JUDGMENT
1. The question, that is to be considered in this writ petition, is whether the reference made by the Deputy Commissioner of Labour by his order dated 26-2-1993, holding that there is an industrial dispute and referring the dispute to the Labour Court, was valid and legal in law?
2. The following facts would highlight the controversy :
The petition is by the Chief Executive Officer, Zilla Parishad, Chandrapur, the employer. Respondent No. 2, who was working as a Junior Assistant in the Primary Health Centre, which is run by the Zilla Parishad, Chandrapur, was proceeded against by instituting a Departmental Enquiry against him on the allegations that while discharging his duties, he committed certain misappropriations. The preliminary enquiry confirmed that there was prima facie evidence regarding the said misappropriations. Not only this, but ultimately the delinquent-respondent No. 2 admitted that he had committed those misappro priations. A full Departmental Enquiry was ordered and ultimately an Enquiry Officer held the said enquiry, recorded the evidence of the witnesses and found that respondent No. 2 had misappropriated the amounts. A report to that effect was sent. Thereafter a further show cause notice was given to respondent No. 2, along with the report of the enquiry. Again Respondent No. 2 kept quiet. Therefore, the order of dismissal come to be passed on 23-10-1990. Respondent No. 2 who was lethargic up-till now, sprang up to the action, filed an appeal under Rule 13 of the Maharashtra Zilla Parishad District Services (Discipline and Appeal) Rules, 1964. The appeal was heard by the Divisional Commissioner. The Divisional Commissioner rejected the appeal by his order dated 31-8-1991. Thereafter, respondent No. 2 moved the Assistant Labour Commissioner, complaining that his dismissal was unlawful. The Assistant Labour Commissioner invited the petitioner, Zilla Parishad, Chandrapur, and it is the say of the Zilla Parishad that all the records regarding the Departmental Enquiry, etc., as also regarding filing of appeal, were produced before the Assistant Labour Commissioner. However, the Assistant Labour Commissioner. However, the Assistant Labour Commissioner has, it seems, sent a report suggesting failure of conciliation and it seems that on that basis, the Deputy Labour Commissioner has, it seems that on that basis, the Deputy Labour Commissioner has ordered this reference. Petitioner was noticed in form IX under Rule 16 of the said Rules by the Labour Court, Chandrapur, from which the petitioner came to know about the reference, which is reference No. 5 of 1993. It is this reference which is being sought to challenged in this petition.
3. Shri Udhoji, learned counsel appearing on behalf of the petitioner, challenged the reference, firstly, on the ground that in view of the fact that the Departmental Enquiry and the Departmental Enquiry ended in the dismissal and further that the said dismissal was challenged by the employee by way of an appeal which was provided under the statutory rules, it cannot be said that there is any industrial dispute remaining. His contention is that the question as to whether the dismissal is proper or not, has been finally answered by the Divisional Commissioner in an appeal filed by the Divisional Commissioner in an appeal filed by the employee himself and as such the employee cannot now raise this by way of an industrial dispute. The second leg of the argument of the learned Counsel is that the employee had two remedies – the first being an appeal against the dismissal order in the Departmental Enquiry and the second being to approach the Labour Court. Since the employee has chosen to file an appeal, he has exhausted his alternative remedy and, therefore, now he cannot invoke the jurisdiction of the Labour Court via Section 10(1) of the Industrial Disputes Act, 1947. Shri Udhoji submitted that since the Assistant Labour Commissioner, before whom the conciliation proceedings were pending, has not taken into consideration or has not reported the facts regarding the appeal having been filed by the employee/respondent No. 2, it cannot be said that he has exercised his duty conferred upon him under Section 12(4) of the Industrial Disputes Act properly and, therefore, the order of reference itself is bad. The contentions are stoutly opposed by Shri Puranik, learned counsel appearing on behalf of respondent No. 2 as also by Shri R. C. Madkholkar, learned Assistant Government Pleader appearing on behalf of the Deputy Labour Commissioner.
4. What is an industrial dispute is fortunately not left to the imagination and is provided for by Section 2(k) of the Industrial Disputes Act, wherein it is provided that the ‘industrial dispute’ means any dispute or difference between employer and employers, or between employers and working men, or between workmen and workmen, which is connected with the employment or with the conditions of labour, of any person. The present dispute is regarding the dismissal. According to Respondent No. 2 who is a workman, the said dismissal is illegal. It is obvious that the said dismissal is ordered by the inquiry officer of the petitioner which admittedly is an industry. Therefore, there is undoubtedly a dispute between the workman and the employer regarding the employment. It, therefore cannot be said that there is no industrial dispute at all.
5. The argument of the learned Counsel for the petitioner is, however, that since Respondent No. 2 has chosen to file an appeal as providing under the rules regarding his service, the question of the dismissal and its legality has been met with finality and, therefore, there remains no dispute. Now, even if the appeal is filed, the same was filed because the rules provided for the same and it was by way of a right. Mere filing of an appeal would not bring the finality and would not end the dispute. In fact, if the workman chooses to file an appeal, even if it is a statutory appeal, he would be within his own rights to file the same. But merely because such an appeal has been filed, it could not be said that the dispute has ended once for all. In fact, the dismissal has attained the finality because of rejection of an appeal, it is really a starting point of the industrial dispute, that is when the industrial dispute would really start. It would be a variance from the logic to say that the industrial dispute has been finalised by the rejection of the appeal, when in fact, the rejection of an appeal would be a starting point of the industrial dispute. The first argument of Shri Udhoji, that there was no industrial dispute, and the said industrial dispute, therefore, could not be reffered under Section 10(1) of the Industrial Dispute Act, must therefore be replied.
6. Considering the next argument of Shri Udhoji, to the effect that once the alternative remedy is exhausted the workman would not be allowed to take up or invoke the jurisdiction of the Industrial Court. One will have to necessarily see as to whether these two are, in fact, alternative remedies. The remedy of an appeal provided against the dismissal, or any punishment for that matter, is available to all, whether the person concerned is a workman or not a workman. Now, again, in deciding the correctness or the validity of the punishment awarded, the considerations would be altogether different. Those consideration will not necessarily be the consideration which emanate from the provisions of the Industrial Jurisprudence. Even if there is some breach of some provisions, still the appellate authority under the rules, may have different considerations to deal with the appeal of an employee. The cannons of Industrial Jurisprudence would be far away and, indeed, not really relevant in deciding an appeal which is essentially of a departmental nature. On this back-drop, the remedy under the Industrial Jurisprudence is available to a workman and that too only against the management of industry. The considerations in the proceedings before the Industrial Court are strictly guided by the enactments like Industrial Disputes act and others, and the Labour Court, while examining, would be bound by these provisions of law alone and not by any other considerations which may be relevant considerations in the departmental appeals. Therefore, these two avenues are not comparable to each other. They are district and separate. They are really not alternate. The argument, therefore, of the learned Counsel for the petitioner, that these two alternate, really must fail.
7. Shri Udhoji very strongly relied upon a decision of the Supreme Court reported in Shankar Ramchandra Abhayankar v. Krishnaji Dattatraya Bapat, . The question, there was that when a party had the two remedies, viz., a writ petition under Articles 226 and 227 of the Constitution and a revision under Section 115 of the Code of Civil Procedure, and when the party had exhausted one of the remedies, i.e., whether the party would be allowed to take up the other remedy of filing a writ petition. The Supreme Court had denied such remedy. The Supreme Court went on to say in para 8 of its judgement :
“Even on the assumption that the order of the appellate Court had not merged in the order of the single Judge who had disposed of the revision petition, we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent already chosen the remedy under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions”.
There cannot be any dispute with the law laid down by the apex Court. However the situation was entirely different there. The two alternative remedies were in respect of approach to the one authority, i.e., the High Court. It was the question, whether the High Court was to be approached through a civil revision or a writ petition, and if the avenue of civil revision was closed on account of its dismissal, then after the said dismissal, whether it would be permissible for the Court to allow the party to approach it by way of an alternative avenue of writ petition. Such is not the situation here. What is being canvassed is that even if the departmental remedy is exhausted by filing an appeal, the jurisdiction of the Industrial Court would be barred. Now, in fact, in order to read such a bar, there would have to be a provision of law and, indeed, there is none either in the Industrial Disputes Act or for that matter in any other enactment.
8. An argument was tried to be supplemented by Shri Udhoji, learned counsel for the petitioner, by alleging that a party who has the remedy both under the Industrial Disputes Act and under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, he would be able to approach the Industrial Court under the Industrial Disputes Act, even if he has exhausted his remedy under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. However, this argument was answered by Shri Puranik, learned Counsel for the Respondent No. 2, by relying upon Section 59 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act which creates a specific bar. It provides that if a proceeding is entertained under one of the Acts, then no proceeding shall be entertained under the other Act. There is a complete and general bar. Indeed, if that was the intendment of the Legislature, such bar would have been found in the Industrial Disputes Act regarding the departmental appeal, but admittedly there is no such bar. Shri Udhoji wants the Court to read that bar. However, the general principles will not be of any help in reading the bar, particularly when there is no specific provision in that behalf made in the Act.
9. Shri Puranik, learned Counsel for Respondent No. 2, in support of his plea, relied upon the reported decision of the Supreme Court in Telco Convoy Drivers Mazdoor Sangh v. State of Bihar, 1989 II CLR 699. He drew my attention to the observation made in para 13, which is as under :-
“It is now well settled that, while exercising power under Section 10(1) of the Act (Industrial Disputes Act, 1947), the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the list, which would certainly be in excess of the power conferred on it by Section 10 of the Act”.
Shri Puranik, therefore, reiterates that in this case, the State Government has exercised its administrative function in referring the dispute to the Labour Court, as it was imperative for it to do so, in view of the existence of the industrial dispute and further in view of the fact that there was no conciliation between the employer and the employee.
10. Shri R. C. Madkholkar, learned Assistant Government Pleader appearing on behalf of the Deputy Labour Commissioner, has forcefully argued that there was no question of making any reference, particularly because there, indeed, was an industrial dispute and the said industrial dispute could not be resolved through the conciliation. Shri Madkholkar has supported his argument by reference to a reported ‘decision of the Supreme Court in Shambu Nath Goyal v. Bank of Baroda, (1978) 2 SSC 353, where the Supreme Court has held that where there is a dispute or difference between the parties contemplated by the definition, and the dispute of difference is connected with the employment or non-employment or the terms of employment, there is a power conferred by Section 10(1) of the Industrial Disputes Act on the Government to refer the dispute not only when it really exists but also when it is already apprehended. Here also the Supreme Court has labelled this decision as an administrative decision. The Supreme Court has also passed a word of caution, therefore, that the Court cannot canvass the order of reference closely to see if there was any material before the Government to supports its conclusion, as if it was a judicial or quasi judicial determination. The Supreme Court further goes on to say that the factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on which it could have come to an affirmative conclusion of those matter. The issue is really clinched here. It will have, therefore to be held that the respondent No. 1 Deputy Labour Commissioner was competent and right in making a reference as he did, and referring it to the Labour Court.
11. In the result, the petition is devoid of any merits and will have to be dismissed and is accordingly ordered to be dismissed. However, in the circumstances of the case, there shall be no order as to the costs.