Orissa High Court
Orissa Oil India Mazdoor Union And Ors. vs Union Of India (Uoi) And Ors. on 7 December, 1989
Equivalent citations: (1992)ILLJ414ORI
Author: D.P. Mohapatra
Bench: D.P. Mohapatra, A. Pasayat
JUDGMENT 1. A. Pasayat, J.:-This writ application has been filed by a registered Trade Union through its functionaries espousing cause of 51 of its members, with a prayer for declaring the termination of their employment to be illegal, for a direction to the concerned employer, Oil India Ltd. (hereinafter referred to as 'the employer') to regularise their services and to issue necessary directions to the Central Government to appropriately deal with the dispute that has arisen between the employer and the workmen in question. Though a lot of factual averments and contentions were raised, for the purpose of adjudication of this writ application, we feel it necessary to deal with those in great details. 2. Shorn of unnecessary details the undisputed position is that 123 workers were engaged by licensed and authorised contractors for rendering services to the employer in its Bay Exploration Project in Orissa and the services were terminated. Later on, on the basis of a memorandum of settlement arrived at between the employer and the representatives of the workers, it was decided that the contract labourers who were earlier engaged by the contractors shall be considered for the purpose of employment by the employer, and employment to 51 labourers (43 as per recommendation of the National Productivity Council and 8 additional skilled labourers) shall be offered by the employer, purely on temporary basis from amongst these 123 retrenched contract labourers on the basis of recruitment rules/ laid down norms of the employer. It was also agreed that so far as the balance 72 contract labourers are concerned, they will have no future claim of employment. Pursuant to this settlement, 51 workmen were given employment. According to the employer, employment to each of the workman was on a purely temporary basis and was terminable at any time by intimation in writing without assigning any reason and the last date for fixed-time spell appointments was March 19, 1989 or March 21, 1989, as the case may be. The termination was automatic on expiry of the date. On the other hand, dispute was raised by the petitioner-Union before the Assistant Labour Commissioner (Central) II, Bhubaneshwar regarding regularisation of 51 concerned workmen, and for reinstatement of two employees who were retrenched even prior to the date of expiry of their time-stipulated employment. Dispute was raised by letter dated February 28, 1989. The Assistant Labour Commissioner posted the matter to March 17, 1989 and April 6, 1989, but the employer did not attend the conciliation proceeding though the Union espousing cause of the workmen was represented. Since there was no scope for any settlement in the absence of the employer's representatives, the conciliation proceeding ended in failure. This was also intimated to the Central Government as required under Section 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'). The termination effected on March 19, 1989/March 21, 1989 was assailed on the ground that during pendency of the conciliation proceeding which continued till April 6, 1989, it was not open to the employer to pass any order of termination. Reliance was placed on the provisions of Sub-section (1) of Section 33 which was stated to be a prohibitive bar on such action. It is submitted that termination amounts to alteration of conditions of service, which was directly under consideration in dispute and was pending before the conciliation authority and the alteration was to the prejudice of the concerned workmen. According to the employer, there is no scope for any grievance because the appointment letter clearly indicated that employment was for a fixed period and no right accrued by such fixed-time employment and the workmen had no right to continue beyond the stipulated date. In that view of the matter, it was contended that the provisions of Section 33(1) of the Act have no application. 3. Having heard the learned counsel for parties, we are of the view that the contention raised on behalf of the petitioners is of substance. Relevant portion of Section 33 is as follows:- "33. Conditions of service, etc to remain unchanged under certain circumstances during pendency of proceedings: - (1) During the pendency of any conciliation proceeding before Conciliation Officer or a Board or of any proceeding before (an arbitrator or a Labour Court or 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 of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. XX XX XX A bare reading of this provision unmistakably indicates that it deals with the case of a workman "concerned" in a pending dispute who has been prejudicially affected by an action in regard to a "matter connected" with such pending dispute. It places a complete ban on the alteration to the prejudice of the workman concerned, of any conditions of service applicable to him before the commencement of the proceedings without "express permission in writing" of the authority dealing with the pending proceeding. This conclusion of ours is fortified by a decision of the Supreme Court in the case of Air India Corporation, Bombay v. V.A. Rebellow reported in (1972-I-LLJ-501). In our view, in order to entitle the workman to the protection of Clause (a) of Sub-section (1), the following conditions must cumulatively exist: (i) There should be a pendency of any proceeding in respect of industrial dispute. (ii) The workman claiming protection should not only be a workman within the meaning of Section 2(s) of the Act, but also be a workman concerned in the pending dispute. (iii) Alteration in question should have the effect of making a change in the conditions of service applicable to such workman which were applicable to him before commencement of such proceeding and such alteration should be prejudicial to his interest; and (iv) Such alteration should be in regard to any matter connected with the pending dispute. This view of ours finds support from a decision of the Supreme Court in the case of Bhav-nagar Municipality v. Alibhai Karimbhai, reported in (1977-I-LLJ-407). All the four conditions exist in the present case. In our view, therefore, without express permission in writing of the authority concerned, it was not open to the employer to effect termination as done. The argument that appointment being for a fixed time spell Section 33 has no application is without any substance. There is no exception provided in Section 33 in respect of time-spell employments. Therefore, action of the employer in terminating the workmen concerned by orders dated March 16, 1989 is not sustainable. They are accordingly quashed. The concerned workmen shall be treated to be continuing in service and shall be entitled to all admissible service entitlements. It has been submitted on behalf of the employer that on cessation of operation in respect of which the concerned workmen were employed, there is no scope for continuing them in employment. It is open to the employer to take steps for termination in accordance with law, if that is the case. 4. So far as Central Government is concerned, we are informed, no action was taken on the failure of conciliation report on account of pendency of this writ application. Undisputedly, the matter was under consideration of the Central Government on receipt of the report of the conciliation authority. Learned Standing Counsel appearing for Central Government has filed a memorandum on November 9, 1989 enclosing a copy of letter of Government of India in the Ministry of Labour, New Delhi bearing No. L-30011/15/89-IR (Misc) dated August 16, 1989/ August 21, 1989 addressed to the employer and the petitioner to the effect that in view of the pendency of the writ application, the Central Government have decided not to take any action on the failure of conciliation report relating to the dispute. The Central Government would do well to deal with the matter in accordance with law and keeping in view of the fact that large number of workmen are involved, dispose of the matter as expeditiously as possible, but not later than February 28, 1990. 5. The writ application is accordingly disposed of, but there shall be no order as to costs. D.P. Mohapatra, J.
6. I agree.