Madras High Court
K.Ezhilarasi vs Government Of India on 17 June, 2021
W.P.No.41427 of 2016
and W.P.No.6834 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
W.P.No.41427 of 2016
and
W.P.No.6834 of 2021
W.P.No.41427 of 2016:
1. K.Ezhilarasi
2. V.Vijayalakshmi
3. R.Dhanalakshmi
4. M.Pappathi
5. R.Ayyam Perumal
6. P.Indrani
7. K.M.Suguvana Kumar
8. V.Dinesh Kumar
9. V.Thiruvengada Raja
10. K.Gopi
11. M.Vijayalakshmi
12. M.Rajendran
13. V.Shanthamma
14. S.Sivagami ... Petitioners
vs.
1. Government of India,
rep. By its Secretary,
Ministry of Labour and Employment Department,
Rafi Marg,
New Delhi.
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
2. The Assistant Labour Commissioner (Central),
O/o. The Deputy Chief Labour Commissioner (Central),
No.4, Haddows Road,
Shastri Bhavan,
Chennai 600 006.
3. State Bank of Mysore,
rep. by its Managing Director,
Head Office, K.G.Road,
Bengaluru 560 009.
4. The Deputy General Manager,
State Bank of Mysore,
Zonal Office,
Central Zone,
NSC Bose Road,
Chennai 600 001.
5. State Bank of India,
rep. by its Chairman,
Dalmal Building,
Jamnalal Bajaj Road,
Nariman Point,
Mumbai 400 021. ... Respondents
(R5 impleaded vide order dated 23.06.2017 in W.M.P.No.8120 of 2017
in W.P.No.41427 of 2016)
Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Mandamus, forbearing the Respondents
3 and 4 from altering the service conditions of the Petitioners in any manner
including discontinuance of their service or failing to provide employment in
any manner without getting permission under Section 33 of the Industrial
Disputes Act, 1947 in the Dispute dated 21.10.2016 raised by the State Bank
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
of Mysore Employees' Union on behalf of the Petitioners regarding
absorption of their services, which is pending conciliation before the 2nd
Respondent as Dispute No.M7/21/2016-B3, dated 03.11.2016 and further
direct the 2nd Respondent to conciliate and effect settlement and if no
settlement is forthcoming to submit failure report under Section 12(4) of the
Industrial Disputes Act and in turn, direct the 1st Respondent to refer the
dispute for adjudication before the competent Industrial Adjudicator.
For Petitioners : Mr.Balan Haridas
For Respondents 1 & 2 : Mr.D.Ramesh Kumar,
Central Govt. Standing Counsel
For Respondents 3, 4 & 5: Mr.S.Ravindran, Senior Counsel
for Mr.S.Bazeer Ahamed
W.P.No.6834 of 2021:
1. K.Ezhilarasi
2. V.Vijayalakshmi
3. R.Dhanalakshmi
4. M.Pappathi
5. R.Ayyam Perumal
6. P.Indrani
7. K.M.Suguvana Kumar
8. V.Dinesh Kumar
9. V.Thiruvengada Raja
10. K.Gopi
11. M.Vijayalakshmi
12. M.Rajendran
13. V.Shanthamma
14. S.Sivagami ... Petitioners
vs.
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
1. Government of India,
rep. by its Under Secretary,
Ministry of Labour,
Rafi Marg,
New Delhi 110 001.
2. The Assistant Labour Commissioner (Central),
O/o. The Deputy Chief Labour Commissioner (Central),
No.4, Haddows Road,
Shastri Bhavan,
Chennai 600 006.
3. State Bank of India,
rep. by its General Manager – HR,
Local Head Office,
Circle Top House,
No.16, College Road,
Chennai 600 006. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorarified Mandamus, after calling
for the concerned records from the 1st and 2nd Respondents, quash the failure
report of the 2nd Respondent, dated 16.12.2019 bearing No.M.7/21/2016/B3
insofar as terming the dispute raised to be regarding termination of
Petitioners (14 employees) and the order of the 1st Respondent dated
30.12.2019 bearing No.L-12011/71/2019-IR(B-1) insofar as referring the
dispute raised as one to be relating to the termination of services of the
Petitioners (14 employees) as illegal, arbitrary and contrary to law and
consequently direct the 1st Respondent to refer the dispute raised regarding
absorption of Petitioners (14 employees) in the services of the 3rd Respondent
Bank, whose details are given in the Annexure to the dispute dated
21.10.2016, raised under Section 2(k) of the I.D. Act, 1947 for adjudication
before the Central Government Industrial Tribunal cum Labour Court,
Chennai and also spell the name of the 14 th employee in the reference,
correctly as “V.Shanthamma” instead of “V.Sabtganna”.
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
For Petitioners : Mr.Balan Haridas
For Respondents 1 & 2 : Mr.J.Madanagopal Rao,
Senior Panel Counsel for Central Govt.
For 3rd Respondent : Mr.S.Ravindran, Senior Counsel
for Mr.S.Bazeer Ahamed
COMMON ORDER
As the issue involved in both Writ Petitions is one and the same, cases
are taken up for disposal by a common order.
2. Writ Petition No.41427 of 2016 is filed seeking to forbear
Respondents 3 and 4 from altering the service conditions of the Petitioners in
any manner including discontinuance of their service or failing to provide
employment in any manner without getting permission under Section 33 of
the Industrial Disputes Act, 1947 in the Dispute dated 21.10.2016 raised by
the State Bank of Mysore Employees' Union on behalf of the Petitioners
regarding absorption of their services, which is pending conciliation before
the 2nd Respondent as Dispute No.M7/21/2016-B3, dated 03.11.2016 and for
a further direction to the 2nd Respondent to conciliate and effect settlement,
and if no settlement is forthcoming, to submit failure report under Section
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12(4) of the Industrial Disputes Act and in turn, direct the 1st Respondent to
refer the dispute for adjudication before the competent Industrial
Adjudicator.
2(a) Writ Petition No.6834 of 2021 is filed challenging the failure
Report dated 16.12.2019 of the 2nd Respondent vide No.M.7/21/2016/B3,
insofar as terming the dispute raised regarding termination of Petitioners (14
employees) and the order of the 1st Respondent dated 30.12.2019 bearing
No.L-12011/71/2019-IR(B-1) insofar as referring the dispute raised as one to
be relating to the termination of services of the Petitioners (14 employees) as
illegal, arbitrary and contrary to law and for a consequential direction to the
1st Respondent to refer the dispute raised regarding absorption of Petitioners
(14 employees) in the services of the State Bank of India, whose details are
given in the Annexure to the dispute dated 21.10.2016, raised under Section
2(k) of the I.D. Act, 1947 for adjudication before the Central Government
Industrial Tribunal cum Labour Court, Chennai and also spell the name of the
14th employee in the reference, correctly as “V.Shanthamma” instead of
“V.Sabtganna”.
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3. According to the Petitioners herein, they were employees of the
erstwhile State Bank of Mysore, employed on casual basis drawing regular
pay scale on par with the other employees. They have been termed as
temporary employees and in terms of the Bipartite Settlement dated
19.10.1966, modified from time to time, benefits of the wage scale have been
extended to them.
4. A dispute was raised by the Employees' Union with regard to the
regularization/absorption of the Petitioners herein, on permanent basis. But,
unfortunately, the Government has referred the dispute as one of non-
employment. Though there was no non-employment of the Petitioners and
that, the issue with regard to non-employment has been referred, fearing
disengagement, Petitioners herein filed W.P.No.41427 of 2016 for the
aforesaid prayer and this Court passed an interim order not to divest the
Petitioners from the present status. In the meantime, W.P.No.6834 of 2021
has been filed with regard to the erroneous Reference made by the
Government to the Tribunal, for adjudication.
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5. Mr.Balan Haridas, learned counsel for the Petitioners submitted
that, while modifying the Reference, the status of the Petitioners as on date
will have to be protected and the same should be reflected in the Reference,
so that, time limit can be fixed, in order to enable the Tribunal decide the
matter within a period of three months and a final Award could be passed in
the Industrial Dispute.
6. In support of his case, learned counsel for the Petitioners has
relied on the following decisions of the Apex Court:
(i) Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram
Gopal Sharma, (2002) 2 SCC 244
“14. Where an application is made under Section
33(2)(b) proviso, the authority before which the
proceeding is pending for approval of the action taken by
the employer has to examine whether the order of
dismissal or discharge is bona fide; whether it was by way
of victimization or unfair labour practice; whether the
conditions contained in the proviso were complied with or
not etc. If the authority refuses to grant approval
obviously it follows that the employee continues to be in
service as if the order of discharge or dismissal never had
been passed. The order of dismissal or discharge passed
invoking Section 33(2)(b) dismissing or discharging an
employee brings an end of relationship of the employer
and employee from the date of his dismissal or discharge
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but that order remains incomplete and remains inchoate as
it is subject to approval of the authority under the said
provision. In other words, this relationship comes to an
end de jure only when the authority grants approval. If
approval is not given, nothing more is required to be done
by the employee, as it will have to be deemed that the
order of discharge or dismissal had never been passed.
Consequence of it is that the employee is deemed to have
continued in service entitling him to all the benefits
available. This being the position there is no need of a
separate or specific order for his reinstatement. But on the
other hand, if approval is given by the authority and if the
employee is aggrieved by such an approval, he is entitled
to make a complaint under Section 33-A challenging the
order granting approval on any of the grounds available to
him. Section 33-A is available only to an employee and is
intended to save his time and trouble inasmuch as he can
straightaway make a complaint before the very authority
where the industrial dispute is already pending between
the parties challenging the order of approval instead of
making efforts to raise an industrial dispute, get a
reference and thereafter adjudication. In this view, it is
not correct to say that even though where the order of
discharge or dismissal is inoperative for contravention of
the mandatory conditions contained in the proviso or
where the approval is refused, a workman should still
make a complaint under Section 33-A and that the order
of dismissal or discharge becomes invalid or void only
when it is set aside under Section 33-A and that till such
time he should suffer misery of unemployment in spite of
the statutory protection given to him by the proviso to
Section 33(2)(b). It is not correct to say that where the
order of discharge or dismissal becomes inoperative
because of contravention of proviso to Section 33(2)(b),
Section 33-A would be meaningless and futile. The said
section has a definite purpose to serve, as already stated
above, enabling an employee to make a complaint, if
aggrieved by the order of the approval granted.”
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(ii) The Bhavnagar Municipality vs. Alibhai Karimbhai, (1977)
2 SCC 350
“10. In order to attract Section 33(1)(a), the
following features must be present:
(1) There is a proceeding in respect of an
industrial dispute pending before the Tribunal
.
(2) Conditions of service of the workmen
applicable immediately before the commencement of
the Tribunal proceedings are altered.
(3) The alteration of the conditions of service
is in regard to a matter connected with the pending
industrial dispute.
(4) The workmen whose conditions of service
are altered are concerned in the pending industrial
dispute.
(5) The alteration of the conditions of service
is to the prejudice of the workmen.
13. Retrenchment may not, ordinarily, under
all circumstances, amount to alteration of the conditions
of service. For instance, when a wage dispute is pending
before a Tribunal and on account of the abolition of a
particular department the workers therein have to be
retrenched by the employer, such a retrenchment cannot
amount to alteration of the conditions of service. In this
particular case, however, the subject-matter being
directly connected with the conversion of the temporary
employment into permanent, tampering with the status
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quo ante of these workers is a clear alteration of the
conditions of their service. They were entitled during the
pendency of the proceeding before the Tribunal to
continue as temporary employees hoping for a better
dispensation in the pending adjudication. And if the
appellant wanted to effect a change of their system in
getting the work done through a contractor instead of by
these temporary workers, it was incumbent upon the
appellant to obtain prior permission of the Tribunal to
change the conditions of their employment leading to
retrenchment of their services. The alteration of the
method of work culminating in termination of the
services by way of retrenchment in this case has a direct
impact on the adjudication proceeding. The alteration
effected in the temporary employment of the respondents
which was their condition of service immediately before
the commencement of the proceeding before the
Tribunal, is in regard to a matter connected with the
pending industrial dispute.”
(iii) Municipal Corporation of Greater Mumbai vs. K.V.Shramik
Sangh, (2002) 4 SCC 609
“25. The Corporation has disputed as to the
number of workers under the contract labour system and
their authenticity and the period of their work etc.
Merely because the records are not maintained by the
contractors, it may not be appropriate to accept the list
of workers given by the Union. Even from the reliefs
granted by the High Court already extracted above, it is
clear that 782 contract labourers were identified as
working through contracts; a direction was given to
constitute a committee to verify the claims of all
workmen other than already verified and to make a
report to the Corporation indicating their presence who
were working actually as contract labourers in the Solid
Waste Management Department on the date on which
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the writ petition was filed. Further, immediately on
receipt of such report, the Corporation shall absorb such
workmen as permanent workmen. These directions
themselves indicate as to the disputed questions that
arose for consideration.
29. In the result, for the reasons stated and
discussion made above, the impugned judgment and
order are set aside leaving it open to the Union to seek
remedies available in terms of para 125 of the judgment
of the Constitution Bench in SAIL [(2001) 7 SCC 1 :
2001 SCC (L&S) 1121] aforementioned before the
State Government or the industrial adjudicator, as the
case may be. In case, the Union moves the appropriate
government or the industrial adjudicator within four
weeks from today, they shall consider the same and pass
appropriate orders within a period of six months. The
order to maintain status quo regarding the employment
of the contract labourers to the extent indicated, was
passed in the writ petition on 20-4-1998 and even after
disposal of the writ petition, the High Court stayed the
order for a limited period and further, this Court passed
order to maintain the status quo on 26-10-1999 which is
continuing. In these circumstances, the order of status
quo shall continue for a period of six months. We also
make it clear that this order does not prevent the State
Government to proceed in accordance with law in the
matter of abolition of the contract labour system. The
appeal is allowed accordingly in the above terms. ...”
(iv) Oil and Natural Gas Corporation Limited vs. Petroleum
Coal Labour Union, (2015) 6 SCC 494
“25. It is further contended by the learned Senior
Counsel that in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] , this Court had the occasion to deal with the
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issue of “litigious employment”. Admittedly, the
workmen concerned were voluntarily appointed by the
Corporation initially on term basis. It is by virtue of
Section 33 of the Industrial Disputes Act that the
Corporation is prevented from terminating the
employment of the workmen concerned during the
pendency of the industrial dispute. The decision of the
Tribunal was rendered on 26-5-1999 and during the
period 1990-1999, the workmen concerned did not enjoy
any litigious employment but were beneficiaries of a
statutorily mandated protection and the Corporation has
the right under Section 33(1)(a) of the Act to seek
permission from the conciliation officer/Tribunal to
remove them from their services but that has not been
done by it. Therefore, it would be an improper and
misleading contention of the Corporation to describe this
scenario as litigious employment, which contention of it
does not stand for judicial scrutiny of this Court.”
6(a) Learned counsel for the Petitioners has also relied on the
following decisions rendered by this Court:
(i) Anaimalai National Estate Workers Union, Valparai vs.
Planters' Association of Tamil Nadu, Coimbatore, 2002 (4) LLN 530
“38. Alternate remedy and monstrosity of the
issue:
In the issue of alternate remedy is interrelated
with the monstrosity of the issue and would also be
relevant for the issue of maintainability which has been
considered above. Both Sri. A.L. Somayaji and Sri Vijay
Narayan had emphasized at length that the forums
constituted under the Act were effective remedies and as
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such writ petitions cannot be entertained. It is further
stated that S. 33-A of the Act entitles the aggrieved party
to complain against violation of S. 33(1)(a) of the Act
and as such the petitioners were not entitled to invoke
the writ jurisdiction. It is true that S. 33-A of the Act
deals with the situation of an employer contravening the
provisions of S. 33 of the Act during the pendency of the
proceedings before the authorities under the Act. An
employee aggrieved by the contravention may make a
complaint in writing to the concerned authority and such
authority shall adjudicate upon it as if it were a dispute
pending before it. To appreciate this objection, it is
necessary to extract S. 33(1) of the Act.
“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 (an arbitrator or)
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;”
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(ii) a Division Bench judgment dated 20.11.2015 rendered by this
Court in W.A.Nos.299, 1289 & 1473 of 2010 in the case of M.Rajan vs.
ONGC, Chennai
“37. In the preceding paragraphs, we have
noted the submissions of the learned counsel
appearing for the appellants contending that their
appointments are not illegal, but may amount to be an
irregular appointment and merely because their names
were not sponsored by the employment exchange
cannot be a reason to term their employment as
illegal. Based on such contention, it is submitted that
the main part of the judgment in the case of Uma
Devi (supra) is not applicable to their cases. We are
unable to accept the said contention, since the proper
method to understand and interpret any judgment is
43 to read the judgment as a whole. Whether an
appointment was irregular or illegal could be decided
based on the facts of each case. A distinction is
sought to be drawn by the respondent regarding the
nature of appointment of the appellants. It is their
contention that the appellants are not workmen
covered by the Standing Order of the respondent. The
appellants do not dispute that their orders of
appointment as term based employees specifically
states that Standing Orders are not applicable to them.
This is sought to be got over by contending that the
respondent inserted such a condition in the offer of
appointment only with a view to deny the benefit of
permanence. Another contention raised by the
respondent is that the appellants never worked in an
industrial establishment for being entitled to the
benefit of the statutes, as they were employed in the
Offices and other places in and around Chennai. In
the background of these facts, it has to be seen as to
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whether this Court exercising powers under Article
226 could adjudicate such disputes as done by the
Industrial Tribunal in the case of PCLU (supra),
where oral and documentary evidence were placed
before the Tribunal. The definite and only answer
shall be in the negative, as these aspects require
examination of facts coupled with oral and
documentary evidence. Therefore, we cannot give a
finding as to whether the appointments of the
appellants were 44 irregular and not illegal solely
based on the decision in the case of PCLU (supra),
which was rendered after the Tribunal recorded a
finding of fact on such issue. ”
(iii) an order dated 20.04.2004 in W.P.Nos.3987 of 2001 and 19263
of 2002 in the case of Chennai Airport Contract Workers' Union vs.
International Division of the Airports Authority of India
“13. ... Therefore, if the present status of the
members of the Petitioner Union are to be disturbed
pending adjudication of their present industrial
dispute, which is pending conciliation, it would only
result in allowing a further set of employees as
contract labourers to be inducted afresh and thereby,
the scope of controversy would only get further
widened, which will not be in the interest of either the
members of the Petitioner or the principal employer or
the contractor, whoever it may be. Therefore, I am of
the view that, it would be in the interest of justice and
fair-play that, while directing the concerned
conciliation authority to expedite the proceedings and
send the report to the appropriate Government for
making a reference of the dispute to the appropriate
industrial forum and in the meantime, the status of the
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members of the Petitioner Union should be allowed to
continue till such adjudication is decided one way or
the other. I find support for such a course being
adopted as has been directed by the Hon'ble Supreme
Court in the judgment reported in (2002) 4 SCC 609
(Municipal Corporation of Greater Mumbai vs.
K.V.Shramik Shang).”
7. Learned Senior Counsel appearing for the Bank (Sate Bank of
Mysore/State Bank of India) submitted that, though the dispute has been
referred erroneously, and that, this Court is empowered to issue a direction
for issuance of corrigendum, interim protection cannot be made in the
Reference and those words cannot be coined for the purpose of adjudication
by the Tribunal. According to the learned Senior Counsel, whether the
Petitioners herein have really worked for several years and they are entitled
to the benefits of permanent status/absorption needs to be adjudicated only by
the Tribunal.
8. It is further stated by the learned Senior Counsel that, as State
Bank of Mysore got amalgamated with State Bank of India, and records need
to be produced before the Tribunal for necessary adjudication, even without
ascertaining the genuineness of the names of the employees, even though, the
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dispute has been referred to one of non-employment, unilateral protection
cannot be granted. It is his stand that, if the Petitioners have any grievance,
they are entitled to remedy in terms of Section 33 of the Industrial Disputes
Act, 1947 and under the presumption that, there is violation and that, there
will be violation, coining of words in the Reference so as to protect the
interest of the employees, is not correct.
8(a) To substantiate his stand, learned Senior Counsel appearing for
the Bank has relied on the following:
(i) a decision of the Apex Court in the case of Rashtriya Chemical
and Fertilizers Ltd. vs. General Employees Association, (2007) 5 SCC
“11. ... In view of what has been stated in second
SAIL case (supra), the High Court has to consider whether
the stand taken in the writ petition was inconsistent. In the
instant case, the writ petitioner itself accepted that, certain
issues could not be decided in the writ petition. That being
so, High Court giving directions in the nature done, do not
appear to be appropriate. We are of the view that, the High
Court ought not to have given the directions in the manner
done and should have left the Respondent No.1-
Association to avail remedy available in the I.D. Act.”
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(ii) a decision of this Court in the case of Project Director,
Zirconium Project, Zirconium Complex, Department of Atomic Energy,
Palayakayal, Tuticorin vs. District General Workers' Union (CITU)
reported in 2010 (4) LLN 397
“16. The writ-petitioner Union can prosecute
its claim for regularization and if the Industrial
Tribunal holds in their favour regarding employer-
employee relationship, then the writ petitioner can also
claim the relief that will follow viz. wages during the
period of conciliation when right under S.33(1)(a) of
the Industrial Disputes Act is protected. All these will
follow only if they succeed in establishing the proof
that the employer-employee relationship exists. Until
this basic question of facts is settled, we cannot grant
the relief prayed for.”
(iii) yet another judgment of this Court rendered in the case of
Puthiya Jananayaga Vagana Ottunargal and Techniciankal Sangam vs.
Government of Tamil Nadu, reported in 2019 (2) LLN 236
“12. A conjoint reading of both the above
said provisions makes it clear that, it is independent
of each other, which clearly stipulates that, in case,
the employer violates the mandatory provisions, then
the employee can seek the relief. The employees
cannot presume that, the employer is going to violate
the provisions and seek for an injunction restraining
the Management from proceeding further or a
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direction not to alter the service conditions or to
direct the Management to comply with the provisions
of the Act. If there is no compliance by the employer,
the rights are protected not only in terms of the I.D.
Act, but also in view of the Constitution Bench
decision in the case of Jaipur Zila Sahakari Bhoomi
Vikas Bank Ltd. (cited supra).”
9. Heard the learned counsel on either side and perused the
material documents available on record.
10. It is not in dispute that, the Petitioners herein are covered under
the industrial dispute referred for adjudication. Petitioners before this Court
were employees of the erstwhile State Bank of Mysore and that, State Bank
of Mysore got merged with State Bank of India. It is also not in dispute that,
the issue raised by the erstwhile Union to which the Petitioners belong, raised
only the issue of regularization, as they were in service and were not denied
employment.
11. The Government, by referring the dispute pertaining to the
Petitioners herein, as to one of non-employment, instead of
regularization/absorption, has made a perfunctory approach to the issue on
hand. The dispute with regard to regularization/absorption can be raised only
by the Union under Section 2(k) of the Industrial Disputes Act, 1947, and
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whether the Union is competent to raise the dispute or not, is for the
Industrial Tribunal to decide. As the Reference made by the Government
vide order dated 30.12.2019 is liable to be interfered with, the Government
will have to issue a corrigendum with regard to regularization/absorption of
the Petitioners herein under the State Bank of India.
12. In view of the erroneous Reference, the matter is pending for
years and that, the dispute has been raised as early as in 2016. When there is
a wrong Reference, this Court is empowered to direct the Government to
issue a correct Reference by issuing a corrigendum. In order to avoid further
litigation, this Court frames the following issue to be referred for
adjudication.
“Whether the demand of the Union in seeking
regularization of 14 employees, viz. (1) K.Ezhilarasi
(2) V.Vijayalakshmi (3) R.Dhanalakshmi
(4) M.Pappathi (5) R.Ayyam Perumal (6)
P.Indrani (7) K.M.Suguvana
Kumar (8) V.Dinesh Kumar (9)
V.Thiruvengada Raja (10) K.Gopi
(11) M.Vijayalakshmi (12) M.Rajendran
(13) V.Shanthamma (14) S.Sivagami and who are
the erstwhile employees of State Bank of Mysore,
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
which was amalgamated with State Bank of India, is
justified or not; if not, to what relief the workmen are
entitled to ?”
13. If the Conciliation Report is submitted and received by the
Government, the Government will have to take a decision to refer the dispute
within a time frame. But, the Industrial Disputes Act says that, the
conciliation is deemed to be concluded on receipt of the Failure Report.
There will be a time lag for reference. During that time, the employer may
take action against activist employees, who may be protected or may not be
protected workmen. Unless otherwise, the Industrial Dispute is pending,
there is no need for the employer either to seek permission under Section
33(1) or Section 33(3) of the Industrial Disputes Act, 1947 or Approval
under Section 33(2)(b) of the Act, as the case may be.
14. In the present case on hand, admittedly there is a Reference, but
an erroneous one. As long as the Industrial Dispute is pending, rights of the
employees under Section 33(1), 33(2)(b) and 33(3) of the Industrial Disputes
Act, are protected. A reading of Section 33 of the Act would make it very
clear that, the employer is entitled to take action against the employee, if he is
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
not connected with the dispute. But, in the case on hand, the issue is with
regard to absorption/regularization of employees.
15. Even though, learned counsel for the Petitioners and the
Respondent/Bank, respectively, have referred to number of judgments, this
Court, in the decision rendered in the case of Puthiya Jananayaga Vagana
Ottunargal and Techniciankal Sangam vs. Government of Tamil Nadu,
reported in 2019 (2) LLN 236, has made it very clear that, at the threshold, if
the employer is going to violate the provisions of the Act, an interim
direction has to be given. Though the Reference made by the Government
pertains to the decision taken by the Apex Court, wherein, the issue arose
under the Bombay Laws referred, powers of the Industrial Tribunal and the
Labour Court to grant interim relief including stay of the termination/transfer
of the employees, are wide, which is absent in the Central Legislation. The
present Labour Code, which is yet to come into force is also silent about this.
16. In any event, in the present case on hand, already there is a
Reference and that, this Court has directed issuance of corrigendum and the
rights of the employees are protected in terms of the Industrial Disputes Act,
1947. This Court is of the view that, there is no need to incorporate words in
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
the Reference that, “till such time the issue is resolved, there cannot be any
alteration of any service condition”, as contended by the learned counsel for
the Petitioners. If such words are incorporated, it would mean that, the
Management has decided to take action contrary to the provisions of the Act
and it will set a bad precedent. Hence, this Court is not inclined to direct
incorporation of such words in the Reference pertaining to the case on hand.
17. It is no doubt true that, Courts have given direction during the
pendency of the Writ Petition that, the matter needs to be referred for
adjudication. Now in the light of the present situation, the Apex Court in the
case of Jaipur Zilla case (supra) and Bhavnagar Municipality case (supra),
has clearly held that, the interest of the workmen has to be completely
protected.
18. In view of the corrigendum to be issued by the Government,
which the Government shall do within a period of four weeks from the date
of receipt of a copy of this order, the Industrial Tribunal is expected to take
up the Industrial Dispute and proceed with the same without adjourning the
matter beyond seven working days at any point of time in terms of Rule
10B(8) of the Industrial Disputes (Central) Rules, 1957 and bring the issue
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
to a logical end. For better appreciation, the said Rule is extracted
hereunder:
"[10B. Proceeding before the Labour
Court, Tribunal or National Tribunal.—
(8) The Labour Court, Tribunal or National
Tribunal, as the case may be, shall not ordinarily
grant an adjournment for a period exceeding a week
at a time but in any case not more than three
adjournments in all at the instance of the parties to
the dispute:
Provided that the Labour Court, Tribunal or National
Tribunal, as the case may be, for reasons to be
recorded in writing, grant an adjournment exceeding
a week at a time but in any case not more than three
adjournments at the instance of any one of the parties
to the dispute."
19. The Government is expected to act swiftly as regards issuance of
Corrigendum within the time stipulated supra. Officials who are concerned
with regard to the dealing of Labour matters, are expected to deal with it
cautiously, as many of the issues deal with the lives of the employees and in
some cases, on account of wrong issue being referred, employers have to pay
for no fault of theirs.
20. Disputes take quarter Century to be concluded from Tribunal to
the High Court level and in case of demise of the employees, it becomes
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and W.P.No.6834 of 2021
difficult for the employer and the Court to find out their legal heirs, to serve
notice. I had an occasion to deal with a Writ Petition of the year 2002,
involving an industrial dispute which was pending for more than 28 years.
The whereabouts of the employee in that case was not able to be ascertained
and the Lawyers representing the employee as also the Management died due
to Covid-19. That is the reason for the aforesaid observation.
21. Even though the Labour enactment says that, it is meant for
speedy disposal, it moves in a snail's pace only and time has come where the
legal heirs of the deceased employee's legal heirs are going to continue the
dispute, i.e., the employees are going to leave the legacy of litigation to their
grand children/future generations.
22. The employees must furnish their date of birth and Aadhar Card
before the Tribunal, and mobile numbers, which shall be retained till the
issues are brought to a logical end, even though they are permitted to change
the provider. In all pending matters, the Authority concerned, Labour Court
and Tribunals must seek the above particulars, as dispute does not end in
Lower forums.
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and W.P.No.6834 of 2021
23. In fine, W.P.No.6384 of 2021 is ordered on the above terms.
It is made clear that, the name of the 13 th employee shall be correctly
spelt in the Reference as 'V.Shanthamma'. Since this Court has ordered
W.P.No.6384 of 2021, no further orders are required in W.P.No.41427 of
2016. No costs. Consequently, connected W.M.P.No.35401 of 2016 in
W.P.No.41427 of 2016 and W.M.P.Nos.7385, 7389 and 7390 of 2021 in
W.P.No.6834 of 2021 are closed.
17.06.2021
Index : Yes/No
Speaking Order : Yes/No
(aeb)
To:
1. The Secretary,
Government of India,
Ministry of Labour and Employment Department,
Rafi Marg, New Delhi.
2. The Assistant Labour Commissioner (Central),
O/o. The Deputy Chief Labour Commissioner (Central),
No.4, Haddows Road, Shastri Bhavan, Chennai 600 006.
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
3. The Managing Director,
State Bank of Mysore, Head Office,
K.G.Road, Bengaluru 560 009.
4. The Deputy General Manager,
State Bank of Mysore,
Zonal Office, Central Zone,
NSC Bose Road, Chennai 600 001.
5. The Chairman,
State Bank of India,
Dalmal Building, Jamnalal Bajaj Road,
Nariman Point, Mumbai 400 021.
6. The Under Secretary,
Government of India,
Ministry of Labour, Rafi Marg,
New Delhi 110 001.
7. The General Manager – HR,
State Bank of India,
Local Head Office, Circle Top House,
No.16, College Road, Chennai 600 006.
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W.P.No.41427 of 2016
and W.P.No.6834 of 2021
S.VAIDYANATHAN,J.
(aeb)
W.P.No.41427 of 2016
and
W.P.No.6834 of 2021
17.06.2021
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