RAJENDRA Vs. ASSTT. LABOUR COMMISSIONER (CENTRAL), NAGPUR

JUDGEMENT

(1.) RULE. Rule made returnable forthwith and heard the petitioner in person and Shri A.T. Purohit, learned counsel for the respondent no.2.

(2.) The facts giving rise to the present proceedings are that on 20/1/1984 the petitioner came to be appointed in the clerical cadre of the Bank. His services however came to be terminated by an order dtd. 12/2/1991. Being aggrieved the petitioner challenged the aforesaid order of termination by initiating proceedings before the Central Government Industrial Tribunal. By the judgment dtd. 7/11/2012 the Tribunal set aside the order of termination and after declaring it to be illegal, ordered reinstatement of the petitioner alongwith continuity in service and all consequential benefits. The services of the petitioner were reinstated on 2/12/2013. According to the petitioner the Bank intended to harass the petitioner and thus created false records of his absence and sought to treat the same as unauthorized absence. The petitioner therefore approached the Assistant Labour Commissioner raising a grievance in that regard. Accordingly on 10/12/2014 the Assistant Labour Commissioner initiated conciliation proceedings in that regard. During pendency of those proceedings the Bank on 1/10/2015 issued a punishment order and dismissed the services of the petitioner for acts of misconduct. The charges levelled were unauthorized absence, insubordination and making false complaints against the Bank. On the same day, the petitioner approached the Assistant Labour Commissioner and submitted an addendum to the complaint that was pending under Sec. 33A of the Act of 1947. The Assistant Labour Commissioner on 26/10/2015 refused to take cognizance of the subsequent grievance of the petitioner as regards violation of Sec. 33-A of the Act of 1947 on the ground that the representation had not been filed through a Registered Trade Union. The petitioner being aggrieved by the aforesaid response filed Writ Petition No. 695 of 2016 challenging the same. By the order dtd. 24/3/2017 this Court held that the communication dtd. 26/10/2015 issued by the Assistant Labour Commissioner was unsustainable and that the same had been issued by ignoring the provisions of Sec. 33-A of the Act of 1947. The petitioners representation was restored and a direction was issued to transfer the said proceedings to some other Officer, equal in rank to enable consideration of the same in an unbiased manner. The writ petition was allowed by imposing costs of Rupees Three Thousand on the Assistant Labour Commissioner. The proceedings were then transferred from the Assistant Labour Commissioner, Chandrapur to the Office of the Assistant Labour Commissioner, Nagpur. On 3/11/2017 the Assistant Labour Commissioner recorded failure of the conciliation proceedings and forwarded the failure of conciliation report to the Appropriate Government. This failure report was received by the Appropriate Government on 23/11/2017. The petitioner then filed Civil Application (W) No. 2629 of 2017 in Writ Petition No. 695 of 2016 raising a grievance in that regard. This Court observed that such grievance was required to be made in a fresh petition and hence did not entertain the civil application. In that backdrop this writ petition has been filed on 27/2/2018 seeking a declaration that the order of dismissal dtd. 1/10/2015 having been issued during pendency of the conciliation proceedings the same was null and void thus entitling the petitioner to seek necessary relief.

(3.) The petitioner in person referred to the facts on record and submitted that the Assistant Labour Commissioner, Chandrapur had initiated the proceedings for conciliation on 10/12/2014. It was an admitted fact that the said conciliation proceedings were pending when the order of dismissal dtd. 1/10/2015 came to be issued. The fact that such conciliation proceedings had been initiated on 10/12/2014 was admitted by the Bank in paragraph 2 of its reply. Since the Bank issued the order of dismissal the petitioner in person had on the same day made a complaint to the Assistant Labour Commissioner alleging breach of the provisions of Sec. 33-A of the Act of 1947. This Court while deciding Writ Petition No. 695 of 2016 had clearly observed that while disposing of the said complaint on 26/10/2015 the Assistant Labour Commissioner had failed to take into consideration the provisions of Sec. 33-A of the Act of 1947. As a consequence the conciliation proceedings that were pending stood transferred to the Office of the Assistant Labour Commissioner, Nagpur and the same resulted in failure report on 3/11/2017. It was submitted that till the date the failure report was received by the Appropriate Government the conciliation proceedings could not be treated to have been concluded in the light of the provisions of Sec. 20(2)(b) of the Act of 1947. Referring to the information supplied by the Appropriate Government under the provisions of the Right to Information Act, 2005 dtd. 5/2/2018 the petitioner in person submitted that the failure of conciliation report was received by the Appropriate Government on 23/11/2017. Thus, the conciliation proceedings that were initiated on 10/12/2014 were pending when the order of dismissal dtd. 1/10/2015 came to be issued. The Bank did not seek any permission of the Assistant Labour Commissioner before seeking to change the conditions of service of the petitioner. In other words, the order of dismissal dtd. 1/10/2015 was passed without complying with the provisions of Sec. 33(1) of the Act of 1947. As a result the consequence provided would follow and the order of dismissal dtd. 1/10/2015 ought to be treated as null and void. In that regard the petitioner in person relied upon the judgment of the Constitution Bench in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others [(2002) 2 SCC 244], M/s Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad [AIR 1999 SC 2423] as well as the decisions in Bajaj Auto Limited Vs. Rajendra Kumar Jagannath Kathar and Others [(2013) 6 SCR 301] and Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar Sharma Dead by Lrs. and Others [(2011) 10 SCR 819]. It was thus submitted that the petitioner was entitled for the reliefs prayed for in the writ petition.