IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.3094 of 2010 and M.P.NO.1 OF 2010 Pradeep Stainless India Pvt. Ltd., C-3, Phase II, MEPZ-SEZ, Tambaram, Chennai-600 045. rep. By its Chairman, Mr.B.Ramesh Chand .. Petitioner Vs. 1.The Joint Commissioner of Labour, Labour Welfare Board Buildings, 6th Floor, DMS Complex, Teynampet, Chennai-600 006. 2.Chennai Yetrumathi Valaga Uzhiyargal Matrum Pothu Thozhilargal Sangam, Old No.11, New No.15, Kannan Street, Kadaperi, Tambaram, Chennai-45. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of prohibition prohibiting the first respondent from proceeding with the conciliation of Industrial Dispute No.D/3680/2009 on the ground that there is no dispute existing as on date as claimed by the second respondent. For Petitioner : Mr.Vijay Narayan, SC for Mr.K.V.Shanmuganathan For Respondents : Mr.A.Arumugam, Spl.G.P. for R1 O R D E R The writ petition is for the issuance of writ of prohibition against a conciliation officer. As to what circumstances such a writ of prohibition will lie came to be considered by the Supreme Court in U.P. Sales Tax Service Assn. v. Taxation Bar Assn., (1995) 5 SCC 716. In paragraphs 23, 25 and 26, the Supreme Court observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "23. In this case, the respondent-Association and the advocates resorted to boycott the courts on the specious plea of non-transfer of Satti Din, the appellate authority, who seems to be honest and willing to discharge his duties diligently. When the Government stuck to its stand and did not yield to the pressure despite the strike, the Bar Association filed writ petition in the High Court. Question is whether the High Court was justified in entertaining the writ petition and issuing the directions quoted above. The High Court has power to issue a writ of prohibition to prevent a court or tribunal from proceeding further when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of the rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of the fundamental rights. None of these situations indisputably arises in this case. As noted above, Section 9 of the Act is a complete code in itself for conferment of jurisdiction on the appellate authority, the procedure for dispensation and the power to pass orders thereon. The appellate authority was acting in furtherance thereof. It has, therefore, to be seen whether the High Court was justified in issuing orders restraining the authority from exercising those statutory powers and further to deprive that authority to exercise those powers by transferring the same to any other jurisdiction. ..... 25. The decision in Dwarka Nath v. ITO9 also is of no assistance to the first respondent. Though this Court was considering the scope and nature of the jurisdiction of the High Court under Article 226, there is no doubt now as regards the scope of the jurisdiction of the High Courts. However wide its power be, the question is whether a writ or order of prohibition could be issued prohibiting a statutory authority from discharging its statutory functions or transferring those functions to another jurisdiction. 26. Having given our anxious and careful consideration, we are of the considered view that the High Court does not have the aforesaid power. Exercise of such power generates its rippling effect on the subordinate judiciary and statutory functionaries. On the slightest pretext by the aggrieved parties or displeased members of the Bar, by their concerted action they would browbeat https://hcservices.ecourts.gov.in/hcservices/ the judicial officers or authorities, who would always be deterred from discharging their duties according to law without fear or favour or ill- will. Therefore, we hold that the writ petition is not maintainable. The impugned orders are clearly and palpably illegal and are accordingly quashed." 2.Heard Mr.Vijay Narayan, learned Senior Counsel leading Mr.K.V.Shanmuganathan counsel for the petitioner and Mr.A.Arumugam, learned Special Government Pleader taking notice for the first respondent. 3.The petitioner management has come forward to file the present writ petition seeking for a writ in the nature of prohibition prohibiting the first respondent from proceeding with conciliation proceedings in file No.D/3680/2009 on the ground that there exist no dispute as on date as contended by the second respondent and to pass an appropriate order. 4.It is claimed by the Management that they have set up an industrial unit in the Madras Export Processing Zone (MEPZ) which is a Special Economic Zone (SEZ) at Tambaram. They have 600 workmen and they also have a branch at Triplicane. They claimed that they have cordial relationship with the workmen. The majority of workmen were members of a trade union affiliated to INTUC. The petitioner had also recognised the said union. On or about November, 2007, the workmen indulged in several misconducts and threatened the loyal workmen. Production also came down. All this was done at the instance of the second respondent trade union. The disgruntled workmen had joined the said union, which union gave a strike notice on 21.11.2007. They also indulged in sit-in-strike in the factory and also refused to do over time. In view of these facts, the attendance of the workmen became erratic and four workmen never turned up for duty on 2.1.2008. There were also assault of company personnel which led to a complaint lodged with the police station at Tambaram. A charge sheet was also filed against 10 workmen in the Judicial Magistrate Court, Tambaram and the trial is on. 5.It was also stated that the petitioner also gave an another police complaint for violent incident took place on 25.1.2008. The management declared paid holidays and stopped production from 25.1.2008 to 28.1.2008. They also initiated disciplinary action against the workmen, who are responsible for the incident. In the meanwhile, the petitioner received representation from the second respondent, stating that they have denied employment to 47 workmen. Thereafter, the Trade union approached the first respondent with the said issue and conciliation proceedings were started. During the proceedings, the second respondent allegedly admitted that disciplinary proceedings are pending against nine workmen and it was further stated that 23 workmen were unemployed. On 2.6.2009, the first respondent conciliation officer advised the workmen to report for duty. https://hcservices.ecourts.gov.in/hcservices/ 6.It was also stated that the petitioner had taken the stand that 14 workmen had resigned and the union did not dispute the same. While it is so, out of 77 workmen, who are concerned with the dispute, 17 workmen made a statement as if they were denied work when they reported for duty on 8.6.2009 as per the advice given by the conciliation officer. It is claimed that the statement of those workmen are false. The conciliation proceedings was adjourned from time to time. The second respondent union was making all kinds of demands. The petitioner claimed that the first respondent was taking unreasonable stand with reference to the dispute and had manipulated records to make it appear that the union had withdrawn their demands and a fresh industrial dispute was taken on file. This was done without notice to the management. The petitioner claimed that they did not deny employment to any one. It was also stated that withdrawal of earlier demands and a fresh demand put by the second respondent was not notified. No report was submitted under Section 12 (4) of the Industrial Disputes Act to the State Government. 7.It was further stated that it was also false on the part of the second respondent to allege that there was lock out. In effect, there was no lock out. The first respondent has no right to take a fresh dispute. Instead of closing the earlier dispute, which was withdrawn by the second respondent, he allowed them to initiate fresh dispute. Because of the pendency and frequent adjournment of dispute, Section 33 of the I.D.Act had to be followed. The petitioner's representations in this regard were not fruitful. It is under these circumstances, the petitioner has come forward to file the writ petition with a prayer for writ of prohibition. 8.The grounds raised by the petitioner was that disciplinary proceedings initiated by the management will not come within the definition of Section 2(k) of the Industrial Disputes Act. The first respondent cannot allow the second respondent to withdraw the dispute, alleging denial of employment and entertain the very same dispute by opening another file. The first respondent cannot also allow them to raise a dispute regarding lock-out especially when the workmen did not report for duty pursuant to the advice given by him. The first respondent should have directed the workmen to participate in the enquiry. In respect of resigned workmen, there can never be any lock out. They are prolonging the dispute for over one year without any rhyme or reason. 9.Though the present affidavit was sworn in on 15.2.2010, the petitioner management did not disclose about their having filed earlier a writ petition before this court, complaining about bias against first respondent and their attempt to seek for transfer of the approval petition pending with him. This court dismissed the said writ petition on the ground that the petitioner's attempt to seek for a transfer of proceedings was misconceived and not supported by law. It is rather unfortunate for the petitioner to have not made such disclosure in this affidavit. It is not as if such a dispute has no bearing on the present issue. https://hcservices.ecourts.gov.in/hcservices/ 10.In any event, Mr.Vijay Narayan, learned Senior Counsel for the petitioner stated that the writ in the nature of prohibition will lie. In this context, he relied upon the judgment of this court in Mercury Manufacturing Co. Ltd. Vs. Joint Commissioner of Labour, Chennai and others reported in 2001-1-LLJ 1214. In that case, this court undertook an exercise to find out with reference to the dispute raised by the workman under Section 2-A and whether the said provision was attracted. In paragraph 6, the fact of the dispute was set out: "6.Having perused the materials and after hearing the learned counsel for either side, I am of the view that the plea of the petitioner deserves acceptance for more than one reason. Under Section 2-A of the Act, an individual workmen is entitled to raise an industrial dispute in the event of the employee's dismissal, retrenchment or otherwise terminating the services of the individual workman. A close reading of the opening words of the said provision would show that for an individual workmen to raise an industrial dispute under Section 2-A of the Act, there should be a termination of the services of the concerned workman. In the case on hand, as admitted by the petitioner and as disclosed in the reply filed before the first respondent as well as in the affidavit filed in support of this writ petition, it has been tacitly made clear that the services of none of the respondents 2 to 85 have been terminated. Further even as per version of twelve of the respondents as stated in their anticipatory bail application filed before this Court they are not attending to their jobs as they are on strike. It is claimed that hundred of the workmen are placed in a similar situation. All the above stated undisputed facts show that there was no termination of service of any of the respondents 2 to 85. Further fact that 22 out of 84 workmen having reported for duty as on this date strengthens the stand of the petitioner that there was no termination of service of any of the respondents 2 to 85." 11.The reasoning of the learned Judge is found in paragraph 8, which is as follows: "8.On an analysis of the various contentions raised on behalf of respondents 2 to 85, barring the 22 respondents I could see that the real controversy seems to be the one relating to the written undertaking said to have been insisted upon at the instance of the petitioner. Unfortunately, the dispute is not https://hcservices.ecourts.gov.in/hcservices/ with regard to the justifiability or otherwise of the various conditions sought to be imposed at the instance of the petitioner by way of a written undertaking from the workmen concerned. Inasmuch as the dispute being one of denial of employment, and the factum of denial of employment having been found to be not in existence, there is absolutely no justification for the first respondent to entertain this dispute and proceed further." 12.In the same judgment in paragraph 9, the learned judge observed that thus the issue will not come within section 2-A of the ID Act and the dispute can be raised in other format. The following passage found in paragraph 9 will prove the same: "9.It is always open to the affected workmen to raise any specific dispute relating to the justifiability or otherwise of the undertaking insisted upon by the petitioner and to agitate the said issue before the appropriate forum, inasmuch as admittedly even as disclosed in the present dispute raised by them that they are members of a registered trade union...." 13.The learned Senior Counsel also placed reliance upon the judgment of the Supreme Court in Feroz Din and others Vs. State of West Bengal reported in 1960 1 LLJ 244 (SC) in support of his contention that in order to hold certain action of employer as lock-out, there must be refusal on the part of the employer to furnish work to his workmen. On the contrary, in the present case, according to the management, despite advice given by the conciliation officer, the workmen did not report for duty. It is in view of this fact, the petitioner sought for writ in the nature of prohibition against the conciliation officer. 14.It must be noted that conciliation officers are appointed under Section 4 of the Industrial Disputes Act, 1947. Section 4 reads as follows: "4.Conciliation Officers.-(1)The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes. (2)A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period." 15.The duties of a conciliation officer is provided under Section 12, which reads as follows: "12.Duties of conciliation officers.- (1) https://hcservices.ecourts.gov.in/hcservices/ Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2)The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may 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. (3)If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government [or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute. (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. (6)A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: [Provided that, [subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.]" 16. A combined reading of Section 4 read with Section 12 would show that the conciliation officer, in case of industrial https://hcservices.ecourts.gov.in/hcservices/ dispute before him, has to bring settlement of the dispute, without delay investigate the dispute on all matters affecting the merits and arrive at a right settlement thereof and he has 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 dispute. If in case a settlement was not possible, he has to send a report to the Government under Section 12(4). If is after the receipt of the report, under Section 12(5), the State Government can pass appropriate orders under Section 10(1) of the I.D.Act. 17.Section 10(1) reads as follows: "10.Reference to dispute to Boards, Courts or Tribunals.- (1)[Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing- (a)refer the dispute to a Board for promoting a settlement thereof; or (b)refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or [(c)refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d)refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication; Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):] [Provided further that] where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: [Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.] 18.In the present case, the stage for the first respondent to send a report of failure of conciliation to the State Government and the State Government to pass appropriate orders under Section https://hcservices.ecourts.gov.in/hcservices/ 10(1) read with Section 12(5) of the ID Act had not arrived so far. Under these circumstances, it is not clear as to how a writ of prohibition will lie against the first respondent. It is only in case where a Tribunal/Quasi Judicial Officer clutches on to a jurisdiction which it never possess, the question of issuance of a writ of prohibition will arise. But, in the present case, the first respondent is only a notified conciliation officer. Any dispute that is brought before him, he has to necessarily conciliate. There can be no restraint against his entertaining any complaint from any workmen. 19.The contention that there was no dispute within the meaning of Section 2(k) is also misconceived. Section 2(k) of the ID Act reads as follows: 2(k)"industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-mployment or the terms of employment or with the conditions of labour, of any person;" 20. The definition of the term industrial dispute under Section 2(k) is wide in nature. It takes into account any dispute or difference between employee and workmen which is connected with the employment or non employment or terms of employment or with the conditions of labour of any person. Therefore, whatever the dispute workmen raises will come within the definition of Section 2(k). If there is a difference of opinion expressed by a body of workmen, then the conciliation officer has to ask the management for their response. In the present case, it is not the stand of the management that there was no difference of opinion between the workmen represented by the second respondent with the petitioner management relating to the conditions of workmen of its establishment. On the other hand even as per their own showing of the management there are many issues to be resolved between them. 21.Even assuming that the first respondent had unreasonably entertained a dispute, under the provisions of the ID Act, he has no power to decide the rights of parties. He is only a mechanism to conciliate. It is rather unfortunate that the management should seek for restraint order against the first respondent, who is statutorily empowered to make appropriate enquiries. He acts as eyes and ears of the State Government. The ultimate object of the ID Act as set out in the preamble to the Act is that it is meant for for investigation and settlement of industrial disputes. The State Government had appointed such officers not only to conciliate between the parties, but also to keep the Government informed, so that it can take appropriate action including relegating the parties for adjudication before the appropriate adjudicating authority. If necessity arise it can pass orders to keep both the parties on a level playing field under Section 10-B of the ID Act. They can also prohibit both strike and lock out in the establishment so that industrial peace can be maintained pending adjudication. https://hcservices.ecourts.gov.in/hcservices/ 22.It is only when the State Government passes orders under Section 10(1) of the ID Act, any attempt can be made to look into it as to whether the Government had formed an opinion based on objective material for arriving at a decision, in making a reference for adjudication. The decision relied on by the petitioner in Mercury's case (cited supra) is largely based upon facts of that case. It never intended to lay down any universal proposition. At no time, a conciliation officer can be interdicted with a restraint order by the court. On the other hand, this court is of the opinion that after the introduction of Section 2-A(2) by the State amendment, in case any workmen, who has grievance over his non employment, he can approach the conciliation officer and thereafter, go to the labour court without benefit of any reference order under Section 10(1) of the ID Act. In essence, in case of non employment, it is like filing a plaint before a civil court, except to abide by the precondition that his claim should be accompanied by the conciliation failure report. 23.In case of individual non employment, the provision for reference under Section 10(1) has been dispensed with. Even limited power to scrutiny of such action vests with the Court had been taken away. It is not clear as to how this court can issue writ of prohibition even against conciliation regarding alleged non employment by the workmen. If at all the management has any defence, that has to be put before the appropriate adjudicating body by way of