1. The only question for determination in this writ petition is whether the Assistant Commissioner of Labour-III, the 4th Respondent herein, who is a Conciliation Officer, could decide an industrial dispute on merits.

2. The petitioner is a post-graduate in M.A. and holds a post-graduate diploma in computer applications. He is a qualified typist. He has been engaged to work as a contract labour with the Andhra Pradesh Central Power Distribution Company Limited (APCPDCL) through a private contractor.

3. According to the petitioner, he is eligible for absorption as a regular employee in terms of B.P.Ms.No.36, dated 18-05-1997 issued by the APCPDCL. Since the 01st Respondent-Company did not take any action for his absorption, he raised a dispute through the Union before Respondent No.4 requesting to initiate conciliation proceedings in the matter. Accordingly, conciliation proceedings were commenced through proceedings dated 06-01-2011 and Respondent Nos.2 and 3 were called upon to submit remarks on the petition filed by the petitioner. The respondents submitted their remarks dated 11-01-2011 opposing the claim of the petitioner. They took a stand that the petitioner was engaged through a contractor as per the Contract Labour Act. The 01st respondent-company, being a Government company guided by the Government directives issued from time to time, cannot take a policy on its own. The petitioner cannot be absorbed since there was a ban on the recruitment of clerical staff imposed by the State Government. It was further stated that a notification was issued in the year 2006 wherein preference has been given to the serving contract labour by giving them weightage marks in the recruitment of the post. Therefore, the petitioner was not entitled for absorption and that the petitioner could seek relief at a later point of time.

4. It is clear from the stand taken by the 1st respondent-company that it was not willing to appoint the petitioner by way of absorption in terms of B.P.Ms.No.36, dated 18-05-1997, whereas according to the petitioner he was entitled for the same. The proceedings accordingly indicate that the parties did not reach settlement in the conciliation proceedings.

5. Section 12 of the Industrial Disputes Act, 1947 relate to proceedings before the Conciliation Officers. Under the said provision, the Conciliation Officer may have to hold conciliation proceedings where any industrial dispute exists or is apprehended. For the purpose of brining about a settlement, he shall investigate the dispute and all matters affecting the merits and the right settlement thereof by inducing the parties to come to a fair and amicable settlement. If a settlement is arrived at, he shall send a report to the appropriate Government along with a Memorandum of Settlement signed by parties to the dispute. If no such settlement is arrived at, he shall close the investigation and send to the appropriate Government a failure report setting-forth the steps taken by him in the matter along with his opinion as to why settlement could not be arrived at.

6. The aforesaid provision makes it abundantly clear that the duty of the Conciliation Officer is only to initiate the process of conciliation and exercise all his powers for investigating the dispute and all the matters connected therewith and make all efforts to arrive at an amicable settlement. If the settlement is arrived at, he will have to forward the same to the appropriate Government, but in case there is a failure of conciliation, he shall have to send a failure report to the appropriate Government. None of the provisions contained in Section 12 authorize the Conciliation Officer to adjudicate the dispute himself. Similarly, on a report sent by the Conciliation Officer, even the appropriate Government cannot adjudicate the dispute on its own and it shall have to refer the matter to a Board/Labour Court/Tribunal or National Tribunal, as the case may be, in case it is satisfied that there is a case for reference.

7. In the case on hand, the 04th Respondent-Conciliation Officer has passed the following order :

On the receipt of your application, the management of Andhra Pradesh Central Power Distribution Company Limited was requested to submit their parawise remarks.

A copy of the remarks received in this office is enclosed herewith.

From the perusal of the parawise remarks, it is observed that there is a ban on the recruitment of LDCs imposed by the Government of Andhra Pradesh, recruitment in the lower/initial cadre was stopped since the Andhra Pradesh Central Power Distribution Company Limited is a Government company guided by the Government Directives issued from time to time and cannot take a policy decision on its own. As and when the ban is lifted, the management may consider the case of worker in question, if found fulfilling all the norms prescribed.

In the circumstances, no action needs in the matter as of now.

8. A perusal of the aforesaid order shows that there was no meeting point between the parties to the dispute. In that event, the 04th Respondent-Conciliation Officer ought to have recorded the proceedings and sent failure report to the appropriate Government along with his opinion. Instead, he has taken the responsibility upon himself and adjudicated the matter on merits. He is not competent to say under what circumstances relief to a workman should be either granted or rejected. It is for the Board/Labour Court/Tribunal or National Tribunal, as the case may be, which are the adjudicating bodies under law to decide the dispute on merits.

9. Sharad Kumar v. Govt. of NCT of Delhi(2002- II-LLJ 275)was a case wherein the appellant therein was terminated from service without a show cause notice or enquiry. The appellant challenged the legality of the order. The Conciliation Officer submitted a failure report to the State Government. The State Government declined to refer the dispute to the Industrial Tribunal or the Labour Court for adjudication, but decided the matter itself holding that the appellant was not a workman as defined under the Act. The said order was confirmed by the High Court. On a consideration of the facts of the case and the relevant law on the subject it was held by the Supreme Court that the jurisdiction vested in the appropriate Government to make a reference or refuse to do so is administrative in nature and depends on the opinion formed by it on perusal of the report and the materials received from the Conciliation Officer, but the dispute cannot be decided by itself on merits. It was held that whether the appellant was a workman or not requires examination of factual matters for which materials, including oral evidence, will have to be considered. The State Government could not arrogate itself the power to adjudicate on the question and held that the respondent is not a workman. Such a matter should be decided by the Industrial Tribunal/Labour Court on the face of the material placed before it by the parties. The aforesaid case squarely covers the case on hand. In the instant case too the Conciliation Officer decided the matter as if there was a ban imposed by the State Government and that the 01st Respondent-company cannot take a policy decision on its own and it is bound by the directives of the State Government. This approach of the 04th Respondent-Conciliation Officer is clearly beyond his jurisdiction.

10. Accordingly, the Writ Petition is allowed setting aside the impugned order bearing No.ID/01/2011, dated 24-01-2011 passed by the 04th Respondent. Consequently, the 4th Respondent shall send the failure report to the appropriate Government within four weeks from the date of the receipt of a copy of the order for eventual action as per law. No order as to costs.

11. In view of the disposal of the writ petition, W.P.M.P. No.5784 of 2011 stands closed.