Patna High Court
Management Of Sendra Bansjora Colliery ... vs Shantilal M. Bhatt And Anr. on 6 February, 1963
Equivalent citations: AIR1963PAT288, [1963(7)FLR407], (1963)IILLJ331PAT, AIR 1963 PATNA 288, (1964) 9 FACLR 154, (1963) 2 LABLJ 331, 1964 BLJR 205, (1962) 5 FACLR 454
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT
1. By a Notification No. S.R.O. 690, dated the 22nd February, 1954, published in the Gazette of India (Extraordinary), the Central Government constituted an Industrial Tribunal, called the All India Industrial Tribunal (Colliery Disputes), for the adjudication of industrial disputes concerning coal mines. By its second order, namely, Order No. SRO 691 of the same date, the Central Government referred to this Tribunal, for adjudication of several matters specified in Schedule II of the aforesaid order, being either matters in dispute or matters connected with or relevant to the dispute as between the employers and workmen in relation to all the coal mines specified in Schedule I of the same order. The award of the Industrial Tribunal was published in the Gazette of India (Extraordinary), dated the 26th May, 1956. Subsequent to the publication of the award the Central Government felt a difficulty in the interpretation of the award with regard to the question whether "Traffic" is to be placed in Grade II of the Clerical Service in terms of the said award. On the 23rd May, 1960, the Central Government, acting in exercise of the powers under Section 36A of the Industrial Disputes Act (Act 14 of 1947) referred to the Central Government Industrial (Tribunal, Dhanbad, the following question for decision:
'"Whether a Traffic' is to be placed in Grade II of the Clerical Service in terms of the said award."
While the proceeding under Section 36A of the Industrial Disputes Act was pending before the Tribunal, the petitioner terminated the service of opposite party No. 1, Shri Shantilal M. Bhatt, by a letter dated the 27th August, 1960. Thereafter Opposite Party No. 1 filed an application under Section 33A- of the Industrial Disputes Act before the Central Government Industrial Tribunal, Dhanbad, complaining that there has been a violation of the provisions of Section 33(1) of the Industrial Dispute Act and praying that the order of dismissal made against him should be set aside and his reinstatement should be ordered. This application was registered as Application No. 92 of 1960 before the Central Government Industrial Tribunal, Dhanbad. A preliminary objection was raised, on behalf of the petitioner, before the Tribunal to the effect that the application of Opposite Party No. 1 under Section 33A of the Industrial Disputes Act was incompetent, but the objection was overruled by the Industrial Tribunal by its order dated the 17th December, 1960.
2. The petitioner has now obtained a rule from the High Court calling upon the respondents to show cause why the order of the Central Government Industrial Tribunal, Dhanbad, dated the 17th December, 1960, should not be quashed by grant of a writ under Article 226 of the Constitution.
3. Cause has been shown by learned Counsel on behalf of the respondents, to whom notice of the rule was ordered to be given.
4. The main submission made on behalf of the petitioner is that the application made by Opposite Party No. 1 under Section 33A of the Industrial Disputes Act was not competent because there was no reference of an industrial dispute under Section 36A of the Industrial Disputes Act and there was no proceeding in respect of an industrial dispute, pending before the Labour Court or Tribunal. In our opinion the argument put forward on behalf of the petitioner is well founded and must be accepted as correct. Section 36A of the Industrial Disputes Act is to the following effect:
"36A. (1) If, in the opinion of the appropriate Government any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit.
(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties."
Section 33, Sub-section (1), of the Industrial Disputes Act states as follows:
"33. (1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before 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."
Section 33, Sub-section (3), reads as follows:
"33. (3) Notwithstanding anything contained in Sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such a dispute--
(a) by altering, to the prejudice of such protected Workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected, workman save with the express permission in writing of the authority before which the proceeding is pending, Explanation.-- For the purposes of this sub-section, a 'protected workman in relation to an establishment, means a workman who, being an officer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf."
Section 2(k) of the Act defines "industrial dispute" as meaning "any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person."
Section 10 of the Industrial Disputes Act deals with reference of industrial disputes by the appropriate Government to Boards, Courts or Tribunals. Section 10(1) of the statute is to the following effect:
"10. (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, 'by order in writing,--
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be con nected with or relevant to the dispute to a Court of inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, it it relates to any matter specified in the Second Schedule, to; a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c):
Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section, notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced."
Section 15 of the Act states that after an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal or adjudication it shall hold its proceedings ex-peditiously and shall as soon as it is practicable on the conclusion thereof submit its award to the appropriate Government. Section 16 deals with the form of the award and Section 17 relates to publication of the award. Section 17A provides that an award shall become enforceable on the expiry of 30 days from the date of its publication under Section 17, subject to certain exceptions. Section 20(3) of the Act is also important and reads as follows:
"20. (3) Proceedings before an arbitrator under Section 10A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudication, as the case may be, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 17A."
On a review of these statutory provisions it is apparent to us that there is a sharp difference between the language used in Section 10 of the Act and the language used in Section 36A of the Act. It is important to notice that Section 36A in express language states that the appropriate Government may refer a "question" as to the interpretation of an award or settlement to a Tribunal for the "decision" of such "question." In contrast Section 10 of the statute states that the appropriate Government may refer an "industrial dispute" for adjudication to a Tribunal or a Labour Court and the duty of the Tribunal receiving the reference is to give an "award" under Section 15 of the Act, after following the appropriate procedure. In our opinion a proceeding pending under Section 36A of the Act is not a proceeding "in respect of" an industrial dispute within the meaning of Section 33(1) or Section 33(3) of the Act. It was argued on behalf of the respondents that the Central Government made a reference in the background of an industrial dispute between the management and the workmen with regard to the characterisation of "Traffic" in Grade II. But that does not mean that the reference made by the Central Government under Section 36A of the Act is a reference "in respect of" an industrial dispute within the meaning of Section 33(1) of the Industrial Disputes Act. The legal test for judging whether a reference is "in respect of" an industrial dispute is whether the reference is substantially or in its true nature and character a reference with regard to an industrial dispute. In the present case we are of opinion that the reference made by the Central Government to a Tribunal under Section 36A is not a reference "in respect of "an industrial dispute" but a reference in regard to the interpretation of an award. We accordingly hold that the application of Opposite Party No. 1 in the present case, complaining of an infringement of the provisions of Section 33 of the Act, dated the 12th September, 1960, is incompetent and the Central Government Industrial Tribunal Dhanbad, had no jurisdiction to entertain the application under Section 33A of the Industrial Disputes Act.
5. For the reasons we have expressed, we hold that this application must be allowed and a writ in the nature of certiorari must be issued to quash the order of the Central Government Industrial Tribunal dated the 17th December, 1960.
6. We accordingly allow this application. There will be no order as to costs.