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General Manager, Singareni Collieries Company Limited Vs. Industrial Tribunal Hyderabad and Another - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWP No. 10513 of 1990
Judge
Reported in1999(5)ALD416; 1999(5)ALT326
ActsIndustrial Disputes Act, 1947 - Sections 2, 18, 19, 19(3 and 6), 33, 33(A, 1 and 2); Conduct and CCCA Regulations; Constitution of India - Article 136
AppellantGeneral Manager, Singareni Collieries Company Limited
Respondentindustrial Tribunal Hyderabad and Another
Appellant Advocate Mr. K. Srinivas Murthy, Adv.
Respondent AdvocateMr. G. Vidyasagar, Adv.
Excerpt:
.....under section 33-a to be made on ground that contravention of section 33 occurred at time of main dispute pending before adjudicatory authority - no need to establish that contravention was continuing at time of filing complaint - complaint filed after main dispute decided maintainable. - practice & procedure repeal of act; [bilal nazki, c.v. ramulu & d. appa rao, jj] rules framed under the old (repealed) act held, rules framed under the repealed act do not remain in force once the act is repealed unless repealing act provided otherwise. - it is true and well settled by the decisions of the supreme court in d. it is also emphasized in the above judgments of the apex court that neither the jurisdiction of the high courts under article 226 of the constitution nor the jurisdiction..........disputes act, 1947 (for short 'the act') is maintainable and that the second respondent is a 'workman concerned' within the meaning of that term used in section 33 of the act. therefore, in this case, the question as to which workman can be said to be a 'workman concerned' within the meaning of that term used in section 33(2) of the act and whether the second respondent could be treated as a 'workman concerned' arises for decision.2. the facts leading to the filing of this writ petition, in brief, be stated as under: the second respondent, namely, sri p. raghuramulu was initially appointed as general mazdoor in the establishment of the singareni collieries on 23-3-1975; he was later appointed as an electrician in category iv on 1-2-1977 and he was subsequently promoted to category v.....
Judgment:
ORDER

1. This writ petition is directed against an order dated 1-3-1990 passed in Miscellaneous Petition No.27 of 1989 filed in ID No.39 of 1987 on the file of the Industrial Tribunal at Hyderabad. By that order, the Industrial Tribunal, Hyderabad, has held that the complaint filed by the second respondent-workman under Section 33A of the Industrial Disputes Act, 1947 (for short 'the Act') is maintainable and that the second respondent is a 'workman concerned' within the meaning of that term used in Section 33 of the Act. Therefore, in this case, the question as to which workman can be said to be a 'workman concerned' within the meaning of that term used in Section 33(2) of the Act and whether the second respondent could be treated as a 'workman concerned' arises for decision.

2. The facts leading to the filing of this writ petition, in brief, be stated as under: The second respondent, namely, Sri P. Raghuramulu was initially appointed as General Mazdoor in the establishment of the Singareni Collieries on 23-3-1975; he was later appointed as an Electrician in Category IV on 1-2-1977 and he was subsequently promoted to Category V on 1-3-1980. At the behest of the trade union operating in the petitioner-industry, an industrial dispute was referred to the Industrial Tribunal at Hyderabad by the Government of India by its order dated 23-7-1987 and that dispute is registered as Industrial Dispute No.39 of 1987. The terms of the reference are the following:

'1. Whether the action of the management of Singareni Collieries Company Limited in denying stagnation increments to workmen who have completed ten years in the same category/grade is justified? If not, what relief the workmen arc entitled for?

2. Whether the action of the above Management in denying Category IV wages to daily rate coal fillers who have completed ten years service is justified?

If not, to what relief are the workmen entitled?

3. ID No.39 of 1987 was disposed of by the Industrial Tribunal at Hyderabad by its award dated 4-10-1988 holding that the action of the Management is justified regarding both the demands mentioned in the reference.

4. When the above ID No.39 of 1987 was pending before the Industrial Tribunal at Hyderabad, disciplinary proceedings were initiated against the second respondent by issuing charge-sheet dated 27-6-1987. After holding a regular departmental enquiry in terms of Conduct and CCCA Regulations,the petitioner-Management terminated the services of the second respondent, as a disciplinary measure, by its order dated 20-1-1988. After disposal of the industrial dispute, the second respondent filed a petition supposed to be a complaint purporting to be under Section 33A of the Act complaining that he is a 'workman concerned' in the dispute, ID No.39 of 1987, and the management terminated his services without obtaining approval from the Industrial Tribunal. That complaint was registered as Miscellaneous Petition No.27 of 1989. The management put in appearance in the said miscellaneous petition and contended that the miscellaneous petition is not maintainable on the ground that the petitioner is not a, 'workman concerned'. The management requested the Tribunal to decide the maintainability of the miscellaneous petition in the first instance. Accordingly, the Tribunal proceeded to decide on the maintainability of the miscellaneous petition filed by the second respondent, and by the impugned order, opined that the miscellaneous petition filed by the second respondent is maintainable. Hence, this writ petition assailing the validity of the same.

5. Sri K. Srinivas Murthy, learned Standing Counsel appearing for the petitioner-management contended that the second respondent is not covered by the reference made So the Industrial Tribunal and the said reference covers only those workmen who had already completed ten years of service in a particular cadre or grade and not others; the second respondent as on the date of the reference had completed only seven years, ten months and twenty days of service in Category V. Since the second respondent is not covered by the reference, he cannot be treated to be a 'workman concerned' within the meaning of that term under Section 33(2) of the Act, and if the second respondent is not a 'workman concerned', it goes without saying that he is incompetent to file complaintunder Section 33A of the Act. The learned standing Counsel for the petitioner also contended that the life span of the award made by the Industrial Tribunal in ID No.39 of 1987 is only one year as per Section 19(3) of the Act, and it is open to the parties to terminate the award under sub-section (6) of Section 19 of the Act, and, therefore, it cannot be contended that the award is likely to be in favour of the second respondent and that will be in force till the second respondent completes ten years of service in Category V. Secondly, the learned Standing Counsel for the petitioner contended that the complaint lodged by the second respondent after the disposal of the industrial dispute is not maintainable.

6. On the other hand, Sri G. Vidyasagar, learned Counsel for the second respondent-workman, contended that the second respondent will be entitled to stagnation increments immediately after he completes ten years of service by virtue of the award, and he is very much 'workman concerned' within the meaning of that term. The learned Counsel would further contend that a complaint can be lodged before the Industrial Tribunal by a 'workmen concerned' even after the disposal of the industrial dispute pending before it. Sri G. Vidyasagar, learned Counsel would also contend that the writ petition is liable to be dismissed in limine inasmuch as it is directed against an order passed on a preliminary issue and the management ought not to have rushed to this Court without waiting for the final decision of the Industrial Tribunal.

7. Let me first deal with the contention raised by Sri G. Vidyasagar, learned Counsel for the second respondent-workman that the writ petition should be dismissed in limine without going into the merits of the matter solely on the ground that it is directed against an order made by the Industrial Tribunal on the preliminary issue.It is true and well settled by the decisions of the Supreme Court in D.P. Maheswari v. Delhi Administration, AIR 1984 SC 153; S.K. Verma v. Mahesh Chandra, : (1983)IILLJ429SC ; and National Council for Cement and Building Materials v. State of Haryana, : (1996)IILLJ125SC and several other decisions to follow them, that the Labour Court and the Industrial Tribunals entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in disputes at the same time without trying some of them as preliminary issues nor should High Courts in exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before 'a Labour Court or an Industrial Tribunal so that a preliminary issue may be decided by them. It is also emphasized in the above judgments of the Apex Court that neither the jurisdiction of the High Courts under Article 226 of the Constitution nor the jurisdiction of the Supreme Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issue, avoiding decision on issues more vital to them.

8. The emphasis and the rationale behind these decisions is that the industrial disputes should be decided and settled, as early as possible, and any attempt to prolong the disputes should be discouraged. If this objective is kept in mind and when we look at the facts of this case, can it be said that the High Court should refrain itself from entertaining this writ petition and direct the Industrial Tribunal to decide on the merit of the dispute, i.e., the validity of the termination of the services of the second respondent as a disciplinary measure, reserving liberty to the petitioner-management to assail the validity of the order impugned in this writ petition and the final award that may be passed by theIndustrial Tribunal, if the same goes against the management, at a later stage? I am of the considered opinion that if the Court were to adopt such a course, the Court would be acting quite contrary to the objective emphasised by the Supreme Court in the above noted cases. I say this, because, in the first place, the impugned order is dated 1-3-1990 and the writ petition was filed in this Court in the year 1990 and it is coming up for final hearing after a lapse of more than nine long years. Secondly, this case involves the very question of maintainability of the complaint filed by the second respondent under Section 33A of the Act, and if the Court finds that the complaint is not maintainable in the sense that the second respondent is not a 'workman concerned', deciding the merits of the case i.e., the validity of the termination of the services of the second respondent as a disciplinary measure, will never arise. If the disciplinary action taken by the management is otherwise invalid, the second respondent should seek appropriate remedy before the jurisdictional Industrial Court by instituting a regular industrial dispute. The procedure contemplated under Section 33-A of the Act is an extraordinary, special measure convering not all workmen but only those 'workmen concerned' in the pending industrial disputes. The Court is not called upon to decide whether the Industrial Tribunal should decide the preliminary issue regarding maintainability of the complaint separately or whether it should try and dispose of all the issues together, and if that were to be the position, perhaps, the Court should have directed the Industrial Tribunal to try and dispose of all the issues together. In the instant case, the maintainability question was decided by the Industrial Tribunal more than nine years back. In that view of the matter, it is not appropriate for the Court to decline to exercise its power at this distance of time and particularly in the context of the opinion it has formed on merit of the case regarding the maintainability of thecomplaint lodged by the second respondent, as reflected in the succeeding paragraphs of this order.

9. Let me first dispose of the second contention of Sri K. Srinivasa Murthy, learned Standing Counsel for the petitioner-management that the complaint lodged by the second respondent after the disposal of the industrial dispute is not maintainable. It is true that it is not every contravention of Section 33 that falls within the scope of Section 33-A. To invoke Section 33-A, it must be established that the contravention took place during the pendency of a proceeding before any of the conciliatory or adjudicatory authorities enumerated therein. In other words, if there is no pendency of a proceeding before any such authority at the time of contravention of Section 33, the provisions of Section 33-A are not attracted. Before an adjudicatory authority can embark on adjudication of a complaint under Section 33-A, it is necessary that it should record a positive finding that there was a proceeding pending before it in respect of an industrial dispute. The use of the word 'such' in Section 33-A does not imply that at the time when the complaint is preferred by the aggrieved workman, the main dispute must be pending before the authority to which the complaint is preferred. The Division Bench of the Bombay High Court in Prabhakar Shamrao Marathe v. Maharashtra State Electricity Board, (1975) Lab.IC 697 (Bombay) and that of the Patna High Court in Bihar State Road Transport Corporation v. Jadunandan Singh, (1979) Lab.IC 312 (Patna) have opined that the word 'such' clearly refers to the authority which had seisin of the main dispute, i.e., the dispute which was referred to its adjudication and it has no reference to the pendency of the main dispute. In other words, it is sufficient that at the time of the contravention of Section 33, the main dispute was pending before the adjudicatory authority, and it is not necessary that the dispute must continue to be pending to thetime of making the complaint. I am in respectful agreement with the opinions delivered by the Bombay and Patna High Courts. In the instant case, when the petitioner was removed from service as a disciplinary measure on 20-1-1988, ID No.39 of 1987 was pending before the Industrial Tribunal at Hyderabad. Therefore, it cannot be said that the complaint lodged by the second respondent on 30-1-1989, that is to say, after the disposal of the industrial dispute is not maintainable in law, on that count.

10. Before dealing with the first contention of the learned Standing Counsel and the counter-contention of the learned Counsel for the second respondent thereto, the relevant statutory provisions may be noted. Sub-sections (1) and (2) of Section 33 of the Industrial Disputes Act read:

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

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to aworkman concerned in such dispute (or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman).

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

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

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

11. Section 33 of the Act prescribes the exercise of various management 'prerogatives', vis-a-vis the employees concerned in the dispute inasmuch as it introduces a fundamental change in the law of master and servant insofar as the cases falling within the Act are concerned. But it recognises that sometimes occasions may arise, when the employer may be justified in discharging or punishing by dismissal of his employee, so it allows the employer to take such action subject to the conditions that in any case before doing so, he must obtain express permission in writing, of the authority before which the proceeding is pending and in the other, he must immediately apply to such authority for approval of the action already taken by him. Thus, the purpose of the prohibitions contained in Section 33 is two-fold. On the one hand, they are designed to protect the workmen concerned during the course of industrial conciliation, arbitration andadjudication, against the employer's harassment and victimisation, on account of their having raised the industrial dispute or their continuing the pending proceedings, on the other they seek to maintain status quo by prescribing management conduct which may give rise to fresh disputes which further exacerbate the already strained relations between the employer and the workmen.

Section 33-A of the Act reads:

'33A Special provision for adjudication as to whether conditions of service etc., changed during pendency of proceedings :-- Where an employers contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, a Labor Court, Tribunal or National Tribunal any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner:

(a) to such conciliation officer or Board and the conciliation officer or Board shall take such complaint into account in mediating in and promoting the settlement of, such industrial dispute; and

(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.'

12. Section 33A of the Act is designed to provide instant remedy to a workman aggrieved by the contravention of Section 33.In other words, where an employer has contravened the provisions of Section 33, the aggrieved workman has been give a the option to make a complaint in writing to the authority, whether conciliatory or adjudicatory, before which an industrial dispute is pending with which the aggrieved workman is concerned. Where the complaint is to the conciliatory authority, it will take into account such complaint in the course of mediating or promoting the settlement of the dispute. But where the complaint is made to the adjudicatory authority, it will adjudicate upon the dispute as if it is a dispute referred to or pending before it Thus, the workman is saved of the botheration of moving the Government for referring his dispute for adjudication which it may or may not refer.

13. For the purpose of Section 33, the workman should not only be a workman within the meaning of that term as defined under Section 2(s) of the Act, but should also be concerned in the dispute pending before an authority referred to therein. The 'workmen concerned' in an industrial dispute, obviously constitute a group which might be less comprehensive in its scope than all the workmen employed in that industry or even in one establishment of that industry. The Madras High Court, in Newtone Studios v. T.R. Ethirajulu, (1958) ILLJ 63 (Madras), opined that every workman need not necessarily be a workman 'concerned' in the pending industrial dispute. The word 'concerned' in its dictionary meaning, means 'interested, engaged; having a connection with' or 'interested; involved'. In order to substantiate the claim of contravention of Section 33, the workman has to show that he was 'concerned' with the pending dispute in any of the manners envisaged by the expression. Mere raising or sponsoring a dispute by the union will not be a sine quo non for holding that every member of the union will be a workman concerned for any matter whatsoever, even if it had no semblance ofany connection or interest with the dispute raised by the union.

14. The Orissa High Court, in Khagendra Prasad Patra v. D.T.M; S.T.S: Koraput, (1976) Lab IC 1260, opined that the burden of proving that he is a workman concerned will naturally be on the workman. It is necessary for the workman who wants to come within the category of 'workmen concerned' in such a dispute to prove that he is interested in or has connection with the dispute already pending for determination.

15. Before the Supreme Court delivered the judgment in New India Motors Private Limited v. K.T. Morris, (1960) I LLJ 551 (SC), there were conflicting judicial dicta of various High Courts on the construction of the words 'workman concerned in such dispute', occurring in Section 33. The Bombay High Court in New Jahangir Vakils Mills Limited v. Industrial Tribunal, (1958) II LLJ 573 (Bombay) gave the words a narrow meaning while the Madras High Court, in Newtone Studio's case (supra) and this Court, in Andhra Scientific Company Limited v. Sheshagiri Rao, (1959) II LLJ 717 (AP) put a broader construction on them. The Supreme Court in K.T. Morris case (supra), after considering the conflicting dicta, preferred the broader construction of the words and observed that the expression 'workmen concerned' in such dispute occurring in Section 33 should be broadly construed bearing in mind the definition of 'workman' in Section 2(s), the binding nature of the award under Section 18 and also the object of Section 33 itself. In this connection, the Supreme Court opined:

'In dealing with the question as to which workman can be said to be concerned in an industrial dispute, we have to bear in mind the essential condition for the raising of an industrial dipute itself, and if an industrial dipute can be raised onlyby a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. Therefore, we are not prepared to hold that the workmen concerned in such dispute can be limited only to such of the workmen who are directly concerned with the dispute in question. In our opinion, that expression includes alt workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute.'

16. The Supreme Court, in DigwadihColliery v. Ramji Singh, (1964) II LLJ 143, clarified its observation in K.T. Morris case (supra) and stated that unless it is known as to what was the nature of the dispute pending in the reference, it would plainly be impossible to decide whether the respondent is a workman concerned within the meaning of Section 33(2). The combined effect of the K.T. Morris (supra) and Digwadih Colliery cases (supra) is that there must be some common feature in the nature of the dispute in the two cases which should serve as a connecting link thereby rendering the workmen in the latter case also 'workmen concerned in the dispute' in the earlier case. The question whether a workman is concerned in the dispute under adjudication is a mixed question of law and fact and no specific and particular test or rule of law or formula can be laid down for determining whether a particular workman is a 'workman concerned in the dispute' or not. The question in each case will have to be determined on the particular facts of that case.

17. The mere fact that the workman was the member of the union which had taken up the pending dispute of any other workman, will not make him 'workman concerned' in the dispute. It is the dispute that the workman had to be 'concerned'with not only with the parties to the dispute. But the nature of the dispute should be such as would ordinarily affect the interest of the rest of the workmen or in which the principle applicable to the workmen in general is involved or when it could be said that it was a collective dispute on behalf of the workmen in general.

18. The 'concern' of the workman in the pending dispute cannot be hypothetical, speculative and cannot depend, upon a future uncertain happening or event; his present concern should lie in the certainty, of course, not in the absolute sense, but in the 'ordinary course' sense. It must be pragmatic and something concrete and capable of being realised or benefited in an ordinary course of contemplated events.

19. If the above noted principles are applied, to the facts of this case, can it be said that the second respondent is a 'workman concerned'? It is well settled that the adjudicatory powers of the Labour Courts, Industrial Tribunals and National Tribunals are limited and circumscribed, and the scope of their adjudicatory powers is determined by the terms of reference. In other words, the Industrial Courts cannot go beyond the terms of reference though they are impliedly conferred with power to decide incidental matters/issues. What are the terms of reference in the ID No.39 of 1987? The two terms of reference are extracted above. We are not concerned with the term (supra) of the reference. The term (supra) of the reference with which we are concerned is that whether the action of the management in denying stagnation increments to workmen who have completed ten years in the same category/grade is justified. The above term of reference cannot be equated to a term of reference whether the action of the management of the Company in denying the stagnation increments to the workmen as and whenthey complete ten years in the same category/ grade is justified. The dispute referred to the Industrial Tribunal is not general in nature covering all the workmen in the industry. On the rather hand, it covers only a distinct class of workmen who have already completed ten years of service in the same category/grade. The second respondent admittedly had put in only seven years, ten months and 20 days of service in Category V on the date of reference. Therefore, it cannot be said that the second respondent is covered by the reference. The dispute, ID No.39 of 1987, was raised by the Trade Union, only on behalf of those workmen who had already completed 10 years of service in the same Category/grade and not on behalf of all the workmen. It may be that the second respondent is 'concerned' with the Trade Union which is a party to ID No.39 of 1987, but he is not 'concerned' with that dipute. What is essential is that a workman, in order to be a 'workman concerned', should be 'concerned' with the dispute.

20. Alternatively, it may be noted that under Section 19(3) of the Act, an award shall be in force for a period of one year, and it is open to the parties to terminate the award as provided under sub-section (6) of Section 19 of the Act. Therefore, it cannot be contended that the award would be in force till the second respondent completes ten years of service in Category V. If the law were to mandate that once an award is made by an Industrial Court, such award will be in force for ever, perhaps, the second respondent could have contended that on completion of 10 years of service in the post which he holds presently, he will be entitled to get stagnation increments, as a certainty, and, therefore, he is a 'workman concerned' within the meaning of that expression. That is not the position in law. Therefore, I do not find any force in the contention of Sri G. Vidyasagar, learned Counsel for the second respondent that the second respondentcan claim stagnation increments immediately after completion of ten years of service by virtue of the award and therefore he should be treated as a 'workman concerned. His claimed entitlement to stagnation increments depends upon may imponderalbes and uncertainties. Even assuming that, in the ordinary course, the second respondent completing ten years of service in Category V is a certainty, the award made by the Industrial Tribunal will be in force by the time the second respondent completes ten years of service in Category-V cannot be a certainty. In other words, by the time the second respondent completes ten years of service in Category V, the award may not be in force if either of the parties to the dispute terminates the award as provided under Section 19(6) of the Act after a period of one year from the date of coming into force of the award.

21. In the result and for the foregoing reasons, the writ petition is allowed, with no order as to costs. The impugned order dated 1-3-1990 passed in MP No.27 of 1989 in ID No.39 of 1987 on the file of the Industrial Tribunal, Hyderabad is quashed, and MP No.27 of 1989 filed by the second respondent under Section 33A of the Industrial Dispute Act is dismissed as not maintainable.


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