Madhya Pradesh High Court
Management, Dainik Naveen Duniya vs Presiding Officer, Labour Court And ... on 10 July, 1990
Equivalent citations: (1994)IIILLJ510MP, 1991(0)MPLJ114
ORDER B.C. Varma, J.
1. Respondent Parasnath is an employee of the petitioner and before his order of transfer to Bhopal, vide order dated 11.2.1987, was employed in petitioner's office at Jabalpur. According to the petitioner, the respondent No. 2 was relieved from the office at Jabalpur the next day, i.e., 12.2.1987, and the Labour Commissioner was informed accordingly. It appears that somewhere in the month of April, 1985, a reference was made to the Labour Court relating to fixation of respondent No. 2's wages. That reference is still pending and the petitioner's contention is that it did not receive any notice of that reference to the Labour Court. However, on 11.3.1987, the respondent No. 2 voluntarily appeared before the Labour Court and submitted his statement of claim. On 12.3.1987, the respondent No. 2 (the employee) made an application under Section 33A of the Industrial Disputes Act, 1947 complaining that by the order of transfer his condition of service has been changed and prayed for a suitable order against the petitioner. An application was also made for stay of order of his transfer to Bhopal. The Labour Court on 3.4.1987 made an ex-parte order in favour of the respondent No. 2 staying the order of his transfer. A show cause notice was issued to the petitioner against the grant of that stay of transfer. A copy of application made under Section 33A of the Industrial Disputes Act was also served on the petitioner. The petitioner submitted its reply vide Annexure VII dated 4.5.1987. Apart from opposing the grant of stay of the order of transfer, the maintainability of the application under Section 33A of the Act itself was questioned. It was also stated that the respondent No. 2 stood relieved on 12.3.1987 while he obtained the order staying the transfer on 3.4.1987 by suppressing the material fact that he stood already relieved. On 18.5.1987, the Labour Court after hearing both the parties, affirmed the ex parte order dated 3.4.1987 and thus the respondent No. 2's transfer to Bhopal now remains stayed. By this petition under Article 226 of the Constitution of India, the petitioner challenges the order Annexure-9 dated 18.5.1987. His main argument has been that the proceedings under Section 33A of the Industrial Disputes Act are not tenable and, therefore, the impugned order Annexure-9 must be quashed. While disputing the correctness of this submission, learned counsel for respondent No. 2 added that the impugned order is of an interim nature and since this Court is always reluctant to interfere with such orders, no indulgence be shown to the petitioner and the petition be rejected.
2. After hearing the learned counsel for the parties, we have formed the opinion that the application under Section 33A of the Industrial Disputes Act filed by the respondent No. 2 is wholly untenable and must be rejected. Consequently, the order Annexure-9 staying the transfer of respondent No. 2 to Bhopal must also be quashed.
3. Section 33A of the Industrial Disputes Act, 1947 is as follows:
"33-A. Special provision for adjudication as to whether condition of service etc., changed during pendency of proceedings:- Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator "a Labour 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".
The relevant provisions of Section 33 which precedes Section 33A of the Industrial Disputes Act reads as follows:
"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency or proceedings.- (1) During the pendency of any conciliation proceedings 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 as such proceeding; or"
A reading of both these provisions indicates that a complaint under Section 33A is envisaged only when the employer contravenes the provisions of Section 33 during the pendency of proceedings before the conciliation officer, Board, an arbitrator or a Labour Court, Tribunal or National Tribunal. The prohibition contained in Section 33 as to alteration of the service conditions applicable to any workman to his prejudice must be in regard to any matter connected with the dispute. This "dispute" is necessarily the dispute pending before the different tribunals or authorities mentioned in Section 33(1)(a) of the Act. If the offending alteration in service conditions of the workman has no connection with the pending dispute, it may not be just to say that a complaint as to such alteration can be made under Section 33A of the Act. Before a complaint under Section 33A against the employer can be entertained the workman must show that the employer has contravened the provisions of Section 33 during the pendency of the proceedings. The workman, in terms of Section 33, has, therefore, to demonstrate that during the pendency of such proceedings, there has been alteration in service conditions to his prejudice in regard to any matter connected with the pending dispute. If the dispute pending adjudication has nothing to do with the alteration in conditions of service complained of and if the alteration is not to the prejudice of the workman, action under Section 33A would be wholly incompetent. The Supreme Court in Bhavnagar Municipality v. Alibhai Karimbhai (1977)-1 LLJ 407 laid down that in order to attract Section 33(1)(a) of the Industrial Disputes Act, 1947, the following features must be present:
"(1) There is a proceeding in respect of an industrial dispute pending before the Tribunal.
(2) Conditions of service of the workmen applicable immediately before the commencement of the Tribunal proceeding are altered.
(3) The alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute.
(4) The workmen whose conditions of service are altered are concerned in the pending industrial dispute.
(5) The alteration of the conditions of service is to the prejudice of the workmen".
If any of these conditions is wanting in a given case or is not established, complaint under Section 33A of the Act shall not be tenable. Earlier, the Supreme Court in Automobile Products of India v. Rukmaji Bbala: 1955-1 LLJ 346 (SC) observed that it is the contravention by the employer of the provisions of Section 33 that gives right to the workmen to approach ana move the respective authority named in that section and this contravention is the condition precedent to the exercise by the authority concerned of the additional jurisdiction and powers conferred on it by the section. The authority mentioned in the section is a Court of limited jurisdiction and must, accordingly, be strictly confined to the exercise of the functions and powers actually conferred on it by the Act which constituted it.
4. Examined in the light of the aforesaid decisions, it is apparent that the impugned order directing respondent No. 2's transfer has no concern whatever with the pending dispute relating to fixation of wages. By no stretch, it is possible to say that the respondent No. 2's transfer has any bearing upon fixation of wages of employees in general. The respondent No. 2 even on the post of his transfer, shall be paid the wages as determined by the Labour Court in that dispute. We are, therefore, of the opinion that the respondent No. 2's transfer from Jabalpur to Bhopal does not have the effect of altering the respondent No. 2's service condition much less to his prejudice: For the aforesaid reasons, we are of the opinion that the application filed by the respondent No. 2 under Section 33A of the Industrial Disputes Act is wholly untenable.
5. Learned counsel for the respondent workman submitted that the impugned order staying the respondent No. 2's transfer is of an interim nature and this Court seldom interferes with such orders in exercise of its jurisdiction under Article 226 of the Constitution of India. Learned counsel, however, rightly stated that he does not mean to contend that this Court does not have jurisdiction to interfere with such orders, in fact, this Court has intervened even with interim orders like the present one staying operation of impugned order. (See Durg Transport Company v. R.T.A. Raipur : AIR 1965 MP 142). In our opinion, the conditions laid down under Section 33A are preliminary or collateral conditions upon which jurisdiction of the Industrial Tribunal depends. It is only on the establishment of those conditions that the Labour Court gets jurisdiction to entertain the application. The High Court, therefore, is always entitled in a proceeding for writ of certiorari to determine whether or not those conditions have been established and, consequently, the Labour Court has become entitled to exercise that jurisdiction. If the conditions are wanting or have not been established, there would be complete want of jurisdiction in Labour Court to entertain any application and to pass any interim order in those proceedings. As we have found earlier that the necessary conditions have not been established for the exercise of jurisdiction under Section 33A, we are further of opinion that the Labour Court could not pass the impugned order staying the respondent No. 2's transfer.
6. For the aforesaid reasons, we allow this petition. The order Annexure-9 whereby the respondent No. 2's transfer from Jabalpur to Bhopal has been stayed, is hereby quashed. We may further observe that the respondent No. 2 shall be at liberty to raise a separate industrial dispute in the manner provided questioning his order of transfer. There shall be no order as to costs. Security amount be refunded to petitioners.