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East Asiatic and Allied Companies, Bombay Vs. Shelke (B.L.) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberAppeal No. 44 of 1959
Judge
Reported in(1961)ILLJ162Bom
ActsIndustrial Disputes Act, 1947 - Sections 12(1) and 22
AppellantEast Asiatic and Allied Companies, Bombay
RespondentShelke (B.L.)
Excerpt:
.....proceedings - section 12 (1) provides that where industrial dispute exists or apprehended conciliation officer may hold conciliation proceedings in prescribed manner - conciliation officer has discretionary power to enter upon conciliation or not - since there was dispute between parties respondent wrote letter to union inviting to discuss matter - such act would not amount initiation of conciliation proceedings - grounds of appeal not sustainable. - - according to the union, the departmental inquiry held against rao was improperly and illegally held and consequently the order of dismissal was bad in law. the respondent 1 is then alleged to have stated to the representatives of the union that he would like to go through all the correspondence and form his own opinion about..........the representatives of the parties for satisfying himself about the propriety of admitting the matter in conciliation. it is no doubt true that there was an industrial dispute in the sense that certain action taken by the employers was challenged on behalf of the union on two grounds, firstly, that the inquiry which terminated in the dismissal of one of its members was not conducted in accordance with the principles of natural justice, and secondly, that there was in fact victimization of that member in the guise of disciplinary action of misconduct. even so, it was the duty of the conciliation officer to satisfy himself before undertaking conciliation proceedings as to whether the grievances, which the union had put forward, were genuine or not. now, since the law confers a.....
Judgment:

Mudholkar, J.

1. This is an appeal from the judgment of Mr. Justice Shelat in Miscellaneous Petition No. 361 of 1958. The appellant is the union of employees in various companies in Bombay. One P. S. Rao was employed with Dumex, Ltd., carrying on business at Bombay. His precise designation was 'tead leader.' On 4 March, 1957 he was served with a letter in which certain charges were preferred against him by the employers and he was suspended from work with immediate effect. A departmental enquiry was held in respect of those charges on 7 March, 1957. He denied the charges, but the officer holding the inquiry held them established. He was intimated accordingly by a letter dated 15 March, 1957. He was also informed by that letter that it had been decided to dismiss him from service with immediate effect. According to the union, the departmental inquiry held against Rao was improperly and illegally held and consequently the order of dismissal was bad in law. The aforesaid Rao is alleged by the union to have been one of its members at all material times. The case of the union was that the dismissal of Rao was a case of victimization and, therefore, the union was entitled to raise an industrial dispute with regard to his dismissal.

2. On or about 5 April 1957, the union addressed a letter to Mr. V. V. Joshi, Deputy Commissioner of Labour (Administration), Bombay, wherein they mentioned the circumstances in which the order of dismissal was passed against Rao and contended that the order of dismissal was illegal. The union therefore requested the Deputy Commissioner of Labour to intervene in that dispute. It is alleged that the Deputy Commissioner of Labour held meetings with the representatives of the union on 30 April, 3 May, and 4 June, 1957, but he ultimately informed the union by his letter dated 1 July 1957 that he saw no reason to intervene.

3. On 6 August 1957, the union addressed a letter to the chief conciliation officer. We are informed that there is no such person as chief conciliation officer. In the aforesaid letter the union said that the general meeting of the union had supported the case of Rao against the employers. The respondent 1, Mr. Shelke, Assistant Commissioner of Labour, thereupon wrote a letter to the union on 10 September, 1957 and called the representatives of the union for a meeting on 16 September, 1957. On that date, he had some discussion with those representatives. A similar letter was also addressed to the employers and they were invited to send their representatives to the respondent 1's office on the same date. It would appear that a representative of the respondents did attend the office of the respondent 1, but there was no joint meeting of the representatives of the union, the representatives of the employers and Mr. Shelke. Mr. Shelke discussed certain matters with the representative of the employers separately. According to the union, half an hour after the representative of the employers left the office of the respondent 1, he called in the representatives of the union again and informed them that the employers were not prepared to accept the demand of reinstatement of Rao made by the union. The respondent 1 is then alleged to have stated to the representatives of the union that he would like to go through all the correspondence and form his own opinion about their case.

4. On 1 November 1957, the respondent 1 again sent for the representatives of the union for a preliminary discussion on the 6 November, 1957. A meeting was actually held on that day at the office of the respondent 1 but it ended after half an hour. It is common ground that at that meeting the respondent 1 asked certain question to Rao who was also present at the meeting, pertaining to the departmental enquiry. Accordingly to the union, a third meeting was also called by the respondent 1, on 27 November, 1957 for further discussion. At that meeting the respondent 1 informed the representatives of the union that if they were agreeable, the order of dismissal of Rao could be converted into one of discharge so that Rao would get certain benefits such as gratuity, notice pay, provident fund, etc. The representatives of the union did not accept this offer, and insisted that they would like the dispute to be referred to adjudication. According to the union, the respondent 1 again tried to persuade its representatives to accept the offer, the finding that they were adamant he asked them to go along with him to his superior officer, one Mr. D. G. Kale. Some discussion thereafter took place between the representatives of the union and Mr. Kale. Mr. Kale tried to persuade these persons to accept the offer, but he also failed in that attempt. The meeting thereafter ended. It may be mentioned that during the discussion which took place in the office of Mr. Kale, one of the points considered was the failure of Rao to prefer an appeal against his dismissal to the directors as provided by the standing order 13. On 30 November, 1957, the union wrote a letter to the respondent 1 in which they have set out the reasons why Rao did not prefer an appeal before the directors. On 6 December, 1957, the respondent 1 wrote to the general secretary to the union stating that he did not consider the case fit for admitting in conciliation.

5. Now, according to the union, who are the appellants before us, Mr. Shelke, Assistant Commissioner of Labour, was bound to enter upon conciliation as soon as he was satisfied that there was an industrial dispute between an employer and an employee. Further, according to them, Mr. Shelke had in fact entered upon conciliation proceedings inasmuch as he had held three meetings at one of which a representative of the employer was also present. That being the position, according to the union, it was incorrect of Mr. Shelke to have informed the union by his letter of 6 December, 1957 that he could not undertake conciliation in the matter. Referring to the relevant provisions of the Industrial Disputes Act, 1947, the union contended that where conciliation proceedings have failed it is the duty of the conciliation officer to make a report to the Government, so that the Government could decide whether they should refer the matter to adjudication or otherwise.

6. On behalf of the respondents, it is contended that there was no obligation on the respondent 1 to enter upon conciliation in regard to each and every industrial dispute unless the dispute was between persons employed in a public utility service and their employer. Further, according to them, conciliation proceedings had not at all been undertaken by Mr. Shelke and all that he had done was to hold certain preliminary meetings for the purpose of satisfying himself whether the matter could be admitted in conciliation. The contentions of the respondents were accepted by Mr. Justice Shelat and the petition was dismissed. Those contentions are repeated before us.

7. Chapter IV of the Industrial Disputes Act, 1947, deals with the procedure, powers and duties of authorities constituted by it. Section 12(1) provides that where an industrial dispute exists or is apprehended, the conciliation officer may hold conciliation proceedings in the prescribed manner. It further provides that where the dispute relates to a public utility service and a notice under S. 22 has been given the conciliation officer shall hold conciliation proceedings. This provision draws a clear distinction between a dispute which relates to a public utility service and any other kind of industrial dispute. The use of the word 'may,' in so far as the latter kind of disputes are concerned, makes it abundantly clear that the legislature has invested the conciliation officer with the discretion whether to enter upon conciliation in regard to such disputes or not. Mr. Neemuchwalla, who appears for the appellant before us, very strenuously urged that the word 'may' should be construed to mean 'shall' and reference was made in this connexion to the well-known case of Bishop of Oxford [(1880) 5 App. Cases 214] which has been followed by the Supreme Court and also by several High Courts in India including this Court. All that this decision lays down is that where discretion is conferred on an authority to do a thing and a statutory obligation is cast upon it, the word 'may' should be construed to mean 'shall.' The present case, however, is not of that type. Here, the legislature has clearly drawn a line of distinction between what is made obligatory by it and what is made discretionary. Such being the position, we have no doubt that the learned single Judge was right in holding that the conciliation officer had, in this matter, a discretion whether to enter upon conciliation or not.

8. The next and the most important question is whether in point of fact the conciliation officer had entered upon conciliation. Now, Mr. Neemuchwalla very strenuously urged that there is no provision in the Act or in the rules as they then obtained empowering the conciliation officer to hold preliminary discussion with any of the parties to the dispute. Therefore, according to him, everything that the conciliation officer did must be deemed to have been done in his capacity as conciliation officer and in furtherance or in performance of his duties as a conciliation officer. In other words, according to him all that Mr. Shelke did from 16 September, 1957 onwards was nothing but conciliation. We have before us the affidavit of Mr. Shelke and it is clear from that affidavit that right from the beginning to the end, he was clear about one point and that is that he wanted to hold only preliminary discussion with the representatives of the parties for satisfying himself about the propriety of admitting the matter in conciliation. It is no doubt true that there was an industrial dispute in the sense that certain action taken by the employers was challenged on behalf of the union on two grounds, firstly, that the inquiry which terminated in the dismissal of one of its members was not conducted in accordance with the principles of natural justice, and secondly, that there was in fact victimization of that member in the guise of disciplinary action of misconduct. Even so, it was the duty of the conciliation officer to satisfy himself before undertaking conciliation proceedings as to whether the grievances, which the union had put forward, were genuine or not. Now, since the law confers a discretion upon the conciliation officer whether he should enter upon conciliation or not, it is only right and proper that he should satisfy himself by all means available to him about the propriety of undertaking conciliation. It was for this purpose that Mr. Shelke called the meetings. Had he not called any meeting but acted merely upon the material placed before him in the shape of letters addressed to him and to other officers in the Labour Department by the union, it could well be said that he has acted arbitrarily or acted on insufficient material. In order to avoid such a charge against him, if a conciliation officer embarks upon a preliminary enquiry, can it be properly said that he has done something which was improper or which could itself be regarded as a part of conciliation proceedings. In our opinion, steps taken by a conciliation officer for satisfying himself whether an industrial dispute which has been brought to his notice should be admitted in conciliation or not, cannot be properly regarded as a part of the conciliation proceedings. They are, what they purport to be on their face, only preliminary inquiries and merely because such inquiries are held, the hands of the conciliation officer cannot be said to be bound in any way. Mr. Neemuchwalla then said that Mr. Shelke had not one meeting, but three meetings and that this would show that what he actually did was to enter upon conciliation. Mr. Neemuchwalla was prepared to concede that at the most one meeting could be called by the conciliation officer for the purpose of satisfying himself whether there was any genuine dispute and whether it was a matter in which he should undertake conciliation, but surely, he could, according to Mr. Neemuchwalla, not go on calling meeting after meeting, hear the matter, and keep the matter pending for several months and then say that all that he did was to make preliminary enquiries. According to him, if we accept the contention of the respondent 1 we would be shaking the confidence of labour and the union in the machinery provided by a statute for resolving industrial disputes peacefully. We see the force of the argument, but what we have to ascertain in this case is whether in point of facts Mr. Shelke acted as a conciliation officer. It would seem that so far as the first date is concerned, the main purpose was to satisfy himself about the membership of the union and about Rao being one of its existing members. The merits of the case were also discussed at that time. At the second meeting, which was beriefer one, another point was considered and what was as to why Rao did not avail himself of the provisions of the standing order 13 and prefer an appeal. Now, the conciliation officer had to discuss this matter and satisfy himself about the correctness of the stand taken by the union so as the be able to utilize his good offices for bringing about a conciliation between the parties to the dispute. Where a conciliation officer does that, it cannot be said that he is doing anything more than something which is preliminary to the undertaking of conciliation. We are, therefore, not prepared to accept the contention put forward by Mr. Neemuchwalla that both these meetings were a part of the conciliation proceedings.

9. On the question as to whether a third meeting was held on the disputes between the parties, the learned single Judge said that since there was a dispute between the parties, he would accept the statement in the affidavit of the respondent 1 to the effect that no such third meetings was held. It is a fact that on 22 November, 1957 Mr. Shelke in his capacity as Assistant Commissioner of Labour wrote a letter to the union stating that he would be glad if a representative who would be in a position to speak authoritatively on behalf of the union attended his office on 27 November, 1957. The object of calling the representative was to discuss the matter which was before him, that is, the dispute between the union and the employers, that is, the respondent 2. What actually happened on 27 November, 1957 was that Mr. Shelke told the representatives of the union that he was prepared to suggest to the employers that the order of dismissal of Rao should be converted into that of discharge so that he would be able to get certain benefits, which he would otherwise not. After this matter was put to them they expressed their inability to accept that suggestion, and there the matter stood. It seems to us that if a conciliation officer, though unwilling to enter upon conciliation, uses his good offices for securing an amicable settlement of a labour dispute in the matter suggested by Mr. Shelke in the instant case, he cannot be deemed to be acting in his capacity as a conciliation officer. Mr. Neemuchwalla, however, said that this is precisely the king of thing which a conciliation officer is expected to do when he undertakes a conciliation. It may be that a conciliation officer during the course of the proceeding before him may feel inclined to do what Mr. Shelke did even before entering upon conciliation. But, merely because Mr. Shelke made this proposal, it would not be right to say that he had actually entered upon conciliation proceedings.

10. In our opinion, therefore, there is no substance in the appeal and we accordingly dismiss it.

11. fter the judgment was dictated, Mr. Neemuchwalla, who appears for the union, and Mr. Rao who is present in person in the Court, stated that they accept the judgment which is just delivered and will not prefer an appeal therefrom before the Supreme Court. Upon this, the learned Advocate-General stated that the order for costs passed by the Court below be vacated and that there should be no order for costs in the appeal. In the circumstances, the appellants are permitted to withdraw the amount deposited by them in this Court when they preferred the appeal.


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