S. Ramesh & Ors. v. The Commissioner of Labour

Writ petitions filed under Article 226 of the Constitution ofIndia praying for issuance of Writ of Certiorarified Mandamus asstated therein. to issue a writ of certiorarified mandamus callingfor the records relating to the proceedings of the 2nd respondent inKa.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.210/2005Ka.No.A.205/2005 dated 5.10.2005 (W.P.No.591 to 593/2006) closing theindustrial dispute raised by the petitioner against his terminationquash the same and consequently direct the first respondent totransfer the file and conciliation proceedings pertaining to thepetitioner termination to any other conciliation officer atCoimbatore and direct the said conciliation officer either toarrival a settlement or to issue a failure report within a specifiedtime, award costs For petitionerin: Mr.V.Ajoy Koshall 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 ORDERThe petitioners in all these writ petitions who were employedunder the management of Lakshmi Mills Limited, have raised individualdisputes against the management in respect of relieving them fromtheir respective posts under section 2(A)(1) of the IndustrialDisputes Act,1947 and the Conciliation Officer in these cases, underthe impugned orders has informed the petitioners that they do notcome under the definition of workmen under section 2(s) of theIndustrial 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 aGrade-G worker in Palladam Mill of the 4th respondent management inthe year 1980 and thereafter, he was transferred to Singanallur andhe was given Grades-F, E, D and C. It is his case that even thoughhe was designated as Assistant Manager Technical, he was doing onlyclerical, manual and technical works and not doing managerial orsupervisory work. (b) The writ petitioner in W.P.No.507 of 2006 had joined asSpinning 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 atlast he was made as Senior Officer in the Spinning Department atSinganallur Mill. Here also, he was doing only clerical, manual andtechnical works and not supervisory work. (c) The petitioner in W.P.No.508 of 2006 had joined as a workerin the maintenance department in the year 1992 in Singanallur Milland afterwards, he was designated as Deputy Officer/Maintenance. Hewas doing clerical, manual and technical works.(d) The petitioner in W.P.No.591 of 2006 had joined as TicketBoy in the year 1969 in the Singanallur Mill and later he waspromoted as C-2 Grade worker in the year 1990.(e) The writ petitioner in W.P.No.592 of 2006 was appointed as aworker in the year 1990 and posted in Quality Control Department atSinganallur 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 appointedas a Salesman in the Showroom of the 4th respondent Mill at Cross CutRoad and later he was transferred to Singanallur Mill in K.P.Grade.3. It is stated that the 4th respondent management introduced anEarly Retirement Scheme(ERS) for both staff and workmen in the year2002-03 and nearly 400 workmen were allowed to go on ERS. Thepetitioners have also requested the 4th respondent to allow them to goon ERS, however, the management requested them to continue in therespective posts. It is stated that in July and September, 2004about 20 staff were transferred to other Mills out of whom 10 werejuniors to the petitioners. The 4th respondent Mill is having Millsat Singanallur, Pappanaickenpalayam, Palladam and Kovilpatti, apartfrom its registered Office at Coimbatore. It is stated that at thetime of above said transfer, the 4th respondent informed thepetitioners that they would be transferred to the Mill atPappanaickenpalayam. However, contrary to the said assurance, byorder dated 27.9.2004, all the petitioners were terminated fromservice with effect from 30.9.2004. 3(a). It is stated that when it was protested by thepetitioners, the management gave an assurance that after terminationorders were received, they would be employed in the Mill atPappanaickenpalayam. It was, based on the said assurance, thetermination orders were received. Since the 4th respondent employerhas not provided employment, the petitioners have individually raisedindustrial disputes under section 2(A)(1) of the Industrial DisputesAct,1947. It is stated that the second respondent, who is theConciliation Officer, issued notice of conciliation, fixing the firstmeeting of conciliation on 3.3.2005. In the remarks filed by it, the4th 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 alsostated that the termination orders were received by the petitionerswithout any protest. This was objected to by the petitioners byfiling a rejoinder before the Conciliation Officer stating that thepetitioners have been always ready and willing to join in anotherplace of transfer. 4. It is stated that the writ petitioners in W.P.Nos.591 to 593of 2006 viz., Palanisamy, Chandra and Daniel Mangalaraja were agreedto be provided employment by the management, which was not acceded toand there was no settlement arrived at before the ConciliationOfficers. It is the case of the petitioners that the ConciliationOfficers have been openly supporting the management instead ofarriving at a settlement or sending a failure report, stated that thepetitioners in W.P.Nos.506 to 508 of 2006 are not workmen and thewrit petitioners in W.P.Nos.591 to 593 of 2006 have receivedsettlement from the management, in spite of the fact that it wasinformed to the Conciliation Officer that it is not the function ofConciliation Officer to decide the same. There was no failure reportgiven by the Conciliation Officer, but the Conciliation Officer inW.P.Nos.506 to 508 of 2006 passed a detailed impugned order on meritsadjudicating that the petitioners are not workmen under section 2(s)of the Industrial Disputes Act,1947 and therefore, there is nopossibility to proceed with the conciliation under section 12(1) ofthe Act.5. Likewise, in respect of W.P.Nos.591 to 593 of 2006, theConciliation Officer passed the impugned orders stating that thepetitioners have received all monetary and other benefits in respectof the services rendered by them and also stating that thepetitioners in the writ petitions have not appeared and accordingly,closed the conciliation proceedings. 6. It is, against the said impugned orders the writ petitionsare filed mainly on the ground that the Conciliation Officer undersection 12(1) of the Industrial Disputes Act,1947 cannot decide as towhether the person who raised a dispute is coming within the meaningof 'workman' under section 2(s) of the Industrial Disputes Act or theConciliation Officer cannot decide as to whether the settlement hasbeen received, which is only for the adjudicating mechanism toconclude as per the Industrial Disputes Act.7. In the counter affidavit filed by the management it is statedthat as per the terms of appointment order, the workmen are liable tobe transferred to any of the units of the 4th respondent management.In 2004, Singanallur Mill ceased to function and therefore, the Unitwas asked to transfer its workmen to Pappanaickenpalayam andPalladam Mills. It is the case of the 4th respondent that while otherworkmen accepted the offer of transfer, the writ petitioners inW.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 threemonths salary in lieu of notice as on 30.9.2004. It is stated thatthey have received their entire terminal benefits, gratuity andprovident fund without any objection and the petitioners are alsogetting pension from the Provident Fund organization. 7(a). It is also stated that the petitioners in W.P.No.591 to593 of 2006, apart from receiving the entire amounts have alsovoluntarily submitted application for gratuity and received gratuityamount also. It is the case of the 4th respondent that afterreceiving the entire benefits, the petitioners have moved theConciliation Officer under section 2(A)(1) of the Industrial DisputesAct, in which reply was submitted by the respondent management. Itis stated that during the course of conciliation, offer was made onbehalf of the 4th respondent to provide alternate employment and theConciliation Officer has in fact directed the petitioners to approachthe management, however, except one writ petitioner, by name,Palanisamy, no other have met the Officers of the managementconcerned and the said Palanisamy has not agreed for employment inPalladam and Kovilpatti Mills and he demanded voluntary retirement.It is stated that when the said three petitioners in W.P.Nos.591 to593 of 2006 were asked to sign the proceedings of the ConciliationOfficer to the effect that as per records, they had received gratuityand other terminal benefits, they did not sign and it was in thosecircumstances, the Conciliation Officer passed orders closing theconciliation proceedings. 7(b). In respect of the writ petitioners in W.P.Nos.506 to 508of 2006, the Conciliation Officer has given a finding that thepetitioners were working in supervisory capacity and therefore, theywere not workmen and there is no scope for entertaining theconciliation proceedings. It is the case of the 4th respondent thatthe petitions are liable to be dismissed on the basis of lachessince the impugned orders which were passed in August, 2005 have beenchallenged in 2006. 7(c). In respect of the petitioners in W.P.Nos.591 t9 593 of2006, the respondent management would state that the petitionersnever opted for voluntarily retirement scheme and no assurance wasgiven that they would be transferred only to Coimbatore. Since thesaid petitioners have received the employment benefits in full andfinal settlement, they ceased to be the employees as on 30.9.2004.It is also stated that the petitioners were asked to contact thesupervisory officer Mr.P.M.Jagadeesan for alternate employment andthe petitioners except one petitioner, Palanisamy, have not contactedhim and the said Palanisamy also refused to accept the offer. It isstated that as on date, even the Unit at Pappanaickenpalayam is notrunning 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 counselappearing for the petitioners in all these cases, by relying uponvarious judgments, that the duty of Conciliation Officer is not toadjudicate the issue and he has to work for conciliation and in theevent of failure, he has to send the conciliation failure report. Itis his contention that in the impugned orders in all these cases, theConciliation Officers in fact adjudicated the issue on merit and heldthat the petitioners are not workmen and that the petitioners havereceived terminal benefits and therefore, they ceased to be theemployees and according to him, the Conciliation Officer is notexpected to do so under the Industrial Disputes Act. He would relyupon the judgment of the Apex Court in Telco Convoy Drivers MazdoorSangh vs. State of Bihar [(1989) 2 LLJ 558] apart from the judgmentin Sharad Kumar vs. Government of NCT of Delhi [(2002) 2 LLJ 275].He would submit that even the Government has no power to adjudicatethe claims while exercising its function under section 12(5) of theIndustrial Disputes Act, by relying upon the judgment in MGRTransport Corporation Employees' Union, Chennai vs. State of TamilNadu rep. By its Secretary, Labour and Employment Department, Chennaiand others [(2004) 3 LLN 322]. 9. On the other hand, it is the contention of Mr.S.Raveendranfor M/s.T.S.Gopalan & Co., learned counsel appearing for the 4threspondent management in all these cases that the ConciliationOfficer is entitled to decide prima facie the question whether thereis an issue available for the purpose of conciliation at all and todecide the same he can go into the merits of the case. Whileadmitting that the Conciliation Officer cannot adjudicate thedispute, it is his submission that admittedly the petitioners havereceived the entire monetary benefits in full and final settlementand they are receiving pension also and in such case, it is certainlyopen to the Conciliation Officer to consider the case to find out asto whether the petitioners who have raised the dispute under section2(A)(1) of the Act are workmen or not. According to him, such adecision would not amount to adjudication of the issue. He wouldalso submit that it is a right of the Conciliation Officer to decideprima facie as to whether there is a dispute at all in existence foreffecting conciliation, by relying upon the following judgments:(a) M/s. Shaw Wallace & Co. Ltd., vs. State of Tamil Nadu rep. Bythe Commissioner and Secretary, Labour Department and others [(1987)1 LLJ 177];(b) Mercury Manufacturing Co. Ltd. vs. Joint Commissioner ofLabour, Chennai (2001) 1 LLJ 1214];(c) Arjun Narayanan Patil vs. I.D.B.I. Bank Ltd., [(2006) 3 LLJ66]; https://hcservices.ecourts.gov.in/hcservices/ (d) Management of Dynamic Motors and Services, Chennai vs.Assistant Commissioner of Labour (Conciliation II) Chennai andanother [(2004) 1 LLJ 864];(e) Mukesh Khanna vs. Chandigarh Administration, Chandigarh [(1999)2 LLJ 1433]; and (f) Bongaigaon Refinery and Petrochemicals Ltd., vs. SamijuddinAhmed [(2001) 2 LLJ 1149]10. Before proceeding to decide about the issue involved inthese cases as to the jurisdiction of the Conciliation Officer, it isrelevant to point out that even though it is the case of the 4threspondent management that the petitioners have been paid terminalbenefits in full and final settlement, it is seen on facts that thereis nothing to show that the petitioners have accepted the monetarybenefits in full and final settlement of the claim, thereby impliedlyrelinquishing their right as workmen. 11. On the other hand, it has been the case of the 4th respondentmanagement before the Conciliation Officer that the petitioners havereceived the said amounts in full and final settlement without makingany objection. A reference to the impugned orders of theConciliation Officer in W.P.Nos.506 to 508 of 2006 shows that he hasin detail discussed about the case of both the parties. Even areference to the said detailed orders in which the ConciliationOfficer elicited the stand of the petitioners/workmen makes it clearthat it has been the categorical stand of the workmen that thetermination was passed against the petitioners by the 4th respondentmanagement on the assurance that the petitioners would be givenalternate employment. In fact, a specific stand was taken by thepetitioners 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, thetermination of the petitioners is against section 25-F of theIndustrial Disputes Act. 12. In fact, it has been the case of the petitioners that eventhough the petitioners were designated either as Assistant Manager(Technical) or otherwise as stated above, they have been onlyperforming clerical functions as workmen and therefore, they cannotbe declared as 'not workmen' under the Industrial Disputes Act simplybased on the designation. The Conciliation Officer in the report hasalso stated the claim of the 4th respondent management that bydesignation the petitioners are doing supervisory work. TheConciliation Officer in the impugned order has also in detailnarrated the case of the management that the petitioners havereceived the amounts in full settlement by way of cheque withoutobjection, that the petitioners have been working in supervisory https://hcservices.ecourts.gov.in/hcservices/ capacity, since as supervisors the petitioners have sent reportseveryday to their higher officers about the working of qualityoperators. 13. The Conciliation Officer has taken note of the statementmade on behalf of the management that the petitioners have beenworking as quality operators and has referred to the documentssubmitted on behalf of the management to the effect that thepetitioners have received the amounts. It is based on the documents,the Conciliation Officers has come to the decision that thepetitioners in W.P.Nos.506 to 508 of 2006 have been working insupervisory capacity and ultimately arrived at the followingconclusion in respect of writ petitioners in W.P.Nos.506 to 508 of2006:"nkw;fz;l epiyapy; kDjhuh; nknd$phpay;-N:g;gh;itrh; ntiy bra;jpUf;fpwhh; vd;gJ g[ydhfpwJ/ ,e;j epiyapy; kDjhuhpd; kD 1947k; tUlj;jpa bjhHpw;jfuhWfs; rl;lk; gphpt[ 2(v!;)d; fPH; bjhHpyhsh; vd;w brhy; tpsf;f tuk;gpw;Fs; tutpy;iy/ vdnt kDjhuhpd; kDbjhlh;ghf nkw;fz;l rl;lk; gphpt[ 12(1)d; fPH; rkur ngr;Rthh;j;ij el;j;;j tha;g;gpy;iy vd;WkDjhuUf;F ,jd; K:yk; bjhptpj;Jf; bfhs;sg;glLfpwJ/"14. In respect of writ petitioners in W.P.Nos.591 to 593 of2006, the Conciliation Officer has passed the order as follows:"kDjhuh; 2/11/2004 md;W gzpf;bfhil kw;Wk; ,ju rYiffis bgw;Wf; bfhz;ljhfMtz';fspypUe;J bjhpa tUtjhYk;. kDjhuh; nkw;fz;l (30/9/2005) njjpapy; M$uhfhjjhYk;,f;nfhg;g[ nky;eltof;ifapd;wp Kof;fg;gLfpwJ vd ,jd; K:yk; kDjhuUf;Fbjhptpf;fg;gLfpwJ/"15. In the abovesaid factual background, we have to analyse thelegal position including the judgments referred to by the counsel.Section 12 of the Industrial Disputes Act makes it clear that incases where the dispute relates to public utility service, theConciliation Officer shall hold conciliation and in respect ofothers, the Conciliation Officer may hold the conciliationproceedings in the prescribed manner. Section 12(2) of the Act whichactually confers the power on the Conciliation Officer to bring outsettlement of dispute between the parties enables him to investigatethe disputed matter affecting the merits and such things necessaryfor the purpose of inducing the parties to come to an amicablesettlement of dispute. Under section 12(3) of the Act, if asettlement is arrived at, during the course of conciliationproceedings, a report has to be submitted to the appropriateGovernment. However, under section 12(4) of the Act, if nosettlement is arrived at, the Conciliation Officer has to close theinvestigation and send a failure report to the Government along withthe steps taken by him stating the reason due to which in his opinionhe was unable to arrive at a settlement. Under section 12(5) of theAct, 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 orIndustrial Tribunal, etc. Section 12 of the Industrial Disputes Actis as follows:"Section 12. Duties of conciliation officers.- (1)Where any industrial dispute exists or is apprehended, theconciliation officer may, or where the dispute relates to apublic utility service and a notice under section 22 hasbeen given, shall, hold conciliation proceedings in theprescribed manner.(2) The conciliation officer shall, for the purpose ofbringing about a settlement of the dispute, without delayinvestigate the dispute and all matters affecting the meritsand the right settlement thereof and may do all such thingsas he thinks fit for the purpose of inducing the parties tocome to a fair and amicable settlement of the dispute.(3) If a settlement of the dispute or of any of thematters in dispute is arrived at in the course of theconciliation proceedings, the conciliation officer shallsend a report thereof to the appropriate Government or anofficer authorised in this behalf by the appropriateGovernment together with a memorandum of the settlementsigned by the parties to the dispute.(4) If no such settlement is arrived at, theconciliation officer shall, as soon a practicable after theclose of the investigation, send to the appropriateGovernment a full report setting forth the steps taken byhim for ascertaining the facts and circumstances relating tothe dispute and for bringing about a settlement thereof,together with a full statement of such facts andcircumstances, and the reasons on account of which, in hisopinion, a settlement could not be arrived at.(5) If, on a consideration of the report referred to insub-section (4), the appropriate Government is satisfiedthat 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 areference, it shall record and communicate to the partiesconcerned its reasons therefor.(6) A report under this section shall be submittedwithin fourteen days of the commencement of the conciliationproceedings or within such shorter period as may be fixed bythe appropriate Government. https://hcservices.ecourts.gov.in/hcservices/ [Provided that, subject to the approval of theconciliation officer, the time for the submission of thereport may be extended by such period as may be agreed uponin writing by all the parties to the dispute.]"16. On a reading of the said section, it is very clear thatafter the failure report received from the Conciliation Officer,while exercising its powers under section 12(5) of the Act, it is forthe appropriate Government whether to refer or not the dispute to theLabour Court or Industrial Tribunal. It is open to the Government tosatisfy itself as to whether there is a case for reference and inthat regard, it is open to the Government to form a prima facieopinion. Such power of the Government has been approved by theestablished judicial precedents, even though it has been held as ageneral law that the Government cannot adjudicate the dispute whileexercising its power to refer the dispute. The Supreme Court inBombay Union of Journalists vs. State of Bombay (AIR 1964 SC 1617)held that the prima facie examination on merits of the case by theGovernment 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 questionraises questions of law, the appropriate Government shouldnot purport to reach a final decision on the said questionsof law, because that would normally lie within thejurisdiction of the Industrial Tribunal. Similarly, ondisputed questions of fact, the appropriate Governmentcannot purport to reach final conclusions, for that againwould be the province of the Industrial Tribunal. But itwould not be possible to accept the plea that theappropriate government is precluded from considering evenprima facie the merits of the dispute when it decides thequestion as to whether its power to make a reference shouldbe exercised under Section 10(1) read with Section 12(5), ornot. If the claim made is patently frivolous, or is clearlybelated, the appropriate government may refuse to make areference. Likewise, if the impact of the claim on thegeneral relations between the employer and the employees inthe region is likely to be adverse, the appropriategovernment may take that into account in deciding whether areference should be made or not. It must, therefore, beheld that a prima facie examination of the merits cannot besaid to be foreign to the inquiry which the appropriategovernment is entitled to make in dealing with a disputeunder Section 10(1), and so, the argument that theappropriate Government exceeded its jurisdiction inexpressing its prima facie view on the nature of thetermination of services of appellants 2 and 3, cannot beaccepted." https://hcservices.ecourts.gov.in/hcservices/

17. In M.P.Irrigation Karamchari Sangh vs. State of M.P.,[(1985)2 SCC 103] the Supreme Court has held that the power of theGovernment to decide prima facie case is to examine whether the claimis frivolous. In all other cases, the normal rule is to refer thedispute for adjudication. The Supreme Court has held that allowingthe Government to adjudicate while exercising powers under section 12(5) of the Industrial Disputes Act would make the operation ofsections 10 and 12(5) as nugatory. The relevant portion of thejudgment is as follows:" 5. ......... Therefore, while conceding a very limitedjurisdiction to the State Government to examine patentfrivolousness of the demands, it is to be understood as arule, that adjudication of demands made by workmen should beleft to the Tribunal to decide. Section 10 permitsappropriate Government to determine whether dispute 'existsor is apprehended' and then refer it for adjudication onmerits. The demarcated functions are (1) reference, (2)adjudication. When a reference is rejected on the speciousplea that the government cannot bear the additional burden,it constitutes adjudication and thereby usurpation of thepower of a quasi-judicial Tribunal by an administrativeauthority namely theappropriate government. ...."7. There may be exceptional cases in which the StateGovernment may, on a proper examination of the demand, cometo a conclusion that the demands are either perverse orfrivolous and do not merit a reference. Government shouldbe very slow to attempt an examination of the demand with aview to decline reference and courts will always be vigilantwhenever the government attempts to usurp the powers of theTribunal for adjudication of valid disputes. To allow thegovernment to do so would be to render Section 10 andSection 12(5) of the Industrial Disputes Act nugatory."Therefore, it is clear that even in respect of powers of theGovernment under section 12(5) of the Industrial Disputes Act afterreceiving the Conciliation failure report, it is the normal rule thatthe Government has to refer for adjudication and the Governmentcannot act as an adjudicating authority in performing itsadministrative function except to find out prima facie whether theclaim on the face of it is frivolous.18. While so, the power of the Conciliation Officer undersection 12(2) of the Act is much restricted since his function isonly to induce the parties to go for a fair and amicable settlementof dispute. It is only in furtherance of the acceptance of theparties to go for amicable settlement, the Conciliation Officer willhave jurisdiction to investigate the dispute. While doing such https://hcservices.ecourts.gov.in/hcservices/ investigation, even if he can enter into the merits of the case, theforemost duty of the Conciliation Officer is to induce the parties togo for amicable settlement and therefore, the power of theConciliation Officer to investigate in furtherance of inducement ofparties for settlement is certainly not tantamount to adjudicatingthe dispute between the parties. However, the Conciliation Officerwhose power is very narrow and who is placed on less pedestal whencompared to the Government under section 12(5) of the Act, certainlyhas no jurisdiction to go into the merits of the case.19. It is true as correctly submitted by Mr.S.Raveendran,learned counsel appearing for the 4th respondent management in thesecases that, it has been an established legal principle that theobject of Industrial Disputes Act is not to encourage the frivolousand endless litigations but to promote industrial harmony. It is alsotrue that the Conciliation Officer cannot be expected to act inmechanical way as it was observed by this Court in MercuryManufacturing Co. Ltd. vs. Joint Commissioner of Labour, Chennai andOthers [(2001) 1 LLJ 1214]. But, a reading of section 12(2) makes itvery clear that his function involves the inducement of parties forsettlement and it is certainly not to adjudicate the claim bydetailed discussion on merits of the case, even for deciding whetherthe claim is frivolous. A claim can prima facie be found as frivolousin cases where the employees are taking stand to go against theadmitted records. In cases where the management takes a stand thatthe workmen have accepted the terms and acted upon, especially whenthe same is denied by the workmen, it can never be said that thereis a prima facie case enabling the Conciliation Officer to adjudicateand consequently, throw out the valuable right of a workman to havehis claim adjudicated in legal forum like, Labour Court or IndustrialTribunal. 20. The decision of the Supreme Court relied upon by the learnedcounsel for the 4th respondent management in Bongaigaon Refinery andPetrochemicals Ltd., vs. Samijuddin Ahmed [(2001) 2 LLJ 1149 (SC)] isnot applicable to the facts of the present case. That was a casewhere there was documentary evidence to show that the workman hasnever entered into the employment under the management and such anaverment has not been refuted by the respondent workman also. Itwas, in those circumstances, the Supreme Court has held that areference under section 10 of the Industrial Disputes Act at theinstance of the workman is unwarranted and uncalled for. Theoperative portion is as follows:"6. Having heard the learned counsel for the partieswe are of the opinion that the appeal deserves to beallowed and the order of the Division Bench deserves to beset aside. Documentary evidence filed on behalf of theappellant clearly goes to show that the respondent hadnever entered into the employment of the appellant. He was https://hcservices.ecourts.gov.in/hcservices/ offered an employment under a special scheme whereunderemployment was available only subject to satisfying certaineligibility conditions. The respondent made a materialconcealment of facts and tried to secure an employment towhich he was not entitled under the scheme. Such materialconcealment was detected timely and therefore his joiningreport was not accepted by the competent authority of theappellant-Company and the same was turned down. Thisaverment made on affidavit and supported by documentaryevidence has not been rebutted by the respondent. Inasmuchas the respondent had not entered the employment of theappellant, referring a dispute under Section 10 of theIndustrial Disputes Act based on assumption that therespondent had entered the service of the appellant and wasthen removed from service, suffered from material infirmityand was therefore vitiated. The Division Bench was notright in forming an opinion that the controversy raised bythe appellant should have been left to be adjudicated uponby the Industrial Tribunal. The Industrial Tribunal cannotgo behind the order of reference. It would have tried, onthe terms of the reference, the issue of removal fromservice, and not the issue whether the respondent had atall entered in service. Moreover, between March 1, 1989and June 2, 1995 nothing new had happened so as to warranta change of opinion by the Central Government. It has beenpointed out on behalf of the appellant that there was stilla long queue of persons waiting for employment in thepreferred category of displaced persons while the schemeitself has stood withdrawn on January 16, 1989. Therespondent by seeking an appointment in the employment ofthe appellant by making material concealment of facts wasattempting to deprive some one else of his legitimate claimfor appointment against limited number of vacanciesavailable and the Court should not have extended itshelping hand to a non-deserving claimant. Be that as itmay we are satisfied that reference of dispute underSection 10 of Industrial Disputes Act at the instance ofthe respondent was wholly unwarranted and uncalled for."21. Again, the judgment in Management of Dynamic Motors andServices, Chennai vs. Assistant Commissioner of Labour (ConciliationII), Chennai and another [(2004) 1 LLJ 864] relied on by the learnedcounsel for the management is a case where the management has alwaysbeen expressing its readiness to permit the workman to join and topay salary even for the period of non-employment and on thoseadmitted facts, it was held that the Conciliation Officer need notproceed with the conciliation proceedings as the dispute was not inexistence at all. The relevant portion of the judgment is as follows: https://hcservices.ecourts.gov.in/hcservices/ "2. Originally, on the basis that the second respondentasked the petitioner-management to relieve him fromservice, the petitioner relieved him from service. Statingthat he did not make such a request, the second respondentraised a dispute and on that basis, the first respondentissued a notice to the petitioner. In the proceedings,dated July 24, 2000, the petitioner informed the firstrespondent stating as follows:"Since he is going back on his resignation weare rescinding our letter, dated May 19, 2000. Hemay report for duty immediately. We are alsoadvised that we are liable to pay him the salaryfor the period of non-employment. He shouldreport for duty on or before July 29,2000."When the petitioner was ready to permit the secondrespondent to join duty and to pay the salary even for theperiod of non-employment, there cannot be any dispute asraised by the second respondent.3. In view of the said proceedings, dated July 24,2000, the first respondent-Assistant Commissioner need notproceed with the conciliation proceedings, as the disputeraised by the second respondent is not in existence.Accordingly, this writ petition is allowed. No costs. ..."22. As correctly submitted by the learned counsel for the 4threspondent management Mr.S.Raveendran, the Industrial Disputes Act isto help the needy and not greedy but that has to be decided on thefacts and circumstances of each and every case. In fact, in MukeshKhanna vs. Chandigarh Administration, Chandigarh [(1999) 2 LLJ 1433]relied upon by the learned counsel for the management, the DivisionBench of Punjab and Haryana High Court has held that the Governmentcannot adjudicate the issue while, at the same time, holding thatthe provisions of the Industrial Disputes Act is to help the needyand cannot be invoked to help a person who wants to make money fromthe management without doing work. The relevant portion of thejudgment is as follows:" 7. In these circumstances, we do not find anyinfirmity in the impugned order, which may call forinterference in the exercise of our discretionaryjurisdiction under Article 226 of the Constitution. Theprovisions of the Industrial Disputes Act are meant to helpthe needy. These are not to be invoked to help a person whois greedy. We are satisfied that the petitioner belongs tothe latter category and is wanting to make money out of theManagement, without doing any work. We cannot help him indoing so." https://hcservices.ecourts.gov.in/hcservices/

23. While there is absolutely no dispute about the propositionand precedents as stated above, I am of the view that on the factsand circumstances of the present case, when there is absolutelynothing to presume that there was no dispute in existence at all, itis not possible to accept the contention of the learned counsel forthe 4th respondent management that the impugned orders need not beinterfered with.24. On the facts and circumstances of the present case, it hasbeen the case of the management that the amounts have been paid tothe workmen. On the other hand, it is the case of the workmen that itwas at the instigation of the management that alternate employmentwould be provided, the termination letter was received and later whenthe management has not kept up its promise, a dispute was raised.Whether such stand on facts is correct or not cannot be certainlyinvestigated by the Conciliation Officer while exercising his powerunder section 12(2) of the Act. Such is the power conferred on thejudicial authorities to decide the same on merits by applying thejudicious mind on the disputed facts. 25. Further, the decision as to whether the petitioners areworkmen under section 2(s) of the Act has in fact been adjudicated bythe Conciliation Officer in this case. In the impugned orders, theConciliation Officer has simply accepted the case of 4th respondentmanagement that the petitioners have been designated as AssistantManagers (Technical), etc. and on that basis, the ConciliationOfficer has prima facie decided that the petitioners cannot betreated as workmen, especially in the circumstance that it has beenthe categorical case of the petitioners that even though they weredesignated in such manner, actually the work done by them was that ofa workman either on clerical or technical side. It requires enquiryby a judicial authority and the same cannot be decided byinvestigation by the administrative authority like, the ConciliationOfficer under section 12(2) of the Act. Under similar circumstances,in batch of writ petitions in W.P.Nos.10894 to 10903 of 2003, byorder dated 24.11.2008, after following hierarchy of judgments on theissue in question regarding the power of the Conciliation Officer, Ihave held as follows:"12. In view of the above said categorical legaldecision, the finding given by the first respondentConciliation Officer, on the facts of the case that thepetitioners have resigned the job and obtained all themonetary benefits, is certainly beyond the jurisdiction ofthe first respondent, while exercising its function undersection 12(2) of the Act, as held in the hierarchy of thejudgments and decisions stated above. In the event of nonarrival of settlement between the parties, it is only theduty of the Conciliation Officer to send the failure reportor to send individual notices to the parties/petitioners https://hcservices.ecourts.gov.in/hcservices/ concerned so as to enable them to raise dispute undersection 2-A(2) of the Act."26. While the argument advanced by the learned counsel for themanagement is attractive, the same is not acceptable to the facts andcircumstances of the present case. Even a bare reading of theimpugned orders make it clear that the Conciliation Officer hasexceeded his limited powers and in fact, decided the case on meritsby going into the issue by way of adjudication, which is notpermissible in law. In such view of the matter, the impugned ordersare set aside and the matter is remitted back to the second and thirdrespondents/ Conciliation Officers with direction to send a failurereport as per section 12(2) of the Industrial Disputes Act to theappropriate Government within a period of 30 days from the date ofreceipt of a copy of the order and thereafter, it is for theappropriate Government to act as per section 12(5) of the Act. The writ petitions are allowed. No costs. Connectedmiscellaneous petitions are closed.kh Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. 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. https://hcservices.ecourts.gov.in/hcservices/

4. The Management of Lakshmi Mills Ltd., 1100, Avinasi Road Pappanaickenpalayam Coimbatore 37.2 +cc to V.Ajoy kash Advocate Sr.37110,371092 cc to T.S. Gopalan & Co.Advocate Sr.36809,36810. P.D.Common Order in W.P.Nos.506 to 508 & 591 to 593 of 2006PKB(CO)EU 29.8.2009.