WA/1324/2006 of THE MANAGEMENT OF FUTURA Vs THE PRESIDING OFFICER on 22 December 2006

J U D G M E N T

(Judgment of the Court, delivered by P.SATHASVIAM, J.)

Aggrieved by the order of the learned single Judge, dated10.10.2006, made in Writ Petition No.22221 of 2006, the Management ofFutura Polyesters Limited, formerly known as Indian Organic ChemicalsLimited, Manali, Chennai-68, has filed the above Appeal.

2. Brief facts are narrated here-under,

According to the petitioner/appellant, the second respondent -A.Manoharan, when he was working as Plant Operator in their ManufacturingPlant, unauthorisedly and continuously absented himself from work from09.02.2004 on the ground of Psychosomatic illness. When he appeared on21.02.2004 to join duty, he was advised to go to Medical Board to checkhis medical fitness, but he declined. Thereupon, he was discharged fromservice by an order dated 08.09.2004 with retrospective effect. Evenbefore the workman/2nd respondent was discharged from service, he raised adispute before the Conciliation Officer, Kuralagam. The ConciliationOfficer had sent a ‘failure report’ on 24.08.2004, which was received bythe workman on 02.09.2004. Thereafter, by order dated 08.09.2004, he wasdischarged from service with effect from 09.02.2004.

The second respondent filed a Petition before the firstrespondent/Labour Court, Chennai, complaining his removal, and the samewas taken on its file as regular Industrial Dispute in I.D. No.465 of 2004under Section 2A(2) of the Industrial Disputes Act, 1947 (hereinafterreferred to as I.D. Act). Thereupon, the second respondent filed anApplication in I.A. No.73 of 2006 in I.D. No.465 of 2004, stating that, infact, he only filed a complaint under Section 33A of the ID Act for hisnon-employment, whereas, the office of the Labour Court, without hisconsent, had taken it on file as an Industrial Dispute in I.D. No.465 of2004 under Section 2A(2) of the I.D. Act, therefore, the Court shouldconvert the same as a complaint under Section 33A of the I.D. Act. The IAdditional Labour Court allowed the Application by holding that, in theabsence of the management establishing that the order of discharge, dated08.09.2004, was effected only after the "failure report" of theConciliation Officer reached the Government, as contemplated under Section20(2)(b) of the I.D. Act, only the complaint under Section 33A ismaintainable and not a dispute under Section 2A(2) of the I.D. Act.Questioning the same, the petitioner/management filed W.P. No.22221 of2006.

The second respondent filed a counter affidavit in the WritPetition, reiterating what he has stated in the I.A. before the LabourCourt.

The learned single Judge, by order dated 10.10.2006, afterfinding that the right of a workman under Section 33(2) of the I.D. Acthas been violated, and holding that the Labour Court is perfectly right in converting the Application under Section 2A as that of a Petition underSection 33A of the I.D. Act, dismissed the Writ Petition. Questioning thesame, the Management has filed the above Appeal.

3. Heard Mr.AL.Somayaji, learned Senior Counsel appearing forthe appellant/Management, and Mr.A.Manoharan – R.2, Party-in-Person.

4. In view of the narration of facts in the earlier part of ourJudgment, there is no need to refer all the factual details once again.

5. The workman filed a petition under Section 33A of the I.D.Act before the first respondent/Labour Court, alleging that the Managementhas violated the provisions under Section 33 of the ID Act. TheManagement filed a counter statement, stating that the workman was notterminated from service and his name still finds place in their musterroll, therefore, the workman cannot raise a dispute under Section 2A ofthe Act and the petition is not maintainable. When the said petition waspending before the Labour Court, the Workman, after coming to know thatthough he filed a complaint under Section-33A, the Office of the LabourCourt numbered the same as an Industrial Dispute in I.D. No.465 of 2004,filed I.A. No.73 of 2006 to treat the petition filed by him as a complaintunder Section-33A and to grant immediate relief to him. Hereagain, themain grievance of the workman was that when conciliation proceeding waspending with the Conciliation Officer, the Management hurriedly terminatedhim, in such circumstances, his Application has to be considered onlyunder Section 33A. The first respondent/Labour Court, considering thefact that, on the date when the service of the workman was terminated,that is, on 08.09.2004, the proceeding before the Conciliation officer waspending since the report had not reached the Government, accepted thestand taken by the workman and, after finding that there is a clearviolation of Section 33 of the I.D. Act, allowed the I.A. filed by theWorkman for the conversion of his Petition as a complaint.

6. Mr.A.L.Somayaji, learned Senior Counsel appearing for theappellant, vehemently contended that inasmuch the Conciliation Officer hassubmitted his report, which was received by the Management on 02.09.2004,and the order of termination was passed well after the same on 08.09.2004,the Labour Court committed an error in converting the petition as prayedfor; and that the learned single Judge also, without taking note of thesame, erroneously confirmed the said order of the Labour Court. He furthercontended that the Labour Court is not justified in deciding the issueviz., violation of Section 33, before going into the merits of the casewithout scrutinising the facts.

7. Mr.A.Manokaran/workman, appearing Party-in-Person, defendedthe order of the Labour Court and that of the learned single Judge.

8. It is seen from the materials placed in respect of thepetition filed before the Conciliation Officer that, after finding that the Conciliation was not successful, he submitted a ‘failure report’ dated24.08.2004. It is not in dispute that the Management and the Workmanreceived the failure report on 02.09.2004. The termination order waspassed by the Management on 08.09.2004. The question is as to when theGovernment received the failure report in terms of Section-20(2)(b). Therelevant provision reads as follows:- —(1) (2) A conciliation proceeding shall be deemed tohave concluded -

(b) where no settlement is arrived at, when thereport of the Conciliation Officer is received by theappropriate Government or when the report of the Boardis published under Section 17, as the case may be; or It is clear that when no settlement is arrived, the conciliationproceedings shall be deemed to have concluded only when the report of theconciliation officer is received by the Government or the report of theBoard is published under Section-17. Though the management and theworkman received the Failure Report on 02.09.2004 and the terminationorder was issued by the Management on 08.09.2004, there is no informationas to when the Government received the Failure Report in terms of Section20(2)(b). In such circumstances, as rightly observed by the Labour Court,it cannot be concluded that the proceedings before the ConciliationOfficer came to an end. As observed in AIR 1958 SC page 88, for theproceedings to conclude, it is necessary that the Report should actuallyreach the Government. In other words, unless the report actually reachesthe Government, the proceeding before the Conciliation Officer shall notbe deemed to have concluded. In the absence of such relevant information,we are of the view that the proceeding before the Assistant Commissioner(Labour) is to be considered as not concluded and deemed to have beenpending.

“ 33. Conditions of service, etc., to remainunchanged under certain circumstances during pendencyof proceedings. - (1) During the pendency of anyconciliation proceeding before a Conciliation Officeror a Board or of any proceeding before an arbitrator ora Labour court or Tribunal or National Tribunal inrespect of an industrial dispute, no employer shall, -

(a) in regard to any matter connected withthe dispute, alter, to the prejudice of the workmenconcerned in such dispute, the conditions of serviceapplicable to them immediately before the commencementof such proceeding; or (b) for any misconduct connected with thedispute, discharge or punish, whether by dismissal orotherwise, any workman concerned in such dispute, save with the express permission in writing of theauthority before which the proceeding is pending.

(2) During the pendency of any such proceeding inrespect of an industrial dispute, the employer may, inaccordance with the standing orders applicable to aworkman concerned in such dispute or, where there areno such standing orders, in accordance with the termsof the contract, whether express or implied, betweenhim and the workman, - (a) alter, in regard to any matter not connectedwith the dispute, the conditions of service applicableto that workman immediately before the commencement ofsuch proceeding; or (b) for any misconduct not connected with thedispute, discharge or punish, whether by dismissal orotherwise, that workman:

Provided that no such workman shall be dischargedor dismissed, unless he has been paid wages for onemonth and an application has been made by the employerto the authority before which the proceeding is pendingfor approval of the action taken by the employer.…………”

We have already observed that since there is no information about thereceipt of the report of the Conciliation Officer by the appropriateGovernment in terms of Section 20(2)(b), it cannot be concluded that theconciliation proceeding came to an end at the hands of the ConciliationOfficer, in such circumstances, in view of Section-33 referred to above,the Management is not permitted to terminate the workman. In view of theabove interpretation, it follows that prima facie there is violation ofthe proviso to Section 33(2) of the Act by the Management in passing thetermination order without making an Application for approval to theauthority concerned.

10. It is clear that if there is any violation of Section-33 of the Act by the Management, the Workman is free to make a complaint inwriting to adjudicate as to whether the conditions of service has beenchanged. The workman/second respondent herein has asserted at more thanone place that though he filed a complaint under Section 33A of the Act,the office of the Labour Court numbered it as a regular Industrial Disputewhich necessitated him to file I.A. No.73 of 2006 for converting thepetition as complaint under Section-33A.

11. The particulars furnished clearly show that the terminationorder was passed prior to the disposal of the proceeding before theConciliation Officer. As said earlier, though the Conciliation Officersubmitted his Report, in the absence of proof to substantiate/confirm thereceipt of the report by the appropriate Government in terms of Section 20(2)(b), the action taken by the Management, viz., terminating the serviceof the workman on 08.09.2004, amounts to violation of Section-33 of theAct. All these relevant aspects have been correctly appreciated anddecided by the labour court, which decision was rightly confirmed by thelearned Judge. Inasmuch as the decision of the Labour Court is only aprima facie conclusion for the disposal of I.A. No.73 of 2006, we areunable to accept the contention of the management that the Labour Courthad gone into the merits and pre-concluded the issue.

In these circumstances, we do not find any error or valid ground forinterfering with the well considered order of the learned single Judge.Consequently, Writ Appeal fails and the same is dismissed. No costs.JI.Sd/Asst. Registrar To /true copy/Sub Asst.Registrar

1. The Presiding Officer,I Additional Labour Court,Chennai-104.

2. The S.O. V.R. Section, High Court, Madras.

+ One cc to Mr. A. Manokaran, SR 64512BS (co)sg 22/12/06