Skip to content


i.T.C. Ltd. Vs. Govt. of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 31400 of 1981 and 37689 of 1982
Judge
Reported inILR1985KAR184; 1984(2)KarLJ252; (1985)ILLJ227Kant
ActsIndustrial Disputes Act, 1947 - Sections 1, 2, 2A , 10, 10(1), 10(1A), 10(3), 10(4), 10(6), 11A, 12, 12(3), 12(5), 20(2), 23, 33, 33(1), 33(2), 33(3), 33(5) and 33A
Appellanti.T.C. Ltd.
RespondentGovt. of Karnataka and ors.
Excerpt:
- income tax act,1961[c.a.no.43/1961] -- section 254(2) : [k.l. manjunath & arali nagaraj, jj] power of tribunal to review its order -whether the tribunal can exercise its powers under section 254(2) of the act to review its earlier on merits? held, the tribunal can review its own order if there is a mistake apparent from the record. but in the present case, the power exercised by the tribunal under section 254(2) of the act results in reviewing the entire earlier order by reconsidering its earlier findings which is not the scope of 254(2) of the act. hence, impugned order was set aside. - when such a dispute is referred for adjudication, it is equally well settled that the findings recorded by the labour court or the tribunal, in s. the industrial dispute may nonetheless continue.....order1. in these two writ petitions presented by the i.t.c. ltd., bangalore, the following important question of law arises for consideration : whether during the pendency of proceedings under s. 33(2)(b) of the industrial disputes act ('the act' for short) pursuant to the application preferred by the management of an industry seeking the approval of the labour court or the tribunal, as the case may be, to the dismissal of a workman, the government has the power under sub-s. (1) of s. 10 of the act refer the same dispute for industrial adjudication 2. the facts of the case, in brief, are as follows : (i) in w.p. no. 31400/81 : the petitioner instituted disciplinary proceedings against number of workmen on certain serious charges of misconduct. domestic inquiry was held against each of the.....
Judgment:
ORDER

1. In these two writ petitions presented by the I.T.C. Ltd., Bangalore, the following important question of law arises for consideration :

Whether during the pendency of proceedings under S. 33(2)(b) of the Industrial Disputes Act ('the Act' for short) pursuant to the application preferred by the management of an industry seeking the approval of the Labour Court or the Tribunal, as the case may be, to the dismissal of a workman, the Government has the power under sub-s. (1) of S. 10 of the Act refer the same dispute for industrial adjudication

2. The facts of the case, in brief, are as follows :

(i) In W.P. No. 31400/81 : The petitioner instituted disciplinary proceedings against number of workmen on certain serious charges of misconduct. Domestic Inquiry was held against each of the workman. The Inquiry Officer found them guilty of the charge levelled against them. The petitioner accepted the findings and imposed penalty of dismissal, on various dates. The number of workmen so dismissed, who are concerned in this petition are 42. Ten out of 42 workmen were dismissed on 18th March, 1980. One of them was dismissed on 14th March, 1980. The rest of the 31 workmen were dismissed from service by orders made in December 1980. Some of these orders were made on 3rd December, 1980 and others on 18th December, 1980. At the time when the orders of dismissal were made against 31 out of 42 workmen in December, 1980, an industrial dispute was pending before the Labour Court, Bangalore. As these 31 workmen were connected with the said dispute, the petitioner made applications before the Labour Court, Bangalore, under S. 33(2)(b) of the Act seeking its approval to the orders of dismissal, as it is a mandatory requirement of S. 33(2)(b) of the Act. The applications were made on the same date on which the orders of dismissal were made. When these proceedings were pending before the Labour Court, the State Government by its order dated 5th November, 1981 referred the dispute concerning the dismissal of all the 42 workmen for industrial adjudication under S. 10(1) of the Act to the Labour Court, Bangalore. The said order, which is produced as Annexure-E to the petition reads :

'Now therefore, in exercise of the powers conferred by Clause (C) of sub-s. (1) of S. 10 of the Industrial Disputes Act, 1947 (Central Act. No. 14 of 1947), the Government of Karnataka hereby refer the said dispute for adjudication to the Labour Court at Bangalore.

Points for dispute

I. Is the management of I.T.C. Ltd., Bangalore justified in dismissing the workers with effect from the dates noted against their names as shown in the Annexure appended to this Government Order

II. If not, to what relief/(s) the said workmen are entitled.'

Immediately thereafter this writ petition was presented on 7th December, 1981 questioning the competency of the State Government to refer the dispute in so far it relates to the 31 workmen, when proceedings under S. 33(2)(b) of the Act was also pending before the Labour Court.

(ii) In W.P. No. 37689/82 : The petitioner in this writ petition is also I.T.C. Ltd., Bangalore. The petitioner instituted disciplinary proceedings against 11 of its workmen also on certain serious charges of misconduct. Domestic Inquiry was held against each of the 11 workmen. The Inquiry Officer, who held the Domestic Inquiry, recording a finding to the effect that the charges levelled against each of them were established. The petitioner accepted the findings and imposed the penalty of dismissal from service by its order dated 3rd December, 1980. As on the said date, an industrial dispute was pending before the Labour Court, Bangalore, with which the aforesaid 11 workmen were connected, the petitioner made an application before the Labour Court on the same date on which the order of dismissal was made seeking its approval for the orders of dismissal. Even as these proceedings were pending before the Labour Court, the State Government by its order dated 26th November, 1982 (Annexure E) made the following order in exercise of its power under S. 10(1) of the Act. It reads :

'Now, therefore, in exercise of the powers conferred by Clause (C) of sub-s. (1) of S. 10 of the Industrial Disputes Act, 1947 (Central Act No. 14 of 1947) the Government of Karnataka hereby refer the said dispute for adjudication to the Labour Court at Bangalore.

Points of dispute

I. Is the management of I.T.C. Ltd., Bangalore justified in dismissing the following workers from service with effect from the date shown against their names :

Sriyuths :1. Lingaraj2. Shankarappa3. Vasudevan4. Chandrasekar5. Yohan6. Karunakaran7. Ashokan, M. S.8. Thyagarajan9. Irudayanadan10. Gajarajan11. Chandrakumar- 3rd December, 1980.12. Nagaraj- 18th December, 1980.14. Joseph 15. Prabhakar 16. Naronha- 22nd December, 1980.II. If not, to what relief (s) are these workmen entiled

Immediately thereafter, this writ petition was presented by the petitioner on the 13th of October, 1982 questioning the competence of the State Government to refer the dispute for adjudication even though an identical matter was pending before the Labour Court in proceedings commenced under S. 33(2)(b) of the Act.

3. Sri Shanthi Bhushan, learned counsel for the petitioner, contended that the State Government had no competence to refer a dispute concerning the imposition of penalty of dismissal from service against a workman when an identical question was pending consideration in a proceeding commenced under S. 33(2)(b) of the Act.

Elaborating the above contention, learned counsel submitted as follows :

'S. 10(1) of the Act confers power on the State Government to refer an industrial dispute for adjudication to a Labour Court or the Tribunal, as the case may be, which is a general power, but in a circumstance where as industrial dispute is pending before the Labour Court or the Tribunal or Conciliation Officer, as the case may be, with which a workman is connected, S. 33(2)(b) of the Act requires that if the management of the concerned industry were to dismiss or remove such workmen from service for misconduct, the management has to comply with three mandatory requirements, namely - (i) passing of an order after holding a due inquiry and communicating the same to the workmen concerned;

(ii) payment of one month's wages to the workmen; and

(iii) making an application to the Labour Court or the Tribunal or the Conciliation Officer, as the case may be, seeking its approval, for the order of dismissal simultaneously.

When such an application is made to the Labour Court or the Tribunal, it has the full powers to go into the validity of the order of dismissal including the validity of the domestic inquiry and to pass final order either according approval or rejecting the application of the management. In the event of according or approval, the workmen concerned has the right to raise an industrial dispute and in view of the provisions of S. 2A read with S. 10(1) of the Act, the State Government, has the power to refer such dispute for industrial adjudication. When such a dispute is referred for adjudication, it is equally well settled that the findings recorded by the Labour Court or the Tribunal, in S. 33(2)(b) proceedings do not operate as res judicata.

Therefore, in respect of matters which are pending under S. 33(2)(b) of the Act, the dismissal order becomes effective only in the event of the Labour Court or the Tribunal according approval to the dismissal and, therefore, it is only thereafter, it can be said that a dispute relating to the dismissal of the workmen concerned arises which could be referred for adjudication under S. (1) of the Act. From this it follows, till such approval is recorded there is no industrial dispute to be referred for adjudication. Even on the basis that the dispute relating to the validity of the dismissal, even at the stage of S. 33(2)(b) proceedings, is industrial dispute as defined under S. 2(k) read with S. 2A of the Act, when the Legislature has provided a special remedy in respect of cases falling under S. 33(2)(b) of the Act, the special jurisdiction must prevail against the general jurisdiction conferred under S. 10(1) of the Act.

4. In support of the above contention, Sri Shanthi Bhushan relied on the judgment of Sabyasachi Mukherji, J. as he then was, in M/s. Mitsubishi Shoji Kaisha Limited v. IV Industrial Tribunal, [1973-I L.L.J. 146]. In that case, the first question for consideration was whether reference under S. 10(1) of the Act was valid when no dispute was raised by a trade union or substantial number of workmen. The second question for consideration was whether reference was competent during the pendency of S. 33(2)(b) proceedings. His Lordship having held on the first question that there was industrial dispute raised by trade union or substantial number of workmen, which could be referred, answered the second question, thus :

'I am also of the opinion that until and unless the application under S. 33(2)(b) is disposed of, there cannot be a reference to the Tribunal.'

Relying on the aforesaid judgment, learned counsel submitted that it should be held that the impugned orders of reference are without competence and, therefore, invalid.

5. Sri N. Devadas, learned counsel for the Government and Sri Subba Rao, learned counsel for the workmen, per contra, contended that the power under sub-s. (1) of S. 10 of the Act to refer any dispute for adjudication was plenary and having regard to the language of the section, the Government had the power to refer the dispute at any time for industrial adjudication. The fact that an identical dispute is pending consideration in S. 33(2)(b) proceedings constitutes no bar for making the reference. In support of his submission, learned counsel relied on the judgment of Ramaswamy, J. as he then was, in Hindusthan General Electrical Corporation v. State of Bihar, [1965-II L.L.J. 97] The relevant portion of the judgment reads, : (at p. 98).

'On behalf of the petitioner the argument put forward by the learned counsel is that the order of reference made by the State Government is illegal and ultra vires since the proceeding for approval under S. 33(2)(b) of the Industrial Disputes Act was pending before the Labour Court, Ranchi, with regard to the dismissal of the workmen concerned. In our opinion, there is no substance in this argument. The question presented for determination in this case is whether on the date of the reference, namely, on 27th October, 1961, there was material before the State Government upon which it could form an opinion that an industrial dispute existed or was apprehended. It was not disputed by the learned counsel for the petitioner that on 27th October, 1961 the petitioner had in fact dismissed 493 workmen which was the subject-matter of the reference made by the State Government under S. 10(1)(c) of the Act. But the argument put forward on behalf of the petitioner was that until and unless the Labour Court disposed of the applications made by the petitioners for approval of the action taken under S. 33(2)(b) of the Act, there was no final order of dismissal of the workmen and the State Government, therefore, was not competent to make a reference of the Industrial dispute for adjudication under S. 10(1)(c) of the Act. We do not think there is any substance in this argument. The competency of the State Government to make the order of reference on 27th October, 1961 cannot be tested by reference to subsequent possibilities. Even if the Labour Court were ultimately to hold that no approval should be given under S. 33(2)(b) of the Act, the competency of the State Government to make a reference under S. 10(1)(c) of the Act on 27th October, 1961 cannot be challenged.'

Elaborating his contention and in support of the view taken by the Patna High Court, learned counsel submitted as follows : A decision rendered in S. 33(2)(b) proceedings is not final for, even after the according of the approval to the dismissal of the workman, he could raise an industrial dispute and the State Government could refer such dispute for adjudication. Further in a proceeding under S. 10(1) of the Act between the same parties, the findings recorded in S. 33(2)(b) proceedings do not operate as res judicata. Apart from this under S. 11A the Labour Court has the power to examine as to whether the findings recorded was justified on the basis of evidence on record and further it has also the power to find out as to whether the punishment imposed was excessive having due regard to the gravity of the charge and if so to substitute a lesser penalty. Further the Labour Court or the Tribunal functioning under S. 10(1) of the Act has the power to pass an interim order for payment of wages in favour of the workmen under S. 10(4) of the Act, whereas it is the contention of the petitioner that no such power is conferred under S. 33(2)(b) on the Labour Court or the Tribunal, though he controverts the said contention. In S. 33(2)(b) proceedings, the Labour Court or the Tribunal has no power to pass an award either regarding payment of back wages, or reinstatement whereas in proceedings under S. 10(1) of the Act the Labour Court or the Tribunal has such power. The above being the uncontroverted position, if the Government considers that a final adjudication of the dispute concerning the dismissal of a workman, which is possible only in a reference under S. 10(1) is expedient both in the interest of the workman and industrial peace, there is nothing in the provisions of the Act which prevents the Government from making a reference under S. 10(1) of the Act.

6. It is in view of these rival contentions the question set out first arises for consideration. The answer to the question must necessarily depend upon the examination of the scheme of the Act and the intention of the Legislature. S. 10(1) of the Act reads :

'10(1). Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, -

(a) refer the dispute to a Board for promoting a settlement thereof, or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

(c) refer the dispute or any matter appearing to be connected with or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication, or

(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third, Schedule, to a Tribunal for adjudication.'

The above Sub-Section confers power on the appropriate Government to refer an industrial dispute for adjudication. The words 'at any time' used in the provisions are very significant. It indicates that the State Government has the power to refer an industrial dispute existing or even apprehended at any time. There is clear indication in the provisions of the Act that such power could be exercised even when other proceedings are pending under the Act. For instance one of the proceedings which could be pending is a conciliation proceedings under S. 12, which might lead to a settlement under S. 12(3) of the Act. But these proceedings stand terminated if the same dispute is referred for the adjudication under S. 10(1) of the Act as provided in S. 20(2) of the Act. It reads :

'20. (1) * * * *(2) A conciliation proceeding shall be deemed to have concluded

(c) When a reference is made to a Court, Labour Court, Tribunal or National Tribunal under S. 10 during the pendency of conciliation proceedings.'

This provision gives the clearest indication that the State Government can refer a dispute under S. 10(1) of the Act even when the dispute is pending in a conciliation proceeding which might result in a settlement in which event there would be no dispute at all.

7. There is also another indication found in S. 10(6) on the Act. Under S. 10(1A) of the Act the Central Government is given the power to refer an industrial dispute to a National Tribunal notwithstanding the fact such dispute is pending before a Labour Court or Industrial Tribunal, as the case may be. If the Central Government makes such reference, sub-s. (6) provides that the proceedings relating to the same dispute before a Labour Court or Tribunal, as the case may be, on an earlier reference, should be deemed to have been quashed with effect from the date on which such reference is made. These provisions also indicate the legislative intention, namely, that no proceedings pending under any other provisions of the Act prevents the appropriate Government to refer a dispute in exercise of its power either under S. 10(1) or 10(1A), as the case may be, once it considers expedient to do so for securing a final adjudication at the earliest. If such reference is made, it is the pending proceedings which stand terminated, which shows the power to make reference is plenary and it should prevail over any other proceedings pending under the provisions of the Act. The words used 'at any time' in S. 10 of the Act further strengthens that view. To illustrate, under the scheme of the Act, after the conclusion of conciliation proceedings which do not result in the settlement of dispute, it is competent for the Government to take a decision either to refer or not to refer the dispute for adjudication under S. 10(1) of the Act. If it decides not to refer the dispute, it could do so for reasons recorded and communicated to the parties concerned, as such a condition is imposed by S. 12(5) of the Act. The question whether the appropriate Government had the power to refer the same dispute, which the Government had declined to refer for industrial adjudication for recorded reason on an earlier occasion came up for consideration before the Supreme Court in the case of Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal [1979-I L.L.J. 1]. The relevant observations of the Supreme Court on the scope and extent of the power conferred under S. 10 of the Act are of very importance to the decision on the question arising for consideration in this case. The said observations are : at page 7 of [1979-I L.L.J. 1].

'It was said that once an industrial dispute is raised and the Government declines to make a reference, the opposite party is entitled to act on the supposition that the dispute in question was not worth referring and such a dispute would no more be in existence between the employee and the concerned employer and that the Government cannot spring by subsequently unilaterally making the reference without any fresh or additional material being brought to its notice. S. 10(1) enables the appropriate Government to make reference of an industrial dispute which exists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant. xx xx xx xx xxThe only requirement for taking action under S. 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi-judicial function. Merely because the Government rejects a request for a reference or declines to make a reference, it cannot be said that the industrial dispute has ceased to exist, nor could it be said to be a review of any judicial or quasi-judicial order or determination. The industrial dispute may nonetheless continue to remain in existence and if at a subsequent stage the appropriate Government is satisfied that in the interest of industrial peace and for promoting industrial harmony it is desirable to make a reference, the appropriate Government does not lack power to do so under S. 10(1), nor is it precluded from making the reference on the only ground that on an earlier occasion it had declined to make the reference. The expression 'at any time in S. 10(1) will clearly negative the contention that once the Government declines to make a reference the power to make a reference under S. 10(1) in respect of the same dispute gets exhausted. Such a construction would denude a very vital power conferred on the Government in the interest of industrial peace and harmony and it need not be whittled down by interpretative process.'

The Supreme Court interpreted the words 'at any time' used in S. 10(1) of the Act and held that those words are of widest import and therefore wherever the Government finds that an industrial dispute exists and the same is required to be adjudicated upon in the interest of industrial peace, it has undoubted powers under S. 10(1) of the Act to make reference.

8. As pointed out earlier, it is common ground that the order passed under S. 33(2)(b) of the Act is not final. It is on the said basis, learned counsel for the petitioner contends that the reference under S. 10(1) of the Act is not competent for, the same dispute could be referred under S. 10(1) of the Act for adjudication if and when the dismissal is approved. According to the learned counsel for the petitioner that undisputed position in law supports his contention that until such an approval is accorded the dismissal would be inchoate and, therefore, there is no dispute to be referred. In support of this position, learned counsel relied on the judgment of the Supreme Court in Tata Iron & Steel Company v. Modak, : (1965)IILLJ128SC . In that case the issue before the Supreme Court was whether the proceedings under S. 33(2)(b) of the Act would come to an end if the main dispute come to an end. The Supreme Court held that it would not. In that context, the Supreme Court said this :

'.... It cannot be denied that with the final determination of the main dispute between the parties, the employer's right to terminate the services of the respondent according to the terms of service revives and the ban imposed on the exercise of the said power is lifted. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In order words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent, and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondent's services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted.'

It is true that the Supreme Court in the aforesaid judgment has said that a dismissal to which S. 33(2)(b) of the Act is attracted requires confirmation by an order made under S. 33(5) of the Act and only thereafter it would effectively terminate the service. Even so it cannot be said that there is no dispute as defined under S. 2(k) of the Act read with S. 2A of that Act at that stage for the making of a reference under S. 10(1) of the Act. Notwithstanding the legal position that a dismissal to which S. 33(2)(b) applies remains inchoate until it is approved, the fact remains that it is only after imposing the penalty, the Management has to apply for approval and not before. In other words, the requirement of approval prescribed under S. 33(2)(b) of the Act is not a previous approval, but it is a subsequent approval. It is undisputed that on and after the date of the order of dismissal the workmen would be out of employment and would not be drawing any wages, notwithstanding the fact that the management has filed an application seeking approval of the Labour Court or the Tribunal, as the case may be, to that order, under S. 33(2)(b) of the Act.

9. Similarly even in cases falling under sub-ss. (1) and (3) of S. 33 which requires the taking of permission i.e., previous approval to the dismissal of the workman to whom those sub-sections apply, the Supreme Court has recognised the power of the management to place such workman under suspension from the date of its decision to dismiss him from service and get rid of its liability to pay salary even though it is prevented from issuing dismissal order in view of the mandatory condition precedent imposed by Ss. 33(1) and 33(3) respectively. The resultant position is that unless and until the application for permission is rejected by the Labour Court or the Tribunal, as the case may be, the workman is out of employment and gets no salary, as held in Hotel Imperial v. Their Workmen, [1959-II L.L.J. 544].

10. Thus the difference between a case falling under S. 33(1) or S. 33(3) or S. 33(2)(b) of the Act, is merely notional, for, in the case of the former the workman stands suspended without the right to get wages and in the case of the latter, the workman stands dismissed without the right for wages. The resultant position therefore is that when proceedings under S. 33(1) or S. 33(3) or S. 33(2)(b) are pending, factually the concerned workman would be out of employment and, therefore, an industrial dispute could be raised which could be referred for adjudication under S. 10(1) of the Act.

11. Having regard to the procedure required to be followed by Labour Court or the Tribunal in proceedings under S. 33 of the Act, as held by the Supreme Court in various decisions, there is no different as between the procedure required to be followed under Ss. 10(1) and 33 of the Act. The only two matters in respect of which the Tribunal or the Labour Court, functioning under S. 10(1) of the Act has jurisdiction in view of S. 11A and same Labour Court or the Tribunal functioning under S. 33 has no jurisdiction in view of non-applicability of S. 11A are :

(i) the power to re-appreciate the evidence and record a finding exoneration as against a finding of guilt recorded in the domestic inquiry, and

(ii) the power to modify the penalty imposed by the management and inflict a lesser punishment.

In respect of all other matters, notwithstanding the limited jurisdiction under S. 33 and unlimited jurisdiction under S. 10(1), the procedure required to be followed is one and the same. In view of this position, the proceedings under any of the three sub-sections under S. 33 are as elaborate and take as long a time as proceedings under S. 10(1) of the Act are, and they take. But when it comes to the question of making a final order in these proceedings, the orders made in S. 33 proceedings are not final and, therefore, if the workman raises a dispute in respect of such order, it could be referred for adjudication on all the points or atleast regarding matters falling under S. 11A. This aspect was considered in great detail in the case of Workmen of Mysore Lamp Works v. State of Karnataka, W.P. No. 17184 of 1980, dated 20th March, 1984 and the relevant portion of the judgment reads :

'Thus it may be seen, though practically there is no difference between the scope and nature of inquiry to be held by the Tribunal and Labour Court in a reference under S. 10 of the Act and in a proceeding under S. 33 of the Act in a dispute relating to imposition of penalty or removal or dismissal from service against a workman, they have additional powers in respect of two matters namely - (i) to re-appreciate evidence if domestic inquiry is valid, and

(ii) the power to substitute the penalty of dismissal by lesser penalty even if the finding recorded is valid.

While adjudicating a reference, in view of S. 11A of the Act and they do not have them in a proceeding under S. 33 of the Act.

In the light of the above discussion, I am inclined to take the view, that in all cases concerning dispute relating to imposition of penalties or removal or dismissal from service on workman, with permission or subsequent approval through an order made by a Labour Court or Tribunal, under S. 33 of the Act that would constitute a relevant basis for not referring the points of dispute on which a finding had been recorded recorded in the course of such an order, though it does not constitute a relevant basis for not referring the points falling under S. 11A of the Act which are not within the jurisdiction of the Labour Court or Tribunal while functioning under S. 33 of the Act.'

The above being the position, I fail to see how it can be held that the State Government is not competent to refer a dispute concerning the dismissal of a workman just because the same dispute is pending in a proceeding under S. 33(2)(b) of the Act.

12. Another line of attack of Sri Shanti Bhushan was that S. 33 was a provision providing a special remedy and S. 10(1) was a general one and, therefore, the former should prevail. As against this Sri Subba Rao maintained that S. 33(2)(b) of the Act is no remedy to the workman. I shall first consider whether S. 33(2)(b) of the Act is a special remedy or not. It is common ground that the power conferred under S. 33 as held by the Supreme Court is a limited one i.e., to lift the ban on the power of the management to dismiss a workman to whom the provision applies and, therefore, it is in the nature of restriction imposed on the power of the management. It is the management, which imposed the penalty which is required to go to Court and not the workman against whom the penalty is imposed. Even so, I do agree that it is a special remedy provided to a workman. But the fact remains that the jurisdiction and power of the Labour Court or the Tribunal under S. 33(2)(b) of the Act does not enable the final determination of the dispute and as a decision on reference under S. 10(1) gives finality to the industrial dispute, the latter is a better remedy for the workman. The contention of Sri Shanthi Bhushan would have been unexceptionable, if the Labour Court or the Tribunal was given the power under S. 33 to finally adjudicate the matter and pass an award. As such a power is not available, I am unable to agree that the wider and final remedy under S. 10(1) should yield to a limited and semifinal remedy provided under S. 33(2)(b) proceedings.

13. The contention of the petitioner, namely, that the Labour Court or the Tribunal exercising its power under S. 33 of the Act has no power to pass interim order in favour of the workman which was raised in other writ petitions, in which I have pronounced orders separately today accepting that contention is also an additional reason to hold that the remedy under S. 10(1) of the Act are more advantageous to the workman and, therefore, if the Government choose to refer the dispute at the request of the workmen under s. 10(1) of the Act notwithstanding the fact that the same dispute is the subject matter of proceeding pending under S. 33(2)(b) of the Act, there is nothing in S. 10(1) or under any other provision of the Act, which prevents it from doing so.

For instance take the facts of the case in W.P. No. 31400/81. Out of the dispute concerning 42 workmen whose dismissal constitutes the subject matter of reference under S. 10(1) of the Act, S. 33(2)(b) proceedings were pending only in respect of 31 workmen. Therefore, it the Government considers that the dispute relating to all the 42 workmen are such as require a common reference, it is difficult to hold that it had no competence to do so and to quash the reference in respect of 31 workmen on the ground that proceedings under S. 33(2)(b) of the Act were pending in respect of those workmen and restrict the reference to only all.

14. Learned counsel for the petitioner submitted that the specific provisions contained in S. 20(2)(c) of the Act to the effect that the conciliation proceedings stand concluded on the State Government referring the same dispute for industrial adjudication under S. 10(1) of the Act as also the provisions contained in S. 10(6) of the Act to the effect that the proceedings before the Labour Court or the Tribunal stands quashed on the Central Government making a reference of the same dispute under S. 10(1) of the Act and the absence of similar provisions in respect of S. 33(2)(b) proceedings provide a clear indication that the Legislature did not intend the making of reference of the dispute under S. 10(1) of the Act, when the same dispute was pending under S. 33(2)(b) of the Act. He submitted that if the intention of the Legislature was that the reference can be made under S. 10(1) of the Act even as a dispute under S. 33(2)(b) of the Act was pending, the Legislature would have made a similar provision for the quashing of the proceedings under S. 33(2)(b) of the Act.

15. It is true that the Legislature which has made specific provision under S. 10(6) and S. 20(2)(c) has not incorporated in the Act a provision to the effect that if the same dispute which is pending in proceeding under S. 33 of the Act is referred for industrial adjudication under S. 10(1) of the Act, proceedings under S. 33 stands concluded. But the question is, whether that circumstance alone is sufficient to hold that power under S. 10(1) which on its language imposes no such bar cannot be exercised during the pendency of S. 33 proceedings. In my opinion, the answer to the question must be in the negative. In this behalf, learned counsel for the State submitted that the inevitable result of making a reference of a dispute during its pendency in a proceedings under S. 33(2)(b) was the termination of the latter notwithstanding the non-existence of specific provision to that effect. He submitted that for instance even if the provision contained in S. 20(2)(c) was not there, immediately a dispute which was pending in conciliation proceedings was referred for industrial adjudication under S. 10(1) of the Act, the conciliation proceedings would have been also the position when a reference is made to National Tribunal having wider jurisdiction, of a dispute already pending before a Labour Court or an Industrial Tribunal even in the absence of S. 10(6). Therefore he submitted that the nonexistence of a provision for quashing of S. 33(2)(b) proceedings cannot be used to curtail the power under S. 10(1).

16. As far as the learned counsel for the petitioner is concerned, he was also of the view that if his interpretation of S. 10(1) was not accepted, the inevitable result of referring a dispute pending in proceedings under S. 33(2)(b) for adjudication under S. 33(2)(b) stands quashed or concluded. Learned counsel for the workmen, however, argued that both the proceedings could go on simultaneously.

17. The only question which arises for consideration in this petition whether a reference of a dispute under S. 10(1) of the Act is competent when the identical dispute is pending in proceedings under S. 33(2)(b) of the Act. On a careful examination of the scheme of the Act, as indicated above, I am of the view that it is competent for the State Government to do so. On such reference what happens to S. 33(2)(b) proceedings does not arise for consideration in those petitions, but arises in the other batch of writ petitions. Therefore, I am not considering the validity of the rival submission on the point in these petitions.

18. Two other circumstances pointed out by the learned counsel for the workmen in support of his contention that reference under S. 10(1) of the Act was competent were -

(i) If in a given case the workmen resorted to strike demanding reinstatements of the workmen whose dismissal constituted the subject matter of proceedings under S. 33(2)(b) of the Act, the State Government could refer the dispute under S. 10(1) of the Act and also prohibit the strike by an order made under S. 10(3) of the Act whereas the Government could not do so if it was held that during the pendency of S. 33(2)(b) proceedings, it was not competent for the Government to refer the dispute under S. 10(1).

(ii) That an application under S. 33(2)(b) could at any time be withdrawn by the management and render the proceedings infructuous.

19. The submission raises two important questions, namely -

(i) Whether the ban strike imposed under S. 23 is applicable during the pendency of a dispute in S. 33(2)(b) proceedings.

(ii) Whether an applicant under S. 33(2)(b) could be withdrawn by the management.

As far as the first question is concerned, it should be pointed out that as invariably S. 33(2)(b) proceedings would be proceedings in a pending dispute. S. 23 gets automatically attracted. Therefore the question would arise ony if S. 33(2)(b) proceedings survive even after the determination of the main dispute.

As far as the 2nd question is concerned, a management hardly resort to do so, as it would not only incur the liability to pay wages during the interregnum to the workmen as pointed out by the Supreme Court in Tata Iron & Steel Co. case (supra), it would be also be inviting a complaint against it under S. 33A of the Act.

Whatever that may be, it appears to me prima facie, that the answer to both the question has to be in the negative. However, I decline to examine in detail and express my final opinion, as in my view the answer either way to the question does not in any way affect the answer to the question arising for consideration in these petitions.

20. Another alternative contention urged by the learned counsel for the petitioner was that even on the basis that the State Government had the power to make a reference under S. 10(1) of the Act, the impugned order is liable to be quashed on the ground that the state Government had not taken in to account the very relevant circumstances, namely, pendency of the proceedings under S. 33(2)(b).

Original records, both of the conciliation officer and the State Government were produced. In a letter dated 11th December, 1980 (Annexure-D) addressed by the petitioner to the conciliation officer, it was clearly stated that S. 33(2)(b) proceedings were pending in respect of those workmen and the conciliation proceedings should await the result in S. 33(2)(b) proceedings. However, the conciliation officer submitted his report to the Government informing it that the conciliation proceedings failed. The State Government considered the report and decided to refer the dispute for adjudication. The report of the conciliation officer and of the Commissioner of Labour which are found in the records of the State Government, show that the pendency of S. 33(2)(b) proceedings and the objections of the petitioner to the conciliation proceedings on that count, was not at all brought to the notice of the Government.

21. It is true that it was the duty of the Conciliation Officer to have brought to the notice of the State Government that S. 33(2)(b) proceedings were pending and that would have been a relevant circumstance to be taken into account by the Government before arriving at a decision as to whether the dispute should be referred for adjudication even as those proceedings were pending. However, on the facts and circumstances of this case, I am of the view that the non-consideration of the existence of S. 33(2)(b) proceedings does not constitute a valid ground for quashing the impugned order. As held by this Court in the case of Basavaraju v. The Secretary to Government, W.P. No. 41290 of 1982 dated 9th August, 1983, S. 10(1) read with Ss. 2A and 11A of the Act, confers a right to a remedy to an individual workman and if the workman insists that the dispute relating to his dismissal should be referred for adjudication, the Government has no option than to refer the dispute on grounds not touching the merits of the case.

Hence, as the Government in any event would have had to refer the dispute for adjudication, I consider that non-consideration of the pendency of S. 33(2)(b) proceedings does not affect the validity of the impugned order.

22. For these reasons, with utmost respect to Sabyasachi Mukherji, J. I am unable to persuade myself to agree with the view taken by His Lordship in the case of Mitsubishi (supra) and I respectfully agree with the view taken by Ramaswamy, J. in the case of Hindusthan General Electrical Corporation (supra). In the result, I answer the question set out first as follows :

During the pendency of proceedings under S. 33(2)(b) of the Act commenced pursuant to the application preferred by the management of an industry seeking the approval of the Labour Court or the Tribunal, as the case may be, to the dismissal of a workman, the State Government has the power under sub-s. (1) of S. 10 of the Act to refer the same dispute for industrial adjudication.

23. Before ending this order, I once again invite the attention of the Government to paragraph 27 of the judgment in the case of Workman of Mysore Lamp Works.

It reads :

'27. Before concluding, I should observe that in the light of the multiplicity of proceedings which have been taking place, viz., first under S. 33 of the Act, and again a repetition of it under S. 10 of Act, with reference to the same dispute, the repetition of which is time consuming and purposeless, it appears to me that an amendment of S. 33 of the Act on the following lines, namely - (i) Removing the power conferred on conciliation officer and thereby confining the power under the section only on the Labour Court or Tribunal empowered to decide a reference under S. 10, and

(ii) to treat an application made under S. 33 of the Act as a reference under S. 10 of the Act, as has been provided for under S. 33A of the Act,

would result in the speedy finality of such disputes and would be in the interest of both the workmen and the employers.'

Further I add, a situation as brought about in this case also would be averted by effecting an amendment to the Act as indicated above.

24. In the result, I make the following order :

(i) Rule discharged.

(ii) Petitions dismissed.

(iii) No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //