Pradip Dey vs State of West Bengal and Others

D.K. Seth, J.—The petitioner has served the respondents which had come back with the remark left. He had filed an affidavit-of-service showing service. The writ petition was dismissed for default on February 27, 1998. In the application for restoration sufficient ground has been made out. The writ petition is therefore restored to its original file and number after recalling the order dated February 27, 1998.

After having been restored it appears that the petition can be disposed of without prejudice to the rights and contentions of the parties and it will not affect the interest of the parties by reason of disposing of the writ petition in the manner following. Therefore, the writ petition is treated as on day''s list and is disposed of as hereafter.

The respondent No. 5 is a company being Tamralipta Co-operative Spinning Mills Ltd. The petitioner is alleged to have himself left the mill. Be that as it may the parties will not suffer any prejudice if the petition is disposed of in the absence of the respondents since it will get an opportunity to contest the claim of the workmen in appropriate proceedings. Despite service no one appears on behalf of the State.

In this case the petitioner''s service was terminated. He raised an industrial dispute. Conciliation proceeding was followed. A failure report was submitted. But the State Government declined to refer by a letter dated May 20, 1997 on the ground that under the model standing order, difference can be sorted out.

Admittedly the service of the petitioner was terminated. It is covered by Section 2 of the Industrial Disputes Act. Existence of some provisions in the model standing order for resolving difference cannot be a ground for holding that no dispute exists.

The power conferred upon the appropriate Government u/s 10 is conferred to a finding as to whether a dispute exists or apprehended. It is not supposed to look into the question as to whether such dispute can be redressed through alternative method. It is at the stage of conciliation such alternative redressal method can be explored. During the process of conciliation alternative method may be attempted to. Once the conciliation fails, it is not open to refer to any alternative process.

The ground that under the standing order there is an alternative redressal avenue, cannot be available in a case of termination inasmuch as after the termination the relationship of employer and employee ceases. The standing order does not apply in case of a dismissed employee. The relief, if any, by way of appeal or otherwise against the order of termination through a disciplinary proceedings may be an alternative remedy. But it has to be attempted to at the stage of conciliation. The conciliation proceeding could have been postponed or stayed in order to enable the workman to exhaust such remedy. If it is not so done or if it fails or the workman does not avail of the same then on the failure of conciliation, it cannot form a ground to form an opinion that the dispute does not exist or apprehended. The Act nowhere contemplates that an industrial dispute would come into existence in any particular specific or prescribed manner.

Section 2 of the Industrial Disputes Act has been enacted separately to include termination of an individual workman for making the relief available under the Act to such individual workman. It cannot be denied after failure of conciliation on any ground whatsoever. Section 2 makes termination of an individual worker''s employment a dispute within the meaning of Section 2(k) of the Act. The appropriate Government has no option in such a case to form an opinion contrary thereto. It is only a demand by the workman and refusal by the management to grant it makes it an industrial dispute.

In The Bombay Union of Journalists and Others Vs. The ''Hindu'', Bombay and Another, it was held that if a demand is made by the workman and rejected by the employer directly dr through the conciliation officer, it would constitute industrial dispute. This view is supported in Shambu Nath Goyal Vs. Bank of Baroda, . And once the appropriate Government finds the dispute to exist, it has no alternative but to make the reference.

In The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, , the Apex Court had held that mere asking the appropriate Government to refer the dispute for adjudication, without a dispute being raised by the workmen with their employer regarding such demand does not become an industrial dispute. The Madhya Pradesh High Court in Management of Katkana Colliery Western Coal Fields Ltd. v. Presiding. Officer, Central Government Industrial Tribunal 1978 Lab IC 1531 (M.P.) (DB) had held that as soon as a workman is discharged, dismissed, retrenched from service or there is a termination of service a dispute is said to exist. But this decision is directly in conflict with Sindhu Resettlement Corporation Ltd. (supra). Be that as it may the Act has not prescribed any manner in which a demand is to be made and when it was held that it is not necessary to raise such dispute in writing, therefore, if there was a demand in any form for reinstatement a dispute is raised. By insertion of Section 2 an individual dispute is also recognised and an industrial dispute can be raised without being espoused by the trade union or by any other workmen, by the concerned workman himself. If the employer is not agreeable to take the workman back and the workman wants reinstatement and such a state of affairs is manifested either by conduct or gesture between the employer and the workman then definitely a dispute exists. If the employer refuses the demand made by the workman in course of the conciliation, the existence of dispute is affirmed.

In the present case the appropriate Government has not declined reference on the ground that no demand was made by the workman or that no demand was made by the union or a group of workmen. In Western India Match Co. Ltd. Vs. The Western India Match Co. Workers Union and Others, , it was held that the function of the appropriate Government to make a reference u/s 10(1) is an administrative function. The Government cannot enter into the merits of the dispute, its function being only to refer, such a dispute for adjudication so that industrial relations between the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible. In Shambhunath Goyal (supra), the Apex Court had held that from the materials placed before it the Government reaches an administrative decision that a dispute exists or not. The function being administrative the adequacy or sufficiency of the material on which opinion was formed is beyond the judicial scrutiny. When a reference is made the Court cannot go to that extent to say that the reference is bad as was held in Avon Service (Production) Agencies (P) Ltd. v. Trinidad Cement Ltd. 1960(1) All E.R. 274 (280) (PC), wherein Lord DENNING had observed "true it is that the Governor has to enquire and, no doubt, he did in his administrative capacity but he did not conduct anything in nature of judicial or quasi-judicial enquiry." In Rex v. Nat Bell Liquors Ltd. 1912 (2) A.C. 128(159), it was observed that order making reference u/s 10(1) is an unspeaking one which in the phrase of Lord SUMMER" speaks only with the inscrutable face of sphinks." But all these cases related to references made. The order of reference may be an administrative decision, but when it refuses to make the reference it refuses to exercise its jurisdiction. If there are materials to show that such refusal is perverse then it refuses to exercise its jurisdiction in such a case the order can be reviewed by the Court. But these are normally exceptional cases where it would amount to exercise jurisdiction. Unless it is clearly shown from the materials on record that no reasonable person could decline reference, it will not come within the exception.

In the present case the appropriate Government declined reference on the ground of alternative remedy. As discussed above it cannot form a ground and the declining to refer is refusal to exercise jurisdiction. As such it can be scrutinised.

For all these reasons the order impugned cannot be sustained. The State Government shall reconsider the case in accordance with law after considering the failure report for making a reference u/s 10 read with Section 2A of the said Act in the light of the observation made above, as early as possible preferably within a period of 6 (six) weeks from the date of communication of this order.

The writ petition is thus disposed of.

Xerox certified copy of this order be made available on urgent basis.