C.M. Lodha, C.J.
1. This is a special appeal under Section 18(1) of the Rajasthan High Court Ordinance, 1949, from the judgment of a learned single Judge, who summarily dismissed the writ petition filed by the appellant M/s. Udaipur Cotton Mills (hereinafter referred to as 'the Mills').
2. Respondents No. 2 Narainlal was employed as a fitter in the Engineering Department of the Mills. A charge-sheet was issued to Narainlal and after holding a depatrmental enquiry, the management dismissed Narainlal. Thereupon Narainlal approached the conciliation officer, Udaipur. However, no settlement could be arrived at in the course of the conciliation proceedings, and a failure report was sent by the conciliation officer. On March 13, 1973, the Government of Rajasthan referred the matter for adjudication to the Labour Court which served a notice on the management of the mills. On 22-6-1973 a statement of claim was filed by the union on behalf of Narainlal. Certain preliminary objections were raised on behalf of the mills but the same were rejected by the Labour Court by its order dated 6-9-1974. Aggrieved by the dismissal of preliminary objections by the Labour Court, the mills filed the writ petition on the following two grounds:
(i) That no industrial dispute had been raised within the meaning of Section 2(k) of the Industrial Disputes Act, as the workman had not made a demand for reinstatement from the management, and, therefore, the Labour Court had no jurisdiction to deal with the reference, and,
(ii) That before proceeding to record evidence on merits the Labour Court was bound to decide as a preliminary issue as to whether the domestic enquiry conducted by the management was 'air' Both the objections taken by the appellant in the writ petition were repelled by the learned single Judge. Hence this special appeal.
3. The second objection need not detain us long inasmuch as it had been submitted on behalf of the employer before the Labour Court that the management did not wish to produce any document or other evidence in support of his preliminary objections. It may further be stated that the workman made an application before the Labour Court that the management may be asked to produce the paper relating to the domestic enquiry, but the counsel for the management stoutly opposed this request and thus the document relating to the domestic enquiry were never produced. That is not all. The Labour Court also gave an opportunity to the management to lead evidence in support of the preliminary objections, but the employer did not lead any evidence and expressed a desire to argue on the preliminary objections without producing any evidence, It further appears that before the Labour Court the management did not press this preliminary objection. In these circumstances, no just exception can be taken to the finding of the learned Judge that it was not open to the milk to raise this objection.
4. Now, as to the first point, Mr. Rajendra Mehta has urged that the view taken by this Court in Good Year India Ltd., Jaipur v. Industrial Tribunal Rajasthan, Jaipur 1968-II L.L.J. 682, need to be reconsidered in light of the observations made in Fedder Lloyd Corporation (Pvt.)Ltd. v. Lt. Governor, Delhi : AIR1970Delhi60 . The specific objection raised by the appellant in this connection is that it was the bounden duty of the workman to have made a demand for reinstatement from the management before taking the matter to the conciliation officer, and since this was not done, the reference was incompetent.
5. In Good Year India Ltd., Jaipur (supra) Mehta, J., observed as follows:
The employee's services were terminated by the petitioner on 16-12-1966. Immediately thereafter, he moved an application before the conciliation officer challenging the termination of his services and requesting for reinstatement. The petitioner opposed his reinstatement. It cannot, in the circumstances, be said that no industrial dispute had been raised by Shri Dhingra with the petitioner. Reliance has been placed on behalf of the petitioner on the decision of the Supreme Court in Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat 1968-I L.L.J. 834. In this case, the retrenched employee and the union had confined their demand to the management to retrenchment compensation only and did not make any demand for reinstatement. That being so, the reference made by the Government under Section 18 in respect of reinstatement was held by the Supreme Court to be not competent. It was held that the only reference, which the Government could have made had to be related to payment of retrenchment compensation. In the present case, the dispute is about wrongful termination of the employee's service and the demand is about reinstatement. The reference relates to it. The said Supreme Court decision is thus clearly inapplicable.
Bhandari, J., in his separate judgment observed as follows:
The contention of learned Counsel for the petitioner is that before the respondent No. 4 went to Regional Asstt, Labour Commissioner and conciliation officer, he had not raised any dispute with the petitioner inasmuch as he had not made any demand from the petitioner for reinstatement. This argument is not raised in the writ petition and we cannot permit it to be raised at the stage of arguments as it involves a question of fact. Moreover, this argument has no force so far as the making of reference is concerned because by the time the reference was made by the State Government on 16th May, 1967, the respondent had clearly raised a dispute with the petitioner before the conciliation officer for his reinstatement, and the State Government was referring this dispute to the Industrial Tribunal.
6. In Fedders Lloyd Corporation (Pvt.) Ltd. v. Lt. Governor, Delhi, the learned Judges of the Delhi High Court did not agree with the observations made by Mehta, J., in Goodyear India Ltd., Jaipur v. Industrial Tribunal, Rajasthan. Jaipur, and made the following observations:
In Goodyear (India) Ltd. v. Industrial Tribunal, Rajasthan, Jaipur, Mehta, J. purported to distinguish the decision of the Supreme Court is referred to above, on the ground that in the case before him the employee had made an application to the conciliation officer challenging the termination of his services and requesting for reinstatement and the employer opposed the reinstatement. The learned Judge did not consider that in the Supreme Court case also the application to the conciliation officer had been made. In accordance with the usual procedure the comments of the employer on the said application might have been called for by the conciliation officer and at this stage the employer may have opposed the demand for reinstatement. Nevertheless, the Supreme Court held that no industrial dispute regarding reinstatement existed.
The learned Judges further observed:
We are of the view that the decision of the Supreme Court in [1968-I L.L.J. 834]: referred to above, has finally established the proposition that a demand by the workman must be raised first on the management and rejected by them before an industrial dispute can be said to arise and exist and that the making of such a demand to the conciliation officer and its communication by him to the management, who reject the same is not sufficient to constitute an industrial dispute.
7. In our humble opinion, the judgment of the Supreme Court in Sindhu Resettlement Corporation v. Industrial Tribunal of Gujarat should be read in the background of the facts and circumstances of that case. The question whether an industrial dispute exists on the date of the reference is a question of fact to be determined on the material placed before the Tribunal. In that case the employer contended that the demand raised before the employer was about retrenchment compensation and not about reinstatement of the retrenched workman and, therefore, the Government was not competent to make a reference as if the demand was one for reinstatement. The demand which was referred to the Tribunal was whether Sri R.S. Ambwancy should be reinstated in the service of Sindhu Resettlement Corporation Ltd., and he should be paid his wages from February 21, 1958. On the basis of the evidence the Supreme Court held that the retrenched workmen in their claim put forward before the management of the employer requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. In these circumstances the Supreme Court held that the only reference which the Government could have made had to be related to the payment of retrenchment compensation which was the only subject-matter of dispute between the appellant and the respondents and therefore, the reference to the extent of adjudication for reinstatement was held to be incompetent. Thus it is clear that the decision in the Sindhu Resettlement Corporation (supra) turned purely on the facts of that case.
8. In the present case the charge sheet was given to the workman to which he filed a reply, and thereafter the evidence was recorded and ultimately he was dismissed. From this enquiry there can be no other inference but that the workman appeared and claimed reinstatement as he had been suspended in the course of enquiry on 6-10-1972 even before he filed a reply. After his dismissal he made an application before the conciliation officer on 20-10-1972 for reinstatement. The conciliation officer served notice of this application on the management and the management opposed the prayer for reinstatement. The application he-fore the conciliation officer was clearly a representation questioning the decision of the management dismissing the workman from service and praying for reinstatement. When the union approached the conciliation officer, the management appeared and contested the claim for reinstatement. That must clearly be construed as a demand for reinstatement addressed to an employer and nothing else. There is thus unimpeachable evidence that the concerned workman demanded his reinstatement from the management. If in this back-ground the Government came to the conclusion that there exists a dispute concerning a workman and it was an industrial dispute because there was demand for reinstatement and a reference was made, such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did not come into existence. In the facts and circumstances, therefore, it cannot be said that the reference was incompetent.
9. In Shambhu Nath Goyal v. Bank of Baroda 1978-I L.LJ. 484, where, when the enquiry was held the workman appeared and claimed reinstatement and after his dismissal he preferred an appeal to the appellate forum and contended that the order of dismissal was wrong, and in any event he should be reinstated in service, the Supreme Court held that the appeal itself is a representation questioning the decision of the management dismissing the workman from service, and praying for reinstatement. It was further observed that when the union approached the conciliation officer, and the management appeared and contested the claim for reinstatement it must be held to be an unimpeachable evidence that the workman persistently demanded reinstatement. In these circumstances, it was observed that there exists an industrial dispute because there was a demand for reinstatement. In our opinion, the observation made by their Lordships of the Supreme Court in Shambhu Nath Goyal's case (supra) apply full force to the facts and circumstances of the present case. In this view of the matter, we find ourselves unable to subscribe to the view taken by the Delhi Court in Fedders Llyod Corporation (Pvt.) Ltd. v. Lt. Governor, Delhi.
10. The result is that we do not find force in this appeal and hereby dismiss it with costs. Costs assessed at Rs. 200.