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Judgment
G. Mehrotra, C.J.—By an order dated 27th December 1963 an application filed by the Petitioner u/s 33 (2) of the Industrial Disputes Act (hereinafter called ''the Act'') for approval of the order of dismissal passed by the Petitioner against Shri Samlall Kahara, a work man was refused by the Conciliation Officer (Labour Inspector), Tinsukia. Against this order the present petition has been filed by the Management of Panitola Tea Estate. On 13-1-1962 one Ghanashyam Das, a workman in the Petitioner Tea Estate was dismissed. Conciliation proceedings started on the dismissal of Ghanashyam Das on the 13th June 1963. On the 13th September 1963 a tentative settlement was made under which Ghanashyam Das was reinstated on 10-10-1903. On the 30th October 1963 the memorandum of settlement was filed before the Conciliation Officer. In the meantime on the 18th September 1963 Samlall Kahara opposite party No. 2 to this petition who was a workman of Panitola Tea Estate, was dismissed on account of misconduct. An application was made for approval of the aforesaid order which was dismissed by the Conciliation Officer on the 27th December 1963. The order of the Conciliation Officer is impugned in this petition on various grounds.
The Petitioner contends firstly that as the Panatela Tea Estate is not a utility concern, Section 33 (2) of the Act will not be applicable. Section 33(2) of the Act, according to the Petitioner, applies only to the cases of utility concerns. Secondly it is urged that as by 27-12-1963 the conciliation proceedings were terminated, the Conciliation Officer became functus officio and had no power to approve or disapprove the order of dismissal passed by the Management. The order of the Conciliation Officer dated the 27th December 1963 is without jurisdiction. Thirdly it is urged that Samlall Kahara is not a workman concerned in the Conciliation proceedings pending on the dismissal of Ghanashyam Das and other workmen and thus Section 33(2) will not apply. Lastly it is urged that on the merit the order is erroneous inasmuch as the Conciliation Officer had no jurisdiction to adjudicate upon the dispute. He had only to find out if there was a prima facie case for dismissal established or not.
Apart from challenging the contentions raised by the Petitioner indicated above, the opposite parties have contended that the question whether Section 33(2) of the Act was attracted to the present case both on the ground that Section 33 applies only to utility concerns and further that Samlall Kahara is not a workman concerned in the conciliation proceedings relating to the dismissal of Ghanashyam Das, was not taken before the Conciliation Officer and cannot be allowed to be taken here. It is also urged by the opposite parties that the Petitioner Himself having applied to the Conciliation Officer for approval, cannot now turn round and say that no application was maintainable u/s 33(2) of the Industrial Disputes Act.
As we are not inclined to accept the contention of the Petitioner that Section 33(2) is not attracted to a non-utility concern and further that no application was required u/s 33(2) on the ground that Sri Samlall Kahara was not the workman concerned, it is not necessary to deal with the preliminary point raised by the opposite parties that these points cannot be allow-ed to be urged, as they were not taken before the Conciliation Officer.
The Petitioner�s contention is that having regard to the scheme of the Act it should be held that Section 33(2) applies only to the case of a utility concern. The argument in brief is that u/s 31 of the Act any employer who contravenes the provisions of Section 33, shall be punishable with imprisonment for a term which may extend to six months. Thus failure to comply with Section 33 results in penal consequences and therefore the legislature has to lay clown in the Act clearly the two limits of the proceedings to enable the employer and the employee to know exactly when can a proceeding be said to be Pending. As in the Act no such limit has been laid down for non-utility concerns but it is laid down in express terms with regard to utility concerns, the necessary inference is that the legislature did not intend that Section 33(2) will apply to the case of non-utility concerns.
In our opinion there is no substance in this contention. Sub-sections (1) and (2) of Section 33 read as follows:
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a 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 workmen concerned in such dispute,
save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute,
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable Jo that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the, dispute, discharge or punish, whether by dismissal or otherwise, the 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.
The words of Section 33 are very clear and are unequivocal. There is no such limitation placed on the section itself which will show that Section 33(2) is attracted only if any conciliation proceedings are pending before the Conciliation Officer in respect of a utility concern. The pendency of a proceeding can be easily determined by the Courts or the parties if and when an occasion arises and in view of the unambiguous language of the section, no other considerations can be imported. Primarily the intention of the legislature is to be inferred from the language of the section and unless the language is ambiguous, it is not permissible to limit the ambit of the section by introducing some* supposed intention of the legislature. Reference was made to Section 20 of the Act which provides as follows:
20(1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock-out u/s 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 the 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 u/s 17, as the case may be; or
(c) when a reference is made to a Court, Labour Court, Tribunal or National Tribunal u/s 10 during the pendency of conciliation proceedings.
(3) Proceedings before an arbitrator u/s 10-A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudication as the ease may be and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable u/s 17-A.
The contention is that Section 20 in express terms lays down the date of the commencement and the conclusion of the proceedings relating to the utility concern, as both Section 22 and the reference to a board applies only to the case of a utility concern. But there is no period of commencement laid down for the non-utility concern. There are two answers to this contention. Firstly, Section 12 lays down. that where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice u/s 22 has been given shall, hold conciliation proceedings in the prescribed manner. Section 38 gives power to the appropriate Government to make rules for the purpose of giving effect to the provisions of the Act. Section 38(2)(a) gives power to frame rules to lay down the powers and procedure of conciliation officers. Thus in pursuance of the provisions of Sections 12 and 38 the appropriate Government has framed rules which lay down the date of the commencement of the proceedings. It cannot, therefore, be said that the Act itself has not laid down the two limits.
Section 12 generally applies to all cases of conciliation. But for Section 20 the commencement of conciliation proceedings in each case would be the date when the notice is served on the parties by the conciliation officer. But as in the case of the utility concern, where the notice of strike or lock out has been given u/s 22, the legislature intended to give an extended meaning to the commencement, the section has been enacted so as to make the date of the commencement from the date of the notice of the strike. Because Section 20 lays down clearly the commencement of the period different from the one which would be the date of commencement in accordance with the provision of Section 12, it does not necessarily mean that the legislature did not intend to lay down any limit for the non-utility concerns and that the case of non-utility concerns was not included in Section 33. Giving an interpretation to the section, as contended for by the Petitioner, will be doing violence to the plain language of Section 33.
As to the second contention that Samlall Kahara is not the workman concerned, it is urged that the conciliation proceedings which were pending before the conciliation officer, related to the discharge of Ghanashyam Das, another workman. It was thus an individual dispute, though taken up by the Union, in which Samlall Kahara cannot be said to be concerned. Section 33(2) no doubt is a bar put on the right of the employer to alter the conditions of service of any workman concerned in the conciliation proceedings or adjudication proceedings pending before the conciliation officer or the tribunal but the word ''concerned'' does not necessarily mean ''directly concerned.'' Mr. Goswami contends that every workman can be said to be concerned only if the dispute which is pending before the conciliation officer or the tribunal is of a general nature which is likely to affect the interest of all the workers and not an individual dispute. Even in the case of the discharge of a workman, it cannot be said that under no circumstances the discharge of one workman is not likely to affect the interest of the other workman and thus in all cases of discharge of one workman, the other workman can never be said to be concerned. If that is so, then each case will depend upon its own circumstances and as the point was never urged before the conciliation officer, this Court will not investigate into those questions of fact about which there may be controversy.
Reference is made by Mr. Goswami tortile, Petitioner to the case of ''UpperGanges Valley Electricity Supply Co. Ltd. Moradabad v. G.S. Srivastava (1963) 1 Lab LJ 237 (SC). Particular reference is made to the following passage at page 238:
Now in regard to Appeal No. 216 of 1955 which was disposed of on 30th April 1956 the Respondent was not a concerned workman at all because the dispute there referred for adjudication was whether the employers should be required to grant annual increment to M.K. Varshney from 1 December 1953. It was an individual. dispute in respect of one employee and so the present Respondent could not be said to be concerned with that dispute.
There the question as found by the Tribunal related only to the grant of an increment to one of the workmen and thus it was clearly an individual dispute.
In the case of New India Motors (P) Ltd. New Delhi Vs. K.T. Morris, it was held that the expression ''workmen concerned in such dispute'' in Section 33(1)(a) Is not limited to the workmen directly or actually concerned in such dispute, but includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute. In that case an industrial dispute regarding some workmen was pending. The workman under whom these workmen were working, was held to be ''a workman concerned in such dispute'', and if he was dismissed without the written permission of the Tribunal before whom the dispute was pending, he could make a complaint u/s 33-A. Thus the ''workman concerned'' has been given much wider meaning and it was not confined to the workmen who were directly concerned with the dispute. There is, therefore, no force in this contention.
The next contention of the Petitioner that as the conciliation proceedings had come to an end on the date when the order was passed, the Conciliation Officer became functus officio, has no substance. The conciliation proceeding came to an end on the 30th October 1983. On the 18th September 1963 during the pendency of the conciliation proceedings an application was filed u/s 33 (2) which was disposed of on 27th December 1963. Once the application has been filed, the conciliation officer has to dispose it of. Sub-section (5) of Section 33 provides that where an employer makes an application to a conciliation officer, Board, Labour Court, Tribunal or National Tribunal under the proviso to Sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass as expeditiously as possible, such order in relation thereto as it deems fit. This sub-section does not lay down that the conciliation officer becomes unites officio after the proceedings have terminated even though the application has been filed in time and is pending before him. This matter has been set as rest by a recent unreported decision of the Supreme Court dated 19-3-65 in the case of Tata Iron and Steel Co. Ltd. Vs. S.N. Modak, a copy of which has been supplied to us by the counsel for the Petitioner. That case is sought to be distinguished on the ground that it related to proceedings pending before the tribunal. It is urged that the reasons which led the Supreru-3 Court to hold that the jurisdiction of the tribunal after the proceedings for adjudication is terminated to pass an order u/s 33(2) does not come to an end will not apply to the case of a conciliation officer. It is not for us to examine the reasonings given by the Supreme Court in their judgment. In our opinion there is no distinction between a proceeding pending before the conciliation officer and the one pending before the tribunal. Nor can it be said that Section 33 makes any distinction between the cases which are pending before the Conciliation Officer and the adjudication proceedings before the tribunal. After the termination of the proceedings there is no bar to the management taking action against the employee. The bar u/s 33 no longer exists. But the petition made during the pendency of the proceedings u/s 33(2) has to be disposed of By the conciliation officer on the tribunal'', as the case may be.
Lastly it was urged that even on the merits the order of the Tribunal is wrong. What the tribunal has to see is whether there has been prima facie case for dismissal or not. The tribunal cannot sit as a Court and adjudicate "upon the dispute between the employer and the ''Workman. The charge-sheet was given to opposite party Shri Samlall Kahara on the 12th September 1963 in which he was charged for misconduct under Clause 10(a)(3) of the Standing Order for accepting illegal gratification and bribe. He was asked to present his explanation in writing on the 17th September 1983 in the office of the Manager. The charge reads as follows:
You Shri Samlall Kahara, Factory Chung Sirdar, were guilty of gross misconduct inasmuch �as you ordered on each labour pay day the Chung boys to pay you money for your pleasure.
On the 17th September 1963 the opposite party submitted his reply, and stated therein that the tallegations might have been brought by the chumg Boys out of grudge as a mark of revenge as the boys were removed from the factory and there was no substance in their allegations. The proceedings were started on certain information given by some of the Chung boys. On the receipt of the information by Chung boys some evidence was recorded on the 11th September 1963 by the Management and thereafter the charge-sheet was given to the opposite party for reply. Thus these evidences recorded on the 11-9-1963 could not be taken into consideration by the inquiring officer. They were not recorded in the presence of opposite party, nor were they recorded during the pendency of the proceedings which commenced after the charge-sheet was given to the opposite party. On the 17th September 1963 the opposite party was asked to give his statement and thereafter on the 18th September 1963 the findings were given against the opposite party. Thus before the inquiring officer the only evidence taken was his own statement. The statement has been recorded in the form of questions and answers and is as follows:
Q. 1. Did you receive money from the Chung boys?
A. 1. Yes, but they gave it to me�I did not order it and it was for my tea in the canteen.
Q. 2. How much do they give you for your tea?
A. 2. Sometimes upto Re. 1 but no more.
Q. 3. Have the cluing boys ever asked money from you for tea?
A. 3. Yes, sometimes they fake a few annas for their Canteen needs.
Q. 4. Did the Chung Babu ever order you ect money? '' A. 4. No.
Q. 5. The money that you have accepted from the Chung boys was all used for your own needs?
A. 5. Sometimes, I also used the money to feed the Chung boys.
Q. 6. Have you anything else that you would like to say concerning this case?
A. 6. I have nothing further that I wish to say.
The contention of the Petitioner is that this was an admission by the workman and thus it cannot be said that there was no prima facie case made out against the workman and the Conciliation Officer was not right in appreciating the evidence.
As I have already pointed out, there was no evidence either before the inquiring officer or before the Conciliation Officer. The evidence given on the 11th September, 1963 could not be taken into consideration by the Management. The alleged admission by the opposite party, to our mind, does not amount to an admission of guilt. The charge was that he ordered the boys to pay him money as an illegal gratification. His answer is that sometimes he used to feed the boys and at other times they paid him money of their own accord. Thus there was no admission of the facts which will constitute an offence under Clause 10(a)(3) of the Standing Orders. It cannot therefore, be said that the Conciliation Officer acted without any evidence and that the entire, approach of the Conciliation Officer was erroneous. There is thus no force in this petition and it is dismissed. We make no orders as to costs.