Skip to content


The Managment of S.K.F. Bearings India Ltd. Vs. Mr. S.M. Ravi Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrite Appeal No. 7775 of 2001
Judge
Reported in[2006(109)FLR580]; ILR2006KAR445
ActsIndustrial Disputes Act - Sections 2, 4, 11, 12, 12(1), 12(2), 13, 22, 31, 31(1), 33, 33(1), 33(2) and 33A; Industrial Dispute (Karnataka) Rules, 1957 - Rule 10
AppellantThe Managment of S.K.F. Bearings India Ltd.
RespondentMr. S.M. Ravi Kumar and ors.
Appellant AdvocateS.N. Murthy, Sr. Adv. and ;Somashekar, Advs.
Respondent AdvocateM.C. Narasimhan, Sr. Adv. and ;K.B. Narayanaswamy, Adv. for R-1 and ;Shiva Kumar, Addl. Govt. Adv. for R-2
DispositionAppeal rejected
Excerpt:
industrial disputes act, 1947 - section 33a-termination of service of the workman was made in contravention of section 33 and no approval for such termination was obtained by the management-termination was made during the pendency of conciliation proceedings-pleaded against-writ petition was allowed-appealed against-on facts held-that if an order is made in contravention of section 33 of the act, it is open to the aggrieved workman to seek permission under section 33a of the act to institute criminal proceedings against the management-order of the learned single judge upheld.;dismissing the writ appeal, the court;it is also necessary to point out that the state government in endorsement annexure-a except stating that the order of termination came to be passed before commencement of.....p. vishwanatha shetty, j.1. the appellant in this appeal is the management of s.k.f. bearings india ltd. (hereinafter referred to as 'the managment'). the 1st respondent was the workman in the establishment of the management.2. in this appeal, the management has called in question the correctness of the order dated 7th november 2001 made in writ petition no. 36114 of 2001 by the learned single judge of this court. in the impugned order, the learned single judge quashed the endorsement dated 19th december 2000, a copy of which has been produced as annexure-a, issued by the 3rd respondent, wherein the 3rd respondent informed the workman that the request to lodge a complaint against the management for violation of section 33a of the industrial disputes act (herein after referred to as 'the.....
Judgment:

P. Vishwanatha Shetty, J.

1. The appellant in this appeal is the management of S.K.F. Bearings India Ltd. (hereinafter referred to as 'the Managment'). The 1st respondent was the workman in the establishment of the management.

2. In this appeal, the management has called in question the correctness of the order dated 7th November 2001 made in writ petition No. 36114 of 2001 by the Learned Single Judge of this Court. In the impugned order, the learned Single Judge quashed the endorsement dated 19th December 2000, a copy of which has been produced as Annexure-A, issued by the 3rd respondent, wherein the 3rd respondent informed the workman that the request to lodge a complaint against the management for violation of Section 33A of the Industrial Disputes Act (herein after referred to as 'the Act') has been rejected on the ground that on 19th July 1999 when the workman came to be terminated from service, there was no conciliation proceedings pending on that date. The Learned Judge in the impugned order further directed the 3rd respondent to reconsider the prayer of the workman in the light of the observation made by him in the course of the order impugned and also the documents-Annexures-B, C and D produced in the writ petition.

3. The facts in brief:

The workman filed the petition dated 26th November 1998 before the conciliation officer, a copy of which has been produced as Annexure-B to this appeal inter alia contending that there were 35 apprentices who have been working in the establishment of the Management for more than two years and they were recruited against the vacancies that had occurred on the cessation of service of the regular workmen and as such their services were required to be regularised and therefore, the conciliation officer should intervene in the matter and resolve the issue by stopping any such unilateral action of the management by arranging conciliation between the union and the management within 30th November 1998. Pursuant to the said petition/representation given by the President of the workmen's union, the conciliation officer issued a notice dated 27th November 1998 to the management informing the management that a joint-meeting for conciliation is proposed to be held between the management and workmen on 4th December 1998 at 3.00 p.m. and for the said purpose the management and the union of the workmen should be present without fail along with the necessary documents and registers and in the meanwhile both the parties should maintain status quo and not to indulge in any untoward incidents as conciliation proceedings were on. Pursuant to the said notice, the parties appeared before the conciliation officer on 4th January 1999 and the proceedings were adjourned to 14th January 1999 on the ground that nobody was present on behalf of the management though the representative of the union was present. On 14th January 1999, again the proceedings were adjourned on the ground that nobody was present on behalf of the management though the representative of the union was present. The proceedings were again taken up by the conciliation officer on 25* January 1999. Even on the said date, though the representative of the Union was present, in view of the request made by the management by their letter dated 22nd January 1999, the proceedings were adjourned to 8th February 1999. On 8th February 1999 though both the parties were present, the proceedings were adjourned without giving a specific date. However, again on 3 lst March 1999 though the representatives of the workmen's union were present, since none were present on behalf of the management, the proceedings were adjourned without giving a date. However, the matter was again called on 12th April 1999. Even on the said date though the representative of the workmen's union was present, since none were present on behalf of the management, the proceedings were adjourned. On 7th August 1999, after some discussion, the matter was adjourned informing both the parties that the next date of healing would be notified to them. However, the proceedings were called on 22nd September 1999. On the said date though the representatives of the workmen's union were present, since the management prayed for adjournment of the proceedings, the proceedings were adjourned without giving a specific date. In the meanwhile, on 19th July 1999, the management terminated the services of the 1st respondent who was the president of the union of the workmen. Subsequently, though the matter stood adjourned on several dates from 30th October 1999 till July 2000, since the conciliation failed, the conciliation officer sent a report dated 13th July 2000, a copy of which has been produced as Annexure-R1 to the State Government reporting that the conciliation had failed. The report also observes that on 30th October 1999, that the conciliation officer had initiated conciliation proceedings as provided under Sub-section (1) of Section 12 of the Act. However, during the pendency of the proceedings even before the failure report was given by the conciliation officer, the workman had lodged a complaint dated 16th November 1999 before the Government alleging that the termination of his service was made in contravention of Section 33(1) of the Act and seeking permission to prosecute the management. As and seeking permission to prosecute the management. As noticed by us earlier, the 3rd respondent by means of his endorsement-Annexure-A informed the workman that since on the date of termination of his service by the management no conciliation was pending, the permission sought to lodge a complaint against the management was rejected. Aggrieved by the said endorsement Annexure-A, as noticed by us earlier, the workman filed the writ petition out of which this appeal arises before this Court inter alia contending that the conclusion reached by the State Government that on the date of termination of his service by the management that there was no conciliation proceedings pending before the conciliation officer was erroneous in law and therefore, the endorsement-Annexure-A issued by the State Government was required to be quashed. The learned Single Judge in the impugned order on consideration of the rival contentions took the view that on the date of termination of services of the workmen on 19th July 1999, since the conciliation proceedings had commenced by means of issue of notice dated 27th November 1998, a copy of which has been produced as Annexure-C to this appeal, the termination of service of the workman was made in contravention of Section 33 of the Act as admittedly no approval for such termination was obtained by the management. In the light of the said conclusion, the Learned Single Judge allowed the writ petition as stated above.

4. Sri S.N. Murthy, learned Senior Advocate appearing along with Sri Somashekar challenging the impugned order passed by the Learned single Judge, made two submissions. Firstly, he submitted that since the notice of conciliation was issued by the Conciliation Officer fixing the date for conciliation on 11th November 1999, in exercise of the power conferred on him under Section 12(1) of the Act and Rule 10 of the Industrial Dispute (Karnataka) Rules, 1957 (hereinafter referred to as 'the Rules'), only on 2nd November 1999, the termination of service of the workman having admittedly been made on 18th July 1999, the State Government was fully justified in taking the view that termination of service of workman was not made in contravention of Section 33 of the Act. According to the Learned Counsel any proceeding commenced pursuant to any notice issued by the Conciliation Officer, other than the one issued under Sub-Section (1) of Section 12 of the Act read with Rule 10 of the Rules and any proceedings pending pursuant to the said notice, cannot be considered as pendency of conciliation proceedings for the purpose of Section 33 of the Act. In support of his submission that the conciliation proceedings commenced only on issue of notice of conciliation dated 2nd November 1999, the Learned Counsel relied upon the report of the conciliation officer wherein the conciliation officer had observed that the conciliation proceedings commenced only with effect from 30th October 1999 under Section 12(1) of the Act. Therefore, it is his submission that when the State Government, on consideration of the Notice dated 2nd November 1999 issued by the conciliation officer and also the report of the conciliation officer, has taken the view that the conciliation proceedings had actually commenced subsequent to the termination of service of the workman, the Learned Single Judge has seriously erred in law in quashing the endorsement. Sri Murthy pointed out that the Learned Single Judge has wrongly applied the decision of the Supreme Court in the case of Lokmat newspapers pvt. Ltd. v. Shankar Prasad 1999 II LLJ 600 to the facts of the present case as according to him the said decision has no bearing to the facts of the present case. The Learned Counsel, in support of his submission that the conciliation proceedings had commenced only after issue of conciliation notice dated 2nd November 1999, relied upon the decision of this Court in the case of Mico Employees Association v. State of Karnataka : (1987)ILLJ300Kant the decision of Bombay High Court in the case of East Asiatic and Allied Companies, Bombay v. B.L. Shelke 1961 I LLJ 162 and the decision of Orissa High Court in the case of Pratap Chandra Mohanty v. Union of India 1971 II LLJ 196 Secondly, he submitted that since the Supreme Court in the case of Jaipura Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. 2002-LLJ 834 has taken the view that once the service of the workman is terminated without obtaining the approval of the conciliation officer as required under Section 33 of the Act, the said termination is void and inoperative in law and the workman continues to be an employee of his employer, it cannot be held that there was violation of Section 33 of the Act committed by the employer, and therefore, a complaint under Section 33A of the Act before the conciliation officer seeking prosecution of the management would not be maintainable. Therefore, he submitted that on this ground also the endorsement Annexure-A was not liable to be interfered with by the Learned Single Judge.

5. However, Sri M.C. Narasimhan, Learned Senior Counsel appearing along with Sri Narayanaswamy strongly supported the impugned order passed by the learned Single Judge. He submitted that the notice Annexure-C dated 27th November 1998 issued by the conciliation officer and also the proceedings, a copy of which has been produced as Annexure-D, clearly indicates that the conciliation officer has madcap his mind to initiate proceedings in terms of Section 12(1) of the Act and Rule 10 of the Rules on issue of notice Annexure-C dated 27th November 1998 itself. It is his submission that the contents of Notice Annexure-C makes it clear that the conciliation officer was fully satisfied that there was an industrial dispute existing between the parties and therefore, he had issued the notice calling upon the management and the union of the workmen to attend the joint meeting on 4th December 1998 at 3.00 P.M. He pointed out, the fact that the conciliation officer in his Notice Annexure-C had directed both the management and the workmen to maintain status quo and not indulge in any untoward incident as the conciliation proceedings was pending before him, is indicative of the fact that the notice Annexure-C issued by him was by way of initiation of conciliation proceedings. According to the Learned Counsel the substance and contents of Annexure-C would make it clear that it fully satisfies the requirements of Section 12(1) of the Act and also Rule 10 of the Rules. In this connection, he referred to us the definition of 'conciliation proceedings' as provided under Section 2(e) of the Act. He also pointed out that though there is a small area of discretion that is left to the conciliation officer in respect of non-public utility service with regard to the time of institution of conciliation proceedings, the scheme of the Act, more particularly, the provisions contained in Section 4 of the Act which provides for the appointment of conciliation officers and Section 12 of the Act which provides for duties of conciliation officers mandates the conciliation officer to initiate the proceedings as expeditiously as possible and conclude the same at the earliest; and that being the scheme of the Act, it will be totally wrong to take the view that the notice-Annexure-C issued by conciliation officer does not amount to initiation of conciliation proceedings and all the proceedings held by the conciliation officer prior to issue of notice dated 2nd November 1999 notifying the parties to appear before him on various dates prior to 3rd November 1999, were not conciliation proceedings. It is his submission that the statement made by the management in the objections filed by it to the complaint given by the workmen and the statement made by them before this Court in the statement of objections and the notice dated 2nd November 1999 relied upon by the Learned Counsel for the management clearly indicates that the management has been taking inconsistent and contradictory stand with regard to the date of initiation of conciliation proceedings and from that it is clear that the management is trying to wriggle out of its action of terminating the services of the workman during the pendency of conciliation proceedings without complying with the mandate of Section 33 of the Act. He also pointed out that the report of conciliation officer is also contrary to the notice dated 2nd November 1999 relied upon by the Learned Counsel for the management as the report of the conciliation officer indicates that he had initiated conciliation proceedings on 30th October 1999. Therefore, he submits that the learned single Judge was fully justified in observing at paragraph 5 of the order that the conciliation proceedings had actually commenced on issue of notice Annexure-C dated 27th November 1998. According to the learned Counsel since the proceedings were initiated by issue of notice Annexure-C, merely because notice Annexure-C does not refer to Section 12(1) of the Act read with Rule 10 of the Rules, the consequence of commencement of conciliation proceedings by issue of Notice Annexure-C, cannot be taken away. Therefore, according to the Learned Counsel when the question arises as to when the conciliation proceedings has actually commenced, the Court is required to consider the contents and substance of the notice issued. He pointed out that the consequence of commencement of conciliation proceedings by means of Annexure-C cannot be allowed to be wiped out mainly because in the subsequent notice, the conciliation officer has observed that the said notice was issued under Section 12(1) read with Rule 10 of the Rules. He pointed out that since the notice dated 2nd November 1999 came to be issued subsequent to the termination of service of the workman, and also the complaint filed by the workman, the said notice is required to be ignored and should not be acted upon. It is his further submission that the Act contemplates only initiation of proceedings for conciliation and the Rules do not contemplate convening of a joint meeting of the management and the Union of workmen for purpose other than conciliation. He also pointed out that the observation made by the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) relied upon by Sri Murthy, is of no assistance to him and when the Supreme Court has taken the view that the termination made in contravention of Section 33 of the Act is void and inoperative in law, it is permissible for the workman to file a complaint for violation of Section 33 of the Act and such complaint would be maintainable in law.

6. Sri Shiva kumar, Learned Additional Government Advocate also supported the submission of the counsel for the management on the basis of the order sheet maintained by the conciliation officer. He pointed out that it is only on 30th October 1999 that the conciliation officer came to the conclusion that there was an industrial dispute existing between the parties and thereafter the notice dated 2nd November 1999 came to be issued by him directing the parties to appear before him on 11th November 1999. Therefore, he submits that the Learned Single Judge was not justified in taking the view that the conciliation proceedings had commenced by issuing of notice Annexure-C dated 27th November 1998.

7. In the light of the rival submissions very effectively made by the learned Counsel appearing for the parties, the two questions that would arise the consideration are:

1) When exactly the conciliation proceedings commenced?

2) Whether in the facts and circumstances of the case the Learned Single Judge was justified in taking the view that the termination of the services of the workman came to be made during the pendency of the conciliation proceedings.

3) Whether the termination of the service of the workman cannot be, held to have been made in contravention of Section 33 of the Act in the light of the decision of the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) where the Supreme Court has taken the view that termination of a workman in contravention of Section 33 of the Act as being void and inoperative in law?

Regarding first question:

Before we proceed to examine the first question, it will be useful to refer to some of the provisions of the Act which would have a bearing to decide the question that would arise for consideration in this appeal. Section 2(d) of the Act defines 'conciliation officer' as hereunder:

2(d) 'Conciliation officer' means a conciliation officer appointed under this Act;

Section 2(e) defines conciliation proceedings as hereunder:

2(e) 'Conciliation proceeding' means any proceeding held by a conciliation officer or Board under this Act;

Section 4 of the Act provides for appointment of a conciliation officer. The same reads as hereunder:

4. Conciliation officers - (1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.

(2) A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period.

Section 12 of the Act provides for the duties of a conciliation officer. It is useful to extract Sub-sections (1), (2), (4) and (6) of the Act which reads as hereunder:

12. Duties of conciliation officers - (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.

2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute without delay investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.

4) If no Such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, sent to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bring about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.

(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government.

Provided that, subject to the approval of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.

Rule 10 of the Rules reads as follows:

10. Conciliation proceedings in non public utility service-where the conciliation officer receives any information about an existing or apprehended industrial dispute which does not relate to public utility service and he considers if necessary to intervene in the dispute, 'at such place and at such time as he deems fit' he shall give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be specified therein.

8. Now, the question is whether the conciliation proceedings came to be initiated pursuant to notice Annexure-C dated 27th November 1998 issued by the conciliation officer as contended by the Learned Counsel for the workman or the proceedings came to be initiated pursuant to notice dated 2nd November 1999 issued by the conciliation officer as contended by the learned Counsel for the management?

9. The State Government in the impugned endorsement Annexure-A rejected the prayer of the workman for permission to lodge a complaint against the management under Section 33 of the Act on the short ground that the services of the workman was not terminated by the management during the pendency of the conciliation proceedings. However, the Learned Single Judge on consideration of the contents of the notice-Annexure-C dated 27th November 1998 and also on the basis of the proceedings maintained by the conciliation officer dated 4th December 1998,4th January 1999 and 25th January 1999 took the view that the conciliation proceedings came to be initiated pursuant to the notice-Annexure-C dated 27th November 1998 issued by the conciliation officer fixing the conciliation meeting on 4th December 1998 at 3.00 P.M. This is clear from the observation made by the Learned Single Judge at paragraph 5 of the judgment. We have gone through the contents of notice-Annexure-C and also the proceedings maintained by the conciliation officer commencing from the issue of notice-Annexure-C till the submission of the report by the conciliation officer as per Annexure-R1 dated 30th October 1999. As noticed by us earlier, though it is the contenting of Sri Murthy, that the conciliation proceedings commenced only subsequent to issue of notice dated 2nd November 1999, we are unable to accede to his submission. In our considered view, the facts of the present case as rightly pointed out by the Learned Single Judge indicates that the conciliation proceedings commenced on issue of notice-Annexure-C dated 27* November 1998. It is useful to extract the translation copy of the notice-Annexure-C which has been produced by the appellant. The same reads as follows:

NOTICE

Subject: Regarding regularising the services of apprentice workers in M/S SKF Bearings Limited, Bangalore.

With reference to the above subject, it is to inform that next joint meeting for conciliation shall be held on 4.12.98 at 3-00 p.m. You are requested to be present on the said date without fail along with the related documents and registers. Both the parties are directed . to maintain status quo and not of indulge in any untoward incidents as conciliation proceedings are on.

Sd/-

Deputy labour

Commissioner, Region-2

Bangalore

From the contents of the notice-Annexure-C extracted above, it is clear that the meeting was convened by the conciliation officer for considering the subject regarding 'Regularization of the services of the apprentice workers' in the establishment of the management on 4th December 1998 at 3.00 p.m. In the notice, the parties were directed to be present along with the relevant documents and registers. They were also directed to maintain status quo and not to indulge in any untoward incident as the conciliation proceedings was on. Subsequent to the notice-Annexure-C, the proceedings maintained by the conciliation officer show that on several dates the conciliation officer held the proceedings and the proceedings stood adjourned on many occasions either on the ground that the representative of the management was not present or a request for adjournment was made on behalf of the management. At no stage of the proceedings before 30* October 1999 it was observed by the conciliation officer in his proceedings that the meeting convened by him was not in the course of conciliation proceedings or the meeting was convened for a purpose other than exploring the possibility of settlement with regard to the claim made by he workmen's union regarding Regularization of service of apprentices. Therefore, we are unable to appreciate as to under what circumstances for the first time the conciliation officer in the order-sheet subsequent to the issue of order of termination to the workman recorded that the dispute between the parties was determined as an Industrial Dispute and the proceedings were treated as conciliation proceedings and subsequently issued notice dated 2nd November 1999 purporting to be one under Section 12(1) of the Act read with Rule 10 of the Rules. The conciliation proceedings referred to in Section 2(e) of the Act means any proceedings held by a conciliation officer or the Borad under the Act. According to Law Lexicon 'conciliation' means 'bringing of opposing parties or individuals into harmony (as)'. Though Sri Narasimhan would contend that the conciliation proceedings means any proceedings held by a conciliation officer which necessarily need not be under the Act, we find it difficult to accept the said submission of Sri Narasimhan. In our considered view, conciliation proceedings means any proceedings held by a conciliation officer under the Act. As noticed by us earlier, the notice-Annexure-C issued by the conciliation officer directs the parties to be present before him for the purpose of conciliation and to maintain status quo as conciliation proceedings are on. The conciliation officer has no power under the Act to give a positive direction to the parties to maintain status quo or directing them to refrain from doing any act or directing them to do any act. Therefore, the said instruction or direction given by the conciliation officer could only be traced to the obligation cast on the management. Under Section 33 of the Act not to alter the conditions of service of the workmen as set out in Section 33. Though the notice does not indicate that the same was issued in exercise of the power conferred on him under Section 12 of the Act read with Rule 10 of the Rules, the contents of the notice-Annexure-C clearly indicates that the notice was issued by the conciliation officer in exercise of the powers conferred on him under Section 12(1) of the Act read with Rule 10 of the Rules. It is relevant to point out that Section 4 of the Act provides for appointment of conciliation officer. Section 12 of the Act comprises of two parts. Firstly, in respect of industries which are not in the nature of public utility services, a conciliation officer is empowered, if he is satisfied that an industrial dispute exists or is apprehended, to hold conciliation proceedings. No doubt, in this a discretion is conferred on the conciliation officer to hold or not hold to conciliation proceedings. However, so far as disputes relating to public utility services are concerned and a notice prohibiting a strike and lock-out in terms of Section 22 of the Act has been issued, the conciliation officer is bound to hold the conciliation proceedings. In this there is no discretion left to the conciliation officer and he is required to hold the conciliation proceedings immediately after the issue of notice under Section 22 of the Act. However, it is necessary to point out that the discretion given to the conciliation officers to hold conciliation proceedings in respect of industries which are not public utility services cannot be exercised abitrarily. He is required to exercise the discretion fairly and reasonably and keeping in mind the object of the power conferred on him. From the scheme of the Act, it is clear that conciliation officers are appointed with a view to mediate and bring about settlement and create a congenial atmosphere for the purpose of industries peace. Therefore, once the conciliation officer is satisfied that there is an existing industrial dispute or the industrial dispute is apprehended he has an imperative duty to initiate conciliation proceedings to maintain industrial peace and harmony in the industries. Therefore, we are unable to accept the submission of Sri Murthy that since a discretion is conferred on the conciliation officer not to hold conciliation proceedings in the case of industries other than public utility services, the notice-Annexure-C should not be understood as initiating conciliation proceedings and the said notice should be understood only as convening of a meeting between the management and the workmen. From the scheme of the Act it is clear that the conciliation officers are appointed with a view to mediate and bring about settlement and create a congenial atmosphere for the purpose of industrial peace. Therefore, it would not be permissible for him not to initiate conciliation proceedings, if in the circumstances, the materials placed before him calls for initiation of conciliation proceedings. This is also clear from the reading of Sub-section (2) of Section 12 of the Act, wherein it is provided that the conciliation officer should for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and all right of settlement and he should do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. Under these circumstances, when an industrial dispute exists or is apprehended, a conciliation officer cannot be a silent spectator to such disputes on the ground he has discretion not to initiate conciliation proceedings in respect of industries other than public utility services. However, in a given case, it may be permissible for .him before he initiates conciliation proceedings only for the purpose of ascertaining whether any industrial dispute exists or is apprehended . under the Act, to convene the meeting of the patties by making it clear in the notice issued to them that he has convened the meeting only for the purpose of satisfying himself whether any industrial dispute exists or is apprehended. However, in cases where he issues a notice notifying that he has convened the meeting for conciliation proceedings, it is not possible to take the view that the proceedings initiated are hot conciliation proceedings. The conciliating officer gets the jurisdiction to convene, the meeting of the management and the union of the workmen in his capacity as a conciliation officer and the source' of power is Sections 11, 12 and 13 of the Act. Rule 10 of the Rules on which strong reliance is placed by Sri Murthy, in our view cannot be read, to understand that the proceedings initiated is not a conciliation proceedings. Rule 10 of the Rules only provides for the format of the notice to be issued in cases where the industrial dispute does not relate to public utility service. The power to initiate conciliation proceedings is conferred on the conciliation officer under Sub-Section (1) of Section 12 of the Act and any minor error in the form of the notice issued cannot be made as a ground to take the view that the conciliation proceedings has not commenced. While determining the question whether conciliation proceedings have commenced, or not, the Court has to look into the substance of the notice and not be guided by any minor error that may creep into the contents of the notice issued to the parties for the purpose of conciliation proceedings. The Court cannot ignore the fact that by placing technical interpretation, the notice issued initiating conciliation proceedings is not treated as such a notice, the consequences of such interpretation would be very serious so far as the workmen are concerned, and it would have the effect of frustrating the very mandate contained in Section 33 of the Act. In the instant case, as noticed by us earlier, the notice-Annexure-C in unequivocal terms indicates that the meeting convened on 4th December 1998 was for the purpose of conciliation. Pursuant to the said notice, meetings were held on several dates. As noticed by us earlier, the meetings were held on 4th January 1999,14th January 1999,25th January 1999, 8th February 1999, 31st March 1999, 12th April 1999, 7th August 1999, 20th September 1999, 22nd September 1999 and 30th October 1999. It is only on 30th October 1999, for the first time the conciliation officer observes that he has decided to initiate conciliation proceedings. However, he issues a notice referring to Rule 10 of the Rules and Section 12(1) of the Act only on 2nd November 1999 directing the parties to appear before him on 11th November 1999. In our view, the subsequent observations made by the conciliation officer on 30th October 1999 in the order-sheet or issue of notice on 2nd November 1999 in the facts and circumstances of the case will not make the conciliation proceedings earlier initiated not a conciliation proceedings under the Act and the same is of no assistance to Sri Murthy to support his contention that on the date of the order of termination made against the workman on 19th July 1999, conciliation proceedings had not commenced, An obligation is cast on the management under Section 33 of the Act not to alter the conditions of service of the workmen as set out in Section 33 of the Act. Having gone through the proceedings maintained by the conciliation officer, we find it difficult to take the view that all the proceedings that commenced from 4th December 1998 till 30th October 1999 were not held as part of the conciliation proceedings pursuant to the notice issued to hold conciliation proceedings. While deciding the question as to when exactly the conciliation had commenced, the action of the conciliation officer subsequent to the order made by the management adverse to the interest of the workmen cannot be made as the sole basis to decide the question whether the conciliation proceedings had actually commenced prior to an order made terminating the services of the workman. In each case, when the question arises as to when the conciliation proceedings commenced, the court will have to examine the contents of the notice issued by the conciliation officer convening the proceedings and the stages at which the proceedings were held. In the instant case, as noticed by us earlier, we find it difficult to believe that the conciliation officer held the proceedings on the various dates referred to above without treating it as conciliation proceedings and the parties had participated in the proceedings without treating them as conciliation proceedings, we are of the considered view, merely because the notice issued by the conciliation officer subsequent to the termination of service of the workman states that it is a notice issued under Sub-section (1) of Section 12 of the Act read with Rule 10 of the Rules, if such a subsequent notice only has to be treated as a notice of conciliation, it would have the effect of exposing the workman to be at the mercy of a conciliation officer who for extraneous considerations may act against the interest of the workman at the behest of the management. Therefore, as noticed by us earlier, while considering the question as to whether the conciliation proceedings has commenced or not, the Court has to be guided by the substance and contents of the notice issued and the contents of the proceedings actually held pursuant to the said notice; and not to be guided by the notice issued by the conciliation officer subsequent to the termination of the service of the workman in violation of the provisions contained under Section 33 of the Act. In our view, the decision of this Court in the case of MICO Employees' Association (supra) is of no assistance to Sri Murthy. In the said case, the main question that came up for consideration was whether the settlement was arrived at in the course of conciliation proceedings. That is not the issue in this case. The issue in this case is as to when the conciliation proceedings actually commenced. It is useful to refer to the relevant portion of the said judgment at paragraph 14 which reads as hereunder:

14. It is axiomatic regard being had to the language of Section 12(2) of the Act a mere signing of the settlement in the presence of the conciliation officer would not make it one in the course of conciliation proceedings. As a corollary,, mere crossing the T's and dotting the 1's in a settlement by the conciliation officer will not make the settlement one in the course of conciliation proceedings. In this case, the final offer made by the management was not considered by the commissioner any time after the notice of conciliation nor was it passed on to the JLC. No conciliation meeting took place between respondent-5 and the management till 23rd July 1981 before the Commissioner or the JLC. Respondent-5's letter dated 3rd July 1981 to the Commissioner shows that there were disputes regarding the charter of demands and he wanted the management to arrange for a meeting to discuss and settle all pending demands. Though a copy of this letter had been endorsed to the commissioner and the government, no conciliation meeting took place till the date of settlement on 23rd July 1981. On 23rd July 1981, despite the civil suit in which Rao had succeeded initially in obtaining an order of temporary injunction against respondent-5, the JLC was satisfied that respondent-5 was the real President of the Association and Rao had been removed from that office. Both the management and respondents-1 to 3 knew that the race for leadership of the Association, was sub-judge in the Civil Court. What is more, no explanation is forthcoming from the commissioner as to why an election was not held as per the request of Mr. Rao before the matter was taken to the Civil Court despite his notice Annexure-M appointing the Deputy Commissioner of Labour as the returning officer, to test the representative capacity of Mr. Rao and respondent-5. The management also had not explained this aspect of the case. On the matrix of these facts, the part played by the JLC on 23rd July 1981 has to be critically examined in order to find out whether he discharged his duties as enjoined by Section 12(2) of the Act by bringing about two changes in the settlement on 23rd July 1981 between respondent-5 and the management.

11. We have also gone through the judgment of Pratap Chandra Mohanty (supra) relied upon by Sri Murthy. In our view, since on facts we have found that the conciliation proceedings had commenced by issue of notice-Annexure-C, we are the view that the said decision is of no assistance to him. Accordingly, question No. 1 is answered.

Regarding second question:

The only other question that remains to be considered is, in the light of the judgment of the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra), whether it could be held that the termination of the services of the workman was not in contravention of Section 33 of the Act? In our view, there is no merit in the contention advanced by Sri. Murthy on this question. The Supreme Court a Paragraph 15 of the judgment has laid down that the order made in contravention of Section 33(2) of the Act, without seeking the approval of the authority concerned would be void and inoperative in law. It is useful to refer to the observation made at paragraph 15 of the judgement which reads as follows:

15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employee who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimisation, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.

From the reading of the judgment, it is not possible to take the view that since the Supreme Court has laid down that the order made in contravention of Section 33 of the Act is void and inoperative, there is no contravention of Section 33 of the Act by the management as contended by Sri Murthy. The Supreme Court has only laid down that the effect of the contravention of Section 33 is void and inoperative. It only relives the workman of the hardship of approaching the authorities under Section 33A of the Act and therefore, no complaint need be filed under Section 31 of the Act. The order made in contravention of Section 33 of the Act being void and inoperative, the consequence of contravention must follow. So far as rights of a workman to get into the original position which he has holding in the establishment of the management before termination and for other consequential benefits, the Supreme Court has laid down such an order being void and inoperative, the parties are entitled for relief even without a complaint filed under Section 33A of the Act. That does not absolve the management of the final consequence provide under Section 31 of the Act. Therefore, in the light of what is stated above, we are of the view that if an order is made in contravention of Section 33 of the Act, it is open to the aggrieved workman to seek permission under Section 33A of the Act to institute criminal proceedings.

12. In the impugned order the learned Single Judge has quashed endorsement-Annexure-A and remitted the matter for fresh consideration. It is also necessary to point out that the State Government in endorsement-Annexure-A except stating that the order of termination came to be passed before commencement of conciliation proceedings, it has not given any reasons in support of its conclusion. It appears to us that there was absolutely no application of mind by the State Government with regard to the question whether on the frets and circumstances of the case, conciliation proceedings have actually commenced when the order of termination came to be made. Even on this ground he endorsement-Annexure-A is liable to be quashed.

13. In the light of the discussion made above, we do not find any error in the order impugned passed by the Learned Single Judge. Therefore, this appeal is liable to be rejected. Accordingly, it is rejected. However, no order is made as to costs.


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