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Eid Parry Staffs' Association and Ors. Vs. Deputy Commissioner of Labour-i, Madras (31.01.1984 - APHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 7699 of 1983
Judge
Reported in1984(1)ALT36; 1984(2)AnWR325; 1984(1)APLJ26; (1985)ILLJ340AP
ActsIndustrial Disputes Act, 1947 - Sections 9A, 10, 17, 20, 20(2), 22, 31, 33, 33(1) and 33A
AppellantEid Parry Staffs' Association and Ors.
RespondentDeputy Commissioner of Labour-i, Madras
Excerpt:
.....contended that employer not entitled to alter conditions of service of employees concerned in a dispute pending before conciliation officer to their prejudice under section 33 (1) (a) - retrenchment does not amount to alteration of conditions of service - no conciliation proceedings pending as per section 33 (1) (a) - held, no occasion for issuing writ directing enforcement of statutory mandatory obligation created by section 33 (1) (a). - - hence if any such alteration is proposed, or is likely to take place, this court would be perfectly justified in issuing a writ of mandamus, commanding the employer to abide by the said statutory mandatory obligation. parry staff's association, madras-1, it is clearly established that, by 18th january, 1984, the conciliation failure report..........obligation upon the employer not to alter the conditions of service of the workmen concerned in a dispute pending before a conciliation officer. board, arbitrator, labour court, tribunal or national tribunal, to their prejudice; any such alteration made is a pending offence. hence if any such alteration is proposed, or is likely to take place, this court would be perfectly justified in issuing a writ of mandamus, commanding the employer to abide by the said statutory mandatory obligation. indeed, and it ought to. 6. but, in this case two further questions arise, viz., whether, as a fact, the conciliation proceeding is pending as on today, though it was admittedly pending when the writ petition was filed; and secondly, whether in the facts and circumstances of this case, retrenchment.....
Judgment:

1. Petitioners are the employees of Parry & Company Ltd., which is a subsidiary of E.I.D. Parry (I) Ltd. On 8th September, 1983, the Parry & Company published a seniority list of its employees, as contemplated by Rule 67 of the Madras Industrial Disputes Rules Corresponding to Rule 79 of the Andhra Pradesh Industrial Disputes Rules, for the purpose of effecting retrenchment. Immediately, the Employees' Union raised a dispute before the Conciliation Officer, which was admitted to conciliation. Retrenchment was to take place with effect from 14th days September, 1983 i.e., on the expiry of seven days from the date of publication of the seniority list. At that stage, the petitioners filed this writ petition in this Court on 12th September, 1983 and on 14th September, 1983, this Court granted stay of retrenchment pending further orders on the writ petition. I am told that this order was made absolute, and now the writ petition has come up before me for final hearing.

2. Mr. A. Jagannadha Rao, the learned Counsel for the petitioners, contends that, in as much as a conciliation proceeding is pending before the Conciliation Officer, it is not open to the employer to alter, to the prejudice of the employees concerned in the dispute, the conditions of service applicable to them immediately before the commencement of the conciliation proceeding, as contemplated by S. 33(1)(a) of the Industrial Disputes Act. He submits that unless this Court injuncts such retrenchment, the petitioners would suffer grave prejudice, in as much as the remedy provided by S. 33-A of the Act for violation of S. 33(1) does not cover the pendency of proceedings before the Conciliation Officer, though it covers the pendency of proceedings before a Labour Court, Tribunal, or National Tribunal, as the case may be. He submits further that the proposed retrenchment amounts to alteration of the conditions of service, as contemplated by S. 33(1)(a) of the Act.

3. Section 33(1)(a) of the Industrial Disputes Act, reads as follows :

'33(1). During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall -

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

(b) * * ** (omitted as unnecessary).'

Section 33-A reads as follows :-

'33-A. Where an employer contravenes the provisions of S. 33 during the pendency of proceeding before a Labour Court, Tribunal or National Tribunal, any employee aggrieved such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court, Tribunal or National Tribunal and on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaints as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly.'

4. Reference may also be had to S. 31, which provides for prosecution and penalty, for violation of the provisions of S. 33. It reads thus :

'31. Any employer who contravenes the provisions of S. 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

(2) Whoever contravenes any of the provisions of this Act or any rule made thereunder shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with fine which may extend to one hundred rupees.'

5. From the above provisions it follows that S. 33(1)(a) creates a statutory mandatory obligation upon the employer not to alter the conditions of service of the workmen concerned in a dispute pending before a Conciliation Officer. Board, Arbitrator, Labour Court, Tribunal or National Tribunal, to their prejudice; any such alteration made is a pending offence. Hence if any such alteration is proposed, or is likely to take place, this Court would be perfectly justified in issuing a writ of mandamus, commanding the employer to abide by the said statutory mandatory obligation. Indeed, and it ought to.

6. But, in this case two further questions arise, viz., whether, as a fact, the conciliation proceeding is pending as on today, though it was admittedly pending when the writ petition was filed; and secondly, whether in the facts and circumstances of this case, retrenchment amounts to alteration of the conditions of service, within the meaning of S. 33(1)(a) of the Act. Counsel for the petitioners relies upon the decision in Bhavnagar Municipality v. Alibhai Karimbhai, [1977-I L.L.J. 407], on this aspect and says that, according to the principle of this decision, the retrenchment in this case does amount to alteration of the conditions of Service.

7. Section 20 of this Act specifies as to when a conciliation proceeding should be deemed to have commenced, and when it should be deemed to have concluded, sub-s. (1) and (2) of S. 20 read as follows :

'20(1). A Conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lockout under S. 22 is received by the Conciliation Officer or on the date of the order referring the dispute to a Board, as the case may be.

(2) A conciliation proceeding shall be deemed to have concluded -

(a) Where a settlement is arrived at when a memorandum of the settlement is signed by the parties to the dispute :

(b) Where no settlement is arrived at when the report of the Conciliation Officer is received by the appropriate Government or when the report of the Board is published under S. 17, as the case may be : or

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

8. It is submitted by Sri K. Srinivasa Murthy that the Conciliation Officer had submitted his report even in November, 1983, and since the Government must be presumed to have received the said report, the conciliation proceeding must be deemed to have concluded even in November. Mr. V. Jagannadha Rao, does not admits the above statement; but, at the same time, he is not in a position to say that the conciliation proceeding is still pending before Conciliation Officer. Indeed, from the letter of the Deputy Commissioner of Labour-I, Madras-6, dated 18th January, 1984 addressed to the Secretary, E.I.D. Parry Staff's Association, Madras-1, it is clearly established that, by 18th January, 1984, the conciliation failure report had already been submitted by the Conciliation Officer to the Government of Madras. This is what the letter dated 18th January, 1984 says :-

'With reference to your letter dated 23rd December, 1983, I have already advised the Secretary, E.I.D. Parry Staff Association, Madras-1 on 3rd January, 1984 in person when he met me on that day that he may await the orders of the Government on the conciliation failure report already submitted to Government regarding retrenchment of 75 workmen. I am to add that the advice given already holds good in respect of your letter dated 2nd January, 1984 also.'

9. This letter was in reply to the complaint of the Staff Association that the employer must be prosecuted for violation of S. 9-A of the Industrial Disputes Act. Now, the above letter shows that even by 3rd January, 1984 - and without a doubt by 18th January, 1984 - the Conciliation Officer had submitted his conciliation failure report to the Government. Today, it is 31st of January, 1984. It would, therefore, be reasonable to presume that the Government must have received the said report at least by today, if not earlier. Thus, even though a writ could properly be issued when the conciliation proceedings were pending before the Conciliation Officer, today the employees cannot be directed to be continued in employment, because the conciliation proceedings have come to an end, as defined by S. 20(2)(b). Indeed, at the inception of the hearing of this case, Mr. V. Jagannadha Rao had also submitted that, the report was submitted by the Conciliation Officer to the Madras Government but that, the Madras Government has so far not taken any action on the basis of the said report.

10. In this view of the matter, it is not necessary for me to consider whether the retrenchment of the petitioners amounts to alternation of the conditions of service, within the meaning of S. 33(1)(a) of the Industrial Disputes Act. It is enough for me to say that, since, as on today, no conciliation proceedings can be said to be pending within the meaning of S. 33(1)(a) of the Act, there is no occasion for issuing a writ directing the enforcement of the statutory mandatory obligation created by S. 33(1)(a).

11. The writ petition, accordingly, fails and is dismissed. No costs.


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