HARINAGAR SUGAR MILLS LTD Vs. CHOUDHARY SIA SARAN SINHA
LAWS(PAT)-1960-10-8
HIGH COURT OF PATNA
Decided on October 18,1960

HARINAGAR SUGAR MILLS LTD. Appellant
VERSUS
CHOUDHARY SIA SARAN SINHA Respondents





Cited Judgements :-

GOODYEAR INDIA LTD VS. INDUSTRIAL TRIBUNAL [LAWS(P&H)-1968-3-1] [REFERRED TO]
MOHINI SUGAR MILLS LTD VS. A HASAN [LAWS(PAT)-1962-2-8] [REFERRED TO]
K DURGA PRASAD VS. INDUSTRIAL TRIBUNAL CUM LABOUR COURT [LAWS(APH)-2010-8-44] [REFERRED TO]
SHANKAR LAL MANATH VS. THE JUDGE, INDUSTRIAL TRIBUNAL [LAWS(RAJ)-2014-10-42] [REFERRED TO]


JUDGEMENT

B.K.Choudhary, J. - (1.)This is an application under Article 227 of the Constitution of India. The petitioner in this case is the Harinagar Sugar Mills Ltd., a public limited company registered under the Indian Companies Act, having its registered office at Bombay, and owning a vacuum pan sugar factory at Harinagar, where it carries on business of manufacture of sugar from crushing of sugarcane. During the crushing season, which normally starts from November and lasts till April each year, the work is carried on in three shifts, namely A, B and G. The last shift, namely, shift C, begins from 12 midnight and continues up to 8 a.m. On the 10th of March, 1958, respondent No. 2, Shri Lalit Lal, who was a Mill Engine driver, and one Ratan Gaddi, who was a Mill Engine Oil-man, were working in the C shift. Respondent No. 2 was working on Mill Engine No. 1. The big and bearing of the engine in question got heated as oil did not reach it from the oil reservoir, with the result that it melted away at about 5 a.m., on that date causing stoppage of that engine and consequently stoppage of the crushing of sugar cane in the factory for about 13 hours, as a result of which the entire process was dislocated, and the management is alleged to have suffered heavy pecuniary loss. According to the petitioner, the duty of Rattan Gaddi was to see that oil passed from the oil reservoir to the various parts of the engine, including the big and bearing, and the duty of respondent No. 2, being the driver of the engine in question, was to see that the engine or the parts of the same did not get heated or damaged, and, as a part of that duty, his further duty was to see from time to time that the oil passed from the oil reservoir to the big and bearing and to other parts of the engine so that nothing untoward might happen. On the 11th of March, 1958, charge-sheets were submitted against both the workmen, namely, the engine driver and the engine oilman, and they were asked to show cause why an inquiry should not be made into the matter and proper action-be taken against them. Both the workmen submitted their explanations. So far as Rattan Gaddi is concerned, we are not concerned with his case in the present application because he admitted his mistake in his statement made before the domestic inquiry and his dismissal from service was approved by the Labour Court. So far as respondent No. 2, the engine driver, is concerned, he denied the truth of the charge levelled against him, and submitted that the melting of the big and bearing of the engine in question was not due to any lack of care on his part. It was asserted by him that it was not a part of his duty to see that the oil passed from the oil reservoir to the big and bearing and to other parts of the engine, On receipt of the above explanation, the management decided to hold an enquiry and fixed the 14th of March, 1958, at 9 a.m., for holding the inquiry in presence of respondent No. 2. Accordingly, the said respondent was informed of the holding of the inquiry by letter dated the 13th of March, 1958. But, in spite of having received that letter he did not turn up at the inquiry, and the management fixed 3 p.m., on the same day, namely, the 14th of March, 1958, for holding the inquiry requiring respondent No. 2 to attend the same. It appears that respondent No. 2 again failed to appear, and the management fixed the 15th of March, 1958, for holding the inquiry. On that date, respondent No. 2 appeared, but refused to co-operate with the inquiry unless the Secretary of the Labour Union was permitted to be present and take part in the inquiry. The management refused to permit the Secretary of the Labour Union to participate in the inquiry and made an ex parte inquiry on the 15th of March, 1958 after the refusal of respondent No. 2 to take part in the same. But nevertheless the management gave one more opportunity to respondent No. 2 for having the inquiry held in his presence, and fixed the 17th of March, 1958 for the same. Respondent No. 2, however, insisted on his not co-operating with the inquiry unless the Secretary of the Labour Union was permitted to participate in the same The management, having refused to permit the Secretary of the Labour Union to be present at the inquiry, came to the conclusion on the ex parte enquiry that the charge levelled against respondent No. 2 had been fully established, and an information was given to respondent No. 2 by a letter dated the 19th of March, 1958 with regard to the same, intimating to him that his service with the Company stood determined with effect from the 11th of March, 1958, and he was required to collect his full and final account as might be due to him in law and vacate the quarters which had been allotted to him for residence by the Mill. Thereafter, the management made an application under Section 33(2) of the Industrial Disputes Act, 1947, (hereinafter to be referred to as the Act) in the Court of the Presiding Officer, Industrial Tribunal, Bihar for approval of the action taken against respondent No. 2 inasmuch as before that Tribunal Reference No. 30 of 1957 was pending adjudication in which both the management and the workmen were concerned. The alleged mis-induct of respondent No. 2 in the present case, however, was in no way connected with the subject-matter of dispute in that case. The application for approval was numbered as Misc. Case No. 41 of 1958. After respondent No. 2 filed his show cause petition on the 20th of April, 1958, the Presiding Officer of the Industrial Tribunal, Bihar, transferred the proceeding to the Presiding Officer, Labour Court, Muzaffarpur (respondent No. 1) for disposal. The Labour Court, however, held that respondent No. 2 was not guilty of any negligence, and the finding arrived at by the management to the contrary at the domestic inquiry was perverse. It, therefore, held, that the dismissal of respondent No. 2 was unjustified and unreasonable. Accordingly, the prayer of the management for ap-proval of its action taken against this respondent was rejected by the Labour Court by its order dated the 16th of Jury, 1958, Being thus aggrieved, the petitioner, has come up to this Court with this application, and has made a prayer for setting aside the above order of the Labour Court.
(2.)Before dealing with the points raised in the case, it may, perhaps, be necessary to refer to some of the provisions of the Act relating thereto Section 33 of the Act, as it stood originally in Act No. 14 of 1947, ran as follows:
"33'. No employer shall during the pendency of any conciliation proceedings or proceedings before a Tribunal, in respect of any industrial 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 proceedings, nor, save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be, shall he during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workmen, except for misconduct not connected with the dispute."
Under the above provision, an employer was absolutely prevented from altering the conditions of service applicable to the workmen concerned immediately before the commencement of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute to their prejudice. The employer was also prevented from discharging, dismissing or otherwise punishing any such workmen during the pendency of such proceedings, except with express permission in writing of the Conciliation Officer, Board, or Tribunal, as' the case might be. But, so far as the right of the employer to punish any such workmen for misconduct not connected with the dispute was concerned, it was left untouched, and the employer was entitled to exercise the common law power of dealing with his workmen in accordance with law as was open to him, and the pendency of proceedings referred to above could not in any manner fetter his above right,
(3.)Thereafter, Industrial Disputes (Appellate Tribunal) Act (Act 48 of 1950) was enacted, which made certain changes in the above provision. By this Act, the awards and decisions of the Industrial Tribunal were made subject to appeal in respect of particular matters, and certain amendments were also made to the Industrial Disputes Act of 1947. Section 33 of the Act, after such amendment, was as under:
"During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall-- (a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) discharge or punish whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be."
By this amendment, the liberty of the employer to deal with his workmen for any misconduct unconnected with the dispute was fettered, and the employer could not discharge or punish whether by dismissal or otherwise, any workmen concerned in such dispute, except with express permission in writing of the Conciliation Officer, Board or Tribunal, as the case might be, whether the misconduct was connected or not with the dispute in question. A new Section 33-A was also introduced in the Act by this Amending Act, which runs as follows:
"Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Tribunal and on receipt of such complaint that Tribunal 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 its award to the appropriate Government and the provisions of this Act shall apply accordingly."
Thus, by introduction of the above new section, an additional right was created in favour of workmen to make a complaint in writing to the Tribunal, if there has been any contravention of the provisions of Section 33 by the employer, and the Tribunal has been empowered to adjudicate upon such complaint as if it were a dispute referred to or pending before it.


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