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Judgment
H.L. Gokhale, C.J.—Heard Mr. Karthik, learned Counsel in support of this appeal. Mr. Raja Kalifulla, learned Government Pleader
appears for the first respondent and Mr. S. Vaidyanathan, learned Counsel appears for the second respondent.
The appellant is a Printer and Publisher of books. The second respondent is a Union of Employees and the dispute in the present matter is
concerning one Mr. G. Karunakaran, who was suspended on 09th September 2006. The second respondent Union raised a demand on 14th
September 2006. The demand notice had various demands, one of which was to revoke this order of suspension. The Labour Officer/Conciliation
Officer, to whom the demand notice was sent, issued a summons to the parties to appear before him on 27th September 2006. Thereafter, it
appears that the matter was being attended by him on a number of days. It so transpired that during the pendency of this proceedings before the
Conciliation Officer, Mr. Karunakaran was dismissed on 22nd April 2007.
Being aggrieved by that dismissal, the second respondent Union filed a compliant to the Conciliation Officer u/s 33-A of the Industrial Disputes
Act, 1947 (hereinafter will be referred to as the ''I.D. Act'', for short) pointing out that the dismissal was in violation of the mandate of Section 33
of the I.D. Act, which requires that during the pendency of any conciliation proceeding before a Conciliation Officer in regard to any matter
connected with the dispute, no employer shall alter, to the prejudice of the workman concerned, the conditions of service applicable to him or for
any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, save with the express permission in writing of
the authority before which the proceeding is pending.
On that complaint being filed, the Officer passed an order on 20th December 2007 after hearing both the parties. In that order addressed to the
appellant management, in the ultimate para, the Officer has observed as follows:
In this manner, you are informed while the talks and the petitioner''s plea was in progress, without prior permission or consent of the Conciliation
Officer, Labour Officer (3), the dismissal of the Executive President G. Karunakaran is in violation of Section 33(1)(b) of the I.D. Act.
Being aggrieved by that letter/order, the appellant filed a petition, which came to be heard and decided by the learned Single Judge, who by his
order dated 08th June 2009 did not find anything wrong in the order passed by the Conciliation Officer and dismissed the petition. Being aggrieved
by that order, this appeal has been filed.
Mr. Karthik, learned Counsel appearing for the appellant made principally two submissions. The first submission was that on the date on which
this dismissal order was passed by the appellant, it could not be said that any conciliation was pending before the Conciliation Officer so as to
contend that there was any breach of Section 33 of the I.D. Act. As far as this submission is concerned, he further submitted that there is a
distinction between ''''mediation"" and ''''investigation"" on the one hand and ''''formal commencement of conciliation"" on the other hand. He also
submitted that there is a distinction between the conciliation in ''''public utility services'''' and ''''non-public utility services"". As far as non-public
utility services are concerned, under Rule 23 of the Tamil Nadu Industrial Disputes Rules, 1958, (hereinafter will be referred to as ''the Rules'', for
short) on receiving any information, the Conciliation Officer has to consider whether he should intervene or not and then he is required to send a
formal intimation. Rule 23 of the Rules reads as follows:
Conciliation Proceedings in non-public utility service. - (1) Where the Conciliation Officer receives any information about an existing or
apprehended industrial dispute which does not relate to a public utility service and he considers it necessary to intervene in the dispute, he shall give
formal intimation to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be
specified therein.
(2) The Conciliation Officer may hold a meeting of the representatives of both the parties jointly or of each party separately.
(3) The Conciliation Officer shall conduct the proceedings expeditiously and in such manner as he may deem fit.
He submitted that in the instant case, no such formal intimation was issued and, therefore, it cannot be said that any conciliation was pending.
We have been taken through the record. It is seen that the matter was attended by the concerned Officer on a number of dates after the
suspension of Mr. Karunakaran and he has subsequently been dismissed on 22nd April 2007, which has led to another complaint being filed to the
Conciliation Officer and he has given a Failure Report on 30th October 2007. It cannot be said that the dismissal was not a dispute under
conciliation before the officer. Yet there is no formal intimation as such on record even with respect to dismissal that the matter is being admitted in
conciliation. Can it therefore, be said that all the exercise that the officer was doing all throughout was not conciliation at all? It is true that there is a
provision for issuing a formal intimation under Rule 23(1) of the Rules, as has been noted above. But, it is not necessary that in each and every
case such a formal intimation would be issued. It is possible that mediation, investigation and conciliation can go on together simultaneously or one
after another without there being any specific separate notice that from a particular date conciliation is going to begin. In the facts of this case, it
cannot therefore be said that what the officer was doing was not conciliation.
Mr. Vaidyanathan, learned Counsel appearing for the second respondent has also brought to our notice the definition of ''''conciliation
proceeding"" u/s 2(e) of the ID Act, which provides that ''conciliation proceeding'' means any proceeding held by a Conciliation Officer or Board
under this Act. There is no separate definition for ''''investigation"". This being the position, the first submission of Mr. Karthik cannot be accepted
that no conciliation was pending on the date on which the employee came to be dismissed.
The other submission of Mr. Karthik is that assuming that any conciliation was pending, the power of the Conciliation Officer u/s 33(A)(a) of the
I.D. Act is a limited power, as against the power of a Labour Court or Tribunal or National Tribunal u/s 33(A)(b). For ready reference, the section
is quoted below and it reads as follows:
33A. Special provisions for adjudication as to whether conditions of service etc. changed during pendency of proceeding''s.- Where an employer
contravenes the provisions of Section 33 during the pendency of proceedings before a Conciliation Officer, Board, an Arbitrator, a Labour Court,
Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner, -
(a) to such Conciliation Officer or Board, and the Conciliation Officer or Board shall take such complaint into account in mediating in, and
promoting the settlement of, such industrial dispute; and
(b) to such Arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the Arbitrator, Labour Court, Tribunal or
National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance
with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply
accordingly.
Mr. Karthik, learned Counsel appearing for the petitioner submits that all that the Conciliation Officer can do is to take such a complaint on the
alleged violation of Section 33 of the I.D. Act, into account in mediating and promoting the settlement. He does not have the power to adjudicate
upon the complaint, which power is specifically reserved to the Labour Court, Tribunal or National Tribunal u/s 33(A)(b).
In our view, this submission is well taken. The order passed by the Conciliation Officer cannot be construed as an adjudication in any manner
whatsoever. It can only mean an expression of opinion of the officer concerned that the dismissal was in violation of Section 33(1)(b) of the I.D.
Act. Mr. Karthik has drawn our attention to the order passed by another learned Single Judge in another writ petition bearing W.P. No. 17180 of
2006 decided on 03.11.2006, in the case of Darani Sugars and Chemicals Limited v. The Labour Officer and Anr., where the learned Single
Judge has taken a similar view and we are in agreement with that view.
In the circumstances, though we do not accept the first submission of Mr. Karthik, in the facts of this case, as far as the second submission is
concerned, it deserves to be accepted. Accordingly, the appeal is allowed only to this limited extent that the order of the Conciliation Officer will
be read as an expression of his opinion which was informed to the management. The order of the learned Single Judge will stand clarified to that
effect.
The writ appeal stands allowed as above though without any order as to costs. Consequently, the connected miscellaneous petition is closed.