Chandramani Shukla v. State of Bihar — 1978 DIGILAW 181 (PAT)

JUDGMENT Uday Sinha, J. This is an application under Article 226 of the Constitution by 58 workmen of M/s Bengal Bihar Construction Company Ltd., Bokaro Steel City. By this application they have prayed for quashing Annexures-7 and 9 which are orders of the Presiding Officer, Industrial Tribunal. Ranchi. Annexure-7 is the order of the Tribunal dated 27.2.1978 by which the prayer of the petitioners and others (123 in all) for accepting their written statement in the reference has been rejected. Annexure-9 contains order dated 14.3.1978 by which the Tribunal rejected the application of the said 123 workmen to be impleaded as party to the reference. 2. The short facts leading to the filing of the present application are as follows. Messrs Bengal Bihar Construction Company Ltd. is a private limited Company functioning as contractors to Bokaro Steel (now an Unit of Steel Authority of India Ltd). An industrial dispute in regard to the wages of the workmen having cropped up, the State Government by notification made a reference to the Industrial Tribunal at Ranchi to adjudicate- “Whether the prescribed minimum rates of wages fixed for the workmen employed in the employment of loading and unloading will be payable to workmen working at Handling Site of Messrs Bengal Bihar Constructions (P) Limited on the minimum rates of wages fixed for workmen employed in the employment of constructlon work will be payable to them ?" Notices were issued to the Management and Bakaro Karmachari Panchayat (herein after called 'the Panchayat') in regard to the hearing of the reference. The Company filed its written statement. The Panchayat, however did not file any written statement, but contended themselves by the filing of a rejoinder in which it was stated that they had never raised any industrial dispute. The Panchayat thereafter did not take any interest in the reference. Since the workmen felt that they had been left in the lurch by the Panchayat, a Committee known as 'Workers' Committee' (an unregistered body) sprung U.P. That committee prayed before the Tribunal to be impleaded as party in the reference. The Tribunal considered the application of the workers committee and rejected their prayer by order dated 2-12-1977 (Annexure-5). Since the workmen felt that they had been left in the lurch by the Panchayat, a Committee known as 'Workers' Committee' (an unregistered body) sprung U.P. That committee prayed before the Tribunal to be impleaded as party in the reference. The Tribunal considered the application of the workers committee and rejected their prayer by order dated 2-12-1977 (Annexure-5). Thereafter, seven workmen claiming to be representatives of the Workers' Committee filed C.W.J.C. No. 89 of 1978 before this Court for quashing the reference as well as quashing the order of the Tribunal dated 2-12-1977 rejecting the prayer of the Workers Committee to be impleaded as party to the reference. That application was dismissed in limine by a Bench of this Court on 23.2.1978. It appears that after rejection of the prayer of the Workers' Committee to be impleaded as party to the reference the present petitioners filed written statement before the Tribunal on their own behalf. This was rejected by the Tribunal on the ground that their prayer to be impleaded as party to the reference had already been rejected by the rejection of the prayer of the Workers' Committee. The workers followed it up by filing another application for reviewing the earlier order and praying that they may be impleaded as party to the reference. This was again rejected by the Tribunal on 14.3.1978 (Annexure-9). By the very same order the Tribunal also accorded permission to the Management to retrench some of his workmen in terms of section 33 of the Industrial Disputes Act. The petitioners, therefore, being aggrieved by the order of retrenchment as well as refusal to implead them as party to the reference have moved this Court by the present application. 3. Learned counsel for the petitioners submitted firstly that the petitioners were entitled to be heard by the Tribunal and, therefore, the Tribunal had acted illegally and without jurisdiction in not impleading them as party to the reference. It was secondly urged that the Tribunal had no jurisdiction to accord permission to retrench the workmen in terms of section 33 of the Industrial Disputes Act. I shall hereafter proceed to consider the submissions urged on behalf of the petitioners. 4. It will be convenient to dispose of the second point first. It was secondly urged that the Tribunal had no jurisdiction to accord permission to retrench the workmen in terms of section 33 of the Industrial Disputes Act. I shall hereafter proceed to consider the submissions urged on behalf of the petitioners. 4. It will be convenient to dispose of the second point first. Learned counsel for the petitioners submitted that the question of grant of permission in terms of section 33 (1) (b) of the Industrial Disputes Act did not arise because there was no question of misconduct pending industrial dispute involved. So far as section 33 (1) (a) is concerned, It was submitted that that also did not clothe the Tribunal with jurisdiction to grant permission to the Management. Section 33 (1) (a) of the Industrial Disputes Act reads as follows :- “3. Conditions etc of service, to remain unchanged under certain circumstances during pendency of proceedings (1) During the pendency of any conciliation proceeding before an arbitrator or a Conciliation Officer or a Board or of any proceeding before Labour Court or Tribunal or National Tribunal in respect of 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” On the basis of the Provisions quoted above, it was submitted that the reference was in respect or wages to which the workmen were entitled. Retrenchment was therefore, not a matter connected with that dispute and, therefore, the Tribunal had no jurisdiction to accord permission. Learned counsel for the petitioners is justified in this submission. The observations of the Supreme Court in The Bhavnagar Municipality versus Alibhai Karimbhai and others clinch the issue and not much discussion is called for. I will content myself by stating the observations of the Supreme Court in regard to the law on the subject which are as follows :- “Retrenchment may not, ordinarily, under all circumstances, amount to alteration of the conditions of service. I will content myself by stating the observations of the Supreme Court in regard to the law on the subject which are as follows :- “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 condition of service.” Although in that case it was held that the question of retrenchment was connected with the dispute yet the observations of the Supreme Court, quoted above, apply with all force in the instant case. This Court is as much bound by those observations as any other point which actually fell for consideration. In that view of the matter, the Labour Tribunal not having jurisdiction to accord permission to the retrenchment of the workmen that part of Annexure-9 must be quashed. 5. I shall now take up the first submission urged on behalf of the petitioners. I have already stated above that 123 workmen had moved the Tribunal for being impleaded as party to the reference. All of them have not moved this Court, but only 58 out of them are petitioners. Their claim has been that they were not members of Bokaro Karamchari panchayat. That is what they stated in paragraph 3 of their written statement filed before the Tribunal on 17.3.1977. The Management also in paragraph 5 of its written statement took up the position that the workmen were not the members of the Bokaro Karamacharl Panchayat. It is manifest, therefore, that the petitioners were not members of the Panchayat. Learned counsel for the petitioners submitted that the petitioners were entitled as of right to have their say before the Industrial Tribunal and, therefore, the order of the Tribunal (Annexures-7 and 9) in so far as it refused their prayer for being impleaderd as a party to the reference was illegal and without jurisdiction, Learned counsel for the petitioners placed reliance in Rameshwar Prasad and others versus The State of Bihar and others where a Division Bench of this Court held that the real parties to any reference were the workmen and not the Union. In that case some of the workmen who were not members of any Union had asserted that the award was not binding on them, as they had not been given opportunity of hearing by the Tribunal. Dealing with that aspect of the matter Untwalia, J, as he then was, observed as follows:- "As pointed out by the Supreme Court, the union is not a party. It is merely there to represent the workmen. The parties are the workmen. I am inclined to think that the submission made by learned counsel in this regard is correct. On the facts of this case, it is difficult to hold that the workmen of the Corporation were not parties to the reference. The questions referred for adjudication were meant to govern the service conditions of all the workmen, not of any particular class or only of those who were members of the union or unions. It is not possible to say that the petitioners were not parties to the reference and hence they have no right to make any grievance or that the award will not be binding on them.” In view of the observations of Untwalia, J, quoted above, with which I am in respectful agreement, it cannot be doubted that the petitioners had a right to be beard by the Tribunal. 6. Learned counsel for the Management placed reliance upon the case of Ram Prasad Vishwakarma versus Chairman, Industrial Tribunal, Patna and others. He drew our attention to paragraphs 7 and 9 of that case. In my view, Ram Prasad Vishwakarma's case can be of no assistance to the Management. It is true that the Supreme Court observed that the ordinary rule should be that representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned”. In my view, the present case presents exceptional circumstances. A request bad been made to the Tribunal in regard to the wages to which the workmen were entitled. For some reason or the other the Union which had espoused the Industrial dispute not only ceased to take Interest in the reference, but it also stated in its rejoinder that there was no dispute. In that view of the matter, the petitioners were left with no representation before the Tribunal. For some reason or the other the Union which had espoused the Industrial dispute not only ceased to take Interest in the reference, but it also stated in its rejoinder that there was no dispute. In that view of the matter, the petitioners were left with no representation before the Tribunal. These, in my view, constitute exceptional circumstances and, therefore, the petitioners could not be shut out from representing their case before the Tribunal. 7. In this writ application before us Bokaro Karamchari Panchayat has been imleaded as respondent No. 4. The Panchayat has also entered appearance. It has been contended by Mr. Vijoy Pratap Singh that the Panchayat represents the workmen engaged in the Company and, therefore, the petitioners were not entitled to be impleaded or to be heard. As I have stated earlier these petitioners were not members of that Panchayat. No counter-affidavit has been filed on behalf of respondent No. 4 controverting this position. In that view of the matter, I have no manner of doubt that the petitioners were entitled to have their own say. 8. Learned counsel for the Management also contended that the Workers' Committee having filed a writ application (C.W.J.C. No. 89 of 1978) before this Court and that application having been dismissed in limine, the petitioners should not be permitted to come through back door and challenge the order of the Tribunal. There is no substance in this submission. As I have stated earlier, the Workers' Committee of which the seven petitioners in C.W.J.C. No. 89 of 1978 were members was an unregistered organization. It had, therefore, no existence in law so far as representation of the workmen in the reference was concerned. The order of this Court in that writ application would bind only the seven petitioners of that writ application. In that view of the matter, this submission also is without any substance and must be rejected. 9. For the reasons, stated above, I am of the view that the petitioners have made, out a case for issuance of a writ of certiorari. The application is accordingly allowed. Let a writ of certiorari issue quashing Annexure-7 and 9 to this writ application. 10. The order of stay dated 11.4.1978 of this Court staying the operation of order of the Tribunal dated 14-3-1978 In so far as it accorded permission to retrenchment is hereby vacated. 11. The application is accordingly allowed. Let a writ of certiorari issue quashing Annexure-7 and 9 to this writ application. 10. The order of stay dated 11.4.1978 of this Court staying the operation of order of the Tribunal dated 14-3-1978 In so far as it accorded permission to retrenchment is hereby vacated. 11. In the circumstances of this case, there will be no order as to costs. Satyeshwar Roy, J. I agree Application allowed.