Back
2016 Supreme(Cal) 447
IN THE HIGH COURT AT CALCUTTA
SAMBUDDHA CHAKRABARTI, J.
Hooghly Dock and Port Engineers Limited - Petitioner
Vs.
Chief Labour Commissioner (C), Government of India and Others - Respondent
W.P. No. 11012 (W) of 2015
Decided On : 03-10-2016
For the Petitioner: Mr. Arunava Ghosh, Mr. Ashok Kumar Jena
For the Union of India : Mr. Anup Mukhopadhyay
For the Respondent: Mr. Rabilal Maitra, Mr. Arijit Chatterjee
A Conciliation Officer under the Industrial Disputes Act, 1947, has no jurisdiction to give a decision on the issue before him but is limited to holding conciliation proceedings, investigating the dispute, and inducing the parties to come to a fair and amicable settlement.
Headnote:
INDUSTRIAL DISPUTES ACT - CONCILIATION OFFICER - JURISDICTION - ACTING BEYOND JURISDICTION - LACK OF AUTHORITY TO GIVE DECISION - DECISION SET ASIDE - MATTER REMANDED FOR CONCILIATION PROCEEDINGS.
Fact of the Case:
The petitioner, a government company under the Rehabilitation-cum-Restructuring Scheme, challenged an order passed by the respondent no. 1, a Conciliation Officer under the Industrial Disputes Act, 1947 (the Act), on the ground that the respondent no. 1 had acted beyond his jurisdiction by giving a decision on the issue before him instead of holding a conciliation proceeding as directed by the High Court.
Finding of the Court:
The Court held that the respondent no. 1, while acting as a Conciliation Officer pursuant to the order passed by the High Court, could never give a decision on any point. The respondent no. 1 had exceeded his powers under Section 12(1) of the Act and failed to perform the statutory functions vested in him under Section 12(4) of the Act.
Issues: 1. Whether the respondent no. 1, acting as a Conciliation Officer, had the jurisdiction to give a decision on the issue before him. 2. Whether the order passed by the respondent no. 1 was valid and enforceable.
Ratio Decidendi: 1. The duty of a Conciliation Officer under Section 12 of the Act is to hold conciliation proceedings, investigate the dispute, and induce the parties to come to a fair and amicable settlement. 2. A Conciliation Officer cannot adjudicate the issues before him or give any direction to any of the parties. 3. In case the parties fail to arrive at a settlement, the Conciliation Officer is required to submit a full report to the appropriate Government, which may then decide whether to refer the dispute to an Industrial Tribunal or Court.
Final Decision: The Court allowed the writ petition, set aside the order impugned, and remanded the matter to the respondent no. 1 to act strictly in terms of the High Court's order dated February 26, 2014, within eight weeks from the date of communication of the order.
Sambuddha Chakrabarti, J.
1. The petitioner has challenged an order dated April 9, 2015 passed by the respondent no. 1 and prayed for an order not to give effect to the same in any manner whatsoever.
2. Although the issue involved in the writ petition is purely a question of law in order to appreciate the same a brief factual background is necessary to be kept in view. The petitioner, a government company, has now become sick and is under the Rehabilitation-cum-Restructuring Scheme of the Central Government. The Government of India decided to put the petitioner in the disinvestment policy. At present the company has 195 employees working at its Salkia factory and 136 employees working at the Nazirgunj factory.
3. The petitioner and its employees are bound by the directions and circulars issued by the Department of Public Enterprises (DPE, for short) which acts as the nodal agency for all Public Sector Enterprises. The Central Government introduced a Voluntary Retirement Scheme (VRS, for short) for its employees and workers upon payment of adequate compensation to the employees and workers of the petitioner. Subsequently, the Government of India issued a notification in the year 2000 and introduced a revised Voluntary Retirement Scheme. The employees who had already opted for voluntary retirement till that period were, the petitioner claims, entitled to VRS, ex-gratia only. The modality of calculation was strictly followed on the monthly salary or wages @ 30 days comprising various pays and dearness allowance. Subsequently, the DPE issued a further notification and modified the revised Voluntary Retirement Scheme. In the said memorandum it was specifically mentioned that the administrative ministries or departments were required to bring the modified VRS to the notice of the public enterprises like the petitioner under their administrative control and to ensure strict compliance with the provision of the said Scheme.
4. In terms of the said notification, the petitioner issued an internal office order on November 19, 2001 whereby it was categorically mentioned that the employees opting for VRS would be entitled to its benefit on a model depending on the choice of the employees.
5. Subsequently, the DPE issued a fresh notification on February 28, 2002 by which it was clarified that commencing from May 5, 2000 till November 5, 2001, calculation of VRS @ 26 days a month was allowed under the Gujarat Pattern only as there was no concept of Gujarat Pattern VRS before May 5, 2000. The employees who had already opted for voluntary retirement under the old guideline would be covered under the Scheme of 30 days a month.
6. The concerned employees of the petitioner accepted the calculation on the basis of the said notifications. Considering the calculation of the VRS on the basis of 30 days a month, the petitioner provided the VRS to at least 281 employees and workmen which they had accepted without any dispute. At present, however, the employees opting for VRS are entitled to the benefit in terms of VRS ex-gratia in compliance of the DEP’s guideline dated November 6, 2001. According to the petitioner, in January 2012, the respondent no. 5 Union for the first time contended that the calculation of the Voluntary Retirement Scheme was faulty and the same should be corrected. It was, thereafter, contended that for the purpose of the calculation of the VRS, the petitioner should consider 26 days and not 30 days.
7. In the year 2013, the respondent no. 5 filed a writ petition praying for higher rate of compensation under the VRS implemented by the Government of India on the Gujarat model, relying on an order of this Court and the subsequent decision of the respondent no. 1 in respect of another company, Viz., Burn Standard Company Limited. There the respondent no. 1 had taken a decision that daily wage for the purpose of calculation of compensation of VRS has been directed to be calculated by multiplying hourly rate by 8. Hourly rate h
