O P SARAF Vs. STATE

JUDGEMENT

(1.) WHETHER this Court in exercise of its jurisdiction under Art 226 of the Constitution of India can judicially determine the order of the Government refusing to make a reference of an Industrial dispute under Section 12(5) of the Industrial Disputes Act, hereinafter referred to as the Act, is a question to be determined having reference to the facts & circumstances of the case and the law applicable on the point. It has further to be seen as to whether in view of the receipt of Rs. 2500/ - by the petitioner on account of full and final settlement, he can agitate the matter and claim the existence of an Industrial dispute under the Act.

(2.) THE facts giving rise to the filing of this petition are that according to the petitioner he was employed as a correspondent of Indian Express by its management to be stationed at Srinagar in terms of their document I dated 2 -5 -1970. The petitioner further submits that he was transferred from Srinagar to Jammu in April/May 1973. The Management of the Indian Express served a notice upon the petitioner terminating his services with effect from l -6 -l974. After the receipt of the aforesaid notice some correspondence was exchanged between the petitioner & the management of the Indian Express but the management did not settle the alleged dispute where after the petitioner filed an application on 12 -12 -1974 before the respondent No. 2, the Concilliation Officer, requesting him to settle the dispute between the parties specified in the application. The management of the Indian Express submitted their written statement before the respondent No. 2 whereafter the petitioner filed a reply to the said written statement. The management -employer took preliminary objection that the respondent No. 2 had no jurisdiction to proceed with the case. Respondent No. 2 framed an issue to the effect as to whether he had jurisdiction over the matter or not & asked the parties to lead evidence on the said issue. After considering the arguments of both the parties the respondent No. 2 made a report to respondent No, 1 seeking the guidance as to whether or not he had jurisdiction to initiate the Conciliation proceedings in regard to the Industrial dispute vide his letter dated 30th April, 1975. The Dy. Secretary of the respondent No. 1 vide his letter dated 1st Oct. 1975 conveyed to the petitioner that his dispute with the management of the Indian Express had been examined and filed. This letter has been produced by the petitioner alongwith this petition as annexure 2. The petitioner addressed a letter to the said Dy. Secretary of the respondent No. 1 on 10th Nov. 1975 for supply of detailed reasons which had led to his case being filed and in response to his letter, the said Dy, Secretary conveyed to the petitioner that as he had accepted an exgratia payment of Rs. 2500/ - as full and final settlement of the claim against the! management there was no ground for him to agitate the matter and that the State Conciliation Officer had no jurisdiction in the case. It is submitted that the action of the respondent No. 1 in directing the filing of the case of petitioner was illegal, wrongful, void, unjustified and unwarranted. It submitted that before refusing to make a reference of the Industrial dispute to the concerned court, Board or Tribunal, the respondent No. 1 did not apply the mind and rejected the prayer of the petitioner for some alleged extraneous considerations. It is submitted that the respondent No. 1 co not go beyond the terms of respondent No. 2s report in which he had guidance regarding the objection raised by the management -employer. The respondent No. 1 is alleged to have pronounced its judgment on the points about which the parties had yet to make their submissions before respondent No. 2 before submitting his report of failure to the respondent No. 1, who thereafter could have passed the appropriate orders as warranted under tin provisions of the Act. It is submitted that the plea of the respondent that the State Conciliation Officer had no jurisdiction in the matter was devoid of a legal force because according to the petitioner a cursory glance of the Industrial Disputes Act shows that the designation State Conciliation Officer not recognized by the said Act. Conciliation Officer  is however, the only designation that is recognized by the Act whose Section 4 deals with appointment of such Conciliation Officers by the Governments, both as well as State. It is submitted that respondent No. 1 has appointed several Conciliation Officers to perform the duties under the Act, one of s officers being the respondent No. 2. There being no State Conciliation Officer, the mention of expression State Conciliation Officer in respondent 11s communication dated 6 -12 -1975 was a pointer to the factum of non -application of mind by the respondent No. I while recording the reasons filing the petitioners case which is alleged to be illegal and failure on the part of the respondents to discharge the statutory duties. The communication addressed by respondent No. 2 could not be treated as failure report will the meaning of Section 12(4) of the Act as had been done in the instant case. It is prayed by the petitioner that the communication of the respondent No. 1 dated 1 -10 -1975 and 6 -12 -1975 in terms of which the petitioners case with the management of Indian Express was directed to be filed be quashed and a direction be given to the respondent No. 1 to refer to a judicial body the question of jurisdiction regarding the factum where the petitioners industrial dispute with his management could be adjudicated. It is further prayed that the respondent No. 1 be directed to refer the petitioners industrial dispute with the management could be adjudicated. It is further prayed that the respondent No. 1 be directed to refer the petitioners industrial dispute with the management of Indian Express to any of the authorities as specified in Section 12(5) and Section 10(1) of the Act. In the counter affidavit filed on behalf of the respondents 1 & 2 it is submitted that as no fundamental or legal right of the petitioner was involved, the writ petition was liable to be dismissed and that as the petitioner had accepted a sum of Rs. 2500/ - from the respondent No. 3 in full & final settlement of his claim, he was estopped from invoking the extra ordinary jurisdiction of this court and for raising an industrial dispute. The order of the Government under section 12(5) of the Act cannot be challenged in a court of law muchless in a writ petition when procedure prescribed by the Act had been duly followed & mandate of law duly complied with. It is further submitted that correctness of reasons for refusal to refer the case for adjudication cannot be called into question. It is submitted that a Conciliation Officer cannot give an award affecting the rights of the parties before him or to adjudicate upon the industrial dispute if any. The function of the Conciliation Officer to make offers and to bring about the settlement & report about the settlements of his offers to the Government. The petitioner, therefore, cannot claim the relief of having the so -called services termination notice as void and inoperative from respondent No. 2. It is alleged that in view of the fact that the parties had failed to reach the settlement, the respondent No. 2 made a failure report to the Government under section 12(4) of the Act. The Govt. has a discretion after being satisfied that there was a case of reference, to make a reference for adjudication to the appropriate Government referred in the Act & where the Govt. saw no ground to refer the case for adjudication, it was bound to communicate the parties, the reason for refusing the reference and is not obliged to direct the Conciliation Officer after receipt of the failure report from him to further exercise his powers under sub -sections (1,2, 3 & 4) of section 12 of the Act It is submitted that the report of the respondent No. 2 seeking guidance in fact and in essence amounted to be a failure report. It is further submitted that the duties of the Conciliation Officer are purely of administrative in nature and he had every right to seek guidance or invite a ruling from the Government with regard to the issue raised in his report even though when he had reported failure in inducing the parties to arrive at an amicable settlement of dispute. The respondents further submit that the Government had the power to refuse reference of the alleged dispute for adjudication on consideration of merits of the case and could take into account besides the report of Conciliation Officer, other relevant facts as well. By refusing to make a reference in this case, the Govt. has not ever stopped the permissible limits of law & the scope of the report because they had passed the impugned order after applying their mind.

(3.) IN the affidavit filed on behalf of the respondent No. 3, it is submitted that the State of Jammu & Kashmir had no jurisdiction to entertain and deal with the claim made by the petitioner as the management had no office at Jammu & the petitioner was working directly under the administrative control of the office of the employer at New Delhi. The petitioner did not have any cause of action in asmuch as after his termination of service, the petitioner represented to the management that the matter be amicably settled whereafter he received a sum of Rs. 2500/ - in lieu of all claims that he had with regard to the termination of his services. The alleged industrial dispute having received a quiestus in the matter aforesaid, the petitioner was not entitled in law to agitate. On merits it is alleged that the petitioners claim could not be termed as an Industrial dispute.