Letters Patent Appeal No.355 of 2011,Writ Petition No.3535 of 2011

3rd April, 2012

Petitioner Counsel: Mr. V.R. THAKUR
Respondent Counsel: Mr. V.P. MARPAKWAR, Mr. T.R. KANKALE

Cases Cited:
Automobile Products of India Vs. Rukmaji Bais & oth., AIR 1955 SC 258 [Para 10]
Mah. General Kamgar Union Vs. P.T. Ltd., 2011(2) ALL MR 657=2011 (1) Mh.L.J. 601 [Para 10]

JUDGMENT

SMT. VASANTI A. NAIK, J. :- The appellant-Company is a manufacturer of luggage and apart from its industrial undertaking at Nagpur, it has two manufacturing units, one at Sinnar, District Nasik and the other at Haridwar, Uttarakhand. The workmen in the Nagpur plant of the appellant-Company are represented by the first respondent-the recognized Union and their conditions of service are governed by the terms of the appointment letter as well as the terms settled by the management and the first respondent-Union. The last settlement governing the conditions of service of the workmen ended on 31.12.2010 and the respondent-Union gave a fresh charter of demands. Nothing happened in the matter for a long time and the respondent-Union approached the Conciliation Officer under the provisions of the Industrial Disputes Act. The Conciliation Officer issued a notice to the appellant-Company on 18.03.2011. The meetings before the Conciliation Officer were held on 24.03.2011, 16.05.2011, 31.05.2011, 14.06.2011 and 30.06.2011.

2. The appellant-Company was carrying on the operatios of manufacturing on job work basis at the Nagpur plant in view of a contract between the appellant-Company and a company named B.P. Ergo Limited (hereinafter referred to as 'B.P.E.L.' for the sake of brevity). It is the case of the appellants that B.P.E.L. was not interested in renewing the contract with the appellant and after some persuasion by the appellant-Company, a contract was signed by the appellant-Company and B.P.E.L. but, the renewed contract curtailed the scope of the original contract in the sense that lesser job work was required to be performed by the appellant-Company. The appellant-Company wanted to protect all the 216 employees working at the Nagpur plant but, it could not do so in view of the curtailment of the contract by B.P.E.L. Only 76 workmen could be utilized by the appellant-Company for the job work in Nagpur plant and for about 140 employees, there was no work. In this background, it is the case of the appellant-Company that the company desired to transfer 90 employees to Sinnar, Nasik District and 50 to Haridwar (Uttarakhand), where the appellant-Company had its units. The transfer orders were issued on 14.07.2011. The employees were relieved on 15.07.2011 and the appellant-Company granted time to the employees to report at Sinnar and Haridwar till 31st of July. After the transfers were effected, an application was filed by the respondent no.1-Union before the Conciliation Officer under the provisions of the Industrial Disputes Act seeking appropriate action against the appellant-Company for breach of the provisions of Section 33 of the Industrial Disputes Act. The application was moved by the respondent-Union on 16.07.2011 and after serving a copy of the same on the appellant-Company, the Conciliation Officer fixed the meeting on 19.07.2011. On 19.07.2011, the appellant-Company filed the reply and the first meeting of conciliation was fixed on 26.07.2011. According to the appellant-Company though the matter was fixed before the Conciliation Officer on 26.07.2011, the appellant-Company was surprised to come across a stay order passed by the Conciliation Officer on 21.07.2011 staying the order transferring the employees from Nagpur to Sinnar and Haridwar. The order passed by the Conciliation Officer during the conciliation proceedings on 21.07.2011 was challenged by the petitioner in Writ Petition No.3535/2011. The learned Single Judge, however, by the order dated 09.08.2011, was pleased to dismiss the writ petition.

3. The order passed by the Conciliation Officer is challenged in this appeal on several grounds. According to the appellant, the order transferring the 140 employees was not passed during the pendency of the conciliation proceedings and, therefore, the Conciliation Officer did not have jurisdiction to entertain the application filed by the respondent no.1-Union under Section 33-A of the Industrial Disputes Act. According to the appellant Company, the conciliation proceedings commenced on 19.07.2011 when the demands of the respondent no.1 were admitted and the notice was issued to the appellant-Company under Rule 11 of the Industrial Disputes (Bombay) Rules, 1957. It is the case of the appellant-Company that the meetings held before 19.07.2011 were pre-conciliation meetings and, hence, it cannot be said that the appellant-Company had transferred the employees during the pendency of the conciliation proceedings by the order dated 14.07.2011.

4. It is submitted that assuming that the conciliation proceedings were pending before the conciliation officer on 14.07.2011, i.e. the date on which the 140 employees were transferred, the conciliation officer did not have jurisdiction to stay the transfer orders as under the provisions of Section 33-A of the Industrial Disputes Act, the Conciliation Officer is not empowered to adjudicate the complaint. It is submitted that under the provisions of Section 33-A(b) of the Industrial Disputes Act, only an Arbitrator, a Labour Court, a Tribunal or a National Tribunal is empowered to adjudicate upon the complaint as if it were a dispute referred to or pending before it. The learned counsel for the appellants submitted that Section 33-A of the Act clearly demarcates the power of the authorities and the Conciliation Officer was not justified in staying the orders of transfer by the order dated 21.07.2011. According to the learned counsel for the appellant, the order passed by the Conciliation Officer on 21.07.2011 suffers from a jurisdictional error and the same was liable to be interfered with, in exercise of the writ jurisdiction.

5. It is then canvased on behalf of the appellant that the Conciliation Officer had not granted a reasonable opportunity to the appellant of being heard before passing the order dated 21.07.2011. It is the case of the appellant that the appellant had filed a reply to the application under Section 33-A of the Act on 19.07.2011 and though the matter was fixed for the first meeting of conciliation on 26.07.2011, the Conciliation Officer passed the order behind the back of the appellant on 21.07.2011 and stayed the transfer orders. It is lastly submitted on behalf of the appellant that transferability being a condition of service transferring 140 employees from Nagpur to Sinnar and Haridwar did not amount to change in the conditions of service, thereby attracting the provisions of Section 33 of the Industrial Disputes Act.

6. The respondent no.1, on the other hand, supported the order passed by the Conciliation Officer and submitted that the case of the appellant that the proceedings held before 19.07.2011 were pre-conciliation proceedings and not conciliation proceedings is incorrect. According to the learned counsel, Section 2(e) of the Industrial Disputes Act, defines Conciliation proceedings to mean any proceedings held by a Conciliation Officer or Board under the Act and the provision does not speak of pre-conciliation or post conciliation proceedings. It is the case of the respondent no.1 that the notice under Rule 11 of the Bombay Industrial Court Rules was issued to the appellant-Company as early as on 18.03.2011 and, hence, it cannot be said that the proceedings held prior to 19.07.2011 were pre-conciliation proceedings. It is submitted on behalf of respondent No.1 that in view of the provisions of Section 2(e) of the Industrial Disputes Act and in view of the fact that a notice was indeed issued to the appellant company on 18.03.2011 under Section 11 of the Bombay Industrial Court Rules, it cannot be said that the conciliation proceedings had not commenced and were at the pre-conciliation stage.

7. It is submitted on behalf of the respondent No.1 that the Conciliation Officer is entitled to entertain a complaint under Section 33-A(a) of the Industrial Disputes Act and is further entitled to investigate it in accordance with the provisions of Rule 65 of the Bombay Industrial Court Rules. According to the counsel for the respondent No.1, since the order transferring the 140 employees was passed during the pendency of the conciliation proceedings on 14.07.2011 and since the transfer was not in accordance with the conditions of service, the Conciliation Officer was justified in passing the order staying the transfer.

8. According to the learned counsel for the respondent No.1, by the transfer of 140 employees the Conditions of Service were definitely changed during the pendency of the Conciliation proceedings as though the 140 employees were doing the work of manufacturing of furniture in the Nagpur Unit of the company, they were expected to manufacture luggage at the units at Sinnar & Haridwar. The counsel for the respondent No.1 sought for the dismissal of the appeal.

9. Shri Kankale, the learned Assistant Government Pleader appearing on behalf of the Conciliation Officer supported the order dated 21.07.2011 and submitted that the order was rightly passed under the provisions of Section 33-A of the Industrial Disputes Act. The learned Assistant Government Pleader disputed that the Conciliation Officer had no jurisdiction to adjudicate the complaint filed under the provisions of Section 33-A of the Act. It is submitted that the conciliation proceedings had commenced prior to the transfer of the employees on 14.07.2011 and hence, the order of transfer of the employees was rightly stayed by the Conciliation Officer by the order dated 21.07.2011.

10. Though, more than a couple of issues arise for determination in this appeal, it would not be necessary to consider all the issues if this Court finds that the Conciliation Officer did not have jurisdiction to stay the transfer order. Hence, it would be necessary to consider whether the Conciliation Officer indeed had jurisdiction to adjudicate the complaint filed by the respondent No.1 and stay the transfer order dated 14.07.2011. While considering this issue, it would be necessary to consider some of the provisions of the Act. Section 4 of the Act provides for the appointment of the Conciliation Officers, charged with the duty of mediating in and promoting the settlement of industrial disputes. Section 11 of the Act stipulates the procedure and powers of the Conciliation Officers. The duties of the Conciliation Officers are enumerated in Section 12 of the Industrial Disputes Act. It appears from a reading of Sections 4, 11 and 12 of the Act that the Conciliation Officer is appointed for the purpose of mediating in and promoting the settlement of the industrial disputes. For the purpose of bringing about the settlement of the dispute, the Conciliation Officer is empowered to investigate the dispute and do all such things as he thinks fit for the purpose of inducing a party to come to a fair and amicable settlement. Under the provisions of Section 33 of the Act, the Conciliation Officer is empowered to grant permission to the employer in writing to alter the conditions of service applicable to the parties before commencement of the conciliation proceedings and discharge of workman concerned in the dispute. Section 33-A of the Act provides that an employee aggrieved by the contravention of the provisions of Section 33 may make a complaint in writing, to the Conciliation Officer or Board and the Conciliation Officer is expected to take such a complaint into account in mediating and promoting the settlement of the industrial dispute. The provisions of Section 33-A(b) of the Act speak of a complaint by an employee aggrieved by the contravention of Section 33 to an Arbitrator, Labour Court, Tribunal or National Tribunal and empower these authorities to adjudicate upon the complaint as if it were a dispute referred to or pending before it. Under Section 33-A(b) of the Act, the Labour Court, Tribunal or National Tribunal is empowered to pass an award after adjudicating the complaint pending before it. There is a clear distinction between the provisions of Section 33-A(a) and Section 33-A(b) of the Industrial Disputes Act. Section 33-A(a) does not give any adjudicatory power to the Conciliation Officer and provides that the Conciliation Officer shall take the complaint filed by the employee into account while mediating in and promoting the settlement of the industrial dispute, whereas, Section 33-A(b) of the Act empowers the Arbitrator, Labour Court, Tribunal, or National Tribunal to adjudicate upon the complaint pending before it in accordance with the provisions of the Industrial Disputes Act and also pass an award therein. It is, thus, clear from the provisions of Section 33-A that though the arbitrator, Labour Court, Tribunal, or National Tribunal is empowered to adjudicate upon the complaint as if it were a dispute the Conciliation Officer is not empowered to adjudicate upon the complaint. The Conciliation Officer is only empowered to consider the complaint and take it into account while mediating in and promoting the settlement of the industrial dispute. The provisions of the Industrial Disputes Act, specially the provisions of Section 33-A, do not empower the Conciliation Officer to adjudicate the complaint filed by the employee for the alleged contravention of the provisions of Section 33 of the Industrial Disputes Act by the employer. It would be necessary to refer to the decisions relied on by the learned counsel for the appellant in this regard.

The Hon'ble Supreme Court in Automobile Products of India Vs. Rukmaji Bais & oth., reported in AIR 1955 SC 258, while considering the provisions of Section 33 and 33-A of the Industrial Disputes Act, observed thus :

"There is no reason to think that the Legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in S. 33-A of the 1947 Act or S. 23 of the 1950 Act.

There is no machinery provided in S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban. .."

A Division Bench of this Court has in the judgment in Mah. General Kamgar Union Vs. P.T. Ltd., reported in 2011 (1) Mh.L.J. 601 : [2011(2) ALL MR 657] observed that, on a plain reading of clause (a) of Section 33-A, it is clear that the said clause does not confer any power of adjudication on a Conciliation Officer and therefore, to interfere with the action of an employer. The Court went on to add that the Conciliation Officer is entitled only to take into account a complaint made by the employee while mediating in and promoting the settlement of the industrial disputes.

11. There is nothing in the provisions of Rule 65 of the Industrial Disputes (Bombay Rules) 1957 to hold that the Conciliation Officer is empowered to adjudicate the complaint received under Section 33-A of the Act. In fact, Rule 65 of the Rules merely speaks of the issuance of a show cause notice by the Conciliation Officer on the receipt of an application under Section 33 of the Industrial Disputes Act for express permission in writing before taking action contemplated by the provisions of Section 33-A(1)(a) and (b) of the Act. The submission made on behalf of the respondent No.1 that Rule 65 shows that the Conciliation Officer is empowered to adjudicate the dispute is not well founded and is liable to be rejected. Since it is clear from the reading of the provisions of the Act and the Rules that the Conciliation Officer is mainly charged with the duty of mediating in and promoting the settlement of the industrial disputes and is not empowered to adjudicate the dispute, the Conciliation Officer could not have adjudicated the complaint filed by the respondent No.1 under Section 33-A(a) of the Act. Consequently, the Conciliation Officer could not have stayed the order transferring the 140 employees from the company's unit at Nagpur to Sinnar and Haridwar. Since the order dated 21.07.2011 suffers from a jurisdictional error, the same is liable to be set aside.

12. For the reasons aforesaid, the letters patent appeal is allowed. The orders passed by the Conciliation Officer and the learned Single Judge are hereby set aside. In the facts of the case there would be no order as to costs.

Appeal allowed.