IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.01.2011 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.22183 of 2010 and M.P.No.1 of 2010 SPIC Pharma Employees Union (SPEU), Regn. No.1148/CPT, Rep. by its Vice President, SPIC Pharmaceuticals Division, Plot No.C14-16, SIPCOT Industrial Complex, Cuddalore - 607 005. ... Petitioner Vs. 1.State of Tamil Nadu, Rep. by its Principal Secretary, Labour & Employment Department, Fort St.George, Chennai - 600 009. 2.The Commissioner of Labour (Conciliation Officer), DMS Compound, 4th Floor, Teynampet, Chennai - 6. 3.The Labour Officer, Cuddalore - 1. 4.Southern Petrochemical Industries Corporation Ltd. (SPIC), Pharmaceuticals Division, Rep. by its Chairman, "SPIC House" 88, Mount Road, Guindy, Chennai - 600 032. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of mandamus directing the 1st respondent to refer of the dispute, within a time frame, based on the conciliation notice dated 27.07.2010, Officer bearing ref. No.Na.Ka.357/2010 to the appropriate Industrial Tribunal or Labour Court, City Civil Court building, Chennai - 600 104, by fixing a time limit for the Industrial Tribunal to decide the matter after reference is made and pass such further orders. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :Mr.S.Vaidyanathan For Respondents :Mr.S.Sivashanmugam, GA for R1 to R3 Mr.S.Ravindran for M/s.T.S.Gopalan & Co. for R4 ORDER The petitioner has filed the present writ petition seeking issuance of writ of mandamus directing the 1st respondent to refer the dispute, based on the conciliation notice dated 27.07.2010, bearing ref. No.Na.Ka.357/2010 to the appropriate Industrial Tribunal or Labour Court, City Civil Court building, Chennai - 600 104, by fixing a time limit for the Industrial Tribunal to decide the matter. 2. The learned counsel appearing for the petitioner submits that the members of the petitioner's union were affected by the action of the 4th respondent by way of relocation of the unit from Maraimalai Nagar to Cuddalore. Originally, 72 employees were shifted in view of shifting of the unit to Cuddalore and out of 72 employees, except 19 employees, all of the them have joined in the new place, namely, Cuddalore, wherein the unit has been shifted now. In view of shifting of the unit and consequential transfer of the employees to Cuddalore, a demand was made by the petitioner's union demanding a payment of Rs.4,000/- per month till the end of the academic year 2010-11, as they have to maintain two establishment expenses at two places. The management has stated that only Rs.3,500/- alone would be paid to them as one time measure. Since the said payment as demanded was not made by the 4th respondent, the issue is now raised before the 2nd respondent/the Commissioner of Labour (Conciliation Officer), Chennai. Since the matter has not yet been disposed of for about six months, the petitioner has filed the present writ petition with a prayer to refer the dispute based on the conciliation notice dated 27.07.2010 to the appropriate Industrial Tribunal or Labour Court for expeditious disposal. 3. Learned counsel appearing for the 4th respondent submits that a direction cannot be given by this Court under Article 226 of the Constitution of India stating that the 4th respondent management has got sufficient defence available to persuade the employees to settle the dispute and if for any reason, the 4th respondent and the employees, who are seeking an amicable settlement before the 2nd respondent, is unable to reach any settlement, the 2nd respondent has to submit the final failure report and only thereafter, under Section 12(5) of the Industrial Disputes Act, 1947, the Government got discretionary power to refer https://hcservices.ecourts.gov.in/hcservices/ or not to refer the dispute to the Industrial Tribunal or the Labour Court. Before exhausting all these statutory remedies available under Sections 12(2) to 12(6), this Court cannot entertain the prayer as prayed for, when all these safeguards are available to settle the industrial disputes. 4. In reply, the learned Government Advocate appearing for the respondents 1 to 3 submits that if the parties are directed to cooperate with the 2nd respondent, the conciliation officer would be in a position to resolve the dispute amicably and therefore, if any time limit is given to the 2nd respondent by further directing the parties to cooperate with the 2nd respondent to decide the conciliation proceedings, the 2nd respondent would be in a position to pass appropriate order. 5. Heard the learned counsel appearing on either side and perused the materials available on record. 6. The 4th respondent/Southern Petrochemical Industries Corporation Limited (SPIC) has got various units in different parts of the State and manufacturing fertilizer and also ammonia, Sulphuric Act, Aluminium Fluoride, etc., at Tuticorin site. In the year 1990, the 4th respondent put up a Unit in Maraimalai Nagar for carrying out the research and developmental work for developing and producing bulk drugs. Subsequently, in the year 1991, another manufacturing unit was established at Cuddalore for manufacturing Penicillin. In view of debts incurred to the banking institution, the 4th respondent management had disposed of some of its assets. In the meanwhile, when the manufacture of Penicillin in Cuddalore became commercially unviable, after disconnecting the said unit in January,2010, the Board of Directors of the Company have decided to shift the activities of the Maraimalai Nagar Unit to Cuddalore and as a result,, 76 employees working in the Maraimalai Nagar Unit were shifted to Cuddalore Unit and except 19 employees, all of them have joined and working in the Cuddalore Unit. At the time of shifting of 76 employees to Cuddalore Unit, the petitioner's union made a demand for payment of Rs.4,000/- per month till the end of the academic year 2010-2011, as they have to maintain two establishments, one at Maraimalai Nagar and another one at Cuddalore. In response to the said demand, the 4th respondent management has also agreed only for Rs.3,500/- as one time measure. The said offer was not accepted by the petitioner's union and as a result, the matter was taken up before the Commissioner of Labour (Conciliation Officer)/the 2nd respondent herein. During the pendency of the matter before the 2nd respondent, citing delay in disposal of the conciliation proceedings by the 2nd respondent, the petitioner's union has come to this Court by seeking the above mentioned prayer. https://hcservices.ecourts.gov.in/hcservices/ 7. When the issues have already been seized by the Conciliation Officer, the Conciliation Officer under Section 12 of the ID Act has legally obliged to explore the possibilities of dissolving the matter by reaching amicable settlement between the employees and the 4th respondent management, for that he has to investigate the dispute and all matters affecting the merits and the right settlement thereof by inducing the parties to come to a fair and amicable settlement of the dispute. If a settlement of the dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. In fact, the Conciliation Officer, as per Section 12(4), has to send a full report to the appropriate Government setting forth the steps taken by him by 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 and thereafter, under Section 12(5), the appropriate Government, on a consideration of the report, if satisfied that there is a case for reference to the Labour Court, Tribunal or National Tribunal, it may make such reference. Even if the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefor. Therefore, once the dispute is seized of by the Conciliation Officer, the said Authority should first consider and endeavour for an amicable settlement by hearing both parties and pursuing them and it is only on the failure of such efforts, he would send his report to the appropriate Government, whereupon, the Government would decide either to make a reference or not. 8. It is more useful to refer to a judgment of the Apex Court in the case of Rashtriya Chemicals & Fertilizers Ltd. and Another Vs. General Employees' Association and Others ((2007) 5 SCC 273), wherein the Apex Court has held as follows:- It is now settled that the High Courts will not straight away direct the appropriate Government to refer the dispute. It is for the appropriate Government to apply its mind to relevant factors and satisfy itself as to the existence of a dispute before deciding to refer the dispute. We may refer to the following observations of this Court in Steel Authority of India Ltd. Vs. Union of India ((2006) 12 SCC 233). "For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale https://hcservices.ecourts.gov.in/hcservices/ of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. 9. The exception of the above is, when the Court finds that the appropriate Government refuses (sic refusal) to make a reference of a dispute, is unjustified. In such circumstances, the Court may direct the Government to make a reference (Sankari Cement Alai Thozhilalar Munnetra Sangam Vs. Govt. of Tamil Nadu((1983) 1 SCC 304), V.Veerarajan Vs. Government of Tamil Nadu ((1987) 1 SCC 479) and TELCO Convoy Driver's Mazdoor Sangh Vs. State of Bihar ((1989) 3 SCC 271). Therefore, when the ID Act contemplates several steps before the dispute is referred to the Labour Court or Tribunal, by circumventing all those modes available to the parties to amicably settle the matter, this Court cannot straight away intercept with the statutory procedures adumbrated under Sections 12(2) to 12(6) of the Industrial Disputes Act, 1947. In view of that, I hold the writ petition is a premature one. 10. However, recording the statement made by the learned counsel for the respondents 1 to 3, to meet the ends of justice, I direct both the members of the petitioner's union as well as the 4th respondent management to appear before the 2nd respondent/the Commissioner of Labour (Conciliation Officer), Chennai, where the conciliation proceedings are pending since July'2010, on 14.02.2011 at 2 p.m. and on such appearance of both sides, the 2nd respondent is further directed to complete the conciliation proceedings and submit his report to the appropriate authorities within three weeks thereafter. 11. With the above observation, the present writ petition is disposed of. No Costs. M.P.No.1 of 2010 is closed. rkm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Secretary, Labour & Employment Department, Fort St.George, Chennai - 600 009. 2.The Commissioner of Labour (Conciliation Officer), DMS Compound, 4th Floor, Teynampet, Chennai - 6. 3.The Labour Officer, Cuddalore - 1. 4.The Chairman, Southern Petrochemical Industries Corporation Ltd. (SPIC), Pharmaceuticals Division, "SPIC House" 88, Mount Road, Guindy, Chennai - 600 032. + 1 cc to Mr. S. Vaidyanathan, Advocate SR No.3510 + 1 cc to Government Pleader, SR No.3599 + 1 cc to M/s. T.S. Gopalan & Co, Advocate SR No.3412 W.P.No.22183/2010 BKY(CO) SR/20.1.2011 https://hcservices.ecourts.gov.in/hcservices/