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Judgment
Sudhanshu Dhulia, J
According to the petitioner, he is a workman in M/s LG Electronics Pvt. Ltd. since 2003 where he is working as a Technician. While the petitioner was working in the factor of M/s LG Electronics at Noida and was making efforts in formation of the Union, the Management transferred the petitioner to Ranchi. But, thereafter a settlement was reached between the Union and the Management on 20.07.2016, wherein one of the stipulated conditions was that "the place of transfer of the transferred employees would be changed as per the convenience of the employees concerned". Consequent to the said settlement, the petitioner was transferred to Dehradun vide order dated 20.07.2016, where he is presently settled with his family. Again due to the involvement of the present petitioner in Trade Union activities, he has been transferred vide order dated 28.02.2018 to Gauhati, which is in clear violation of the settlement already referred above. The petitioner made his representation to the authorities to cancel his transfer but in vain. On these set of facts alleging that there has been a violation of the settlement dated 20.07.2016, the petitioner moved an application before the Labour Commissioner, Dehradun under Section 14-A of the U.P. Industrial Disputes Act, 1947 alleging that there has been a breach of settlement committed by the respondent and he is liable to be punished under the aforesaid provision.
Section 14-A of the U.P. Industrial Disputes Act, 1947 reads as under:
"14-A. Penalty for breach of term of award. - Any person who commits a breach of any term of any settlement or award, which is binding on him under this act, shall be punishable with imprisonment for a term which may extend to six months or with fine, or with both, and where the breach is a continuing one, with further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the fist and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid by way of compensation, to any person, who in its opinion has been injured by such breach."
As it is clear, if the allegations are proved correct, then it carries a maximum sentence of six months, or fine, or both. The application moved by the petitioner under Section 14-A of the U.P. Industrial Disputes Act, 1947 was rejected by the Deputy Labour Commissioner, Dehradun vide order dated 13.07.2018 on ground that what the petitioner is actually relying upon is the settlement which was executed between the Management and Union at Noida and therefore only the Labour Commissioner, Noida has the jurisdiction to entertain this application. Aggrieved, the petitioner has filed the present writ petition.
Heard Ms. Snigdha Tiwari, Advocate for the petitioner, Mr. Siddhartha Sah, Advocate for respondent nos. 1 to 11 and Mr. S.R. Joshi, Standing Counsel for the State/respondent no. 12.
Section 14-A of the U.P. Industrial Disputes Act, 1947 which the present petitioner has invoked for redressal of his grievance has a long and chequered history. Initially there was no such provision under the U.P. Industrial Disputes Act, 1947 or even in the Industrial Disputes Act, 1947. In the U.P. Industrial Disputes Act, 1947 (with which we are presently concerned), Section 14-A was inserted by U.P. Act No.34 of 1978. It makes a breach of a binding settlement (or award) by any person a punishable offence. This provision was inserted as a deterrent to such employers who were earlier able to evade the implementation of an award or settlement*. This provision gives more teeth to the Industrial Disputes Act. However, since Section 14-A of the U.P. Industrial Disputes Act, 1947 relates to an "offence", the application would not lie either before the Labour Commissioner, Dehradun or Labour Commissioner, Noida, but it is only cognizable by the Magistrate, 1st Class, as such is the stipulation of the law.
*O.P. Malhotra's - The Law of Industrial Disputes, Volume 2, Sixth Edition, Publisher - LexisNexis Butterworths 6. Section 15 of the U.P. Industrial Disputes Act, 1947 reads as under:
"15. Offence to be deemed cognizable. - Notwithstanding anything contained in the Second Schedule to the Code of Criminal Procedure, 1898, any police officer may arrest without warrant any person who is reasonably suspected of having committed, or of committing, or of being about to commit a contravention of any rule or order made under this Act."
Section 16 of the U.P. Industrial Disputes Act, 1947 is regarding as to who shall take cognizance of the offence. Section 16 of the U.P. Industrial Disputes Act, 1947 reads as under:
"16. Cognizance of offence. - (1) No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by the District Magistrate or by a public servant other than a District Magistrate with the previous sanction in writing of the District Magistrate.
No Court inferior to that of a magistrate of the first class shall try any offence punishable under this Act."
(emphasis provided)
A bare perusal of the aforesaid provisions shows that it is the court of Magistrate, 1st Class which can take cognizance of the alleged offence and that too through a process. The process is when such a report in writing is filed before him either by the District Magistrate or "by a public servant who has a previous sanction of the District Magistrate". Therefore, the first authority which must take cognizance of the mater is the concerned District Magistrate, or the public servant as stated therein.
The matter has been decided by the Labour Commissioner on the point of jurisdiction, without properly adjudicating the real issue raised in the case. The jurisdiction lies with the authority in Dehradun. Although Criminal Procedure Code is not strictly applicable in the present case, but broadly the principles would be as they are only fair. Section 178 and 179 of CrPC would be attracted and therefore the District Magistrate, Dehradun or "a public servant" would have the jurisdiction in the matter in the first place. In the first place the matter must go before the District Magistrate or the public servant as given in Section16. In case the Labour Commissioner is the public servant as defined under Section 16 and he has the previous sanction of the District Magistrate, he shall look into the complaint in accordance with law and it will not matter if the settlement which he is relying upon is executed in Noida. The Labour Commissioner who is a public servant shall consider the application in accordance with law and if he has a prima facie satisfaction that there is a settlement presently in operation and the respondents have committed a breach of the settlement, he should then proceed under sub-section (1) of Section 16 of the U.P. Industrial Disputes Act, 1947 and file a report before the Magistrate, 1st Class or the Chief Judicial Magistrate, as the case might be, who shall then act in accordance with law.
Writ petition stands allowed.
Learned counsel for the respondents has raised objection that the petitioner is not a workman, and the settlement is outside the conciliation proceedings and the term of the settlement being only for one year has expired.
All the same, these would be the grounds to be considered by the Deputy Labour Commissioner, who shall always do that in accordance with law. This Court has allowed this writ petition only on ground that Deputy Labour Commissioner has gone totally wrong in dismissing the application of the petitioner on ground of jurisdiction. It goes without saying that before proceeding with the matter, the Deputy Labour Commissioner shall proceed in accordance with law and after appreciating the facts of the case. The respondents shall be at liberty to place their contention before the Deputy Labour Commissioner.