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1980 DIGILAW 315 (KER)

ACHAMMA v. STATE OF KERALA

1980-11-21

T.KOCHU THOMMEN

body1980
Judgment :- 1. The challenge is against Ext. P3 order of the Government rejecting an application filed by the petitioner under S.33B of the Industrial Disputes Act, 1947. The sole complaint against Ext. P3 is that it has not been made in compliance with the provisions of S.33B insofar as the reasons for rejecting the application have not been stated and that the petitioner, was not orally heard. 2. The petitioner stated in Ext. P1 application that the proceedings pending before the Tribunal should be transferred to another Tribunal for the reason that the second respondent Tribunal was biased. The Government stated in Ext. P3 as follows: "I am to invite a reference to the petition cited in which you have requested Government to transfer ID. No. 15/76 between the petitioner and M/s. Aspinwall and Company (Travancore) Limited, Alleppey, to the Industrial Tribunal, Kozhikode. Government after having examined the relevant aspects of the request, find that it is not necessary to transfer the case to the Industrial Tribunal, Kozhikode." Ext. P3 shows that the Government considered the various allegations made by the petitioner against the 2nd respondent-Tribunal. The Government applied its mind to the allegations and came to the conclusion that they were unsustainable. Accordingly Ext. P1 application for transfer was rejected. 3. S.33B requires reasons to be given before an order is made transferring the proceedings. The section reads: "Power to transfer certain proceedings.-(1) The appropriate Government may by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may De, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either do novo or from the stage at which it was so transferred: Referring to this section the Supreme Court stated in Associated Electrical Industries (India) (Private) Ltd. v. Its Workmen (196111 L.L.J. 122) that although the appropriate Government was competent to transfer proceedings, it could do so only after complying with the requirements of S.33 B. One of the requirements is that before making the order, the reasons for the transfer had to be recorded. S.33 B was introduced with effect from 10-3-1957. S.33 B was introduced with effect from 10-3-1957. Until then no power had been conferred on the Government to withdraw proceedings from a Tribunal once a reference had been made Making reference to a Tribunal is an administrative act. By that act a Tribunal is invested with jurisdiction to adjudicate the questions referred. Divesting the Tribunal of such jurisdiction is an act which affects the rights and liabilities of the parties involved in the proceedings. Accordingly the exercise of power under S.33B is an act which affects rights. Before the exercise of such power the parties must be given an opportunity to show cause why the proceedings should not be withdrawn; and further the order of withdrawal must contain the reasons for the same. In a case where the Government merely rejects the application for transfer, none of the rights of the parties before the Tribunal can be said to have been affected, for the Tribunal is already seized of jurisdiction as a result of a reference which is an administrative act and the parties are already before the Tribunal. The status quo remains unaffected by rejecting an application made under S.33B. Of course, as in the case of any application, the Government must apply its mind before it is rejected. But the rejection is not any less an administrative act and is beyond challenge so long as the order shows that the Government has duly considered the complaints of the petitioner and has come to the conclusion that the complaints are unsustainable. The petitioner cannot successfully contend that the absence of an oral hearing or of a detailed consideration of the complaints has vitiated the order. The impugned order Ext P3 does show that the petitioner's complaints had been duly considered by the Government before it came to the conclusion that the application was unsustainable. A detailed order or a personal hearing as contended for by the petitioner has no place in rejecting an application made under S.33B. These considerations arise only when power is exercised under S.33B and the Tribunal is divested of jurisdiction. In the circumstances the challenge against Ext. P3 is unsustainable. The Original Petition is accordingly dismissed. No costs.