Pradeep Kumar, J.@mdashHeard learned Counsel for the petitioner and the learned Counsel for the Respondents.
2. This application is directed against the judgment and order dated 27.9.2006 passed by the Presiding Officer, Industrial Tribunal, Ranchi in Miscellaneous Case No. 2 of 2002, whereby in a petition filed by the petitioner-Management of Instrumentation Limited under Sections 33(2)(a)/(b) of the Industrial Dispute Act (herein after referred to as "the Act") making a proposal that in the pending reference case No. 1 of 2000, between the management and the workmen for their regularisation and their claim "demand of equal pay", the management took a decision to close the industry at Bokaro unit and proposed to terminate the 36 workmen, who have failed to go for voluntary retirement scheme by offering them one month''s pay u/s 25F of the Act, the learned Tribunal found that the petition is vague and stated that in the circumstances, provision of Sections 33(2)(a) and 33(2)(b) of the Act are not applicable, dismissed the application and refused to confirm the order of termination.
3. It is submitted by learned Counsel for the petitioner that his application was filed u/s 33(2)(a) of the Act, since the proceeding with regard to the dispute of the workmen and the management for their regularisation and equal pay was pending and they proposed to close the industry and offered all the dues of the workmen, 36 in number, u/s 25F of the Act and filed the application before the proposed date of termination and as such, the application was within the provision of Section 33(2)(a) of the Act and the court without giving any finding that how it is not covered u/s 33(2)(a), gave a wrong finding that application was vague. The learned Counsel further submitted that as per Section 33(2)(a) of the Act, when the Management wants to alter, in regard to any matter not connected with the dispute, the service condition applicable to that workman immediately before the commencement of such proceeding either in accordance with standing order applicable to the workman or as per terms of contract, then the application u/s 33(2)(a) is maintainable. In the instant case, since the dispute with regard to the regularisation of service and equal pay demand was pending before the Industrial Tribunal and the workers were admittedly temporary and casual workers and as per the contract they were working as casual workers, hence the matter was not connected with their regularisation and their termination under the provision of Section 33(2)(a) of the Act was within the compass of the provisions and the labout Court wrongly rejected the application saying that it is vague. The provision of Section 33(2)(a) and its proviso were fully complied, as the Management has given a notice as contained in Annexure-5 u/s 25F of the Act on 22.11.2002 with a Bank Draft offering their entire dues and since the same was not accepted, the same was filed in court along with the application u/s 33(2)(a)/(b) of the Act by the Management before the Industrial Tribunal. He has further submitted that the learned Industrial Tribunal failed to consider that even if the provision of law was wrongly written on the petition, the same cannot be dismissed because as per law, the court is supposed to look into the substance of the petition and not the quoting of wrong provision and in this connctiion, he has relied a judgment in the case of
4. On the other hand, learned Counsel appearing for the Respondents, has submitted that the Tribunal has rightly agreed with the argument made by the workmen that since the matter is connected with the pending dispute, Section 33(1)(a) of the Act will applied and since the petition was filed u/s 33(2)(a)/(b) of the Act, the same was rightly dismissed. It is submitted that Section 33(1)(a) of the Act is with regard to the pending proceeding and according to Section 33(1)(a) of the Act, 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, save with the express permission in writing of the authority before which the proceeding is pending. It is further submitted that according to that provision, before going for closer or before going for termination, the petitioner should have taken permission as envisaged u/s 33(1)(a) proviso and since no such permission was taken, the application was rightly dismissed. The learned Counsel appearing for the Respondent workmen has relied, for this purpose, a judgment in the case of P. K. Sreekantan v. P Sreekumaran Nair, reported in 2007(1) JLJR 261. The counsel for the workmen has also reported a judgment in the case of
5. After hearing both the parties and going through the records, I find that, as a matter of fact, it is an admitted case that a reference was pending between the parties before the Industrial Tribunal, Ranchi being Reference Case No. 01/2000 arising out of Notification No. 365 dated 14.09.1999. The said reference was in relation to the question of regularisation of service of 119 casual workers and also the question of equal pay and other facilities to them at par with regular workmen. It is also an admitted case that under the direction of rehabilitation passed in Bureau of industrial and Financial Reconstruction Case No. 509/1993, the management of Instrumentation Limited had offered voluntary Retirement Scheme (VRS), to all 119 workmen and out of the aforesaid 119 workmen, 83 persons accepted VRS and left the services of the company and only 36 persons remained as casual employee at the Bokaro site of the Instrumentation Ltd. It is also admitted case that since the Management of Instrumentation Ltd decided to close down the Bokaro unit with effect from 30.11.2002 and since, the only 36 casual employees remained in Bokaro unit, hence in compliance of the provisions of Sections 25F and 25FF(a) of the Act, the Management decided to pay all 38 persons engaged in casual basis inclusive 36 contesting workmen, the compensation in lieu of two months notice, gratuity and leave encashment by Bank Draft issued in the name of the individual employees and the same was sent to them by post on 25.11.2002. It is also a fact that on the same day ie. 25.11.2002 the present application was filed simultaneously for proper order and confirmation of their termination as required u/s 33(2)(a) of the Act.
6. After hearing learned Counsel for the parties, and going through the impugned award, it appears that after considering both the cases and rival claim of the parties, the learned Presiding Officer Industrial Tribunal, Ranchi framed two issues;
(I) whether the petition filed under Sections 33(2)(a)/(b) of the Act is maintainable ? and
(II) whether the action taken is fit to be approved as prayed in the petition?
7. Considering point No. (I), the Tribunal quoted the arguments of the management and the workmen in para-6 and 7. The workmen said that the application under Sections 33(2)(a) and 33(2)(b) of the Act was not maintainable. The management submitted that the workmen have been retrenched but there has been no compliance of the provisions of Section 25F and 25FF of the Act. According to the workmen, application should have been filed u/s 33(1)(a) of the Act and the provisions of Section 33(2)(a) are not attracted. It appears that after discussing their arguments in para-6 to 10, without coming to any finding as to how Section 33(2)(b) of the Act is not applicable, the court at para-11 only stated that since it is not a case of dismissal or discharge for any punishment or misconduct, hence Section 33(2)(b) of the Act is not attracted but nowhere he discussed as to whether Section 33(2)(a) of the Act will apply or not and in para-12 declared that application is vague.
8. Sections 33(1)(a) and (b) of the Act are quoted herein-below:
33(1)(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.
33(1)(b) For any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute,
Save with the express permission in writing of the authority before which the proceeding is pending.
9. Sections 33(2)(a) and (b) of the Act with proviso are also quoted herein-below:
33(2)(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.
33(2)(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.
10. It appears from Section 33(1) of the Act that it will apply during the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute. Admittedly, no conciliation was pending before the Industrial Tribunal between the workmen and employer. What was pending was a reference made by the Government. Hence, the entire argument of the Respondent-workmen that application should have been filed u/s 33(2)(a) of the Act is totally misconceived. It is also clear from the provisions of Section 33(2) of the Act that it will apply when during the pendency of any such proceeding in respect of the industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or whether there are no such standing orders, in accordance with the terms of 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. So, here a dispute was pending before the Industrial Tribunal with regard to regularisation and equal pay demand of workmen in the reference and the question of their termination due to close of industry was not connected with the dispute, hence, the application was subsequently made u/s 33(2)(a) of the Act. Moreover, the proviso say that no 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 its approval of the action taken by the employer. In the instant case, the petitioner has filed Annexure -5, a notice given to each workman offering one month pay with all other dues, gratuity etc, by bank drafts and since they refused to take the same, the same was filed in court. Hence, the proviso was also compiled. In that view of the matter, I find that without making any discussion about the substance of the case and the substance of the petition, the Industrial Tribunal, Ranchi came to a finding that the provisions of law stated are vague.
11. It is admitted case, as has been held of the Supreme Court and relied by the learned Counsel for the petitioner in the case of State of Karnataka (supra), wherein it has been held that quotation of a wrong provision does not take away the jurisdiction of the authorities to inquire the matter under the correct provisions of the said Act. In that case the substance of the petition was u/s 79B(2) of the Act but it was wrongly quoted as Section 66(1) of the Act, the Supreme Court held that the Tribunal, therefore, had jurisdiction to enquire into and publish the declaration as enjoined u/s 79-B(3) of the Act. It also appears that in one of the judgment, which has been relied by the learned Counsel for the workmen i.e,
12. The other judgment reported by the workmen''s counsel in the case of P.K. Sreekantan (supra), reported in 2007 (I) LLJ 261 is concerned, in that case the supreme Court has decided that every Tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts and circumstances. In that case also there was vast difference between Section 18 of the Land acquisition of Act and Section 30 of the Land Acquisition Act and the Supreme Court directed the petitioner to convert his application u/s 30 of the Land Acquisition Act. Here, in the instant case, since the application was filed u/s 33 of the Act and since there was dispute between the two parties with regard to the fact as to whether Section 33(1) of the Act will apply or Section 33(2) of the Act will apply and the Court, in stead of deciding the matter, wrongly declared the petition itself to be vague.
13. In that view of the matter, I find that the Tribunal instead of going into the substance of the matter, only saw the sections quoted in the petition and stated that application is vague. In that view of the matter, the entire finding of the Tribunal is perverse, bad in law and without proper appreciation of law and facts and hence the impugned order dated 27.09.2006 passed by the Presiding Officer, Industrial, Ranchi in Miscellaneous Case No. 2 of 2002 is quashed.
14. This writ petition is, accordingly, allowed.
