No. 2696-1. R.IR/10L-219/71
Whereas an industrial dispute exists between Messrs. Eastern India Usha Corporation (a division of the Jay Engineering Works Ltd.) 10, Middleton Row, Calcutta-16, and their workmen represented by Jay Engineering Employees' Union, 113/2, Hazra Road, Calcutta-26 relating to the matter specified in the Schedule below, being a matter specified in the Third Schedule to the Industrial Disputes Act, 1947 (Act XIV of 1947);
And whereas under the Government of West Bengal, Labour Department Order No. 421-I.R. /IR/10L-219/71 dated the 31st January, 1972 the said industrial dispute was referred to the Second Industrial Tribunal, constituted under this Department Notification No 808-I.R. /IR/3A-2/57 dated the 11th March, 1957 for adjudication;
And whereas the said Second Industrial Tribunal is without any Judge and it is expedient that the proceedings of the said Industrial dispute should be withdrawn from the file of the said Second Industrial Tribunal and transferred to some other Tribunal for speedy disposal;
Now, therefore, in exercise of the power conferred by Section 33B of the Industrial Disputes Act, 1947 (Act 14 of 1947), the Governor is pleas-ed hereby to withdraw the proceedings of the said industrial dispute from the Second Industrial Tribunal and transfer the same for disposal to the Fourth Industrial Tribunal constituted under Notification No. 808-I.R/IR/8A/2/57 dated the 11th March, 1957;
The said Fourth Industrial Tribunal shall for this purpose meet at such places and on such dates as it may direct.
Dearness allowance for the teaching staff and darwans of Usha Sewing Schools.
By order of the Governor
Asst. Secy. to the Govt. of
27. It transpired that the Judge of the Second Industrial Tribunal had retired on 2nd January, 1972 and there was no fresh appointment made until the second order of reference was made Section 33B reads as follows:
(1) The appropriate Government may, by order in writing and for reasons to be stated therein withdraw any proceedings 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.
28. The first point urged by Mr. Banerjee is that no sufficient reasons have been stated as is required under Section 33B and as such the order made under Section 33B is invalid. From the said order of reference dated 25th May, 1972, it will appear that the only reason which has been given is to the effect that the Second Industrial Tribunal had no Judge at the material time.
29. In the affidavit-in-opposition it has been stated that the former Judge of the Second Industrial Tribunal had retired on 2nd January, 1972. That being the position, it is argued that on the date of the first reference there was no Judge in the said Second Industrial Tribunal and, accordingly, the reference was invalid. It is contended that under Section 7A the appropriate Government would constitute the Tribunal and would appoint one person only as the Presiding Officer of the Tribunal. Under Section 8 of the said Act the appointment was to be made in case of vacancy. It is urged that neither the reference could validly be made to such a Tribunal which had no Judge nor could such reference be called a pending reference within the meaning of Section 33B. It is contended that if the Presiding Officer is not in existence then there cannot be any question of any reference being pending before him. Mr. Banerjee has further urged that from the affidavit-in-opposition filed on behalf of the Government it transpired for the first time that the employees union made an application for such withdrawal and transfer by its letter dated 25th April, 1972 which was received by the Government on May 5, 1972. This has not been communicated to Mr. Banerjee's client and, accordingly, this unilateral transfer is illegal and no opportunity having been given to the appellant there was violation of the rules of natural justice.
30. On the question as to whether the provision of Section 33B has been complied with in making the order of transfer the law is settled that before an order is passed the reasons for withdrawal and transfer have got to be stated in the order which must be in writing. It would not amount to stating the reasons in compliance with the said section if it is only stated that it is expedient to withdraw the reference from one Tribunal and to transfer it to another. Such a bare statement would not be in compliance with the said section. The reasons have to be specifically mentioned as provided in the section and the requirement must be complied with both in substance and in letter. See Associated Electrical Industries (India) Pvt. Ltd. Calcutta v. Its Workmen : (1961)IILLJ122SC . The expression 'may' in Sub-section (1) of Section 33B only makes it discretionary in so far as the appropriate Government taking a decision as to whether or not the powers conferred thereunder has to be exercised but once a decision is taken that such power has to be exercised then it becomes mandatory on the appropriate Government to have the reasons stated in the order which must be in writing. It would seem that the essence of this new provision which was enacted in 1956 is that by this provision the Government has been empowered to interfere with the proceeding when it did not remain within its administrative process but was being dealt with by the judicial process. From the scheme of the Act it would appear that after the order of reference is made under Section 10(1) of the Industrial Disputes Act the administrative power of the appropriate Government generally ends and the judicial proceeding commences, and such proceedings would be deemed to have concluded as provided under Section 20(3) thereof from the date on which the award would become enforceable under Section 17A of the said Act. In between the said period it would remain a pending proceeding within the domain of the judicial process generally for ail purposes except in respect of cases where any vacancy would arise which would have to be filled up by exercising the administrative power under Section 8 or by exercising powers under the new provision of Section 33B. It is true that a reference under Section 10 is discretionary bat once the discretion is exercised in favour of making a reference and the matter is referred to the Tribunal, the administrative power of the appropriate Government generally comes to an end though not for all purposes and the judicial process begins. During this period in spite of such administrative interference for the said limited purposes the matter remains pending before the Tribunal and continues to be so even at the same time the appropriate Government exercises power under Sections 8 and 33B. The administrative power under such circumstances is exercised in aid of the judicial process. This interference with the judicial function by the executive has to be sparingly exercised and in order that such extreme power is not exercised capriciously, it has been provided that the reasons in respect of exercising such administrative power have to be stated in the order so that, if need be, the same might be subjected to judicial review. To my mind, that must be the reason why the executive has been required to comply with the said mandatory provision in case it is thought that the matter has to be transferred from one Court to another.
31. In my opinion, in this case, the reasons have been stated in the order and as such it must be held that the requirements have been complied within the facts and circumstances of this case. No further reason could be called for, for the purpose of withdrawing and transferring the case to another Tribunal. In the above Supreme Court case of Associated Electrical Industries India) Private Ltd., Calcutta as d in several other cases cited from the Bar, the facts were that the Government in stating the above reasons only quoted the language of the Section and stated that the Government thought it expedient to withdraw and transfer the case. As stated above, that would not amount to the compliance with the requirement of the section. Unlike those cases in the instant case two reasons have been stated. First, it is stated that there is no Judge and the second is that the said pending proceeding required speedy disposal. It is to be noted that under Section 15 of the Act it is provided that the Tribunal 'shall hold its proceedings expeditiously'. That envisages a duty to dispose of matters speedily. That being the position, it must be held that it is a good reason for withdrawing the matter and transferring it to another Court when the matter could not be speedily disposed of by the former Court for some difficulty, such as there being no Judge for sometime because the vacancy had not been filled up for some reason or other.
32. On the question as to whether the vacancy should have been filled up under Section 8 instead of exercising powers under Section 33B in my opinion, it is not obligatory on the part of the appropriate Government to fill up the vacancy in order to exercise powers under Section 33B. In other words, Section 8 is no bar to the exercise of power under Section 33B. The power under Section 8 is independent of the power conferred by Section 33B. Section 8 does not in any way control the provision of Section 33B. There is no duty cast upon the Government to supply the vacancy in order that the power to withdraw and transfer could be exercised. If the vacancy can be filled up speedily then there is no point in exercising powers under Section 33B; it is because the vacancy could not be filled up speedily for some reason or other, that the Government thinks fit to proceed under Section 33B so that the held up matter could be immediately set into motion. As it is, it appears that from January till May the vacancy was not filled up by making an appointment Under such circumstances, it is quite opposite for the appropriate Government to exercise powers under Section 33B in order that the proceeding might be expedited and disposed of speedily. It is quite possible that the Government in exercising its discretion under Section 33B took into account that this would be the speedier remedy and as such withdrew the case and transferred it to the Fourth Tribunal. In any event, the language in the two sections, being Sections 8 and 33B, do not in any way, indicate that Section 8 is a controlling section. After all, whether or not the matter is heard by a new incumbent in the same Tribunal or by another Tribunal would hardly make any difference and there is hardly any scope of any prejudice being suffered for such transfer because the matter was not entertained by any Judge initially. That being the position, the arguments of Mr. Banerjee on this point are not acceptable.
33. It is next argued that the order of reference became bad because at the time the reference was made there was no Judge. It is difficult to appreciate how this point could arise when the Tribunal to which the dispute was referred was very much in existence. Both the second and the fourth Tribunals were constituted by the same notification on 11th March, 1957 aid both were in existence at the material time. The Judge had retired on 2nd January 1972. It must be that the reference was made to the said Tribunal with the expectation that the appointment would be made soon thereafter. This not having been done the question arose whether the same had to be withdrawn and transferred to another Tribunal. The result, therefore is, that the matter was very much pending before the said Tribunal although there was no Judge. The language used in Section 8 also makes it clear that even in case of vacancy the proceeding may be continued after the vacancy is filled up. Because the proceeding can be pending that is why it can be continued.
34. In my opinion, once a reference is made under Section 10(1) the reference is commenced before the Tribunal and it would continue to be pending before the Tribunal whether or not the presiding Judge is there or there is a vacancy. Accordingly, such a reference remained a valid reference and there could be no difficulty in exercising power under Section 33B in withdrawing and transferring the matter from the said Tribunal to another. It was the pending master which was so withdrawn and transferred under Section 33B. As to whether such a transferred matter would be heard de nove by the transferee-Court or the same would be proceeded with from the stage at which it was so transferred is another matter to which we are not concerned with in this case. All that the section requires is that it must be the speaking order so that it might be subjected to judicial review.
35. Mr. Banerjee next argues that before the order of withdrawal and transfer was made under Section 33B no notice was served upon the appellant and that not having been done the principle of natural justice has been violated with the result that the order of transfer became invalid.
36. Mr. Banerjee further contends that in course of the High Court proceeding it transpired from the affidavit-in-opposition that a letter was written on behalf of the union to the Government and pursuant thereto the Government took action under Section 33B. The copy of the said letter was not sent to the appellant nor was it mentioned in the order itself.
37. On behalf of the respondents it is urged that the appellant never made any grievance about the absence of such notice at any stage. Even in the affidavit in reply no such point was taken except to lay that they will refer to the letter dated 15th April, 1972 when the same would be produced to ascertain the meaning and scope thereof. Only in the grounds of appeal the point was taken to the extent that copies of the said letter were not sent to the appellant. Whether such conduct amounted to the violation of the principle of natural justice or not was nowhere indicated and not even argued either before the Tribunal or before the trial Court.
38. Mr. Banerjee has argued by relying on several Supreme Court oases that the principle of natural justice should be followed even in matters of administrative functions. Mr. Banerjee relied on two Punjab cases in the case of Workmen of Punjab Worsted Spinning Mills, Chheharta v. State of Punjab 1965--II L.L.J. 218, and in the case of Technological Institute of Textiles v. Labour Court, Jullundur 1970--I L.L.J. 188, where the learned Judges have applied the principle of natural justice. It is to be noticed that the point which is now sought to be made out in substance is that the Government was bound to give notice before exercising powers under Section 33B. This point was not dependent on whether a letter was written by the union or not. This point could have been urged before the Tribunal as also before the trial Court but the appellant has chosen not to do so. Even assuming that the appellant came to know of the said letter from the said affidavit- in-opposition yet there is no indication in the affidavit in-reply about the point as to the violation of the principles of natural justice. Even in the grounds of appeal it was expected that this point would be specifically taken but the same is quite silent everywhere except at the last stage when Mr. Banerjee took up this point in course of his argument. All that was argued before Masud, J., was that copies of the letter dated 25th April, 1972 written by the employees' union were not sent to the appellant and as such the transfer being a unilateral transfer was illegal. The learned trial Judge observed as follows:
It is true that the Government should have sent a copy of the representation of the Employees' Union to the petitioner-company before the transfer order was made. But the objection to my mind is more of a form than of substance. There is no allegation that Government acted mala fide in this particular case in transferring the said dispute to the 4th Industrial Tribunal. It is quite possible, in certain cases if a particular. Tribunal expresses a view in a pending matter before it and the Government without reference to the parties transfer to any other Tribunal the authority of such transfer might be challenged. In this particular case the dispute had not been taken up at all by the 2nd Industrial Tribunal.
The learned Judge further observed that the petitioner could have raised this preliminary point before the tribunal that there was no justification for Transfer of the case from the second Industrial Tribunal to the 4th Industrial Tribunal. It was also observed that there was no allegation that the transferee, Court was prejudiced against the petitioner in any way.
39. In any opinion, the learned trial Judge was quite justified in taking into consideration the said facts. The facts in this case reveal that after the order of reference was made nothing whatsoever was done by the Tribunal because there was no Judge who could take action thereon. It remained pending for a few months and then it was sought to be expedited by transferring it to another Tribunal It is difficult to appreciate how under such circumstances the Government could be called upon to give a notice to the parties before making the order under Section 33B. There could be no principle involved in giving such a notice. Nobody's rights could possibly have been affected in taking such action under Section 33B. These are special facts and circumstances which have to be considered to appreciate whether or not the principle of natural justice has been violated. The union's letter no doubt in the ordinary course should have been brought to the notice of the appellant but in the facts and circumstances of this case the absence of such communication cannot be held to be violative of any principle of natural justice. This is a case where there is no provision whereby the Government is called upon to give any notice before taking such action under Section 33B and in the special facts and circumstances of this case I do not think that there could be any question of the principle of natural justice being violated for not giving such notice or for not sending copies of the said letter to the appellant. In any event, the point should not be allowed to be urged at this stage. In this connection reference may be made to the provision of Section 12(5) of the Industrial Disputes Act which provides specifically that the reasons have to be communicated. There is no such requirement provided under Section 33B and such a provision should not be unnecessarily read into the provision to bring into play the principles of natural justice. The Legislature was conscious as to whether it was necessary that the reasons had to be communicated and whether it would be sufficient if reasons were to be stated in the order.
40. After considering all these points. I am of the opinion that the powers exercised under Section 33B by the appropriate Government was valid and proper and the order of withdrawal and transfer could not be challenged as invalid 41. The only other point which has been urged by Mr. Banerjee is that the order of reference is invalid because a settlement, arrived at by and between the parties, remained operative and the same would remain binding on the parties until two months' notice would be given to either of the parties.
42 On behalf of the respondents it is contended that under Sub-rule (3) of Rule 68 of the West Bengal Industrial Disputes Rules, 1958 the settlement thus arrived at in order that the same might be binding between the parties a copy thereof must be sent jointly by the parties to the Assistant Secretary to the Government of West Bengal Labour Department. The admitted position is that the same had not been sent jointly with the result that the said Sub-rule (3) of Rule 68 of the Rules of 1958 had not been complied with. This is a mandatory provision. The Supreme Court in the case of Workmen of Delhi Cloth and General Mills Ltd. v. Management of Delhi Cloth and General Mills Ltd. A.I.R. 1970 S.C. 1851 (1970) L.I.C. 1407, decided that a copy of the settlement has to be sent in compliance with the statutory provision. The said observation was made in connection with the Central Rules being Sub-rule (4) of Rule 58 which is in pari materia with Sub-rule (3) of Rule 68 of the West Bengal Industrial Disputes Rules, 1958. The said Sub-rule (3) of Rule 68 is set out as follows:
Where a settlement is arrived at between an employer and his workman/workmen otherwise than, in course of conciliation proceeding before a Board of Conciliation Officer the parties to the settlement shall jointly send a copy thereof to the Assistant Secretary to the Government of West Bengal Labour Department.
Admittedly the said requirement under the sub-rule had not been complied with. A copy of such settlement had not been sent jointly to the Government In my opinion it is not an idle ceremony but a mandatory provision which must be strictly complied with. If it is not jointly sent then the Government cannot take any notice of it. That being the position, no valid settlement stands in the way of the order of reference.
43. The overall result is that none of the points raised by Mr. Banerjee in this appeal has succeeded and, accordingly, the appeal is bound to be and is hereby dismissed with costs. The trial Court order is hereby confirmed interim orders, if any, are vacated. Let the file be sent to the Tribunal forthwith with the direction that the hearing of the matter be expedited.
Salil Kumar Hazra, J.
44. I agree.