This writ petition is filed by the Indian Bank Employees Association, challenging the order of the first respondent dated 9.3.2004, in which the first respondent, after referring to the conciliation failure report dated 29.8.2003 and having been prima facie satisfied that the dispute is not fit for adjudication, passed the following order:
" The Union failed to establish that any of the provisions of the Settlement/instructions have been violated by the management and that the management has ignored the claim of the workman, Shri N.Swaminathan while posing Shri K.Manoharan to the post."
2. The case of the petitioner Union is that, one N.Swaminathan, Sub staff working in AVC Extension Counter of Indian Bank was drawing daftary allowance. When he was reverted to Mayavaram main branch, the permanent daftary allowance paid to him was withdrawn in August, 1997, which is against the provisions of the Industrial Disputes Act,1947 and various settlements and awards. It is stated that the petitioner Union has requested the management to restore the daftary allowance to the said Swaminathan. When it failed, the petitioner Union raised a dispute for payment of daftary allowance by letter dated 15.6.2002. The Assistant Commissioner of Labour (Central) has called for remarks from the second respondent and the attempt of settlement failed and therefore, he submitted a failure report on 29.8.2003 to the first respondent. Thereafter, the first respondent passed the impugned order assigning the reason as stated above and declining to refer the dispute under
section 12(5) of the Industrial Disputes Act,1947.
3. The impugned order is challenged on the ground that while passing the impugned order the Government has in fact adjudicated the issue which cannot be done while exercising its administrative powers. It is also the case of the petitioner Union that the first respondent Government has no power to decide on merits of the case and the impugned order is opposed to the judgment of the Supreme Court in Telco Convoy Drivers M.S.Sangh and another vs. State Bank of Bihar and Others [(1989) 2 LLJ 558]. It is also stated that the claim of the petitioner Union is supported by various clauses of the industry-wise bipartite settlement and also the bank level bipartite and tripartite settlements.
4. While it is the contention of Mr.M.Muthupandian, learned counsel for the petitioner that the impugned order is a clear transgression into the adjudication power of the Labour Court, which is not permissible under the Industrial Disputes Act,1947 (in short, "the Act"), it is the contention of the learned counsel for the second respondent bank that the bank is entitled to prima facie come to the conclusion that the claim has not been proved and therefore, under
section 12(5) of the Act, the Government is entitled to decide the same.
5. In fact, in the representation dated 8.12.1999, the petitioner Union has relied upon the recommendations of the Zonal Manager in similar circumstances in Neyveli Branch. However, in the present case, when Mr.N.Swaminathan was reverted to Mayavaram main branch, daftary allowance was not paid to him. It is also stated that the said N.Swaminathan, Daftari, is even now performing various special allowance duties allotted to him and therefore, he is eligible for payment of daftary allowance from August, 1997.
6. In the reply filed by the second respondent bank to the Conciliation Officer, a factual dispute has been raised by the bank stating that when the Satellite Office was upgraded to a full-fledged branch, the senior of the sub-staff viz., N.Swaminathan, who was working at Nakkampadi Satellite Office, was asked to do the Daftary works at AVC College. It is the specific stand of the second respondent that the said N.Swaminathan, is junior to Mr.K.Manoharan and therefore, the junior cannot draw more than the senior. Therefore, it is the case of the second respondent bank that the said N.Swaminathan, is not entitled for daftary allowance, since he happens to be the junior. It is specifically stated that the bipartite settlement entered into between the Union and the Management provides that the workmen would be entitled to special allowance only so long as he is in performance of such work, which attracts such allowance.
7. The second respondent in its reply, has relied upon the complaint of the petitioner Union to the Conciliation Officer dated 15.6.2002, wherein it is stated as follows:
" Suddenly the Management upgraded the Nakkambadi Extn. Counter as full fledged branch in the August 1997. The second senior Daftary working in this Extn. Counter was transferred to AVC Extn. Counter as per the policy in vogue and the third senior Shri N.Swaminathan, our member who is working at this AVC extension counter was reverted to Mayavaram Main Branch. The permanent Daftary allowance drawn by him so far at the AVC extension counter has been unilaterally withdrawn by the Management from August 1997 against the provisions of I.D.Act and various settlements and Awards."
8. It is the case of the second respondent bank that based on the above said statement, the petitioner Union has admitted that the said N.Swaminathan, was junior and not performing duty which attracts special allowance. In fact, the petitioner Union by its further letter dated 23.7.2003, addressed to the Conciliation Officer has raised the issue that the said N.Swaminathan, was a permanent employee drawing allowance which forms part of the salary and cannot be withdrawn without serving a notice under
section 9A of the Industrial Disputes Act. A further issue has been raised by the petitioner Union that there was no power for the management to allot cash Peon/bill collector work in the base branch on his retransfer by paying the permanent daftary allowance and no cash peon allowance is paid to anybody as available in any such big branch. The Union has also referred to similar situation in Neyveli Branch stating that in that case allowance has been paid to the incumbent based on the Zonal Manager's recommendation while the same is denied in respect of the said N.Swaminathan. When these are the materials available in various communications of the petitioner and the second respondent, the Conciliation Officer submitted a failure report dated 29.8.2003, as per
section 12(4) of the Act. It was, in those circumstances, the impugned order came to be passed.
9. A reference to the impugned order elicited above makes it very clear that the first respondent has not only failed to appreciate the stand of the petitioner Union in its proper perspective for the purpose of deciding the prima facie case for making a reference under
section 12(5) of the Act but has taken a decision on the issue on merit that the petitioner Union has not proved its case. In fact, the decision on merits has been arrived at in the impugned order of the Government that the allegation has not been proved by the petitioner Union. This finding is certainly a finding of fact about the disputed claim between the parties, which is not well within the powers of the first respondent Government while performing its administrative functions under
section 12(5) of the Industrial Disputes Act, which is as follows:
"
Section 12. Duties of conciliation officers.-
12. (1) to (4) xxxx 12(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefor."
10. By applying the principle and the yardstick enunciated by the Division Bench in M/s.Shaw Wallace & Co., Ltd., vs. State of Tamil Nadu rep. by the Commissioner and Secretary, Labour Department and others [(1987) 1 LLJ 177] viz., "32. On a final analysis, the following principles emerge:-
(1) The Government would normally refer the dispute for adjudication;
(2) The Government may refuse to make reference, if-
(a) the claim is very stale;
(b) the claim is opposed to the provisions of the Act;
(c) the claim is inconsistent with any agreement between the parties;
(d) the claim is patently frivolous;
(e) the impact of the claim on the general relation between the employer and the employees in the region is likely to be adverse;
(f)the person concerned is not a workman as defined by the Act;
(3) The Government should not act on irrelevant and extraneous considerations;
(4) The Government should act honestly and bona fide;
(5) The Government should not embark on adjudication of the dispute; and (6) The Government should not refuse reference on the ground that domestic enquiry was fairly and properly held and punishment awarded as appropriate."
I am of the considered view that the impugned order does not come under any of the exempted categories wherein the Government may refuse reference.
11. While the normal rule is to make reference of dispute for adjudication, only in exceptional cases as stated above, the Government may exercise its power of refusing to refer the dispute for adjudication. Even a reading of the impugned order makes it clear that it is not a vexatious claim made by the petitioner which can never be treated as frivolous or opposed to the provisions of the Act or inconsistent with the agreement between the parties. On the other hand, it is certainly a case where the Government has embarked upon the adjudication of dispute by itself which is not permissible. As laid down by the Supreme Court in M.P.Irrigation Karamchari Sangh vs. State of M.P., [(1985) 2 SCC 103], the jurisdiction of the Government even to examine a patent frivolousness of a demand is very limited and the same in fairness is left to the Tribunal to decide after adjudication.
12. In Telco Convoy Drivers M.S.Sangh and another vs. State Bank of Bihar and Others [(1989) 2 LLJ 558] while referring to the powers of the Government under
section 12(5) of the Act, the Supreme Court, after referring to various earlier judgments including the judgment in M.P.Irrigation Karamchari Sangh vs. State of M.P., [(1985) 2 SCC 103], has held as follows:
" 14. ..... As has been held in M.P.Irrigation Karamchari Sangh's case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and to allow the Government to do so would be to render
Section 10 and
Section 12(5) of the Act nugatory."
13. In this view of the matter, there is no difficulty to conclude that the impugned order is certainly beyond the jurisdiction of the first respondent Government and therefore, the same is set aside with direction to the first respondent to refer the dispute for adjudication to the appropriate authority either the Labour Court or the Industrial Tribunal within a period of 30 days from the date of receipt of a copy of this order. The writ petition is allowed on the above terms. No costs.