All India Women???S Conference vs Sh. Jagat Singh & Anr.
2010 Latest Caselaw 1747 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                    WP(C) No.15211/2004

 %                                            Date of decision: 5th APRIL, 2010

ALL INDIA WOMEN'S CONFERENCE                  ..... Petitioner
                 Through: Mr. Sudhir Sharma, Advocate

                                          Versus
SH. RAJ KARAN & ANR.                           ..... Respondents
                  Through: Mr. Sanjeev Kohli, Advocate

                                            AND

                                     WP(C) No.15223/2004

ALL INDIA WOMEN'S CONFERENCE                  ..... Petitioner
                 Through: Mr. Sudhir Sharma, Advocate

                                          Versus
SH. JAGAT SINGH & ANR.                         ..... Respondents
                  Through: Mr. Sanjeev Kohli, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                  YES

2.        To be referred to the reporter or not?                 YES

3.        Whether the judgment should be reported                YES
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. Both these writ petitions raise a common question of law i.e. whether

the provisions of Section 33 of the I.D. Act prohibiting the employer

"During the pendency of any conciliation proceedings 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" from discharging or dismissing a workman save with the

express permission/ approval of the Conciliation Officer or Arbitrator or

Labour court or Tribunal before whom the proceedings are pending, apply

to a proceeding under Section 36A of the Act.

2. The respondents workmen in both these writ petitions were

employed with the petitioner „All India Women‟s Conference‟. Both the

workmen were discharged after holding disciplinary proceedings. On

dispute being raised by both workmen, the same was referred to the Labour

Court. The Labour Court vide award dated 12th January, 2004, on identical

terms, in both the cases, answered the reference by holding that the

termination of service of workmen in both the cases is illegal for the reason

of the same being without obtaining the permission under Section 33(2)(b)

of the Act.

3. The Labour Court in both the awards has merely mentioned that I.D.

No.483/1998 between the petitioner and its workmen was pending at the

time when the order of dismissal of workmen was made. The award does

not discuss the nature of the said I.D. No.483/1998. The petitioner has in

the writ petitions filed before this Court stated that I.D. No.483/1998 was

in fact not an industrial dispute but a reference under Section 36A of the

Act. It is the contention of the petitioner that the petitioner was not required

to obtain approval under Section 33(2)(b) of its action of dismissal/

discharge of workmen in both the cases for the reason of pendency of

reference aforesaid under Section 36A of the Act numbered as I.D.

No.483/1998. Reliance in this regard is placed on a Division Bench

judgment of the Patna High Court in Management of Sendra Bansjora

Colliery Co. (Pvt.) Ltd. Vs. Shantilal M. Bhatt AIR 1963 Patna 288

holding that a reference made under Section 36A of the Act is not a

proceeding "in respect of an industrial dispute" within the meaning of

Section 33(1) or Section 33(3) of the Act. It was further held that the legal

test for judging whether a reference is "in respect of an industrial dispute is

whether the reference is substantially or in its true nature and character a

reference with regard to an industrial dispute." The reference under Section

36A in that case as to the interpretation of the award was held to be not an

industrial dispute. The counsel for the petitioner has rested his case solely

on the said judgment.

4. The respondent workman in WP(C) No.15211/2004 died during the

pendency of the writ petition before this Court and his legal heirs were

substituted. The counsel appearing for the legal heirs in the said writ

petition and for the workman in WP(C) No.15223/2004 at the time of

hearing stated that he had no instructions and did not address any

arguments on the writ petitions. Order was reserved after hearing the

counsel for the petitioner only.

5. Section 36A enables the Appropriate Government to, if of the

opinion that any difficulty or doubt arises as to the interpretation of any

provision of an award or settlement, refer the question to such Labour

Court, Tribunal or National Tribunal as it may think fit. Such Labour

Court / Tribunal to which the question is referred is mandated to, after

giving the parties an opportunity of being heard, decide such question and

its decision is final and binding on all such parties.

6. The prohibition in Section 33, as aforesaid is only attracted when a

proceeding "in respect of an industrial dispute" is pending. "Industrial

dispute" is defined in Section 2(k) of the Act as meaning, "any dispute or

difference between employers and employers or between employers and

workmen, or between workmen and workmen, which is connected with the

employment or non-employment or the terms of employment or with the

conditions of labour, of any person."

7. The counsel for the petitioner has handed over a copy of the award

dated 21st February, 2007 in I.D. No.483/1998 (supra) which is informed to

have been re-numbered as I.D. No.319/06/98. A perusal of the same shows

that the reference under Section 36A there-under was as under:-

"Whether the workmen are entitled to 10% of the basic pay as special pay every year or it is to be given only once and thereafter 10% of the Special pay only in terms of stipulation of clause 1(a) of the settlement dated 24.10.97 and what directions are necessary in this respect?"

The said award further records, that in 1997 workers in the service of

the petitioner had made certain demands regarding their conditions of

service and filed a statement of claim before the Conciliation Officer;

during the course of conciliation proceedings, a settlement dated 24th

October, 1997 was arrived at and under which the petitioner agreed to pay

to each workman a special pay equal to 10% of the basic pay w.e.f. 1 st

April, 1997 onwards and to treat such special pay as basic pay for the

purpose of calculating allowances etc; though consequently the petitioner

gave effect to the said settlement, however its workers sought to place a

different interpretation on the said settlement and which placed a heavy

burden on the petitioner and which the petitioner was unwilling to bear; the

said difference between the petitioner and its workmen led to the reference

under Section 36A being made. The said award further records that though

the workmen had filed their affidavits but the petitioner failed to cross

examine them. The Labour Court after hearing the counsel for both the

parties, gave its interpretation of the settlement agreement.

8. The question thus for consideration is, whether the proceedings

aforesaid before the Labour Court, admittedly pending on the date of

discharge/dismissal of workmen, were a proceeding in respect of an

"industrial dispute" within the meaning of Section 33 of the Act. If they

were, then approval under Section 33(2)(b) having admittedly not been

taken, the effect thereof on the industrial dispute referred in each case, will

have to be seen. However, if this Court finds that the proceedings under

Section 36A were not in respect of an industrial dispute and Section 33 was

not attracted, then the award will have to be quashed and it will have to be

remanded to the Labour Court for adjudication of the dispute of

termination.

9. The reference under Section 36A has to arise out of a difference,

difficulty or doubt which may exist as to the interpretation of an award or

settlement. Such difference, difficulty or doubt as to the interpretation of

an award or settlement has to necessarily emanate from a difference

between the parties thereto. The Appropriate Government has not been

empowered to interpret the award or settlement, save under Section 17A &

Section 19(4) and both of which are neither attracted nor result in a

reference under Section 36A. Thus, there is no possibility of a reference

under Section 36A suo moto by the Appropriate Government. Such

reference has necessarily to be at the instance of differing parties to the

award or settlement. Such difference or difficulty or doubt as to the

interpretation of an award or settlement would be an industrial dispute

within the meaning of Section 2(k) of the Act. It is thus difficult to fathom

as to how a proceeding before the Labour Court, on a reference under

Section 36A, cannot be "in respect of an industrial dispute." Whenever a

dispute or a difference arises between an employer and an employee, the

same upon failure of the conciliation is required to be referred for

adjudication under Section 10 of the Act. However when such dispute or

difference emanates as to the interpretation of an award or a settlement, the

mechanism provided, instead of Section 10, is of Section 36A. The

question which arises is as to whether there is any rationale for excluding

the applicability of Section 33 from a proceeding under Section 36A of the

Act. I am unable to find any and, with respect am unable to agree with the

Division Bench of the Patna High Court.

10. Further research shows that a five Judge Bench of the Supreme

Court in The Central Bank of India Ltd. Vs. P.S. Rajagopalan AIR 1964

SC 743 held that generally the power under Section 36A is invoked when

the employer and his employee are not agreed as to the interpretation of

any award or settlement and the Appropriate Government is satisfied that a

difficulty or doubt has arisen in regard to any provision in the award or

settlement. It was further clarified that Section 36A is not concerned with

implementation or execution of the award and Section 36A deals merely

with a question of interpretation of the award where "a dispute arises in

that behalf between the workmen and the employer and the Appropriate

Government is satisfied that the dispute deserves to be resolved by

reference under Section 36A." What follows from this judgment also is

that a reference under Section 36A is essentially in respect of an industrial

dispute.

11. The scope of Section 36A was also gone into in The Kirloskar Oil

Engines Ltd. Vs. The Workmen AIR 1966 SC 1903. It was held that a

claim for modification of the award is outside the ambit of Section 36A. A

proceeding contemplated by Section 36A was held to be not a proceeding

intended to enable the Tribunal to review or modify its own orders but

intended to enable the Tribunal only to clarify the provisions of its award

where a difficulty or doubt arises about the interpretation of the provisions.

12. Yet again in Ballarpur Collieries Co. Vs. The Presiding Officer,

C.G.I.T. AIR 1972 SC 1216, the question was of the applicability of

Section 23(b) of the Act during the pendency of a proceeding under Section

36A of the Act. Section 23(b) prohibits the workmen from going on strike

in breach of a contract, "during the pendency of proceedings before a

Labour Court, Tribunal or National Tribunal". The Supreme Court held

that the proceeding under Section 36A for removing difficulties or doubts

that have arisen as to the interpretation of any provision of the award must

be construed to have the effect of "reviving those earlier proceedings for

the limited purpose of considering the removal of such difficulty or doubt."

It was held that it is only by virtually reopening the proceedings of the

earlier reference that the purpose and object of correct interpretation of that

Award and of the removal of difficulties or doubts arising therefrom could

be achieved. The legal effect of reference under Section 36A was held to be

to reopen the earlier reference proceedings which culminated in the Award,

though only for the limited purpose of the interpretation of the provisions

of that Award in respect of such difficulties or doubts as required removal.

Holding such to be the scope of Section 36A, it was held that a proceeding

under Section 36A is a continuation of the proceedings culminating in the

award and that being so, the bar of Section 23(b) was held to be attracted.

13. In my view the judgment of the Division bench of the Patna High

Court with which I have respectfully disagreed herein above, cannot also

stand in the light of the judgment of the Supreme Court in Ballarpur

Collieries Co. (supra). What has been held by the Supreme Court in

Ballarpur Collieries Co. qua Section 23(b) of the Act, notwithstanding the

difference in language under Section 33 and in Section 23(b), applies

equally to Section 33 also. The scope of jurisdiction of the Tribunal under

Section 33(2)(b) is only to oversee the dismissal to ensure that no unfair

labour practice or victimization has been practiced. If the procedure of fair

hearing has been observed and a prima facie case for dismissal is made out

the approval has to be granted. The jurisdiction of the Tribunal/Labour

Court under Section 33(2)(b) cannot be wider than this. Reference in this

regard may be made to Lalla Ram Vs. Management of D.C.M. Chemical

Works Ltd. AIR 1978 SC 1004 and Cholan Roadways Limited Vs. G.

Thirugnanasambandam AIR 2005 SC 570. There is no rationale nexus

for discriminating between disputes emanating from an award / settlement

and other disputes and to provide protection of Section 33 to the workmen,

disputes raised by whom do not emanate from an award or a settlement and

to deprive the others whose dispute emanate from an award or settlement

from the protection of Section 33.

14. It may also be noticed that a dispute arisen from an award or a

settlement is really a fresh cause of action and is a new dispute. It is only

for the sake of expedience that a different procedure has been prescribed

therefor. In the present case also it will be seen that the parties were

already before the Conciliation Officer when the settlement agreement was

arrived at. It is only due to the said settlement agreement that no further

steps were required before the Conciliation Officer. However, a dispute as

to interpretation of a clause of settlement agreement having arisen, in terms

of the judgment in Ballarpur Collieries Co , the conciliation proceedings

stood revived and reference with respect whereto was made under Section

36A.

15. Though reference to the scope of Section 36A is also found in a

recent judgment of the Division Bench of the Bombay High Court in

Pioneer Embroideries Ltd. Vs. Prithvi Singh MANU/MH/1195/2008 but

the same does not take any different view from the judgment of the

Supreme Court in Central Bank of India (supra).

16. I find that a Single Judge of the Punjab High Court in Rakesh

Chander vs. Union of India MANU/PH/0335/1991 has also taken a view

that if there is a breach of the settlement or there is any disagreement /

dispute regarding the interpretation of the settlement, the same has to be

referred as industrial dispute under Section 36A of the Act.

17. I find that the Industrial Tribunal, Dhanbad has in Deodhari Vs.

Chief Mining Engineer M/s East Indian Coal Co. Ltd. 1963 (6) FLR 280

held that it cannot be said that with the making of the award or settlement

the industrial dispute ends and therefore there can be no industrial dispute

thereafter; Section 36A itself contemplates such a dispute which arises after

the award or settlement. It was held that for deciding whether a proceeding

under Section 36A is in respect of industrial dispute or not, Section 10 is

irrelevant. The reference under Section 36A was held to be an industrial

dispute.

18. The provisions of Section 33 are thus found applicable to a

proceeding under Section 36A of the Act. However, I am of the opinion

that the matter will still have to be remanded to the Labour Court. The

Labour Court has clearly erred in abruptly short circuiting the procedure

merely for the reason of the provision of Section 33(2)(b) having not been

obtained. The Labour Court, in a reference under Section 10, even if the

permission under Section 33(2)(b) had not been taken, was required to

adjudicate the dispute raised by workmen of the validity of the action of

petitioner of dismissal of respondents workmen. The Supreme Court in

Dharampal v. National Engg. Inds. Ltd. AIR 2002 SC 510 held that in a

proceedings under Section 33(2)(b) only a prima facie view has to be taken

and which would ordinarily not been interfered with in a writ proceeding

and the appropriate course for the workman is to invoke Section 10 to work

out his rights. The Labour court is still required to return a finding as to

whether the respondents workmen were guilty of misconduct alleged and if

so, whether the punishment meted out to them of dismissal was justified.

The effect of non compliance of Section 33 would be but one facet of the

decision. In this regard, I may notice that I have today in judgment in

WP(C) 9632/2003 titled as DTC Vs. Rishi Prakash held that if an

industrial dispute is raised by a workman of his dismissal, and the same is

decided against him, he cannot make decision in such dispute redundant by

contending that approval under Section 33(2)(b) was required to be taken

and having not been taken, he continues to be in employment, relying on

Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.

Vs. Ram Gopal Sharma AIR 2002 SC 643. The Act provides

consequences for such failure of the employer to take permission/approval

under Section 33 and such consequences do not include the consequence of

disposal of the reference on the dispute raise by workmen in such summary

manner.

19. Thus while holding that the provisions of Section 33 are applicable

to a proceedings under Section 36A of the Act, the writ petitions are

disposed of by remanding the disputes to the Labour Court to answer the

reference made to them on merits.

20. Considering that this Court has differed from the judgment of

Division Bench of Patna High Court on the basis of which the petitioner

may have been advised that approval under Section 33(2)(b) is not required

and further finding that except for the Patna judgment there was no

pronouncement of any High Court on the subject, liberty is also granted to

the petitioner to apply now under Section 33(2)(b).

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 5th April, 2010 gsr