IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : INDUSTRIAL DISPUTES ACT, 1947

Writ Petition (C) No.6209/2006
Reserved on : 19.05.2007
Date of decision : 25.05.2007

IN THE MATTER OF :

YAD RAM ..... Petitioner

through : Ms. Amita Gupta, Advocate

Versus

GOVT. OF NCT OF DELHI ..... Respondent

through : Mr. Sunil Bagai, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. :

The present petition has been filed by the petitioner praying inter alia for
issuance of a writ of certiorari, quashing the order dated 31st August, 2005 passed by
the Assistant Labour Commissioner on a complaint dated 12th March, 2005 filed by
the petitioner/workman, whereunder it was held that the concerned workmen were
not the employees of M/s. Taj Air Caterers Ltd. (hereinafter referred to as 'the
management') but, on the contrary, were employees of various contractors and that
the said workmen did not fall within the purview of Item 10 of the Fifth Schedule of
the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and therefore no
action could be initiated on the said complaint as the same was not maintainable
before the conciliation officer.
2. Facts leading up to the present petition are as follows. The petitioner
and 87 other utility workers had filed a complaint against the officers of the
management for indulging in unfair labour practice in continuing them as casual
workers for the past more than 10-13 years. The petitioner was appointed as a Utility
worker in the year 1995 while the other 87 utility workers were also appointed
between the years 1993 and 1999, for performing various jobs like dish washing,
hygiene, dispatch, flight unloading etc. It is alleged that the while the said workers
were working for more than 13 years with the said management, they were not being
regularized and were being treated as temporary casual workers and were being
denied the wages of regular employees and other consequential benefits. An
industrial dispute was raised in this behalf which is stated to be presently pending
before the Industrial Tribunal.

3. Thereafter the petitioner and other utility workers filed a complaint

before the conciliation officer on 12th March, 2005, under Section 2(ra) read with
Schedule V (Item 10) of the Industrial Disputes Act (hereinafter referred to as the
Act) against the said management for indulging in unfair labour practice for keeping
the workers as temporary workers for years together. Vide impugned order dated
31st August, 2005, the Asst. Labour Commissioner rejected the said complaint.
Aggrieved by the aforesaid order, the present petition has been preferred.

4. Learned counsel for the petitioner stated that the while the said
complaint was made on 12th March, 2005, the conciliation proceedings were fixed
for 22nd March, 2005, on which date, the conciliation proceedings failed. Thereafter
the impugned order was allegedly passed on 31st August, 2005. It was submitted
that Section 12(6) of the Act, makes it mandatory for the conciliation officer to send
the failure report to the appropriate government within 14 days of commencement
of conciliation proceedings. However, when such failure report was not sent by the
Conciliation Officer even after 4 months from the date of failure of the said
proceedings, a writ petition, being W.P. (C) No. 12472 of 2005 was filed by the
petitioner and the 87 other utility workers, before this court seeking inter alia
directions to the Deputy Labour Commissioner to refer the dispute to the Labour
Court for adjudication. It was during the pendency of the said writ petition,
somewhere in November/December, 2005 that the petitioner for the first time, was
served with the order dated 31st August, 2005, by which the Conciliation Officer
refused to refer the dispute of the petitioner for adjudication to the Industrial
Adjudicator. The said petition having become infructuous, it was dismissed
accordingly. As soon as the passing of the impugned order came to the knowledge of
the petitioner, the present writ petition was filed.
5. Counsel for the petitioner contended that the conciliation officer had no
power or jurisdiction to dispose of the complaint of the petitioner and other workmen
as the same amounted to going into the merits of the matter, which power is not
conferred by the Act on the Assistant Labour Commissioner. The only power that
has been conferred on the conciliation officer in this regard is that of mediating
between the parties, and if such conciliation proceedings fail, in such an eventuality,
to send a failure report to the appropriate government within 14 days of the
commencement of the Conciliation proceedings as per the mandate of Section 12(6)
of the Act. Reference was made to the provisions of Sections 11 and 12 of the Act
dealing with procedure, powers and duties of the conciliation officers to state that the
Assistant Labour Commissioner clearly exceeded his brief by delving into the merits
of the matter, which is beyond the scope of the relevant provisions of the Act.

6. Per contra, learned counsel for the respondent submitted that the entire
writ petition was based on a wrong premise as the petitioner had never sought any
conciliation of an industrial dispute. He referred to the complaint of the petitioner
dated 12th March, 2005 to state that the complaint was specifically made under
Section 2(ra) read with Item 10 of the Fifth Schedule of the Act and that the prayer
made in the complaint was for launching prosecution against the officials of the
management for indulging in unfair labour practices.

7. Counsel for the respondent referred to the provisions of Section 34 of

the Act which deals with cognizance of offences, to contend that the conciliation
officer had no power under the said provision to try any offence relating to unfair
trade practices and it is only on a complaint made by or under the authority of the
appropriate Government that a court can take cognizance of such offences.

8. Reference was also made to the provisions of Section 25U of the Act
which specifically deals with the penalty for the offence of carrying on unfair labour
practices to state that the procedure prescribed in the Act for seeking redressal of
grievance made by the petitioner with regard to unfair labour practices was entirely
different and instead of invoking the said remedy, the petitioner had filed a
misconceived complaint before the Assistant Labour Commissioner which was not
maintainable, particularly in the light of the prayer clause therein, seeking
prosecution of officers of the management for indulging in unfair labour practices
under Section 2(ra) read with Item 10 of the Fifth Schedule.

9. It was further averred that the two industrial disputes raised by the
petitioner and other workmen regarding regularization of services and benefits of
leaves against the management, had already been referred to the Industrial Tribunal
by way of reference dated 2nd July, 2003 and 20th April 2003 respectively, and the
petitioner ought to put forward the contentions and claims as raised in the said
complaint, before the Industrial Tribunal.

10. Counsel for the petitioner countered the arguments of the respondent
and stated that reliance placed by the respondent on the provisions of Sections 25U
and Section 34 of the Act, is in fact misplaced, as the said provisions have no
application to the facts of the case and the said provisions can in any case not be
invoked by a workman. Section 34 envisages that it is only the appropriate
Government that is entitled to make a complaint to the court with regard to an
offence punishable under the Act or abetment of any such offence, and only then can
a court take cognizance of such offences and that the aggrieved workman has no
remedy available to him except by way of approaching the conciliation officer, who
would then try and conciliate the dispute between the workman and the management.
In case the conciliation proceedings fail, he can send the failure report to the
appropriate Government and upon receiving such a failure report, the appropriate
Government may refer the matter for adjudication under Section 10 of the Act.

11. I have heard the counsels for both the parties and have examined the
material placed on record, including the relevant provisions of law.

12. The industrial Disputes Act, 1947 is a complete code in itself that
provides for a mechanism for identification and adjudication of an industrial dispute.
The expression 'industrial dispute' defined in Section 2(k) envisages existence of a
dispute or difference between the parties in connection with employment or non-
employment or terms of employment or conditions of labour of any person. Section
10 of the Act lays down that where the appropriate Government is of the opinion that
an industrial dispute exists or is apprehended, it may refer the dispute at any time by
issuing an order in writing. Such reference may be made to a Board for settlement
thereof. Section 12(1) makes it obligatory for the conciliation officer to hold
conciliation proceedings in the prescribed manner where any industrial dispute exists
or is apprehended. Section 12(2) requires the conciliation officer to investigate the
dispute and all matters affecting the merits and right settlement thereof and that all
attempts shall be made to bring about a fair and amicable settlement of the dispute. If
the settlement of the dispute or any of the matters in dispute is arrived at in the
course of conciliation proceedings, a report to that effect is required to be sent to the
appropriate Government together with a memorandum of settlement signed by the
parties to the dispute. If the parties fail to arrive at a settlement, the conciliation
officer is required to send a full report with respect to the steps taken by him for
ascertaining the facts and circumstances relating to the dispute and efforts made by
him for bringing about the settlement as also the circumstances and reasons on
account of which, in his opinion, the settlement could not be arrived at as mandated
in Section 12(4) of the Act. The appropriate Government may thereafter make a
reference if it is satisfied that there is a case for reference. Where the Government
does not make a reference, it is obliged to record and communicate to the parties
concerned the reasons for not making the reference.

13. A bare perusal of Sections 25T and 25U of the Act show that while the
former prohibits an employer or a trade union from committing any unfair labour
practice, the latter deals with the penalty for committing unfair labour practices.
Section 2(ra), on the other hand defines an unfair labour practice. Section 2(k) of
the Act, while defining an industrial dispute, does not in express or implied terms,
exclude from its ambit, disputes relating to unfair trade practices. Similarly Section
2(ra) simply defines unfair trade practice and nowhere is it mentioned in the Act
that matters pertaining to the same would not be an industrial dispute. Therefore,
even if an industrial dispute is sought to be raised on the ground of any party
engaging in the acts of unfair labour practices, still the mechanism to be followed for
redressal of such a dispute has to be the one as prescribed under the Act. Thus there
is no force in the plea taken on behalf of the respondent that the complaint filed by
the petitioner was not maintainable in view of the provisions of Section 34 read with
Sections 25T & 25U of the Act.

14. Now coming to the contention of the counsel for the respondent in the
present case, that since the relief sought in the complaint was beyond the powers of
the Assistant Labour Commissioner and the petitioner did not intend to invoke the
conciliation mechanism by the same, therefore the complaint was rightly disallowed,
the same is taken note of only to be rejected. Merely because the title of the
complaint dated 12th March, 2005 indicated that the same was filed under Section
2(ra) read with Schedule V (Item 10) of the Act, the respondent cannot be heard to
say that no specific request was made for initiating conciliation proceedings. The
Act envisages only such a procedure to be adopted by an aggrieved workman for
resolving his dispute with the management.

15. The argument of the counsel for the petitioner is well founded that in
view of the provision of Section 34 of the Act, which specifically states that no court
shall take cognizance of any offence punishable under the Act or of the abatement of
any such offence, save on a complaint made by or under the authority of the
appropriate Government, there was no other forum available to the petitioner where
he could raise an industrial dispute, except by way of making a complaint before the
conciliation officer. Once the complaint was made to the conciliation officer, the
adjudicatory machinery under the Act was set into motion and it was for the
respondent to take further steps as provided for under the Act. A perusal of the
records in WP(C) No. 12472 of 2005, summoned by the court shows that the same
was filed by the petitioner in July, 2005 praying inter alia for issuance of directions
to the respondent that the matter be referred to the Labour Court for adjudication, as
even after four months of having sent the complaint, a failure report was not sent by
the Conciliation Officer. It was only after notice was issued to the respondent in the
said writ petition, that the respondent passed the impugned order. In its return, the
respondent did not take any such plea there, as sought to be taken in the course of
arguments here, that the petitioner had not filed an application invoking the
conciliation process or that the same could not be treated thus for the reason that its
complaint was redressable under the provisions of Section 34, read with Sections
25T & 25U of the Act. Such a plea has also not been taken by the respondent in its
counter affidavit, wherein the only contentions raised by the respondent are that two
other matters relating to the same workman have already been referred to the
Industrial Tribunal and therefore the grievances sought to be redressed by way of the
said complaint ought to be contended before the Tribunal and secondly that the
petitioner and the other workmen are not the employees of the management, but are
the employees of various other contractors and therefore they do not fall within the
purview of Item 10 of the Fifth Schedule of the Act. It is therefore not open to the
respondent to now contend that the complaint lodged by the petitioner was not for
conciliation.

16. Furthermore, a perusal of the impugned order in fact reveals that

contrary to the stand taken by the respondent in the present proceedings, the
complaint was not dismissed on the ground that the respondent did not have any
power to proceed with the same, but on the ground that the petitioner and the other
concerned workmen were contract employees and were never directly recruited by
the management. It was on this basis that it was observed thereunder that the
workmen were not covered under Item 10 of Schedule V of the Act. Thus, it is
evidently an order dealing with the merits of the case. Same is however not
permissible. The function of a conciliation officer under Section 12 of the Act is to
try and settle the industrial dispute by means of conciliation and mediation and to try
and help the parties find an amicable solution to their disputes. However, it is not
for the Conciliation Officer to adjudicate upon the dispute as adjudication is within
the purview of the Labour Court/Industrial Tribunal and not of the conciliation
officer. Support is also drawn from the judgment of the Bombay High Court in the
case of Shridhar T. Shetty v. Speedy Transport Company (Pvt.) Ltd., Bombay and
another, reported as 2002-IV-LLN (suppl) 930(Bom), wherein it has been observed
as under:
Para 6: The object underlying the initiation of conciliation proceedings set out in
Section 12 of the Act is to make an effort to bring about a settlement or resolution of
the industrial dispute. The Conciliation Officer is not an adjudicator. His function as
prescribed in sub-section (2) of Section 12 is to bring about a settlement of the
dispute. For this purpose, the Conciliation Officer has to investigate the dispute and
all matters affecting the merits and the right settlement thereof. The statute gives
him power to do all such things as he thinks fit for the purpose of inducing the parties
to come to a fair and amicable settlement of the dispute. If a settlement is arrived at,
the Conciliation Officer is required to submit his report together with a memorandum
of settlement signed by the parties to the dispute to the appropriate Government. If
no settlement is arrived at, the Conciliation Officer has to submit a report to the
appropriate Government under sub-section (4). This report, in common parlance, is
referred to as a failure report. After the receipt of the report, it is open to the
appropriate government to make a Reference for adjudication before the Labour
Court or the Industrial Tribunal. The provisions of Section 12 would thus,
demonstrate that conciliation is a step anterior to the process of adjudication and has
been laid down by the Industrial law with a view to ensure that the dispute between
the parties is expeditiously resolved by settlement. The provision for conciliation in
the statute is in pursuance of a salutary object because it fosters Industrial peace. The
Conciliation Officer is not an adjudicator and he does not in that sense enter into the
arena of an adjudication of the merits of the dispute. Adjudication is a quasi-judicial
function. The power of the Conciliation Officer must, therefore, be contra-
distinguished with the adjudicatory power which is vested in the Tribunal or Labour
Court, as the case may be, after a Reference to adjudicate is made. (emphasis added)

17. Reliance can also be placed on the judgment of this High Court in the
case of Shri R.K. Madan and Anr. V. Govt. of N.C.T. and Ors., reported as
118(2005)DLT 542. In the said case also the petitioner workmen had made a
complaint to the Assistant Labour Commissioner under Section 25T ad 25U, read
with Schedule V(1) of the Act and a prayer was made by way of the complaint for
prosecution of the employer for committing unfair labour practice. However, the
complaint was dismissed on the ground that the complainants were not workmen as
per the definition of workmen under the Act. In that context, it was held that such
an order amounted to adjudicating the dispute on merits, and the same was not
justified since the Labour Commissioner had no power to adjudicate the matter on
merits.

18. In view of the aforesaid discussion and the position of law as stated
above, the writ petition is allowed. The impugned order dated 31st August, 2005 is
unsustainable and the same is quashed. The respondent is directed to take appropriate
action on the petitioners complaint dated 12th March, 2005 within a period of four
weeks in accordance with law. No order as to costs.

Sd/-
(HIMA KOHLI)
JUDGE