TIN PLATE COMPANY OF INDIA PT LTD Vs. ABDUL SATTAR
LAWS(PAT)-1960-1-5
HIGH COURT OF PATNA
Decided on January 06,1960

TIN PLATE COMPANY OF INDIA (PT.) LTD Appellant
VERSUS
ABDUL SATTAR Respondents


Cited Judgements :-

HIND SHIPPERS (PRIVATE LTD VS. CENTRAL GOVERNMENT INDUSTRIAL [LAWS(PAT)-1997-11-35] [REFERRED TO]


JUDGEMENT

Kanhaiya Singh, J. - (1.)These are two applications by the Tin Plate Company of India (Private) Ltd. under Article 226 of the Constitution, and the question raised is whether the Labour Court at Dhanbad had jurisdiction to entertain applications under Section 33A of the Industrial Disputes Act, 1947, by two of their workmen, namely, Abdul Sattar, opposite party in Miscellanous Judicial Case No. 555 of 1958, and Ramasis Singh, opposite party in Miscellanous Judicial case No. 556 of 1958, and determine the legality or otherwise of their discharge from service. The facts leading to these applications may be shortly stated as follows:--
(2.)There was a stay-in-strike in some sections of the Works of the petitioner Company from 9th August, 1957, and on 12th August, 1957, several employees, including opposite parties Abdul Sattar and Ramasis Singh, were charge sheeted for undermining discipline and inciting workers to stop work, and after hearing, the opposite parties were discharged from service for misconduct OR 14th August, 1957. The discharge order was communicated to them by registered post on the same day, and further a copy of the said order was also sent on the same day to the Time Office to stop them from entering the Works. After some days the registered letters were returned unserved with an endorsement that the addresses were absent. The following two days, viz., 15th and 16th August were holidays, and when the opposite parties went to join their respective shift duties on 17th August, 1957, they were stopped by the Time Office from entering into the premises in view of the order of discharge. It appears that one day after the order of discharge, viz., on 15th August, 1957, the State Government, by its order No. III/DI/6011/571-14466, referred an industrial dispute to the State Industrial Tribunal, Bihar, at Patna, being reference No. 20/57. Shortly after, being stopped by the Time Office from joining their respective duties, the opposite parties made a complaint under Section 33A of the Industrial Disputes Act, 1947 (herein after referred to as the Act), before the Industrial Tribunal, Bihar, for contravention of the provisions of Section 33(1) of the Act, and they were registered as Miscellaneous Case No. 17/1957 M. C. 717/58 and Misc. Case No. 72/1957 M. C. /18/58 The petitioner Company was directed to show cause. In showing cause they pleaded that as the discharge of the opposite parties was decided upon and effectuated before the date of reference of the dispute to the Indus trial Tribunal, there was no contravention of Section 83 of the Act, and as such the petitions of complaint of the opposite parties were not maintainable and the Labour Court bad no jurisdiction to hear and adjudicate upon the said complaints. The petitioner Company invited the Labour Court to decide their preliminary objection to the maintainability of the petitions and the jurisdiction of the Court to entertain them. Both the cases were heard analogously by the Labour Court, and by its order dated 1st July, 1958, it decided that me complaints under Section 33A of the Act were maintainable and it had jurisdiction to hear them on merits. It is the validity of this order that is challenged by the petitioner Company in these two cases.
(3.)The facts are not disputed. The opposite parties in both the cases were discharged from service for misconduct on 14th August, 1957. The State Government referred an industrial dispute to the State Industrial Tribunal on 15th August, 1957. The discharge order was sent by registered post, but was not delivered, because the opposite parties were found absent. On 17th August, 1957, they went to join their duties, but were stopped by the Time Office from entering the Works, in pursuance of the discharge order. The question is whether, in the circumstances, Sections 33 and 33A of the Act were attracted. Sub-section (1) of Section 33, which is relevant for the present enquiry, provides as follows:--
"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 workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending".
Section 33A provides as follows:--
"Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court. Tribunal or National Tribunal and on receipt of such complaint that Labour Court, Tribunal or National 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 the Act shall apply accordingly".
It will be observed that Section 33A comes into operation when the provisions of Section 33 are contravened by an employer. In short, during the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceed-ing before a Labour Court or Tribunal or National Tribunal in respect of any industrial dispute, no workman shall be discharged or punished, whether by dismissal or otherwise, for any misconduct connected with the dispute, nor will his condition of service be altered in regard to any matter connected with the dispute: by any employer, save with the express permission in writing of the authority before which the proceeding is pending. The question in these two cases boils down to this--whether the discharge f the petitioners was made during the pendency of the proceeding before the-Labour Court. As stated earlier, the State Government referred an industrial dispute to the State Industrial Tribunal on 15th August, 1957, i.e., One day after the date of discharge. If the matter had rested there, obviously Section 33 did not come into operation, because the discharge cannot be said to have been made during the pendency of any proceeding before the Labour Court. The contention of the opposite party before the Labour Court was that the discharge order to be effective must be communicated to the workmen and that this communication was made to them on 17th August, 1957, and, therefore, in the eye of law, they were discharged from service during the pendency of the proceeding before the Labour Court, and, consequently, it was illegal as having been made without the permission of the Labour Court. This contention weighed with the Labour Court which, in effect, held that the order of discharge of the opposite parties was not effective until it was communicated to them. It purported to base its decision on certain decisions of the Labour Courts. I need not refer to them beyond saying that some support and some do not support the conclusions reached by it. The simple question is whether for the purposes of Sections 33 and 33A of the Act, the effectiveness of the order of discharge depends upon its communication. In other words, if before the order of discharge is communicated, there is reference by the State Government of the Industrial dispute to the Industrial Tribunal, the discharge will be deemed to have been made during the pendency of that proceeding. The plain reading of Section 33 does not support the construction sought to be put upon it by the Labour Court. In order to attract the provisions of Section 33 the discharge or dismissal must have been made during the pendency of the proceeding referred to therein. The communication is not one of the essential ingredients of Section 33. It only forbids alterations in the condition of service of workmen of their dismissal or discharge from service during the pendency of any proceeding. No proceeding is initiated until there is reference of the industrial dispute to the prescribed authority in accordance with the provisions of the Act. In these cases, on 14th August, 1957, when the order of discharge was made, no proceeding was pending at all. and when under Section 83 or 33A of the Act, the communication of the order of discharge is not a condition precedent to the validity of the order, the order of discharge was complete on 14th August, 1957. The Labour Court seems to have been swayed by the idea that the order of discharge may be withheld mala fide by an employer. The question of mala fides is a different question altogether and may affect the validity of an order of discharge in a particular case. Conversely also, the workmen also may evade the delivery of the order of discharge. No such consideration should enter into the construction of the provisions of the statute. Convenience of one or the other is of little materiality. On a true construction of the provisions of Sections 33 and 33A of the Act, I do not think, in order to be valid, the order of discharge must be communicated to the workmen. When the order of discharge is final and conclusive, its validity is not affected, if prior to the communication, there is a reference of the industrial dispute by the State to the State Industrial Tribunal. Any way, in these cases, there is evidence to show that the order of discharge was also communicated by registered post on the very day it was passed, and, if for any reason beyond the control of the employer it was not delivered to the workmen before the industrial dispute was referred by the State to the Tribunal1, the order does not, in my opinion, come within the mischief of Section 33 of the Act. In my considered judgment, the order of dis charge in these cases cannot be said to have been made during the pendency of the proceeding be fore the Labour Court, and consequently the order of discharge was not invalid and was not liable to be considered under Section 33A of the Act. In other words, the Labour Court had no jurisdiction to entertain the complaints of the opposite parties and determine the legality Or otherwise of the discharge order which was final and became effective before the reference of the dispute to the Industrial Tribunal. Accordingly, a writ in the nature of certiorari will issue to quash the order of the Labour court dated 1st July, 1958, in Miscellaneous Cases Nos. 71/57 M. C./17/58 and 72/57 M. C./18/58 and a writ of prohibition will also issue restraining the opposite parties from proceeding with the hearing of the said Miscellaneous cases.In the result, these applications are allowed. In the circumstances, there will be no order for costs.


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