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Gauhati High Court · body

1997 DIGILAW 62 (GAU)

S. P. B P. Tea Industries Ltd. v. Desouza Ip

1997-04-09

M.SHARMA

body1997
This civil revision has been preferred by the petitioner against the order dated 11.5.93 passed by the learned Assistant District Judge, Tezpur in Title Suit No. 3 of 1991staying fUrther proceeding of the said suit. 2. The petitioner is a company registered under the Companies Act and carries on business of plantation and manufacture of tea amongst others at Durrung Tea Estate in the district of Sonitpur, Assam. The opposite party was appointed as a Pharmacist in the Durrung Tea Estate of the petitioner on probation for a period of six months by letter dated 1.2.90. He was allotted a quarter in the said tea estate as an incidence of his service. However, the service of the opposite party was terminated by letter dated 30.7.90 with effect from 1.8.90 and he was asked to vacate the quarter. As the petitioner failed to vacate the quarter in spite of repeated notices, the petitioner company filed a suit (Title Suit No.3 of 1991) in the Court of the Assistant District Judge, Tezpur for klias possession of the quarter by evicting the opposite party. The opposite party contested the suit and filed his written statement and made counter claim before the trial Court. The opposite party also filed an application praying for ad-interim injunction. Opposite party in his counter claim also prayed for declaring him to be in continuous employment as a confirmed employee of the tea estate. He further stated that conciliation proceeding in respect of his dismissal is pending before the Assistant Labour Commissioner, Zone III, Tezpur. The petitioner filed a written statement against the prayer of the opposite party stating that the allegations raised in the counter claim being within the purview of the Industrial Disputes Act and the civil Court has no jurisdiction to entertain the same. It was further stated that no conciliation preceding is pending before any forum and even if any conciliation is pending there is no bar in filing the eviction suit as he was occupying the quarter as an incidence of his employment. After hearing both the parties, the learned trial Court stayed the proceedings of the said title suit. Hence the present petition. 3. I heard Mr. SN Sarma, learned counsel for the petitioner and Mr. TC Khetri, learned counsel for the opposite party. 4. After hearing both the parties, the learned trial Court stayed the proceedings of the said title suit. Hence the present petition. 3. I heard Mr. SN Sarma, learned counsel for the petitioner and Mr. TC Khetri, learned counsel for the opposite party. 4. It is seen that the learned Assistant District Judge stayed the proceeding in Title Suit No. 3 of 1991 in view of the provisions of the Assam Plantation Labour Act, 1951 and the Rules framed thereunder and also under section 33 of the Industrial Disputes Act. Mr. Sarma learned counsel for the petitioner has submitted that at the time of filing the suit no conciliation proceeding was pending before any forum and even if any conciliation proceeding is pending, there is no bar in filing the eviction suit. According to Mr. Sarma the Assistant Labour Commissioner, Zone III, Tezpur vide his letter dated 7.12.90 refused to refer the dispute raised by the workman/opposite party to any Labour Court or Tribunal, Moreever, the Assistant Labour Commissioner by Annexure 4, letter dated 20.4.93 informed the petitioner that no conciliation proceeding was pending in his office regarding dismissal of the opposite party, therefore the impugned order so passed was without any jurisdiction and is liable to be quashed. According to Mr. Sarma section 33 of the Industrial Disputes Act is not applicable in the instant case as no proceeding was pending before the Labour Court or Industrial Tribunal. On the other hand, Mr. Khetri, learned counsel for the opposite party has vehemently opposed to the submissions of the counsel for the petitioner. According to Mr. Khetri, the learned trial Court rightly stayed the proceedings of the suit as a conciliation proceeding was pending. 5. On the rival contentions of the parties, now the question falls for determination is whether the learned trial Court acted in excess of its jurisdiction by staying the proceedings of the title suit in view of the provisions of the Plantation and Labour Act and Rules made thereunder and also under section 33 of the Industrial Disputes Act. 6. Under section 15 of the Plantation Labour Act, 1951 it is the duty of the employer to provide and maintain necessary housing accommodation for every worker residing in the plantation. 6. Under section 15 of the Plantation Labour Act, 1951 it is the duty of the employer to provide and maintain necessary housing accommodation for every worker residing in the plantation. The Govt of Assam in exercise of powers conferred by sub-section (1) of section 43 of the Plantation Labour Act has framed the Assam Plantation Labour Rules, 1956. Chapter III of the said rules relates to providing health, medical facilities, transport for meeting, welfare and for Advisory Board etc. Rule 66 of the said rules provides for occupation of accommodation after termination of employment. Rule 66 runs thus : "66. Occupation of accommodation after termination of employment : (a) When a worker dies in the service of the employer, or retires, or goes on transfer, or resigns or goes on leave or when his services are terminated, he or his family may retain the house up to the periods as detailed below; (i) in the case of death, transfer, termination of service, retirement or resignation, a period not exceeding two months; (ii) in the case of leave, for the period of leave; and (iii) in the case where the discharge of the worker is dispuuted and the matter has been taken to Industrial Tribunal or Court, for so long as the case is not finally disposed of. (2) If the worker fails to vacate the house on the expiry of the period mentioned above and continue to occupy the same when no member of his family is working, , he shall be liable to pay to the employer such rent at a rate not exceeding 10% of his wages as may be fixed by the Chief Inspector of Plantation on the advice of the Housing Advisory Board, for the entire period of his unauthorised occupation." From the above it is clear that a worker can continue to occupy the accommodation in case there is dispute regarding discharge of the worker and the dispute is pending before the Industrial Tribunal or Court, so long as the case is not finally disposed of. However, Rule 66 of the Rules does not provide for stay of any proceeding of eviction when a workman is dismissed and his case is not referred under section 10 of the Industrial Disputes Act by the appropriate Govt to any Labour Court or to any Industrial Tribunal. However, Rule 66 of the Rules does not provide for stay of any proceeding of eviction when a workman is dismissed and his case is not referred under section 10 of the Industrial Disputes Act by the appropriate Govt to any Labour Court or to any Industrial Tribunal. This rule also (does not empower the Court to stay any proceeding during the pendency of any coneiliatiori proceeding. Section 33 of the Industrial Disputes Act relates to conditions of service, etc to remain unchanged under certain circumstances during pendency of proceeding. The object of section 33 is to ensure fair and satisfactory enquiry pending adjudication proceedings, by providing a safeguard against victimization of the workman concerned or to prevent unfair labour practice on the part of the employer at that stage. From the above section it is clear that during the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall in regard to any matter connected with the dispute, alter, to the prejudice 'of the workman concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding. So, a ban, subject to certain conditions, has been imposed by the said section on the ordinary right of the employer to alter the terms of his employees' services to their prejudice or to terminate their services. According to the learned counsel for the petitioner the Assistant Labour Commissioner, Zone III, Tezpur examined the grievances of the opposite party under the Industrial Disputes Act and found no merit and hence, the Assistant Labour Commissioner by Annexure C letter dated 7.12.90 informed the opposite party that the termination from the post of Pharmacist of Durrung Tea Estate on expiry of the period of probation seemed to be justified and did not merit a reference for adjudication. According to Mr. Sarma5 as the Assistant Labour Commissioner, Zone III, Tezpur by his letter dated 20.4.93 (Annexure D) informed the petitioner company that no conciliation proceeding was pending in his office, therefore, section 33 of the Industrial Disputes Act does not come into play in the instant case. As no conciliation proceeding was pending at the time of passing the impugned order, the same is liable to be set aside and quashed. 7. As no conciliation proceeding was pending at the time of passing the impugned order, the same is liable to be set aside and quashed. 7. I have perused the impugned order as well as other documents available on record. The learned Assistant District Judge while Staying further proceedings of the suit held thus : "The Senior Labour Commissioner from the office of the Labour Commissioner at Guwahati by his order dated 9.1.91 instructed the Assistant Labour Commissioner, Tezpur to hold the conciliatory proceeding. Now it seems that by letter dated 20.4.93 the Assistant Labour Commissioner, Tezpur issued a letter to the Manager that record shows that his predecessor already submitted a detailed report. The learned counsel for the defendant has submitted that the Assistant Labour Commissioner referred to the decision of his predecessor against which the defendant preferred appeal before the Labour Commissioner. Therefore, the letter dated 20.4.93 has no basis whatsoever. According to the order of the Senior Assistant Labour Commissioner the Assistant Labour Commissioner was instructed to hold conciliatory proceeding was not initiated till now by the Assistant Labour Commissioner in defiance of the order of the appellate forum, it cannot be held that no conciliatory proceeding is pending..." From the above, it is apparent that though the Assistant Labour Commissioner, Zone III Tezpur by his letter dated 7.12.90 justified the removal of the opposite party, the opposite party preferred appeal before the Labour Commissioner, Guwahati against the said order. The Labour Commissioner by his letter dated 9.1.91 instructed the Assistant Labour Commissioner to hold conciliation proceeding, however, nothing has been done. From the above it cannot be said that no dispute was pending before the Assistant Labour Commissioner at the time of passing order by the learned Assistant District Judge. In view of the above, I find no infirmity in the finding of the learned Court below and it rightly stayed further proceedings of the suit. In the result, the revision petition is dismissed. However^ considering the facts and circumstances of the case, I make no order as to costs.