Andrew Yule and Company Ltd. vs Fifth Industrial Tribunal of West Bengal

R.N. Pyne, J.—A short, none the less very interesting, point that arises for consideration in this appeal which is directed against a judgment and order dated December 3, 1973, of Debi Prosad Pal J. (as he then was) is whether contesting of the employee''s application u/s 33(2)(b) of the Industrial Disputes Act, 1947, (hereinafter referred to as ''the Act'') by the workmen would amount to raising of a dispute which would support a reference of an industrial dispute by the Government u/s 10(1) of the Act to the Tribunal for adjudication. For a proper appreciation of this point it is necessary to refer to the relevant facts of this case which are set out briefly hereinafter.

The Appellant, a limited liability company, has various business including an engineering business known as ''Sirocco Works'' at Kalyani in the district of Nadia, which was formerly owned by Davidson of India Ltd. prior to its amalgamation with the Appellant.

The Respondent No. 4 Arun Kumar Das was employed as a junior tinsmith at the Appellant''s said work. By letter dated April 16, 1968, the Appellant dismissed the Respondent No. 4 for his alleged misconduct which according to the Appellant had been established at a proper enquiry held by it. It appears that the misconduct alleged against Respondent No. 4 consisted in attempting to steal a gunmetal bar weighing 21 K.Gs. from the Appellant''s said foundry. As an industrial dispute between the Appellant and its workmen regarding dismissal of a workman was pending before the Fifth Industrial Tribunal on the date of dismissal of the Respondent No. 4, the Appellant made an application u/s 32(2)(b) of the Act for obtaining approval of its action in dismissing the Respondent No. 4. Respondent No. 4 opposed the said application, but the Appellant''s action in dismissing the Respondent No. 4 was approved by the Fifth Industrial Tribunal.

Thereafter, it appears that the Davidson Employees'' Union addressed a letter dated April 21, 1969, to the Labour Commissioner, Government of West Bengal, complaining against the dismissal of the Respondent No. 4. A copy of the said letter was also forwarded to the Appellant by the Deputy Labour Commissioner under a memorandum dated April 23, 1969, asking the Appellant to attend a conciliation proceeding. Thereafter, conciliation proceedings were held but no settlement was reached thereat. There after, at the instance of the said Union an order of reference was made by the Government for adjudication by the Fifth Industrial Tribunal. The said order of reference is in following terms:

Government of West Bengal Labour Department

Calcutta, the 13th September. 1969

No. 7091--I.R./IR/IIL--89/68.

ORDER

Whereas an industrial dispute exists between Messrs Andrew Yule and Company Ltd. Sirocco Works, Kalyani, Nadia and their workmen represented by Davidson Employees'' Union, Workshop Road, Kancharapara, Nadia, relating to the undermentioned issue being a matter specified in the Second Schedule to the Industrial Disputes Act, 1947 (XIV of 1947).

And whereas it is expedient that the said dispute should be referred to an industrial tribunal constituted u/s 7A of the said Act.

Now, therefore, in exercise of the powers conferred by Section 10 of the Industrial Disputes Act, 1947 (XIV of 1947), the Government is pleased hereby to refer the said dispute to the Fifth Industrial Tribunal constituted under Notification No. SOS/IR/IR/34-2/57 dated the 11th March, 1957, for adjudication.

The said Fifth Industrial Tribunal shall meet at such places and on such dates as it may direct.

Issue

Whether the dismissal of Sri Arun Kumar Das is justified? To what relief, if any, is he entitled?

By order of the Governor N.R. Sircar Asstt. Secy. to the Govt, of West Bengal

Before the Fifth Industrial Tribunal a preliminary objection was taken on behalf of the Appellant to the reference. It was contended that as no dispute was raised by the workmen with the employer prior to the reference the alleged reference was incompetent. The Tribunal however was of the view that contesting of the company''s application u/s 33(2)(b) of the Act was sufficient to raise a dispute which would support a reference.

In its decision the Tribunal observed as follows:

It transpires from the record that the Company filed an application u/s 33(2)(b) of the Industrial Disputes Act before the Tribunal upheld the said order of dismissal. From the evidence on record it appears that Sri Das contested the application u/s 33(2)(b) before the Tribunal. Therefore, after the dismissal order had been passed by the Company, when the petition u/s 33(2)(b) was heard by the Tribunal, Sri Das sought that petition. To my mind, this contest by Sri Das before Tribunal sufficiently amounted to a demand for reinstatement.

In the circumstances the Company cannot legitimately say that the workman Sri Arun Kumar Das did not raise dispute with the management before moving the Labour Directorate. The workman did raise a dispute when the workman contested the case before the Tribunal sitting to hear the petition u/s 33(2)(b) about his dismissal. Thereafter demand to the Company by the workman for his reinstatement would have been a mere repetition and this would have been a useless attempt on his part to get relief from the Company which he failed to get (after contesting the Company''s petition u/s 33(2)(b) of the Industrial Disputes Act.

In view of the circumstances stated above, I hold that there was sufficient compliance on the part of the workman in respect of making a demand for his reinstatement to the Company prior to his moving the Labour Directorate. That being so, I overrule the preliminary objection of the Company and hold that the reference made by the Government of West Bengal is competent.

Thereafter, the Appellant made an application in this Court under Article 226 of the Constitution challenging the said order of reference dated September 13, 1961 and the Tribunal''s order made therein being order No. 23 dated June 3, 1971 and for appropriate writs for quashing the said orders. The learned Judge of the Court of the first instance relying on his another decision dated December 3, 1973 given in the Matter No. 9 of 1972 (Andrew Yule and Company Ltd. v. Fifth Industrial Tribunal) wherein identical point was involved dismissed the application and discharged the Rule nisi.

In his judgment in Matter No. 9 of 1972, which is at p. 82 of the paper book, Debi Prosad Pal J. (as he then was) held that as the workman filed a written statement u/s 33(2)(b) of the Act objecting to the act of dismissal there existed an industrial dispute within the meaning of the Act when the State Government made the reference u/s 10(1) of the Act. His Lordship observed that according to him a dispute or difference is raised when the act of dismissal is contested by the workman. In a proceeding u/s 33(2)(b) of the Act when the workman is contesting the proceeding and objecting to the sanction asked for by the employer, the insistence of a formal demand by the workman upon the management on this very question of dismissal is to lay greater emphasis upon the form rather than the substance. In his said judgment Debi Prosad Pal J. (as he then was) observed as follows:

In my view, in considering whether there exists an industrial dispute or difference one has to consider the nature of such dispute or difference and has to find out whether the dispute has acquired a definite and substantial character in the sense that both the parties are contesting and are substantially interested in the controversy. In the present case the dispute is with regard to the dismissal of the Respondent No. 2. This very act of dismissal being the subject-matter of the proceeding u/s 33(2)(b) of the Act and the Respondent No. 2 having contested in such a proceeding there is, in my view, an industrial dispute regarding such dismissal.

The instant appeal is directed against the judgment and order dated December 3, 1973, passed in Matter No. 254 of 1971 as stated hereinbefore.

Mr. P.P. Ginwala, Learned Counsel appearing for the Appellant, has submitted that in the instant case it is not disputed that no dispute was raised after the dismissal of the Respondent No. 4 by the workman or the General Body of the Workmen with the employer. There was only a demand before the Labour Commissioner for referring a dispute to the Tribunal for adjudication.

According to counsel mere opposition to the employer''s application u/s 33(2)(b) of the Act cannot amount to raising I of a dispute justifying an order of reference u/s 10. Counsel has submitted that for the purpose of deciding whether the workman''s contest to the employer''s application u/s 33(2)(b) would amount to raising of a dispute or not one will have to see, the nature and scope of the proceedings u/s 33(2)(b) and who are the parties to such proceedings. It is the submission of the counsel that when proceedings u/s 33(2)(b) are pending there is no pending industrial dispute before the Tribunal and only after the Tribunal grants its sanction under the said section an industrial dispute would arise. It is submitted that u/s 33(1) there cannot be any dismissal without the written permission of a Tribunal. Similarly, u/s 33(3) regarding a ''protective worker'' permission is necessary from appropriate Tribunal before his dismissal.

According to counsel, in the instant case, there was no dismissal prior to the Tribunal''s approval and therefore, no dispute could arise about the dismissal in the proceedings u/s 33(2)(b). Referring to Section 33(2)(b) counsel has submitted that it deals with cases of misconduct not connected with the dispute. After the amendment of the said section in 1956 the employer may dismiss a workman, but he must make an application for obtaining approval as mentioned in the said section. This position has not been altered. According to counsel, in the proceedings u/s 33(2)(b) only the question of lifting of the ban on the employer''s action arises. If sanction is not obtained, then there is no dismissal and therefore, there cannot be any dispute regarding dismissal. In such a case there is no complete dismissal until the grant of sanction by the Tribunal. Only after a sanction is given the dismissal becomes final and then a dispute will arise.

It was further submitted that in the instant case parties to the proceedings u/s 33(2)(b) and the parties to the order of reference u/s 10 are different. In the former case the parties were Respondent No. 4 and the employer company whereas in the latter case parties were the company and the general body of workmen. Therefore, in the former case there could not be any question of raising of any dispute with the general body of the workmen.

Counsel has further submitted that assuming that opposing of the employer''s application u/s 33(2)(b) would amount to raising of a dispute, still in the instant case the dispute raised in the application was different from the dispute that was referred to the Tribunal u/s 10 of the Act. Therefore, according to counsel in the two proceedings, viz. u/s 33(2)(b) and Section 10 parties as also the subject-matters are different. In Section 33(2)(b) the subject-matter is whether the ban is to be lifted or not and there is no question of consideration of employee''s dismissal, whereas u/s 10 the main question is the consideration of dismissal. In support of his above submissions counsel has referred to the cases of Lakshmi Devi Sugar Mills Ltd. Vs. Pt. Ram Sarup, , Martin Burn Ltd. Vs. R.N. Banerjee, , Ram Prasad Vishwakarma Vs. The Chairman, Industrial Tribunal, , The Lord Krishna Textile Mills Vs. Its Workmen, , The New Maneck Chowk Spinning and Weaving Co. Ltd., Ahmedabad and Others Vs. The Textile Labour Association, Ahmedabad, and Strawboard Manufacturing Co. Vs. Gobind, .

Mr. S.N. Banerjee, Learned Counsel appearing for the Respondent No. 4, has submitted that there is an observation of the Supreme Court in the case of The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, , to the effect that the expression ''workmen'' includes a single workman.

Referring to Section 33A of the Industrial Disputes Act counsel submitted that if the employer does not fulfil the conditions laid down in Section 33(2)(b) then the workman can apply u/s 33A to the Tribunal for appropriate relief and the Tribunal under that section will have to adjudicate the dispute.

Referring to Section 10 and Section 33(2)(b) of the Act, counsel submitted that the subject-matter of enquiry is the same but only the ambit and scope of the enquiry under the two sections are different. u/s 33(2)(b) the scope of enquiry is very limited, whereas u/s 10 the scope of enquiry is very wide.

Counsel has further submitted that the order of dismissal is complete for all practical purposes as soon as it is passed concerned loses all benefits. Therefore, it cannot be said that the dismissal is not complete until and unless the permission as required u/s 33 of the Act is obtained from the appropriate body as mentioned therein.

Counsel has further submitted that if a demand is sent to the employer through post, that is sufficient. Similarly, if the demand is sent through post to the Conciliation Officer and the employer is made known about the same there is an effective demand and in this connection he has referred to paras. 4 and 6 of the written statement of the Appellant filed before the Fifth Industrial Tribunal.

Counsel has further submitted that if in a conciliation proceeding the workman''s demand is opposed by the employer that is enough to create a dispute and that would confer power and jurisdiction upon the Government concerned to refer the dispute u/s 10 of the Act for adjudication. In support of his above submissions counsel has referred to the cases of The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, , Hindustan Steel Ltd. v. State of West Bengal and Ors. 1977 LAB L.C. 1417, Anna Art Press Put. Ltd. v. The State of West Bengal 1977 LAB I.C. 1985, Animesh Chandra Dutta Roy v. The Labour Court, Tripura 1975 LAB I.C. 1065, Debraj Arya v. Judge, First Industrial Tribunal, West Bengal 1976 LAB I.C. 1685 and Shukla Manseta Industries Pvt. Ltd. v. The Workmen employed under it 1977 LAB I.C. 1541.

In the instant case in view of the Supreme Court''s decision in Sindhu Re-Settlement Corporation case Supra it is not disputed that unless a dispute is raised with the management by a demand being made no industrial dispute can be said to arise. In other words, prior to the reference of an industrial dispute to the Tribunal for adjudication a dispute must be raised by the workman by raising a demand upon the employer. This proposition is not disputed. The controversy in the instant appeal, however, is, when a workman contests the employer''s application for obtaining approval u/s 33(2)(b) of the Act to the dismissal of the workman can it be said that in that case dispute has been raised by the workman so as to support a subsequent reference of an industrial dispute regarding his dismissal u/s 10 of the Act.

Appellant''s main contention is that inasmuch as in the instant case the subject-matter of two proceedings i.e., u/s 33(2)(b) and Section 10 of the Act and the parties to such proceedings are different workman''s contest to the employer''s application u/s 33(2)(b) for obtaining Tribunal''s approval to the workman''s dismissal would not amount to raising of a dispute with the employer so as to support a subsequent reference of an industrial dispute u/s 10 to the Tribunal.

In order to appreciate the above point it is necessary to see the nature and scope of the proceeding u/s 33(2)(b) of the Act. It may be noted here that the provision, more or less similar to the present Section 33 of Industrial Disputes Act, 1947, in the Industrial Disputes (Appellate Tribunal) Act (since repealed) was Section 22.

It appears that for according sanction u/s 33(2)(b) Court has only to consider if the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted or not. In such proceedings the Tribunal does not adjudicate upon any industrial dispute between the parties. In view of the limited nature and extent of the enquiry permissible u/s 33(2)(b) all that the authority has to consider is whether a prima facie case for according its approval is made out by the employer or not. Further, Section 33(2)(b) contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the action taken by him of the authority concerned and the changes effected in Section 33 of the Act in 1956 clearly bring out this intention of the Legislature. See : Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup Supra, Martin Burn Ltd. v. R.N. Banerjee Supra, Lord Krishna Textile Mills v. Its Workmen Supra and Straw Board Manufacturing Company Ltd. Saharanpur v. Govind Supra.

Therefore, it appears that although in an application u/s 33(2)(b) when an employer seeks the Tribunal''s approval to his action against a workman for his discharge or dismissal the Tribunal is not required to adjudicate finally upon the question of discharge or dismissal but for the purpose of granting its approval, the Tribunal will have to consider whether a prima facie case for according approval has been made out by the employer or, not. This involves consideration, although tentative or, prima facie, of the question of the workman''s discharge or dismissal. The Tribunal will have to adjudicate tentatively if there is a discharge or dismissal or not and whether that is justified. Such adjudication is however not final. Therefore, when a workman in his written statement in reply to the employer''s petition contests the employer''s petition u/s 33(2)(b) for granting approval Co his action it cannot but be said that the workman is disputing his discharge or dismissal. Consideration of the question if prima facie case for discharge or dismissal has been made out or not necessarily involves consideration of the question of the validity of discharge or dismissal and when the workman contests that application he is disputing his discharge or dismissal. In that case a dispute is raised with the employer. Further, in such circumstances a difference connected with the employment does arise between the employer and the workman. It should be noted that ''industrial dispute'' u/s 2(k) of the Act means any dispute or difference, inter alia, between employer and workmen which is connected with the employment or non-employment or terms of employment or with the conditions of labour of any person. Therefore, it cannot be said that the subject-matters of the proceedings u/s 33(2)(b) and Section 10 of the Act are completely different.

We are also unable to accept the other contention of the Appellant''s counsel that in the instant case parties to the proceedings u/s 33(2)(b) and Section 10 of the Act are different. The submission is that in the reference u/s 10 which was made at the instance of the Union the Respondent No. 4 was not a party in his individual capacity whereas proceedings u/s 33(2)(b) was instituted by him in his individual capacity. When a dismissed workman''s cause is taken up by the Union and an industrial dispute e is raised by the Union regarding such dismissal it cannot be said that the workman is not interested in such industrial dispute or is not a party to it. The observation of the Supreme Court in the case of Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna Supra does not, in our view, support the Appellant''s contention. In that case the question that arose for consideration of the Supreme Court was whether the Appellant was entitled to a separate representation in spite of the fact that the Union which had espoused his cause was being represented by its Secretary. That case really turned on the question of representation of a workman who was a party to the dispute and according to the Supreme Court that situation has been dealt with by Section 36 of the Act. In that context the Supreme Court has observed that the individual workman is at no stage a party to the industrial dispute independently of the Union and the Union or those workmen who have by their sponsoring turned the individual dispute into an industrial dispute can therefore claim to have a say in the conduct of the proceedings before the Tribunal. The above observation of the Supreme Court was made in a different context of facts. The observation of the Supreme Court does not mean that when the reference of an industrial dispute regarding dismissal of a workman is raised and referred to the Tribunal at the instance of the Union the individual workman ceases to be a party to the reference altogether. The individual workman is a party to the industrial dispute but not independently of the Union.

The question to be considered is whether in substance there was any demand by the workman upon the management on the question of dismissal when the employer''s petition for obtaining approval to the dismissal made u/s 33(2)(b) is opposed by the workman. In view of the nature of the proceedings u/s 33(2)(b) mentioned above, in such a case, in our view, in substance a demand is made by the workman. Industrial legislation, it should be kept in mind, is meant for maintenance of industrial peace and therefore, in such matter, insistence for strict adherence to form overlooking the substance of the matter would defeat its purpose.

After considering the facts and circumstances of the instant case we are in respectful agreement with the conclusion reached. by learned Judge of the Court of the first instance and his reasoning for the same. In the above view of the matter this appeal should fail. This appeal is, therefore, dismissed but there shall be no order as to cost.

Ghose, J.

I agree.