Calcutta High Court (Appellete Side)
Bharat Coking Coal Ltd. & Anr vs Presiding Officer on 14 March, 2014
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present :
The Hon'ble Justice Soumen Sen
W.P. No. 11852(W) of 2010
With
CAN 8036 of 2011
Bharat Coking Coal Ltd. & Anr.
Vs.
Presiding Officer, Central Government Industrial Tribunal-cum-
Labour Court, Assansol & Ors.
For the petitioner : Mr. R.N. Majumdar,
Mr. Kalimuddin Mondal
For the respondent No.3 : Mr. Anant Kr. Shaw,
Mr. Ravi Kumar Dubey Heard on : 29.01.2014, 13.03.2014 Judgment on : 14th March, 2014 Soumen Sen, J.:- The petitioner in this proceeding has challenged the order dated 2nd December, 2009 passed by the learned Presiding Officer CGIT, Assansol.
During the pendency of the writ application the respondent workman has filed an application under Section 17B of the Industrial Disputes Act, 1947. The said application is resisted by the writ petitioner on the ground that the order passed by the learned Presiding Officer is not an award and accordingly the application filed under Section 17B of the Industrial Disputes Act, 1947 is not maintainable. The writ petitioner contends that the order passed by the learned Presiding Officer in disposing of the complaint cases filed by the workman in respect of reference 44/1999 is without jurisdiction.
The application filed under Section 17B is now under consideration. The applicant/workman was appointed by the Writ Petitioner Company on 24th October, 1990 as underground loader. The said post was subsequently re designated as fitter apprentice. The applicant was transferred from time to time to various workshops and fitter apprentice until 3rd June, 1999. On 6th July, 1997 the applicant/workman raised an industrial dispute through the union demanding regularization as lamp issue clerk. The conciliation proceeding commenced on July 7, 1997 and concluded on June 16, 1998. The conciliation officer had filed a failure report on June 24, 1998. The said dispute was referred to the Central Government Industrial Tribunal, Asansol for adjudication being I.D. Case No.44 of 1999 which is pending since June 7, 1999.
During the pendency of the said reference the workman was allowed to join at Dahibari Colliery on January 16, 2001. The workman was not given any job nor permitted to work between June 4, 1999 and January 15, 2001.
While working at Dahibari Colliery and during the pendency of the reference, the applicant workman on September 16, 2002 was transferred to Basanti Colliery. Being aggrieved by the said order of transfer, the applicant workman had lodged a complaint under Section 33A of the Industrial Disputes Act alleging that the transfer order of the management dated September 12, 2002 in transferring him from Dahibari Colliery to Basanti Mata Colliery and subsequent release order was in violation of Section 33 of the Industrial Disputes Act.
The management contested the proceeding alleging that transfer of the workman was due to closure of the mine and also consequent upon the settlement reached between the parties on termination of disciplinary proceeding after service of charge sheet and domestic enquiry. The transfer from Dahibari Colliery w.e.f. September 15, 2002 being the subject matter of reference was due to closure of mines. The Complaint Case was registered as Case No.3 of 2002.
Notwithstanding such complaint, the Company issued a charge sheet on December 7, 2002 for alleged willful absence w.e.f. 16th September, 2002. Thereafter, an Enquiry Officer was appointed. A domestic enquiry was held in which a finding being arrived at by the Enquiry Officer that there had been willful absence, the service of the applicant workman was terminated.
The Petitioner Company, thereafter, filed an application on June 19, 2004 under Section 33A of the Industrial Disputes Act before the said Tribunal seeking approval of their action of dismissing the workman from service pending adjudication of the reference.
The said application was marked as 'Application No.1 of 2004'. Simultaneously, being aggrieved by the said order of dismissal, the workman on April 23, 2004 lodged a complaint praying for setting aside of the order of dismissal passed by the management. The said application was treated as Complaint Case No.1 of 2004.
On 2nd December, 2009 Central Industrial Tribunal on consideration of materials on record set aside the order of the management to transfer the workman as also the order of dismissal. The management was directed to reinstate the workman with full back wages.
The writ petitioner has challenged this award.
During the pendency of this writ application the workman has filed an application under Section 17B of the Industrial Disputes Act. The petitioner contended in the said application that in terms of Section 17B of the Industrial Disputes Act, 1947, the applicant/workman is entitled to full wages last drawn by him along with other benefits since the writ petitioner has challenged the order passed by the Industrial Tribunal setting aside the order of dismissal. The applicant has stated in the said application that he is unemployed and is maintaining his family on the charity of the relatives and friends and well-wishers and it has become increasingly difficult for him to sustain himself and his family.
Mr. Kallimuddin Mondal, the learned Advocate appearing on behalf of the company has raised an objection that the application under Section 17B of the Industrial Disputes Act, 1947 is not maintainable since an order passed under Section 33 and 33A of the Industrial Disputes Act, 1947 is not an award.
The application under Section 33 is a totally distinct and separate proceeding. It is not for an interlocutory relief in a proceeding, conciliation or adjudicating proceeding. The order granting or refusing, approval or permission is final in nature.
S. 33 and S.33A are intended for the protection of an employee, and a tribunal has jurisdiction to do complete justice between the parties with regard to the matter in dispute and also give such relief as the nature of the case may require. The basic object of these two Sections, broadly speaking, is to protect the workmen concerned in the disputes which form the subject-matter of pending conciliation proceedings or proceedings by way of reference under S. 10 of the Act, against victimisation by the employer or on account of raising or continuing such pending disputes and ensure that these pending proceedings are brought to expeditious termination in a peaceful atmosphere. To achieve this objective, a ban subject to certain conditions, has been imposed by S. 33 on the ordinary right of the employer to alter the terms of his employees' service to their prejudice or to determine their services under the general law governing the contract of employment and S.33A provides for a relief against complaints by aggrieved workmen considering them to be disputes referred to or pending adjudication in accordance with the provisions of the Act. The new clause (b) in Section 33A enables an aggrieved workman to make a complaint to an Arbitrator, Labour Court, Industrial Tribunal or the National Tribunal, in writing, who will adjudicate on the complaint as if it were a dispute referred to or pending before it for adjudication.
Such authority then is required to submit its award in accordance with the provisions of the Act to the appropriate Government. Thus a workman aggrieved by the contravention of S.33, does not have to wait for a reference of his dispute under S. 10 but can himself prefer his complaint which is to be treated in the same way as a dispute referred under S.10 of the Act. The words "shall adjudicate upon the complaint as if it were dispute referred to or pending before it, in accordance with the provisions of this Act", show that the jurisdiction of the Arbitrator, a Labour Court, an Industrial Tribunal or the National Tribunal under S.33A is the same as the jurisdiction of these authorities relating to the adjudication of an industrial dispute on a reference being made to them under S. 10 of the Act read with S. 11A. In other words, an adjudicator acting under this Section would be dealing with the matter as if the question has been referred to it under the Act and will, thus, have a very wide jurisdiction and it can deal with all aspects and mould the reliefs that can be granted under S.11A.
Perhaps the only distinction to be made between the two classes of cases is this:
Where the employer asks for permission to dismiss, it is sufficient if before the managerial enquiry a prima facie case has been made out, because in such proceedings it is a question of lifting the ban and an exhaustive enquiry is not essential. In the case of an adjudication under Section 10, the question is not one of prima facie evidence merely but of evidence justifying the finding. (The Law of Industrial Disputes, Vol. 2, O.P. Malhotra: and also National Tobacco Co. Vs. Fourth Industrial Tribunal AIR 1960 Cal 249).
It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman. In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore, a complaint under S.33A being in the nature of a dispute referred to a tribunal under S. 10 of the Act, it is certainly within its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S.33. (Kamarhatty Company, Ltd. Vs. Ushnath Pakrashi; 1959 (2) LLJ 556 (SC) It therefore, follows that if the said order is challenged the provision of Section 17B would apply.
Mr. R.N. Majumdar, learned Counsel appearing on behalf of the petitioner in supplementing the argument made by Mr. Kalimuddin Mondal has submitted that the Tribunal has traveled beyond its jurisdiction in directing the reinstatement in a proceeding under Section 33(2)(b) of the said Act.
It is submitted that in view of fact that the Tribunal could not have passed the said order in a proceeding arising out of Section 33(2)(b) of the Industrial Disputes Act, the application filed under Section 17B is not maintainable. It is stated that the Tribunal has proceeded erroneously in clubbing all the applications and disposing of all the applications by a single judgment and order.
In support of the aforesaid, the learned Counsel has relied upon the following decisions:-
(1) Westinghouse Saxby Farmer Limited Vs. State of West Bengal & Ors. reported in 1998(1) LLJ 654. (2) Rajasthan State Road Transport Corporation & Anr. Vs. Satya Prakash reported in 2013(9) SCC 232 (paragraphs 18 and 19).
(3) Bata India Limited Vs. Seventh Industrial Tribunal, West Bengal & Ors. reported in 1995(1) LLJ 144. (4) Delhi Transport Corporation Vs. Jagdish Chander reported in 2005 (3) LLJ 390.
Relying on the aforesaid decisions it is submitted that the order passed by the Presiding Officer, is without jurisdiction and is not an award within the meaning of Section 17B of the Industrial Disputes Act, 1947.
In Westinghouse Saxby Farmer Ltd. (supra), the Hon'ble Division Bench held that the words of Section 17B are plain and do not warrant the inclusion of an order under Section 33(5) of the Industrial Disputes Act, 1947. It was further held that Award as per Section 2(b) signifies determination of an industrial dispute and conciliation officer is not included by the I.D. Act, as one of the authorities who can pass an award. The jurisdiction of the authorities under Section 33 is limited. They can neither finally adjudicate on the justness of an order of dismissal nor direct reinstatement, although the consequence of a refusal to grant approval may render the order of dismissal void.
In Rajasthan State Transport Corpn. (supra), it was held that in adjudicating proceeding initiated upon a complaint under Section 33A on the ground of contravention of Section 33(2)(b) proviso Tribunal must treat it like a reference under Section 10 and go into the merits by giving opportunity of hearing to parties to present their cases. It was held that Section 33A sub-section (2)(b) clearly lays down that when a complaint is made under the said sub-section the Tribunal shall adjudicate upon the complaint as if it was a dispute referred to it and shall submit his/its award to the appropriate Government and the provisions of this Act shall apply accordingly.
In Bata India Ltd. (supra) it was held that liberal interpretation being given to Section 17B of the Industrial Disputes Act the benefit of the said Section could be extended even in a case where the employer challenges an order passed by the Tribunal disapproving an order of dismissal under Section 33(2)(b) before the High Court and the Supreme Court. Though in case of such disapproval by the Tribunal under Section 33(2)(b) of the Industrial Disputes Act, the Tribunal does not actually direct reinstatement in service, the real effect of such order amounts to reinstatement. The legal effect of disapproval by the Tribunal though may make the order of dismissal void ab initio and workman concerned deemed to continue in service, the same is really by a fiction of law. Effectually and factually, however, the workman concerned is restored back to the position which he held before the order of dismissal only after the order of such approval is passed by the Tribunal under Section 33(2)(b), and consequentially as a matter of right is entitled not only to all arrears of wages and other benefits, but also is entitled to his salary month by month. Section 17B would not be applicable to the proceedings before the High Court and the Supreme Court in a case where the employer challenges the order declining to grant an approval under Section 33(2)(b). The benefits of award in an industrial dispute are of the widest amplitude. The decisions of the Industrial Disputes Tribunal under Section 33(2)(b) of the Industrial Disputes Act, disapproving the order of dismissal is certainly a mater relating to employment or non- employment of the workman and is certainly a determination by the Tribunal that the dismissal in question is invalid and, therefore, cannot be approved. Consequently, given a liberal interpretation to the provisions of Section 17B of the Act, a decision of the Industrial Tribunal under Section 33(2)(b) of the Act cannot be termed as an award within the meaning of Section 17B of the said Act.
In Delhi Transport Corpn. (supra) the Special Bench of the Delhi High Court after referring to various decisions held that the emphasis of the legislature (in Section 17B) was of the expression 'reinstatement' rather than on 'award'.
The cumulative effect to Section 2(b) and 2(k) defining 'award' and 'industrial dispute' demonstrated that the expressions had been widely worded to take within their ambit duties relatable to any person who satisfied the conditions stated therein.
Section 17B as well as the judgments of the Supreme Court interpreting its discernibly predicted the principle that a workman was entitled to relief under Section 17B where the Labour Court found the action of employer in dismissing the workman was illegal or unjustified and directed his reinstatement.
The language of Section 17B could not be stated to be unambiguous but the rule of liberal construction would have to be applied to achieve the social goal underlying this provision.
In deciding an application under Section 17B, the Court is required to find out if it is an award within the meaning of Section 2(b) of the Industrial Disputes Act, 1947.
Section 17B is attracted where an award directs reinstatements of any workman and the employer challenges the said award in High Court or the Supreme Court, as the case may be. It is a nature of the order which is important at this stage. The Court is not required to go into the merits of the case. The Court is only to confine its enquiry to find out as to whether it is an award and if it is an award directing reinstatement then automatically Section 17B of the Industrial Disputes Act, 1947 is applicable.
The decisions cited by Mr. R.N. Majumdar, in fact, supports the view that the workman would be entitled to rely under Section 17B where the Labour Court found the action of employer in dismissing the workman was unjustified and illegal and a direction is given for his reinstatement which precisely has been done in the instant case by the learned Presiding Judge.
In view of the aforesaid, the application filed under Section 17B succeeds. The petitioner would be entitled to full wages last drawn by him from December 2010 till the disposal of this writ application or until further order whichever is earlier. The arrear of such back wages shall be paid within a period of three weeks form the date of communication of this order and all current payments shall be made on or before seventh of each succeeding month.
CAN 8036 of 2011, accordingly, succeeds.
The writ application shall appear under the heading "For Hearing"
four weeks hence.
There will be, however, no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)