Gauhati High Court
Management Of Hindustan Paper ... vs Presiding Officer, Industrial ... on 18 September, 2006
Equivalent citations: (2007)1GLR232
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT Ranjan Gogoi, J.
1. An affirmative answer of the learned Industrial Tribunal, Silchar on an application filed by the workman under Section 33A of the Industrial Disputes Act, 1947 has prompted the present approach of the petitioner-employer under Article 226 of the Constitution.
2. The facts in brief may be noted at the outset.
The respondent No. 2 herein who was, at the relevant point of time, working in the post of Supervisor Grade-II in the Cachar Paper Mill of the Hindustan Paper Corporation Ltd. was dismissed by the management by an order dated 11.10.1998. As there was already an industrial dispute involving the respondent pending before the Industrial Tribunal at Silchar ; the management filed an application under Section 33(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') before the learned Tribunal below seeking approval of the dismissal order passed by it. Misc. Case No. 14/1988 was registered on the basis of the application filed by the management. The said application filed by the management was allowed to be withdrawn by the learned Tribunal by an order dated 3.10.1991. Thereafter, the respondent-workman filed an application under Section 33A of the Act before the learned Tribunal contending that his dismissal was in contravention of the provisions of Section 33 of the Act and furthermore that in any event the said dismissal is not warranted in law.
3. On receipt of the application filed by the respondent-workman under Section 33A of the Act, the learned Tribunal registered Misc. Case No. 19/1992 in respect thereof and issued notice on the management. The management filed its objections/written statement in the case. On the basis of the pleadings of the parties the learned Tribunal below identified two questions as the core issues calling for its decision. The first issue, identified by the learned Tribunal, is whether the respondent is a workman within the meaning of Section 2(s) of the Act. The second question identified was if the respondent was a workman within the meaning of the Act whether the dismissal of the workman by the management was sustainable in law.
4. The learned Tribunal by its order dated 15.11.1999 took the view that on due consideration of the evidence adduced by the respective parties it could be held that the respondent was a workman within the meaning of Section 2(s) of the Act. The learned Tribunal further held that as the application filed by the management under Section 33(2) of the Act seeking approval of its actions in dismissing the workman was withdrawn by the management, the dismissal of the respondent was in contravention of the provisions of Section 33 and, therefore, the said action was void, illegal and inoperative in law. Consequently, by its order dated 15.11.1999 the learned Tribunal ordered for reinstatement of the workman with consequential back wages and other benefits. Aggrieved, this writ petition has been filed.
5. I have heard Mrs. M. Hazarika, learned senior counsel appearing for the writ petitioner and Mr. N. Choudhury, learned Counsel appearing for the respondent-workman.
6. Mrs. Hazarika, learned Counsel for the petitioner, has vehemently contended that the finding recorded by the learned Tribunal that the respondent was a workman within the meaning of Section 2(s) of the Act is vitiated by illegalities apparent on the face of the record. The evidence adduced by the management to the effect that upon promotion of the respondent from the post of Assistant Forest Supervisor to Supervisor Grade-II with effect from 1.7.1986 the respondent had ceased to a workman the nature of duties in the post of Supervisor Grade-II and the pay and emoluments drawn by the respondent in the said post were all ignored by the learned Tribunal in coming to the impugned finding. The learned Counsel has further argued that the evidence and materials on record had conclusively demonstrated that the respondent was not a workman but was holding a supervisory post. Consequently, it is argued that on the aforesaid basis alone the impugned order dated 15.11.1999 is not legally sustainable. Alternatively, Mrs. Hazarika, learned Counsel for the petitioner, has contended that in any event merely on the basis of a finding of contravention of the provisions of Section 33 of the Act the learned Tribunal below could not have ordered the reinstatement of the respondent with consequential benefits. It has been argued that while exercising jurisdiction under Section 33A of the Act, the Industrial Adjudicator exercises powers akin to one under Section 10 of the Act while hearing a reference. This, the learned Counsel contends, is made amply clear by the language of Section 33A of the Act which requires the Industrial Adjudicator to adjudicate upon the complaint made as if it were hearing a dispute referred to it and thereafter to pass an Award. Learned Counsel, therefore, has contended that in the instant case the learned Tribunal after recording the finding that there has been a contravention of Section 33 of the Act by the management ought to have adjudicated upon the legality of the dismissal of the workman on merit and an appropriate finding on the merits of the dismissal should have been recorded by the learned Tribunal. As the aforesaid course of action was not followed by the learned Tribunal it is contended that the impugned order dated 15.11.1999 is vitiated in law. Reliance in this regard has been placed by Mrs. Hazarika, learned Counsel for the petitioner, on a decision of the Apex Court in the case of Punjab National Bank Ltd. v. All India Punjab National Bank Employees Association and Anr. . Two other decisions of the Apex Court in the case of The Hindustan General Electrical Corporation Ltd. v. Biswanath Prasad and Anr. , and in the case of Punjab Beverages (P.) Ltd. v. Suresh Chand , have also been relied upon.
7. Controverting the submissions advanced on behalf of the petitioner, Mr. N. Choudhury, learned Counsel for the respondent, has contended that the finding recorded by the learned Tribunal that the respondent was a workman within the meaning of the said expression as appearing in Section 2(s) of the Act is based on a due and proper consideration of the evidence on record. Learned Counsel has submitted that the above view taken by the learned Tribunal is a possible and plausible view on the basis of the evidence and materials on record. This court, therefore, exercising jurisdiction under Article 226 of the Constitution ought not to supplant its views in the matter. Shri Choudury has further submitted that in the present case there can be no dispute that the provisions of Section 33 of the Act had been contravened by the management inasmuch as the application filed by the management seeking approval under Section 33(2) was subsequently withdrawn. In such a situation, according to Sri Choudhury, though in terms of the several decisions cited on behalf of the petitioner the learned Tribunal was required to further adjudicate on the merits of the dismissal order, in view of the law laid down by the Constitution Bench of the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. , the order passed by the learned Tribunal would be perfectly legal and justified and there should be no occasion for this Court to cause any interference with the said order. Specifically Sri Choudhury has urged that in Punjab Beverages (supra) in paragraph 12 the Apex Court had held that an order of dismissal without the requisite approval of the Industrial Court under Section 33(2) of the Act will not amount to a nullity. The reasoning for the view taken was that if such a dismissal order is to be understood to be a nullity the question of adjudication of a null and void order on its merits could not have been insisted upon by the several pronouncements of the Apex Court, reference to some of which has been made by the learned Counsel for the petitioner. Sri Choudhury has argued that in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra the law laid down in Punjab Beverages (supra) has been specifically declared to be no longer good law. In view of the above, according to Sri Choudhury, once contravention of the provisions of Section 33 is established, no further adjudication on the merits of the dismissal is required to be made. Sri Choudhury has, therefore, contended that the order dated 15.11.1999 passed by the learned Tribunal would not require any interference at the hands of the court.
8. The provisions of Section 2(s) of the Act which defines the expression of 'workman' may now be noticed.
2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison ; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
9. In the present cases a reading of the order dated 15.11.1999 passed by the learned Tribunal would go to show that the learned Tribunal elaborately considered the oral and documentary evidence adduced by the parties before it on the point at issue, i.e., whether the respondent is a workman. In this regard, the learned Tribunal below took note of the fact that the pay scale of the respondent upon promotion to the post of Supervisor Grade-II, i.e., Rs. 635-1,100 was included in the pay scale of workmen as mentioned in the Personnel Manual of the Hindustan Paper Corporation. The learned Tribunal also took into account the oral evidence adduced by the sole witness examined by the management to the effect that the respondent was a member of the employees' union at the relevant point of time and a Supervisor or officer under the Hindustan Paper Corporation cannot function as a member or office bearer of the employees/workers union. In addition, the learned Industrial Tribunal also took into account the fact that the leave availed of by the respondent on earlier occasions while working as Supervisor Grade-II were as per the norms applicable for workmen and not for Supervisors/Officers. The learned Tribunal also dealt with the question of the total emoluments drawn by the workman in this regard which emoluments, according to the management, was beyond Rs. 1,600 as prescribed under Section 2(s) of the Act. In this regard the learned Tribunal took note of the fact that whether the respondent was actually drawing the said emoluments or the same was his entitlement which according to him had not been given was not very clear from the evidence and materials on record. On a consideration of the totality of the above facts the learned Tribunal took the view that the preponderance of the evidence on record pointed to the direction that the respondent was a workman.
10. The manner in which the learned Tribunal proceeded to arrive at the aforesaid finding can hardly be faulted. The evidence and materials on record were duly considered. The evidence in favour of the finding that the respondent was a workman and the evidence to the contrary were considered and balanced by the learned Tribunal whereafter the finding that the respondent was a workman under the Act was recorded. This Court in exercise of powers under Article 226 of the Constitution will not interfere with a finding of fact recorded after due appreciation of evidence if such finding is a possible or plausible one. Interference of the Writ Court will be justified only if the finding can be characterized as perverse or the finding recorded is one that no reasonable person properly instructed in law could have arrived at. In the present case the evidence adduced by the parties have been noticed. While it is correct that though the pay scale of workmen enumerated in the Personnel Manual of the Hindustan Paper Corporation may not be conclusive and a court will have to go by what has been laid down by the statute and not by the Manual, two significant facts that appear in this regard from the evidence on record cannot be overlooked. The first is that the respondent was, at the relevant point of time, a member and an office bearer of the employees/workers union which post, even, according to the management, cannot be held by a Supervisor. The second significant fact that must be noticed in this regard is that the respondent had availed of leave benefits as admissible to workmen and not to Supervisors. As against this there is the evidence of the management as well as the workman himself with regard to his emoluments which could be suggestive that the respondent was earning more than what is stipulated for a workman by Section 2(s) of the Act. But then as already noticed there is a dispute as to whether the evidence tendered on this point was with regard to what was actually drawn by the respondent or the entitlement of the respondent. In such a situation if taking the evidence in its totality the learned Tribunal was inclined to take the view that the preponderance of probabilities in the present case pointed to the direction that the respondent was a workman, such view of the learned Tribunal must be allowed to be prevailed.
11. This would bring the Court to a consideration of the next issue in the case, i.e., whether on a mere finding that the provisions of Section 33 of the Act were contravened by the management while dismissing the workman, the learned Tribunal was justified in ordering for his reinstatement with consequential benefits.
12. To answer the question the provisions of Sections 31, 33(2) and 33A of the Act may be noticed by reproduction of the same:
31. Penalty for other offences. - (1) Any employer who contravenes the provisions of Section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
(2) Whoever contravenes any of the provisions of this Act or any rule made thereunder shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with fine which may extend to one hundred rupees.
33(2) 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 for, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman-
(a) 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 ; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided 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.
33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding. - Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner,-
(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and
(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this act and shall submit his or its award to the appropriate Government and the provisions of this act shall apply accordingly.
13. In a number of decisions of the Apex Court out of which reference could be made to The Automobile Products of India Ltd. and Ors. v. Rukmaji Bali and Ors. AIR 1958 SC 130 Indian Iron & Steel Co. Ltd. and Anr. v. Their Workmen and Punjab National Bank Ltd. v. All India Punjab National Bank Employees' Association and Anr. law was laid down to the effect that while considering an application filed by the workman under Section 33A of the Act, the Industrial Adjudicator has to consider two questions. First, whether the dismissal of the workman is in contravention of any of the provisions of Section 33 of the Act. If such contravention is proved it was still open for the employer to justify, before the Industrial Adjudicator, the impugned dismissal on merits. The latter, i.e., second question, according to the Apex Court, is an integral part of the dispute which the Tribunal has to consider under Section 33Aof the Act. This is because a complaint under Section 33A is required to be considered as an industrial dispute in which an award is required to be passed. The above view appears to have held the field and was reiterated in The Hindustan General Electrical Corporation Ltd. (supra) and also in Punjab Beverages (supra). In paragraph 12 of the judgment in Punjab Beverages it was laid down that if an order of dismissal or discharge is to be void and inoperative on account of contravention of Section 33 of the Act alone, in that event there will be no need to go into the question whether the impugned order of dismissal or discharge is justified on merits as "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". In the said paragraph 12 of the judgment it was further laid down that the very fact that in some earlier decisions it was held that the further question of dismissal being justified on merits has to be gone into was a pointer to the fact that contravention of Section 33 of the Act, by itself, does not render the order of discharge or dismissal void. The penal scheme under Section 31 of the Act was also relied upon to come to the said conclusion. However, the above law laid down in Punjab Beverages (supra) was disagreed with by the Constitution Bench in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) . What is stated in paragraph 15 of the judgment would be relevant wherein the Constitution Bench took the view that the law laid down in Punjab Beverages (supra) is required to be departed from as the said view could have the effect of working to the benefit of a recalcitrant employer who is not inclined to follow the mandate of Section 33 of the Act. Paragraph 15 of the judgment of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) may now be seen.
15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an appllication. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or tile it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.
14. The net result of the above discussion is that in view of the Constitution Bench judgment in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. a dismissal or discharge or an employee in contravention of Section 33 of the Act would have the effect of rendering such dismissal/discharge void and inoperative in law. Further adjudication of the merits of the dismissal order would no longer be required to be made. To that extent the law laid down in the earlier decision of the Apex Court, as noticed, must be understood to have been eroded by the decision of the Constitution Bench in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra). Accordingly, this Court has to reach the conclusion that the order dated 15.11.1999 passed by the learned Tribunal directing reinstatement of the workman with consequential back wages will not require any interference of this court. Consequently, the writ petition has to be dismissed which I hereby do. However, having regard to the facts and circumstances of the case I make no order as to costs.