Posted On by &filed under High Court, Rajasthan High Court.


Rajasthan High Court
Narottam Kela vs State Of Rajasthan And Ors. on 16 October, 2000
Equivalent citations: (2002) IVLLJ 657 Raj, 2001 (1) WLC 667, 2001 (1) WLN 153
Author: R Balia
Bench: R Balia


JUDGMENT

Rajesh Balia, J.

1. Heard learned counsel for the parties.

2. This petition comes up on application of early hearing. The application heard and allowed and the matter is heard on merit.

3. Services of the petitioner were terminated by the Managing Director, Rajasthan Rajya Sahakari Spinning and Ginning Mills Federation Limited, Spinning Unit, Gulabpura, Distt. Bhilwara, while he was working as Spinning Master on probation. The petitioner being aggrieved by the order of termination made a representation to the Board of Directors and having failed to get relief, he approached the Regional Dy. Labour Commissioner cum Conciliation Officer, Bhilwara for initiating conciliation proceedings. The Regional Dy. Labour Commissioner cum Conciliation Officer vide order dated July 24, 1998 refused to entertain the application inter alia on the ground that no dispute arises in the Industrial Dispute Act in the case of the petitioner.

4. The petitioner challenged the said order inter alia on the ground that Conciliation Officer had no jurisdiction to refuse to entertain the proceedings for conciliation and it did not disclose any reason for its refusal to maintain the application for conciliation.

5. Learned counsel for the respondents urged that since the petitioner was working on probation he is not entitled to any relief and he cannot be considered a workman within the meaning of Section 2(s) of the Industrial Disputes Act.

6. Suffice it to state that controversy raised before the Court itself suggests that there is arguable issue which needs adjudication existing between the employer and employee. Whether the petitioner can be considered to be a workman within the meaning of Section 2(s) depends upon finding such necessary facts which determine the status of a person as workman under Section 2(s). It cannot be doubted that the Conciliation Officer or for that matter the appropriate Government has not been conferred any jurisdiction, while considering the application for conciliation or making or reference under Section 10 to adjudicate upon the dispute itself.

7. Moreover as against illegal retrenchment or termination the special remedy is provided under the Industrial Disputes Act and refusal by the Conciliation Officer to entertain the complaint by himself adjudicating the dispute destroys the remedy altogether.

8. Moreover the question whether an industrial dispute exists becomes germane for the appropriate Government to consider while it is called upon to consider the question of making any reference to the Labour Court/ Industrial Tribunal, as the case may be. The appropriate Government too can only consider whether factually any dispute exists or whether such dispute is required to be referred. In coming to such conclusion even the appropriate Government cannot end up by answering the dispute itself. Whether an employee in a given circumstance can be considered as a workman within the meaning of Section 2(s) of the Act of 1947 itself may be a subject of issue to be decided while considering the merit of demand raised, but cannot be adjudicated by the appropriate Government and the Conciliation Officer for the purpose of rejecting the application and hold that no dispute exists, when it is not in dispute that employer-employee relationship did exist between the parties. In the present case it cannot be disputed and denied that the petitioner was an employee of the respondent as on the date his services were terminated. Whether the fact that he was working on probation and if so whether he is entitled to any relief on adjudication is part of the issue arising from dispute that exists between the employer and employee. The minimum requirement of Conciliation Officer or the State Government while refusing to commence conciliation proceedings or to make a reference as the case may be of the dispute which is shown to exist is to give reason for such course adopted by the authority, which does not amount to adjudication of the dispute itself. The order under challenge does not show any reason for coming to the conclusion as to why it is not an industrial dispute when the fact of the termination is not disputed. The reason now suggested by the learned counsel for the respondent that the petitioner is not a workman does not appear from the order communicated to the petitioner. For the reason also the same cannot be sustained.

9. Accordingly this petition is allowed. The order contained in communication dated July 24, 1998 (Annexure/5) is set at naught and the Regional Dy. Labour Commissioner is directed to entertain the application of the petitioner and proceed in accordance with law within the precincts of the authority.


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