Darshan Singh vs The Judge, Labour Court and Others

Tatia, J.—Heard learned counsel for the parties. An application was submitted u/s 33-A of the Industrial Disputes Act, 1947 (for short, "Act of 1947") by the applicant stating therein that during the conciliation proceedings which were going on for regularisation and fixation of the wages of the employee, the employer terminated the services of employee which is in violation of Section 25(f) 25(G) 25(H) and Rule 77-78 of the Act of 1947, therefore, dispute may be determined. The Labour Court, Sriganganagar held that unless a reference is made u/s 10 of the Act of 1947, the Labour Court has no jurisdiction to entertain the application u/s 33-A of the Act of 1947.

Learned counsel for the petitioner relies on the judgment of Hon''ble Apex court delivered in the case of Lokmat Newspapers Pvt. Ltd. v. Shankar Prasad (1) wherein Hon''ble Apex Court held that when the retrenchment order was passed during the pendency of conciliation proceedings, it amounts to breach of Section 33(1) of the Act of 1947 as Section 33(1) requires prior express permission in writing of the Conciliation Officer before whom conciliation proceedings were pending.

Learned counsel for the respondents submitted that petitioner is neither their employeee nor his services were terminated by the respondents. The arguments of learned counsel for the respondents are taken note of only for the purpose of mentioning that these arguments were raised; otherwise they have got no relevancy in the present controversy. The learned counsel for the respondents sought time for filing reply which is refused in view of the fact that only pure question of law involves in this matter.

A bare perusal of Section 33(1)(a) of the Act of 1947 reveals that employer is prohibited from passing any order which may alter the dispute or which may prejudice the workman concerned in such dispute and also further prohibited from altering the conditions of service applicable to the employee which was applicable to the employee immediately before commencement of such proceedings. Section 33-A(b) very specifically provides that where an employer contravenes the provisions of Section 33 during the pendency of proceedings a Conciliation Officer, Board, an Arbitrator, a Labour Court, Tribunal or National contravention, may make a complaint in writing in prescribed manner as per Sub-clause (b) of Section 33-A to such authority and in that case, the complaint may be adjudicated by such authority treating it as it is a dispute referred to the concerned authority and/or is pending before it.

In view of joint reading of Section 33(1)(a) and Section 33-A, it appears that intention of legislature was very clear that no adverse order can be passed by employer when the matter is pending even at the level of Conciliation Officer or even upto the level of Conciliation Officer or even upto the level of National Tribunal including before Labour Court and in case any adverse order is passed, Labour Court itself can adjudicate upon grievance of employee treating it as dispute referred to under the provisions of Act of 1947.

Here in this case, failure report was submitted by Conciliation Officer to the Government and the Government referred the matter to the Labour Court for adjudication but during these proceedings, services of petitioner were terminated vide order dated 15.7.2K. Since the dispute was raised by the employee as back as on 24.6.2K and matter was pending before State Government, it was referred to the Labour Court on 13.8.2001 and during this period, termination order was passed, therefore, Tribunal should have entertained the grievance of petitioner while considering the reference petition which was sent by the State Government vide reference dated 30.8.2001. Instead of doing so, Labour Court independently registered the application u/s 33-A of the petitioner and rejected the same only on the ground that Labour court can entertain the petition when it is referred to by the State Government u/s 10 of the Act of 1947. It appears that Labour Court failed to take note of relevant provisions of law and rejected the complaint petition of the petitioner, therefore, the order dated 5.9.2001 is set aside. The matter is remanded back to the Labour Court and Labour Court is directed to consider the application of petitioner u/s 33-A while considering the reference dated 30.8.2001 treating it as a reference from State Government u/s 33-A(b) of the Act of 1947.

The writ petition is allowed as observed above.