VINAYAK BAMA TAMBE Vs. DY. COMMISSIONER OF LABOUR

JUDGEMENT

(1.) By this petition filed under Art. 226 of the Constitution of India, the petitioner is challenging the legality of the decision of the Deputy Commissioner of Labour (Conciliation), Bombay, communicated to the petitioner by letter dated June 6, 1984 declining to make reference under sub-section (5) of Sec. 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act") on the ground that the termination of the services of the petitioner by the management was just and appropriate and the action of the management does not appear to be either malafide or vindictive. The facts giving rise to the filing of the petition are as follows:

(2.) The petitioner was employed by respondent No.2 for last over 10 years and was holding the post designated as "Housekeeping". The petitioner claims that on Dec. 3, 1983, the management terminated his services and the action of the management is illegal and he is entitled to be reinstated with full back-wages. The petitioner raised demand for reinstatement on Jan. 14, 1984 and that having been turned down, the dispute was admitted into conciliation. The Conciliation officer forwarded his failure report dated April 16, 1984 to the State Government and thereafterthe Deputy Commissioner of Labour has passed the impugned order declining to make reference.

(3.) Dr. Kulkarni, learned counsel appearing in support of the petition, submitted that the action of the Deputy Commissioner is entirely erroneous and unsustainable. The learned counsel submitted that in exercise of the powers under subsection (5) of Sec. 12 of the Act, it is not open for the Conciliation officer or the State Government to adjudicate on the merits of the dispute raised by the petitioner. The learned counsel also urged that after the introduction of Sec. 11A in the Act, even assuming that the action of the management in holding that the employee had committed misconduct and the charges are held proved by holding the enquiry is valid and legal, still it is open for the Labour Court to determine the quantum of punishment. Dr. Kulkarni contended that the Deputy Commissioner was oblivious of the provisions of Sec. 11A of the Act and has passed the order which was clearly in contravention of the powers conferred on him. Shri Khambatta, learned counsel appearing on behalf of the State and Shri Desai, learned counsel appearing on behalf of respondent No.2, submitted that the action of the Deputy Commissioner is correct and requires no interference in these proceedings under Art. 226 of the Constitution of India. The learned counsel urged that this Court is not exercising appellate jurisdiction and it is not permissible to disturb the order when the Deputy Commissioner has given sound and cogent reasons for not making the reference.