Gauhati High Court
Oil And Natural Gas Corporation Ltd. And ... vs Union Of India (Uoi) And Ors. on 6 January, 2006
Equivalent citations: (2006)2GLR739
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. I have heard Mr. P.B. Choudhury, learned Counsel for the petitioners, and Mr. D. Choudhury, learned Central Government Standing Counsel, appearing on behalf of the respondent Nos. 1 and 2.1 have also heard Mr. M. Dutta, learned Counsel appearing on behalf of the respondent Nos. 3 and 4.
2. Following a dispute raised by the Union of Contractual Workers under the Management of Oil and Natural Gas Commission (in short, 'the ONGC), seeking regularization of its 425 members, a reference was made to the Industrial Tribunal, Guwahati, Assam, by notification, dated 28.8.1990, published by the Government of India, Ministry of Labour, the issue framed for the reference being, thus, "whether the demand of the ONGC Contractual Worker's Union, Silchar, on the management of ONGC, Cachar Project, Silchar, for regularisation of the services of the contractual workers is justified ? If so, what reliefs are the workmen concerned entitled to ? This reference came to be registered as Reference No. 6(C) of 1990.
3. By its award, dated 11th July, 1994, the Tribunal directed regularization of the services of the workmen by the ONGC in respect of whom the proceeding had been initiated by the Union of the workmen against the management. This award came to be challenged by the management before this Court by way of a writ application, which gave rise to Civil Rule No. 3785/94. By judgment and order, dated 8.9.1998, passed in Civil Rule No. 3785/94 aforementioned, the impugned award was set aside on the ground that while determining the issue, the Tribunal had gone beyond the scope of the reference made to it. The decision rendered in Civil Rule No. 3785/94 aforementioned was challenged by way of a writ appeal and by judgment and order, dated 21.4.1999, a Division Bench of this Court allowed the appeal and restored the award. The management, then, preferred an appeal before the hon'ble Supreme Court and this appeal came to be registered as Civil Appeal No. 4755/ 2001 and the operations of the impugned award was stayed. While the appeal was so pending, some persons, claiming themselves to be the members of the Union, applied, in the Civil Rule No. 4755/2001, seeking to get themselves impleaded in the appeal. By the order, dated 15.1.2004, passed in Civil Appeal No. 4755/2001 aforementioned, the Apex Court, while turning down the prayer of the applicants aforementioned, observed and directed as follows:
The dispute amongst the members within the Union cannot be taken note of and decided by this Court in this appeal. The Court is concerned with the legality and the maintainability of the award dated 11th July, 1994. The prayer for impleadment cannot be allowed. However, the applicants are permitted through their counsel to remain present at the hearing to watch the proceedings and project their interests in the event of any occasion arising for any order adverse to their interest being passed.
If any action in violation of Section 33 of the Industrial Disputes Act, 1947 has been taken and employment of any worker has been discontinued during the pendency of the proceedings, he is at liberty to seek appropriate remedy by moving the Industrial Tribunal or any other forum in accordance with law.
Interlocutory applications are disposed of.
4. Relying upon the liberty granted by the Apex Court in its order, dated 15.1.2004, aforementioned, to the workers, if any, whose employment had been discontinued during the pendency of the proceeding and the provisions of Section 33 of the Industrial Disputes Act, 1947, had thereby been violated to initiate appropriate proceeding, respondent Nos. 3 and 4 herein made an application under Section 33 read with Section 33A of the said Act, alleging, inter alia, that they too are contractual workers under the management of the ONGC and are, accordingly, entitled to the liberty of initiating proceeding under Section 33 of the Industrial Dispute Act in terms of the directions given in the order, dated 15.1.2004 aforementioned, for, their services have been terminated by the management during the pendency of the proceedings aforementioned. On their appearance before the learned Central Government Industrial Tribunal-cum-Labour Court, Guwahati, the management filed an application before the Tribunal contending, inter alia, that the applicants therein (i.e. Respondent Nos. 3 and 4 herein) were strangers to the ONGC and to also the dispute, which had been referred to by notification, dated 20.8.1990, aforementioned, and as no contract of service either, expressed or implied, existed between the management and the said applicants, the question of the management changing the conditions of service of the said applicants (i.e., respondent Nos. 3 and 4 herein) did not arise at all and, in consequence thereof, the question of contravention of Section 33 of the Industrial Disputes Act, 1947, by the management did not also arise. Though the a management sought for a hearing on the preliminary objection as to whether the provisions of Section 33 had been contravened by the management or not, the learned Tribunal turned down the prayer of the management by its order, dated 17.5.2005, and framed the following two issues for determination:
1. Whether as alleged there is contravention of under Section 33 of the relevant Act ?
2. Whether the claims of the petitioners are bona fide and are they entitled to the relief they prayed ?
5. Thereafter, respondent Nos. 3 and 4 herein filed a petition in the Tribunal seeking directions to the management to produce some documents mentioned in the said petition. When an order was passed by the learned Tribunal directing the management to produce the documents, which the respondents aforementioned had sought for, the management raised their objection thereto by contending, inter alia, that since the applicants had never been in the service of the management, the management was not in a position to produce any such documents, which the applicants had sought for, particularly, when the list of the documents, submitted by the said applicants, was also vague. At this stage, the management, once again, prayed that before the Tribunal enters into the determination of the question of justification of the alleged termination of employment of the said applicants, the question as to whether there had been any contravention of the provisions of Section 33 by the management be determined first. By order, dated 22.8.2005, the learned Tribunal, once again, turned down the prayer made by the management. Aggrieved by the procedure, which was so adopted by the learned Tribunal, the management is, now, before this Court with the help of their present application made under Article 226 of the Constitution of India.
6. While considering the present writ petition, what needs to be borne in mind is that Section 33 of the Industrial Disputes Act, 1947, (in short, 'the said Act'), restrains the management from changing the condition s of service of a workman during the pendency, inter alia, of the proceeding of adjudication of an industrial dispute before an Industrial Tribunal. A careful reading of Sub-section (1) of Section 33 shows that when a proceeding is pending before an Industrial Tribunal in respect of an industrial dispute, no employer, in regard to any matter connected with the dispute, shall, except with the express permission, in writing, of the authority before which the proceeding is pending, (a) alter, to the prejudice of the workman concerned in such dispute, the conditions of service applicable to him immediately before the commencement of such proceeding nor shall the employer, for any misconduct connected with the dispute and (b) discharge or punish, by dismissal or otherwise, any a workman concerned in such dispute except with the express permission, in writing, of the authority before which the proceeding is pending.
7. Sub-Section (2) of Section 33, however, makes it clear that during the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute, or, where there are no such standing order, in accordance with the terms of the contract, express or implied, between him and the workman, 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 and discharge or punish, by way of dismissal or otherwise, the workman for any misconduct not connected with the dispute in respect of which the proceeding is pending before the Industrial Tribunal. This liberty is, of course, subject to the embargo that no such workman 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.
8. When, however, an employer contravenes the provisions of Section 33 during the pendency of such proceeding as aforesaid, any employee aggrieved by such contravention, may, in writing, in terms of Section 33A of the said Act, make a complaint, in this regard, to the industrial Tribunal and the Tribunal shall be entitled to adjudicate upon such complaint as if it were a dispute referred to, or pending before, the Tribunal and submit its award to the appropriate Government accordingly.
9. A bare reading of Section 33A shows that Section 33A comes into play only when during the pendency of the proceeding of an industrial dispute there is contravention by the employer of the provisions of Section 33 by changing the conditions of service of a workman and 9 when the aggrieved workman lodges a complaint, in this regard, to the Tribunal. When a complaint is made by a workman, imperative it is for the Tribunal to decide as to whether there has been any contravention of Section 33. This query will necessarily involve, inter alia, determination of the questions (i) as to whether the person, who has n made the complaint, was or was not a workman under the management concerned, (ii) whether there was a proceeding concerning an industrial dispute pending between the management and the aggrieved workman, and (iii) whether during the pendency of such proceeding, the conditions of service of the workman had been changed or not. If the answers to these queries are found in the negative, the question of entering into the question as to whether the act(s) of the management was/were justified, which really forms the subject-matter of Section 33A, does arise not at all. In short, for the purpose of deciding as to whether Section 33A shall be- invoked or not, incumbent it is on Tribunal to, first, determine if there has been contravention of Section 33.
10. In the present case, the writ petitioners had applied to the learned Tribunal for, first, determining the question as to whether there has been any contravention of Section or not and also to initiate proceeding under Section 33A only if the contravention of Section 33 was established by the respondent Nos. 3 and 4 herein. While considering the scope of Section 33 vis-a-vis Section 33A, this prayer was turned down by the learned Tribunal as indicated hereinabove. In a situation, such as the present one, Mr. P.B. Choudhury, learned Counsel for the petitioners, is not incorrect, when he places reliance on the decision of the Apex Court in Punjab Beverages (P.) Ltd. v. Suresh Chand and Anr. . In Punjab Beverages (P.) Ltd. (supra), the Supreme Court observed and held as follows:
11. It will, therefore, be seen that the first issue which is required to be decided in a complaint filed by an aggrieved workman under Section 33A is whether the order of discharge or dismissal made by the employer is in contravention of Section 33. The foundation of the complaint under Section 33A is contravention of Section 33 and if the workman is unable to show that the employer has contravened Section 33 in making the order of discharge or dismissal, the complaint would be liable to be rejected. But if the contravention of Section 33 is established, the next question would be whether the order of discharge or dismissal passed by the employer is justified on merits. The Tribunal would have to go into this question and decide whether, on the merits, the order of discharge or dismissal passed by the employer is justified and if it is, the Tribunal would sustain the order, treating the breach of Section 33 as a mere technical breach. Since, in such a case, the original order of discharge or dismissal would stand justified, it would not be open to the Tribunal, unless there are compelling circumstances, to make any substantial order of compensation in favour of the workman, in fact in Equitable Coal Co. 's case an order of compensation made by the Tribunal in favour of the workman was reversed by this Court. The Tribunal would have to consider all the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the circumstances of the case. But this much is clear that mere contravention of Section 33 by the employer will not entitle the workmen to an order of reinstatement, because inquiry under Section 33A is not confined only to the determination of the question as to whether the employer has contravened Section 33, but even if such contravention is proved, the Tribunal has to go further and deal also with the merits of the order of discharge of dismissal.
12. Now, if the effect of contravention of Section 33 were to make the order of discharge or dismissal void and inoperative, the workman would straightaway be entitled to an order of reinstatement as soon as he establishes in the complaint made by him under Section 33A that the employer has contravened Section 33 in making the order of discharge or dismissal. There would be no need to go into the further question whether the order of discharge or dismissal is justified on the merits. It is difficult to imagine how the law can permit an order of discharge or dismissal which is void and inoperative to be justified on the merits. There can be no question of justification on merits of an order of discharge or dismissal which is found to be null and void. The very fact that even the contravention of Section 33is proved, the Tribunal is required to go into the further question whether the order of discharge or dismissal passed by the employer is justified on the merits, clearly indicates the order of discharge is not rendered void and inoperative by such contravention. It is interesting to note that Gajendragadkar, J, speaking on behalf of the Court in Equitable Coal Co.'s case, characterised the breach of Section 33 as a technical breach not having any invalidating consequence on the order of discharge or dismissal. If the scope of the inquiry under Section 33A is what it has been held to be in the decisions in Automobile Products of India, Equitable Coal Co., and The Punjab National Bank cases, the conclusion must inevitably follow that the contravention of Section 33 does not render the order of discharge or dismissal void and of no effect.
13. The reference made by Mr. Choudhury to the case of Blue Star Employees Union v. Ex Off. Principal Secretary to Govt. and Anr. , is also not misplaced inasmuch as in Blue Star Employees Union (supra), the Court observed thus, "...Section 33A of the Act, in fact, involves consideration of two aspects of the matter, firstly, whether there has been any violation or contravention of the provisions of Section 33 of the Act and secondly, whether the act complained of is justified or not. Therefore, violation or contravention of the provisions of Section 33 of the Act would be the justification for the authority concerned to entertain an application under Section 33A of the Act...."
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A complaint can be made to the Tribunal under Section 33A of the Act if there has been violation or contravention of the provisions of Section 33 of the Act and if it is found that there has, in fact, been such a contravention the Tribunal can proceed to adjudicate the dispute contained in a complaint on its merits. Thus, violation or contravention of the provisions of Section 33 of the Act would be the basic question that arises for consideration and before giving any relief to an aggrieved employee under this Section, the Tribunal has to find out whether the employer's action falls within one of the following prohibitions contained in Section 33 of the Act:
(i) if the dispute pending adjudication has nothing to do with the alteration in conditions of service of a workman in contravention of Section 33(1)(a) of the Act or alteration of conditions of service of a "protected workman" within Section 33(1) of the Act;
(ii) discharges or punishes a workman by dismissal or otherwise for a misconduct connected with the pending dispute without obtaining prior express permission in writing of the appropriate authority as required by Section 33(1)(b) of the Act;
(iii) discharges or punishes a "protected workman" by dismissal or otherwise for a misconduct not connected with the pending dispute, without obtaining prior express permission in writing of the appropriate authority as required by Section 33(3)(b) of the Act read with Section 33(1)(b) of the Act; or
(iv) discharges or punishes a workman by dismissal or otherwise for a misconduct not connected with the pending dispute, without complying with the provisions of proviso to Section 33(2)(b) of the Act. Thus, the contravention of the provisions of Section 33 of the Act is the foundation for exercise of the power under Section 33 (sic 33A) of the Act. If this issue is answered against the employee, nothing further survives for consideration or action by the Tribunal under Section 33(sic 33A) of the Act. In other words, an application under Section 33A of the Act without proof of contravention of Section 33 of the Act would be incompetent.
11. From "the case of Punjab Beverages Put Ltd. (supra), what emerges, as already noticed above, is that the first issue, which shall necessarily to be decided, in a complaint filed by an aggrieved workman under Section 33A, is whether the order of discharge or dismissal made by the employer is in contravention of Section 33. If the workman is unable to show that the employer has contravened Section 33in making the order of discharge or dismissal, the complaint would be liable to be rejected ; but if the contravention of Section 33 is established, the next issue to be determined would be whether the order of discharge or dismissal passed by the employer is justified on merits. In short, as observed the Apex Court, in Punjab Beverages (P) Ltd. (supra), mere contravention of Section 33 by the employer will not automatically entitle the aggrieved workman to an order of reinstatement, for, an inquiry, under Section 33A, is not confined only to the determination of the question as to whether the employer has contravened Section 33 or not, but such an inquiry will also necessarily involve determination of the question as a to whether the order of discharge or dismissal was or was not, in the facts and circumstances of the given case, justified or not. Had the effect of contravention of Section 33 were to make the order of discharge or dismissal void and inoperative, the workman would straightaway be entitled to an order of reinstatement as soon as he establishes, in the complaint made by him under Section 33A, that the employer has contravened Section 33 in making the order of discharge or dismissal and there would have been really no need to enter into determination of the further question as to whether the order of discharge or dismissal is justified on merits or not. The very fact, as points out the Apex Court in Punjab Beverages Put. Ltd. (supra), that even if the contravention c of Section 33 is proved, the Tribunal is still required to go into the further question whether the order of discharge or dismissal passed by the employer is justified on the merits, clearly indicates the order of discharge is not rendered void and inoperative by such contravention.
12. In tune with the views expressed in Punjab Beverages Put. Ltd. (supra), the Apex Court, in Blue Star Employees Union (supra), reiterates, in effect, that Section 33A of the said Act involves consideration of two questions, firstly, whether there has been any violation or contravention of the provisions of Section 33 of the Act and, secondly, whether the act complained of is justified or not and. if the issue as to whether there has been any contravention of the provisions of Section 33 is answered against the employee, nothing further survives for consideration or action by the Tribunal under Section 33A of the said Act.
13. What, thus, crystallizes from the above discussion is that the issue, which is required to be, first, addressed and decided by an Industrial Tribunal, when a complaint is made by a person, who claims to be aggrieved on the ground that his conditions of service with regard to a matter, which is connected with an industrial dispute, has been altered or changed to his prejudice, during the pendency of the proceedings of adjudication of an industrial dispute, is whether the management's act, complained of by such an aggrieved person, is in contravention of the provisions of Section 33 or not. If the person, who so agitates, fails to show that during the course of progress or pendency of an industrial dispute before the Industrial Tribunal, the employer has, in regard to a matter connected with the dispute, altered, to the prejudice of the workman concerned, the conditions of service applicable to him immediately before the commencement of the proceeding, no further query, under Section 33A, on the issue as to whether the action of the management is or is not justified is required to be made or answered. a If, however, contravention of Section 33 is established, the Tribunal would be required to determine the justification of the action of the management and it is the enquiry, which the Tribunal so makes, with regard to the justification of the act so complained of, forms core issue for determination under Section 33A.
14. In the case at hand too, the learned Tribunal is required to, first, determine if there has been any contravention of Section 33 in the present case and it is only if the learned Tribunal comes to the conclusion that the provisions of Section 33 have been contravened by the management, (i.e., the writ petitioners), it (the learned Tribunal) shall have the jurisdiction to determine the legality or justification of the management's act or acts complained of. The procedure, which the learned Tribunal has adopted in the present case, is clearly contrary to the scheme of the Industrial Disputes Act and, particularly, of Section 33A thereof inasmuch as the learned Tribunal has, without any valid reasons, turned down the prayer justifiably made by the writ petitioners to, first, determine the question as to whether there has been, in the present case, any contravention of the provisions of Section 33 of the said Act.
15. Considering, therefore, the matter in its entirety and in the interest of justice, the orders, dated 17.5.2005 and 21.2.2005, aforesaid are set aside and quashed. The learned Tribunal is hereby directed to, first, determine if there has been any contravention of the provisions of Section 33, and, depending upon the answer, which may be reached on this question, the learned Tribunal shall be at liberty to decide further question(s), which may arise in the proceeding.
16. In order to ensure expeditious disposal of the matter pending before the Tribunal, the parties to the proceedings are hereby directed to appear in the proceeding on 24.1.2006.
17. With the above observations and directions, this writ petition shall stand disposed of.
18. No order as to costs.