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Management of Senapathy Whiteley Ltd. Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 21142 of 1983
Judge
Reported inILR1985KAR2050
ActsIndustrial Disputes Act, 1947 - Sections 33, 33A, 33B and 33B(1)
AppellantManagement of Senapathy Whiteley Ltd.
RespondentState of Karnataka and ors.
Appellant AdvocateM.R. Narayanaswamy, Adv. for Bhoopalam Associates
Respondent AdvocateN. Devadas, HCGP for R-1 and M.C. Narasimhan, Adv. for R-2
DispositionPetition dismissed
Excerpt:
industrial disputes act, 1947 (central act no. 14 of 1947) -- section 33b(1) -- main clause and proviso are independent and deal with separate and distinct matters -- main clause contemplates taking back reference from one forum and refer it to another forum; proviso contemplates transfer of proceedings commenced under section 33 or 33a -- state government has power under section 33-b of the act to withdraw a reference pending before a labour court and transfer the same dispute to an industrial tribunal.;dispute involving more than 100 workmen referred by mistake to labour court was withdrawn and transferred to industrial tribunal; the validity of the said order questioned on the grounds inter alia, that section 33-b(1) does not empower reference of dispute pending before labour.....orderrama jois, j.1.in this petition presented by the management of senapathy whiteley ltd., ramanagaram, bangalore district, the following important question of law arises forconsideration :whether the state government has the power under section 33-b of the industrial disputes act ('the act' for short) to withdraw a reference pending before the labour court and transfer the same dispute to an industrial tribunal?2. the facts of the case, in brief, are as follows : (i) on 18-9-1981, the state government made an order under section 10(1) of the act referring certain points of dispute between the petitioner-management and its workmen for industrial adjudication to the additional labour court. in all sixteen points of dispute were referred for adjudication under this order.(ii) on the same.....
Judgment:
ORDER

Rama Jois, J.

1.In this Petition presented by the Management of Senapathy Whiteley Ltd., Ramanagaram, Bangalore District, the following important question of law arises forconsideration :

Whether the State Government has the power under Section 33-B of the Industrial Disputes Act ('the Act' for short) to withdraw a reference pending before the Labour Court and transfer the same dispute to an Industrial Tribunal?

2. The facts of the case, in brief, are as follows : (i) on 18-9-1981, the State Government made an order under Section 10(1) of the Act referring certain points of dispute between the Petitioner-Management and its workmen for industrial adjudication to the Additional Labour Court. In all sixteen points of dispute were referred for adjudication under this order.

(ii) On the same date the Stale Government made another order (Annexure-B) by which another industrial dispute between the Petitioner-Management and its workmen was referred for industrial adjudication under Section 10(1) of the Act to the Additional Labour Court, Bangalore. The points of. dispute related to the justification of dismissal from service by the Petitioner of 15 of workmen including a point as to whether 3 of them were workmen as defined in the Act.

(iii) There was a third reference on 13-1-1982 (Annexure-C) of another dispute between thePetitioner-Management and its workmen for industrial adjudication to the Second Additional Labour Court, Bangalore. This related to the dispute concerning the validity of dismissal from service of 28 workmen of the Petitioner.

(iv) After the first order was made, W.P. No. 21712 of 1981 was presented by the workmen of the Petitionerquestioning the legality of the first reference to the Labour Court. The main ground on which the validity of the first reference was challenged before this Court was that having regard to the provisions of Section 10(1)(c) and (d) of the Act read with II and III Schedule as the Labour Court had no jurisdiction to decide several points of dispute as it involved more than 100 workmen and it was only the Industrial Tribunal which had jurisdiction to decide the points ofdispute referred for adjudication in the first notification and in particular Hems 1 to 15 thereof.

(v) Having regard to the fact that the dispute in question involved more than 100 workmen, it was conceded by the Counsel for the Management as also the Counsel for the Government that the referring of the dispute to the Labour Court was a mistake and, therefore, the Government was willing to withdraw the said reference and refer the matter to the Industrial Tribunal. The relevant portions of the judgment in paragraphs 11 and 18 in the aforesaid Writ Petition read :

'11. Mr. R.N. Narasimha Murthy, Learned Counsel for the Management was fair enough to concede that the reference under Annexure - U was wholly without jurisdiction but for item No- 1, and the management was prepared for a fresh adjudication of these dispute by Tribunal . But on the first reference Annexure-T, he stated that the dispute relating to the dismissal of 15 workmen is well within the jurisdiction of the Labour Court and hence that reference does not call for interference.

xx xxThe first point of Mr. Narasimhan does not survive since the Government itself has agreed that by mistake it made the reference (Annexure - U) to the Labour Court and even now it is prepared to with-draw the same and make a fresh reference to the appropriate Tribunal.'

In view of the said submission, the following order was made in that Writ Petition-

'Accordingly this Petition is partly allowed and the impugned reference produced at Annexure-U filed in the Writ Petition in so far it relates to items 1 to 15 is quashed.'

The above order was made by the Court on 27-11-1981. Thereafter the State Government made the impugned order dated 10-11-1983. (Annexure-D). It reads-

'Whereas the Industrial Dispute specified in the table mentioned below is pending before the Additional Labour Court & II Additional Labour Court, Bangalore for adjudication :And whereas the Government of Karnataka consider that a more expeditious adjudication of the said Industrial Dispute will be facilitated if the said Industrial Dispute is transferred to the .Industrial Tribunal, Bangalore

Now, therefore is exercise of the powers conferred by sub-section 33B of the Industrial Disputes Act, 1947 (Central Act No. 14 of 1947), the Government of Karnataka hereby withdraw theproceedings pending before the Additional Labour Court and 11 Additional Labour Court at Bangalore relating to the said Industrial Dispute and transfer the said proceeding to the Industrial Tribunal, Bangalore.

TABLE

No.of reference

G.O.No. and date of reference

Nameof the parties.

1.

SWL530 LLD 81 dated 18-9-81 (Addl. Labour Court Bangalore) Ref : 67/81.

M/sSenapathy Whiteley Limited, Ramanagaram.

2.

SWL531 LLI) 81 dated 18-9-81 (Addl. Labour Court, Bangalore) Ref. 65/81.

3.

SWL835 LLD 81 dated 13-1-82 (11 Additional Labour Court, Bangalore) Ref. 4/82.

'

It is the validity of the aforesaid order which is questioned in this Writ Petition. The contention of the Petitioner is that Section 33B of the Act relying on which the impugned order was made did not empower the Government to transfer a dispute pending before a Labour Court to a Tribunal. The State and the workmen contend to the contrary. It is in view of these rival contentions, the question set out first arises for consideration. The answer to the question depends on the real meaning of the Section 33B(1) of the Act. It reads -

'33-B(1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer proceed either de novo or from the stage at which it was so transferred :

Provided that where a proceeding under Section 33 or Section 33-A is pending before a Tribunal or National Tribunal, theproceeding may also be transferred to a Labour Court.'

3. Sri Narayanaswamy, Learned Counsel for the petitioner Management, interpreted the provision as follows : Section 33-B(1) only empowers the Government to transfer a proceeding pending before a Labour Court to another Labour Court, a proceeding pending before an Industrial Tribunal to another Tribunal and a proceeding pending before a National Tribunal to another National Tribunal, but does not empower the State Government to refer adispute pending before a Labour Court to an Industrial Tribunal, as has been done, under the impugned notifications. The expression 'as the case may be' in the context means'respectively.' Therefore there was no power to withdraw a reference pending before a Labour Court and transfer it to a Tribunal. This interpretation of the main provision becomes more clear from the proviso. According to the proviso-proceedings under Section 33 or 33-A could be transferred from a Tribunal, or National Tribunal to a Labour Court. This indicates that only proceedings under Section 33 or 33A pending before a Tribunal or National Tribunal can betransferred to a Labour Court or vice versa. If the interpretation of Section 33-B suggested for the workmen were to be accepted, namely, the main provision empowers theGovernment to transfer a proceeding from a Labour Court to a Tribunal or vice versa, the proviso becomes otiose and it is a well settled rule of construction that a construction which renders any part of a provision otiose should be eschewed.

4. As against the above construction of the provision, Sri N. Devadas, Learned Counsel for the State and Sri M.C.Narasimhan, Learned Counsel for the workmen submitted as follows : The power conferred under Section 33-B of the Act to withdraw a reference and refer to another forum cannot be given a restricted meaning as is sought to be given by the Management. If in a given case for reasons which are required to be recorded in writing by the provision the Government considers that for expeditious and effective disposal of a reference withdrawing of a reference already made to a forum and referring it to another forum became necessary, the Government is given the power to do so in the said provision. For instance, if in a given case, after making a reference of a dispute to a Labour Court, the Government is appraised of the fact that the matter is likely to involve more than 100 workmen and, therefore, ultimately an award if made by the Labour Court might turn out to be one made without jurisdiction in view of Section 10(l)(c) and (d) of the Act, the Government instead of allowing the proceedings to continue and ultimately to become purposeless, can remedy the defect by exercising its power under Section 33-B of the Act by withdrawing the proceeding and referring the. same to the Tribunal. The construction suggested for the petitioner would deprive the Government of the power which would far from being in furtherance of theachievement of the purposes of the Act would defeat its purpose. It is true that a construction which renders the proviso otiose should not be accepted. But it is not correct to say that the construction suggested by them renders the proviso otiose. The two provisions are separate and distinct. The main part covers references made under. Section 10(1) or 10(1)(a) and the proviso governs proceedings under Section 33 or 33A. The word 'withdrawal' used in the first part of the Section is significant. It indicates that it refers to aproceeding pending before a Labour Court/Tribunal/ National Tribunal consequent on a reference made by an appropriate Court itself and, therefore, speaks of withdrawal and transfer of such proceedings. But a proceeding under Section 33 and Section 33-A to which the proviso refers being a proceeding not commenced at the instance of the Government, but commenced either on the application of the Management or a complaint lodged by a workman, a specific provision has been made in the proviso to cover such cases. Therefore under the main provision the Government can withdraw a reference from a Labour Court and transfer to a Tribunal or vice versa.

5. Original records were also produced. The impugned order was made pursuant to a request made by the union of workmen. It reads :

'ENGINEERING & GENERAL WORKERS' UNION

To

28-1-82

The Hon'ble Minister for Labour, Govt. of Karnataka, Bangalore.

Sir,

Sub : Reference of Industrial Dispute between the Management and the Workmen of Senapathy Whiteley Ltd,, Ramanagaram.

A charter of demands was placed by our Union as per letter dated 16-10-1980 (a copy of which is herewith enclosed) on the Management of Senapathy Whiteley Ltd., Ramanagaram which is engaged in the manufacture of electrical laminated boards. The concern employs about 200 workmen. Since the negotiations failed our union issued $ 15 days strike notice. The strike was to commence on 27-12-1980. However themanagement hit-back by imposing a lock-out on 22-12-1980, which lock-out was imposed during conciliation of the Charter of demands. The lock-out lasted till 4-4-1982 for more than 16 months. After the lock-out the Management dismissed without holding enquiry about 43 workmen.

The State Government by two orders dated 18-9-1981 passed two separate orders referring two sets of disputes to the 1st Additional Labour Court, Bangalore. (Copies of the said orders are herewith en-closed). The State Government also passed another order referring another dispute in No. SWL 835 LLD 81 dated 13.1.1982 (Copy of the same herewith enclosed) to the find Additional Labour Court, Bangalore. This reference also is in connection with the dismissal of another batch of workers of same Management.

Our union filed a Writ Petition in connection with two orders of reference referred to above No. SWL 530 LLD 81 dated 18th September 3981. Our grievance were mainly two, namely,-

(a) That the Government ought to have prohibited the continuance of the lockout after having referred the disputes leading to the lockout.

(b) The Government ought to have referred the matter in dispute, particularly those relating to the Wage Scale etc. to the Industrial Tribunal and not to the Labour Court. The Writ Petition was allowed in part and an order dated 1-12-1981 in W.P.No. 21712 of 1981 was passed. The Government before the High Court assured that they would refer the matter to the Industrial Tribunal particularly those referring to the general demands. However no such order has been passed by the Government as yet. Thereafter the Government filed a Writ Appeal against the order of learned Single Judge as they felt that there was an adverse remark in Writ Petition No. 21712/81. When the matter came up before the Division Bench the Government again assured that the issue would be referred to the Industrial Tribunal. Though this was govern in the year of 1982, no action has been taken so far by the State Government. A peculiar situation has therefore arisen. The Learned Single Judge has quashed the order of reference to the Labour Court in respect of General demands. There is no separate prayer against this in the Appeal. However the oral assurance of the Government has been recorded. However since there is no order of reference, the matter remains as they stood prior to the reference.

Thus two references still progressing before the Additional Labour Court, Bangalore and theIInd Additional Labour Court, Bangalore. These relating to the termination of services of some workmen. So far general demands are concerned there is no reference at all.

We request you to kindly pass an order referring all the points of disputes as contained in the following orders to the Industrial Tribunal, Bangalore-

Ref: No. SWL S30 LLD 81 dated 18-9-1981

Ref: No. LLD 531 81 dated 18-9-1981

Ref: No. SWL 835 LLD 81 dated 13-1-1982

We request you to kindly refer all the above disputes to one adjudication authority. It would be convenient for the parties.

Thanking you,

Yours faithfully

Sd/- General Secretary

6. The question whether the Government could withdraw the proceedings from a Labour Court and transfer it to a Tribunal under Section 33-B of the Act was examined by the Government. The relevant note on the Secretariat file reads.

'13. w.r.f. para 11 it is submitted that as per Section 33-B(1) of the ID Act 1947 Govt. has got powers to withdraw any proceedings before a Lab. Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal. While doing so Section 10(c) and (d) of the said Act has to be followed. While the Labour Court is competent to deal with cases coming under Second Schedule (P 62) only, the Industrial Tribunal is competent to deal with cases coming under Second and Third Schedule. Therefore the cases now referred to theAdditional Labour Court and II Addl. Lab. Court may be withdrawn and referred to the industrial Tribunal.'

Agreeing with the note, the Government made the impugned order. The construction of Section 33-B suggested for the State and the workmen is on the same lines as indicated in the note.

6. It may be seen that the circumstances and the reasons on the basis of which the Union requested the Government towithdraw the three references from the Labour Court and refer them to the Industrial Tribunal have been fully set out in its letter dated 28-1-1982 addressed to the Government extracted earlier. The Government on consideration of the facts and circumstances was of the view that for the purposes of expeditious disposal of the three references concerning the workmen of the same industry, it was convenient and expedient that all the three disputes should be referred to the Tribunal. This is the reason which is expressly recorded in the impugned order as required under Section 33-B(1) of the Act. Therefore, the mandatory requirement of Section 33-B(1) of the Act is complied with. (See : Jay Engineering Works Ltd.-v.- IV Industrial Tribunal, Calcutta, Calcutta, 1977 Lab. I. C. 1739).

Therefore the only question which survives for consideration is whether the Government had the power under Section 33-B to withdraw and transfer the proceedings from the Labour Court to the Tribunal.

7. Before proceeding to consider the correctness of the rival interpretations, it is necessary to ascertain the scheme and purpose of the Act. As the Preamble to the Actindicates, the provisions of the Act are intended for investigation and settlement of industrial disputes. The relevant part of Section 10 which confers power on the Government to refer a dispute for industrial adjudication to a Labour Court or Tribunal, as the case may be, reads.

'10. REFERENCE OF DISPUTES TO BOARDS, COURTS OR TRIBUNALS.

(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 there-of ; 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 is relates to any matterspecified 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, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication :

Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c).'

As can be seen from the above provision, the jurisdiction of the Labour Court is limited to the matters specified in the 1I Schedule and as far as matters specified in the III Schedule are concerned the Labour Court has jurisdiction if a dispute falling under that schedule does not involve more than 100 persons. The Industrial Tribunal, however, has jurisdiction to decide matters specified both in the II Schedule and the III Schedule. So also the NationalTribunal in view of Section 10(1)(A) of the Act, Section 15 of the Act reads -

'15. Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, as soon as if is practicable on the conclusion thereof, submit its award to the appropriate Government.'

The wording of the section shows that one of the objects of the Act is speedy disposal of references.

8. Now coming to Section 33B of the Act, it confers power on the appropriate Government to withdraw areference and transfer the same from one forum to another forum. In this behalf it is pertinent to point out that once a reference is made the State Government has no power to withdraw except for transfer under Section 33-B of the Act. There is no controversy between the parties on this aspect and it is also authoritatively laid down by the Supreme Court in the case of Shree Sitaram Sugar Co.,-v.- Presiding Officer, 1973 (II) LLJ 33. From the above decision, it follows that the only power available to the State Government after making a reference under Section 10(1) of the Act of a dispute to a Labour Court or a Tribunal ,as the case may be, is to withdraw the reference only for the purpose of transfer of the dispute from one forum to another forum if considered expedient for reasons recorded in the order of transfer itself. In a given case, it is quite possible that a dispute came to be referred to a Labour Court under the impression that it does not involve more than 100 persons, but later it becomes evident that the(1) 1973 (II) LLJ p.330 at 336 -337 dispute involved more than 100 workmen as has happened in the case of first reference. If the construction of Section 33-B as suggested by the Learned Counsel for the petitioner is correct, the position even in such a case would be, the transfer of the reference to a Tribunal having jurisdiction is not permitted and any award by the Labour Court on such reference in favour of any party if given has to be rejected and only a finding to the effect that it has no jurisdiction to make an award, if given has to be accepted and thereafter only the Government gets jurisdiction to refer the dispute to a Tribunal.

9. I asked the Learned Counsel for the petitioner as to what should happen to a dispute if after the statement of the parties were filed before the Labour Court, it revealed that it involved more than 100 workmen and, therefore, the Labour Court had no jurisdiction. His answer was that the Labour Court had to consider the said fact and pass a final order that it had no jurisdiction and it was only thereafter the State Government would get jurisdiction to refer the same dispute for adjudication to a Tribunal. He submitted that the Government had no other alternative till the final order of the Labour Court holding that it had no jurisdiction was made as according to him there was no power given to the State Government under Section 33-B of the Act to transfer the dispute from a Labour Court to a Tribunal.

10. Certainly, such a construction of Section 33-B would defeat the very purpose of the Act, namely, speedysettlement of dispute. It is impossible to attribute to the Legislature an intention to defeat the purpose of the Act.

11. It is a well settled rule of construction of a statutory provision that it must be purpose-oriented. In this behalf, the Supreme Court in the case of State of M.P.-v.- Ram Raghubir Singh, AIR 1979 SC 888 held as follows :

'Language permitting the appropriate interpretational cannon must be purpose oriented.'

There is also another cardinal rule of construction, namely, that in respect of abeneficent legislation a construction which fulfils and furthers an object of the Act rather than the one which would defeat the same should be adopted. This principle is laid down by the Supreme Court in the case of Chinnamarakathian-v.- Ayyavoo, : [1982]2SCR146 . The construction of Section 33-B suggested for the petitioner defeats the object and purpose of the Act whereas the construction suggested for the workman and the State Government promotes the object and purposes of the Act. Therefore, having due regard, to the cardinal principles of interpretation set out above, that interpretation of Section 33-B which defeats the purpose and object of the Act should be rejected and the one which fulfils the object of the Act should be preferred, unless of course language of the provision does not permit the latter construction.

12. The language of Section 33-B, in my opinion, does not compel me to take the view that the transfer permitted by the said provision is only from a Labour Court to a Labour Court, from a Tribunal to another Tribunal and from a National Tribunal to another National Tribunal. The Section provides that the Government can withdraw a proceeding under this provision pending before a Labour Court or Tribunal or National Tribunal and transfer the same to another Labour Court, or Tribunal or National Tribunal, as the case may be. The expression 'as the case may be' in my opinion, clearly indicates as the facts of a particular case demands. Therefore, if in a given case, the State Government is informed that a reference which is already made by it to a Labour Court, is likely to involve more than 100 workmen and, therefore, ultimately does notresult in the settlement of the dispute referred for adjudication, in order to achieve the purpose and object of the Act, the Government is given the power to transfer the reference to an Industrial Tribunal, recording the reasons for doing so, for, in such a case transfer from one Labour Court to another Labour Court would be purposeless and futile. Learned Counsel for the petitioner wanted me to understand the wordsas the case may be' as ' respectively;'. If the intention of the Legislature was that a transfer must be permitted only from a Labour Court to another Labour Court, from a Tribunal to another Tribunal and from a National Tribunal to another National Tribunal, theLegislature would have used that expression, but the Legislature has designedly used the words, 'as the case may be', in order to make the provision flexible and give the power to the Government to transfer from one forum to another, as the circumstances and facts of the case demand.

. 13. Learned Counsel for the petitioner submitted that such a construction would mean that under Section 33-B of the Act, the Government can transfer proceedings from a Tribunal to a Labour Court also even if the latter had no jurisdiction to decide the reference and, therefore, such a construction must be avoided. In support of this sub-mission, Learned Counsel relied on the judgment of the Kerala High Court in M.M. Achanna-v.- State of Kerala, 1979(2) IFLR 64. In particular he invited my attention to paras 5 to 7. They read :

'5. The acceptance of the broad proposition bargained for by the Learned Counsel for the petitioner that a dispute pending before a Tribunal can be transferred to a Labour Court, may lead to one anomaloussituation. While the Labour Court has got exclusive jurisdiction to adjudicate upon matters falling under Schedule II, the Tribunal has got authority to adjudicate upon matters falling both under Schedule 2 and Schedule 3.(4) 1979 (2) Indian Factories and Labour Reports, p. 64There cannot be any dispute that a Labour Court cannot adjudicate upon any matter falling under Schedule 111, except in the ease of a matter falling under the proviso to Section 10(1) of theAct. If a proceeding pending before a Tribunal pertaining to a matter falling under Schedule III is to be transferred to a Labour Court, which apparently has nojurisdiction to adjudicate upon such matters, that would necessarily mean that under Section 33-B(1) of the Act, a power has been conferred upon the Government to ignore the provisions of Section 10(1) of the Act.

6. The language used in Section 33-B(1) also indicates that the power of withdrawal and transfer provided for by that provision is from one authority at a place to a corresponding authority elsewhere and not to either of the other two authorities mentioned in the Section. In Section 33-B(1) of the Act the words which specifically confer the power ofwithdrawal and transfer on the Government arc followed by expression 'as the case may be', That expression unmistakably shows that a proceeding pending before one authority can be withdrawn and transferred only to a corresponding authority situated in a different station. In other words, a proceeding pending before a Labour Court can be transferred only to another Labour Court; a proceeding pending before a Tribunal can be transferred only to another Tribunal and a proceeding pending before a National Tribunal can be transferred only to another National Tribunal.

7. The real scope of the power conferred by Section 33-B(1) of the Act is further clarified by the proviso to hub-section (I) of Section 33-B. By virtue of the proviso where proceeding is pending before a Tribunal or National Tribunal, and a fresh proceeding is initiated on the basis of Section 33 or Section 33-A of the Act, then, that fresh proceeding can be transferred to a Labour Court.'

14. With great respect, I am unable to agree with the view taken by the Kerala High Court. Such a result is possible if the power conferred under Section 33-B is read in isolation ignoring the provisions of Section 10(l)(c) and (d) of the Act, which demarcates the jurisdiction of the Labour Court and the Tribunal, respectively. Section 33-B of the Act read with Section 10(1)(c) and (d) and Schedule II and III of the Act, empowers the Government to transfer a reference from one forum to another forum, which has the . jurisdiction to decide the dispute under the Act. Therefore, I am unable to agree that the interpretation of Section 33-B suggested for the State and the workmen leads to any such absurd results.

15. The only other aspect for consideration is whether the construction suggested for the workmen and the State renders the proviso otiose. It is true that if the main provision included the proceedings covered by the proviso also, and an exception was carved out, through the proviso enabling the transfer of proceedings under Section 33 and 33-A from a Tribunal to a Labour Court, the construction of the main provision of Section 33-B as suggested for the State and the workmen would render the proviso otiose and such aconstruction is impermissible.

16. In order to test the correctness of the submission, in the first instance, we have to read the main provision and the proviso to find out as to whether the proviso is in the nature of an exception to the main clause as is usually the case with a proviso, or is in the nature of an independent provision as it happens in certain cases, as pointed out by the Supreme Court in its judgment in the case of I. T Commissioner-v.- P. Krishna, : [1964]53ITR176(SC) relevant part of which reads:

'But it is not inflexible rule of construction that a proviso in a statute should always be read as a limitation upon the effect of the mainenactment. Generally the natural presumption is that but for the proviso the enacting part of the section would have included the subject-matter of the proviso ; but the clear language of the substantive provision as well as the proviso may establish that the proviso is not a qualifying clause of the main provision, but is in itself a substantive provision.'

(See also State of Rajasthan -v.- Leela, : [1965]1SCR276 )

17. A careful reading of the main Clause and the proviso to Section 33-B(l) unmistakably shows that the two provisionsare separate and independent and that the main provision covers proceedings commenced pursuant to an order of reference made by the appropriate Government and the proviso covers only proceedings under Sections 33 and 33-A of the Act. It may be seen that the main Clause of Section 33-B says that the appropriate Government could withdraw a proceeding from one forum and transfer to another where-as the proviso speaks of only transfer of a proceeding under Sections 33 and 33-A from a Tribunal to Labour Court. The use of the word 'withdraw' in the main Clause and itsomission in the proviso is significant and provides a clue to the understanding of the scope of the two provisions. The main provision contemplates the taking back by the Government of a reference made by it to one forum from it and refer it to another forum and the proviso contemplates the transfer of a proceeding under Section 33 which had commencedpursuant to an application made by the management or a proceeding under Section 33-A which had commenced pursuant to an application of a workman. Learned Counsel for the petitioner submitted that the word 'withdraw' does not necessarily mean 'taking back what was sent or given' and in this behalf referred to Section 24(b) of the C.P.C. It is true the word 'withdraw' has got both the meanings, i.e., either takingback, by a person what was sent, or given earlier, or to remove or to draw away, with which sense it is used in Section 24 of the C.P.C. But there can be no doubts that in the context, and having regard to the use of the expression 'withdraw' in the main Clause and its omission in the proviso, the word is used in the main Clause in the sense of taking back by the Government of a proceeding which had commenced on a reference made by it and is omitted in the proviso as proceedings under Section 33 or 33-A would not have commenced pursuant to an order of reference by the Government. Otherwise the word would have been used in the proviso also. Therefore the two provisions areindependent and deal with separate and distinct matters.

18. The word 'also' used in the proviso is also very significant. The use of that word which indicates that a proceeding under Section 33 or 33-A could also betransferred from. Tribunal to Labour Court shows that under the main provision also in a given case the proceedingconcerning the main dispute which was the cause for commencement of Section 33 proceedings could also be withdrawn from a Tribunal and transferred to a Labour Court if of course, the latter has jurisdiction. Likewise, as the proviso says that Section 33 or 33-A proceedings also can be transferred from a tribunal to a Labour Court, it means that transfer of proceedings from a Tribunal to a Labour Court is possible under the main Clause. For instance, if one or more cases of disputes concerning dismissal from service had been referred for adjudication to a Tribunal, and if subsequently either on account of the absence of a Presiding Officer of the Tribunal or on account of pendency of a dispute concerning large number of workmen which are required to be given priority, the Government considers expedient to withdraw suchdispute from a Tribunal and refer it to a Labour Court, it could do so under Section 33-B(1).

For these reasons, I am convinced that the construction of Section 33-B suggested for the State and the workmen is correct.

19. There is yet another point for consideration. It was pointed out by the Learned Counsel for the petitioner that as the reference under the first notification was quashed in so far it related to items 1 to 15 by this Court in the order made in W.P. 21712 of 1981, there was no proceeding for being withdrawn and being transferred.

20. I am not impressed by the submission. It is well known that the quashing of an order or proceeding on grounds of procedural defect or on technical grounds, always leaves the liberty for the competent authority to proceed further from the stage at which the matter became illegal. In factas pointed out earlier, in the earlier Writ Petition itself a submission was made for the Government that it realised the mistakecommitted by it in referring the dispute to a Labour Court; and, therefore, it was willing to withdraw the same and refer it to a Tribunal. What the Government has done is in conformity with the submission made by it before this Court in the aforesaid Writ Petition. If the Government had no power under Section 33-B of the Act to withdraw the reference made to a Labour Court and refer it to a Tribunal then the position would have been different. As I am of the view that the Government has the power to withdraw a proceeding from Labour Court and transfer it to a Tribunal, if the Government either on representation of the parties or other-wise realises that the Labour Court to which it had referred a dispute for adjudication might have no jurisdiction to decide that dispute nothing prevents it from curing the defect by withdrawing the reference and refer it to Tribunal. The fact that similar view was taken by this Court on a petitionpresented by any of the parties and quashed the proceeding on that ground does not make any difference. As can be seen from the first reference, there were 16 items which were referred for adjudication to the Labour Court. Later it was found 15 out of 16 items were outside the jurisdiction of the Labour Court and all the parties were agreed on that aspect. Hence, this Court quashed the reference only to that extent. As a result, in respect of other point, the reference continued. What the Government has done by the impugned notification is to withdraw all the 16 points and refer the same foradjudication to the Tribunal, I find itdifficult to agree that the Government had no jurisdiction to do so, Apart from this, the objection is too technical. It is nothing, but insisting on mere form and not substance. For instance, Learned Counsel did not dispute that the Government could have made a fresh reference of 15 points to a Tribunal in exercise of its power under Section 10(1) of the Act. It could have also transferred the other point to the Tribunal after with-drawing that also from the Labour Court, as I have held that under Section 33-B of the Act it has such power. Therefore whether the Government refers the 15 items of dispute out of first reference to the Tribunal by making an order under Section 10(1) and another by transfer or withdraws all the points of the dispute from the Labour Court and transfers it to the Tribunal, it makes no difference. The result of both would be a reference of all these points of dispute foradjudication to the Tribunal. In the circumstances, I find no substance in the last submission also.

21. In the result, I answer the question set out first as follows :

The State Government has the power under Section 33-B of the Industrial Disputes Act to withdraw a reference pending before a Labour Court and transfer the same dispute to an Industrial Tribunal?

22. For the reasons aforesaid, I make the following order:

(i) Rule discharged.

(ii) Petition dismissed.

(iii) No costs.


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