Rajasthan High Court - Jaipur
Manager, Jaipur Syntex Ltd. vs P.O. Industrial Tribunal And Ors. on 19 February, 1987
Equivalent citations: [1989(59)FLR99], (1990)ILLJ323RAJ
JUDGMENT M.B. Sharma, J.
1. In a reference under Section 10(1) of the Industrial Disputes Act, 1947 (for short 'the Act'), the learned Industrial Tribunal, Jaipur (for short 'the Tribunal') has made an interim award dated 14th October, 1986 under which he granted interim relief to the 10 workers who have been dismissed from service by the petitioner and in respect of whom the reference has been made by the Government under Section 10(1) of the Industrial Disputes Act. The learned Tribunal has held the domestic enquiry on the alleged misconduct of the 10 workers to be not in accordance with the principles of natural justice and has held it to be not fair and proper. He, therefore, allowed the employer petitioner herein to prove the misconduct of the workmen.
2. The contention of the learned counsel for the petitioner is that though the Tribunal has the jurisdiction to order for interim relief during the pendency of the reference before it, but no case for granting of interim relief was made out. He further contended that a question was raised before the Tribunal with regard to the competence of Shri Ram Bhai who is said to be the General Secretary of the Union to file an application for interim relief and the learned Tribunal wrongly decided it in favour of the Union. It is further contended that the learned Tribunal should have ordered the payment of interim relief under separate order even if an interim relief order was to be made and not in composite order.
3. The Government of Rajasthan, Labour and Employment Department, under its notification dated 29th October, 1985 made a reference to the Tribunal for adjudication in respect of the justification and legality of the dismissal of workmen mentioned in the reference order. A claim was filed on behalf of Jaipur Syntex Sharmik Ekta Union, Behror (for short 'the Union') which was a party in the dispute and at that relevant time one Shri Lalchand Arya was the General Secretary of the Union. It appears that thereafter some disputes arose as to whether the said Arya continued to be the General Secretary or his place was taken over by Shri Ram Bhai who claims to be duly elected General Secretary of the Union. Shri Bhai filed an application before the learned Tribunal for interim relief and an objection was raised on behalf of the petitioner that the Union of which Ram Bhai is the General Secretary has neither the power nor the authority to file an application on behalf of employees for interim relief. In that objection the contention raised before the Tribunal was that the Union was represented by Shri Lal Chand Arya who does not want to continue with the case. The learned Tribunal took this issue and came to the conclusion that the Union of which Shri Ram Bhai was the General Secretary was one of the parties to the dispute and therefore, it cannot be said that the Union has been replaced or taken over by another union. The Tribunal held that it is not possible to say as to who amongst the two claimants was in feet the General Secretary of the Union. The Tribunal, therefore, held that Shri Ram Bhai as its General Secretary has the power and authority to present the application for interim relief.
4. The Tribunal further held that domestic enquires which were held by the management on the alleged misconduct of 10 workmen was against the principles of natural justice and without holding proper enquiry the orders of dismissal were passed to victimise the workmen. Thus, the Tribunal granted interim relief to each of the workmen during the pendency of the reference before it. The said interim relief was granted from the date of the order of dismissal and not from the date the application for interim relief was filed or from the date the interim award became effective.
5. The learned Tribunal has dealt in detail with the question as to whether the domestic enquiry which was held is proper or not. He examined the case of each and every workman in order to see as to whether the enquiry against each of them was fair and proper or not. The learned Tribunal concluded that domestic enquiry against none of the 10 workmen was fair and proper. In my opinion, no case for interference is made out in the conclusions arrived at by the learned Tribunal that the domestic enquiry was not fair and proper and the principles of natural justice have not been complied with in respect of all 10 workmen.
6. Similarly, there is no dispute that one of the parties in dispute was the Union. It is apparent from the terms of reference and it is not the case of the petitioner that the reference was not made at the instance of the Union. Only if the Union espoused the case of the workmen it could become an industrial dispute as defined in Section 2(k) of the Act. It is only under Section 2 of the Industrial Disputes Act that a dispute in respect of retrenchment or termination of an individual workman becomes industrial dispute and can be espoused by the individual workman. Thus in the instant case it was an undisputed fact that there was a dispute between Union and the Employer. Whether Shri Lal Chand Arya was the General Secretary of Union at the time when the dispute was raised or Ram Bhai was the General Secretary was such a matter which relates to the constitution of Union and the learned Tribunal could not come to the conclusion as to what was the constitution of the Union. A workman is a party to a dispute and is entitled to be represented in any proceeding under the Act by any member of the executive or other office-bearer of a registered union of which he is a member; or of a federation of trade unions to which the trade union referred to in Clause (a) is affiliated; or where the worker is not a member of any trade union, by any member of the executive or other office-bearer of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorised in such manner as may be prescribed Thus when Ram Bhai claimed to be the General Secretary and there was nothing to the contrary till the learned Tribunal made the order, I find no illegality in the order of the learned Tribunal that Ram Bhai could have filed an application on behalf of the Union for interim relief for the workers. There is no doubt, and even it has not been disputed, that Ram Bhai was the General Secretary of the Union, the Tribunal has jurisdiction to grant interim relief. Mr. Kala learned counsel for the petitioner has contended that the same cannot be granted by way of interim relief award. It appears that there is some conflict on the various High Courts as to whether the interim relief can be granted by way of interim award or under an order but there is no conflict so far as the power and jurisdiction of the Tribunal in granting an interim relief is concerned. To my mind the scheme of the Act is that only such of the matters which are to be referred to the Tribunal or Judge, Labour Court are adjudicated, but the Tribunal has powers to make an incidental order under Sub-section (10) of Section 19 of Act. Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under the section or in a subsequent order, the appropriate Government has specified the points of disputes for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto. It can, therefore, be said that it is incidental matter under Sub-section (4) of Section 10 of the Act to adjudicate the dispute of interim relief. Therefore, the learned Tribunal considering the material on record granted interim relief by way of interim award. In my opinion, there can be no objection to it. Even assuming that only an order for interim relief could have been passed and it could not have been in the shape of interim award, it does not make any difference except that like any other award even interim award becomes effective after 30 days of publication, whereas the interim order which is made shall be effective from the date it is made. An employer in my opinion, cannot and should not object if the interim relief is awarded by way of interim award. I do not find any illegality in granting interim relief by way of interim award. Merely because along with granting of interim relief the learned Tribunal has also proceeded to examine other connected issues, it cannot be said that he could not have done so. The reason is that an objection was raised by the petitioner that Ram Bhai has no right to file an application seeking interim relief to the workers. Unless the Tribunal would have decided that objection, he could not have proceeded to grant interim relief. Similarly, if the Tribunal could under its separate order hold that the domestic enquiry in the alleged misconduct of the workmen unfair and the Tribunal in its same order also took the point for consideration and then proceeded to take up the matter of interim relief, nothing can be said to be objectionable. The reason is that if the Tribunal would have held that the domestic enquiry was fair and proper then the industrial dispute could have been decided within a reasonable time as the Tribunal would not have recorded any evidence and could have said that whether any case for interfering in the punishment is made out under Section 11A of the Industrial Disputes Act. Therefore, the Tribunal first thought it proper to examine as to whether the enquiry was fair and proper and came to the conclusions that the domestic enquiry was not fair and proper and taking into consideration the facts and circumstances of the case, including the fact that now the employer will have to prove the misconduct of the respondents workmen, proceeded to grant interim relief. It cannot be said that it could not do so. It is only for the disposal of one of the points as to whether the enquiry was fair or not that the Tribunal held that it was not held in a proper manner and is against the principle of natural justice. It does not mean that the Tribunal held to be a case of unfair labour practice or victimization by an employer. If the employer is able to prove the misconduct against the workmen then the Tribunal will have to examine the evidence and pass the orders in accordance with law.
7. It may be stated that I have my serious reservations as to whether while granting interim relief the Tribunal could grant interim relief from the date of the order of dismissal. In the instant case an application for interim relief was made on behalf of the Union on 24th March, 1986 and the removal from service was sometime in the year 1984 on different dates. Mr. Punumiya representing the Union non-petitioner stated at the bar that the interim award of the Tribunal may be modified to the extent that the interim relief shall be payable from the date of application and not from the date of dismissal of the workmen. In my opinion, the interim relief can only be granted from the date of the application and not from the date of dismissal.
8. The contention of the learned counsel for the petitioner that amount awarded as interim relief to each of the 10 workers is excessive. In my opinion, even under the various standing orders during the period of suspension during the pendency of the enquiry a workman is entitled to interim relief. The interim relief can be granted upto 75% in accordance with the rules. The Tribunal taking into consideration ail the facts and circumstances came to the conclusion that the domestic enquiry was not fair and proper and was against the principles of natural justice and the order of dismissal could not have been made. I find no case for interference in the discretion exercised by the Tribunal.
9. Consequrntly, this writ petition is partly allowed and the interim award of the learned Tribunal dated 14th October, 1986 is only modified to the extent that the interim relief to each of the 10 workmen shall be paid only from the date the application was made i.e. 24th March, 1986. Cost made easy.