Delhi High Court
Container Corporation Of India ... vs Sh. Sanjeev Kumar on 21 August, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st August, 2012
+ LPA No.943/2011
% CONTAINER CORPORATION OF INDIA LTD. ....Appellant
Through: Mr. Vinay Bhasin, Sr. Adv. with Mr.
Manoj K. Singh, Adv.
Versus
SH. SANJEEV KUMAR ..... Respondent
Through: Mr. Atul T.N., Adv.
AND
+ W.P.(C) No.3728/2011
% SH. SANJEEV KUMAR .... Petitioner
Through: Mr. Atul T.N., Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Vinay Bhasin, Sr. Adv. with Mr.
Manoj K. Singh, Advs. for CONCOR
/ R-2.
Mr. J.K. Sharma, Adv. for R-3&4.
AND
+ W.P.(C) No.3974/2011
% CONTAINER CORPORATION OF INDIA (CONCOR)
EMPLOYEES UNION (REGD. No.4515) .... Petitioner
Through: Mr. Sanjay Ghose & Mr. K.A. Raj,
Advs.
LPA No.943/2011, W.P.(C) No.3728/2011 & W.P.(C) No.3974/2011 Page 1 of 34
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Subhash C. Sharma, Adv. for
R-1/UOI.
Mr. Vinay Bhasin, Sr. Adv. with Mr.
Manoj K. Singh, Adv. for CONCOR /
R-2.
Mr. J.K. Sharma, Adv. for R-3&4.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The intra-court appeal being LPA No.943/2011 impugns the
judgment dated 10.10.2011 of the learned Single Judge dismissing W.P.(C)
No.7387/2011 preferred by the appellant Container Corporation of India
Ltd. (CCIL). The said writ petition was preferred by CCIL against the order
dated 27.07.2011 of the Industrial Adjudicator allowing the complaint under
Section 33A of the Industrial Disputes Act, 1947 filed by the respondent Sh.
Sanjeev Kumar and declaring the order dated 26.03.2004 of the Disciplinary
Authority of CCIL removing Sh. Sanjeev Kumar from service to be null and
void and directing CCIL to pay all dues of Sh. Sanjeev Kumar deeming him
to have continued in the service of CCIL.
2. LPA No.943/2011 came before this Bench first on 16.11.2011 when
after hearing the counsels for sometime, the file of W.P.(C) No.3728/2011
was sent for. On the next date i.e. 17.11.2011, notice of the appeal was
issued and the counsel for Sh. Sanjeev Kumar gave a statement that Sh.
Sanjeev Kumar shall not proceed with the execution. On the same date, it
was also informed that W.P.(C) No.3974/2011 also challenges the same
award as under challenge in W.P.(C) No.3728/2011. Both the said writ
petitions were also directed to be listed along with LPA No.943/2011.
Subsequently on request of counsels, W.P.(C) No.3728/2011 and W.P.(C)
No.3974/2011 which were pending before the Single Judge Benches of this
Court were also tagged for hearing along with LPA No.943/2011.
3. Sh. Sanjeev Kumar joined the employment of CCIL in the year 1996
and was posted at Inland Container Depot (ICD) at Tuglakabad. On
complaint of State Bank of India, Parliament Street branch, Sh. Sanjeev
Kumar was arrested on 18.08.1998 and remained in judicial custody till
05.09.1998; obviously he remained absent from duty with CCIL. On
29.09.1998 Sh. Sanjeev Kumar submitted an application for grant of earned
leave from 19.08.1998 to 09.09.1998. The Station House Officer of Police
Station Parliament Street, vide letter dated 24.12.1998 informed CCIL of the
arrest of its workman Sh. Sanjeev Kumar and of his having remained in
police custody for two days and in judicial custody for seventeen days. It
was also mentioned in the FIR that the said Sh. Sanjeev Kumar was in part
time employment elsewhere besides in full time employment of CCIL.
4. CCIL placed Sh. Sanjeev Kumar under suspension on 13.01.1999 and
charged him with having absconded from duty, suppressing the factum of
his arrest as well as of engaging in a part time job with another employer.
Domestic inquiry was held which found him guilty. The Disciplinary
Authority of CCIL vide order dated 12.07.2000 removed Sh. Sanjeev
Kumar from service. However in the departmental appeal preferred,
direction for holding de novo inquiry was issued twice (we are not
concerned here with its details) and ultimately the charges of unauthorized
absence and concealment of arrest by misrepresentation were held proved.
Ultimately vide order dated 26.03.2004, punishment of removal from
service was imposed. The departmental appeal was dismissed on
29.06.2004.
5. As on 26.03.2004, three industrial disputes involving CCIL and its
workmen were pending. These were:
(i) ID No.160/1999 in which the dispute referred to Industrial
Adjudicator for adjudication was:
Whether the action of the management of Container
Corporation of India Ltd., Ashoka Road, New Delhi in
not giving to its Employees any incentives for family
planning for promotion small family norms of the Govt.
is justified? If not to what relief and benefits the
employees are entitled to?
(ii) ID No.22/2002, espoused by 74 named workmen, in which the
dispute referred to the Industrial Adjudicator for adjudication was:
Whether the workmen shown in Annexure-A are entitled
for ex-gratia payment of `6,000/- and if so, what
directions are necessary in this respect.
(iii) ID No.23/2002 again involving certain named workmen in which the
dispute referred for adjudication was:
Whether the workmen whose names appear in Annexure
A were on strike during the period from 07.12.1998 to
15.12.1998 or the management has restored to lock out
and if so, to what sum of money as monetary relief along
with consequential benefits in terms of existing laws /
government notifications and to what other relief are they
entitled and what directions are necessary in this respect?
6. It is the plea of CCIL that since Sh. Sanjeev Kumar had not applied
for availing incentive for family planning and did not claim to fulfill the
eligibility criteria therefor, he was considered to be not a concerned
workman in I.D. No.160/1999 and therefore need was not felt to take
approval under Section 33of the Act, of the Industrial Adjudicator in ID
No.160/1999 before removing Sh. Sanjeev Kumar from service. According
to CCIL, Sh. Sanjeev Kumar was a concerned workman only for the
purpose of ID No.22/2002; accordingly CCIL on 26.03.2004 paid to Sh.
Sanjeev Kumar one month‟s salary in terms of Section 33(2)(b) of the Act
and filed an application under Section 33(2)(b) of the Act in ID No.22/2002
seeking approval for removing Sh. Sanjeev Kumar from service. Though
there is a chequered history to the said application under Section 33(2)(b) of
the Act also but since we, in these proceedings, are not concerned therewith,
it is suffice to state that the same was ultimately dismissed on 02.03.2006 on
the ground that Sh. Sanjeev Kumar was not the workman concerned in ID
No.22/2002. The said order has attained finality.
7. In the meanwhile ID No.160/1999 was disposed of by the Industrial
Adjudicator on 04.01.2006 by a „No Dispute Award‟ after recording the
statement of a person claiming to be the President of the Employees Union
to the effect that the Scheme with regard to incentive on small family norms
was already in existence and being implemented and the workmen were
satisfied with the existence and implementation of the said Scheme and thus
the workmen were not pressing for an award.
8. It is worth mentioning that it was the plea of Sh. Sanjeev Kumar in
the application under Section 33(2)(b) of the Act filed by CCIL in ID
No.22/2002 that though he was not a concerned workman in I.D.
No.22/2002 but he was a concerned workman in ID No.160/1999 in which
no approval under Section 33(2)(b) of the Act had been sought.
9. Upon CCIL, notwithstanding dismissal on 02.03.2006 of application
under Section 33(2)(b) of the I.D. Act filed in ID No.22/2002, not taking
back Sh. Sanjeev Kumar into service, he filed W.P.(C) No.5316/2006 in this
Court for a direction to CCIL to take him back in service. Though this writ
petition was dismissed but in an appeal preferred thereagainst, it was
observed that Sh. Sanjeev Kumar could avail of the remedies under the Act.
10. It is thereafter that Sh. Sanjeev Kumar filed the complaint aforesaid
under Section 33A of the Act (from which LPA No.943/2011 has arisen) of
the refusal / failure of CCIL to seek approval of the Industrial Adjudicator in
I.D. No.160/1999 (inspite of his being a concerned workman therein) of the
punishment aforesaid of removal from service meted out to him. Naturally,
CCIL contested the said application.
11. The Industrial Adjudicator, vide order dated 27.07.2011 held Sh.
Sanjeev Kumar to be a concerned workman in ID No.160/1999 since an
award in the said dispute was capable of affecting him. Since no approval
under Section 33(2)(b) in the said ID No.160/1999 had been taken, the
action dated 26.03.2004 of CCIL of removing Sh. Sanjeev Kumar from
service, without obtaining such approval was held to be bad. Axiomatically,
it was directed that Sh. Sanjeev Kumar should be deemed to be in service,
entitling him to all consequential benefits.
12. It was the argument of CCIL in W.P.(C) No. 7387/2011 impugning
the said order dated 27.07.2011 of Industrial Adjudicator and from which
writ petition this LPA No.943/2011 arises, that Sh. Sanjeev Kumar was not
a concerned workman in ID No.160/1999 and that the only effect of CCIL
not taking approval under Section 33(2)(b) in ID No.160/1999 was that Sh.
Sanjeev Kumar was to be deemed to have continued in service till
04.01.2006 when ID No.160/1999 came to an end with the „No Dispute
Award‟ and thus the liability of CCIL could only be for emoluments of Sh.
Sanjeev Kumar from 26.03.2004 to 04.01.2006 and no more. Succinctly
put, the argument was that even if approval required to be taken under
Section 33(2)(b) of the Act is not taken, the only effect thereof is that the
order of removal from service remains suspended till the dispute in which
the approval is to be taken comes to an end; that the order of removal, by
not taking approval, does not become null and void.
13. The learned Single Judge has negatived both the aforesaid contentions
and held Sh. Sanjeev Kumar to be a concerned workman in ID No.160/1999
and further held that approval under Section 33(2)(b) of the Act being
mandatory, the employer cannot avoid taking the same and cannot be
permitted to contend that the order of removal from service should be given
effect to after the dispute comes to an end.
14. However before us, the senior counsel for CCIL has argued the matter
differently. It is contended that the need for taking approval under Section
33(2)(b) of the Act arises only during the pendency of a „dispute‟; however
the plea of CCIL throughout in ID No.160/1999 has been that there was no
„dispute‟ because CCIL, since prior to the reference leading to ID
No.160/1999 had implemented the Scheme providing incentive to its
employees for following the small family norms; this position was
ultimately also accepted by the employees who agreed that the Scheme was
in force in CCIL and owing whereto a „No Dispute Award‟ was returned. It
is argued that once ID No.160/1999 had ended in a „No Dispute Award‟,
CCIL could not be held guilty under Section 33A of the Act for not
obtaining approval under Section 33(2)(b) of the Act in ID No.160/1999.
15. Reliance in this regard is placed on Taj Services Ltd. Vs. Industrial
Tribunal-I Delhi 2011 VII AD (Delhi) 37. In that case, the plea of the
employer that the industrial dispute raised was not maintainable in the face
of a binding settlement was ultimately accepted; in these circumstances, it
was held that since the reference had been found to be bad in law, the
consequence is that no application under Section 33A of the Act could have
been filed complaining of violation of Section 33(2)(b) of the Act. The said
judgment of the same learned Single Judge who has penned the judgment
impugned in this LPA also was upheld by this very Bench on 20.10.2011 in
LPA Nos.873-874/2011. We held that once the settlement was found to be
binding on the workmen who had raised the dispute, it would lead to the
conclusion that there was no dispute between the parties which could have
been referred for adjudication and once the reference was found to be bad
there could be no question of violation of Section 33(2)(b) of the Act and
the only remedy of the workman was to raise a dispute under Section 10 of
the Act.
16. The senior counsel for CCIL thus contends that the matter is fully
covered by the judgments supra. Additionally, he also invited our attention
to the cross examination on 16.05.2011 of Sh. Sanjeev Kumar in
proceedings under Section 33A of the Act before the Industrial Adjudicator
wherein he stated "It is wrong to suggest that the Scheme "Incentives for
adopting small family norms" was in vogue in the management since 1993.
In fact, the Policy for launching the said Scheme was adopted in the year
1998 only. It is correct that till the date of my termination, I never applied
for giving me the benefit of the Scheme which is also the subject matter of
reference in ID No.160/1999. My date of birth is 16.01.1970. The date of
birth of my wife Smt. Anuradha is 22.06.1975."
It is argued by the senior counsel for CCIL that the aforesaid is an
admission by Sh. Sanjeev Kumar of the purported dispute raised in ID
No.160/1999 in the year 1999 being no dispute.
17. The senior counsel for CCIL has also drawn support from Essorpe
Mills Ltd. Vs. Presiding Officer, Labour Court (2008) 7 SCC 594 where
the finding of the High Court of non compliance with Section 33(2)(b) of
the Act was set aside for the reason of the strike notice being not in terms of
Section 22(1) of the Act and for the reason thereof there being no
commencement of conciliation proceedings as a result of a defective notice
in the eyes of law.
18. We had on 13.03.2012, passed the following order in these
proceedings:
"1. We have heard the matter at length. The issue which
needs to be determined would depend upon the fact as to
whether the Container Corporation of India (CCI) had prior to
the year 1999 implemented the "Policy on Incentives for
Adopting Small Family Norms". It is the contention of the CCI
that it had introduced and implemented the said Policy in
1993; even the respondent in LPA 943/2011 admitted in his
cross-examination that the Scheme was introduced in the year
1998. On this basis, it is argued that the dispute referred was
clearly non-existent dispute and no such reference could have
been made and on that basis the Industrial Tribunal rightly
passed "no dispute" award. The contention of the respondent
in LPA 943/2011 and of the petitioner in Writ Petition
No.3974/2011 is that CCI has till date not produced on record
any document to show that such Policy was prevalent in the
company and the Industrial Tribunal did not apply its mind on
the existence of the Policy before passing "no dispute" award.
2. Having regard to the aforesaid controversy, we direct
the appellant to file an affidavit about the prevalence of the
Policy. This affidavit should be supported by a copy of the
said Policy and also by the documents evidencing
implementation thereof and payments made thereunder.
3. The affidavits be filed within one week with advance
copy.
4. Renotify on 22nd March, 2012."
19. In compliance of our aforesaid order, the GGM(HR) of CCIL has
filed an affidavit dated 20.03.2012 stating that though CCIL was
incorporated on 10.03.1988 but became operational only after acquiring the
Container Terminals from the Indian Railways; that CCIL started recruiting
its own employees only from the year 1992; that in the year 1993 CCIL
formulated and adopted the Policy on Incentive for Adopting Small Family
Norms and the said Policy became operational in the year 1993 though was
revised with effect from 10.02.1998; that the copies of the said Policy were
filed before the Industrial Adjudicator in ID No.160/1999; that according to
the Policy, all regular employees who / whose spouses had undergone
sterilization operation were considered for grant of incentive under the
Scheme subject to fulfillment of certain criteria as laid down in the Scheme.
CCIL, along with the said affidavit has filed copies of the Scheme / Policy
on Incentive for Adopting Small Family Norms as well as the list of
employees who availed the benefit of the Policy between the years 1993-
1998 and thereafter also; certain pay slips to demonstrate the same are also
filed with the affidavit. CCIL, at the time of hearing also produced in the
Court its records to show that the Scheme / Policy on Incentive for Adopting
Small Family Norms was in force since prior to the reference in ID
No.160/1999 and on perusal of the said records, we are satisfied of the said
position.
20. That brings us to W.P.(C) No.3728/2011 and W.P.(C) No.3974/2011
which have been clubbed with the LPA.
21. After ID No.160/1999 was disposed of with a „No Dispute Award‟ on
04.01.2006 as aforesaid, one Sh. Suresh Kumar Ranga claiming to be
General Secretary to the Employees Union of CCIL applied to the Industrial
Adjudicator for recall of the order dated 04.01.2006 and for restoration of
ID No.160/1999. It was the case of the said Sh. Suresh Kumar Ranga that
Sh. Binay Kumar Chaudhary who as President of the Workmen Union of
CCIL appeared before the Industrial Adjudicator on 04.01.2006 and gave a
statement which had resulted in a „No Dispute Award‟ was on that date not
the President of the Union. It was thus pleaded that Sh. Binay Kumar
Chaudhary was not authorized to make any statement on behalf of the
Workers Union.
22. The Industrial Adjudicator vide order dated 16.05.2011 dismissed the
said application dated 21.02.2006 of Sh. Suresh Kumar Ranga holding that
Sh. Binay Kumar Chaudhary at the time of making the statement had
produced copy of the Minutes of the Executive Body Meeting held on
26.12.2005 of the CCIL Employees Union and that though the said Sh.
Suresh Kumar Ranga had also filed a civil suit asserting himself to be the
General Secretary of the Union but his application therein for interim relief
had been dismissed and there was no document to show that he was
authorized to act on behalf of the Union. The assertion of CCIL that the
Policy on Incentive for Adopting Small Family Norms was in vogue even at
the time when the dispute had been wrongly raised was also noticed.
23. Aggrieved from the aforesaid order dated 16.05.2011 Sh. Suresh
Kumar Ranga aforesaid in the name of Container Corporation of India
(CONCOR) Employees Union (Registration No.4515) has filed W.P.(C)
No.3974/2011 seeking restoration of ID No.160/1999 and setting aside of
the „No Dispute Award‟ dated 04.01.2006.
24. W.P.(C) No.3728/2011 has been preferred by Sh. Sanjeev Kumar
aforesaid impugning the „No Dispute Award‟ dated 04.01.2006 and the
order dated 16.05.2011 (supra) of the Industrial Adjudicator refusing
restoration of ID No.160/1999.
25. Needless to state that in both the writ petitions aforesaid, the authority
of Sh. Binay Kumar Chaudhary on whose statement „No Dispute Award‟
dated 04.01.2006 was given is under challenge.
26. The counsel for Sh. Sanjeev Kumar has argued that Mr. Binay Kumar
Chaudhary on whose statement the „No Dispute Award‟ dated 04.01.2006
was given, while making the statement had not produced the authorization
in his favour; he has drawn attention to the copy of the Constitution of the
Container Corporation of India (CCI) Employees Union filed in W.P.(C)
No.3728/2011 to contend that the circulars of the meeting are to be
circulated before any final decision is reached. On the basis thereof, it is
contended that the authorization now relied upon by Sh. Binay Kumar
Chaudhary is of no avail. Attention is also invited to the statement made by
the authorized representatives of the parties in the proceedings under
Section 33A of the Act on 20.07.2011 to the effect that they would confine
their arguments only to whether Sh. Sanjeev Kumar was the concerned
workman or not in ID No.160/1999 and would rely on pleadings and
evidences pertaining to this issue only. On the basis thereof, it is argued
that the cross examination in the said proceedings of Sh. Sanjeev Kumar
admitting that the Policy on Incentive for Adopting Small Family Norms
was in vogue in CCIL since the year 1998 cannot be relied on. Reliance is
placed on Raja Kulkarni Vs. State of Bombay (1954) I LLJ 1SC to contend
that the validity of proceedings is to be determined by the Court before
which it is pending and not on the basis of admissions. Reliance is also
placed on M/s Desein Pvt. Ltd. Vs. Industrial Tribunal III, Delhi 109
(2004) DLT 18 where a learned Single Judge of this Court held that the
statutory impact of Section 33 of the Act cannot be stalled merely by raising
a plea that the reference of an industrial dispute is incompetent and therefore
no industrial dispute exists. It was observed that this would amount to
giving primacy to the plea of an interested party over the legislative intent
expressed in Section 33 of the Act.
27. The counsel for Sh. Sanjeev Kumar has also referred to:
(i) Commissioner of Income Tax, Rajkot Vs. Shatrusailya
Digvijaysingh Jadeja (2005) 7 SCC 294 laying down that
when a Section contemplates pendency of an appeal, what is
required for its application is that an appeal should be pending
and there is no need to introduce the qualification that it should
be valid or competent - the question whether the appeal is
valid or competent is a question entirely for the Appellate
Court before whom the appeal is filed to decide and from the
mere fact that such an appeal is held to be not-maintainable on
any ground whatsoever, it does not follow that there was no
appeal pending before the Court.
(ii) Mr. S.B. Jain, I.T.O., Nagpur Vs. Mahandera (1972) 4 SCC
114 also in the context of income tax laws, laying down that
where the requirement is of pendency of a proceeding, the
question whether the proceedings were barred by limitation is
irrelevant.
(iii) Prabhakar Shamrao Marathe Vs. The Maharashtra State
Electricity Board, Bombay 1975 LAB. I.C. 697 where a
Division Bench of the Bombay High Court has laid down that
the proceedings referred to in Section 33 of the Act need not be
pending at the time of complaint under Section 33A of the Act.
(iv) Tata Iron and Steel Co. Ltd. Vs. S. N. Modak AIR 1966 SC
380 laying down that an application under Section 33(2)(b) of
the Act does not come to an end on decision on the industrial
dispute.
(v) Bharat Aluminium Company Ltd. Vs. Sukumar Mukherjee
1999 (I) LLJ 828 where a Division Bench of the Calcutta High
Court held that a complaint under Section 33A of the Act does
not become infructuous even on a settlement being arrived at in
the proceedings under Section 33 of the Act.
(vi) The Management of W.S. Industries (India) Ltd. Vs. K.
Ramakrishnan MANU/TN/2031/2009 where a Division Bench
of the Madras High Court held that during the pendency of
proceedings referred to in Section 33 of the Act, compliance
with Section 33(2)(b) of the Act is necessary.
(vii) The Automobile Products of India Ltd. Vs. Rukmaji Bala AIR
1955 SC 258 on the scope and spirit of Section 33 of the Act.
(viii) Indian Telephone Industries Ltd. Vs. Prabhakar H. Manjare
AIR 2003 SC 195 to contend that the provisions of Section
33(2)(b) of the Act are mandatory.
(ix) Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Sh. Ram
Gopal Sharma 2002 LAB. I.C. 513 laying down that non
approval of order of dismissal or failure to make application
under Section 33(2)(b) of the Act renders dismissal inoperative
and the employee becomes entitled to wages from the date of
dismissal onwards.
(x) D.T.C. Vs. Prem Chand Ex. Sweeper 176 (2011) DLT 476
(DB) where a Division Bench of this Court held that where
there is no approval of the Industrial Adjudicator under Section
33(2)(b) of the Act, the order of dismissal is ab initio void.
(xi) Swan Mills Ltd. Vs. Union of India (2007) 7 SCC 29 relying
on Raja Kulkarni Vs. State of Bombay (supra).
(xii) Urban Improvement Trust, Bikaner Vs. Mohan Lal (2010) 1
SCC 512 where the Supreme Court had expressed concern over
frivolous and unjust litigations.
(xiii) Chander Vs. Union of India 122 (2005) DLT 517 on the
aspect of interest on the arrears of wages due to Sh. Sanjeev
Kumar.
28. The counsel for Sh. Sanjeev Kumar has also argued that ID
No.160/1999 was not listed before the Industrial Adjudicator on 04.01.2006
when it was disposed of with a „No Dispute Award‟ and the very fact that
not only Sh. Binay Kumar Chaudhary on behalf of Workers Union but the
authorized representative of the CCIL also appeared before the Industrial
Adjudicator on that date shows the collusiveness of the proceedings on that
date. It is also argued that the Industrial Adjudicator did not frame any issue
before rendering a „No Dispute Award‟.
29. The counsel for Sh. Suresh Kumar Ranga, the petitioner in W.P.(C)
No.3974/2011 has argued that there is no finding that the dispute in ID
No.160/1999 was frivolous or non-est; that at best it ceases to be a dispute
only on 04.01.2006; that no Tribunal has till now returned any finding about
the existence of Policy on Incentive for Adopting Small Family Norms in
CCIL since prior to the reference; that the Workers Union of CCIL had
given a Charter of Demand; that the dispute was referred only after the
failure of conciliation proceedings; that even before the Industrial
Adjudicator several opportunities were given to the CCIL to produce
documents evidencing the existence of such a Policy but none were
produced. On inquiry it is informed that Sh. Binay Kumar Chaudhary
aforesaid was President of the Union from the years 2002-2004; that the
erstwhile undivided Union, in the year 2005 was split and since then the
civil suit aforesaid between the two groups is pending. The counsel for Sh.
Suresh Kumar Ranga has stated that Sh. Binay Kumar Chaudhary when he
gave the statement on 04.01.2006 was not a union member and gave the
statement leading to the „No Dispute Award‟ in collusion with the
management of CCIL. It is argued that the principle of collective bargaining
has been defeated and the writ petition should be allowed and ID
No.160/1999 should be restored.
30. The senior counsel for CCIL in rejoinder has reiterated that the
reference leading to ID No.160/1999 was per se bad irrespective of „No
Dispute Award‟. He has contended that once the Scheme / Policy on
Incentive for Adopting Small Family Norms was in existence, there could
have been no reference.
31. Though the facts as aforesaid are long-winded, the controversy is in a
narrow compass. As far as W.P.(C) No. 3728/2011 and W.P.(C) No.
3974/2011 are concerned, the only questions for consideration are:
(i) whether closure of ID NO. 160/1999 with a „No Dispute Award‟ on
the statement of Sh. Binay Kumar Chaudhary was proper; and
(ii) whether the refusal of the Industrial Adjudicator to re-open the same
on the application of Sh. Suresh Kumar Ranga is improper and
erroneous.
Thought the first question aforesaid, of the authority of Sh. Binay Kumar
Chaudhary raises disputed facts but we find the Industrial Adjudicator to
have refused restoration of ID No. 160/1999 also on the ground that the
reference itself had been wrongly made. We are of the view that if the said
reason given by the Industrial Adjudicator is correct, then no purpose would
be served in restoring ID No. 160/1999. This Court in exercise of powers
under Article 226 of the Constitution of India is entitled to cut through the
maze of legalese and is not inclined to restore ID No. 160/1999 if no
purpose would be served therefrom. It was for this reason only that we had
vide our order dated 13.03.2012 supra directed CCIL to file an affidavit in
this regard. From the affidavit filed in pursuance to the said order we are
satisfied of the existence since prior to the reference of ID No.160/1999, of
the Scheme / Policy on Incentives for Adopting Small Family Norms in
CCIL, and which the counsels for the writ petitioners have not been able to
controvert.
32. Once it is established that the Scheme/ Policy on Incentives for
Adopting Small Family Norms was in existence in CCIL since prior to the
reference in ID No. 160/1999, the closure of the said dispute with a „No
Dispute Award‟ cannot be faulted with. When the management of CCIL
was giving to its employees incentives for family planning and for
promoting small family, the reference in ID No. 160/1999 was
misconceived and no relief could be granted to the workman in the said
reference.
33. In view of the aforesaid it is not necessary to decide whether Sh.
Binay Kumar Chaudhary was on 04.01.2006 authorized to make the
statement on behalf of the Workers Union or not.
34. As far as the LPA is concerned, the controversy therein boils down
to-
a. whether notwithstanding CCIL having since the year 1993
introduced the scheme/policy on incentive for adopting small
family norms, the reference under Section 10 of ID Act in the
year 1999, on the premise that CCIL had not
implemented/made operational the said scheme/policy, still
required CCIL to take approval under Section 33 of the Act;
b. if the answer to the above is in the affirmative, what is the
effect of CCIL having not taken approval under Section 33 of
the Act.
35. Since Shri Sanjeev Kumar contends that CCIL was so required to
take approval because the reference had been made and the dispute was
pending, even if the reference was wrongly made, we will first take up the
aspect of the effect of not taking such approval.
36. The purpose of filing an application under Section 33(2)(b) of the Act
is to ensure that the employer, owing to the pendency of the dispute, does
not act vindictively against the employee. A detailed discussion in this
regard is to be found in Delhi Transport Corporation Vs. Shyam Lal ILR
(2010) 5 Del. 431penned by one of us (Rajiv Sahai Endlaw, J.). It is not as
if CCIL was shying away from applying under Section 33(2)(b) of the Act.
Such an application was filed in ID No.22/2002. CCIL, for whatsoever
reason, took a decision that no such application was required to be filed in
I.D. No.160/1999. The question which arises is, whether, if at the time of
taking action of dismissal or otherwise against a concerned workman, more
than one dispute is pending, the employer is required to make applications
under Section 33(2)(b) of the Act seeking approval in each of the said
disputes. The answer has to be „no‟ inasmuch as the question for
adjudication in all these applications would be the same i.e. whether the
punishment of dismissal or otherwise was vindictive and inflicted by way of
retaliation to the workman having raised the dispute. The conduct of CCIL
in not moving the application under Section 33(2)(b) of the Act in ID
No.160/1999 cannot thus be said to be malafide. If the intent of CCIL had
been to avoid scrutiny of its action of removing Sh. Sanjeev Kumar from
service, it would not have filed application under Section 33(2)(b) of the Act
in ID No.22/2002 also. Unfortunately that application under Section
33(2)(b) of the Act came to be dismissed on 02.03.2006 for the reason of
Sh. Sanjeev Kumar being not a concerned workman therein.
37. A perusal of the order dated 2nd March, 2006 shows that the
application under Section 33(2)(b) filed in ID 22/2002 was first dismissed
on 7th July, 2004 for the reason of having been filed, without prejudice to
the plea of CCIL that Shri Sanjiv Kumar was not a concerned workman
therein. The petitioner filed W.P.(C) No.12602/2004 in this Court
challenging the said order. The said writ petition was allowed vide order
dated 2nd December, 2004 holding that merely because CCIL had filed the
application without prejudice to its rights, did not mean that the application
was not maintainable. Notice was also taken of the plea of Shri Sanjiv
Kumar that he was the concerned workman in ID 160/1999. The order dated
7th July, 2004 of Industrial Adjudicator was accordingly set aside and the
application under Section 33(2)(b) directed to be decided afresh. However
the Industrial Adjudicator again, on the plea of Shri Sanjiv Kumar that he
was not a concerned workman in ID 22/2002, as aforesaid, on 2 nd March,
2006 dismissed the said application. While doing so, the plea of Shri Sanjiv
Kumar that he was a concerned workman in ID 160/1999 was noticed but it
was observed that the application under Section 33(2)(b) filed in ID 22/2002
could not be treated as in ID 160/1999 because the application under
Section 33(2)(b) is to be filed in the industrial dispute in which Shri Sanjiv
Kumar was a concerned workman.
38. However by that time, the I.D. No.160/1999 already stood disposed
of on 04.01.2006 with the „No Dispute Award‟ aforesaid. It was thus not
possible for CCIL to then apply under Section 33(2)(b) in I.D. No.160/1999.
39. It is also worth noticing that it is nowhere the case of Shri Sanjiv
Kumar that he had applied to CCIL for any incentive for family planning for
promotion of the small family norms or even that he was eligible to apply
therefor, or that the same were denied to him for the reason of CCIL having
not introduced the said Scheme/ Policy. CCIL was in any case pleading that
the reference itself was bad as the Scheme/ Policy already existed and there
was no dispute as referred. The decision of CCIL that Sh. Sanjeev Kumar
was not a concerned workman in I.D. No.160/1999, was thus a plausible
one and cannot be tainted as mala fide or motivated to avoid scrutiny of its
action of removing Sh. Sanjeev Kumar from service.
40. The question which arises is as to what was the recourse open to
CCIL on dismissal as aforesaid on 02.03.2006 of the application under
Section 33(2)(b) of the Act filed in I.D. No.22/2002. By then I.D.
No.160/1999 in which Sh. Sanjeev Kumar was contending that such
application should have been filed, was no longer pending. Had the same
been pending, it could have been said that CCIL ought to have then filed an
application under Section 33(2)(b) therein pleading that though it was
required to be filed simultaneously with the taking of the action of removal
from service but CCIL was bona fide pursuing the said application in
another dispute where it was finally held to be not maintainable. Though an
application under Section 33(2)(b) is required to be made by the employer
simultaneously with the order of dismissal or discharge and with the
payment of wages with all three forming a part of the same transaction but
the Supreme Court in Strawboard Manufacturing Co. Vs. Gobind AIR
1962 SC 1500 has held that the question whether the application was made
as part of the same transaction or at the same time when the action was
taken would be a question of fact and will depend upon the circumstances of
each case. In the facts and circumstances aforesaid of the present case, once
the application under Section 33 (2) (b) in ID No. 22/2002 was moved on
the same day, CCIL would have been entitled to move an application under
Section 33 (2) (b) in ID No. 160/1999 after dismissal on 2nd March, 2006 of
the said application in ID No. 22/2002, had ID No. 160/1999 been then still
pending and it would have been treated as part of the same transaction of
dismissal/discharge of Sh. Sanjeev Kumar.
41. However once the other dispute namely I.D. No.160/1999, by then
was not pending, CCIL did not have the option of applying under Section
33(2)(b) therein also.
42. The question which arises is, whether owing to the said
circumstances, which can at best be said to be fortuitous and not attributable
to CCIL alone, the disciplinary action of CCIL against Sh. Sanjeev Kumar
is to be set at naught and given a go by. In our opinion, no.
43. Section 33A of the Act requires the Industrial Adjudicator to
adjudicate a complaint of contravention of Section 33 of the Act, as if it
were a dispute and in accordance with the provisions of the Act. As far
back as in The Automobile Products of India Ltd. Vs. Rukmaji Bala AIR
1955 SC 258, it was held that the addition (with effect from 20.05.1950) of
Section 33A was intended to fill up the lacuna in the Act which earlier
provided only for punishment of the employer for contravention of Section
33 and which prosecution / punishment was hardly any consolation for the
workman. It was further held that though contravention by the employer of
Section 33 was the condition precedent for exercise of power under Section
33A but the Industrial Adjudicator under Section 33A has to decide not only
whether Section 33 has been contravened but also on the merits of the
disciplinary action of the employer and to grant appropriate relief. It was
further held that the Industrial Adjudicator‟s duty under Section 33A is not
limited to making a declaration that Section 33 has been violated but also
extends to adjudicating or deciding the complaint as if it were a dispute. It
was yet further held that the Industrial Adjudicator in exercise of powers
under Section 33A has jurisdiction to do complete justice and determine the
dispute. Similarly in Equitable Coal Co. Ltd. Vs. Algu Singh AIR 1958 SC
761 it was reiterated that the Industrial Adjudicator in an inquiry under
Section 33A even after finding contravention by the employer of Section 33
of the Act is to further adjudicate whether the disciplinary action by the
employer against the employee is justified on merits and only if finds in
favour of the employee on both counts is the Industrial Adjudicator entitled
to pass an order in favour of the employee; however if though contravention
is found but the disciplinary action by the employer against the employee is
found to be justified then the breach of Section 33 by the employer is to be
regarded as a technical breach not justifying any order of compensation as
in that case in favour of the employee.
44. That brings us to Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs.
Ram Gopal Sharma (2002) 2 SCC 244 which expressly overruled Punjab
Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand (1978) 2 SCC 144 and
which in turn had referred to The Automobile Products of India Ltd. &
Equitable Coal Co. Ltd. (supra). In Punjab Beverages it was held that
even if the employer is in contravention of Section 33, the employee could
not treat himself to be in employment and claim wages under Section
33C(2) and the only remedy of the employee was to approach the Industrial
Adjudicator under Section 33A and in which proceedings the question of
contravention of Section 33 as well as of justifiability of the disciplinary
action of the employer would be gone into. Jaipur Zila Sahakari Bhoomi
Vikas Bank Ltd. did not interfere with the dicta in The Automobile
Products of India Ltd. & Equitable Coal Co. Ltd holding the inquiry under
Section 33A to be two fold as aforesaid. The Constitution Bench however
held that an employer in contravention of Section 33 could not be allowed to
at the same time enjoy the benefit of its such action in contravention of law,
compelling the workman to complain under Section 33A. That was a case
where the employer though had applied under Section 33(2)(b) but had
subsequently withdrawn the said application; the effect of withdrawal was
held to be on the same footing as if no application under Section 33 (2)(b)
had been made at all.
45. However the facts of the present case stand apart. The employer i.e.
CCIL in the present case not only applied under Section 33(2)(b) but also
pursued the said application as aforesaid though in a wrong dispute. By the
time it was so held, the dispute in which Sh. Sanjeev Kumar contends that
the application should have been filed was no longer pending. It was thus
not possible for CCIL to then apply under Section 33(2)(b) in that dispute.
The conduct of CCIL in applying under Section 33(2)(b) in the dispute in
which it was ultimately held to be not maintainable has been found by us to
be bona fide. The judgment of the Constitution Bench in Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd. in entirely different set of facts cannot
thus be blindly applied by us to the facts of the present case.
46. As far back as in Herrington Vs. British Railways Board 1972 (2)
WLR 537 it was observed that there is always a peril in treating the words
of a judgment as though they are words in a legislative enactment and it is to
be remembered that judicial utterances are made in the setting of facts in a
particular case. Circumstantial flexibility, one additional or different fact
may make a world of difference between conclusions in two cases and
disposal of cases by blindly placing reliance on a decision is not proper. The
Apex Court in Bharat Petroleum Corporation Ltd. Vs. N.R. Vairamani
(2004) 8 SCC 579 cited Lord Denning with approval opining that each case
depends on its own facts and a close similarity between one case and
another is not enough because even a single significant detail may alter the
entire aspect. It was further held that the temptation to decide cases by
matching the colour of one case against the colour of another is to be
avoided. Similarly in Official Liquidator Vs. Dayanand (2008) 10 SCC 1 it
was held that even one additional fact may make a lot of difference in the
precedential value of a decision. The same sentiment was reiterated in
Sushil Suri Vs. CBI (2011) 5 SCC 708 as well as in U.P. State Electricity
Board Vs. Pooran Chandra Pandey (2007) 11 SCC 92.
47. The Supreme Court in BPL Ltd. Vs. R. Sudhakar (2004) 7 SCC 219
held that when the operation of the order of reference is stayed by the Court,
the question of dispute pending before the Tribunal did not arise in as much
as the reference order itself stood suspended. The contention that the order
of stay did not amount to wiping out the order of reference and the dispute
thus remained pending was negatived by holding that when the order of
reference itself is stayed, the Industrial Adjudicator did not have jurisdiction
to pass any further order and as such the question of an employer making an
application under Section 33(2)(b) or the Industrial Adjudicator passing any
order thereon also did not arise. It would thus be seen that the pendency of
dispute was not taken in literal or technical terms but in reality. It was
further held that it is not as if the workmen in such a situation do not have a
remedy - they can raise a dispute challenging the order of dismissal by
initiating separate proceedings.
48. We are therefore of the view that the proper course of action in the
facts of the present case, for the Industrial Adjudicator in Section 33A
proceedings (supra), would have been to also adjudicate the validity of the
action of CCIL of removal of Sh. Sanjeev Kumar from service and which
the Industrial Adjudicator did not do relying on Jaipur Zila Sahakari
Bhoomi Vikas Bank Ltd. What has been laid down as law in Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd. for where "an employer by design"
avoids making an application under Section 33(2)(b) after dismissing an
employee and takes a position that such dismissal is not inoperative or void
till it is set aside under Section 33A cannot be applied as law where the
employer has inspite of best and bona fide efforts been unable to obtain
approval under Section 33(2)(b). The learned Single Judge in the judgment
impugned in the appeal has not considered the matter in this perspective and
has proceeded on the premise of CCIL having designedly avoided scrutiny
of its disciplinary action against Shri Sanjeev Kumar.
49. We therefore hold that the effect of CCIL in not obtaining approval
under Section 33(2)(b), even if found to be required to take such approval in
ID No.160/1999 is not of ipso facto rendering the disciplinary action of
removal of Sh. Sanjeev Kumar from service inoperative but the justifiability
of such action ought to be determined in the proceedings under Section 33A.
50. That brings us to the question whether CCIL was required to take
approval under Section 33(2)(b) in ID No.160/1999. This entails
determination of :
(i). the effect of the reference under Section 10 of the said dispute
being faulty in as much as there was indeed no dispute and;
(ii). whether Shri Sanjeev Kumar was a concerned workman in the
said dispute.
51. As far as the first of the aforesaid aspects is concerned we have
already in Taj Services Ltd. (supra) taken a view that where the objection to
the dispute goes to its root and to its very maintainability and merely
because of the delay in decision of the said objection, the proceeding
remains pending, would not make the provisions of Section 33 of the Act
applicable so as to invite the consequences under Section 33A of the Act.
Of course, the judgments in Desein Pvt. Ltd., Shatrusailya Digvijaysingh
Jadeja & Mahandera (supra) suggesting to the contrary were not
considered in Taj Services Ltd., neither by the learned Single Judge nor by
us. The facts of the present case are far better than that of Taj Services Ltd.
While in Taj Services Ltd. the issue of territorial jurisdiction and the
binding nature of the settlement had to be adjudicated before holding
whether a dispute entertainable by the Industrial Adjudicator at Delhi
existed or not, in the present case all that was needed was to see whether the
Scheme / Policy on Incentive for Adopting Small Family Norms had been
implemented in CCIL or not.
52. In this regard it may be noticed that the remedies against a reference
under Section 10, even if wrongfully made, are limited. A Single Judge of
this Court in judgment dated 24.09.2008 in W.P.(C) No.12602/2006 titled
M/s Hongkong and Shanghai Banking Corporation Ltd. Vs. Govt. of
India held that Courts cannot interfere with a reference under Section 10(1)
of the I.D. Act because that order does not affect the rights of the parties and
the writ petition lies only when the rights of the parties have been adversely
affected. It was held that a mere reference under Section 10(1) of the Act
does not affect anybody‟s right and hence no writ petition should ordinarily
be entertained against a mere reference and the writ petition is liable to be
dismissed as premature. The intra-court appeal being LPA No.684/2008
preferred thereagainst was dismissed by the Division Bench of this Court on
11.11.2008. However, another Division Bench of this Court in Moolchand
Khairati Ram Hospital Karamchari Union Vs. Labour Commissioner
(1998) III LLJ 1 Del. held that the High Court can go into the validity of
reference in certain situation, though it is not to sit an appeal over the order
of the State Government and not entitled to consider the propriety or the
satisfactory character of the reasons. However the said observations came
to be made in the context of the reference not addressing the real dispute
which had arisen between the workmen and the employer. The Supreme
Court in appeal against the aforesaid judgment of the Division Bench, in
judgment reported in (2002) 10 SCC 708 also affirmed that in certain
situations challenge to the reference itself is maintainable. Another Division
Bench of this Court in Eagle Fashions Vs. Secretary (Labour) (1999) I LLJ
232 also held the challenge to the reference to be maintainable where the
reference did not address the real dispute. Yet another Division Bench of
this Court in judgment dated 16.05.2011 in LPA No.425/2011 titled M/s
Bata India Ltd. Vs. Union of India, though qua reference under Section 7B
of the Act held that there is no absolute bar for interference in exercise of
power under Article 226 of the Constitution of India when a matter is
referred by a government to an Industrial Tribunal if the reference suffers
from jurisdictional error or no industrial dispute exists and on ancillary
grounds. It was further held that if factual disputes are involved, it was
advisable for the Industrial Tribunal to adjudicate the same and the Writ
Court should not exercise the discretion and refrain from interfering with the
order of reference.
53. Once a writ petition against a reference is held to be maintainable, the
logical corollary thereof is that if the reference is quashed, it would be
deemed to have ceased to exist from the date of making thereof. The
question which arises is, whether a party who succeeds in having a reference
quashed can be deprived of the benefits of such quashing. The delays in the
Courts on account of the Courts being burdened with more dockets than
they can handle are well known. Merely because some delay happens in
such quashing cannot be allowed to burden the party which has been
successful in having the reference quashed with the consequence of what
has happened in the interregnum. The principle that the actions of the Court
will hurt no one will apply. The Supreme Court in BPL Ltd. (supra) has
also held that a dispute will not be treated as pending for the purposes of
Section 33 during the period of interim stay in challenge to the reference.
54. In the present case CCIL did not approach the Court for quashing of
the reference but it nevertheless succeeded in having its employees see the
matter in the correct perspective and who agreed that the dispute which had
been referred did not exist. It is immaterial whether the employee on whose
statement „No Dispute Award‟ was referred was authorized or not inasmuch
as this Court as aforesaid has satisfied itself that there was no dispute and
the reference was wrong.
55. The existence of a dispute is a sine qua non for a reference under
Section 10. If there is no dispute, there does not arise any question of
referring the same to the Industrial Adjudicator. Support can be drawn from
Ramesh Kumar Vs. Furu Ram (2011) 8 SCC 613, Major (Retd.) Inder
Singh Rekhi Vs. Delhi Development Authority (1988) 2 SCC 338 and
Milkfood Ltd. Vs. GMC Ice Cream Pvt. Ltd. (2004) 7 SCC 288 though in
the context of Arbitration Act, holding to the same effect. The reference in
ID No.160/1999 was thus clearly a still born one and of no avail. Section
2(k) of the Act also defines an „industrial dispute‟ as meaning any dispute or
difference between the employers and the workmen. The Black‟s Law
Dictionary, 8th Edition also defines dispute as "conflict". It follows that
when there is no „conflict‟ there can be no dispute. It has now been found
as aforesaid that CCIL having implemented the Scheme / Policy on
Incentives for Adopting Small Family Norms, the question as to whether
non application by CCIL of the said Scheme was justified or not did not
arise and was a non starter. When the right asserted by one party is
conceded by the other, there could be no dispute. The Supreme Court in
Shambu Nath Goyal Vs. Bank of Baroda (1978) 2 SCC 353 held that an
industrial dispute connotes a real and substantial difference having some
element of persistency and continuity till resolved and likely if not adjusted
to endanger peace of the undertaking. Unfortunately this aspect has not
been gone into, neither by the Industrial Adjudicator nor by the learned
Single Judge, inspite of the learned Single Judge as well as the Division
Bench in judgments dated 2 nd November, 2006 and 4th April, 2006
dismissing W.P.(C) No.5316/2006 and LPA No.2261/2006 preferred by Sh.
Sanjeev Kumar holding that the relief of reinstatement in writ jurisdiction
could not be granted in writ jurisdiction because it was to be determined as
to whether the Scheme/Policy of Incentives for Adopting Small Family
Norms was already enforced in CCIL. Now that we have found that it was
in force, it has to be axiomatically held that there was no dispute as referred
to in ID No.160/1999 pending on the date of disciplinary action by CCIL
against Sh. Sanjeev Kumar so as to require CCIL to apply under Section
33(2)(b) of the Act. We are unable to agree with the observation of the
learned Single Judge that the said question was not to be gone into in
proceedings under Section 33A of the Act. As aforesaid the writ petition
filed by Sh. Sanjeev Kumar for reinstatement was dismissed precisely for
this reason of this question being required to be adjudicated.
56. However as far as the plea of CCIL of Sh. Sanjeev Kumar being not a
concerned workman in ID No.160/1999 (if it were to be a real and
substantial dispute), we are unable to agree with the contention of CCIL that
Sh. Sanjeev Kumar being not eligible and having not applied for/under the
Scheme/Policy of Incentives for Adopting Small Family Norms was not a
concerned workman and agree with the findings of the Industrial
Adjudicator and the learned Single Judge in this regard.
57. Though we have earlier observed that the question of justifiability of
the disciplinary action was also required to be gone into in Section 33A
proceedings but having now found that there was no dispute requiring any
application under Section 33(2)(b), the complaint under Section 33A itself
would be not maintainable. The question thus of the justifiability of the
disciplinary action of removal from service being tested in Section 33A
proceedings or the matter being required to be remanded for the said
purpose does not arise. The remedy now of Sh. Sanjeev Kumar is only to
raise a dispute qua his termination.
58. Before parting with the case we may sound a word of caution. When a
dispute is pending even if the plea of the employer be that it has been
wrongly referred or is no dispute and the occasion for obtaining approval
under Section 33 arises, if the employer owing to its said plea chooses not to
obtain such approval, it will do so at its own risk and upon failing in its plea
of the reference being erroneous, if has not applied for approval, would
suffer therefor.
59. We therefore allow the appeal and set aside the judgment of the
learned Single Judge. We allow the writ petition filed by the appellant and
quash the order dated 27.07.2011 of the Industrial Adjudicator on the
application of Sh. Sanjeev Kumar under Section 33A of the Act. Litigation
costs having already been awarded to Sh. Sanjeev Kumar, no order of any
further costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
AUGUST 21, 2012
„gsr‟
