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Gowrishanker Oil Mills Vs. Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos. 63 and 119 to 121 of 1961
Judge
Reported in(1962)IILLJ527Kant; (1962)IILLJ527Kant
ActsIndustrial Disputes Act, 1947 - Sections 10(1), 33, 33(1), 33(2) and 33A
AppellantGowrishanker Oil Mills
Respondentindustrial Tribunal and ors.
Excerpt:
- karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 21 (1) & form 7a: [anand byrareddy, j] right of a beneficiary under a will claim for occupancy rights by virtue of the bequest under the will grant of occupancy rights challenge to finding of the tribunal that petitioner was not a full brother of the deceased tenant transfer of agricultural land with occupancy rights in favour of heirs - held, the object of section 21 being to confine the rights of tenancy only to stranger is barred. finding of the tribunal was upheld. - 33(2) that before an employee can complain that its provisions have been contravened, it should be established that 'a proceeding in respect of an industrial dispute' was pending before the tribunal when the employees were dismissed......this tribunal to adjudicate upon these complaints. the foundation of this objection was that the dispute referred to the tribunal was not an industrial dispute since that dispute did not have the support of a substantial section of employees. 3. at an earlier stage of the proceedings relating to the reference some of the employers raised an objection to the competence of the tribunal to proceed with the reference. the ground on which that objection was founded was the same as the one on which the competence of the tribunal to adjudicate upon the complaints was founded. by an order made by the tribunal on 8 october, 1960 on that earlier objection, it proclaimed its intention to decide the question whether the dispute was or was not an industrial dispute along with the other question.....
Judgment:
ORDER

Somnath Ayyar, J.

1. These writ petitions involve the question whether the industrial tribunal, Bangalore, has jurisdiction to adjudicate upon certain complaints made by some of the employees who are the petitioners in these cases that there has been a transgression of the provisions of S. 33 of the Industrial Disputes Act by the concerned employers. The question arises in this way.

2. On 25 November 1959 a dispute, which according to the State Government was an industrial dispute, was referred to the Industrial tribunal under S. 10(1)(d) of the Industrial Disputes Act. That reference is now pending before the industrial tribunal presided over by Mr. Malimath. An objection was raised on behalf of the employers to the jurisdiction of this tribunal to adjudicate upon these complaints. The foundation of this objection was that the dispute referred to the tribunal was not an industrial dispute since that dispute did not have the support of a substantial section of employees.

3. At an earlier stage of the proceedings relating to the reference some of the employers raised an objection to the competence of the tribunal to proceed with the reference. The ground on which that objection was founded was the same as the one on which the competence of the tribunal to adjudicate upon the complaints was founded. By an order made by the tribunal on 8 October, 1960 on that earlier objection, it proclaimed its intention to decide the question whether the dispute was or was not an industrial dispute along with the other question arising in the case.

4. Against that order made by the industrial tribunal, the employers who were aggrieved by it presented W.P. No. 1327 of 1960 to this Court and by the order made by us in that writ petition today (vide p. 516 supra) we have issued a direction to the tribunal directing it to decide the question whether the dispute referred to is or is not an industrial dispute as a preliminary issue.

5. In these writ petitions what is contended on behalf of the employers is that the tribunal cannot proceed to adjudicate upon the complaints made by the employees without in the first instance deciding whether the dispute pending before the tribunal is or is not an industrial disputes. What bestows, according to the petitioners, jurisdiction to the tribunal to adjudicate upon the complaints is the pendency before the tribunal of a proceeding properly instituted under the Act. It is urged that since the question as to whether the dispute referred by the Government to the tribunal is or is not an industrial dispute is one which has still to be decided by the tribunal, it could not be asserted by anyone that there is any proceeding under the Act pending before the industrial tribunal thus making it incompetent for the tribunal to adjudicate upon the complaints at this stage.

6. It seems to me that this a argument is sound and should be accepted. Section 33A empowers the tribunal to adjudicate upon a complaint that the provisions of S. 33 have been contravened. The complaints in these cases were that the provisions of S. 33(2)(b) had been contravened. It would now be necessary to reproduce the provisions of S. 33(1) and (2) :

'33. (1) During the pendency of any conciliation proceeding before a conciliation officer or a board or of any proceeding before a labour court or tribunal or national tribunal in respect of an industrial dispute, no employers shall -

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the, workman concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, -

(a) alter, in regard to any matter not connected with the dispute the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman :

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.'

7. Sub-sections (3), (4) and (5) have no relevance to the present case.

8. The story of the employees before the tribunal was that during the pendency of the proceeding before the tribunal, they were dismissed without the observance of the procedure prescribed by Sub-section (2) of S. 33 and that therefore the tribunal should treat the complaints made by them as if they were disputes referred to or pending before it and make an award accordingly.

9. It is clear from the provisions of S. 33(2) that before an employee can complain that its provisions have been contravened, it should be established that 'a proceeding in respect of an industrial dispute' was pending before the tribunal when the employees were dismissed. The requirement of the proviso to Sub-section (2) of S. 33 that a workman should be discharged only after he had been paid wages for one month and that an application should be made thereafter for the approval of the action taken by the employer can have no application if no proceeding in respect of an industrial dispute is pending before a tribunal when the employee is dismissed. What gives jurisdiction to the tribunal to enquire into a complaint made under S. 33(2) is the pendency of a proceeding in respect of an industrial dispute before it at the stage when the employee is dismissed.

10. If no such proceeding is pending before the tribunal, it is clear that the employer would be at liberty to dismiss his servant even without observing the requirements of the proviso to S. 33(2) and if he does that, no employee can claim that any provisions of S. 33(2) have been contravened, whatever might have been the other statutory provisions that might have been contravened by such action taken by the employer.

11. It is therefore clear that before the tribunal could adjudicate upon the complaints made by the employees in this case, it had to record a positive finding that there was a proceeding pending before it in respect of an industrial dispute. If the employees, as they have done in these cases, have urged before the tribunal that no such proceeding was pending before it for the reason that the dispute is not an industrial dispute, it would be impossible for the tribunal to adjudicate upon the complaints before it, unless it decides in the first instance that the dispute referred to it is an industrial dispute.

12. The tribunal by its order made, as I have mentioned, on 8 October 1960 declined to decide the question whether the dispute referred to it by the State Government is an industrial dispute. By reasons of the decision of the tribunal not to record its finding on that question, it cannot, before it decides that question, proceed to adjudicate upon the complaints made under S. 33A. A decision on the question whether the dispute referred was an industrial dispute must, it is clear, precede any adjudication upon a complaint made under S. 33A.

13. This being the position, the order that we should make in these cases would be to direct the tribunal to forbear from adjudicating upon the complaints made by the employees in these cases until it decides that the dispute referred to it is an industrial dispute.

14. It is no doubt true that applications presented under S. 33A must be disposed of with the utmost dispatch and that it would normally be undesirable to postpone the adjudication of complaints made under S. 33A until after the award in the reference is made by the tribunal. As a result of the decision of the tribunal to decide the fourth issue along with the other issues in the case, the position that has been reached is that the tribunal would be incompetent to adjudicate upon the complaints presented to it under S. 33A until it makes its award.

15. But, by an order made by us today in W.P. No. 1327 of 1960, (vide p. 516 supra) we have directed the tribunal to dispose of the fourth issue as a preliminary issue. The tribunal has now therefore to decide that issue in that way. If the finding on that issue is that the dispute referred to the tribunal is an industrial dispute, the tribunal could proceed to adjudicate upon the complaints made under S. 33A. Now that the fourth issue will be tried as a preliminary issue, the proper order that we should make in these cases would be to direct the postponement of the adjudication on the complaints made by the employees till it is decided by the tribunal that the dispute referred to it by the State Government under S. 10(1)(d) is an industrial dispute. This is the only order which we need make in these cases and it is ordered accordingly.

Kalagate, J.

16. I agree.


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