Binod Kumar, aged about 55 years, Son of Rajendra Prasad, Resident of Village Chouriya v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 5073 of 2023 Binod Kumar, aged about 55 years, Son of Rajendra Prasad, Resident of Village Chouriya, P.O. Sosandi, P.S. Harnout, District Nalanda (Bihar) at present residing of Qr. No. S.F.-03/30, Baradwari Supervisor Flat, Sakchi, P.O. & P.S. Sakchi, District East Singhbhum at Jamshedpur Versus … … Petitioner 1. The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Jharkhand Mantralaya, Project Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi 2. M/s Tata Steel Limited through its Managing Director, Bistupur, P.O. & P.S. Bistupur, District East Singhbhum at Jamshedpur 3. Managing Director, Tata Steel Limited, Bistupur, P.O. & P.S. Bistupur, … … Respondents District East Singhbhum at Jamshedpur CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondents 05/11th June 2024 --- ---
Legal Reasoning
: Mr. Yogendra Prasad, Advocate : Mr. Manish Mishra, Advocate Mr. Raunak Sahay, Advocate 1. 2. Learned counsel for the parties are present. Learned counsel for the petitioner submits that the matter arises out of dismissal of the petitioner and the learned Labour Court had framed numerous issues at Paragraph no. 5 of the award including the issue as to whether the case was properly instituted under Section 10 of the Industrial Disputes Act, 1947. 3. The learned counsel submits that the impugned order itself indicates in Paragraph no. – 16 that initially the dispute was raised before the Deputy Labour Commissioner, Jamshedpur who issued a letter dated 15.06.2016 indicating that the management was not interested in any conciliation proceeding and he himself indicated that the workman could raise the dispute directly before the Competent Court under Industrial Disputes Act,1947. 1 4. Learned counsel further submits that thereafter the petitioner raised the dispute before the learned Labour Court under Industrial Disputes Act but by the impugned order the case has been held to be not maintainable on account of absence of proper notification/ reference from the appropriate government. 5. The learned counsel has referred to Section 2A (2) of the Industrial Disputes Act and has submitted that the workman could make an application directly before the learned Labour Court if he had made an application before the Conciliation Officer and 45 days have elapsed and there was no need to have a reference by the appropriate government for adjudication of dispute arising out of an order of discharge. 6. Learned counsel appearing on behalf of the respondents has opposed the prayer of the petitioner and has submitted that since the reference was not made by the State Government, the learned Labour Court could not have entertained the petition filed by the petitioner. 7. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this court finds that the dispute arose out of discharge of the petitioner. It further appears that the case was instituted before the learned Labour Court, Jamshedpur on an application filed by the petitioner in his individual capacity challenging the order of discharge and seeking reinstatement. The records reveal that an objection was raised by the Management in the written statement that the petitioner was working in managerial and supervisory capacity. However, no objection was raised with regard to the manner in which the dispute was raised before the learned Labour Court. It further appears from the records that the parties had participated in the proceedings, written statement was filed by both the parties and following issues were framed for consideration: - “5. On rival pleadings of the parties following issues appear to be appropriate for just decision of the case……. 1) “Whether the applicant is entitled to get relief as asked for from the O.P./Management?” 2) “Whether this case is properly instituted u/s 10 of I.D. Act?” 3) “Whether this case is barred by any law?” 4) “Whether domestic enquiry conducted in a just, fair and proper manner?” 2 5) “Whether Ld. Counsel for the management appeared through proper authority?” 8. It further appears that on the point of validity and fairness of domestic enquiry, the Management had examined two witnesses and a large number of documents were filed by the Management which were exhibited. On the other hand, the workman had examined two witnesses and on behalf of the workman also, large number of documents were exhibited. 9. The impugned judgment further revealed that during the course of argument, on the point of validity and fairness of domestic enquiry, the learned counsel who was appearing on behalf of the applicant had submitted that first of all the order was to be passed regarding the power of attorney and Vakalatnama filed by the counsel for the opposite party No. 1 i.e. the Management and on the other hand, the counsel for the Management had submitted that the case was not maintainable before the Court under Section 10/2 and 2A of the Industrial Disputes Act, 1947 and the Court had no inherent jurisdiction to decide the case and a prayer was made to dismiss the case only on this point. It was at the stage of considering the validity and fairness of the domestic enquiry that the point regarding the jurisdiction of the learned Labour Court was raised and the learned Court considered this aspect of the matter and held that the case itself was not maintainable as no reference was made by the State Government for adjudication of dispute. 10. This Court finds from the impugned order that the case was instituted by the workman in his individual capacity on the basis of letter No. 1571 dated 15.06.2016 issued by the Deputy Labour Commissioner, Jamshedpur which mentioned that in spite of issuance of letters to the Management, the Management did not respond for conciliation proceedings and rather they had issued a letter dated 02.05.2016 that the Management does not want to participate and ultimately the said authority had observed that the dispute could be raised under the aforesaid Act of 1947 as amended in 2010. 11. This Court further finds that the learned Court has dismissed the petition filed by the petitioner on the ground that the Court had no jurisdiction to entertain the application filed under clause (C) of sub-Section 1 and sub- 3 Section 2A of Section 10 and 12 of the aforesaid Act of 1947 directly by the workman without appropriate notification by the Government. 12. Section 2A of the Industrial Disputes Act, 1947 reads as under: - “[2-A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.-- [(1)]Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.] [(2)Notwithstanding anything contained in section l0, any such workman as is specified in sub-section (1)may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government. (3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in subsection (1).]” 13. Upon perusal of the aforesaid provision, it is clear that where an employer discharges, dismisses, retrenches, or otherwise terminates the services of individual workman, any dispute or difference arising between the workman and his employer connected with or arising out of such action is deemed to be an industrial dispute irrespective of the fact as to whether the Union is a party to the dispute or not. It further provides under sub-Section 2 that notwithstanding anything contained in Section 10 any such workman who is covered under in sub-section (1) may, make an application directly to the Labour Court or Tribunal for adjudication of the dispute referred therein after the expiry of forty-five days from the date he made an application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the 4 provisions of the Act of 1947 and all the provisions of the Act shall apply in relation to such adjudication. 14. This Court finds that while holding that the case was not maintainable at the instance of the petitioner, the learned Labour Court erred and failed to take Section 2A of the aforesaid Act of 1947 into consideration. Rather the Court was referring to sub-Section (2) of section 10 and sub-section 2-A of section 10 of the aforesaid Act of 1947 to hold that the dispute could not be raised directly by the workman without any notification by the state government . 15. From perusal of the letter of the Deputy Labour Commissioner, Jamshedpur, it was clear that the required procedure in terms of Section 2A (2) has been duly followed by the petitioner and only when the Management did not participate in the conciliation proceedings, the petitioner had no option but to directly move the Labour Court for adjudication of the dispute in terms of the sub-section (2) of section 2A. 16. In view of the aforesaid facts and circumstances, this Court is of the considered view that the impugned order holding that the case filed by the petitioner was not maintainable is perverse and cannot be sustained in the eyes of law. 17. It appears from paragraph 11 of the impugned order that the arguments was first taken up on the point of validity and fairness of the domestic enquiry but in the midst of the proceedings, the aforesaid issue regarding the maintainability of the case at the instance of the petitioner was raised and was rejected. 18. In view of the aforesaid findings that the case has been wrongly held to be not maintainable at the instance of the workman, this Court finds that the matter is required to be taken up by the learned Labour Court in accordance with law treating the dispute as industrial dispute. 19. Accordingly, the impugned judgment and award dated 23.06.2023 is set- aside. 20. The matter is remanded to the learned Labour Court for deciding the case in accordance with law. 5 21. The parties to appear before the learned Labour Court on 08.07.2024 and the learned Labour Court is directed to make all endeavour for expeditious disposal of the case. 22. This writ petition is accordingly disposed of with the aforesaid observations and directions. 23. Pending I.A., if any, is closed. 24. Let a copy of this order be communicated to the court concerned through ‘e-mail/FAX’. Mukul (Anubha Rawat Choudhary, J.) 6