Delhi High Court
Ms Dic India Ltd vs Mr Uday Chaudhary & Anr. on 20 October, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Sanjeev Narula
$~2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 20.10.2023
% LPA 704/2023 and C.M. Nos.53241-53242/2023
MS DIC INDIA LTD ..... Appellant
Through: Mr. Siddharth Dias, Advocate.
versus
MR UDAY CHAUDHARY & ANR. ..... Respondents
Through:
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The present Letters Patent Appeal (LPA) has been filed by the
appellant challenging the judgment dated 18.08.2023 passed by the learned
Single Judge in W.P.(C.) No. 10622/2023 titled MS DIC India Ltd Vs. Mr
Uday Chaudhary & Anr.
2. The facts of the case reveal that the respondent No.1 employee was
working under the appellant/ M/s D.I.C. India Ltd. - which is a company
duly incorporated under the Companies Act, 1956. On 14.07.2016, the
respondent No.1 employee raised an industrial dispute under the provisions
of the Industrial Disputes Act, 1947 (the Act) before the Conciliation
Officer.
LPA 704/2023 Page 1 of 12
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
15:18:22
3. During the pendency of the conciliation proceedings, the services of
the respondent No.1 workman were put to an end on 05.11.2016 without
obtaining any permission from the Conciliation Officer, and in those
circumstances, the workman preferred a complaint under Section 33A of the
Act before the Industrial Tribunal. The appellant/ employer preferred an
application before the Presiding Officer, Industrial Tribunal-01, Rouse
Avenue, challenging the proceedings initiated by the workman under
Section 33A of the Act and the said application preferred by the appellant/
employer was dismissed by an order dated 06.07.2023.
4. Being aggrieved by the order dated 06.07.2023, the appellant/ writ
Petitioner preferred a writ petition being W.P.(C.) No. 10622/2023 before
this Court and the learned Single Judge has dismissed the said writ petition
by judgment dated 18.08.2023.
5. Learned counsel for the petitioner has vehemently argued before this
Court that the application preferred by the workman under Section 33A of
the Act should have been preferred before the Conciliation Officer before
whom the conciliation proceedings were pending, and therefore, the order
passed by the Industrial Tribunal is bad in law.
6. Learned counsel for the petitioner has placed heavy reliance upon the
decision delivered by the learned Single Judge of the Punjab & Haryana
High Court in the case of Ram Sanjeevan Vs. Presiding Officer, Labour
Court, U.T. Chandigarh & Anr., 2009 LAB. I.C. 2023. His contention is
that the learned Single Judge has erred in law & facts in dismissing the writ
petition.
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Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
15:18:22
7. This Court has carefully gone through the judgment dated 18.08.2023
passed by the learned Single Judge and the operative portion of the said
judgment - as contained in paragraphs 6 to 9 thereof, reads as under:
"6.0. Per contra, Ld. counsel for the respondent submits that
the petitioner could not have changed the condition of
service/terminated the respondent's services during pendency of
conciliation proceedings. Same was rightly challenged by the
respondent u/S 33A ; and the Petitioner's application seeking
dismissal of the respondent's complaint u/S. 33A was rightly
dismissed. The petitioner cannot be allowed to earn premium
on his own wrong doing, by way of present petition, which is
nothing but a ploy to further delay the proceedings. She also
submits that the Hon'ble Supreme Court in 'DP Maheshwari vs.
Delhi Administration (1983) 4 SCC 293' has deprecated the
practice of moving such applications. This petition, therefore,
deserves to be dismissed at the outset with exemplary cost as
the petitioner has even concealed the material facts.
6.1. Ld. counsel for the respondent also submits that the
respondent not being well educated was under the impression
that his grievance of termination would also be dealt with, in
the dispute of regularization. Later on, on coming to know that
a complaint can also be filed regarding his termination pending
the dispute, he moved the complaint u/S 33-A ID Act
accordingly. The said complaint was replied to by the petitioner
vide reply dated 26.02.2022 and the issues in the matter were
framed on 05.03.2022. The petitioner even filed an application
for framing of an additional issue of territorial jurisdiction,
which was allowed and additional issue was framed.
Thereafter, the respondent even filed his affidavit in evidence
on 04.08.2022. However thereafter, on 20.09.2022, the
petitioner herein filed an application seeking dismissal of the
respondents' complaint under Section 33-A ID Act, which came
to be rightly dismissed vide impugned order as referred to
above.
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Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
15:18:22
6.2. Ld. counsel for the respondent argues that the petitioner
has suppressed the material facts in the present petition that on
the basis of the contentions of the parties, necessary issues with
respect to employer-employee relationship and jurisdiction
have already been framed.
7.0. As noted above, in terms of Section 33 (1), without
permission in writing of the authority, the petitioner could not
have changed the respondent's conditions of
services/terminated his service during pendency of the
proceedings before the Conciliation Officer. There is no bar to
filing of complaint under Section 33-A ID Act before the
Labour Court or Tribunal, if in contravention of Section 33 (1)
ID Act, the conditions of service were changed to the prejudice
of the respondent/workman, during pendency of conciliation
proceedings, as has been done by the petitioner in the present
case. Thus, there is hardly any merit in the argument of the Ld.
Counsel for the petitioner to that effect.
8.0 Further, with respect to the argument of Ld. counsel for
the petitioner that they have even challenged the employer-
employee relationship ; and the jurisdiction of Industrial
Tribunal, suffice it to state that with respect to both these
contentions, issues have already been framed by the Ld.
Industrial Tribunal as under -
"(i) Whether there is relationship of workman-
management exists between the parties? OPW
Additional issue framed vide order dated
04.08.2022 Whether this Tribunal has no
territorial jurisdiction to entertain the application
filed by the claimant u/s 33A of Industrial Disputes
Act, 1947 ? OPM.
8.1. Thus, there is merit in the respondent's argument that the
petitioner could not have raised the same contentions in the
present petition.
9.0. In view of the above, this court finds no merit in the
LPA 704/2023 Page 4 of 12
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Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
15:18:22
present petition. Rather, considering the above facts and
circumstances in entirety, it is clear that this petition is nothing
but an abuse of process of law. The petition is therefore,
dismissed with cost of Rs. 10,000/- to be paid to the
respondent/workman."
8. This Court has carefully gone through the impugned judgment passed
by the learned Single Judge and the undisputed facts of the case reveal that
the workman took shelter under the provisions of the Act by approaching the
Conciliation Officer on 14.07.2016. The services of the workman were
terminated on 05.11.2016, meaning thereby, during the pendency of the
conciliation proceedings in respect of some other dispute raised by the
workman. The workman was later on terminated on 05.11.2016, and
thereafter, the workman approached the Industrial Tribunal under Section
33A of the Act.
9. The brief facts which are necessary for deciding the present LPA are
stated as under:
a) That the respondent joined into the employment of the appellant w.e.f.
08.03.1999 as a Driver. After more than 18 years of continuous services
with the appellant, the respondent raised an industrial dispute regarding
regularization of his services by filing a claim before the learned
Conciliation Officer on 14.07.2016.
b) On 05.11.2016, the respondent was informed that there is no further
need of his services and hence he need not come on duty from the next day
i.e. 06.11.2016. Thus, the appellant terminated the services of the respondent
during the pendency of the aforesaid dispute without any prior permission in
LPA 704/2023 Page 5 of 12
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
15:18:22
gross violation of Section 33(1) of the Act.
c) That the respondent not being well educated and having no legal
knowledge, was under the impression that his grievance regarding
termination will also be dealt with in the dispute of regularization. It was
only later that he came to know that a complaint can also be filed before a
competent Court of law regarding impugned termination though his dispute
regarding regularization is already pending.
d) That the Govt. N.C.T of Delhi vide its Order dated 03.03.2017
referred the dispute of regularization for adjudication to the Industrial
Tribunal as per the following terms of reference:-
"Whether the workman Sh. Uday Chaudhary S/o Sh. S. Dyal
Chaudhary aged-46 years is entitled to be regularized in
service from the initial date of his joining i.e. 08/03/1999 and if
so, to what relief is he entitled and what directions are
necessary in this respect?"
e) The abovementioned reference was numbered LIR 686/17 (new POIT
47/2023). During the pendency of the said dispute before the learned
Tribunal, when the respondent was advised to file a separate complaint
against the termination before the learned Industrial Tribunal, the said
complaint was filed under Section 33A of the Act, which was numbered ID
No. 802/2021. That the Appellant filed reply to the said Complaint. The
learned Tribunal on the basis of the pleadings of the parties in ID No.
802/2021 framed the following issues (appellant has concealed this material
fact) that:
"i) Whether there is relationship of workman-management
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
15:18:22
exists between the parties? OPW
(i) Whether the present dispute is barred by delay and latches?
OPM
(iii) Whether there is appropriate and proper espousal in
favour of the workman? OPW
(iv) As per terms of reference."
It is pertinent to mention that the parties did not press for any other
issue.
f) That to delay the proceedings, the appellant filed an application for
framing an additional issue of territorial jurisdiction, and the respondent in
the interest of early disposal of the application did not file any reply but
opposed the said application on the ground that the appellant did not press
for the issue at the appropriate stage. The learned Tribunal vide order dated
04.08.2022 allowed the application and added the following issue -
"Whether this Tribunal has no territorial jurisdiction to
entertain the application filed by the claimant us 33A of
Industrial Disputes Act, 1947? OPM."
g) Thereafter, the appellant filed another application with the sole
purpose of delaying the proceedings. By way of the said application,
appellant sought dismissal of the Complaint under Section 33A of the Act.
The respondent with the intention of speedy disposal of the case sought to
argue the application and not file a reply to the same, and the learned
Tribunal has dismissed the Application vide order dated 06.07.2023 which is
impugned in the writ petition.
h) The facts further reveal that Respondent has already led his evidence.
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
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Appellant failed to produce their witness, hence their evidence was closed
and now the matter is listed for final arguments on 02.11.2023.
10. The aforesaid facts make it very clear that the appellant organization
has suppressed material facts that issues were framed by the learned
Tribunal in I.D. No.802/2021 regarding employer-employee relationship,
delay, territorial jurisdiction, etc. It has also not been brought to the notice
of this Court by the appellant that the appellant had filed an application for
framing of additional issue in respect of territorial jurisdiction on 04.08.2022
which was allowed vide order dated 04.08.2022. Thereafter, an application
was preferred regarding maintainability on 20.09.2022. Therefore, the
conduct of the appellant establishes that the appellant is delaying the matter
before the Industrial Tribunal on one pretext or the other. The workman -
with no source of income, is fighting for his rights guaranteed under the Act
and the appellant wants him to be thrown-out of the Court on account of
technicalities.
11. The relevant statutory provisions governing the field as contained
under Section 33(1) and Section 33A of the Act are reproduced as under:
"33. Conditions of service, etc., to remain unchanged under
certain circumstances during pendency of proceedings.--
(1) During the pendency of any conciliation proceeding before
a 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
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
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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.
x x x x x x x x x
33A. Special provision for adjudication as to whether
conditions of service, etc., changed during pendency of
proceedings.--Where an employer contravenes the provisions
of section 33 during the pendency of proceedings before a
conciliation officer, Board, an arbitrator, a 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."
12. A reading of the aforesaid statutory provisions makes it very clear that
the service conditions of the workman cannot be changed during the
pendency of the proceedings before the Conciliation Officer, Board or
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
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Labour Court or Tribunal without seeking permission in writing of the
concerned authority before whom the proceedings were pending.
13. The aforesaid statutory provisions also entitle the workman to file a
complaint under Section 33A of the Act, in case the employer acts in
contravention of the statutory provisions as contained under Section 33(1) of
the Act.
14. Keeping in view the statutory provisions governing the field as the
services of the workman in the present case were put to an end by an order
dated 05.11.2016, the workman was certainly entitled to prefer a complaint
under Section 33A of the Act and the application was rightly preferred by
the workman before the Industrial Tribunal. The complaint preferred under
Section 33(1) of the Act is certainly maintainable. (see The Bhavnagar
Municipality Vs. Alibhai Karimbhai & Others, (1977) 2 SCC 350 and
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma &
Others, (2002) 2 SCC 244, and Tops Security Ltd. Vs. Subhash Chander
Jha, ILR (2012) VI DELHI 616).
15. The employer did prefer an application for dismissal of the
proceedings under Section 33A of the Act and the said application was
turned down on 06.07.2023. Not only this, issues were framed in the matter
and the proceedings in respect of the alleged illegal termination were
pending before the Industrial Tribunal.
16. The facts of the case further reveal that on some pretext or the other
the appellant/ employer delayed the proceedings of a poor workman who
was not well-educated and the learned Single Judge - by placing reliance
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.11.2023
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upon a judgment delivered by the Hon'ble Supreme Court in the case of
D.P. Maheshwari Vs. Delhi Administration, (1983) 4 SCC 293, has upheld
the order passed by the Labour Court.
17. In the considered opinion of this Court, keeping in view the peculiar
facts & circumstances of the case, once the workman has been terminated,
the issue of termination has to be looked into by the Industrial Tribunal,
especially in light of the fact that as to whether the employer has violated the
statutory provisions as contained under Section 33(1) of the Act and the
issue has to brought to a logical conclusion. Forcing the workman to go
from one forum to another is not going to serve any purpose rather it will
defeat the statutory provisions. This Court really fails to understand as to
why the employer is not contesting the matter on merits - which relates to
termination of workman, and dragging the workman from Court to Court by
raising technical grounds.
18. This Court has certainly looked into the judgment delivered by the
Punjab & Haryana High Court in Ram Sanjeevan (supra). It is true that the
Punjab & Haryana High Court has held that the application under Section
33A of the Act is maintainable before an authority where the proceedings
are pending, and when the employer contravenes the provisions of Section
33 of the Act. It is true that the learned Single Judge of the Punjab &
Haryana High Court has allowed the writ petition, however, the judgment of
the Punjab & Haryana High Court is having persuasive value. No statutory
provision of law, or any judgment of the Hon'ble Supreme Court, or of a
Coordinate Bench of this Court has been brought to notice of this Court,
deciding the issue involved in the present case. The statutory provision
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ROHELLA
Signing Date:06.11.2023
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governing the field entitles the workman to approach the Tribunal also, in
case the provisions of Section 33(1) of the Act are violated by the employer,
challenging the service conditions during the pendency of proceedings
before the Conciliation Officer.
19. This Court does not find any reason to interfere with the judgment
passed by the learned Single Judge. The Industrial Tribunal is directed to
decide the matter as expeditiously as possible and preferably within six
months from the date of receipt of certified copy of this order.
20. With the aforesaid observations, the LPA stands dismissed.
SATISH CHANDRA SHARMA, CJ
SANJEEV NARULA, J.
OCTOBER 20, 2023 B.S. Rohella LPA 704/2023 Page 12 of 12 Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:06.11.2023 15:18:22