Decided on May 26,2003



J.B.KOSHY, J. - (1.) The petitioner is a company registered under the Companies Act. One of the unions (2nd respondent herein) representing 344 workers raised an industrial dispute claiming that 344 workers were denied employment for the period from February 18, 1991 to July 6, 1991. It was a period of strike. According to Union 344 workmen represented by them did not participate in the strike and they were willing to work, but they were denied work, especially because of the striking workers. According to them, the management also did not give them any protection to do the work. The following issue was referred for adjudication before the Labour Court, Kannur. "Denial of employment to 344 workers for the period from February 18, 1991 to July 6, 1991."
(2.) The definite case of the workers is that they were denied employment from February 18, 1991 to July 6, 1991. Since the denial of employment was referred to the Labour Court for adjudication, a claim statement was filed by the union claiming that they were entitled to wages for the period from February 18, 1991 to July 6, 1991 as a consequential relief. The petitioner management filed a written statement refusing all claims, contentions and demands made by the 2nd respondent. Apart from the contentions on merit raised, the management raised a contention that the claim raised by the second respondent that they are entitled to wages during the period of alleged denial of work is not referred for adjudication and the Labour Court has no jurisdiction to adjudicate the issue regarding wages and hence reference itself is bad. The contention of the management is that the wages including the period and mode of payment is coming under III Schedule of the Industrial Disputes Act and since the establishment is employing more than 100 employees the issue regarding wages can be adjudicated only by the Industrial Tribunal (Section 7-A). The Labour Court can adjudicate only matter that comes under II Schedule (Section 7). After perusing copy of the statement filed by the Management the above union filed a petition to the Government and the Government consequently passed Exhibit P1 order transferring the dispute to the Industrial Tribunal, Kozhikode and also modifying the reference as follows: "Whether the 344 workers whose names are shown in the list attached to the G.O. Rt. 1489/92/LBR dated June 9, 1992 are entitled to wages during the period February 18, 1991 to July 6, 1991 and if so what is the "quantum".
(3.) It is the contention of the petitioner that before transferring the case from Labour Court to the Industrial Tribunal, they were not heard. It is submitted that from Labour Court a dispute can be referred only to another Labour Court in view of Section 33-B(1) of the Industrial Disputes Act. According to the management, a dispute pending before the Industrial Tribunal can be transferred to another Industrial Tribunal and from Labour Court to another Labour Court. But a dispute pending before the Labour Court cannot be transferred to the Tribunal as decided in Achamma v. State of Kerala 1979 Ker LT 187. The Government contended in paragraph 4 of the counter affidavit that in Management of Senapathy Whitley Ltd. v. State of Kamataka 1984 Lab IC 1890 it was held that the power of the appropriate Government under Section 33-B(1) includes the power to withdraw a case from a Labour Court and to transfer the same to a Tribunal and vice versa subject to the competence of the forum to adjudicate upon the matter concerned.;

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