Shri Nand Kishore Vs Dilshad Public School (Delhi High Court)
Conclusion: The Hon’ble High Court observed that Conciliation Officer is not an Industrial Tribunal or a Labour Court and does not exercise judicial/quasi-judicial functions and/or does not adjudicate the claims of /disputes between the parties.
Facts: In present facts of the case, the Petitioner has assailed the order dated 26.07.2018, passed by the Delhi School Tribunal in Appeal No.57/2015, whereby the application filed by Respondent No.1/School under Order VII Rule 11 CPC was allowed and the appeal filed by the Petitioner, Appellant therein was dismissed.
The Petitioner was appointed as Chowkidar-cum-Peon with Respondent No.1 on 31.03.2000, and was subsequently confirmed on the said post vide letter dated 31.03.2001. The Respondent No.1 is a recognized school and affiliated with CBSE. Pursuant to recommendations of 6th Central Pay Commission (‘CPC’), Petitioner requested for revision in the pay scale. Upon failure of the School to implement the 6th CPC recommendations, in order to enforce his rights, Petitioner along with other employees filed a writ petition in this Court being W.P.(C) 6367/2014, which was allowed vide order dated 06.02.2015, directing the School to pay the difference in the salary along with arrears in accordance with 6th CPC recommendations, within six months from the date of the order. But the School did not comply with the said directions and instead terminated the services of the Petitioner vide order dated 22.08.2015, without following the due process of law. No enquiry was conducted and no opportunity was given to reply to the show cause notice dated 07.08.2015. The termination order was challenged by the Petitioner before the Delhi School Tribunal (hereinafter referred to as the ‘Tribunal’), by way of an appeal bearing No.57/2015. After the pleadings were completed and the appeal was at the stage of final arguments, School filed an application under Order VII Rule 11 CPC, seeking rejection of the appeal on the ground that Petitioner had filed a claim before the Conciliation Officer under the provisions of Industrial Disputes Act, 1947 and had withdrawn the same, without seeking liberty to file a fresh case. Petitioner also concealed the filing of the said claim before the Tribunal, which amounts to playing fraud on the Tribunal. Reply was filed by the Petitioner to the application under Order VII Rule 11 CPC and after hearing arguments, Tribunal allowed the application and dismissed the appeal, vide order dated 26.07.2018, which is the order impugned before this Court.
The Hon’ble High Court observed that the main question arises in the present writ petition is whether the Petitioner can file an appeal before the Tribunal functioning under the DSEA&R, after having invoked the remedy under the ID Act by filing a claim before the Conciliation Officer.
It was observed that Scheme of the ID Act will require examination. The duties and power of the Conciliation Officer under the ID Act are circumscribed by Section 12 of the ID Act and he has no power to transgress beyond the said statutory provision. It is clear from the provisions of Section 12 that a Conciliation Officer is not empowered to adjudicate upon disputes between the management and the workman and can only assist the parties to arrive at an amicable settlement and take steps in furtherance thereto using what may be called his power of ‘persuasion’. On failure of settlement talks between the parties, the Conciliation Officer is required to send a report to the Appropriate Government under Section 12(4), setting forth the steps taken to arrive at a settlement together with the reasons why the settlement could not be arrived at. If the parties arrive at a settlement, then the Conciliation Officer shall send a report to the Appropriate Government along with a memorandum of settlement signed by the parties. If on consideration of the report under Section 12(4), the Appropriate Government is satisfied that a case for reference is made out, it may refer the case to the Board/Labour Court/Tribunal, as the case may be. Therefore, it is only the appropriate Government, who is competent to decide whether the dispute(s) is to be referred to the Industrial Tribunals set up under the Act and insofar as Conciliation Officer is concerned, his role is that of a mediator and no more. It has been held in various judgments that Conciliation Officer does not discharge judicial or quasi-judicial functions and his acts are merely administrative in nature. Relevant it is to note that even if the Conciliation Officer brings about a settlement and records the same, the report so rendered is not an ‘award’, defined under the ID Act as an interim or final determination of an industrial dispute by a Labour Court or Industrial Tribunal. From the scheme of the ID Act, by no stretch of imagination can it be said that the functions of a Conciliation Officer are akin to that of an Industrial Tribunal or a Labour Court. Looking at the industrial unrest that usually takes place in management-workman dispute, Legislature has provided a machinery for settlement of disputes but certainly without any powers to the Conciliation Officer to adjudicate upon them. The only and avowed object and purpose for this machinery under the Act is to provide a step to attempt to bring an end to the disputes and differences between the rival parties so that the disputes do not travel to Labour Courts or Industrial Tribunals.
Therefore, it was observed that Conciliation Officer is not an Industrial Tribunal or a Labour Court and does not exercise judicial/quasi-judicial functions and/or does not adjudicate the claims of /disputes between the parties. Thus, the argument of the School that the Appeal before the Tribunal was not maintainable, having been filed by the Petitioner, without seeking liberty before the Conciliation Officer and/or Petitioner was bound to take the proceedings under the ID Act to the hilt, cannot be countenanced..
However, another question that was taken into consideration was whether the non-disclosure by the Petitioner of the factum of filing the claim before the Conciliation Officer is a concealment of material fact so as dismiss the Appeal. Ideally, Petitioner should have disclosed the said fact while filing the Appeal before the Tribunal, however, this cannot be concealment of a material fact leading to dismissal of the Appeal. Petitioner had explained before the Tribunal that since the matter rested only before the Conciliation Officer, his understanding was that there was no claim in the Labour Court, besides the fact that when the claim was withdrawn, authorised representative of the Management/School was present. Record shows that the same person Sh. Mohit Sharma had filed the reply to the Appeal. Significantly, even the Respondent did not mention about the filing of the claim before the Conciliation Officer in the detailed reply, despite devoting a paragraph on alleged concealment of facts relating to factual matrix of the acts of omission and commission, including bar of limitation as preliminary objections. This was obviously because even the Respondent understood that filing of the claim before the Conciliation Officer was inconsequential. As rightly contended by the Petitioner, only when the proceedings were at the fag end and appeal was to be finally argued, Respondent filed the application under Order VII Rule 11 CPC, alleging concealment and this is a classic and text book case of ‘kettle calling the pot black’. This Court finds that the Tribunal has grossly erred in dismissing the Appeal on this ground.
Accordingly, the writ petition was allowed. Matter is remanded back to the Tribunal for hearing on merits.
