IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6790 of 2004 BATA INDIA LIMITED,through its General manager, At & P.O. Bataganj, Digha, Patna ……Petitioner Versus 1.THE STATE OF BIHAR , through the Secretary, Department of Labour & Employment, New Secretariat, Patna-1. 2.Secretary, Department of Labour & Employment, New Secretariat, Patna-1. 3.Copmmissioner of Labour, Department of Labour & Employment, New Secretariat, Patna-1. 4.Asst. Labour Commissioner, Labour Building, Baily Road, Patna. 5.Deputy labour Commissioner, Labour Building, Baily Road, Patna. 6.Bata Mazdoor Union, through its Presidednt, Bataganj, Digha, Patna-1 …..Respondents. ----------- For the petitioner: Mr. K.N. Gupta, Advocate. Mr. Satyendra Krishna Pd. , Advocate. For the Respondent Nos 1 to 5. : Mr. Anshuman Singh, A.C. to A.A.G-1. For the respondent no.6. : Mr. Alok Kumar Sinha, Advocate. Mr. Indrajeet Bhushan ,Advocate. Mr. Manish Kumar, Advocate. -------------- 3 05.04.2011 Heard Mr. K.N. Gupta, learned counsel appearing on behalf of petitioner, learned A.C. to A.A.G-I, appearing for respondent Nos. 1 to 5 as also Mr. Alok Kumar Sinha, learned counsel appearing on behalf of respondent no.6. 2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India questioning the validity and legality of the order/direction issued by the respondent no.3 contained in memo No.3/D1-440-3/2001 dated 16.4.2002 (Annexure-1), whereby on failure of a conciliation proceeding by the Deputy Labour Commissioner , between the petitioner at one side and respondent no.6 at the other side regarding an industrial dispute, the respondent no.3 in purported 2 exercise Of his Powers under Section 12 of the Industrial Disputes Act, 1947 (in short Act), he has given certain interpretation / settlement for resolution of such industrial dispute between the parties. 3. Learned counsel for the petitioner submits that in view of an Industrial Dispute having been raised by respondent no.6, a conciliation proceeding could have been started in terms of Section 12 of the Act and on conclusion of the conciliation proceeding, a report could have been submitted to the appropriate Government for taking consequential action under the provisions of Act, but in no case the respondent Labour Commissioner could have acted as an adjudicator and could have adjudicated the industrial dispute between the parties. 4. Learned counsel appearing on behalf of respondent no.6, though has tried to defend the impugned order contained in annexure-1, but has fairly submitted that counter affidavit has not been filed in the present case on his behalf. According to the learned counsel appearing on behalf of respondent no.6, the interpretation given by respondent Labour Commissioner by his letter dated 16.4.2002 (Annexure-1) could be well within the ambit of section 12(2) of the Act. However, he has fairly conceded that in the present case once a conciliation proceeding was started by the respondent Deputy Labour Commissioner and once the conciliation proceeding had failed between the employer and the workmen, then in that case, 3 the matter should have been reported to appropriate Government, in the present case the State Government, and only thereafter respondent State could have taken a decision for reference of the Industrial Dispute in terms of Section 36 A of the Act, particularly for the purpose of interpretation of different agreement/award/settlement having been arrived at between the employer and workmen. 5. After having heard the parties, this court is of the considered opinion, that respondent Labour Commissioner, while exercising power under Section 12 of the Act, for arriving at a conciliation between the parties, could not have usurped the powers vested in the Labour Court, Tribunal or National Tribunal as the case may be, in terms of Section 36 A of the Act. From the perusal of the impugned communication (Annexure-1), it appears that respondent Labour Commissioner has exceeded his jurisdiction / power vested in him, and, therefore, it cannot be sustained in the eye of law. 6. For the reasons recorded above, impugned communication/order dated 16.04.2002 (Annexure-1) passed by respondent Labour Commissioner is hereby set aside. However, since an Industrial Dispute between the petitioner at one side and respondent no.6 at the other side regarding interpretation of different settlement/ agreement/award arrived at between the parties exists, therefore, respondent no.2 is hereby commanded to refer the aforesaid Industrial Dispute raised by respondent 4 no.6 to the appropriate Authority/Tribunal prescribed under section 36 A of the Act within a period of one month from the date of receipt/production of a copy of this order, whereafter the Tribunal will make all endeavor to conclude its proceeding at an early date preferably within a period of one year in accordance with law. It goes without saying that the parties shall be at liberty to raise all the issues involved in the present proceeding, which shall be dealt with in accordance with law. 7. With the aforesaid observations and directions, the writ petition stands allowed. Rahman/ ( Birendra Prasad Verma, J.)