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2017 DIGILAW 2818 (RAJ)

Hotel Mansingh v. Judge Industrial Tribunal

2017-12-18

PRADEEP NANDRAJOG, SANJEEV PRAKASH SHARMA, VIJAY KUMAR VYAS

body2017
JUDGMENT Pradeep Nandrajog, C.J. - The question referred to the Full Bench is whether the provisions of Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act'') have no application in the proceedings of a pending writ petition filed by the Management arising out of an order passed by an Industrial Fora rejecting the application of the employer under Section 33(2)(b) of the Act. 2. Currently there is a Division Bench judgment of this Court reported as (2009) 2 LLN 361, Karan Singh vs. Authorised Disciplinary Authority, RSRTC, where the view taken is that Section 17B of the Act would apply. 3. We find that there is a divergence of opinion amongst various High Courts on this issue. 4. In the decision reported as (2005) 120 DLT 664 , Delhi Transport Corporation vs. Jagdish Chander, a Full Bench of the Delhi High Court held that Section 17B of the said Act would be applicable. From a perusal of paras 9 to 35 of the decision the legal position could be culled out as follows: The High Court observed that the legislative object of the Industrial Disputes Act is to provide definite protection to the workmen against any exploitation. Further, Section 17B needs liberal interpretation and it is a beneficial legislation enacted for protection of the workman against exploitation resulting from prolonged litigation which is stretched by the affluent employer. The provisions further show the liability created by statute upon an employer for payment of such wages. It was further observed that the expressions ''Award'' and ''Industrial Dispute'' have been widely worded so as to take within their ambit disputes between the employer and the workmen. It was further observed that a determination under Section 33(2) (b) is a question relating to employment or non-employment. It was further held that there is complete and final determination by the Tribunal while deciding an application under Section 32(2)(b). Furthermore, workmen are entitled to consequences of reinstatement pursuant to an Order passed under Section 33(2) (b) or an Award passed under Section 10 of the Act. The term ''award'' should be read in complete conjunction with the direction for reinstatement and an order passed under Section 33(2)(b) would by necessary implication, incorporate a direction as in law that the services of the workman were never terminated. The term ''award'' should be read in complete conjunction with the direction for reinstatement and an order passed under Section 33(2)(b) would by necessary implication, incorporate a direction as in law that the services of the workman were never terminated. Therefore, an order which is passed upon complete determination and after proceedings should be related and construed as a part of expression ''award directing reinstatement'' having all attributes that of an award. It was also held that emphasis of legislature in relation to Section 17B is on reinstatement rather than on an ''award''. It was also observed that Section 17B, either expressly or impliedly or by compulsive interpretation, does not indicate that the law-makers intended to exclude an order under Section 33(2) (b) from the purview of the said section and confine it only to an ''award'' in its strict sense. The principle of exclusion can be applied where it is explicitly stated in the statute. It was further observed that merely because the scope of jurisdiction exercisable by a Tribunal in passing an award under Section 10 and an order under Section 33(2)(b) has some noticeable differences, should not be treated as paramount consideration for giving narrower interpretation to the provisions of a statute, particularly when such a restricted interpretation may defeat the very intent and object the legislation. It was further observed that an interpretation which would help in avoiding multiplicity of litigation should be more acceptable to the one which would generate more litigation''s. 5. In the decision reported as (1987) 55 FLR 490, Samser Ali vs. Kesoram Industies & Cotton Mills Ltd., a Division Bench of the Calcutta High Court also took a similar view and the ratio which can be culled out from paras 18 and 19 of the decision would be: That an order made under Section 33(2)(b) of the said Act, can be enforced in an application under Section 17B of the said Act. The High Court further observed that Section 17B is a piece of social welfare and beneficial legislation, enacted with a view to do away with the hardship cast upon the employees who are deprived from the benefits of the order of reinstatement as made in their favour and more particularly when orders are passed staying the operation of such order of reinstatement, by the High Court and the Supreme Court. The High Court also considered the definitions of ''award'' and ''industrial dispute''. 6. In the decision reported as (1994) 1 SLR 155, Bata India Ltd. vs. Seventh Industrial Tribunal, West Bengal, another Division Bench of the Calcutta High Court took a similar view. The ratio of the judgment which can be culled out from paras 8 to 15 of the opinion would be : That Section 17B being a beneficial piece of legislation enacted for the welfare and protection of the weaker section of the community, a liberal rather than restricted interpretation of the said section is called for. It was further observed that in case of disapproval by the Tribunal under Section 33(2)(b) of the Industrial Disputes Act, Tribunal does not actually direct reinstatement in service, however, the real effect of such order amounts to reinstatement. The definition of award and industrial dispute as it would appear from Section 2(b) and Section 2(k) of the said Act themselves, are of the widest amplitude. The decision of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act disapproving the order of dismissal is certainly a matter relating to employment or non employment of the workman and is certainly a determination by the Tribunal in respect thereto. Therefore, such decision is certainly a determination that the dismissal in question is invalid and hence, cannot be approved. While concluding the High Court held that a liberal interpretation should be given to the provisions of Section 17B of the Act and such a decision of the Industrial Tribunal under Section 33(2)(b) of the said Act, can be termed as an award within the meaning of Section 17B. 7. In the decision reported as (2012) 133 FLR 1074 , Anvarkhan Ghafurkhan Pathan vs. Transport Manager, a Full Bench of the Gujarat High Court also took a similar view and the ratio which can be culled out from paras 16, 24, 26, 27, 40, 41, and 42 of the decision would be: Need for liberal interpretation of such provisions was emphasized. Apart from final determination of any industrial dispute, if interim determination is made, the interim order also comes within the meaning of ''award'', if any question relating to industrial dispute is determined. Thus, determination under Section 33(2)(b) relates to determination of an industrial dispute and therefore, the said order comes within the meaning of an ''award''. Apart from final determination of any industrial dispute, if interim determination is made, the interim order also comes within the meaning of ''award'', if any question relating to industrial dispute is determined. Thus, determination under Section 33(2)(b) relates to determination of an industrial dispute and therefore, the said order comes within the meaning of an ''award''. Section 17B being a beneficial provision for a workman, who is ordered to be reinstated, but if the employer does not want to implement the same with a view to move before the High Court or the Supreme Court, a strict interpretation of such provision will not meet with the ends of justice. 8. In the decision reported as (1995) 8 SLR 304, V. John vs. Singareni Collieries Co. Ltd. Manuguru, a Division Bench of the Andhra Pradesh High Court took a similar view and the ratio which can be culled out from paras 5 to 8 of the opinion would be: That the order passed under Section 33 by the competent authority is an aspect of an industrial dispute and hence, falls within the definition of ''award''. Therefore, while liberally interpreting Section 17B as its purpose is to give effect to the beneficial object which it seeks to achieve, an application under Section 17B would be maintainable if the proceedings are pending before the High Court or Supreme Court against the order of dismissal passed under Section 33. 9. In the decision rendered in Karan Singh vs. Authorised Disciplinary Authority, RSRTC, (supra), a Division Bench of this Court took a similar view and the ratio which can be culled out from paras 11 and 12 of the decision would be : That words ''award directs reinstatement'' of any workman as appearing in Section 17B of the Act would have to be given a purposeful and contextual interpretation as the object of the enactment is to ensure peace and harmony between the workmen and the management so as to ensure industrial development while keeping the socio-economic standards of the workmen duly protected. The expressions ''award'' and ''industrial dispute'' have been widely worded so as to cover all the determination relating to any industrial dispute including an interim determination of such dispute or of any question related thereto and therefore, such a determination of industrial dispute would be referred as an award. The expressions ''award'' and ''industrial dispute'' have been widely worded so as to cover all the determination relating to any industrial dispute including an interim determination of such dispute or of any question related thereto and therefore, such a determination of industrial dispute would be referred as an award. It was also observed that rejection of approval under Section 33 has been held to have the effect of reinstatement. The High Court held that an order of refusal of removal has all the trappings which are attached to an award after adjudication. 10. Contra view has been expressed by the Division Bench of the Calcutta High Court in the decision reported as (1998) 1 LLJ 654, Westinghouse Saxby Farmer Ltd. vs. State of West Bengal & Ors., the ratio of the decision which can be culled out from paras 14 and 16 to 35 would be : That it is not necessary to provide for reinstatement in the terms of the order passed under Section 33(5) as by the very action of the disapproval the dismissal or discharge of the workman is of no effect and the workman concerned continues to be in service as if there never was any dismissal or discharge by the employer. It was further observed that an order by a Conciliation Officer under Section 33(5) cannot come within the phrase ''award directing reinstatement'' as envisaged under Section 17B since Conciliation Officers are not empowered under the scheme of the statute to pass awards. The High Court also observed that if the intention of Parliament was to treat the decision under Section 33(5) as an award there was nothing to stop it from expressly saying so. The word used is, "order" and not "award". The definition of the word "award" under Section 2(b) is also indicative of the fact that an award is passed only upon an adjudication. The significant words in this definition being "determination of an industrial dispute". The "determination" contemplated by the definition is of the industrial dispute or a question relating thereto, finally on merits. It was further observed that unlike an award which needs to be published in the official gazette, an order passed in terms of Section 33 is not required to be published. The "determination" contemplated by the definition is of the industrial dispute or a question relating thereto, finally on merits. It was further observed that unlike an award which needs to be published in the official gazette, an order passed in terms of Section 33 is not required to be published. Under Section 33(5), there is no adjudication or final determination of the justness of the order of dismissal, given the nature of the limited jurisdiction of the authorities under Section 33, they cannot direct reinstatement although the consequence of a refusal to grant approval may render the order of dismissal void. There is a distinction between a situation where the Tribunal or other forum directs reinstatement and a situation where the employee is considered in continuous employment. An order rejecting an application under Section 33(2)(b) falls within the second category. It was further observed that the language of Section 33A makes it clear that a contravention of Section 33 by the employer does not ipso facto mean that an employee is entitled to continue in service. He can make such claim only after there is an adjudication on a dispute raised by him either under Section 10 or Section 33A when the employer would be entitled to justify the impugned dismissal on merits. It was also observed that under the Act all matters relating to employment or non employment of a workman do not necessarily culminate in an award. In view of the difference of opinion between the view expressed by the Court in said judgment and the view that was expressed in the Division Bench judgment of the Court in Sheikh Shamser Ali vs. Kerosam Industries Cotton Mills Ltd. Case and Bata India Limited vs. 7th Industrial Tribunal, the matter was referred to a Larger Bench. 11. Similarly, a Single Bench of the Bombay High Court in the decision reported as (1999) 83 FLR 245 (Bom), Air India Limited Mumbai vs. P.K. Upadhaya & Anr., has also taken the view that Section 17B would not apply and the ratio which can be culled out from a perusal of paras 11 to 22 would be :That an order refusing to approve under Section 33(2)(b) cannot be treated as an award, as defined under Section 2(b). It was further observed that the purpose of Section 33 was not to confer any general power of adjudication of dispute, whereas, "determination" as contemplated under Section 2(b) relates to determination of an industrial dispute or a question relating thereto, finally on merits. It was also observed that an order under Section 33(2)(b) cannot be treated as a question relating to an interim or final determination of an industrial dispute. Furthermore, there is no requirement of publishing the order under Section 33(5) in the official gazette. It was further observed that under Section 33(2) (b), the Tribunal cannot direct reinstatement although the consequence of a refusal to grant approval would render the order of dismissal void. Hence, it was held that an order rejecting an application under Section 33(2)(b) is not an award for the purpose of Section 17B. However, the High Court exercised its jurisdiction under Article 226 and granted wages to the workers. 12. The Division Bench of the Orissa High Court, in the decision reported as (1989) 58 FLR 28, I.D.L. Chemicals Ltd vs. S.R. Tamma, has also held so and the ratio which can be culled out from the perusal of paras 1, 8 and 9 of the opinion would be : That the legislature was presumably aware of the distinction between an award and an order passed under Section 33. Therefore, when it used the expression ''award'' in Section 17B, it is reasonable to infer that the provision was intended only to apply to awards. Hence, Section 17B has no application to orders passed under Section 33(2)(b). It was further observed that reinstatement is not directed specifically by an order passed under Section 33(2)(b); though reinstatement is the ordinary consequence. The High Court further observed that even if Section 17B does not apply, the Court can in its discretion while granting stay of operation of the order passed under Section 33(2)(b) in appropriate cases direct payment of wages. 13. The divergent views are premised on the reasoning that whereas the ones which took the view that Section 17B of the Act would be applicable have held that that reinstatement is intrinsic when an application under Section 33(2)(b) of the Act is rejected and that the definition of the word ''award'' would include any determination of an industrial dispute. 13. The divergent views are premised on the reasoning that whereas the ones which took the view that Section 17B of the Act would be applicable have held that that reinstatement is intrinsic when an application under Section 33(2)(b) of the Act is rejected and that the definition of the word ''award'' would include any determination of an industrial dispute. The contra view holds that reinstatement is not directed by an order rejecting an application under Section 33(2)(b) of the said Act and further an award contemplated by Section 17B would be the one which is notified by the appropriate Government for its enforceability. 14. Shri Vinendra Agarwal, learned counsel for the management and other Counsel who supported him urged that an order rejecting an application under Section 33(2)(b) of the Act does not direct reinstatement and on said ground alone 17B would not apply. Learned counsel urged that Section 11A of the said Act contemplates a direction for reinstatement after a discharge or dismissal of the workman is held to be illegal. Learned counsel urged that to be an award, an adjudication must be a final adjudication. Concerning Section 33 (2)(b), learned counsel urged that the adjudication is not final. If against the workman, the workman is entitled to raise an industrial dispute. It was urged that Section 17B was inserted in Chapter III of the Act and not after Chapter VII in which Section 33 exists. The application under Section 33(2)(b) does not decide an industrial dispute. As held in the decision reported as AIR 1966 SC 380 , Tisco vs. S.N. Modak, the proceedings under Section 33(2)(b) are incidental to the main dispute. A decision under Section 33(5) of the Act is an order of a summary nature. That in the decisions reported as (1999) 2 SCC 106 , Dena Bank vs. Kirtikumar T. Patel and (2001) 4 SCC 534 , Gurudevdatta VKSSS Maryadit & Ors vs. State of Maharashtra & Ors., provision of Section 17B is applicable to an award directing reinstatement. The words used in the statute have a clear meaning and thus the question of interpreting the words does not arise. 15. The arguments of learned counsel for the Management were in fact a pen profile of the reasoning of the Calcutta High Court in Westinghouse Saxby Farmer''s case(supra). 16. Let us revisit some of the statutory provisions. The words used in the statute have a clear meaning and thus the question of interpreting the words does not arise. 15. The arguments of learned counsel for the Management were in fact a pen profile of the reasoning of the Calcutta High Court in Westinghouse Saxby Farmer''s case(supra). 16. Let us revisit some of the statutory provisions. An award is defined under Section 2 (b) of the said Act as under:- "2(b)- "award" means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10A;]" 17. In the State of Rajasthan Section 10A has to be read as "Under Chapter IIIA". A perusal of the definition of the word "award" would show that it means an interim or a final determination of any industrial dispute and includes an arbitration award under Section 10A. In other words, an adjudication of an industrial dispute under Section 10A would be the specie of the genus award. The genus would obviously include an interim order or a final determination of an industrial dispute. Thus, the word "award" in the statute cannot be restricted to an award under Section 10A of the said Act, and in the State of Rajasthan an award under Chapter IIIA, which deals with arbitration awards also. The definition of award is inclusive and award passed under Section 10A of the Act of 1947 is one of such kind. A decision of determination of dispute under Section 33(2) (b) of the Act of 1947 as well as under Section 33A of the Act of 1947 or under Section 33(C)(2) of the Act of 1947 are all awards within the meaning of Section 2(b) of the Act of 1947. It is only the certain kinds of awards which may be published under the Act of 1947. However, merely because an adjudication is not published, it would not mean that the same does not come within the ambit of definition of award under Section 2(b) of the Act of 1947. It is only the certain kinds of awards which may be published under the Act of 1947. However, merely because an adjudication is not published, it would not mean that the same does not come within the ambit of definition of award under Section 2(b) of the Act of 1947. It may be noted that under Section 33(2)(b) of the Industrial Disputes Act, 1947, for any misconduct, not connected with the dispute, an order of discharge or punishment whether by dismissal or otherwise of a workman shall have to be placed for approval before Authorities as mentioned under Section 33(5) of the Act of 1947 and while deciding such an application, power of hearing has been provided under Section 33 (5) of the Act of 1947 and there has to be an adjudication done granting or not granting approval. There may be cases where punishment awarded to the workman may not be of dismissal but of lesser punishments but in all the cases, as application under Section 33 (2)(b) of the Act of 1947 has to be moved and approval has to be taken if there is a pending dispute between the management and workman. Thus, the orders passed under Section 33(2)(b) of the Act of 1947 can be of the nature of approval or disapproval of dismissal or of other punishments, however, the power of higher court would be exercised under Section 17B of the Act of 1947 only in the cases where an application to confirm an order of dismissal or discharge has been disapproved since a logical consequence of disapproval of application under Section 33(2)(b) of the Act of 1947 shall be deemed reinstatement. 18. Section 2(k) of the said Act reads as under:- "2(k) - "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;" 19. Section 2A of the Act reads as under:- "[2A. Section 2A of the Act reads as under:- "[2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- [(1)] Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute." [(2)] No. withstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.] [(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).]" 20. A conjoint reading of Section 2(k) and 2A would make it beyond doubt that a dispute between a workman and an employer arising out of a discharge and dismissal from service shall be deemed to be an industrial dispute. An approval under Section 33(2)(b) is to be taken by the employer if during the pendency of an industrial dispute, pertaining to a misconduct the workman is discharged or punished whether by way of dismissal or otherwise. If the permission sought pertains to an order of dismissal, the dispute obviously would relate to dismissal and would be an industrial dispute. 21. If the permission sought pertains to an order of dismissal, the dispute obviously would relate to dismissal and would be an industrial dispute. 21. Whilst it may be true that a dispute envisaged by Section 33(2)(b) is incidental to the industrial dispute and does not relate to the same but at the same time it has all the features of an independent industrial dispute. The reason being that while deciding an application under Section 33(2)(b) the Industrial Fora is seized of a substance which requires it to determine after investigation of facts by applying the objective standards found in light of the pre-existing legal rules. The decision declares right and imposes the parties obligations effecting their civil rights. The refusal by the Labour Court casts an obligation on the employer to treat the order of dismissal as void. It is difficult to see how an order granting or refusing approval under Section 33(2)(b) can be regarded as an order of interlocutory character. The application under Section 33(2)(b) is not for an interlocutory relief in a pending conciliation proceeding. It is a totally distinct and separate proceeding which becomes necessary by reason of the ban imposed by the Legislature on the employer from discharging an employee during the pendency of the conciliation proceeding. The cause of action for making the application has nothing to do with the industrial dispute in the pending conciliation proceeding. No. does its determination depend upon the merits of such industrial dispute. The inquiry which is required to be held by the conciliation officer for the purpose of considering whether to grant or to refuse the application is a totally distinct and separate inquiry unconnected with the main conciliation proceeding. The consequence of refusal would be as per the law declared by the Supreme Court in the decision reported as 2001(4) SLR 599 : 2001(4) SLR 599 (sC), M.D., Tamil Nadu State Transport Corporation vs. Neethivilangan Kumbakonam. The dismissal has to be treated as non-est and the workman will be taken never to have been dismissed. By passing the order of discharge or dismissal de-facto relationship of employer and employee may be ended but not the de-jure relationship for that could happen only when the Tribunal accords its approval. The dismissal has to be treated as non-est and the workman will be taken never to have been dismissed. By passing the order of discharge or dismissal de-facto relationship of employer and employee may be ended but not the de-jure relationship for that could happen only when the Tribunal accords its approval. In paragraph 16 of the decision, it was categorically observed that: ''The inevitable consequence of this would be that the employer was duty bound to treat the employee as continuing in service and pay him his wages for the period.'' 22. This view was reiterated by the Constitution Bench in the decision reported as JT 2002(1) SC 182, Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma & Ors., in paragraph 14 of which decision the Supreme Court categorically held that the consequence of the employee deemed to be in service would mean that there was no need of a separate or specific order directing reinstatement. 23. Thus, the view taken by the High Courts that Section 17B would be attracted, needs look at Section 17B of the said Act which reads as under:- "Section 17B. Payment of full wages to workman pending proceedings in higher courts.- where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such, period and an affidavit by such workman had been filed to that effect in such Court. Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.]" 24. Section 17B refers to an award which directs reinstatement. Section 17B refers to an award which directs reinstatement. In view of the Constitution Bench decision of the Supreme Court, since reinstatement would be inherent when the Labour Court refuses to grant permission to an order terminating or discharging a workman, there is no need for the order to specifically so record. 25. The contra views that only such awards which direct reinstatement and adjudication under Section 33(2)(b) of the said Act not directing reinstatement would not attract Section 17B is thus clearly contrary to the law declared by the Supreme Court. 26. A plain reading of Section 17B would show that the essential ingredients are an award which directs reinstatement of a workman and the employer prefers a proceeding against such an award; such employer would be liable to pay such workman during the pendency of such proceedings wages. The Full Bench of the Delhi High Court has rightly held that the emphasis is on reinstatement and if reinstatement is deemed or inherent, there need not be a specific direction for reinstatement. 27. We have already held hereinabove that the definition of the word ''"award" is an extensive definition. It would mean any determination of an industrial dispute and would include an award under Section 10A. We have already held hereinabove that an adjudication under Section 33(2)(b) of the Act is an adjudication which relates to an industrial dispute. 28. Indeed, in the decision reported as 1986 (II) LLJ 217 , Bharat Singh vs. Management of New Delhi Tuberculosis Centre, the Supreme Court had observed that in interpretation of statues, Courts have steered clear of the rigid stand of looking into the words of the Section alone but have attempted to make the object of the enactment effective and to render its benefit to the person in whose favour it is made. Courts have evolved the concept of purposive interpretation which has found acceptance whenever a progressive social beneficial legislation is under consideration. 29. Thus, we terminate the Reference by holding that Section 17B of the said Act would apply if the employer files a writ petition challenging an order passed by the Industrial Fora under Section 33(2)(b) rejecting the application to confirm an order dismissing or discharging an employee from service. 30. The appeals/writ petitions be accordingly listed before the roster Bench.