Himachal Pradesh High Court
Between vs M/S Wipro on 15 September, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 15th DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
&
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION NO. 4970 OF 2021
Between:-
M/s WIPRO ENTERPRISES PRIVATE LTD.,
PLOT No.87/A, EPIP, PHASE-I,
JHARMAJRI, P.O. BAROTIWALA,
TEHSIL BADDI, DISTT. SOLAN, H.P.
...PETITIONER
(BY SH. GULSHAN CHAWLA, SH. P.P. CHAUHAN
AND SH. R.L. VERMA, ADVOCATES)
AND
1. THE PRISIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT,
SHIMLA.
2. WIPRO KARAMCHARI SANGH UNION
/GROUP OF WORKERS, PLOT NO.87/A,
EPIP, PHASE-I, JHARMAJRI,
P.O. BAROTIWALA, TEHSIL BADDI,
DISTT: SOLAN, H.P THROUGH ITS
PRESIDENT/SECRETARY.
....RESPONDENTS.
(SH. V.D. KHIDTTA & SH.R.K.KHIDTTA, ADVOCATES, FOR
RESPONDENT NO. 2).
RESERVED ON: 10.09.2021
DECIDED ON: 15.09. 2021.
__________________________________________________________________
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2
This petition coming on for admission this day,
Hon'ble Mr. Justice Satyen Vaidya, passed the following:
ORDER
.
2. By way of instant petition, petitioner has prayed for
quashing of order dated 24.8.2021 passed by the Presiding Judge,
Industrial Tribunal-cum-Labour Court, Shimla (for short 'The
Labour Court') in application No. 50 of 2021, titled Wipro
Karamchari Sangh Union/Group of Workers vs. M/s Wipro
Enterprises (P) Ltd.
3. to
Petitioner is a Company (for short 'The Company')
incorporated and registered under the Companies Act, 1956. It has
two manufacturing units situated at Plot No. 77 and plot No.87A
in the vicinity of Industrial Area, EPIP Phase-I, Village Jharmajri,
Tehsil Baddi, District Solan, H.P. Respondent No.2 is a Union of
Workers of the Company (for short 'The Union').
4. An industrial dispute arose between the Union and the
Company from the decision of the Company to transfer its
employees from one unit to the other. The Union raised demand
either to maintain status quo till the pendency of long term
settlement dated 25.01.2018 or to enter into a fresh long term
settlement. The settlement dated 25.01.2018 is valid till
31.12.2021.
5. The Union issued demand notice upon the Company on
.
27.04.2021. Taking cognizance of such notice, the Conciliation
Officer issued notice dated 29.04.2021 calling upon the Company
to submit its response for the purpose of conciliation under the
Industrial Disputes Act, 1947 (for short 'The Act')
6. The conciliation proceedings were held on 18.6.2021,
13.7.2021 and 23.7.2021. The conciliation failed. On 03.08.2021,
the Conciliation Officer submitted failure report under Section 12
(4) of the Act to the Labour Commissioner, Himachal Pradesh.
7. On 29.07.2021, the Company issued transfer order of
126 members of the Union from the Unit in plot No. 87A to plot
No. 77 which were to take effect on 01.08.2021. Feeling aggrieved
against the action of the Company, the Union filed a complaint
under Section 33A of the Act before the Labour Court, Shimla.
8. Alongwith the above noticed complaint, the Union also
filed an application under Section 10(4) of the Act seeking interim
relief by way of stay on the transfer orders dated
29.7.2021/1.8.2021 issued by the Company, which came to be
registered as Application No. 50 of 2021 before the learned Labour
Court. By impugned order, learned Labour Court stayed the
operation of the transfer orders dated 29.7.2021/1.8.2021 till the
disposal of the main petition.
.
9. The questions that needs to be answered by this Court,
as raised in the instant petition, can be summed up as under:
(a) Whether the learned Labour Court holds jurisdiction to
entertain complaint under Section 33A when the violation
of provisions of Section 33 of the Act had taken place
during the pendency of the industrial dispute before the
(b) to
Conciliation Officer?
Whether the learned Labour Court holds jurisdiction to
pass interim orders while dealing with a complaint under
Section 33A of the Act?
10. The contention of the petitioner is that the transfer orders
dated 29.7.2021 were to have effect on 1.8.2021. On either of
these dates, the industrial dispute was not pending before any
authority under the Act. As per petitioner, the proceedings of
Conciliation Officer in respect of the industrial dispute raised by
the Union had come to an end on 23.7.2021, where-after no
proceedings were held. The failure report was submitted by the
Conciliation Officer on 3.8.2021 to the Labour Commissioner.
Respondent No. 2 has contested this claim of the petitioner by
referring to the provisions of Sections 12 and 20 of the Act, which
reads as under:
"12. Duties of conciliation officers.-
.
(1) Where any industrial dispute exists or is apprehended,
the conciliation officer may, or where the dispute relates to a
public utility service and a notice under section 22 has been
given, shall hold conciliation proceedings in the prescribed
manner.
(2) The conciliation officer shall, for the purpose of bringing
about a settlement of the dispute, without delay, investigate
the dispute and all matters affecting the merits and the right
settlement thereof and may do all such things as he thinks fit
for the purpose of inducing the parties to come to a fair and
amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in
dispute is arrived at in the course of the conciliation
proceedings the conciliation officer shall send a report thereof
to the appropriate Government 1 or an officer authorised in this
behalf by the appropriate Government] together with a
memorandum of the settlement signed by the parties to the
dispute.
(4) If no such settlement is arrived at, the conciliation officer
shall, as soon as practicable after the close of the investigation,
send to the appropriate Government a full report setting forth
the steps taken by him for ascertaining the facts and
circumstances relating to the dispute and for bringing about a
settlement thereof, together with a full statement of such facts
and circumstances, and the reasons on account of which, in
his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in sub-
section (4), the appropriate Government is satisfied that there
.
is a case for reference to a Board [Labour Court, Tribunal or
National Tribunal] it may make such reference. Where the
appropriate Government does not make such a reference it
shall record and communicate to the parties concerned its
reasons therefor.
(6) A report under this section shall be submitted within
fourteen days of the commencement of the conciliation
proceedings or within such shorter period as may be fixed by
the appropriate Government:
[Provided that, [ subject to the approval of the
conciliation officer,] the time for the submission of the report
may be extended by such period as may be agreed upon in
writing by all the parties to the dispute.]"
"20. Commencement and conclusion of proceedings.-
(1) A conciliation proceeding shall be deemed to have
commenced on the date on which a notice of strike or lock- out
under section 22 is received by the conciliation officer or on the
date of the order referring the dispute to a Board, as the case
may be.
(2) A conciliation proceeding shall be deemed to have
concluded--
(a) where a settlement is arrived at, when a
memorandum of the settlement is signed by the
parties to the dispute;
(b) where no settlement is arrived at, when the
report of the conciliation officer is received by the
appropriate Government or when the report of the
Board is published under section 17, as the case
may be; or
(c) when a reference is made to a Court, [Labour
.
Court, Tribunal or National Tribunal] under section
10 during the pendency of conciliation
proceedings.
(3) Proceedings [ before an arbitrator under section 10A or
before a Labour Court, Tribunal or National Tribunal] shall be
deemed to have commenced on the date of the [reference of the
dispute for arbitration or adjudication, as the case may be] and
such proceedings shall be deemed to have concluded [on the
date on which the award becomes enforceable under section
17A]."
11. The clear mandate of law is evident from the above noted
provisions of the Act. The proceedings before the Conciliation
Officer comes to an end in case of failed conciliation, when the
failure report prepared by such authority under Section 12 (4) of
the Act, is received by the Labour Commissioner. Reference in this
behalf can also be made to the judgment passed by the Hon'ble
Supreme Court in M/s Lokmat Newspapers Pvt. Ltd. Vs.
Shankarprasad, AIR 1999 SC 2423, in which it has been held
as under:
"24. In order to answer these questions, it is necessary to note sub-
section (4) of Section 12 of the I. D. Act which reads as under :
"(4) If no such settlement is arrived at, the conciliation officer
shall, as soon as practicable after the close of the
investigation, send to the appropriate Government a full report
setting forth the steps taken by him for ascertaining the facts
and circumstances relating to the dispute and for bringing
.
about a settlement thereof, together with a full statement of
such facts and circumstances, and the reasons on account of
which, in his opinion, a settlement could not be arrived at.."
A mere look at this provision shows that if the Conciliation Officer
finds during conciliation proceedings that no settlement is arrived at
between the disputing parties, then after closing the investigation he
has, as soon as practicable, to send to the appropriate Government a
full report setting forth the steps taken by him for ascertaining the
facts and circumstances relating to the dispute and has also to
mention all other details as required to be mentioned in the report
under Section 12 (4) of the I. D. Act.
25. The aforesaid statutory requirements leave no room for doubt
that after closing the investigation and after having arrived at the
conclusion that no settlement is possible between the parties, the
Conciliation Officer has to spend some more time before submitting
his detailed written report about failure of conciliation for information
and necessary action by the State Government. In the very nature of
things, therefore, such requirement will take at least a couple of days,
if not more, for the conciliator after closing the investigation to enable
him to send an appropriate report to the State Government. It is,
therefore, obvious that on 22-6-1982 when by 4.35 p. m. the
Conciliation Officer declared that settlement was not possible
between the parties and he closed the investigation, neither his
statutory function did not come to an end nor did he become functus
officio. His jurisdiction had to continue till he submitted his report as
per S. 12 (4) to the appropriate Government. Even such preparation
of the report and sending of the same from his end to the appropriate
Government would obviously have taken at least a few days after
22-6-1982. It must, therefore, be held that the conciliator remained in
charge of the conciliation proceedings at least for a couple of days
after 22-6-1982. It is, therefore, difficult to appreciate how within half
.
an hour after the closing of investigation by the conciliator and before
his getting even a breathing time to prepare his detailed written
report about failure of conciliation to be sent to the Government as per
Section 12 (4) , the appellant could persuade itself to presume that
conciliation proceedings had ended and, therefore, it was not
required to follow the procedure of S. 33 (1) and straightway could
pass the impugned order of retrenchment within 25 minutes of the
closing of investigation by the conciliator on the very same day. It is
difficult to appreciate the reasoning of the Labour Court that after the
closer of investigation the conciliator became functus officio and the
management could not have approached him for express written
permission to pass the impugned order. It is easy to visualise that
even on the same day i. e. on 22-6-1982 or even on the next day,
before the conciliator had time even to start writing his report, such
an express permission could have been asked for by the appellant as
the conciliator by then could not be said to have washed his hand off
the conciliation proceedings. He remained very much seized of these
proceedings till at least the time the report left his end apart from the
further question whether conciliation proceedings could be said to
have continued till the report reached the State Government. Thus, on
the express language of S. 12 (4) the conclusion is inevitable that
closer of investigation by 4.35 p. m. on 22-6-1982 did not amount to
termination of conciliation proceedings by that very time. The
argument of learned counsel for the appellant was that closer of
investigation automatically amounted to termination of conciliation
proceedings. This argument proceeds on a wrong premise that closer
of investigation by the conciliator is the same as closer of conciliation
proceedings. The legislature while enacting S. 12 (4) has deliberately
not used the words 'closer of conciliation' but, on the contrary,
provided that after closer of investigation something more was
required to be done by the conciliator as laid down under S. 12 (4)
before he can be said to have done away with conciliation
proceedings earlier initiated by him. On this conclusion alone the
.
decision rendered by the Division Bench of the High Court that the
impugned order of termination dated 22-6-1982 was issued by the
appellant without following the procedure of S. 33 (1) of the I. D. Act
has to be sustained."
12. Section 33 of the Act, reads as under:
"33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings. -
(1) During the pendency of any conciliation proceeding
before a conciliation officer or a Board or of any
proceeding before a Labour Court or Tribunal or National
Tribunal in respect of an industrial dispute, no
employer shall-
(a) in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of
service applicable to them immediately before the
commencement of such proceeding; or
(b) for any misconduct connected with the
dispute, discharge or punish, whether by dismissal
or otherwise, any workmen concerned in such
dispute,
save with the express permission in writing of the
authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in
respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to a
workman concerned in such dispute [or, where there
are no such standing orders, in accordance with
the terms of the contract, whether express or
implied, between him and the workman] -
.
(a) alter, in regard to any matter not connected
with the dispute, the conditions of service
applicable to that workman immediately before the
commencement of such proceeding; or
(b) for any misconduct not connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, that workman:
Provided that no such workman shall be
discharged or dismissed, unless he has been paid
wages for one month and an application has been
made by the employer to the authority before which
the proceeding is pending for approval of the action
taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2), no employer shall, during the pendency
of any such proceeding in respect of an industrial
dispute, take any action against any protected
workman concerned in such dispute--
(a) by altering, to the prejudice of such protected
workman, the conditions of service applicable to
him immediately before the commencement of such
proceedings; or
(b) by discharging or punishing, whether by
dismissal or otherwise, such protected workman,
save with the express permission in writing of the
authority before which the proceeding is pending.
Explanation.-- For the purposes of this sub-section,
a "protected workman", in relation to an establishment,
means a workman who, being [a member of the
executive or other office bearer] of a registered trade
union connected with the establishment, is recognised
as such in accordance with rules made in this behalf.
.
(4) In every establishment, the number of workmen
to be recognised as protected workmen for the
purposes of sub-section (3) shall be one per cent. of the
total number of workmen employed therein subject to a
minimum number of five protected workmen and a
maximum number of one hundred protected workmen
and for the aforesaid purpose, the appropriate
Government may make rules providing for the
distribution of such protected workmen among various
trade unions, if any, connected with the establishment
and the manner in which the workmen may be chosen
and recognised as protected workmen.
(5) Where an employer makes an application to a
conciliation officer, Board, an arbitrator, a labour
Court, Tribunal or National Tribunal under the proviso
to sub-section (2) for approval of the action taken by
him, the authority concerned shall, without delay, hear
such application and pass, [within a period of three
months from the date of receipt of such application],
such order in relation thereto as it deems fit:]
[Provided that where any such authority
considers it necessary or expedient so to do, it may, for
reasons to be recorded in writing, extend such period
by such further period as it may think fit:
Provided further that no proceedings before any
such authority shall lapse merely on the ground that
any period specified in this sub-section had expired
without such proceedings being completed.]"
13. Section 33A of the Act, reads as under:
.
"33A. Special provision for adjudication as
to whether conditions of service, etc., changed
during pendency of proceedings.- Where an
employer contravenes the provisions of section 33
during the pendency of proceedings [before a
conciliation officer, Board, an arbitrator, a Labour
Court, Tribunal or National Tribunal], any employee
aggrieved by such contravention may, make a
complaint in writing [in the prescribed manner,--
r to
(a) to such conciliation officer or Board, and
the conciliation officer or Board shall take such
complaint into account in mediating in, and
promoting the settlement of, such industrial
dispute; and
(b) to such arbitrator, Labour Court, Tribunal
or National Tribunal and on receipt of such
complaint, the arbitrator, Labour Court,
Tribunal or National Tribunal, as the case may
be, shall adjudicate upon the complaint as if it
were a dispute referred to or pending before it,
in accordance with the provisions of this Act
and shall submit his or its award to the
appropriate Government and the provisions of
this Act shall apply accordingly.]
14. Section 33A is designed to provide an instant remedy to
the workers aggrieved by the contravention of Section 33 of the
Act. The complaint of such contravention can be made not only
to the adjudicatory authorities, but to the conciliatory authorities
also. Where the complaint is to a conciliatory authority, it will take
into account such complaint in the course of mediating or
promoting the settlement of the dispute. But where the complaint
is made to an adjudicatory authority i.e. to an arbitrator, labour
.
court, tribunal or national tribunal, it will adjudicate upon the
dispute as if it is a dispute referred to or pending before it.
15. The plain reading of Section 33A suggests that in case of
violation of Section 33 of the Act and during the proceedings
before the Conciliation Officer, the complaint will be filed before
such authority and in case of violation during the pendency of
industrial dispute before any adjudicatory authority, the
complaint shall lie to such authority. This interpretation,
however, renders the mandate of Section 33A otiose. If we take
the example of the facts involved in the present case, the failure
report was submitted by the Conciliation Officer on 3.8.2021,
whereas the last proceedings held by him were on 23.7.2021.
Once the conciliation had failed, no proceedings were pending
before him after the failure report was received by the Labour
Commissioner. Now, if the "Union" is asked to file its complaint
under Section 33A of the Act before the Conciliation Officer, it
shall be meaningless. Conciliation has already failed and as per
Section 33A, Conciliation Officer can foster only mediation or
conciliation. The workman in such event shall be rendered
remedy less.
16. The use of the word 'such' in Section 33A of the Act thus
.
does not imply that at the time when the complaint is preferred
by the aggrieved workman, the main dispute must be pending
before the authority to which the complaint is preferred; it clearly
refers to the dispute which was referred to its adjudication and it
has no reference to the pendency of the main dispute. In other
words, it is sufficient that at the time of the contravention of
Section 33, the main dispute was pending before the authority
under the Act and it is not necessary that the dispute must
continue to be pending at the time of making the complaint.
17. The first question is accordingly answered, the learned
Labour Court, Shimla has rightly exercised the jurisdiction to
entertain the complaint under Section 33A of the Act in the facts
of the instant case.
18. As regards, the second question, it will be gainful to
observe that the rationale behind Section 33 and Section 33A of
the Act is to provide immediate protection to the workman. On
receipt of complaint under Section 33A, the adjudicatory
authority under the Act decides the complaint in the same
manner as reference made to it under Section 10 of the Act. The
.
workman is saved from procedural prolongation under the Act for
making reference to appropriate Government, which very often
than not takes considerable long period. The connotation of the
term 'shall adjudicate upon the complaint as if it were a dispute
referred to or pending before it, in accordance with the provisions
of this Act' clearly indicate the jurisdiction of the authority under
Section 33A is the same as the jurisdiction of the authorities
under the Act relating to the adjudication of an industrial dispute
on a reference being made to them under Section 10 of the Act
read with Section 11A.
19. In other words an adjudicator acting under this section
would be dealing with the matter as if the question has been
referred to it under the Act, and will thus have a very wide
jurisdiction and it can deal with all aspects and modulate the
reliefs that can be granted under Sec. 11A.
20. In Automobile Products India Ltd vs. Rukmaji Bala,
AIR 1955 SC 258, the Hon'ble Apex Court has observed that the
Scheme of the Section lays down the authority, to which the
complaint is to be made in respect of issues arising due to
contravention of Section 33 and the merits of the Act or order of
.
the employer. Simply put the jurisdiction of the authority is not
only to merely adjudicate upon the matter and decree the relief
but to also to indulge into the merits of the case.
21. In the case of Kumarhatty Co Ltd vs. Ushnath
Pakrashi, AIR 1959 SC 1399, the Hon'ble Supreme Court has
observed that the complaint under Section 33A of the Act is to
be placed on an equal threshold as compared to a complaint
made under Section 10 of the Act and the adjudicatory body has
every right vested in it to deal with the complaint under Section
33A by following the similar procedure as it would have done had
the complaint been filed under Section 10 of the Act. Therefore,
it can be safely assumed that the adjudicatory body is vested with
the power to decree the relief as may be permissible in the light
of Section 11A.
22. The words "and the provisions of this Act shall apply
accordingly' as mentioned in Section 33A signify that the
adjudicating body has to submit its award to the appropriate
government. The awards after being published under Section
17A will have the same effect and force as awards made on a
reference under Section 10 of the Act. Thus, it is abundantly clear
that the nature and scope of the proceedings in complaint under
.
Section 33A of the Act are not in any manner inferior to the
proceedings initiated under Section 10 of the Act.
23. In Management of Hotel Imperial, New Delhi and
others vs. Hotel Workers Union, AIR 1959 SC 1342, a three
Judges Bench of the Hon'ble Supreme Court has held as under:
"20. This, however, does not conclude the matter so far as
the grant of interim relief in these cases is concerned. Even
though there may be an implied term giving power to the
employer to suspend a workman in the circumstances
mentioned above, it would not affect the power of the
tribunal to grant interim relief for such a power of
suspension in the employer would not, on the principles
already referred to above, take away the power of the
tribunal to grant interim relief if such power exists under the
Act. The existence of such an implied term cannot bar the
tribunal from granting interim relief if it has the power to do
so under the Act. This brings us to the second point, which
has been canvassed in these appeals.
21. After a dispute is referred to the tribunal under s. 10 of
the Act, it is enjoined on it by s. 15 to bold its proceeding
expeditiously and on the conclusion thereof submit its
award to the appropriate government. An "award" is defined
in S.2(b) of the Act as meaning "an interim or final
determination by an Industrial Tribunal of any industrial
dispute or of any question relating thereto." Where an order
referring an industrial dispute has been made specifying the
points of dispute for adjudication, the tribunal has to confine
its adjudication to those points and matters incidental
thereto; (s. 10(4)). It is urged on behalf of the appellants that
the tribunal in these cases had to confine itself to
adjudicating on the points referred and that as the question
of interim relief was not referred to it, it could not adjudicate
upon that. We are of opinion that there is no force in this
argument, in view of the words "incidental thereto"
appearing in s. 10(4). There can be no doubt that if, for
example, question of reinstatement and/or compensation is
referred to a tribunal for adjudication, the question of
.
granting interim relief till the decision of the tribunal with
respect to the same matter would be a matter incidental
thereto under s. 10(4) and need not be specifically referred
in terms to the tribunal. Thus interim relief where it is
admissible can be granted as a matter incidental to the main
question referred to the tribunal without being itself referred
in express terms."
24. Though the dispute in the case of Imperial Hotel was
referred for adjudication under Section 10 of the Act, but the
principle laid down in the said judgment can be gainfully
employed in the facts of the present case in the light of the
discussion as the powers of adjudicatory authorities to deal with
the complaints under Section 33A are analogous to the powers of
such authorities to deal with reference under Section 10 of the
Act.
25. In Bidi, Bidi Leaves and Tobacco Merchants'
Association Gondia and others vs. State of Bombay (now
Maharashtra) and others, AIR 1962 SC 486, the Constitutional
Bench of the Hon'ble Supreme Court has held as under:
"15. It is well settled that industrial adjudication under the
provisions of the Industrial Disputes Act, 1947 is given wide powers
and jurisdiction to make appropriate awards in determining in
industrial disputes brought before it. An award made in an industrial
adjudication may impose new obligations on the employer in the
interest of social justice and with a view to secure peace and
harmony between the employer and his workmen and full co-
.
operation between them. Such an award may even alter the terms of
employment if it is thought fit and necessary to do so. In deciding
industrial disputes the jurisdiction of the tribunal is not confined to
the administration of justice in accordance with the law of contract.
Mukherjee, J., as he then was, has observed in The Bharat Bank
Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi the tribunal
"can confer rights and privileges on either party which it considers
reasonable and proper, though they may not be within the terms of
any existing agreement. It has not merely to interpret or given effect
to the contractual rights and obligations between them which it
considers essential for keeping industrial peace." since the decision
of the Federal Court in Western India Automobile Association v.
Industrial Tribunal, Bombay, it has been repeatedly held that the
jurisdiction of industrial tribunals if much wider and can be
reasonably exercised in deciding industrial disputes with the object
of keeping industrial peace and progress (Vide: Rohtas Industries,
Ltd., v. Brijnandan Pandey; The Patna Electric Supply Co. Ltd., Patna
v. The Patna Electric Supply Workers Union. Indeed, during the last
ten years and more industrial adjudication in this country has made
so much progress in determining industrial disputes arising between
industrial of different kind and their employee that the jurisdiction
and authority of industrial tribunals to deal with such disputes with
the object of ensuring social justice is no longer seriously disputed."
26. In Niemla Textile Finishing Mills Ltd., vs. 2nd Punjab
Tribunal and others AIR 1957, SC 329, the Constitutional
Bench of the Hon'ble Supreme Court has held as under:
"23. So far as delegated legislation is concerned, abstract
definitions of the difference between the judicial and the legislative
functions have been offered (See the distinction drawn by Mr.
Justice Field in the Sinking Fund case, but they are of little use
when applied to a situation of complicated facts. The function of a
.
Court is to decide cases and leading jurists recognize that in the
decision of many cases a Court must fill interstices in legislation. A
legislator cannot anticipate every possible legal problem; neither
can he do justice in cases after they had arisen. This inherent
limitation in the legislative process makes it essential that there
must be some elasticity in the judicial process. Even the ordinary
courts of law apply the principles of justice, equity and good
conscience in many cases; e. g., cages in tort and other cases where
the law is not codified or does not in terms cover the problem under
consideration. The Industrial Courts are to adjudicate on the
disputes between employers and their workmen etc., and in the
course of such adjudication they must determine the "rights" and
"wrongs" of the claim,% made, and in so doing they are
undoubtedly free to apply the principles of justice, equity and good
conscience, keeping in view the further principle that their
jurisdiction is invoked not for the enforcement of mere contractual
rights but for preventing labour practices regarded as unfair and
for restoring industrial peace on the basis of collective bargaining.
The process does not cease to be judicial by reason of that elasticity
or by reason of the application of the principles of justice, equity
and good conscience."
27. Reference can be made to a Division Bench judgment
passed by the High Court of Rajasthan at Jodhpur in National
Textile Corporation Ltd. and Ors. v/s State of Rajasthan and
Anr., 1989 LabIC 1722, in which it has been held as under:
"24. Thus we have come to the conclusion that an Industrial
Tribunal is competent to grant interim relief Under Section 10(4) of the
Act, with respect to matters incidental to the points of dispute for
adjudication. And that the Tribunal is competent to grant ad hoc
increase in matter of industrial dispute with regard to demand for
.
increase in wages, for the adjudication of which reference has been
made to it by the State Government. The next question is under what
circumstances an interim relief may be granted, it may be stated that
granting of an interim relief is purely within the discretion of the
Tribunal and this discretion is to be exercised with reason and sound
judicial principles. We may adopt the same principles which govern
the exercise of discretion by the Civil Court while granting temporary
injunction. The principles may be stated as under:
Firstly, that there is prima-facie case, meaning there by
that there is serious question to be tried and an existence
of right;
Secondly, that the Tribunal's interference is necessary to
protect the party from that species of injury which is
regarded by the Courts irreparable and;
Thirdly, the balance of convenience that is the Tribunal
should weigh the amount of substantial mischief that is
likely to be done to the party claiming interim relief, if the
same is refused and compare it with that which is likely
to be caused to the other side if the interim relief is
granted."
28. From the above noticed exposition of law, it is clear that
there cannot be an absolute embargo on the power of the
adjudicatory authorities under the Act to pass interim order in
appropriate cases while dealing with the complaint under Section
33A of the Act. It goes without saying that the relief which is finally
claimed in complaint under Section 33A cannot be granted by way
.
of interim order. However, in order to maintain equities and to
protect the interest of justice, the adjudicatory authorities can
pass such interim orders as may be deemed necessary to
maintain the balance.
29. In the instant case, the complaint preferred by the Union
before the learned Labour Court refers to its grievance with
respect to contemplated changes in conditions of service of
workmen by the Company under the garb of the transfer of
workmen from one unit to another, that too, before the expiry of
long term settlement dated 21.1.2018. It has been alleged therein
that the purpose of transfer of the workmen by the Company is to
victimize them and to frustrate their rightful claims. The transfer
of 126 workers by the Company vide orders dated 29.7.2021
effective from 1.8.2021 from Unit No. II (plot No. 87A) to unit
No. I ( plot No.77), during the pendency of the dispute before the
Labour Officer-cum-Conciliation Officer has been assailed with
the prayer to allow such workmen to work at the same places
where they were working before issuance of impugned orders of
transfer. A further prayer has been made seeking direction to the
Company to pay all service benefits including full salary w.e.f.
1.8.2021.
.
30. By the nature of dispute brought before the learned
Labour Court by way of above noticed complaint under Section
33A, it requires determination not only on the legality of transfer
orders, but also on the merits of the claims of the Union. As
noticed above, the basic dispute raised by the Union is with
respect to the legality of the action of the Company, whereby the
conditions of service of the workmen were alleged to be changed
for ulterior purposes.
31. In the context of the nature of issues required to be
decided by the learned Labour Court in complaint under Section
33A of the Act, it cannot be said that the impugned interim orders
staying the transfer of workmen during pendency of complaint,
suffers from any illegality or perversity. Since the learned Labour
Court had jurisdiction to pass interim order, the same cannot be
interfered with in exercise of jurisdiction under Article 226 of the
Constitution of India. The second question is answered
accordingly and the power of learned Labour Court to pass interim
order in appropriate case is upheld.
32. Petitioner has further raised contention with respect to
.
the merits of the dispute pending before the learned Labour Court.
We are of the considered view that in exercise of jurisdiction under
Article 226 of the Constitution of India, this Court will not deal
with the questions of facts which are seriously disputed by the
parties and especially at such stage where the learned Labour
Court is still seized of the matter and has to decide the same on
merits in accordance with law.
33. Before parting, we may observe that in the given facts and
circumstances of the case and also on the basis of the material
available before the learned Labour Court, the complaint under
Section 33A of the Act could have been decided finally on merits
instead of passing an interim orders. Be that as it may, we don't
intend to interfere with the impugned order dated 24.8.2021
passed by the learned Labour Court, Shimla in Application No. 50
of 2021 for the reasons detailed above.
34. In the light of above discussion, we do not find any merit
in the instant petition and the same is dismissed, so also the
pending miscellaneous applications, if any.
.
(Tarlok Singh Chauhan)
Judge
15th September, 2021 (Satyen Vaidya)
(GR) Judge
r to
