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Judgment
Arindam Sinha, J
Mr. Mohanty, learned advocate appears on behalf of petitioners (workmen) and submits, the industrial dispute has still not been referred.
Mr. Nanda, learned advocate, Additional Government Advocate appears on behalf of State and submits, the writ petition be disposed of with direction upon the appropriate Government to take a decision.
Perused order-sheet. It appears, if we dispose of the writ petition directing the Government to take a decision, there is likely to be omission. This is because the writ petition was moved on 2nd February, 2024, when on behalf of the Government submission was, instruction will be obtained. Direction made was for instruction to be obtained or counter filed in the meantime. Counter has been filed. In it stands disclosed failure report dated 11th August, 2016 and a supplementary thereto of same date, marked ‘confidential’.
Perused the failure report. It talks about steps taken by the conciliation officer. That there was no scope for any amicable settlement and accordingly report that the conciliation proceeding ended in failure. In the supplementary was stated opinion of the conciliation officer that there is no case for reference to adjudication.
Sub-sections (4) and (5) under section 12 in Industrial Disputes Act, 1947 are reproduced below.
“(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.”
(emphasis supplied)
Sub-section (4) mandates the conciliation officer to, inter alia, report such facts and circumstances and the reasons, on account of which, in his opinion, a settlement could not be arrived at. This mandate does not require the conciliation officer to opine on whether there is a cause for reference, or otherwise. By sub-section (5) mandate is on the appropriate Government. In case it does not make a reference, it must record and communicate to the parties concerned, reasons therefor.
Supplementary to the failure report was marked confidential. The confidentiality obviously excluded someone. The appropriate Government appears to have decided not to refer the dispute, as appearing from communication dated 6th November, 2017 from the Labour Commissioner to the Principal Secretary. Text of the communication is reproduced below.
“In inviting a reference to the above, I am to say that I agree with the views of the Conciliation Officer-cum-Dist. Labour Officer, Mayurbhanj as well as the Dy. Labour Commissioner, Jajpur and recommend that the dispute may not be referred for adjudication.”
It is nobody’s case before us that there was communication issued by the appropriate Government disclosing reasons for deciding not to refer the dispute. In fact the appropriate Government has done nothing but disclose the communication, whereby the Labour Commissioner agreed with opinion expressed by the conciliation officer and that too by a supplementary, marked ‘confidential’. Our interpretation of sub-section (4) in section 12 is not that the opinion to be expressed by the conciliation officer is to be by a supplementary to the report and ‘confidential’ as excluding someone from perusal of it.
Mr. Nanda reiterates, there be direction for the appropriate Government to consider and take a decision. We direct opposite party no.1 to either formulate the question and refer the dispute or record reasons for not referring the dispute and communicate to the parties. Compliance must be within four weeks of communication of website copy of our order.
The writ petition is disposed of.
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