JUDGMENT
Vijay Daga, J.
1. We have heard the learned counsel for the parties. Rule returnable forthwith. Respondents waive service. By consent petition is taken up for
hearing.
2. This petition is directed against the decision of the Government Labour Officer, Thane refusing to forward failure report to the State Government and/or its delegates under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 (“the Act” for short).
3. The brief facts are as under:
The petitioner was employed by respondent No. 4 as Store Keeper in the year 1992. The petitioner worked in the said capacity till he was terminated on June 30, 1997 upon shifting of the factory to Kandla. The petitioner stated that he was directed to work as Store Keeper in the establishment of respondent No. 3, while his name was shown on the roll of respondent No. 4. The petitioner continued to work as such. He was relieved from respondent No. 4 from June 30, 1997 and was thereafter taken on rolls of respondent No. 3 -a sister concern of respondent
No. 4 with effect from July 1, 1997. The respondent No. 3 was established and commenced its business from the premises of respondent No. 4. The nature of work performed by the petitioner in respondent No. 3 company was the same i.e. of the Store Keeper. It is the case of the petitioner that respondent No. 3 issued letter of appointment dated July 1, 1997 to the petitioner designating him as Manager (Administration). The petitioner submitted that though his designation was Manager (Administration), he was made to discharge his duties which are mainly that of clerical nature. In the wake of these facts, the petitioner submitted that the duties performed by him could not be termed as managerial, administrative or supervisory.
4. The petitioner further contended that upon resuming work in respondent No. 3 company, he was placed in the Stores Department and his main work comprised of preparation of notes of goods received and return of material. He was maintaining stock card, inward registers, job work party register. He was to prepare job work statement, monthly stock checking, monthly job work, party stock statements and used to prepare material procurement card, purchase requisitions, etc. In nut shell, the petitioner submitted that though he was appointed as Manager in the respondent company, he was performing work which was mainly of clerical in nature and to some extent operational. It is the case of the petitioner that his attempt to bring to the notice of the Director of respondent No. 3 company the malpractices and illegalities prevailing in the company resulted in punishing the petitioner and denying annual increment right from 1998. The petitioner, thereafter, noticed change in attitude of the management and suffered by vindictive and punitive approach adopted by respondent No. 3, as such, material leading to the adverse treatment given to the petitioner was also brought on record of the conciliation officer.
5. The aforesaid rigmarole which the petitioner was required to face, ultimately, resulted in termination of his services by letter dated May 24, 1999 and he was asked to collect all his legal dues.
6. Being aggrieved by the order of termination, the petitioner invoked machinery constituted under the Act and submitted demand letter dated June 2, 1999 demanding reinstatement in service with full back wages together with continuity of service and all consequential benefits with effect from May 24, 1999.
7. In spite of the aforesaid demand, there . was no response from the employer. However, the petitioner forwarded his justification statement dated August 17, 1999 narrating all the facts to the Deputy Commissioner of Labour, Thane.
8. The Government Labour Officer, Thane appears to have taken cognizance of the demand and the justification statement treating it as an individual dispute under Section 2-A of the Act and issued notice calling upon both the parties for preliminary discussion. The petitioner attended meetings on various dates and appeared before the Government Labour Officer, Thane from time to time as and when he was asked to appear before him. The representative of respondent No. 3 also appeared on one or two dates and placed its submission before the said Government Labour Officer.
9. The Government Labour Officer by his letter dated February 28, 2000 informed the petitioner that he does not fall under the category of Workman as defined under Section 2(s) of the Act and closed the said case. However, it appears from the averments made in the petition that the said Government Labour Officer did not forward this letter and/or his report to the appropriate Government. It further appears that he unilaterally took decision to close the said complaint. The aforesaid action of the Government Labour Officer is the subject matter of this petition.
10. The learned counsel appearing for the petitioner submitted that the question whether the petitioner was a workman was a disputed question of fact and can be decided only by the Industrial Tribunal and not by the Government Labour Officer. It was thus obligatory on the part of the Government Labour Officer to submit his report to respondent No. 1 or 2 so as to enable
them to refer the dispute, to the appropriate Court for decision in accordance with law. The learned counsel appearing for the petitioner relied upon the judgment of the Apex Court in Ahad Dairy Dudh Vitaran Kendra Sanchalak Mandalv. AbadDairy & Others, 1993-III-LLJ (Suppl)-855, wherein it is observed as follows:
“Having regard to the facts and voluminous evidence sought to be adduced by both parties, the question whether the appellants are workmen requires detailed investigation of facts. The issue requires detailed examination and can be satisfactorily adjudicated upon only by a Tribunal.”
The learned counsel also placed reliance on the judgment of this Court in Rohintan P. Daruwalla v. Dy. Commissioner of Labour (Conciliation), 1994-III-LLJ (Suppl)-800 (Bom-DB) wherein this Court has found that law relating to the jurisdiction of the Government to make a reference or refuse to make a reference under Section 12(5) of the Act is now well settled. When the Government does not make reference under Section 12(5) of the Act setting out reasons therefor, the reasons could not be a decision in the matter and the Government cannot reach to the conclusion of disputed questions of fact usurping the powers of the adjudicating authority. The learned counsel for the petitioner, relying on the aforesaid two judgments submitted that the Government Labour Officer travelled beyond the jurisdiction and usurped the powers of the State Government while holding that the petitioner was not a workman and further committed error by closing the complaint of the petitioner.
11. The learned counsel for the petitioner contended that it was not open for the Government Labour Officer to conclude that the petitioner was not a workman as defined under Section 2(s) of the Act as the said issue itself is required to be decided after detailed investigation. He further contended that it was obligatory on the part of the Government Labour Officer to submit his report to the State Government or to its delegate the Deputy Commissioner of Labour (Conciliation), Thane, respondent No. 2 herein, as the State Government has, in exercise of its powers conferred under
Section 39, delegated its powers under Section 10(1) read with Section 12(5) of the Act to the Deputy Commissioner of Labour (Conciliation) with the powers of superintendence over the Government Labour Officer, Thane, who is notified as Conciliation Officer under Section 2(d) of the Act for individual disputes. Thus the petitioner prayed for quashing and setting aside the said report dated February 28, 2000 (Exh. ‘H’ to the petition) and requested for direction to respondent Nos. 1 and 2 to refer the said dispute to the Labour Court for adjudication, as per law.
12. The learned Assistant Government Pleader appearing for respondents Nos. 1 and 2 found it difficult to support the said order though, she tried to submit that the decisions sought to be relied upon are not at all relevant in the facts and circumstances of the case and the present one cannot be said to be a case involving disputed question of facts. She, therefore, contended that the action of the Government Labour Officer is well within the four corners of law.
13. None appears for respondents Nos. 3 and 4.
14. We, after having heard the parties to the petition, are of the confirmed view that it was not open for the Government Labour Officer to refuse to submit his failure report to the Government or its delegates and to close the complaint. It was also not open to the Government Labour Officer to conclude that the petitioner was not a workman. In this behalf it will be useful to make reference to the earlier decisions of the Supreme Court in Stale of Bombay v. KP. Krishnan and Ors., and Bombay Union of Journalists and Ors. v. State of Bombay and Anr., wherein it is observed:
“From the perusal of these two decisions, it becomes clear that the ambit of the enquiry open for the Government or the Deputy Commissioner under Section 12(5) of the Act is very limited. The Government has only to consider whether mere is a prima facie case on merits and it is not permissible to adjudicate on the merits of the claim raised
by the employee. Instead, the Government or the Deputy Commissioner of Labour should be very slow in declining to make the reference because such an action would shut the doors for an employee to get his dispute adjudicated by the Labour Court. The Legislature has enacted the Industrial Disputes Act with the fervent hope that the disputes between the employee and the employer would be decided expeditiously and the substantial right conferred on the employee to get his dispute adjudicated from the Court should not be defeated by the Deputy Commissioner of Labour or the Government by adjudicating that the action of the management is justified.”
15. In the present case it cannot be forgotten that it was a specific case of the employee that he was discharging the duties which were of clerical in nature, though, his designation was that of a Manager (Administration). At the same time, it was also contended by the Petitioner that he was removed from the services because he had brought certain mal practices and illegalities prevailing in the establishment to the notice of the Director which, ultimately, resulted in victimisation amounting to unfair labour practice. If the dispute raised by the petitioner is considered in this background, it is not possible to conclude
that it did not merit even an adjudication by the competent Court or Tribunal. To say the least, the Government Labour Officer, Thane has usurped the power of the adjudicating authority by finally concluding the complaint on merits that too without any material on record for such conclusion. In these circumstances, we have no alternative but to quash and set aside, the decision of the Government Labour Officer, Thane dated February 28, 2000 refusing to submit his report to the State Government or its delegates. Hence the order passed by the Government Labour Officer, Thane is quashed and set aside and respondent No. 1 is directed to get the said report on its file and by an appropriate order make reference under Section 10(1) of the Act to the appropriate Court or Tribunal or authority under the Act. Such a reference shall be made within one month from today and thereafter it should be decided as expeditiously as possible. We would like to make it clear that the observations made by us in this judgment are tentative and the same would not bind the concerned Court or Tribunal while adjudicating the dispute on merits as the authority shall have to decide the dispute afresh on its own merits after giving reasonable opportunity of hearing to both the parties.
16. Rule is made absolute in the above terms with no order as to costs.