Judgment:
Ajit Kumar Sengupta, J.
1. This appeal is directed against an order passed By the learned Judge of the Court below dismissing the writ application. The appellant petitioner moved the writ application forquashing an order passed by the State Government referring a dispute relating to dismissal of one Bhubaneswar Chowdhury, a workman employed by the appellant-petitioner to the Industrial Tribunal and orderpassed by the Tribunal on 4th June, 1987 rejecting the preliminary issue regarding the maintainability of the said reference.
2. The facts shortly stated are that the Third respondent, Bhubaneswar Chowdhury, was employed by the appellant as a Durwan. Chargesheet with an order of suspension pending enquiry had been served upon him on 23rd March, 1982. After the enquiry was held the Third respondent was ultimately found guilty of the charges levelled against him. Agreeing with the finding of the Enquiry Officer the Management decided to dismiss the Third respondent from service. He was accordingly dismissed. Thereafter the Third respondent, the dismissed workman, moved before the Conciliation Officer and ultimately reference was made by the Government to the Eighth Industrial Tribunal for adjudication on the issue whether the dismissal of Bhubaneswar Chowdhury was justified and to what relief, if any, he was entitled.
3. A preliminary point was taken before the Third respondent as to the maintainability of the order of reference and the jurisdiction of the Tribunal. The Tribunal held that the case of the dismissed workman was not espoused by a substantial number of workmen. The Tribunal, therefore, made the award on 24th January, 1985 holding that the reference was incompetent and not maintainable as framed.
4. After the Tribunal passed the award holding that the reference was not maintainable the workman on 5th May, 1986 wrote to the Joint Labour Commissioner that because the Tribunal held that the reference was not maintainable as framed the Industrial dispute remained unresolved and accordingly me Government was requested to refer the matter again under Section 10 read with Section 2-A of the Industrial Disputes Act before the appropriate authority for adjudication. The Conciliation Officer on 19th July, 1986 submitted the following report:
'A dispute was raised by Howrah Shop Employees' Union regarding the dismissal of Shri Bhubaneswar Chowdhury, who was working in the abovementioned shop. The dispute was referred to 8th Industrial Tribunal for adjudication by the Labour Department under Order No. 3478-IR/111-232/83, dated 23-11-83. Both the parties appeared before the Tribunal and the Tribunal in its award, dated 24-1-85 rejected the petition on technical ground that the union has no locus-standi to represent the case before the Tribunal as they are not properly authorised by the substantial majority of the workmen of the concerned shop. The Tribunal has not gone into the merits of the case and the concerned workman because of his faithfulness could not get any relief. In view of this, the concerned workman has prayed earnestly to intervene into the matter and failing which the issues may be referred to adjudication afresh under Section 2-A of the I.D. Act read with Section 10. On receipt of the prayer from the workman concerned conciliation proceedings were held but the management remained adamant on their points and as such the undersigned has no other alternative but to recommend the dispute to adjudication. The dispute may be referred to adjudication under Section 2-A read with Section 10 of the I.D. Act so that the workman can contest the dispute individually before the Labour Court or Industrial Tribunal'.
5. The issues for reference may be followed as:-
'Whether the dismissal of Shri Bhubaneswar Chowdhury, Durwan, is justified To what relief, if any, is he entitled ?'
6. Thereafter a fresh reference was made by the State Government on 1st October, 1986 to the Eighth Industrial Tribunal on the same issue as to whether dismissal of the third respondent was justified and to what relief, if any, he was entitled.
7. It may be mentioned that the said reference was made in terms of Section 10 read with Section 2-A of the Act. In the order of reference it has been inter alia mentioned that after the award was made by the Tribunal on 24th January, 1985 holding that the earlier order of reference, dated 23rd November, 1983 was invalid and not maintainable as the Union failed to establish their case by any resolution of authorisation of substantial majority of the workmen of the concerned establishment in espousing the case of the workman and whereas the concerned workman raised a fresh dispute before the Labour Commissioner, West Bengal and Conciliation Officer, the said Conciliation Officer having failed to settle the dispute amicably sent a report under Section 12(4) to the State Government.
8. The Government after considering the said report of the Conciliation Officer was satisfied that the Industrial dispute still existed between the employer and the said workman and accordingly reference was made.
9. The second reference was made on 1st October, 1986. On 5th January, 1987 the written statement was filed by the workman. The employer filed the written statement in February 1987. The evidence was taken by the Tribunal on 20th May, 1987. On 4th June, 1987 before the Tribunal the Management again took preliminary point that the said second reference was invalid and not maintainable as the Conciliation Officer has not given any opportunity to the employer to make any representation or of being heard. Tribunal, however, rejected the said contention by its order, dated 4th June, 1987 and placed the matter for hearing on merits on 16th June, 1987. The Tribunal held that as the Tribunal cannot take into account any irregularities in the conciliation stage as the Government had referred the matter for determination on merits and the case was fixed for hearing on 4th June, 1986 and thereafter the writ petitioner moved this Court and obtained an interim order of stay which was ultimately vacated by the order under appeal, dated 4th December, 1987. The writ petition wasalso dismissed.
10. The grievance of the appellant is that the reference is incompetent because no hearing was given to the employer to represent the views of the employer before the Conciliation Officer. Without giving the hearing the Conciliation Officer cannot give a failure report and the Government cannot on the basis thereof refer the matter to the Industrial Tribunal.
11. Before we deal with the contentions of the learned Counsel appearing for the parties we may set out here at this stage the order passed by the learned Judge-
'There is no dispute that making of a Reference is an administrative act. The petitioner's contention is that originally it was an administrative act at the stage of making the first Reference, but when the second Reference was made the petitioner should have been given an opportunity of being heard.
I fait to see the logic of this argument. If the first Reference was an administrative act, the second Reference is equally so. At this stage there cannot be any question of giving a hearing to the petitioner.
If the issues raised in the first Reference have been determined by the Tribunal, those questions cannot be reopened once again. But that is a question which should be raised before the Tribunal itself. I fail to see how the writ Court can prevent the State Government from making a second Reference. It is open to the Tribunal to hear ail the points including the preliminary point of non-maintainability of the second Reference. The writ petition, therefore, must fail and is dismissed. There will be no order as to costs'.
12. Miss Mukherjee appearing for the appellant has contended that once the first Reference has been held to be invalid the whole gamut of the procedure for reference has to be followed and the Conciliation Officer has to hear the parties and thereafter submit the failure report. Only then the Government can, if satisfied, refer the matter to the Tribunal.
13. Reliance has been placed by Miss Mukherjee on the case of American Express International Banking Corporation v. Union of India, reported in 1979(2) LLJ 22. In that case the appropriate authority once declined to make a reference. Thereafter without hearing the Management the Government made a reference of certain disputes to the Industrial Tribunal. It was held by the learned Judge that on the self same fact when the similar dispute was refused to be referred to the Tribunal for adjudication if the respondent authorities subsequently reconsidered the case and make a reference they should have heard the petitioner company or given them necessary opportunity to establish that no Industrial dispute in fact was existing or existed. Accordingly it was held that the reference was incompetent.
14. In our view the said decision has no application to the facts of this case. As indicated earlier, in the instant case a reference was earlier made under Section 10 of the Act but on a technical ground the Tribunal held that the reference was incompetent as the case of the dismissed employee was not espoused by substantial number of workmen. The dispute was already existing. There was the new fact to be agitated before the Conciliation Officer in the second round. The Conciliation Officer having submitted a failure report under Section 12(4) the Government after applying mind referred the dispute for adjudication by the Tribunal. Since the first reference was found to be incompetent on technical ground it was necessary for the dismissed workman to go before the Conciliation Officer once again for referring the existing dispute. The Government acted erroneously in not referring to the provisions of Section 2-A in making the first reference. That was corrected and thereafter the second reference was made under Section 10 read with Section 2-A of the Act. As we have already indicatedthat the Government had referred to the failure report as made by the Conciliation Officer under Section 12(4). Once the reference was held to be incompetent or not maintainable there was no reference, at all. The Government, therefore, was justified in proceeding on the basis of the failure report submitted to it. It is not a case where the Government first declined to make a reference and thereafter a reference was made without hearing the Management. The jurisdiction of the Government to refer the dispute arises after the failure report is submitted. Such failure report having been submitted once in respect of the dispute, there being no fresh fact, no further opportunity was required to be given by the Conciliation Officer to the management before submitting the report to the Government to make the reference.
15. Under Section 12 the Conciliation Officer is required to hold the conciliation proceedings and to investigate the matter, attempt to mediate and when he fails in his effort to bring about a settlement between the parties he has to make a full and detailed report in regard to his enquiry and conclusion as to the reasons on account of which a settlement could not be arrived. If on the report under Section 12(4) the appropriate Government is satisfied that there is a case for reference to the Tribunal it may make such reference. The appropriate Government is to consider the report and decide whether a case for reference has been made out. If it is satisfied that there is a case for reference then only it will make a reference under Section 10 of the Act. The satisfaction of the Government that it is a fit case where the reference should be made had already been arrived at when the earlier reference was made. Accordingly, there was no question of the Government being satisfied once again on the identical facts. Even if no failure report was submitted for the second time, the Government would have the jurisdiction to refer the matter to the Tribunal. Authority subsequently reconsidered the case and made a reference they should have heard the petitioner company or giving them reasonable opportunity to establish that no industrial dispute in fact was existing or existed. Accordingly it was held that the reference was incompetent.
16. In our judgment the said decision has no application to the facts of the case. As indicated earlier, in the instant case after the failure report under Section 12(4) of the Act was submitted by the Conciliation Officer, a reference was made under Section 10 of the Act. But on technical ground the Tribunal held that the reference was incompetent as the cause of the dismissed employee was not espoused by a substantial number of workmen. Thereafter, the workman again moved the Conciliation Officer. He submitted the failure report once again. The Government after applying their mind referred the dispute for adjudication by the Tribunal. There was no new fact to be agitated before the Conciliation Officer in the second round. Since the first reference was found to be incompetent on technical ground, the dismissed workman when before Conciliation Officer once again for referring the existing dispute. The dispute did not come to an end after the first reference was held to be incompetent. The nature and character of the dispute did not change. The Government acted erroneously in not referring to the provision of Section 2-A of the Act in making the first reference. That was corrected and thereafter the second reference was made under Section 10 read with Section 2-A of the Act. The Conciliation Officer in his second failure report had referred to the reasons why the first reference was held to be incompetent. The Tribunal did not enter into the merits of the case. Once reference was held to be incompetent or not maintainable there was no reference at all. The Government was, therefore, justified on the basis of the second failure report submitted to it to make the reference of the existing industrial dispute between the workman and the management. It is not the case where the Government first declined to make a reference and thereafter a reference was made without hearing the management. An Industrial dispute existed at the time when the Government made the second reference. There being no fresh fact at the time of second reference no further opportunity was required to be given by the Conciliation Officer to the management before he submitted a report under Section 12(4) for the second time in the light of what happened after the first reference had been made. Under Section 12 the Conciliation Officer is required to hold the conciliation proceedings and to investigate the matter, attempt to mediate and when he fails in his effort to bring about a settlement between the parties he has to make a full and detailed report in regard to his enquiry and conclusion as to the reasons on account of which a settlement could not be arrived. If on the report under Section 12(4) the appropriate Government is satisfied that there is a case for reference to the Tribunal it may make such reference. The Appropriate Government is to consider the report and decide whether a case for reference has been made out. If it is satisfied that there is a case for reference then only it will make a reference under Section 10 of the Act. The satisfaction of the Government that it is a fit case where the reference should be made had already been arrived at while the earlier reference was made. Accordingly, there was no question of the Government being satisfied once again on the identical facts. Even if no failure report, was submitted for the second time, the Government would have the jurisdiction to refer the matter to the Tribunal. An order of reference under Section 10(1) of the Industrial Disputes Act is essentially an administrative act and the expediency of making reference is a matter entirely for the Government to decide. If the Government is not bound to give notice to the party or to hear them before making an order of reference, in that event the Conciliation Officer in the second round was not required to hear the management before submitting a failure report as only new fact which could have been added and was added that the Tribunal held the first reference to be incompetent on technical ground and did not decide on the merits of the dispute. That apart, the initiation of conciliation proceeding may not be an essential preliminary to the making of an order of reference under Section 10(1) of the Act in all cases. In our view in the present case the workman may not have initiated the conciliation proceeding for the second time at all and could have made representation to the Government for reference in view of the first reference having been held to be incompetent on technical ground. If that be the position the reference made by the Government for the second time could not be held to be without jurisdiction solely on the ground that the management was not heard before failure report was made by the Conciliation Officer.
17. Having regard to the facts and circumstances of this case, we are of the view that there is no merit in this appeal. The objection to the jurisdiction of the Tribunal of hearing the reference on the ground that second reference was made without giving the management an opportunity of being heard cannot be sustained.
18. For the reasons aforesaid, this appeal is dismissed. The appellant shall pay costs of this appeal to the workmen assessed at 30 Gms. The Tribunal shall dispose of the appeal on merits within three months from the date of communication of the operative portion of this judgment and order. Filing of paper book is disposed with. Undertaking given in that behalf will stand discharged.
Tribunal and all parties concerned to act on the signed copy of operative part of this judgment and order on usual undertaking.
K.M. Yusuf, J.
19. I agree.