JUDGMENT
Ashim Kumar Banerjee, J.
1. Since both the appeals involve identical questions of fact and law, we intend to dispose of both the appeals by this common judgment.
2. One Sri Sukumal Ghosh (FMA No. 419 of 2002) and Sri Kalidas Paul (FMA No. 420 of 2002) both workmen of the appellant were retrenched by the appellant with effect from September 5, 1997 and December 29, 1997 respectively. The appellant thereafter intimated the concerned authority about such retrenchment in accordance with the provisions of Industrial Disputes Act, 1947 (hereinafter referred to as ‘the said Act of 1947’). The appropriate authority thereafter initiated the conciliation proceedings.
3. During the pendency of the conciliation proceedings, both the workmen approached the Labour Tribunal directly under the provisions of Section 10(1B) of the said Act of 1947 after obtaining necessary certificate from the concerned authority.
4. During the pendency of the proceeding before the Labour Tribunal, the workmen applied for withdrawal of the said case with liberty to them to proceed with the conciliation proceeding. The appellant raised an objection to such prayer for withdrawal on the ground that a reference under Section 10 of the said Act of 1947 could not be withdrawn and the Tribunal had no power to allow the workmen to go before the Conciliation Officer afresh.
5. After considering the rival contentions, the Tribunal by its order dated April 22, 1999 allowed the application of the workmen and the said proceedings were dropped with liberty to the concerned workmen to approach the Conciliation Officer for taking further steps as necessary. An application for review was made by the appellant, which was also dismissed by the Tribunal on June 11, 1999. The concerned workmen went back to the Conciliation Officer and once again tried for conciliation.
6. Unfortunately the conciliation could not succeed. As a result, the appropriate Governmental authority made a reference before the Tribunal under Section 10 of the said Act of 1947. The proceedings before the Tribunal started de novo.
7. We are told that the proceedings are still pending before the Tribunal and the cross-examination of the rival witnesses have been completed. The Tribunal is yet to pass the final award, however, the same was restrained by an order of this Court in the present appeal.
8. The appellant company accepted the order of review and proceeded with the conciliation proceeding and thereafter the proceeding before the Tribunal.
9. While the proceeding was going on before the Tribunal, the appellant company in November, 2000 filed the instant writ petition, inter alia, praying for quashing the impugned order of reference made by the appropriate Governmental authority under Section 10 of the said Act of 1947.
10. It was contended on behalf of the appellant, in the said writ petition, that once the workmen opted to approach the Tribunal independently and had withdrawn the same, the Government had no authority to make any reference under Section 10 of the said Act of 1947.
11. To appreciate the problem in hand, we would refer to Section 10 of the said Act of 1947 and its West Bengal Amendment being Section 10(1B).
12. Under Section 10 of the said Act of 1947, the appropriate Government is empowered to refer an Industrial Dispute to the appropriate Labour Court or Tribunal for adjudication of the said dispute. Once an Industrial Dispute is raised under the said Act of 1947 the appropriate Governmental authority is to start conciliation process between the establishment and the concerned workmen or the Union, as the case may be. If the result of such conciliation is not fruitful, in such event appropriate authority is empowered to refer such dispute for adjudication before the Labour Court or the Tribunal set up for the said purpose.
13. In addition to the aforesaid provision, by way of West Bengal Amendment, individual workman has been given an opportunity to approach the Labour Court or the Tribunal directly with a proper certificate from the Conciliation Officer as to the pendency of the conciliation proceeding. This amendment is in addition to the original provision under Section 10 stipulated in the Central Act.
14. In the instant case when the conciliation proceeding was pending, the concerned workmen by virtue of provisions of Section 10(1B) approached the Tribunal after obtaining appropriate certificate of pendency of the conciliation proceeding. The concerned workmen, thereafter, opted to withdraw such proceeding with specific liberty asked for to go back to the original conciliation proceeding. The Tribunal allowed such prayer with specific liberty given to the workmen to go back to the Conciliation Officer. The appellant company accepted such position after the dismissal of their review petition and allowed the Government to start the conciliation proceeding de novo. Even after the reference was made to the Tribunal, the appellant company participated in such process and in the midst of the said proceeding approached this Court for quashing the order of reference.
15. Mr. Trivedi, learned Counsel appearing for the appellant, contended that the workmen were not entitled to proceed simultaneously with the two avenues given under the said Act of 1947. Once they withdrew from the proceeding initiated under Section 10(1B), they were not entitled to participate in the said conciliation proceeding and the Government was not entitled to issue any order of reference under Section 10. In the alternative, Mr. Trivedi contended that the reference either under Section 10 or under Section 10(1B) could not be withdrawn and once such reference was made to the Tribunal, Tribunal was only entitled to adjudicate the dispute and nothing else. The Tribunal had no power to allow one party to withdraw the proceeding initiated by him.
16. In support of this contention Mr. Trivedi cited the following decisions:
Framing of Issue
(1) Framing of issue in a biased manner is not permissible.
Secretary (Policy) Regional Director (Food) Employees’ Association v. Food Corporation of India and Ors. reported in 2001 VoL. 1 Labour Law Journal, page 203.
(2) Issue framed by the Government not reflecting the contention of the employer is bad in law. Issue framed without any application of mind is bad in law.
Aajkal Publishers Private Ltd., reported in 1992 Vol.1 CHN page 21.
3. Framing of issue with a biased and closed mind is mala fide and bad in law. Ushodays Publications Pvt., reported in 1983 LAB I.C. 580.
Nullity.
The second reference is a nullity and no award can be published under the second reference.
Jurisdiction of the Tribunal
Tribunal has no jurisdiction to refuse adjudication.
Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd. and Anr., reported in 1983 LAB I.C, page 1964.
Bharat Bank Ltd, Delhi, reported in 1950 Vol. 2 Labour Law Journal Page 921.
Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors., reported in 1981 Vol. 1 Labour Law Journal, page 327
Scope of reference before the Tribunal.
State of Bihar v. Ganguli (D.N.) and Ors., reported in 1958 Vol. 2 Labour Law Journal page 634.
Withdrawal of the original reference
The Government once referred the dispute to the Tribunal has no power to withdraw the same.
In re: Workers of Thambi Motor Service, reported in 1963 Vol. 1 Labour Law Journal 497.
In re: Kesoram Cotton Mills, Ltd.. reported in 1963 Vol. 1 Labour Law Journal 169.
Applicability of principles of resjudicata in Industrial Dispute
Virendra Bhandari v. Rajasthan State Road Transport Corporation and Ors., reported in 2001 Vol.1 Labour Law Journal, page 396. Rohtas Industries Mazdoor Sangh and Anr. v. State of Bihar and Ors., reported in 1974 LAB I.C. 1266.
17. Mr. Chakroborty, learned Counsel appearing for the respondent, contended that the proceeding earlier initiated by the workmen as under Section 10(1B) and the reference subsequently made by the appropriate Government under Section 10 were two different matters and the principles of res judicata had no application in the instant case. He further contended that once the proceeding was withdrawn with a specific liberty to go back to the original conciliation proceedings, the reference made by the appropriate Government was legal and valid. He lastly contended that the appellant accepted the order of withdrawal, participated in the reference made by the appropriate Government and hence was not entitled to apply for quashing the said reference at a belated stage.
18. In support of his contention Mr. Chakraborty placed reliance on the decision of the Apex Court in the case of Jai Bhagwan (supra) and also the decision reported in the case of Good Year India Ltd. v. Industrial Tribunal Rajasthan, Jaipur and Ors., .
19. Cases cited by the appellant as referred to above derive well-settled principles of law, applicability whereof in the instant case is, however, in doubt. On a plain reading of Section 10 of the said Act of 1947 and the framework of the said Act lays down the procedure for resolving an Industrial Dispute. If an Industrial Dispute is raised, the same has to canalize from the appropriate Government. Once an Industrial Dispute is raised, it has to go through the process of conciliation to be conducted by the Conciliation Officer appointed by the Government. Once the conciliation fails the appropriate Government is to refer such dispute for adjudication before the Labour Court or the Tribunal, as the case may be. Hence from the frame of the Act, like ordinary litigant, one . cannot approach the Court of Law directly without having a conciliation proceeding conducted by the appropriate Government for resolving an Industrial Dispute within the meaning of the said Act of 1947.
20. By way of West Bengal Amendment, additional opportunity has been given to an individual worker to approach the Tribunal directly in addition to the procedure laid down under Section 10 upon a certificate being obtained from the appropriate authority about the pendency of the conciliation proceeding. Hence in West Bengal two avenues are available in resolving an Industrial Dispute, one through the Governmental authority under Section 10 and the other by an individual approach made to the Labour Court under Section 10(1B). Section 10(1B) is thus an additional avenue and is not supplemental and/or substitution of the original provision under Section 10.
21. On a plain reading of the section, it appears that once an Industrial Dispute is raised and the same is unable to be resolved through conciliation, the Government is not entitled to refer the dispute to the appropriate Labour Court or the Tribunal as a matter of course, it has to form an opinion that such dispute is liable to be resolved through Labour Court or Tribunal and then the reference is made under Section 10 of the Labour Court or the Tribunal. In the process of forming such opinion by the Government, the concerned workman has no role to play. The Government may or may not refer the dispute to the Tribunal after forming their opinion about the same. In case of an individual approach under Section 10(1B), the forming of opinion of the Government is not at all relevant, what is required is a certificate certifying the pendency of the conciliation proceeding. Hence, if a workman, to expedite adjudication, feels that he should proceed individually by virtue of Section 10(1B), he is entitled to do the same. Similarly when he withdraws the said proceeding opting to go to the Conciliation Officer, he would be free to do so. If he comes again under Section 10(1B), that might be hit by the principles of resjudicata. In a subsequent reference under Section 10 by the appropriate Government after forming opinion in such circumstances cannot held to be hit by the principles of resjudicata as this is an independent proceeding initiated at the instance of the Government and not by the workmen. Hence the contention of the appellant that the reference was illegal in view of the order of withdrawal of the original proceeding under Section 10(1B), is not tenable and is rejected.
22. The other contention of the appellant to the effect that the Tribunal had no power to allow withdrawal of the proceeding without having proper adjudication is also not tenable. The cases cited by the appellant would show that those references were under Section 10 and not under Section 10(1B). The individual approach by a workman under Section 10(1B) cannot be said to be a reference within the meaning of the said Act of 1947. It was an additional avenue given to the workmen by the West Bengal Amendment and that at best could be termed as a proceeding initiated by an individual. If an individual is entitled to initiate a proceeding we do not find any reason why he cannot withdraw the same. Hence, Tribunal was right in allowing the workmen to withdraw their proceeding initiated under Section 10. Similarly, if the proceeding under Section 10(1B) is withdrawn, it does not pre-suppose that the original conciliation proceeding initiated by the Government is dropped. A conciliation proceeding is deemed to have been concluded once a settlement is arrived at or a reference is made by the Government under Section 10. In the instant case, the conciliation proceeding, which was kept in abeyance for some time in view of the application made by the concerned workmen under Section 10(1B) was concluded when a reference was made by the Government under Section 10. Hence, the submission or contention of the appellant on the other score being, not tenable is rejected.
23. Since we have just now held that the reference made under Section 10 was proper we need not dilate on the other issue raised by the parties and we refrain from making any comment on the same.
24. In the result the appeals fail and are hereby dismissed. The concerned Tribunal is free to publish its award in accordance with law.
25. There would be, however, no order as to costs.
26. Let xerox certified copy, if applied for, be given to the parties expeditiously.
Ashok Kumar Mathur, C.J.
27. I agree.