National Federation Of Telecom ... vs Chief General Manager, Telecom ...
2003 Latest Caselaw 1114 Bom

ORDER

R. J. Kochar, J.

1. The petitioner is a Federation of Telecom Employees of the Bharat Sanchar Nigam Ltd. Union registered under the Trade Unions Act, 1926, functioning in the establishment of the respondent No. 1 at Telecom Factory. The petitioner is aggrieved by the impugned decision of the respondent No. 3 refusing to refer the industrial dispute raised by the, petitioner for adjudication under the provisions of the Industrial Disputes Act, 1947 (for short I. D. Act). The petitioner has challenged the said decision of the respondent No. 3 under Article 226 of the Constitution of India and has prayed that the same be quashed and set aside and the dispute be referred for adjudication under Section 10(1)(c) of the I.D. Act.

2. Since the industrial dispute raised by the petitioner concerns a large number of employees of the establishment of the respondent No. 1 and since it only relates to simple demand of the workmen represented by the petitioner that they have raised an industrial dispute which existed and the same should be adjudicated by the Industrial Tribunal under the provisions of the I.D. Act and since the petitioner union had also given a strike notice to protest against the said decision of the respondent No. 1 to withdraw the existing benefit which the workmen/employees were enjoying under the existing circular dated August 1, 1997, we thought it proper to hear and finally dispose of this petition at this stage itself to put at rest the unrest which was created by the impugned circular dated May 8, 2002 withdrawing the benefit enjoyed by the employees and subsequent decision of the Government denying adjudication of their demands. We have, therefore, heard the matter finally by consent of both the parties.

3. The respondent No. 1 has filed his affidavit-in-reply. He has dealt with the dispute on merits inter alia opposing any relief to be granted to the petitioner union. It is clarified that we have refrained ourselves from dealing with the merits of the industrial dispute and have restricted to the relief sought by the petitioner seeking reference of its industrial dispute for adjudication to the Industrial Tribunal under the provisions of the Act. It would be for the adjudicating authority to decide the industrial dispute on the basis ot the evidence and material that would be produced by the authorities in accordance with law.

4. The facts in nutshell are lying in a very narrow compass. It appears that certain benefit in the form of transport allowance was granted to the workmen with effect from August 1, 1997 in accordance with the office memo No. 21 dated October 3, 1997 issued by the Ministry of Finance, Government of India, respondent No. 4. It further appears that the respondent No. 1 by his notice of change dated October 9, 2001 followed by a corrigendum dated October 12, 2001 under Section 9-A of the I.D. Act proposed to implement the order dated September 25, 2001 to withdraw the benefit of transport allowance to the workmen availing the benefit of subsidised departmental bus transport with retrospective effect from August 1, 1997. The petitioner union and the workmen were aggrieved by the said decision of the respondent No. 1 and, therefore, they opposed the same. It appears that as a protest against the said unilateral decision taken by the respondent No. 1, a strike notice dated May 10, 2002 was issued by the petitioner demanding cancellation of the impugned circular dated May 8, 2002 and continuation of transport allowance as was available. Since the establishment of the respondent No. 1 is a public utility undertaking, the respondent No. 2 the Assistant Labour Commissioner intervened in the matter and issued a notice dated May 23, 2002 to the petitioner and the respondent No. 1 informing them that the Conciliation proceedings under Section 12 of the Industrial Disputes Act would he held in his office on May 24, 2002. Pursuant to the commencement of the conciliation proceedings the strike appears to have been averted. It further appears that the petitioner union tried to justify its demand before the conciliation officer. The conciliation proceedings appear to have been abruptly closed by the respondent No. 2 on January 2, 2003. The petitioner addressed a letter to the respondent No. 2, Conciliation Officer, requesting to reopen the conciliation proceedings and to complete the same in accordance with law. The said request turned out to be a futile one as the petitioner received the impugned order dated September 5, 2002 from the appropriate Government declining to refer the industrial dispute for adjudication. The petitioner union is aggrieved by the said order of the respondent No. 3 and, therefore, they are before us seeking two-fold reliefs as stated above. We are not inclined to enter into the controversy between the parties on merits as it would involve question of disputed facts. We are, however, satisfied that the petition deserves to be allowed directing the respondent No. 3 the appropriate Government to refer the dispute for adjudication, as according to us, the industrial dispute does exist between the parties.

5. As already briefly stated above the workmen of the respondent No. 1 were getting certain benefit of transport allowance under the then existing circular on certain terms and conditions. It appears that the respondent No. 1 under the orders of the respondent No. 4 purported to withdraw the said benefits by issuing a notice of change under Section 9-A of the I.D. Act with retrospective effect from August 1, 1997 which meant recovery of the transport allowance already paid to and received by the workmen. The respondent No. 1 purported to enforce the said notice of change after expiry of twenty one days as prescribed. During the ; period of 21 days the concerned workmen had opposed the said change. The petitioner union had also issued a strike notice to protest against the decision of the respondent No. 1 under the orders of respondent No. 4. In view of the timely intervention of the Conciliation Officer under Section 12 of the I.D. Act, the strike in the public utility service of the respondent No. 1 was averted. It further appears that even the workmen and the petitioner being a responsible trade union thought it proper not to go on strike as they expected the Conciliation Officer to complete the conciliation proceedings and they further expected that as a bonafide industrial dispute existed between the parties, the-appropriate Government would refer the same for adjudication under Section 10(1) of the I.D. Act. It further appears that when the Conciliation Officer abruptly closed the conciliation proceedings, the petitioner union and the workmen felt aggrieved by the wrong closing down of the conciliation proceedings instead of completing the conciliation proceedings as contemplated under the provisions of the Act. The request made by the petitioner union to reopen the proceedings met with a failure and the impugned order passed by the respondent No. 3 to refuse to refer the industrial dispute for adjudication. According to us, the simple demand of the workmen for adjudication of their industrial dispute ought to have been granted by the appropriate Government, particularly when, the petitioner and the workmen acted wisely in not going on their proposed strike to protest against the decision of the respondent No. 1. The respondent No. 3, however, did not act properly and wisely and even in accordance with law while refusing to refer the simple demand of the workmen for adjudication of their dispute. The workmen, therefore, definitely felt let down and the union felt deceived by the action of the Conciliation Officer. According to us, whenever the union and the workmen demand for adjudication of their dispute they must be referred for adjudication invariably, unless the dispute is a frivolous, vexatious or mala fide one. If the respondent administration and the governance desire that the workmen should not go on strike or should not resort to trade union actions, the only course open for the workmen is to ventilate their grievance in accordance with law through adjudication. By refusing to refer the dispute for adjudication, the workmen get gagged and the outburst in the form of bandh or strike takes place. In these circumstances we are never justified to criticise or condemn the strikes which take place in the form of protest against the high handed action of the employers including the Government and the Government bodies. We are sure that by and large the workmen and the Government servants do not instantaneously resort to the extreme weapon of strike. They do so only when they are compelled and cornered and when they do not get any relief even for their simple and small demands. By and large they are satisfied if their demands get adjudicated. In the present case, we are more than satisfied that the petitioner and the workmen were fully justified in demanding adjudication of their dispute which arose under the notice of change issued by the respondent No. 1 under Section 9-A of the I.D. Act and the petitioner and the workmen -opposed the said change. The industrial dispute did arise and did exist which according to us ought to have been sent for adjudication. The impugned order of the respondent No. 3 reads as under:

"I am directed to refer to the failure of Conciliation Report No. ALC (C) - 1/8 (102, 104-107/01) dated November 15, 2001 from the ALC (Mumbai) received in this Ministry on March 26, 2002 on the above mentioned subject and to say that prima facie this ministry does not consider the dispute fit for adjudication for the following reasons:

On the orders of the Government, the management has discontinued the payment of transport allowance to the officers, employees and workers who are availing themselves of the subsidised transport facilities being, provided by the management. The management has also served notice under Section 9-A of the I. D. Act, is not maintainable."

The purported reasons stated hereinabove are no reasons but the conclusions of the Desk I Officer of the respondent No. 3. He himself appears to have decided the dispute by adjudicating the same. We fail to understand how an industrial dispute cannot be said to be maintainable when a notice of change is opposed by the workmen as prescribed. We further fail to understand why the Conciliation Officer also abruptly closed the proceedings without completing the same as contemplated by the I.D. Act. Even the appropriate Government ought to have considered the fact that the proposed strike to protest against the decision of the respondent No. 1 was averted in the public utility services of the respondent No. 1. According to us the demand of the workmen and in particular the demands pertaining to a large number of workmen, as is in the present case, should be properly attended to, not only by the employers and the management but also by the State Government or the Central Government as the case may be to ventilate the grievances of the workmen through the appropriate adjudication fora. What the union and the workmen should be assured is of fair trial of their disputes in, accordance with law, so that they are not driven or cornered to resort to illegal and unconstitutional trade union agitations. If, on the one hand we say that the workmen should not go on strike and simultaneously, on the other hand, if we deny the proper access to the adjudication forum for giving an opportunity to them to justify their demands, we can never expect peaceful industrial conditions in the society. If we try to corner the restless cat of the industrial dispute, such a cat is bound to pounce upon the throat of the administration. It is, therefore, always wise for the employer and the Government administration to allow free and easy access to the workmen and the trade unions for settlement of their disputes through the adjudication fora in accordance with law. If we try to gag the workmen from both the ends, we would be inviting bloody and unconstitutional agitations for which we cannot blame the workmen and/or trade unions or the Gov-ernment servants as a class. Let the bloody class struggle be substituted by peaceful and constitutional methods before the adjudication fora. This is the constitutional philosophy of our socialist constitution.

6. In this regard, it will not be out of place if we quote what our late Prime Minister Jawaharlal Nehru, the Architect of modern and socialist India had to state in his letter to the Chief Ministers of all States:

"We have thus far not evolved any adequate machinery for the rapid settlement of the disputes of this type. The Government's way of dealing with such matters is a leisurely way, and months and even years pass sometimes before we come to grips with the problem; a problem which perhaps could have been solved with greater ease, becomes more difficult. Frustration takes place and passions are aroused, and these lead to a conflict which is ultimately good for no one."

7. In the aforesaid circumstances and for the reasons recorded by us hereinabove, we quash I and set aside the impugned order passed by the Desk Officer of the respondent No. 3 and allow the writ petition with the following directions:

(a) Respondent No. 3 is directed to refer the industrial dispute for adjudication to the Industrial Tribunal under the provisions of I. D. Act within a period of eight weeks from today;

(b) The Industrial Tribunal shall decide the industrial dispute referred to it as expeditiously as possible;

(c) The respondent No. 1 shall not recover the amounts from the workmen who have already received the benefits under the impugned circular until further orders of the Tribunal;

(d) If the workmen succeed before the Tribunal they would be entitled to get the arrears as per the final orders of the Tribunal.