certificate could be issued.
7. In support of the aforesaid contentions, the reliance is placed upon a judgment rendered by a Co-ordinate Bench of this Court in case of C.E.S.C. Ltd. v. State of West Bengal & Ors. reported in 2008 (3) CHN 329. The learned advocate further submits that the Co-ordinate Bench has relied upon a judgment of the Supreme Court rendered in case of Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat & Ors. reported in 1968 (16) F.L.R. 307 : AIR 1968 SC 529, wherein it is held that unless a dispute is raised with the employer, the employee cannot approach the Conciliation Officer directly and it would be deemed that no industrial dispute exists. By relying upon a Judgment of Orissa High Court in case of Ori
