ORDER
N.P. Chapalgaonker, J.
1. On 4-6-1996, a notice of demand purporting to be under section 2-A of the industrial Disputes Act, 1947 was submitted by the present petitioner to the Executive Engineer, Ahmednagar Irrigation Division, Ahmednagar. It was contended that the applicant was working from 1-4-1979 to 31-7-1981 as a daily wager employee and was terminated with effect from 1-8-1981 illegally. After receiving a copy of this notice on demand, the Conciliation Officer – Assistant Commissioner of Labour, Savedi Road, Ahmednagar intimated to the petitioner by communication dated 25-7-1996 that the demand notice was made 15 years after act complained and since no justifiable reason for this delay is made out, Conciliation Officer does not wish to conciliate in the alleged dispute. This order has been challenged in this writ petition.
2. Shri S.K. Shelke, learned Counsel for the petitioner contended that the Conciliation Officer acting under section 12 of the Industrial Disputes Act, 1947 cannot adjudicate upon the merits of the industrial dispute as he is not a Court and, therefore, cannot refuse to conciliate merely on the ground of delay. In support of his contention, he relied on the judgment of Karnataka High Court in Gurumurthy v. State of Kamataka, 1995(1) C.L.R. 309 wherein the Government’s order refusing to make reference on the ground of delay of six years passed under section 10(1) of the Industrial Disputes Act, 1947 was set aside and the Government was directed to reconsider the matter. However, this case does not lay down a proposition that the discretion vested in the Conciliation Officer under section 12 is in effect not in existence. Shri Shelke also relied on the judgment of the Supreme Court in the matter of Officer on Special Duty (Land Acquisition) and another v. Shah Manilal Chandulal and others, , wherein Supreme Court has held that the Collector/ Land Acquisition Officer while making a reference under section 18(1) acts as a statutory authority and is not a Court and, therefore, has no jurisdiction to condone the delay under section 5 of the Limitation Act.
3. Industrial Disputes Act provides three separate machineries to have the points of difference between the employees and employers settled. Section 3 of the Act provides for the establishment of the Works Committee in the industrial establishment where one hundred or more workmen are employed. The Works Committees are expected to discuss the matters of common interest and to compose any material
difference of opinion in respect of such matters. Petty matters which could have given rise to an industrial dispute can well be settled through such dialogue in the Works Committee. Second machinery is of the Conciliation Officer and Boards of Conciliation which are established under sections 4 and 5. The Conciliation Officers or the Boards of Conciliation are not expected to adjudicate upon industrial dispute but are given a duty to conciliate for promoting settlement of an industrial dispute. The third machinery is adjudicating one. It consists of Courts of Inquiry, Labour Courts and Industrial Tribunals. This has been provided by section 6 to section 7B. There is material difference between the conciliatory proceedings and adjudicatory proceedings. The authorities which are required to adjudicate would be performing a judicial or quasi judicial function, whereas the conciliatory machinery is to try the amicable settlement before a dispute is referred or filed for adjudication and would be performing administrative function.
4. The duties of the Conciliation Officer have been denned in section 12 of the Act and it is laid down that he shall for the purpose of bringing about a settlement of the dispute without delay investigate the dispute and a” matters affecting the merits and 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. Therefore, the function of Conciliation Officer though not adjudicatory is not that of a clerical nature. He is not duty bound to conciliate and make a report in all cases. It is only obligatory on the part of Conciliation Officer to hold conciliation proceeding if the dispute relates to public utility service and a notice under section 22 has been given. If the dispute does not relate to a public utility service or though it relates to such service, no notice under section 22 has been given, then discretion is vested in the Conciliation Officer whether to conciliate or not. The Division Bench of this Court Mudholkar and Shah, JJ., in East Asiatic and Allied Companies, Bombay v. Shelke B.L., 1961 L.L.J. 162 rejected the argument that the word ‘may’ occuring in sub-section (1) of section 12 should be construed to mean ‘shall’. The Division Bench observed-
“Here, the legislature has clearly drawn e, line of distinction between what is made obligatory by it and what is made discretionary. Such being the position, we have no doubt that the learned Single Judge was right in holding that the conciliation officer had, in this matter, a discretion whether to enter upon conciliation or not.”
It is true that such a discretion cannot be exercised arbitrarily or capriciously. Function of the Conciliation Officer as specified in section 12 and other provisions of the Industrial Disputes Act, 1947 requires application of mind by the Conciliation Officer to the material facts and then take a decision whether he should conciliate. Even if there is no statutory obligation as pointed out above, normally, the Conciliation Officer should not refuse to conciliate because it would frustrate the very purpose of creating this machinery. But cases may arise where something is dug out after many years just to harass the other party or there may not be any industrial dispute at all and one may be convinced that this is nothing but abuse of process and in such case, Conciliation Officer would be justified in refusing to conciliate. Thousands of industrial disputes are still waiting in queue for conciliation and adjudication. Therefore, abusing time of such machinery has to be prevented in the interest of other genuine disputes which can be dealt with in that time.
5. It is true that there is no limitation prescribed either for making demand under section 2A or for making a reference under section 10 and, therefore , it would not be proper to reject the prayer for conciliation merely on the “ground that there is some delay. The fact that there is no time limit prescribed under section 2A or under section
12 of the Industrial Disputes Act was taken a note of by the learned Single Judge of this Court in Abdul Khalil Sk. Bhuru v. Deputy Commissioner of Labour, Nagpur and others, and the Conciliation Officer, Chandrapur was directed to investigate into the industrial dispute raised by workmen in his application on merits. When the statute provides for specific period of limitation, it would be appropriate for the Court to consider whether the remedy has been resorted to within the period of limitation or just cause has been made out for condonation of delay, if such condonation is permissible. However, the Conciliation Officer is not a Court and there is no limitation prescribed by the statute. Therefore, it would not be proper for such an officer to refuse to conciliate merely on the ground of delay. In the instant case. I find that a cyclostyled form appears to have been prepared for refusing to conciliate in matters where there is delay. I find that the name of the petitioner and number of years of delay are filled in by ink and the rest of the part is typed one. It, therefore, follows that the Conciliation Officer has not considered anything-else other than the point of delay. This was not really permissible. As already pointed out, there is wider discretion to the Conciliation Officer to refuse to conciliate if the dispute does not relate to public utility service and a notice under section 22 has not been served. There is nothing in the law which makes it obligatory to the Conciliation Officer to conciliate in each and every matter brought before him. Delay in all cases can never be a technical hurdle before the Conciliation Officer since there is no time limit prescribed. If on proper application of mind to all relevant facts, the Conciliation Officer is satisfied that he need not conciliate in the matter, he has every right to refuse to conciliate. In the instant case, 1 do not find that all the relevant factors have been taken into consideration by the Conciliation Officer. Therefore, I strike down the communication dated 26-8-1996 refusing to conciliate in the alleged industrial dispute raised by demand under section 2A by present petitioner and direct the respondent No. 1 to reconsider the matter in the light of the above observations. Petitioner to appear before the Conciliation Officer on 25th August 1997 and he may dispose of the matter as early as possible. Rule absolute to the above extent. No costs.
6. Petition allowed.