IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.08.2009 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI WRIT PETITION Nos.506 to 508 of 2006 and 591 to 593 of 2006 and connected miscellaneous petitions. .. S. Ramesh .. Petitioner in WP.506/2006 Balakumar .. Petitioner in WP.507/2006 C.Rajendra Kumar .. Petitioner in WP.508/2006 M.Palanisamy .. Petitioner in WP.591/2006 V.Chandra .. Petitioner in WP.592/2006 Daniel Mangalaraja .. Petitioner in WP.593/2006 vs. 1. The Commissioner of Labour DMS Complex, Teynampet Chennai 6. 2. The Assistant Labour Commissioner (Conciliation-I) In-charge, Dr.Balasundaram Salai Coimbatore 18. 3. Thiru V.Balakrishnan The Assistant Commissioner of Labour Conciliation-I In-charge Dr.Balasundaram Salai Coimbatore 18. 4. The Management of Lakshmi Mills Ltd., 1100, Avinasi Road Pappanaickenpalayam Coimbatore 37. .. Respondents in all WPs. https://hcservices.ecourts.gov.in/hcservices/ Writ petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. to issue a writ of certiorarified mandamus calling for the records relating to the proceedings of the 2nd respondent in Ka.No.289/05,Ka.No.A.288/2005, Ka.No.A.278/2005 dated 30.8.2005 in (Wp.506 to 508/2006) Ka.No.A.206/2005 Ka.No.A.210/2005 Ka.No.A.205/2005 dated 5.10.2005 (W.P.No.591 to 593/2006) closing the industrial dispute raised by the petitioner against his termination quash the same and consequently direct the first respondent to transfer the file and conciliation proceedings pertaining to the petitioner termination to any other conciliation officer at Coimbatore and direct the said conciliation officer either to arrival a settlement or to issue a failure report within a specified time, award costs For petitioner in : Mr.V.Ajoy Kosh all the WPs. For respondents 1 to 3 : Mr.V.Ravi in all the WPs. For 4th respondent in : Mr.S.Raveendran for all the WPs. M/s.T.S.Gopalan & Co., COMMON ORDER The petitioners in all these writ petitions who were employed under the management of Lakshmi Mills Limited, have raised individual disputes against the management in respect of relieving them from their respective posts under section 2(A)(1) of the Industrial Disputes Act,1947 and the Conciliation Officer in these cases, under the impugned orders has informed the petitioners that they do not come under the definition of workmen under section 2(s) of the Industrial Disputes Act,1947. 2. The brief facts in each of the writ petitions are as follows: (a) The writ petitioner in W.P.No.506 of 2006 had joined as a Grade-G worker in Palladam Mill of the 4th respondent management in the year 1980 and thereafter, he was transferred to Singanallur and he was given Grades-F, E, D and C. It is his case that even though he was designated as Assistant Manager Technical, he was doing only clerical, manual and technical works and not doing managerial or supervisory work. (b) The writ petitioner in W.P.No.507 of 2006 had joined as Spinning Supervisor in the year 1996 and later he was promoted as https://hcservices.ecourts.gov.in/hcservices/ Assistant Spinning Master and thereafter, as Spinning Master and at last he was made as Senior Officer in the Spinning Department at Singanallur Mill. Here also, he was doing only clerical, manual and technical works and not supervisory work. (c) The petitioner in W.P.No.508 of 2006 had joined as a worker in the maintenance department in the year 1992 in Singanallur Mill and afterwards, he was designated as Deputy Officer/Maintenance. He was doing clerical, manual and technical works. (d) The petitioner in W.P.No.591 of 2006 had joined as Ticket Boy in the year 1969 in the Singanallur Mill and later he was promoted as C-2 Grade worker in the year 1990. (e) The writ petitioner in W.P.No.592 of 2006 was appointed as a worker in the year 1990 and posted in Quality Control Department at Singanallur Mill and thereafter, he was designated as KP Operator QA, which is a clerical and workman cadre. (f) Likewise, the petitioner in W.P.No.593 of 2006 was appointed as a Salesman in the Showroom of the 4th respondent Mill at Cross Cut Road and later he was transferred to Singanallur Mill in K.P.Grade. 3. It is stated that the 4th respondent management introduced an Early Retirement Scheme(ERS) for both staff and workmen in the year 2002-03 and nearly 400 workmen were allowed to go on ERS. The petitioners have also requested the 4th respondent to allow them to go on ERS, however, the management requested them to continue in the respective posts. It is stated that in July and September, 2004 about 20 staff were transferred to other Mills out of whom 10 were juniors to the petitioners. The 4th respondent Mill is having Mills at Singanallur, Pappanaickenpalayam, Palladam and Kovilpatti, apart from its registered Office at Coimbatore. It is stated that at the time of above said transfer, the 4th respondent informed the petitioners that they would be transferred to the Mill at Pappanaickenpalayam. However, contrary to the said assurance, by order dated 27.9.2004, all the petitioners were terminated from service with effect from 30.9.2004. 3(a). It is stated that when it was protested by the petitioners, the management gave an assurance that after termination orders were received, they would be employed in the Mill at Pappanaickenpalayam. It was, based on the said assurance, the termination orders were received. Since the 4th respondent employer has not provided employment, the petitioners have individually raised industrial disputes under section 2(A)(1) of the Industrial Disputes Act,1947. It is stated that the second respondent, who is the Conciliation Officer, issued notice of conciliation, fixing the first meeting of conciliation on 3.3.2005. In the remarks filed by it, the 4th respondent has stated that it has offered to transfer the https://hcservices.ecourts.gov.in/hcservices/ petitioners, which was not accepted by the petitioners. It is also stated that the termination orders were received by the petitioners without any protest. This was objected to by the petitioners by filing a rejoinder before the Conciliation Officer stating that the petitioners have been always ready and willing to join in another place of transfer. 4. It is stated that the writ petitioners in W.P.Nos.591 to 593 of 2006 viz., Palanisamy, Chandra and Daniel Mangalaraja were agreed to be provided employment by the management, which was not acceded to and there was no settlement arrived at before the Conciliation Officers. It is the case of the petitioners that the Conciliation Officers have been openly supporting the management instead of arriving at a settlement or sending a failure report, stated that the petitioners in W.P.Nos.506 to 508 of 2006 are not workmen and the writ petitioners in W.P.Nos.591 to 593 of 2006 have received settlement from the management, in spite of the fact that it was informed to the Conciliation Officer that it is not the function of Conciliation Officer to decide the same. There was no failure report given by the Conciliation Officer, but the Conciliation Officer in W.P.Nos.506 to 508 of 2006 passed a detailed impugned order on merits adjudicating that the petitioners are not workmen under section 2(s) of the Industrial Disputes Act,1947 and therefore, there is no possibility to proceed with the conciliation under section 12(1) of the Act. 5. Likewise, in respect of W.P.Nos.591 to 593 of 2006, the Conciliation Officer passed the impugned orders stating that the petitioners have received all monetary and other benefits in respect of the services rendered by them and also stating that the petitioners in the writ petitions have not appeared and accordingly, closed the conciliation proceedings. 6. It is, against the said impugned orders the writ petitions are filed mainly on the ground that the Conciliation Officer under section 12(1) of the Industrial Disputes Act,1947 cannot decide as to whether the person who raised a dispute is coming within the meaning of 'workman' under section 2(s) of the Industrial Disputes Act or the Conciliation Officer cannot decide as to whether the settlement has been received, which is only for the adjudicating mechanism to conclude as per the Industrial Disputes Act. 7. In the counter affidavit filed by the management it is stated that as per the terms of appointment order, the workmen are liable to be transferred to any of the units of the 4th respondent management. In 2004, Singanallur Mill ceased to function and therefore, the Unit was asked to transfer its workmen to Pappanaickenpalayam and Palladam Mills. It is the case of the 4th respondent that while other workmen accepted the offer of transfer, the writ petitioners in W.P.Nos.506 to 508 of 2006 refused to work in any of the said places https://hcservices.ecourts.gov.in/hcservices/ and therefore, their services were dispensed with by paying three months salary in lieu of notice as on 30.9.2004. It is stated that they have received their entire terminal benefits, gratuity and provident fund without any objection and the petitioners are also getting pension from the Provident Fund organization. 7(a). It is also stated that the petitioners in W.P.No.591 to 593 of 2006, apart from receiving the entire amounts have also voluntarily submitted application for gratuity and received gratuity amount also. It is the case of the 4th respondent that after receiving the entire benefits, the petitioners have moved the Conciliation Officer under section 2(A)(1) of the Industrial Disputes Act, in which reply was submitted by the respondent management. It is stated that during the course of conciliation, offer was made on behalf of the 4th respondent to provide alternate employment and the Conciliation Officer has in fact directed the petitioners to approach the management, however, except one writ petitioner, by name, Palanisamy, no other have met the Officers of the management concerned and the said Palanisamy has not agreed for employment in Palladam and Kovilpatti Mills and he demanded voluntary retirement. It is stated that when the said three petitioners in W.P.Nos.591 to 593 of 2006 were asked to sign the proceedings of the Conciliation Officer to the effect that as per records, they had received gratuity and other terminal benefits, they did not sign and it was in those circumstances, the Conciliation Officer passed orders closing the conciliation proceedings. 7(b). In respect of the writ petitioners in W.P.Nos.506 to 508 of 2006, the Conciliation Officer has given a finding that the petitioners were working in supervisory capacity and therefore, they were not workmen and there is no scope for entertaining the conciliation proceedings. It is the case of the 4th respondent that the petitions are liable to be dismissed on the basis of laches since the impugned orders which were passed in August, 2005 have been challenged in 2006. 7(c). In respect of the petitioners in W.P.Nos.591 t9 593 of 2006, the respondent management would state that the petitioners never opted for voluntarily retirement scheme and no assurance was given that they would be transferred only to Coimbatore. Since the said petitioners have received the employment benefits in full and final settlement, they ceased to be the employees as on 30.9.2004. It is also stated that the petitioners were asked to contact the supervisory officer Mr.P.M.Jagadeesan for alternate employment and the petitioners except one petitioner, Palanisamy, have not contacted him and the said Palanisamy also refused to accept the offer. It is stated that as on date, even the Unit at Pappanaickenpalayam is not running and only the Units at Palladam and Kovilpatti are functioning. https://hcservices.ecourts.gov.in/hcservices/ 8. It is the contention of Mr.Muthupandian, learned counsel appearing for the petitioners in all these cases, by relying upon various judgments, that the duty of Conciliation Officer is not to adjudicate the issue and he has to work for conciliation and in the event of failure, he has to send the conciliation failure report. It is his contention that in the impugned orders in all these cases, the Conciliation Officers in fact adjudicated the issue on merit and held that the petitioners are not workmen and that the petitioners have received terminal benefits and therefore, they ceased to be the employees and according to him, the Conciliation Officer is not expected to do so under the Industrial Disputes Act. He would rely upon the judgment of the Apex Court in Telco Convoy Drivers Mazdoor Sangh vs. State of Bihar [(1989) 2 LLJ 558] apart from the judgment in Sharad Kumar vs. Government of NCT of Delhi [(2002) 2 LLJ 275]. He would submit that even the Government has no power to adjudicate the claims while exercising its function under section 12(5) of the Industrial Disputes Act, by relying upon the judgment in MGR Transport Corporation Employees' Union, Chennai vs. State of Tamil Nadu rep. By its Secretary, Labour and Employment Department, Chennai and others [(2004) 3 LLN 322]. 9. On the other hand, it is the contention of Mr.S.Raveendran for M/s.T.S.Gopalan & Co., learned counsel appearing for the 4th respondent management in all these cases that the Conciliation Officer is entitled to decide prima facie the question whether there is an issue available for the purpose of conciliation at all and to decide the same he can go into the merits of the case. While admitting that the Conciliation Officer cannot adjudicate the dispute, it is his submission that admittedly the petitioners have received the entire monetary benefits in full and final settlement and they are receiving pension also and in such case, it is certainly open to the Conciliation Officer to consider the case to find out as to whether the petitioners who have raised the dispute under section 2(A)(1) of the Act are workmen or not. According to him, such a decision would not amount to adjudication of the issue. He would also submit that it is a right of the Conciliation Officer to decide prima facie as to whether there is a dispute at all in existence for effecting conciliation, by relying upon the following judgments: (a) M/s. Shaw Wallace & Co. Ltd., vs. State of Tamil Nadu rep. By the Commissioner and Secretary, Labour Department and others [(1987) 1 LLJ 177]; (b) Mercury Manufacturing Co. Ltd. vs. Joint Commissioner of Labour, Chennai (2001) 1 LLJ 1214]; (c) Arjun Narayanan Patil vs. I.D.B.I. Bank Ltd., [(2006) 3 LLJ 66]; https://hcservices.ecourts.gov.in/hcservices/ (d) Management of Dynamic Motors and Services, Chennai vs. Assistant Commissioner of Labour (Conciliation II) Chennai and another [(2004) 1 LLJ 864]; (e) Mukesh Khanna vs. Chandigarh Administration, Chandigarh [(1999) 2 LLJ 1433]; and (f) Bongaigaon Refinery and Petrochemicals Ltd., vs. Samijuddin Ahmed [(2001) 2 LLJ 1149] 10. Before proceeding to decide about the issue involved in these cases as to the jurisdiction of the Conciliation Officer, it is relevant to point out that even though it is the case of the 4th respondent management that the petitioners have been paid terminal benefits in full and final settlement, it is seen on facts that there is nothing to show that the petitioners have accepted the monetary benefits in full and final settlement of the claim, thereby impliedly relinquishing their right as workmen. 11. On the other hand, it has been the case of the 4th respondent management before the Conciliation Officer that the petitioners have received the said amounts in full and final settlement without making any objection. A reference to the impugned orders of the Conciliation Officer in W.P.Nos.506 to 508 of 2006 shows that he has in detail discussed about the case of both the parties. Even a reference to the said detailed orders in which the Conciliation Officer elicited the stand of the petitioners/workmen makes it clear that it has been the categorical stand of the workmen that the termination was passed against the petitioners by the 4th respondent management on the assurance that the petitioners would be given alternate employment. In fact, a specific stand was taken by the petitioners that when the persons who are juniors to the petitioners, that is, the persons who have joined subsequent to the petitioners' joining in the 4th respondent management, have been retained, the termination of the petitioners is against section 25-F of the Industrial Disputes Act. 12. In fact, it has been the case of the petitioners that even though the petitioners were designated either as Assistant Manager (Technical) or otherwise as stated above, they have been only performing clerical functions as workmen and therefore, they cannot be declared as 'not workmen' under the Industrial Disputes Act simply based on the designation. The Conciliation Officer in the report has also stated the claim of the 4th respondent management that by designation the petitioners are doing supervisory work. The Conciliation Officer in the impugned order has also in detail narrated the case of the management that the petitioners have received the amounts in full settlement by way of cheque without objection, that the petitioners have been working in supervisory https://hcservices.ecourts.gov.in/hcservices/ capacity, since as supervisors the petitioners have sent reports everyday to their higher officers about the working of quality operators. 13. The Conciliation Officer has taken note of the statement made on behalf of the management that the petitioners have been working as quality operators and has referred to the documents submitted on behalf of the management to the effect that the petitioners have received the amounts. It is based on the documents, the Conciliation Officers has come to the decision that the petitioners in W.P.Nos.506 to 508 of 2006 have been working in supervisory capacity and ultimately arrived at the following conclusion in respect of writ petitioners in W.P.Nos.506 to 508 of 2006: " nkw;fz;l epiyapy; kDjhuh; nknd$phpay;-N:g;gh;itrh; ntiy bra;jpUf;fpwhh; vd;gJ g [ydhfpwJ/ ,e;j epiyapy; kDjhuhpd; kD 1947k; tUlj;jpa bjhHpw;jfuhWfs; rl;lk; gphpt[ 2 (v!;)d; fPH; bjhHpyhsh; vd;w brhy; tpsf;f tuk;gpw;Fs; tutpy;iy/ vdnt kDjhuhpd; kD bjhlh;ghf nkw;fz;l rl;lk; gphpt[ 12(1)d; fPH; rkur ngr;Rthh;j;ij el;j;j tha;g;gpy;iy vd;W kDjhuUf;F ,jd; K:yk; bjhptpj;Jf; bfhs;sg;glLfpwJ/" 14. In respect of writ petitioners in W.P.Nos.591 to 593 of 2006, the Conciliation Officer has passed the order as follows: " kDjhuh; 2/11/2004 md;W gzpf;bfhil kw;Wk; ,ju rYiffis bgw;Wf; bfhz;ljhf Mtz';fspypUe;J bjhpa tUtjhYk;. kDjhuh; nkw;fz;l (30/9/2005) njjpapy; M$uhfhjjhYk; ,f;nfhg;g[ nky;eltof;ifapd;wp Kof;fg;gLfpwJ vd ,jd; K:yk; kDjhuUf;F bjhptpf;fg;gLfpwJ/" 15. In the abovesaid factual background, we have to analyse the legal position including the judgments referred to by the counsel. Section 12 of the Industrial Disputes Act makes it clear that in cases where the dispute relates to public utility service, the Conciliation Officer shall hold conciliation and in respect of others, the Conciliation Officer may hold the conciliation proceedings in the prescribed manner. Section 12(2) of the Act which actually confers the power on the Conciliation Officer to bring out settlement of dispute between the parties enables him to investigate the disputed matter affecting the merits and such things necessary for the purpose of inducing the parties to come to an amicable settlement of dispute. Under section 12(3) of the Act, if a settlement is arrived at, during the course of conciliation proceedings, a report has to be submitted to the appropriate Government. However, under section 12(4) of the Act, if no settlement is arrived at, the Conciliation Officer has to close the investigation and send a failure report to the Government along with the steps taken by him stating the reason due to which in his opinion he was unable to arrive at a settlement. Under section 12(5) of the Act, after such failure report is received, the appropriate https://hcservices.ecourts.gov.in/hcservices/ Government, if satisfied, may make a reference to the Labour Court or Industrial Tribunal, etc. Section 12 of the Industrial Disputes Act is as follows: " Section 12. Duties of conciliation officers.- (1) 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 a 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. https://hcservices.ecourts.gov.in/hcservices/ [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. On a reading of the said section, it is very clear that after the failure report received from the Conciliation Officer, while exercising its powers under section 12(5) of the Act, it is for the appropriate Government whether to refer or not the dispute to the Labour Court or Industrial Tribunal. It is open to the Government to satisfy itself as to whether there is a case for reference and in that regard, it is open to the Government to form a prima facie opinion. Such power of the Government has been approved by the established judicial precedents, even though it has been held as a general law that the Government cannot adjudicate the dispute while exercising its power to refer the dispute. The Supreme Court in Bombay Union of Journalists vs. State of Bombay (AIR 1964 SC 1617) held that the prima facie examination on merits of the case by the Government cannot be said to be alien for the appropriate Government. The relevant portion of the judgment is as follows: " 6. .... It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the inquiry which the appropriate government is entitled to make in dealing with a dispute under Section 10(1), and so, the argument that the appropriate Government exceeded its jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be accepted." https://hcservices.ecourts.gov.in/hcservices/