2008 Supreme(Guj) 81

2008 (3) GCD 1715 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Ravjibhai Khodabhai Davera [Rajkot]
Versus
Union of India & Ors.
Special Civil Application No. 5939 of 2001—Decided on 28/02/2008

Important Point :
Whether appropriate Court rightly refused to refer the dispute to Industrial Tribunal?

Headnote:Industrial Disputes Act, 1947 — Sections 2(A), 2(g), 2(k), 10(1), 12 and 22 — Termination — Dispute raised by workman — Refusal to refer — Reasons for Sustainability — Finding as to — Services of petitioner workman were terminated by Bank — Petitioner alleged that Bank did not follow legal procedure to terminate his services — He raised industrial dispute but Government illegally refused to refer the same for decision by competent Industrial Tribunal — Court found that reasons given by appropriate Government for refusing to refer clearly amounts to adjudication of dispute on merit — Same cannot be considered to be prima facie opinion of the appropriate Government — According to Court appropriate Government exceeded in jurisdiction because it has no jurisdiction to examine the matter in the manner it has — Bank is not public utility service — Therefore, workman filed complaint — It is not a general industrial dispute which covered or concern with workman working with industry — Therefore, Section 12 of the Act is not applicable and appropriate Government has followed the procedure prescribed under Section 12 which is without jurisdiction — Accordingly order dated 30.01.2001 is without jurisdiction — It is hereby quashed and set aside with a direction to appropriate Government to decide the complaint filed by petitioner workman raising the industrial dispute against termination of his services according to law.

       Held :

       In this case, according to Court opinion, appropriate Government has decided the merits itself, for that appropriate Government has no jurisdiction to examine the industrial dispute raised by workman under Section 2-A of Industrial Disputes Act 1947. It is also necessary to note that in termination case, no prima facie opinion is required by Government. Any kind of opinion in such case suggest the decision on merits otherwise termination itself is enough to refer for adjudication. Whether termination is illegal or not, whether workman has established or not established whether workman is disproved or not. These are the finding of facts not to be decided by appropriate Government. [Para 53]

       In fact of this case, though industrial dispute was raised by workman against termination even though power has been exercised under Section 12 by initiating conciliation proceedings, which is without jurisdiction. The State Government has rightly followed the procedure after receiving the complaint against dismissal, discharge and termination. After receiving complaint by Assistant Commissioner of Labour, who is having power, which has been delegated by State Government to refer the dispute for adjudication to Labour Court. Therefore, appropriate Government being Central Government has to consider the defect remaining in following procedure in case of dismissal, discharge and termination. The decision, which is under challenged, where Central Government being appropriate Government has decided the merits, for which appropriate Government has no jurisdiction to adjudicate the dispute and to give finding on merits. [Para 56]

       Considering the aforesaid sections, dispute relating to termination is covered by Section 2-k being Industrial Dispute. Section 2-A is that individual workmen have right to raise dispute against termination without the help of Union by way of filling individual complaint before Conciliation Officer. [Para 59]

       In this case, present respondent Bank is not public utility service. Therefore, complaint under Section 2-A was filed by workman. It is not a general industrial dispute which covered or concerned with the workmen working with Industry. Therefore, Section 12 is not applicable to the fact of this case, even though, appropriate Government has followed procedure under Section 12, which is without jurisdiction and therefore, decision taken under Section 12 Sub-section 5 is also without jurisdiction. [Para 61]

       The appropriate Government has to think twice before refusing to refer the industrial dispute when it relates to dismissal/discharge and termination, because, ultimately, not to refer the dispute amounts to deny the remedy to the concerned workman. If dispute is not referred, then, workman remained without remedy because Civil Court has no jurisdiction when order of termination passed under the provisions of service rules. No other Court has jurisdiction which gives remedy to the workman to challenge his termination. Therefore, in such circumstances, normally, unless dispute is raised a totally frivolous one ex facie, otherwise, rule is to make a reference. [Para 62]

       According Courts opinion, appropriate Government has exceeded in jurisdiction and dispute raised under Section 2-A, the appropriate Government has no jurisdiction to examine the matter under Section 12. On both ground, this order dated 30.01.2001 passed without jurisdiction required to be quashed and set aside. [Para 63]

       Petition Allowed