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Himachal Pradesh High Court · body

2018 DIGILAW 1824 (HP)

Pritpal v. Federal Mogal Bearing India Ltd

2018-10-12

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J . - As similar facts and common issues of law are involved in these writ petitions, the same are being disposed of by a common judgment. 2. The moot issue involved in all these writ petitions is as to whether the order passed by the learned Labour Court whereby it has dismissed the application filed by the employer under Section 33(2) of the Industrial Disputes Act, 1947 read with Rule 64(2) of the Himachal Pradesh Industrial Disputes Rules, 1974, is sustainable in law and if yes, whether those writ petitioners (workmen), who have by way of independent writ petitions prayed for modification of the order passed by the learned Labour Court for grant of full back wages alongwith interest, are entitled for the same or not? 3. For the purpose of adjudication of these petitions, in detail, facts from CWP No. 3441 of 2012, titled as Pritpal vs. M/s Federal Mogal Bearing India Ltd. and CWP No. 3879 of 2012, titled as Federal Mogul Bearing India Ltd. vs. Prit Pal have been taken, as arguments were addressed by the learned counsel for the parties on the facts of the present two writ petitions. 4. Brief facts necessary for the adjudication of these petitions are that an application under Section 33(2) of the Industrial Disputes Act read with Rule 64(2) of the Himachal Pradesh Industrial Disputes Rules, 1974 was filed by the employer, i.e., M/s Federal Mogul Bearing India Ltd. (for convenience referred to as ''the employer'') for approval of dismissal of respondent, namely, Prit Pal. As per the employer, it was in the business of engine bearing manufacturing at Parwanoo. Respondent Prit Pal (for convenience referred to as ''the workman'') was employed as an Operator, who was sitting idle after 07.07.2008 due to paucity of orders and recession. Employer decided to provide alternate work and workman was accordingly directed vide order, dated 17.04.2009 to attend the job of Rejection, Rework, Material and Chip Handling by reporting to Shri Deep Ram, Assistant Manager, Plant. The workman under protest refused to perform the alternate work. On complaints made by Line Incharge dated 21.04.2009, 25.04.2009 and 01.05.2009, the workman was issued a chargesheet, dated 12.05.2009 for negligence of duty and for disobedience of orders/instructions of the superiors under Subclause I, X and XVI of Clause 26(b) of the Certified Standing Orders. The workman under protest refused to perform the alternate work. On complaints made by Line Incharge dated 21.04.2009, 25.04.2009 and 01.05.2009, the workman was issued a chargesheet, dated 12.05.2009 for negligence of duty and for disobedience of orders/instructions of the superiors under Subclause I, X and XVI of Clause 26(b) of the Certified Standing Orders. An inquiry was held, in which the misconduct of the workman stood proved. This led to the dismissal from service of the workman. A reference regarding dismissal of three workers for claiming false medical claims and about strike/lockout was stated to be pending before the learned Labour Court, therefore, an application was filed for approving the dismissal from service of the workman. 5. This application was contested by the workman on the ground that the same was not maintainable being in violation of the provisions of Section 33 and 9A of the Industrial Disputes Act. On merits, the stand of the workman was that there was no paucity of orders and in fact work was available and the employer had engaged hundreds of workers from outside the State for performing the said work. According to the workman, the employer had not complied with the mandatory provisions of the Industrial Disputes Act before the issuance of letter of alternative employment. As per the workman, he was a highly skilled worker and the alternative work was that of an unskilled worker. Further, as per the workman, the entire action was initiated by the employer with an intent to terminate the services of the workman illegally. As per him, he had not violated the provisions of Standing Orders. According to him, domestic inquiry was not conducted by following the principles of natural justice. Inquiry report was submitted by the Officer as per the wishes of the employer. Conciliation proceedings between the parties with regard to the matter in dispute at the time of dismissal were still pending before the Conciliation Officer, Solan and approval thus, could not be granted in view of the provisions of Section 33 of the Industrial Disputes Act, 1947. 6. On the basis of pleadings of the parties, learned Tribunal framed the following issues: "1. Whether the applicant is entitled to be given approval qua action taken against the respondent as alleged? OPP 2. Whether this application is not maintainable? OPR 3. Final Order. 7. 6. On the basis of pleadings of the parties, learned Tribunal framed the following issues: "1. Whether the applicant is entitled to be given approval qua action taken against the respondent as alleged? OPP 2. Whether this application is not maintainable? OPR 3. Final Order. 7. On the basis of evidence produced on record in respect of their respective contentions, the issues so framed, were answered by the learned Tribunal in the following terms: "Issue No. 1: No. Issue No. 2: Yes. Final Order: Application dismissed. 8. Learned Tribunal held that the termination order was passed by the employer on 31.08.2009 and record demonstrated that Union had raised a Demand Notice in respect of alternative work given to the workman on 08.06.2009 by way of a letter addressed both to the employer as also Labour-cum-Conciliation Officer. Learned Tribunal further held that said Officer, pursuant to the receipt of the Demand Notice, had issued communication, dated 19.06.2009 to the employer-company to attend conciliation meeting on 04.07.2009, however, record was silent as to whether any Conciliation meeting took place on the said date or not. Learned Tribunal further held that yet it was apparent from the reply of the employer, dated 25th July, 2009 to the said Demand Notice that there was no change in service conditions during pendency of reference. Learned Tribunal further held that said Demand Notice culminated into a Reference as to whether the dispute raised vide Demand Notice, dated 08.06.2009, to give alternative employment to workmen, including Prit Pal and their subsequent suspension and initiation of disciplinary action against them was legally justified or not in March, 2010. Learned Tribunal thus held that till March, 2010, the conciliation proceedings, as contemplated in Section 10 of the Industrial Disputes Act, 1947 were pending before the Labour-cum-Conciliation Officer, Solan. It further held that as on the date when the order of dismissal of the services of the workman was passed, i.e. on 27.07.2009, conciliation proceedings were pending with the Labour-cum-Conciliation Officer and no permission of the said Officer to dismiss the services of the workman was obtained by the employer-company as per the provisions of Section 33 of the Act. It further held that there was neither any Reference nor any other application pending before the learned Tribunal and thus, it was not open for the applicant to have had filed an application with the prayer as was made in the same before the learned Tribunal. 9. Learned Tribunal held that termination of the services of the workman was without the permission of the Labour-cum-Conciliation Officer and the same was, therefore, void and the workman was entitled for reinstatement in service. Learned Tribunal held the termination to be in violation of Section 33 of the Industrial Disputes Act. It further held that the workman was entitled for back wages @25%. This order passed by the learned Industrial Tribunal stands assailed both by the employer-company as also the workman. 10. The contention of learned counsel for the employer company is that the order passed by the learned Tribunal is perverse and not sustainable in the eyes of law, as the findings returned by the learned Tribunal that the order of dismissal of service was in violation of Section 33 of the Industrial Disputes Act are bad and not sustainable in law. 11. On the other hand, the prayer of the workman is that in addition to the reliefs, which stand granted by the learned Tribunal, he is entitled to be paid full back wages alongwith interest @ 9% and the order passed by the learned Tribunal calls for modification to this effect. 12. I have heard the learned counsel for the parties and have also gone through the order impugned as well as the record of the case. 13. Before proceeding with the factual matrix involved in the case, it is necessary to refer the relevant provisions of the Industrial Disputes Act. Section 33 of the Industrial Disputes Act reads as under: "33. I have heard the learned counsel for the parties and have also gone through the order impugned as well as the record of the case. 13. Before proceeding with the factual matrix involved in the case, it is necessary to refer the relevant provisions of the Industrial Disputes Act. Section 33 of the Industrial Disputes Act reads as under: "33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.(1) During the pendency of any conciliation proceedings 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 (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. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in subsection (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding; or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation.For the purposes of this subsection, a "protected workman", in relation to an establishment, means a workman who, being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of subsection (3) shall be one percent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the provisoto subsection (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, within a period of three months from the date of receipt of such application, such order in relation thereto as it deems fit: Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit: Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this subsection had expired without such proceedings being completed." 14. A bare perusal of the statutory provision demonstrates that this Section provides that inter alia during the pendency of any conciliation proceeding before a Conciliation Officer or a Board or 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 workmen concerned in the dispute, the conditions of service applicable to the workmen immediately before the commencement of the proceedings. Clause (b) of Subsection (1) of Section 33 clearly provides that during the pendency of Conciliation proceeding before a Conciliation Officer etc., no workman shall be discharged or punished whether by dismissal or otherwise, save with the express permission in writing of the authority before which the proceeding is pending. 15. In the case in hand, it is the employer who filed an application under Section 33(2) of the Industrial Disputes Act seeking approval of the order of dismissal it had passed against its workman, namely, Prit Pal before the learned Labour Court. 16. Before proceeding further, it is pertinent to mention that Subsection (2) of Section 33 under which the application was purportedly filed by the employer-company before the learned Industrial Tribunal-cum-Labour Court, does not envisages filing of any such application. This is for the reason that Subsection (2) of Section 33 comes into play in a situation where though proceedings as contemplated in Subsection (1) of Section 33 are pending before either the Conciliation Officer or a Board or Arbitrator or a Labour Court/Tribunal etc., but the employer intends to alter the conditions of service or discharge or punish the workman with regard to any matter not connected with the dispute which is pending under Subsection( 1) of Section 33 of the Act. 17. Be that as it may, leaving aside technicalities, this Court proceeds under the presumption that the application so filed by the employer was one as envisaged under Subsection (1) of Section 33 (supra). The application filed by the employer-company before the learned Court below is dated 31st August, 2009. It is verified by one Shri Neeraj Gupta, son of Shri M.C. Gupta, General Manager, Manufacturing-cum-Factory Manager of the employer-company. The application filed by the employer-company before the learned Court below is dated 31st August, 2009. It is verified by one Shri Neeraj Gupta, son of Shri M.C. Gupta, General Manager, Manufacturing-cum-Factory Manager of the employer-company. As per the averments made in the application, Shri Prit Pal was employed as Operator with Gabriel India Limited on 08.04.1988 and thereafter with Anand Engine Components Limited followed with employer-company. Management issued a letter, dated 17.04.2009 to the workman mentioning therein that due to paucity of orders and slow market demand, the workman could not be provided work which he was performing before 07.07.2008 and that as he was sitting idle for several months and was being paid salary without work, it was decided that he should be provided with alternative work and was accordingly directed to attend the job of "Rejection, Rework, Material, and Chip Handling" w.e.f. 17.04.2009. This letter was received by the workman under protest on 18.04.2009. However, he failed to join the alternative job. Management charge-sheeted him on 12.05.2009 for not doing alternative job/work after following the requisite procedure. Reply filed against the charge-sheet by the workman was not found satisfactory by the Management, who took a decision to conduct a domestic inquiry vide letter dated 02.06.2009. One Shri A.K. Bakshi was appointed as an Inquiry Officer. Said Inquiry Officer after conducting the inquiry, furnished his report holding that chargesheet dated 12.05.2009 stood duly proved. It further stood mentioned in the application that the inquiry was conducted by the Inquiry Officer by following the principles of natural justice as also the Certified Standing Orders, and as charges stood proved against the workman, therefore, Management took the decision to dismiss him from service and the same was communicated to him vide letter, dated 31.08.2009. In this background, the application was filed. 18. Now incidentally, there is not even a whisper in this application as to why the same was filed by the employer-company before the learned Labour Court. There is no mention of any proceedings pending before the learned Labour Court as envisaged under Section 33(1) of the Industrial Disputes Act warranting filing of any such application before it. 18. Now incidentally, there is not even a whisper in this application as to why the same was filed by the employer-company before the learned Labour Court. There is no mention of any proceedings pending before the learned Labour Court as envisaged under Section 33(1) of the Industrial Disputes Act warranting filing of any such application before it. During the course of arguments, when learned counsel for the employer-company was confronted with the contents of the said application, his contention was that may be it is not mentioned in the application itself as to what was the actual proceeding pending before the learned Labour Court, but the same as per him, had to be deciphered from the documents appended with the application. Learned counsel was called upon by this Court to state and demonstrate from record that which Reference was pending before the learned Labour Court as on the date when the application was filed by it before the said Court pertaining to the dispute in issue which led to the dismissal of the workman, however, learned counsel could not point out to any such material on record. In other words, on behalf of the employer-company it could not be pointed out that any Reference was pending before the learned Labour Court pertaining to the dispute which led to the dismissal of the workman in issue, i.e., his non-joining of alternative job offered to him by the employer. 19. It is a matter of record that grievance qua this issue stood raised by the Union on behalf of the workman before the Labour-cum-Conciliation Officer and as on the date when the application was filed by the employer-company, these proceedings were pending before the Conciliation Officer. The contention of the learned counsel for the employer-company that the company was not aware of any such proceedings or simply because an application stood filed before the authority concerned, the same would not itself amount to an Industrial Dispute, also has no force because it is a matter of record that the employer-company had filed its response to the said application before the Labour-cum-Conciliation Officer. This is duly borne out from the record of the case. It is also a matter of record that no application as envisaged under Subsection( 1) of Section 33 (supra) was filed by the employer-company before the learned Labour-cum-Conciliation Officer before whom the application of the workman was pending. This is duly borne out from the record of the case. It is also a matter of record that no application as envisaged under Subsection( 1) of Section 33 (supra) was filed by the employer-company before the learned Labour-cum-Conciliation Officer before whom the application of the workman was pending. 20. Yet, another issue which is relevant to be stated at this point is that Subsection (1) of Section 33 does not envisages a situation wherein the Management can first terminate the services of the employee and thereafter seek ratification of such order from the authority/Court of law envisaged in the said Subsection. The import of the statutory provisions thereof is that before such action is actually taken by the Management of the employee, permission in this regard has to be obtained from the concerned officer or Board or arbitrator or Court where the proceedings/industrial dispute is pending. This, admittedly, has not been done in the present case. In this view of the matter, in my considered view, there is no infirmity with the findings returned by the learned Labour Court, wherein it has been held that the application so filed by the employer-company under Section 33 (2) of the Industrial Disputes Act was not maintainable, as on the date in issue, there was no Reference pending before the learned Labour Court pertaining to the dispute which led to the dismissal of the workman, confirmation of which was being sought by the employer from the learned Labour Court. 21. Now coming to the grievance raised by the workman that learned Labour Court ought to have had granted full back wages to him, pursuant to the order of reinstatement having been passed in his favour, in my considered view, said contention of the learned counsel for the workman has merit. 22. 21. Now coming to the grievance raised by the workman that learned Labour Court ought to have had granted full back wages to him, pursuant to the order of reinstatement having been passed in his favour, in my considered view, said contention of the learned counsel for the workman has merit. 22. A five Judge Bench of Hon''ble Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and others (2002) 2 Supreme Court Cases 244 while dealing with the order of dismissal or discharge passed by invoking the provisions of Section 33 of the Industrial Disputes Act has held that when an application under the provisions of Section 33(2)(b) of the Act is made before the authority with which the proceeding is pending for approval of the action taken by the employer, the authority has to examine whether the order of dismissal or discharge is bonafide or whether it was by way of victimization or unfair labour practice. Hon''ble Supreme Court has further held that the authority has also to see whether the conditions contained in the proviso were complied with or not, etc. As per Hon''ble Supreme Court, if the authority refuses to grant approval, obviously it follows that the employee continues to be in service as if the order of discharge or dismissal had never been passed. It has been further held that an order of dismissal or discharge passed by invoking the provisions of Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of the dismissal or discharge, but that order remains incomplete and inchoate, as it is subject to approval of the authority under the said provisions. 23. In my considered view, as per the law laid down by Hon''ble Supreme Court, once approval, as envisaged under Section 33 (supra) has not been granted by the authority concerned, then it is deemed that the order of dismissal or discharge has not been passed and the relationship between the employer and the employee has not come to an end. Nothing more is required to be done by him, as the employee is deemed to be in continuous service entitling him for the benefits available. Nothing more is required to be done by him, as the employee is deemed to be in continuous service entitling him for the benefits available. Taking into consideration the said law of Hon''ble Supreme Court, there is merit in the contention of learned counsel for the workman that the order passed by the employer is required to be modified to the extent that the employer has to be directed to pay the workman full back wages (but without interest) which were available to him in his capacity as an employee, as the relationship of employer and employee has not been severed at all. Ordered accordingly. 24. With the aforesaid observations/directions, the petitions stand disposed of, so also miscellaneous application(s), if any.