CONSTITUTIONAL WRIT JURISDICTION v. State of West Bengal & Ors.

notification is ex facie arbitrary, illegal, unreasonable and has been issued in colourable exercise of power. In support of such contentions, reliance is placed on the decisions in Asha Sharma vs. Chandigarh Administration & Anr. (2011) 10 SCC 86, M.P. Power Management Company Limited, Jabalpur vs. SKY Power Southeast Solar India Private Limited & Ors.(2023) 2 SCC 703, Titaghar Paper Mills Company Ltd. vs. 1st Industrial Tribunal, West Bengal & Ors.1982 Lab IC 307 and Union of India & Anr. vs. Ashok Kumar Aggarwal (2013) 16 SCC 147.

4. On behalf of the State respondents, it is submitted that the petitioners have no locus to challenge the impugned notification. The petitioners claim to be a Trade Union representing the cause of workmen in the Haldia and Kolaghat 4 Industrial Area of Purba Medinipur and are affiliated to a rival political party. There is nothing to suggest that any of the members of the petitioner have been affected by the impugned notification. Neither does the impugned notification threaten the rights of the workers to agitate their grievances. The primary objective of the impugned notification is to aid in the recruitment process. The impugned notification has been issued to maintain transparency in the process of recruitment in private establishment and also assists in the working of the portal created by the State namely Karma Sanghabad. Initially, the notification was caused to be published as a pilot notification. Thereafter, different notifications for the entire State have been issued by the respondent State. On a combined reading of the different provisions of the Act, the participatory role of the State in employee welfare under the Act is recognized. In such view of the matter, the writ petition has no merit and is liable to be dismissed.

5. For convenience, the relevant provisions of the Act and Rules are set out hereinbelow: Section 2(k) “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person; Section 2[(p): “settlement” means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to 5 [an officer authorised in this behalf by] the appropriate Government and the conciliation officer;] Section 3:Works Committee.—(1) In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the 5 prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Unions Act, 1926 (16 of 1926). Section 4:Conciliation officers.—(1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes. (2) A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period. Section 10: Reference of disputes to Boards, Courts or Tribunals.—(1) 1 [Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing,— (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or 2 [(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication: Section 12:Duties of conciliation officers.—(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government 2 [or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, 3 [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. (6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: Section 18. Persons on whom settlements and awards are binding.— [(1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. (2)[Subject to the provisions of sub-section (3), an arbitration award] which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.] [(3)] A settlement arrived at in the course of conciliation proceedings under this Act [or an arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on— 6 (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, [arbitrator,] [Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were so summoned without proper cause; (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.

6. A plain reading of the impugned notification suggests that the same has been issued with the object of streamlining the recruitment and engagement process of employees in different industrial establishments in a particular locality with the alleged aim of maintaining industrial peace and harmony through settlement and finalization of the Charter of demands. By the notification, a Committee comprising of the following members has been constituted in the Haldia and Kolaghat Industrial area of Purba Medinipur and Kharagpur Industrial area of Paschim Medinipur Body Industrial Areas comprising of the following: a. District Magistrate b. Deputy Labour Commissioner/Assistant Labour Commissioner c. Representative from Directorate of Employment d. Factory Inspector e. Representatives of “concerned management” (unidentified) f. Chairman, Haldia Development Authority g. SDO, Haldia [(f) and (g) for Haldia and Kolaghat Industrial area] The functions of the Committee are to allegedly maintain and supervise recruitment of contractual and permanent workers in every industrial establishment and prohibit recruitment if it takes place without the knowledge of the Committee.

7. Section 4 of the Act provides for appointment of Conciliation Officers in 7 various areas and types of industries. There is also a provision for Works Committee to settle disputes which operates only at a bilateral level contrary to the tripartite arrangement which the notification aims to achieve and promote. It is true that section 10 of the Act authorizes the State to ascertain the existence or apprehension of an industrial dispute and upon ascertaining such disputes follow the mechanism stipulated under the Act. However, this procedure has not been adhered to in the impugned notification. Section 12 of the Act enumerates the duties of a Conciliation Officer which assists parties to arrive at a settlement. The Act expressly encourages bilateral settlement instead of escalating every situation into a tripartite level. The duty to conciliate and the powers of the Conciliation Officers under the Act cannot be encroached upon through any extraneous Committee at the instance of the State. The conciliatory machinery contemplated under the Act cannot be circumvented in such a circuitous manner. It is apparent that by way of the impugned notification, the State is trying to arbitrarily regulate employment and in doing so is in violation of the legislative mandate under the Act. The impugned notification is in violation and ultra vires the provisions of the Act. The involvement of the State machinery in the form of high ranking officials for the purpose of settling every industrial dispute is unnecessary and is also a wastage of administrative machinery and resources. In every dispute between a master and servant, the State need not become necessarily involved. Nor is conciliation a pre-condition to a reference under the Act (Titaghur Paper 8 Mills Company Ltd. vs. 1st Industrial Tribunal, West Bengal and others 1982 Lab IC 307). It is obvious that by the notification, the State is aiming at indirect control of employment in private trade and industry. Significantly, there is no representation of employees or workmen in the proposed Committee under the impugned notification. The principal object of the notification is that no recruitment can take place without the knowledge of the Committee and this per se is excessive and disproportionate. The Act enumerates the supervision and role of the State Government in employee welfare. In the light of the existing and prevalent position, the impugned notification is unnecessary, unreasonable, excessive and without any rational basis. In the garb of getting a foothold, the State may ultimately strangulate industry and this is an unreasonable restriction on the guarantee enshrined under Article 19(1(g) of the Constitution. The long term effect of such measures may end up causing incalculable damage to industry and commerce. The real danger lies in the uncanalised, unguided and unfettered discretion which is sought to be vested with the State insofar as employee recruitment is concerned and the far reaching ramifications of the impugned notification which makes it unconstitutional and violative of Articles 14 and 19(1)(g).

8. The impugned notification does not supplement the existing mechanism contemplated under the Act or the Rules framed thereunder but is an attempt to supplant the same. The impugned notification is also an encroachment on an already occupied legislative field and in conflict with the same. It is well 9 settled that executive instructions can only be issued to supplement the law and not to supplant the same. In Union of India & Anr. vs. Ashok Kumar Agarwal (Supra), it has been held as follows:

59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of India v. Majji Jangamayya [(1977) 1 SCC 606 : 1977 SCC (L&S) 191] , P.D. Aggarwal v. State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v. Union of India