1. This petition raises a rather important question as to the ambit of the jurisdiction of the Industrial Disputes Appellate Tribunal under Section 22 of Act XLVIII of 1950, On 21-1-1954, respondents No. 2, the New China Mills gave a notice of change under Section 42 Bombay Industrial Relations Act, with regard to change in items 1 and 4 of Sch. IV to that Act, and in substance the change which the mills intended to bring about was that instead of the workers attending to two sides of ring frames in the Ring Department, the workers had to attend to four sides.
Conciliation proceedings were commenced on 28-1-1954, and on 9-9-1954, these proceedings failed and a report to that effect was made by the Conciliator. On 22-9-1954, an application was made by the mills for permission to bring about this change under Section 22 of the Industrial Disputes (Appellate Tribunal) Act and on 15-10-1954, the Appellate Tribunal gave its permission to the mills. It is this order that is challenged by the petitioner.
2. Turning to the relevant section, it provides that:
'During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act, no employer shall:
(a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or...save with the express permission in writing of the Appellate Tribunal.'
We are not concerned with Clause (b) of that section in this petition. It is not disputed that the petitioner was concerned in an appeal which was pending before the Appellate Tribunal, and there-fore if the employer wanted to alter to the prejudice of the workmen any condition of service, he had to obtain the express permission in writing of the Appellate Tribunal.
3. Now, what is contended by Mr. Nargolkar is that when an application under Section 22 is made by the employer, the Appellate Tribunal should only give its permission after an adjudication of the dispute between the employer and the employee. It is contended that Section 22 confers upon the Appellate Tribunal the same jurisdiction that Section 23 does. For the purpose of tins argument it is necessary to look at the provisions of Section 23.
That section confers certain important right upon the employee and the right is that if an employer contravenes the provisions of Section 22, then the employee aggrieved by such contravention may make a complaint in writing to the Appellate Tribunal and on receipt of such complaint the Appellate Tribunal has been given the jurisdiction to decide the complaint as if it were an appeal pending before it in accordance with the provisions of the Act, and it is incumbent upon the Appellate Tribunal to pronounce its decision upon the complaint and the provisions of the Act shall apply, accordingly.
Therefore, as far as the construction of Section 23 is concerned, there can be no doubt that on a complaint made by the employee with regard to the contravention of Section 22 not only has the Appellate Tribunal to consider whether an action has been taken by the employer under Section 22 without the permission in writing of the Appellate Tribunal, but also the merits of the dispute between the employer and the employee.
What is suggested is that whereas Section 23 gives the right to the employee to have an industrial dispute adjudicated, a similar right is conferred upon the employer under Section 22, and if the employer goes for permission to the Appellate Tribunal, he can only get the permission after the Appellate Tribunal had adjudicated upon the dispute, and only after the Appellate Tribunal has come to the conclusion that the dispute must be decided in favour of the employer that the Appellate Tribunal should give the requisite permission under S, 22.
Apart from authorities and apart from any other argument advanced by Mr. Nargolkar with which we shall presently deal, it is clear on the language itself of the two sections, viz. Section 22 and 23, that the ambit of the jurisdiction conferred upon the Appellate Tribunal under Section 22 is different and more limited than the ambit of the jurisdiction conferred upon the Appellate Tribunal under Sections 23. Section 22 does not require the Appellate Tribunal before granting permission to treat the application of the employer as if it were an appeal, nor does it require the Appellate Tribunal to pronounce its decision upon that appeal, nor does it apply the provisions of the Act to the decision of the Appellate Tribunal.
All that Section 22 lays down is that the Appellate Tribunal may or may not give its permission to the application made by the employer. It is equally clear that an employer can only apply for permission to alter the conditions of service of the workmen provided he could have altered 'those conditions without the permission of the Appellate Tribunal. In other words, the pendency of the appeal imposes a ban upon the employer and he is prevented from doing that which he could have done but for the pendency of the appeal. It is therefore in order to remove that ban that he has got to approach the Appellate Tribunal and get its express permission.
4. Now, we may look at parallel legislation which is to be found in the Industrial Disputes Act and the corresponding sections are Sections 33 and 33A. Section 33 is in terms identical with Section 22 and it requires the employer to take the express permission of the conciliation officer, Board or Tribunal, as the case may he, during the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, nor alter the conditions of service or, as in the case of Section 22(b), dismiss or discharge or punish any workmen concerned in such dispute.
Section 33A corresponds to Section 23 and there again we notice that the Legislature has conferred upon the Tribunal the jurisdiction to adjudicate upon the complaint made by the employee when the employer contravenes the provisions of Section 33, and it has also made clear that the adjudication must be as if the complaint were a dispute referred to or pending before it, and Section 33A also requires that the Tribunal shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly.
Therefore the Legislature has made it amply clear that when a complaint in made by the employee under Section 33A, that complaint must be adjudicated upon as if it were an industrial dispute and an award must he made upon that complaint. As in the case of Section 22 the language used by the Legislature under Section 33 is entirely different and no question arises under Section 33 or can arise of the Appellate Tribunal adjudicating upon the application made by the employer for permission either under Clause (a) or (b).
5. Now, we have really failed to understand the grievance made by Mr. Nargolkar that such an interpretation upon Section 22 will seriously prejudice the rights of the workers. We have had occasion to say it before and we will say it again that we are always most reluctant to put any interpretation upon labour legislation which is likely to prejudice the rights or welfare of labour. We are fully conscious of the fact that our Legislature has put labour legislation on the statute hook primarily for the purpose of redressing the balance between employers and employees and that we should not, unless we are compelled to do so by the clear language used by the Legislature, put any construction upon any provision of labour legislation which will in any way prejudicially affect their rights.
Therefore we have heard Mr. Nargolkar at some length in order to understand what exactly is the suggestion that the interpretation put upon Section 22 which limits the ambit of the jurisdiction of the Appellate Tribunal would affect any rights of workmen. As we have already said, under Section 22 an employer cannot be permitted to do something which he could not otherwise have done. Therefore Section 22 does not confer any new right upon the employer.
On the contrary Section 22 limits the right of action of the employer by reason of the pendency of the appeal. In this very case, after the conciliation proceedings failed and the Conciliator made his report, it would have been open to the employer to carry out the change within two months of the making of that report. If no appeal had been pending, lie could have done so suo motu without approaching any authority or any person for permission or sanction. But because the appeal Was pending his right of action was restricted and be could not proceed to do what he would other wise have done and had to approach the Appellate Tribunal for permission.
It is difficult to understand how a provision like this under Section 22 prejudicially affects the rights of the workers. We should have thought that far from prejudicing them in any way the Legislature advisedly imposed this limitation upon the action of the employer in the interest of the employees aud the reason is obvious. It an appeal is pending, an employer should not be permitted to do anything which may be in the nature of victimization or which might be the result of want of good, faith on his part. In order that the hearing of the appeal should not be in any way prejudiced by the employer holding out any threats against the employees who are involved in that appeal, the Legislature has provided that the express permission of the Appellate Tribunal must be obtained before the employer, can act to the prejudice of the employees.
Therefore, in our opinion, all that is necessary to consider before permission is granted under that section is whether a prima facie case is made out by the employer. If a prima facie ease has been made out on merits, then it is further incumbent upon the Tribunal to consider whether the action taken by the employer is a bona fide action. If the Tribunal comes to the conclusion that the action of the employer was not the result of the requirement of the situation or did not proceed from a consideration of the merits, but was actuated by an indirect motive or want of good faith, then undoubtedly the Tribunal would refuse to grant permission under Section 22.
6. It is then suggested that a decision of die Appellate Tribunal under Section 22, which decision is arrived at without a proper adjudication, would prejudice the employees in raising an industrial dispute with regard to that change. Now, that contention also is without any basis. It is clear that if the Appellate Tribunal is not adjudicating upon the industrial dispute under Section 22 and if it is not making any award with regard to that dispute, the rights of the workers to raise an industrial dispute with regard to any change made by the employer in the conditions of service of the employees remain entirely unaffected.
Whatever rights the workers have under the Bombay Industrial Relations Act to raise a dispute with regard to this matter are not in any way altered or affected or prejudiced by the decision given by the Appellate Tribunal that a prima facie case has been made out by the employer for a change in the conditions of service, that the application is made bona fide, and therefore permission should be granted.
It was urged by Mr. Nargolkar that the change that the employer sought to make constituted a breach of the contract between the employee and the employer.
He says that the employees agreed to serve the mills on certain conditions of service and one of the conditions was that they should attend to two sides of the ring and not to four sides, and Mr. Nargolkar says that it is not open to the Appellate Tribunal to permit the employer to violate the Common law rights of the employees. Now, no one for a moment suggests that labour legislation in any way affects the contractual right of the employees.
There is no compulsion upon the employees to serve the mills if they are not satisfied with the new terms offered by the employer, but the Bombay Industrial Relations Act does not prohibit the employer from changing the conditions of service provided lie has followed the necessary procedure if by doing so he infringes any contractual rights of the employee, the civil Court is always there for the employee to assert his rights and to obtain such relief as the civil Court might be able to award to him.
But we are not concerned here with Common law rights of the employees. We are only concerned with labour legislation and the relations between the employee and employer regulated by labour laws and if the labour legislation does not prohibit the employer from making a change in the condition of service of the employee, Section 22, far from adding, to the rights of the employer or taking away the rights from the employee, imposes a limitation upon the right of action of the employer and introduces a ban which the employer has to get removed before taking an action which he could have taken if an appeal had not been pending.
Therefore, there is no substance in Mr. Nargol-kar's contention that the employees will be prejudiced by the decision given by the Appellate Tribunal that the employer should have the permission to alter the conditions of service of the workers.
7. Turning to the authorities, there is a decision of this Court reported in -- 'Batuk K. Vyas v. Surat Borough Municipality', : AIR1953Bom133 , which undoubtedly contains certain observations which help Mr. Nargolkar. In that case myself and Gajendragadkar J. were concerned with construing Section 33A and curiously enough Mr. Phadke who appeared for the workers in that case contended before us that under Section 33A there cannot be an adjudication binding between the employers and the employees.
What was urged was that when there is a com-plaint under Section 33A all that the Tribunal can do was to consider whether there had been a contravention of the provisions of Section 33, but the Tribunal could not go into the merits of the dispute. We rejected that contention and pointed out that the language of Section 33A was clear and was not capable of the construction which Mr. Phadke sought to put upon it.
In considering Section 33A we also looked as the provisions of Section 33 and the tentative conclusion we came to, as is apparent from what we said at page 135 was that Sections 33 and 33A are complementary to each other arid that it was open to the employer to get an adjudication on the question of the change that he proposes to make under Section 33 by applying to the Tribunal for permission. Now, this case cannot be looked upon as an authority on the interpretation of Section 33 because that question did not arise before us.
It will also be noticed that we did not consider the marked difference in language used in Section 33 and the language used in Section 33A.
8. The next decision on which reliance -has-been placed is one reported in -- 'Eugene Fernandes v. Labour Appellate Tribunal of India', : (1954)ILLJ623Bom and there the question was whether the Appellate Tribunal had rightly interfered with the decision of the Industrial' Tribunal which had held that an application made by the employer under Section 33 for permission for dismissing the employee should not be granted, and it was in that connection that we bad to consider the jurisdiction of the Industrial Tribunal under Section 33, but in that judgment we pointed out at p. 346 that as it was not suggested by the Appellate Tribunal that the Industrial Tribunal had travelled outside the ambit of Section 33, strictly the question of construction of Section 33 did not arise, but we went on to point out that even assuming the construction of Section 33 did arise, the Industrial Tribunal had got to decide whether a 'prima facie' case was made out for the discharge or dismissal of the workman.
It was in this connection that we referred to the decision of the Supreme Court reported in --'Atherton West & Co. Ltd., Kanpur v. Suti Mill Mazdoor Union', : (1953)IILLJ321SC and although that decision had no direct bearing upon the question we were considering in that case, it has a direct bearing upon the question we were considering in that case, it has a direct bearing 'on the question before us in tins petition.
There the Supreme Court was construing Clause 23 of a notification issued by the Uttar Pradesh Govern-ment regarding the constitution of Regional Conciliation Boards and Industrial Courts, and Clause 23 was in identical terms with Section 33 of the Industrial Disputes Act and Section 22 of the Industrial Disputes (Appellate Tribunal) Act. There the permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer had to be obtained before an employer could discharge or dismiss any workman during the continuance of an inquiry or an appeal, and in the case before the Supreme Court the necessary permission was obtained to dismiss the respondents.
The respondent then raised an industrial dis-jpute and an award was given by the Industrial Court in favour of the respondents holding that their dismissal was wrongful, and before the Supreme Court it was contended that in view of the fact that permission had been granted under Clause 23 by the Regional Conciliation Officer the award was without jurisdiction. What was urged was that after the permission was granted, it was not open to the workmen to contend that the dismissal was wrongful nor could they raise an industrial dispute with regard to the subject-matter of the permission.
This contention was rejected by the Supreme Court, and Bhagwati J. at page 244 in his judgment points out that Clause 23 imposed a ban on the discharge or dismissal of any workman pending the inquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss the workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned, and the only effect of such permission would be to remove the ban against the discharge or dismissal of the workman during the pendency of those pro-feedings; and Bhagwati J. discussing the scope of the inquiry before the Regional Conciliation Officer says that the effect of the permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the employer to discharge or dismiss the workman during the pen-dency of the proceedings.
These remarks, with respect, can be applied to the construction of Section 33 or Section 22 of the relevant Acts. The effect of the permission granted by the Appellate Tribunal is not to validate the change brought about by the employer, but is merely intended to remove the ban imposed by the two sections, and Bhagwati J. also points out that notwithstanding the permission the dismissed workman could raise an industrial dispute and get an adjudication on that dispute. Mr. Nargolkar has pointed out that the Supreme Court was considering the case of a Conciliation Officer who could not possibly have adjudicated upon the dispute, whereas we are concerned' with a Tribunal which has the jurisdiction to adjudicate upon disputes between the employer and the employee.
Undoubtedly that distinction does exist in the case before us and the case before the Supreme Court, but although the Appellate Tribunal has the jurisdiction to adjudicate upon disputes, the question that we have to consider is not whether it could have exercised that jurisdiction but whether the Legislature has conferred that jurisdiction upon he Appellate Tribunal. If the Legislature had conferred the jurisdiction, undoubtedly the Appellate Tribunal could have exercised it as it does exercise the jurisdiction of adjudication under Section 3. Therefore the correct approach to the question is not to consider what is the general jurisdiction of the Tribunal, but what is the special jurisdiction conferred upon it with relation to the subject-matter that comes before it under Section 22.
9. Now, turning to the decision of the Appellate Tribunal in this case; they have held a 'prima facie' inquiry into the merits of the matter and they have come to the conclusion that the change will not impose an undue strain on the workmen. They have also held that the change was not inspired by any wrong motive and they have also observed in their order that but for the fact that there was an appeal pending the employers would have been entitled to go ahead with the proposed change.
Under the circumstances, we are of the opinion that the permission granted by the Appellate Tribunal cannot be challenged on the ground that it was granted in the absence of jurisdiction or that the jurisdiction was not properly exercised as required by Section 22 of the Act.
10. The result is that the petition fails and must be dismissed. No order as to costs.
11. Petition dismissed.