Orissa High Court
Shri Prafulla Kumar Nayak vs State Of Odisha And Others ...... Opp. ... on 10 January, 2013
Author: M.M. Das
Bench: M.M.Das
ORISSA HIGH COURT: CUTTACK.
W.P.(C). No. 20243 OF 2012
In the matter of an application under Articles 226 and 227 of
the Constitution of India
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Shri Prafulla Kumar Nayak ...... Petitioner
-Versus-
State of Odisha and others ...... Opp. parties
For Petitioner : M/s. M.S. Rizvi &
A.K. Patnaik.
For opp. parties : M/s. B.P.Tripathy
. (for O.P.No.5)
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Decided on 10 .01.2013
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M.DAS
AND
THE HONOURABLE SHRI JUSTICE C.R.DASH
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M.M.Das,J. The opposite party No.5 - Management, i.e.,
HINDALCO Industries Limited, entered its appearance through
Mr. B.P. Tripathy, Advocate, who filed the Vakalatnama.
2. The petitioner is the General Secretary of HINDALCO
Staff Association, who has filed this writ petition to declare the
references under Annexures - 1 series made by the Government
of Odisha, in its Labour and ESI Department under Section 10
(1) (d) of the Industrial Disputes Act, 1947 (hereinafter referred
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to as 'the Act') to the Industrial Tribunal, Bhubaneswar as
incomplete and to issue a direction to the opposite party - State
Government to incorporate a further question, i.e., "whether the
unfair labour practices adopted by M/s. HINDALCO Industries
Limited under the Industrial Disputes Act, 1947 is legal and/or
justified ?" in the order of reference.
3. Mr. Patnaik, learned counsel for the petitioner
submits that the petitioner - association was aggrieved by the
action of the management with regard to the non-recognition of
protected workmen and change of designation, salary/wage
structure as well as decision of the management with regard to
"no work no pay" system inasmuch as the harassment caused by
the management to the members of the petitioner - association
by transferring some members to other sick industries outside
Odisha. The petitioner - association put forth the above
grievances before the labour authorities through numerous
representations and the District Labour Officer, on 06.05.2001,
directed the management to maintain status quo in the larger
interest of the industries, as it was adopting unfair labour
practices.
4. The facts disclose that in November, 2011, the
petitioner - association submitted a list of protected workmen
and a 41pt. Charter of demands before the Management. The
said demands were revised by the association by submitting a
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23pt. Charter of demand on 14.03.2012. The petitioner -
association also gave a strike notice under Section 22 of the Act
to the Management - opposite party No.5 that in the event, the
demands are not fulfilled, the workmen, who are members of
the petitioner - association will go on strike. This fact was also
intimated to the Labour Officer, Sambalpur. After receiving the
said notice, the District Labour Officer issued letters to the
petitioner - association and the Management to attend his office
for joint enquiry. The enquiry was adjourned to 16.04.2010.
Thereafter, the Management filed W. P. (C) No. 6352
of 2010 before this Court with regard to the said charter of
demands. This Court passed an interim order on 5.4.2010
restraining the employees from going on strike. The said writ
petition was ultimately dismissed. A review application was filed
by the Management in which this Court clarified that the opp.
parties, i.e., the Labour Commissioner, Deputy Labour
Commissioner and the District Labour Officer-cum-Conciliation
Officer, shall proceed further in the matter of taking necessary
legal action in accordance with the provisions of the I.D. Act
regarding the claim for grant of recognition to the seven office
bearers as protected workmen.
5. It appears that ultimately, the conciliation
proceeding was declared closed having failed and a failure report
was submitted by the Conciliation Officer to the State
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Government. The Government being satisfied that industrial
dispute exists between the Management and the workmen
represented through the General Secretary of the staff -
association has made references of various questions on different
issues separately to the Industrial Tribunal, Bhubaneswar.
6. The grievance of the petitioner is that no reference has
been made with regard to the issue of unfair labour practice
adopted by the Management for which the present writ petition
has been filed. Various allegations have been made in the writ
petition against the Management; inter alia, alleging that the
Management has adopted unfair labour practices.
7. Unfair labour practice has been defined in section 2
(ra) of the Act, as any of the practices specified in the 5 th
Schedule of the Act. Section 25 (T) of the Act provides prohibition
of unfair labour practice prescribing thereunder that no
employer or workman or a Trade Union, whether registered
under the Trade Unions Act,1926 (26 of 1926) or not, shall
commit any unfair labour practice. In the 5th Schedule of the
Act, a number of instances, which amount to unfair labour
practice, have been provided. (emphasis supplied)
8. On the above basis, Mr. Patnaik, learned counsel for
the petitioner submitted that the references made by the
Government is incomplete and a question should have been
referred to the Tribunal as to whether unfair labour practices
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adopted by M/s. HINDALCO Industries Ltd. under the
Industrial Disputes Act is legal and/or justified.
9. Mr. B.P. Tripathy, learned counsel appearing for the
Management, on the contrary, submitted that the State
Government by applying its mind to the failure report
submitted by the Conciliation Officer found out the questions
which are required to be adjudicated as industrial dispute and
has referred the same separately to the Tribunal under
Annexure-1 series. He further submitted that the nature of
allegation made by the petitioner is not only vexatious but also
incomprehensive as the question which the petitioner wants to
be referred to, is very general in nature and does not relate to
any particular industrial dispute. According to Mr. Tripathy,
unfair labour practice is a wide term which connotes all
instances given in the 5th Schedule of the Act and the
Government on receiving a failure report from the Conciliation
Officer, if finds any particular instances of unfair labour practice
adopted by the Management, such question may be referred to
under section 10 (1)(d) of the Act to the Tribunal. According to
him, a bare reading of section 25T of the Act would go to show
that unfair labour practice can be attributed both to the
employer as well as the workmen or a Trade Union, whether
registered or unregistered, and both the employer and the
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workmen are prohibited from committing unfair labour practice
as contemplated under the Act.
A penal provision is provided under section 25U of the
Act, which provides that any person who commits any unfair
labour practice can be punished with imprisonment for a term
which may extend to six months or with fine which may extend
to Rs. 1000/- (Rupees one thousand) or with both. Therefore,
According to Mr. Tripathy, adopting unfair labour practice in
contravention of the provision of section 25T would entail
imposition of punishment as prescribed in section 25U of the
Act, in a criminal proceeding.
10. This Court on perusal of the failure report submitted
by the Conciliation Officer under section 12 (4) of the Act, which
has been annexed to the writ petition as Annexure-5, along with
other documents, finds that the appropriate Government on due
application of mind has made references of different disputes
separately as at Annexure-1 series and the claim of the
petitioner that the said reference is incomplete, without the
question, i.e., "Whether unfair labour practices adopted by M/s.
HINDALCO Industries Ltd. under the Industrial Disputes Act,
1947 is legal and/or justified ?" being referred to the Tribunal,
cannot be accepted for the reason that the said question is not
specific and is general in nature which cannot be adjudicated by
the Industrial Tribunal, inasmuch as, if there is any instance of
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unfair labour practice, the same, if proved in accordance with
law, is punishable under the provisions of section 25U of the Act
and the petitioner has an alternative remedy, which can be
worked out.
11. In view of the above, we do not find any merit in the
present writ petition, which accordingly stands dismissed.
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M.M. Das, J.
C.R.Dash, J.I agree.
........................ C.R.Dash, J.
Orissa High Court, Cuttack. January 10th , 2013/Biswal. 8 9