Associated Cement Companies ... vs Union Of India (Uoi), Through Its ...
2004 Latest Caselaw 785 Del

JUDGMENT

Madan B. Lokur, J.

1. The grievance in the writ petition is against an order dated 1st January, 2002 passed by the Government of India whereby, in exercise of powers conferred by Section 7B of the Industrial Disputes Act, 1947 (the Act), a National Industrial Tribunal (NIT) was constituted and in purported exercise of powers conferred by Section 33B of the Act, a reference pending between the parties before the Central Government Industrial Tribunal, New Delhi (CGIT) was transferred to the NIT for adjudication.

2. On 2nd August, 2004, after arguments were concluded in the case, Rule was issued in the writ petition.

3. In so far as the present application for stay is concerned, an order was passed on 18th March, 2002 to the effect that the NIT shall not pass a final order. This order was modified on 24th September, 2002 permitting the NIT to pass an interim Award.

4. Learned counsel for the Petitioner has urged three contentions:- firstly, before transferring the case from the CGIT to the NIT, the Petitioner should have been given a hearing; secondly, the reference pending before the CGIT has been substantially modified and it is not a simple case of transferring a reference to the NIT; and thirdly, a pending reference could have been transferred from one CGIT to another CGIT, as provided in Section 33B of the Act but it could not have been transferred from the CGIT to the NIT.

5. In so far as the first contention is concerned, it does appear that learned counsel for the Petitioner is correct. In Management of M/s M.S. Nally Bharat Engineering Co. Ltd. vs. State of Bihar and Ors., , the scope of Section 33B of the Act was considered by the Supreme Court. In paragraph 9 of the Report, the Supreme Court noted that the key question for consideration is whether the Government, before accepting a representation of the workmen and transferring a case from one Labour Court to another, should have given an opportunity to the management.

6. While answering this question in the affirmative, the Supreme Court noticed that the Punjab High Court in Workman of Punjab Worsted Spinning Mills, Chheharta vs. State of Punjab, (1965) 2 LLJ 218 and the Madras High Court in Management of Sri Rani Lakshmi Ginning and Weaving Mills (P) Ltd. vs. State of Madras, (1975) 30 FLR 166 had held that the power to transfer a pending case under Section 33B of the Act is not a mere administrative power but a quasi-judicial power and the appropriate Government cannot transfer a case on the basis of an allegation of one party without giving a reasonable opportunity to the other party to present its point of view. On the other hand, the High Courts of Calcutta, Andhra Pradesh and Allahabad in Jay Engineering Works Ltd. vs. Fourth Industrial Tribunal, Calcutta, 1977 Lab IC 1739, Muthe Steels (India) Ltd. vs. Additional Labour Court, Hyderabad, 1979 Lab IC 325 and Pioneer Ltd. vs. Labour Court, Gorakhpur, 1983 Lab IC 335 had taken a contrary view.

7. After discussing the law laid down in a large number of decisions earlier rendered by it, the Supreme Court held in paragraph 24 of the Report that the State ought to have, in all fairness, given an opportunity to the management which is a party to the pending reference. Denial of that opportunity is a fatal flaw to the decision of the appropriate Government to transfer the case.

8. Under the circumstances, there does appear to be considerable substance in the contention of learned counsel for the Petitioner.

9. The decision of the Supreme Court mentioned above has been followed by a learned Single Judge of this Court in Shishupal Singh Chauhan vs. Secretary (Labour), Govt. of NCT of Delhi and Ors., 1999-III-LLJ (Supp.) 857.

10. As regards the second submission made by learned counsel for the Petitioner, it may be noted that the question that was referred to the CGIT reads as follows:-

Whether the settlement signed between Cement Manufacturers Association and 5 Federation namely 1. N.C.W.F. (Intuc), ABCM Sangh (BMS), AICWF (AITUC), and CITU on 14.8.00 before the Conciliation Officer would be binding upon ACC? If so, to what relief are the workers entitled?''

11. On the other hand, the reference that has now been made to the NIT reads as follows:-

''Whether the settlement signed between the Cement Manufacturers Association and 5 Federations namely 1. N.C.W.F. (INTUC), ABCM Sangh (BMS), AICWF (AITUC) and CITU on 14.8.2000 before the Conciliation Officer would be binding upon ACC and whether the worker of ACC are entitled to claim wage rates etc. as in the said settlement and as prevailing in the industry?''

12.Quite clearly, therefore, the second part of the reference made to the CGIT has been considerably modified and virtually a new issue has been referred to the NIT. It is not, therefore, a case of transfer simplicitor of a pending dispute from one authority to another. The reference has in effect undergone a metamorphosis during its transfer. This does not appear to be permissible, and in any case, it strengthens the contention of learned counsel for the Petitioner that a hearing should have been given to his client before the transfer was effected.

13.In so far as the third contention is concerned, learned counsel for the Respondent/Union does not dispute the proposition canvassed by learned counsel for the Petitioner. The admitted position is that a reference or a case may be transferred from one Labour Court to another or from one Tribunal to another but it cannot be as if the case can be transferred from a Labour Court to a Tribunal or vice versa. In the present case, what has been done is to transfer a case from the CGIT to the NIT. This, both parties agree, is not permissible and what could have been done (if at all) is to transfer the case from one CGIT to another or from one NIT to another.

14.Learned counsel for the Respondent/Union, on the other hand, contended that the transfer has not been done under Section 33B of the Act but what is done by the Central Government is to exercise its independent power under Section 10 of the Act and that reference to Section 33B of the Act is a mere surplusage. Reliance in this regard was placed on Minerva Mills Ltd., Bangalore vs. Workers of the Minerva Mills and Anr., and High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and others, . Undoubtedly, there is a power given to the appropriate Government under Section 10 of the Act to refer a dispute to the NIT; but has this power been exercised is the question.

15. It was contended by learned counsel for the Respondent/Union that it is not the form of the order that is material but the content of the order and for this reliance was placed on Patvolk vs. State of West Bengal and Ors., 101 FJR 154.

16. The sum and substance of what learned counsel submits is that effectively a fresh dispute has been referred to the NIT under Section 10 of the Act and there was no transfer of a pending dispute under Section 33B of the Act.

17. I am not inclined to accept the contentions of learned counsel for the Respondent/Union in view of the clear stand taken by the Central Government in its counter affidavit. It has been clearly stated by the Central Government as follows:-

After reference of the dispute to the CGIT, the Govt. received representation from All India Cement Workers Federation, Bangalore and Wadi Cement Mazdoor and Staff Union, Gulbarga which are trade unions operating in ACC requesting for reference of the dispute to National Industrial Tribunal, and modification of the terms of reference, as establishment of ACC situated in more than one State, were likely to be affected by the dispute. The trade unions also requested that the terms of reference should before specific so that the questions involved in the dispute are covered by the terms of reference.

The Govt. after giving due consideration to the facts and circumstances and in exercise of power vested in it under Section 7B of the ID Act, constituted a National Industrial Tribunal for adjudication of the dispute, as in the opinion of the Central Govt. the dispute was of such a nature that industrial establishments situated in more than one State were likely to be interested in or affected by it. The Central Govt. was also of the opinion that the terms of reference earlier made to the CGIT should be modified to cover all the questions involved in the dispute. Accordingly, the Government modified the terms of reference as under:

xxx xxx xxx

It is submitted that in S.I.E.L.R. Organisation v. Madras State the Hon'ble High Court of Madras has observed that the Central Government has the power to amend a reference made to the Industrial Tribunal. It is therefore submitted that the reference made by the answering Respondent to the National Industrial Tribunal is valid and legal.''

18. A perusal of the above would show that the Central Government is of the view that it exercised powers under Section 33B of the Act and not under Section 10 of the Act. Learned Central Government Standing Counsel also did not take any contrary position. This being the stand of the Central Government, which is the authority which exercised power and issued the impugned order, I do not think the Respondent/Union can raise any contention to the contrary.

19. Presently, I am not called upon to render a final decision on the correctness or otherwise of the contentions urged by learned counsel. It is only necessary to determine whether the Petitioner has made out a case for the continuance of the interim stay. Keeping in view the above facts and the law laid down by the Supreme Court as well as this Court, I am of the view that the answer to this must be in the affirmative. Consequently, the interim order passed on 18th March, 2002, as modified on 24th September, 2002 should be and is confirmed.

20. After I heard arguments in this application, I had made it very clear to learned counsel for the parties that I was inclined to confirm the interim stay by passing a detailed order. Learned counsel for the Respondent/Union requested me to consider an alternative submission which was for permission to approach the appropriate Government for making a fresh reference or to issue a corrigendum, as the case may be, in accordance with law.

21. There is nothing to restrain the Respondent/Union from acting in accordance with law and I do not think that any specific order is required to be passed in this regard, one way or the other.

22. Needless to say, any observation made hereinabove is only for the purpose of deciding the interim application. The observations made will have no impact on the merits of the case at the time of final hearing of the writ petition.

23. The application is allowed and the NIT is restrained from passing any final Award on the reference made to it.

24. CM is disposed of.