Rajendra S/O Dwarkanath Bakre vs Asstt. Labour Commissioner ...
2023 Latest Caselaw 928 Bom

WP 1838-18                                    1                        Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.

                     WRIT PETITION NO. 1838/2018

Rajendra s/o Dwarkanath Bakre, aged 50 years,
Occupation : Nil, Resident of Samarth Apartments,
48 Ramkrishna Nagar, Khamla, Nagpur - 440 025.                      PETITIONER

                               .....VERSUS.....

1.   Asstt. Labour Commissioner (Central), Nagpur,
     First Floor, Block C, C.G.O. Complex,
     Seminary Hills, Nagpur - 440 006.
2.   Bank of India, through its Asstt. General Manager,
     Nagpur, Zonal Office Vidarbha Zone, Bank of India,
     S.V. Patel Road, Nagpur - 440 001.                         RESPONDENT S

                           The petitioner in person.
              Shri A.T. Purohit, counsel for the respondent no.2.



CORAM : A. S. CHANDURKAR AND MRS.VRUSHALI V. JOSHI, JJ.

DATE     : JANUARY 30, 2023.

ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

             RULE.     Rule made returnable forthwith and heard the

petitioner in person and Shri A.T. Purohit, learned counsel for the

respondent no.2.

The petitioner seeks a declaration that the order of dismissal

dated 01.10.2015 having been passed by the respondent no.2-Bank of

India in breach of Section 33(1)(b) of the Industrial Disputes Act, 1947

(for short, 'the Act of 1947') is void ab initio and the petitioner be treated

to be in continuous service.

WP 1838-18 2 Judgment

2. The facts giving rise to the present proceedings are that on

20.01.1984 the petitioner came to be appointed in the clerical cadre of the

Bank. His services however came to be terminated by an order dated

12.02.1991. Being aggrieved the petitioner challenged the aforesaid order

of termination by initiating proceedings before the Central Government

Industrial Tribunal. By the judgment dated 07.11.2012 the Tribunal set

aside the order of termination and after declaring it to be illegal, ordered

reinstatement of the petitioner alongwith continuity in service and all

consequential benefits. The services of the petitioner were reinstated on

02.12.2013. According to the petitioner the Bank intended to harass the

petitioner and thus created false records of his absence and sought to treat

the same as unauthorized absence. The petitioner therefore approached the

Assistant Labour Commissioner raising a grievance in that regard. Accordingly

on 10.12.2014 the Assistant Labour Commissioner initiated conciliation

proceedings in that regard. During pendency of those proceedings the Bank

on 01.10.2015 issued a punishment order and dismissed the services of the

petitioner for acts of misconduct. The charges levelled were unauthorized

absence, insubordination and making false complaints against the Bank. On

the same day, the petitioner approached the Assistant Labour Commissioner

and submitted an addendum to the complaint that was pending under

Section 33A of the Act of 1947. The Assistant Labour Commissioner on

26.10.2015 refused to take cognizance of the subsequent grievance of the WP 1838-18 3 Judgment

petitioner as regards violation of Section 33-A of the Act of 1947 on the

ground that the representation had not been filed through a Registered

Trade Union. The petitioner being aggrieved by the aforesaid response

filed Writ Petition No. 695 of 2016 challenging the same. By the order dated

24.03.2017 this Court held that the communication dated 26.10.2015

issued by the Assistant Labour Commissioner was unsustainable and that

the same had been issued by ignoring the provisions of Section 33-A of the

Act of 1947. The petitioners representation was restored and a direction

was issued to transfer the said proceedings to some other Officer, equal in

rank to enable consideration of the same in an unbiased manner. The writ

petition was allowed by imposing costs of Rupees Three Thousand on the

Assistant Labour Commissioner. The proceedings were then transferred

from the Assistant Labour Commissioner, Chandrapur to the Office of the

Assistant Labour Commissioner, Nagpur. On 03.11.2017 the Assistant

Labour Commissioner recorded failure of the conciliation proceedings and

forwarded the failure of conciliation report to the Appropriate Government.

This failure report was received by the Appropriate Government on

23.11.2017. The petitioner then filed Civil Application (W) No. 2629 of

2017 in Writ Petition No. 695 of 2016 raising a grievance in that regard.

This Court observed that such grievance was required to be made in a fresh

petition and hence did not entertain the civil application. In that backdrop

this writ petition has been filed on 27.02.2018 seeking a declaration that WP 1838-18 4 Judgment

the order of dismissal dated 01.10.2015 having been issued during

pendency of the conciliation proceedings the same was null and void thus

entitling the petitioner to seek necessary relief.

3. The petitioner in person referred to the facts on record and

submitted that the Assistant Labour Commissioner, Chandrapur had

initiated the proceedings for conciliation on 10.12.2014. It was an

admitted fact that the said conciliation proceedings were pending when the

order of dismissal dated 01.10.2015 came to be issued. The fact that such

conciliation proceedings had been initiated on 10.12.2014 was admitted by

the Bank in paragraph 2 of its reply. Since the Bank issued the order of

dismissal the petitioner in person had on the same day made a complaint

to the Assistant Labour Commissioner alleging breach of the provisions of

Section 33-A of the Act of 1947. This Court while deciding Writ Petition

No. 695 of 2016 had clearly observed that while disposing of the said

complaint on 26.10.2015 the Assistant Labour Commissioner had failed to

take into consideration the provisions of Section 33-A of the Act of 1947.

As a consequence the conciliation proceedings that were pending stood

transferred to the Office of the Assistant Labour Commissioner, Nagpur and

the same resulted in failure report on 03.11.2017. It was submitted that

till the date the failure report was received by the Appropriate Government

the conciliation proceedings could not be treated to have been concluded WP 1838-18 5 Judgment

in the light of the provisions of Section 20(2)(b) of the Act of 1947.

Referring to the information supplied by the Appropriate Government

under the provisions of the Right to Information Act, 2005 dated

05.02.2018 the petitioner in person submitted that the failure of

conciliation report was received by the Appropriate Government on

23.11.2017. Thus, the conciliation proceedings that were initiated on

10.12.2014 were pending when the order of dismissal dated 01.10.2015

came to be issued. The Bank did not seek any permission of the Assistant

Labour Commissioner before seeking to change the conditions of service of

the petitioner. In other words, the order of dismissal dated 01.10.2015

was passed without complying with the provisions of Section 33(1) of the

Act of 1947. As a result the consequence provided would follow and the

order of dismissal dated 01.10.2015 ought to be treated as null and void.

In that regard the petitioner in person relied upon the judgment of the

Constitution Bench in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Versus

Ram Gopal Sharma & Others [(2002) 2 SCC 244], M/s Lokmat

Newspapers Pvt. Ltd. Versus Shankarprasad [AIR 1999 SC 2423] as well

as the decisions in Bajaj Auto Limited Versus Rajendra Kumar Jagannath

Kathar & Others [(2013) 6 SCR 301] and Bhilwara Dugdh Utpadak

Sahakari S. Ltd. Versus Vinod Kumar Sharma Dead by Lrs. & Others

[(2011) 10 SCR 819]. It was thus submitted that the petitioner was

entitled for the reliefs prayed for in the writ petition.

WP 1838-18 6 Judgment

4. Shri A.T. Purohit, learned counsel for the Bank opposed the

aforesaid submissions. According to him the petitioner had initially filed a

representation dated 22.09.2014 with regard to non-payment of wages.

Cognizance of that complaint was taken and the proceedings were initiated

by the Assistant Labour Commissioner. The Assistant Labour

Commissioner considered the reply of the Bank and thereafter observed

that the petitioner may raise a dispute through a Registered Trade Union

against the order of the Disciplinary Authority. By concluding the

proceedings on 23.09.2015 on that count the Assistant Labour

Commissioner, Chandrapur treated the matter as closed. It was therefore

necessary for the petitioner to have filed a fresh grievance since the order

of dismissal was dated 01.10.2015. Instead of doing so the petitioner filed

an addendum under Section 33-A of the Act of 1947 which was held to be

not maintainable by the Assistant Labour Commissioner on 26.10.2015. It

was in that backdrop that the said order was challenged in Writ Petition

No. 695 of 2016. Notwithstanding the order dated 23.09.2015 the

petitioner failed to file a fresh grievance seeking to challenge the order of

dismissal dated 01.10.2015. For that reason it could not be said that there

was any breach of Section 33-A of the Act of 1947 in view of the fact that

the conciliation proceedings had been treated to be closed on 23.09.2015.

The petitioner had received such communication from the Office of the

Assistant Labour Commissioner and hence there was no substance in the WP 1838-18 7 Judgment

stand taken by the petitioner that the order of dismissal was null and void

having been passed in violation of Section 33(1) of the Act of 1947. It was

thus submitted that the writ petition was liable to be dismissed.

5. We have heard the rival submissions and we have also gone

through the documents placed on record. After giving due consideration to

the contentions as urged, it would be necessary to consider the following

aspects :-

(a) Whether the conciliation proceedings initiated on 10.12.2014 stood concluded on 23.09.2015 as held by the Assistant Labour Commissioner or whether the same are required to be treated as concluded only on 23.11.2017 when the failure of conciliation report was received by the Appropriate Government?

(b) Whether the conciliation proceedings were pending on 01.10.2015 when the order of dismissal came to be issued by the Bank ?

(c) If the order of dismissal dated 01.10.2015 is found to be in violation of Section 33(1)(b) of the Act of 1947, what is the effect thereof ?

6. AS TO POINT (a) :- The facts on record indicate that the

petitioner had initially filed a representation on 22.09.2014 alleging WP 1838-18 8 Judgment

commission of an unfair labour practice by not paying him wages.

According to the petitioner by treating his absence as unauthorized he was

not being paid his wages. Acting on the representation of the petitioner the

Assistant Labour Commissioner on 14.10.2014 issued notice to both the

parties. The Bank submitted its reply and took stand that despite his

reinstatement on 02.02.2013 pursuant to the award passed by the Central

Government Industrial Tribunal on 07.11.2012, the petitioner was not

reporting for duty regularly. Hence disciplinary action was initiated for the

alleged misconduct and the said proceedings were pending. It is on that

basis that on 23.09.2015 the Assistant Labour Commissioner, Chandrapur

treated the proceedings as closed on that day. It was observed that the

petitioner could raise a dispute through a Registered Trade Union against

the order of the Disciplinary Authority. On 01.10.2015 the Bank passed a

punishment order based on the disciplinary proceedings initiated by it for

acts of misconduct. On the same day the petitioner approached the

Assistant Labour Commissioner raising a grievance that he had been

dismissed from service during pendency of the conciliation proceedings.

This amounted to violation of Section 33-A of the Act of 1947. The

Assistant Labour Commissioner however on 26.10.2015 did not consider

the said representation on the ground that it was required to be filed

through a Registered Trade Union of the Bank. As stated earlier, this order

was set aside by this Court in Writ Petition No. 695 of 2016 and the WP 1838-18 9 Judgment

petitioner's representation/ application was restored and the proceedings

were directed to be transferred to another Officer equal in rank. Pursuant

to this order, the proceedings were transferred to the Assistant Labour

Commissioner, Nagpur.

7. In the light of the observations of the Assistant Labour

Commissioner on 23.09.2015 that the conciliation proceedings had

concluded and were thus closed, it would be necessary to consider the

legal effect thereof. It has not been shown by the Bank that the aforesaid

order of the Assistant Labour Commissioner holding the proceedings to be

concluded was communicated to the Appropriate Government as required

by the provisions of Section 20(2)(b) of the Act of 1947. As per the said

provision when there is no settlement arrived at in the conciliation

proceedings the same would be deemed to have concluded only when the

report of the Conciliation Officer is received by the Appropriate

Government or the report of the Board is published under Section 17 of the

Act of 1947. Reference in this regard can be made to the decision of the

Hon'ble Supreme Court in Andheri Marol Kurla Bus Service & Another

Versus The State of Bombay [AIR 1959 SC 841] wherein the question as

to when conciliation proceedings could be said to have concluded was

considered. It was held that though under Section 12 of the Act of 1947 it

is the duty of the Conciliation Officer to submit his report within fourteen WP 1838-18 10 Judgment

days of commencement of the conciliation proceedings, such proceedings

do not come to an end after fourteen days but only when the report of the

Conciliation Officer is received by the Appropriate Government when there

is no settlement in view of the provisions of Section 20(2)(b) of the Act of

1947. Since the report dated 23.09.2015 has not been shown to have sent

to the Appropriate Government as required by Section 20(2)(b) it will have

to be held that the said conciliation proceedings are not deemed to have

concluded and the same were pending till the failure report was received

by the Appropriate Government. It is an admitted fact that the conciliation

proceedings were initiated on 10.12.2014 and in view of the order dated

24.03.2017 passed in Writ Petition No. 695 of 2016 the said proceedings

were transferred to the Assistant Labour Commissioner, Nagpur.

In M/s Lokmat Newspapers Pvt. Ltd. (supra), the Hon'ble

Supreme Court in clear terms held that until the failure report reaches the

Appropriate Government, the conciliation proceedings cannot be said to have

terminated. The breach of Section 33(1) would attract the penal liability under

Section 31(1) of the Act of 1947. It is not in dispute that the failure report

that was sent by the Assistant Labour Commissioner, Nagpur on 03.11.2017

was received by the Appropriate Government on 23.11.2017. It is thus held

that the conciliation proceedings initiated on 10.12.2014 stood concluded

only on 23.11.2017 when the failure report was received by the

Appropriate Government in terms of Section 20(2)(b) of the Act of 1947.

WP 1838-18 11 Judgment

8. AS TO POINT (b) :- Since it has been found that the conciliation

proceedings that were initiated on 10.12.2014 are deemed to have concluded

only on 23.11.2017 it is obvious that the punishment order dated 01.10.2015

has been issued during the pendency of the conciliation proceedings. In

this regard it is to be noted that the petitioner approached the Conciliation

Officer with a grievance dated 22.09.2014 that he was being treated as

absent from duty thus resulting in non-payment of his wages. Cognizance

of that grievance was taken by initiating the conciliation proceedings on

10.12.2014. The Bank proceeded to initiate disciplinary action against the

petitioner on various charges including his habitual unauthorized absence

from 28.01.2014 intermittently till 24.12.2014. The other charges pertained

to insubordination, making of false complaint and failure to intimate his

local address at Chandrapur. In the said proceedings the Enquiry Officer was

appointed on 09.01.2015 after which the Enquiry Officer submitted his report

on 16.04.2015 holding the charges to be proved. After calling for the say

of the petitioner on 23.05.2015 the Disciplinary Authority imposed the

punishment of dismissal on 01.10.2015. Considering the charges levelled

against the petitioner which included a charge of unauthorized absence it

can be stated that the enquiry was held for an alleged misconduct that was

connected with the dispute raised by the petitioner through his initial

representation dated 22.09.2014. As noted above, this initial grievance was

with regard to he being shown absent resulting in an unfair labour practice.

WP 1838-18 12 Judgment

Under Section 33(1)(b) of the Act of 1947 an employer can

only with the express permission in writing of the Conciliation Officer

punish a workman for any misconduct connected with the dispute. In

other words if the employer desires to alter the conditions of service during

pendency of the conciliation proceedings or for that matter proceed to

punish him for any misconduct connected with the dispute the same can be

done only after obtaining the permission of the Conciliation Officer in

writing. It is not the case of the Bank that it had obtained such permission

from the Conciliation Officer before issuing the order of dismissal on

01.10.2015. On the contrary, it is the stand of the Bank that the order of

dismissal dated 01.10.2015 having given rise to a fresh cause of action it

was not necessary for it to obtain any such permission of the Conciliation

Officer for the reason that the proceedings initiated were concluded by the

Assistant Labour Commissioner, Chandrapur on 23.09.2015. It is thus

apparent that the order of dismissal dated 01.10.2015 falls foul of the

provisions of Section 33(1)(b) of the Act of 1947 for want of express

permission in writing of the Conciliation Officer before whom the

conciliation proceedings were pending. The petitioner in person is justified

in relying upon the judgment of the Constitution Bench in Jaipur Zila

Sahakari Bhoomi Vikas Bank Ltd. (supra) wherein it has been held that

though an order of dismissal passed by invoking Section 33(2)(b) would

bring an end to the relationship of employer and employee from the date WP 1838-18 13 Judgment

of dismissal that order remains incomplete and inchoate as it is subject to

approval of the Authority under the said provision. If the approval is not

given nothing further is required to be done by the employee as it will have

to be deemed that the order of discharge or dismissal had never been

passed. The consequence of not making such application under Section

33(2)(b) has also been referred to. It is thus clear from the aforesaid that

the Bank having failed to seek permission of the Conciliation Officer before

proceeding to issue the punishment order the same has resulted in breach

of Section 33(1)(b) of the Act of 1947.

9. AS TO POINT (c) :- It thus becomes clear from the

aforesaid that the order of dismissal dated 01.10.2015 has been passed

without seeking permission of the Conciliation Officer before whom the

conciliation proceedings were pending. The said dismissal order therefore

is in contravention of Section 33(1)(b) of the Act of 1947. Such an order

has been held to be invalid or void in Jaipur Zila Sahakari Bhoomi Vikas

Bank Ltd. (supra). It has been stated that the employee would be deemed

to have continued in service entitling him to all benefits available and there

is no need of a specific order for his reinstatement. We thus find that the

order of dismissal dated 01.10.2015 has to be treated as invalid and void

for the reason that it has been passed in breach of Section 33(1)(b) of the

Act of 1947. The conciliation proceedings initiated on 10.12.2014 were WP 1838-18 14 Judgment

pending when the order of dismissal dated 01.10.2015 came to be passed.

The Bank did not seek approval of the Conciliation Officer despite the fact

that the conciliation proceedings were pending. The failure report was

received by the Appropriate Government on 23.11.2017 which makes it

clear that the conciliation proceedings were pending till that date in view

of Section 20(2)(b) of the Act of 1947. Consequently, the petitioner would

be entitled to the reliefs flowing from the voidness of the order of

dismissal.

10. For aforesaid reasons, it is held that the dismissal order dated

01.10.2015 issued by the Bank is void as it has been issued in breach of

Section 33(1)(b) of the Act of 1947. As a consequence thereof it is held

that there was no order of dismissal issued by the Bank resulting in the

petitioner continuing in service as before. The petitioner is held entitled to

all benefits flowing from the aforesaid declaration.

11. Accordingly, the writ petition is allowed. Rule is made

absolute in aforesaid terms with costs.

       (MRS.VRUSHALI V. JOSHI, J.)             (A.S. CHANDURKAR, J.)


APTE
                                                         Signed By: Digitally signed
                                                         byROHIT DATTATRAYA
                                                         APTE
                                                         Signing Date:31.01.2023 17:33