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ARASU VIRAIVU POKKUVARATHU OOZHIYAR SANGAM V/S STATE EXPRESS TRANSPORT CORPORATION LTD. , decided on Monday, April 3, 2006.
[ In the High Court of Madras, Writ Appeal No.379 of 2006 . ] 03/04/2006
Judge(s) : CHIEF A.P. SHAH & PRABHA SRIDEVAN
Advocate(s) : Mr. K. Chandru, Senior Counsel, Mr. D. Hari Paranthaman. R1, Mr. R. Thiagarajan, Senior Counsel, Mr. L.G. Sahadevan.
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judgment - (Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 15.3.2006 in W.P. No.32986 of 2005.)A.P. Shah C.J.Appeal is admitted.2. We have heard learned counsel appearing for the parties finally in this appeal. It is being disposed of by this judgment.3. The question involved in this appeal at the instance of the Workmen’s Union pertains to the legality and validity of the order of the first respondent Corporation whereby the workmen have been reverted from the post of Data Entry Operators (DEO) to conductor/technical staff and calls for a decision as to whether the said order was in violation of Section 33(1)(a) of the Industrial Disputes Act 1947 (for brevity sake hereinafter referred to as the ‘Act’). A few relevant facts are required to be noted at this stage. 4. The appellant is a Trade Union registered under the Trade Unions Act 1926. The first respondent is a company under Section 617 of the Companies Act wholly owned controlled and administered by the Government of Tamil Nadu. The respondent/Corporation is operating long distance passenger transport services all over Tamil Nadu and also in three southern States and the Union Territory of Pondicherry. It appears that the ticket reservation system in the respondent/Corporation was originally being done manually. Since this system required a lot of manpower and caused delay the respondent/Corporation introduced computerised reservation system in their operational areas as well as in the Head Office and the Administrative Sections in the branches. Computers were introduced both for reservation and also for effective and speedy accounting and other official purposes. In order to handle/operate the computers the respondent/Corporation decided to appoint persons through internal section from amongst the workmen in their employment except the drivers. Accordingly 48 and odd persons were selected as Data Entry Operators who were paid the salary payable to Conductors or Tradesman/Technical Staff apart from a Special Allowance. In or around 2002 the respondent/Corporation decided to outsource the computer work to outside contractors by calling for tenders in newspapers. The action of the respondent/Corporation was challenged by the appellant/Union in Writ Petition No.6491 of 2002. The said writ petition was heard along with a batch of cases where the action of the other Transport Corporations in sending back the Data Entry Operators to their original posts was challenged. The learned single Judge vide his order dated 24.2.2004 allowed all the writ petitions and held that asking the D.E.Os./E.D.P. Operators to join in their original posts was illegal and contrary to Clause 11 of the 12(3) Settlement dated 28.9.1989 and violative of Article 14 and Article 1 9(1)(g) of the Constitution of India and that any change in the conditions of service of Data Entry Operators should be done only after following the procedure contemplated under Section 9-A of the Act. Pursuant to the order passed by the learned single Judge the second respondent issued a notice dated 5.7.2005 under Section 9-A of the Act proposing to revert 54 Data Entry Operators working in the E.D.P. Wing to their original posts of conductor/technical staff after the expiry of 21 days from the date of the notice i.e. with effect from 27.7.2005. Immediately on receipt of the notice dated 5.7.2005 the appellant/Union issued a strike notice dated 13.7.2005 to respondents 1 and 2 objecting to the changes proposed to be made in the notice dated 5.7.2005 and also demanding respondents 1 and 2 to continue the workmen as Data Entry Operators and for fixation of proper scale of pay from the date of their appointment as Data Entry Operators with arrears and consequential benefits. Since the first respondent is a public utility service conciliation is deemed to have commenced immediately on the issuance of the strike notice. In fact the Conciliation Officer issued a notice of conciliation on 15.7.2005 on the strike notice issued by the Union and fixed the conciliation on 21.7.2005. Thereafter conciliation meetings were held on various dates and finally in the conciliation meeting which was held on 4.10.2005 the Conciliation Officer signed the failure report. Immediately on the close of the proceedings held on 4.10.2005 the second respondent issued the impugned order dated 5.10.2005 and sought to implement the change proposed in their notice dated 5.7.2005 issued under Section 9-A of the Act. This action of the respondent/Corporation is challenged by the appellant/Union in the present writ petition on the ground that effecting the change proposed in the notice under Section 9-A of the Act during the pendency of conciliation without seeking the express prior permission was non-est and inoperative and also violative of Section 33(1)(a) of the Act and further seeking a direction to respondents 1 and 2 to continue the workmen as Data Entry Operators. The writ petition is dismissed by the learned single Judge by directing the appellant/Union to work out their remedy under the Industrial Disputes Act. 5. We have heard Mr. K. Chandru learned senior counsel appearing for the appellant/Union and Mr. R. Thiagarajan learned senior counsel appearing for the respondent/Corporation.6. The short question which falls for our consideration is whether the action of the Corporation reverting the Data Entry Operators to the post of conductor/technical staff was in violation of Section 33(1)(a) of the Act. The question of violation of Section 33(1)(a) of the Act requires to be considered in the light of the relevant statutory provisions of the Act. Section 33(1) which is relevant for our discussion reads interalia as under:“33. Conditions of Service etc. to remain unchanged under certain circumstances during pendency of proceedings:(1) During the pendency of the conciliation proceedings before (an arbitrator or) a Conciliation Officer of the Board or of any proceeding before any 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.”7. As stated earlier the order of reversion was passed on 5.10.2005 i.e. immediately after the closing of the conciliation proceedings on 4.10.2005. Before the impugned order was passed by the Management it had already served a notice dated 5.7.2005 under Section 9-A of the Act to the appellant/Union to the effect that it proposed to introduce a change in the conditions of service of the members of the Union by reverting them to their original posts of conductor/technical staff. On the receipt of the notice dated 05.07.2005 the appellant/Union issued a strike notice dated 13.07.2005 to respondents 1 and 2 objecting to the change proposed to be made in the notice dated 05.07.2005 for fixation of appropriate scales of pay from the date of their appointment as Data Entry Operators with arrears and consequential benefits. Since the first respondent is the public utility service conciliation is deemed to have commenced immediately on the issuance of the strike notice. In fact the Conciliation Officer issued a notice of conciliation on 15.07.2005 on the strike notice issued by the union under Section 12(1) of the Act and fixed the date of conciliation as 21.07.2005. Section 12(1) of the Act reads as under:“12. Duties of Conciliation Officers.(1) Where an industrial dispute exists or is apprehended the Conciliation Officer may or where the dispute relates to a public utility service and a notice under Section 22 has been given shall hold conciliation proceedings in the prescribed manner.”8. On these aforesaid admitted facts the question that now arises before us is whether the reversion order dated 5.10.2005 was passed during the pendency of the conciliation proceedings. It is not in dispute that the conciliation proceedings were held by the Conciliation Officer on various dates and finally the proceedings were closed on 4.10.2005. On the very next day the Corporation implemented the change proposed in their Section 9-A notice dated 5.7.2005. It is conceded before us that the failure report was forwarded to the State Government only on 14.10.2005. The submission of the learned senior counsel appearing for the appellant/Union is that till the Conciliation Officer prepared his report as per Section 12(4) of the Act and till that report reached the Government the conciliation proceedings were deemed to have been continued and not deemed to have been terminated at least till 14.10.2005 and since in the mean time i.e. on 4.10.200 5 the impugned reversion order was passed without following the procedure contemplated under Section 33(1) of the Act it got vitiated in law.9. Under these circumstances the question that arises is whether the conciliation proceedings deemed to be terminated on signing of failure report by the Conciliation Officer or deemed to be continued till the failure report is received by the appropriate Government. In order to answer this question it is necessary to note Sub-section (4) of Section 12 of the Act which reads as under:“(4) If no such settlement is arrived at the conciliation officer shall as soon as practicable after the close of the investigation send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full settlement of such facts and circumstances and the reasons on account of which in his opinion a settlement could not be arrived at.”A mere look at this provision shows that if the Conciliation Officer finds during the conciliation proceedings that no settlement is arrived at between the disputing parties then after closing the investigation he has as soon as practicable to send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and has also to mention all other details as required to be mentioned in the report under Section 12(4) of the Act.10. At this stage it is necessary to refer to Section 20(2) of the Act which is relevant for the purpose of this appeal and the provisions of Section 20 are as follows:“20. Commencement and conclusion of proceedings - (1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lockout under Section 22 is received by the Conciliation Officer or on the date of the order referring the dispute to a Board as the case may be.(2) A conciliation proceeding shall be deemed to have concluded -(a) where a settlement is arrived at when a memorandum of settlement is signed by the parties to the dispute;(b) where no settlement is arrived at when the report of the Conciliation Officer is received by the appropriate Government or when the report of the Board is published under Section 17 as the case may be; or(c) when a reference is made to a Court [Labour Court Tribunal or National Tribunal] under Section 10 during the pendency of conciliation proceedings.”On a perusal of the above said provisions it is seen that Sub section – 1 fixes the date of commencement of conciliation proceeding as the date on which a notice of strike or lock out under Section 22 is received by the Conciliation Officer. As far as the non-public utility undertaking are concerned the conciliation proceeding shall be deemed to have commenced on the date of the order referring the dispute to a Board. The provisions of Sub section - 2 apply to all conciliation proceedings whether in regard to public utility service or otherwise. A conciliation proceeding under this sub Section shall be deemed to have concluded in the manner aforesaid. The conciliation proceeding therefore do not end when the report under Section 12(4) is submitted by the Conciliation Officer but it ends when that report is received by an appropriate government. The word ‘received’ in Sub section 2 (b) obviously implies actual receipt of the report by the appropriate government where no settlement is arrived at.11. In Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad [1999 (II) L.L.J. 136] the provisions of Section 20(2) fell for consideration of a Division Bench of the Supreme Court. The Supreme Court observed as follows:“A mere look at the aforesaid provisions shows that in cases of public utility services referred to in Section 22(2) of the I.D. Act the conciliation proceedings shall be deemed to have commenced on the date on which a notice of strike or lockout under Section 22 is received by the Conciliation Officer. That deals with commencement of mandatory conciliation proceedings as laid down by Section 12(1) read with Section 20(1). But when we come to Section 20(2) it becomes obvious that the legislature has introduced by way of legal fiction an irrebuttable presumption as per sub-clause (b) of Section 20(2) that when during conciliation proceedings no settlement is arrived at between the parties the conciliation proceedings shall be deemed to have concluded when the failure report of the Conciliation Officer is received by the appropriate Government. Consequently the legislative intention becomes clear that conciliation proceedings initiated under Section 12(1) whether of a discretionary nature or of a mandatory nature shall be treated to have continued and only to have concluded when the failure report reaches the appropriate Government. As noticed earlier it is not in dispute between the parties that after the closure of investigation on June 22 1982 when the Conciliator sent the failure report it reached the State Government only on August 13 1982. Therefore it has to be held that the conciliation proceedings in the present case had not got terminated and got concluded only on August 13 1982 as per the aforesaid category presumption created by the legal fiction provided in Section 20(2)(b). Therefore as a necessary corollary it must be held that these conciliation proceedings were pending till August 13 1982. It is axiomatic that conciliation proceedings which are deemed to have continued or remained pending. That which is not concluded is pending equally that which is pending cannot be said to be concluded.” (emphasis supplied)The Supreme Court further observed as follows:“We fail to appreciate how this decision can be pressed in service by learned counsel for the appellant while construing Section 20(2) of the I.D. Act. That Section as noted earlier has created an irrebuttable presumption by way of legal fiction and that presumption covers the very question as to when conciliation proceedings once commenced can be said to have concluded. In other words when they can be said to have not remained on pending. As seen earlier the legal fiction which is created for that purpose by Section 20(2) has to be given its full effect. As it is well-settled while giving effect to the legal fiction for the purpose for which it is created by Legislature it has to be given full play for fructifying the said legislative intention. We cannot allow our imagination to boggle on that score. It is of course true as laid down by the Constitutional Bench of this Court in the case of Bengal Immunity Co. Ltd. vs. State of Bihar and Others A.I.R. 1995 S.C. 661 @ 680. Das Act. C.J. speaking for the Court in para 31 of the report made the following pertinent observations:‘Legal fictions are created only for some definite purpose. xxx xxx xxxA legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field.’However as noted earlier legal fiction created by Section 20(2) is for the purpose of laying down as to till what stage conciliation proceedings can be said to be pending and when they can be said to have concluded. On that basis if it is held that conciliation proceedings once validly started under Section 12(1) of the I.D. Act can by way of an irrevocable presumption be treated to have continued till the failure report reached the appropriate Government during the interregnum of necessity such conciliation proceedings have to be treated as pending before the Conciliation Officer. In fact on these aspects of the matter we have a decision of this Court in Andheri Marol Kurla Bus Service & Anr. vs. The State of Bombay 1959-II-L.L.J. 236. In that case a Bench of two Judges of this Court had to consider the question as to when conciliation proceedings can be said to have concluded under the relevant provisions of this very Act. In that case during the admitted pendency of conciliation proceedings the management had dismissed the workman bus conductor. However the submission on the part of the management was that such dismissal was after the expiry of statutory period of 14 days within which the conciliation proceedings once started had to be concluded and as 14 days were already over the dismissal did not attract Section 33(1) and consequently the management could not be penalised under Section 31(1) of the I. D. Act which lays down as under:‘Any employer who contravenes the provisions of Section 33 shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.’In the aforesaid factual matrix of the case this Court in Andheri Marol Kurla Bus Service & Anr. vs. The State of Bombay (supra) had to consider the scope of Section 33(1) read with Section 20(2)(b). On a conjoint reading of these relevant provisions at paragraphs 4 and 5 of the report J.L. Kapur J. speaking for the Court made the following pertinent observations:The provisions of Sub-section 20(2) apply to all conciliation proceedings whether in regard to utility services or otherwise. All conciliation proceedings under this sub-section shall be deemed to have concluded in the case where no settlement is reached when the report of the Conciliation Officer is received by the appropriate Government. The conciliation proceedings therefore do not end when the report under Sec.12(6) is made by the Conciliation Officer but when that report is received by the appropriate Government it was contended that the conciliation proceedings should be held to be terminated when the Conciliation Officer is required under Sec.12(6) of the Act to submit his report but the provisions of the Act above quoted do not support this contention as the termination of the conciliation proceedings is deemed to take place when the report is received by the appropriate Government. That is how Sec.20(b) was interpreted in Workers of the Industry Colliery Dhanbad vs. Management of the Industry Colliery 1 953-I-L.L.J. 190 (SC).It was next contended that on this interpretation the conciliation proceedings could be prolonged much beyond what was contemplated by the Act and the termination would depend upon how soon a report is received by the appropriate Government. It is true that Sec.12(6) of the Act contemplates the submission of the report by the Conciliation Officer within 14 days but that does not affect the pendency of the conciliation proceedings and if for some reason the Conciliation Officer delays the submission but that will not affect the interpretation to be put on Sec.20(2)(b) of the Act. Section 12 lays down the duties of the Conciliation Officer. He is required to bring about settlement between the parties and must being his investigation without delay and if no settlement is arrived at he is to submit his report to the appropriate Government. No doubt Sec.12 contemplates that the report should be made and the proceedings closed within a fortnight and if proceedings are not closed but are carried on as they were in the present case or if the Conciliation Officer does not make his report within 14 days he may be guilty of a breach of duty but in law the proceedings do not automatically come to an end after 14 days but only terminate as provided in Sec.20(2)(b) of the Act. Colliery Mazdoor Congress Asansol vs. New Beerbhoomi Coal Co. Ltd. 1952 Lab.A.C. 21 9 (222).’The aforesaid decision therefore has settled controversy on this aspect by holding that conciliation proceedings would terminate only as provided by Section 20(2)(b) of the Act. Meaning thereby till the failure report reaches the appropriate State Government conciliation proceedings cannot be said to have terminated. Hence breach of Section 33(1) during the pendency of such proceedings could attract penal liability of the employer under Section 31(1) of the Act. Learned counsel for the appellant tried to submit that the aforesaid decision had not considered the legal effect of the fiction created by Section 20(2)(b) and its limited scope regarding deemed conclusion of the conciliation proceedings which was different from actual pendency of the proceedings as required by Section 33(1). It is difficult to appreciate this contention for the simple reason that the relevant provisions of the Act to which our attention was drawn by learned counsel for the appellant for submitting that there was a difference between pendency and conclusion of proceedings do not advance the case of the appellant as we have seen earlier nor can it be said that any relevant provisions of the Act were not noticed by the Division Bench of this Court which decided the case referred to in Andheri Marol Kurla Bus Service & Anr. vs. The State of Bombay (supra).” (emphasis supplied) 12. In view of the clear pronouncement of law by the Supreme Court there is no escape from the conclusion that when the order of reversion was passed against the workmen the respondent/Management had committed breach of Section 33(1) of the Act by not passing the said order after obtaining the express previous permission in writing of the Conciliation Officer before whom the conciliation proceedings must be held to be pending till his report was forwarded to the State Government on 14.10.2005. The impugned retrenchment order must therefore be held to be illegal being contrary to the provisions of the Industrial Disputes Act.13. In our opinion the learned single Judge was not right in asking the appellant/Union to resort to the alternative remedy under the Industrial Disputes Act. In Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma [(2002) 2 S.C.C. 244] the Constitution Bench of the Supreme Court held that the provisions of Section 33 of the Act are mandatory in nature.The Supreme Court observed as follows:“Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative the employer may with impunity discharge or dismiss a workman. ..... Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute get a reference and thereafter adjudication. In this view it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused a workman should still make a complaint under Section 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A and that till such time he should suffer misery of unemployment in spite of the statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b) Section 33-A would be meaningless and futile. The said section has a definite purpose to serve as already stated above enabling an employee to make a complaint if aggrieved by the order of the approval granted. The view that when no application is made or the one made is withdrawn there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33-A cannot be accepted. In our view not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it on its merits to take a position that such order is not inoperative or void till it is set aside under Section 33-A notwithstanding the contravention of Section 33(2)(b) proviso driving the employee to have recourse to one or more proceedings by making a complaint under Section 33-A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.” It is thus clear that the order which has been passed in violation of the mandatory provisions of Section 33 of the Act is void and inoperative and it is not necessary for the workmen to approach the Labour Court and especially when there is no factual dispute such an order can be interfered with under Article 226 of the Constitution of India.14. In the result the writ appeal is allowed. The order of the learned single Judge is set aside and impugned Order No.13/15039/A1/SETCTN/2002 dated 5.10.2005 issued by respondents 1 and 2 reverting the Data Entry Operators to the post of conductor/technical staff is hereby declared null and void and non-est. The State Government is directed to consider the failure report furnished by the Conciliation Officer and make a proper Reference to the Labour Court/Industrial Tribunal for adjudication of the dispute between the parties within a period of four weeks from the date of receipt of a copy of this judgment and till the dispute is adjudicated by the Labour Court/Tribunal respondents 1 and 2 are directed not to discontinue the services of the workmen in the post of Data Entry Operators without prior approval of the Labour Court/Tribunal. No order as to costs.