Decided on October 25,1978

Surendra Chandra Dash Appellant
The Asst. Labour Commissioner And Anr. Respondents


R.N.Misra, J. - (1.) THIS is an application for a writ of certiorari for quashing the order made by the Assistant Labour Commissioner (Central) dated 7th April, 1977 (Annexure -6) refusing to enter upon conciliation.
(2.) PETITIONER was employed as a Transport Supervisor under the Paradeep Port Trust and was retrenched from service under Section 25 -F of the Industrial Disputes Act (hereinafter referred to as the 'Act') with effect from 15 -10 -1966. Petitioner challenged the retrenchment by filing a writ application in this Court in O.J.C. 202 of 1973, but that application was dismissed on 31 -7 -1974 on the ground of laches and delay. Petitioner alleges that he applied for review of the decision and on 13 -1 -1975, this Court while allowing certain monetary relief to the Petitioner on account of unpaid wages observed that in respect of other reliefs it was open to him to move the appropriate forum. In that mean time, there were vacancies in the post of Assistant Quay Foreman and in 1972, Petitioner along with others had been interviewed for the purpose of recruitment to the said post, but none was found suitable. Upon a representation of the Petitioner to the Central Government, the Paradeep Port Trust had informed the Government of India that in the interview held in May, 1972, none of the candidates including the Petitioner was found suitable for the post of Assistant Quay Foreman, but when further recruitment was made, the claim of the Petitioner would be considered. According to the Petitioner in November, 1975, some posts of Assistant Quay Foreman were filled up but Petitioner's claim was not considered. He accordingly represented to the Central Government and the Chairman of the Paradeep Port Trust for relief under Section 25 -H of the Act and when he did not succeed in obtaining any relief, he ultimately moved the Regional Labour Commissioner for entertaining an industrial dispute and entering into conciliation as provided under the Act. The Assistant Labour Commissioner by order dated 7 -4 -1977 declined to do so holding: You will please appreciate that the posts of Assistant Quay Foreman and the Transport Supervisor and different and hence your claim for re -employment under Section 25 -H of the Industrial Disputes Act does not legally hold good. Petitioner contends that the Conciliation Officer had a duty to enter upon conciliation once the dispute arose and it was not for him to finally adjudicate that Section 25 -H of the Act had no applications to the facts of the case. In a counter affidavit on behalf of the opposite parties, the Assistant Labour Commissioner has supported the action. Petitioner in a rejoinder has supported his own stand.
(3.) SECTION 25 -H of the Act provides: Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are Citizens of India to offer themselves of or re -employment, and such retrenched workmen who offer themselves for re -employment shall have preference over other persons. Admittedly Petitioner had been retrenched and the Port Trust has appointed certain persons to the posts of Assistant Quay Forman subsequent to retrenchment of the Petitioner. The application under Section 25 -H of the Act would, however, relate to the classifications from which retrenchment took place and a retrenched workman would not be entitled for consideration when vacancies in any post of whatever classification would be filled up. On this aspect of the matter, there is no dispute, but Mr. Nanda for the Petitioner contends that it was not within the domain of the Assistant Labour Commissioner to finally decide that the classifications were different. According to him that was a matter which must have been left open to be adjudicated by the Court under the Act and the Assistant Labour Commissioner as Conciliation Officer was bound to proceed to conciliate and if he, failed, he was to submit a failure report on the basis of which a reference could be made. At the very inception of statutory action, the Conciliation Officer should not have acted in a high -handed manner. Section 12 of the Act prescribes the duties of Conciliation Officers. Sub -section (1) reads thus: Where any industrial dispute exists or is apprehended, the Conciliation Officer may or where the dispute relates to a public utility service and a notice under Section 22 has been given shall hold conciliation proceedings in the prescribed manner. The condition precedent to holding of conciliation, therefore, is that there must be an industrial dispute either in existence or in a state of apprehension. If there be no industrial dispute, the Conciliation Officer would have no jurisdiction to enter into conciliation. It would, therefore, be certainly within the Conciliation Officer's jurisdiction to decide whether there is in existence an industrial dispute or there is an apprehension of an industrial dispute. If alternately any of these two eventualities would not be in existence, he would have no jurisdiction to allow the statutory machinery to be initiated. In the instant case, the Assistant Labour Commissioner has taken that view. We see no justification to differ from him.;

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