Shri Ram Needle Bearing Limited and Others vs State of Bihar and Others

Prasun Kumar Deb, J.—The crux of dispute in this writ applications is the authorisation of the State Government vide Annexure -1 of the Assistant Lab6ur Commissioner, Ranchi, (respondent No. 5) to lodge criminal prosecution against the petitioner -Company for violation of conditions of service of the employees of the petitioner company during the pendency of a conciliation proceeding before the Labour Court u/s 33 of the Industrial Disputes Act, 1947 (the Act)

The facts of the case are required to be stated in brief for proper appreciation of the legal implications of the Act in question.

The petitioner company is an Industry situated at Ratu in the district of Ranchi for manufacturing the Needle Bearing and it has got about 150 workmen. Shriram Bearing Limited is Anr. sister organization which is situated at Ranchi for manufacturing Ban Bearing. The organisations mentioned above are situated side by side but they have no concern with each other regarding their administration and other matters as they are two distinct organisations and they have got totally separate entity. On this point, there is no dispute but Shriram Bearing Karamchani Sangh, a Union registered have got jurisdiction extended to the petitioner Company also. There were other two Unions, namely, Bharat Ball Bearing Karamchari Sangh and Shriram Bearing Karamchari Sangh, but those Unions, according to the petitioners, have got no membership in the organisation of the petitioners. Some demand was raised by the Employees Union of the petitioner Company as mentioned above and on the basis of that charter of demands the Government of Bihar, vide Notification No. 278 dated March 8, 1978 referred the dispute for adjudication to the Industrial Tribunals, Ranchi, and the same has been registered as Case No. Ref.8/88 and the same is pending for hearing before the Presiding Officer, Industrial Tribunal, Ranchi. It has further been asserted that the incentive scheme and the production bonus scheme were first introduced in the petitioner Company on March 31, 1987. After those schemes were introduced in the petitioner company, there have been several negotiations with the Shriram Bearing Kargmchari Sangh and there was a settlement reached in respect of those schemes. Similar settlements were also arrived at in the sister concern, namely, Shriram Ball Bearing Company after me reference was made before the presiding officer, Industrial Tribunal, Ranchi, as mentioned above and as being dissatisfied, the employees of that sister concern have filed a complaint before the Industrials Tribunal, Ranchi, u/s 33A of the Act, but no such complaint has been filed by the employees of the petitioner company as the employees were very much satisfied with the change of production bonus and incentive given to the employees, but on a wrong appreciation of facts, a report was filed by the Joint Commissioner before the Governor of Bihar and on the basis of the same, the Assistant Labour Commissioner, Ranchi, (respondent No. 5) has been authorised by Annexure-1 to file a complaint u/s 33 of the Act.

The grievance of the petitioner Company is that the State Government has got no authority to delegate power to the Assistant Labour Commissioner named in Annexure-1 for launching prosecution against the petitioner Company when there is specific provision for redressal of the grievance of the alleged aggrieved work men/employee for moving the Industrial Tribunal where reference was still pending u/s 33A of the Act, Respondent No. 6 Employees'' Union have intermingled with the officers of the Labour Department only to make harassment of the petitioners when by an agreement arrived at during the pendency of the reference to the Industrial Tribunal the employees of me petitioner Company have been much benefited. On allegation of alteration and modification of the terms and conditions of production bonus and incentives, the aggrieved workmen of the sister concern i.e Shriram Ball Bearing have already moved before The Tribunal u/s 33A of the Act.

By filing counter-affidavit respondents, No. 1 to 4 have supported the action taken by the State Government in issuing notification as per Annexure-1 while respondent No.6 Employees'' Union by filing separate counter-affidavit has contested this Writ application vehemently supporting the action taken by the State of Bihar Factually, during the hearing of this Writ application at the admission stage, only respondent No. 6 took part but the State has not come up to support their action as per Annexure -1.

For adjudicating the rival contentions made by the parties in this Writ application, it is: required to interpret Sections 32, 33, 33A and 34 of the act with reference to the position and circumstances arising in the present case. Before coming into the legal aspects of the matter, it should be stated that Annexure-1 was issued on the basis of the report submitted by the Joint Commissioner which has been marked as Annexure-19. This has not been denied from the side of respondent No 6. On scrutiny of Annexure - 19 it could be found that there were: recommendations for violation of Section 33(1) of the Act by M/s. Shriram Bearing Limited and to prosecute against the said Limited Company and its officers, although in the middle portion of that report, there is mention of the name of the: petitioner company. It is further there in the report that even if the scheme of 1986 was challenged before the Industrial Tribunal, some variation in the terms and conditions of the service of the employees of the Company have been changed, but the case of the petitioner from the very beginning is that this production and incentive bonus scheme come to be applied in the petitioner Company only in the year 1987. It seems that the Governor of Bihar gave sanction vide Annexure-1 to proceed against the petitioner Company not in conformity with the recommendation made in Annexure-19, the report of the Joint Commissioner. It is the case of the petitioner that all these have been done behind. the back of the petitioner at the intermingling of the Employees'' Union respondent No. 6 and there is not an iota of grievance from the side of the workmen for whose benefit, change/variation of the bonus scheme was made from the side of the petitioner in the agreement with the employees themselves.

Dr. Devi pal, learned counsel appearing for and on behalf of the petitioners have very much stressed on this point to the effect that Annexure - 1 is liable to be quashed on this score alone when no report nor recommendation nor the order of sanction ever revealed as to whether there was any variation in the terms and conditions of the service of the employees of the petitioner to the prejudice of the employees. On the other hand, Mr.D. Dash, learned counsel appearing for and on behalf of respondent No. 6. has strenuously argued that application of judicial mind of the Governor is there when it is found that although in the latter part of the report, Annexure-19, recommendation was not there in respect of the petitioner Company but the report read as a whole would be found to be against the petitioner Company and, as such, the Governor was right in according sanction to the Assistant Labour Commissioner, Ranchi, for launching prosecution for variation of the terms and conditions of the service during the pendency of reference as contemplated u/s 32 of the Act. His further contention is that whether there was variation or not to the prejudice of the employees as contemplated u/s 33(1) of the Act shall be rested with the criminal court to whom complaint has been tiled. According to him, there is no scope of this Court in adjudicating the rival contentions regarding the variation of me terms and conditions of service to the prejudice of the employees or not in its Writ jurisdiction.

In the above circumstances of the case, we are now to interpret the provisions of the Act as mentioned above. Dr. Pal, learned counsel appearing for the petitioner has vehemently argued to the effect that without coming to a decision whether there was variation of the terms and conditions of the service of the employees of the petitioner Company to their prejudice or not, there is little scope for launching prosecution u/s 32 of the Act when the Act itself has given sufficient provisions by amendment of 1950 by including Section 33A for coming to a just decision in that respect if complaint is made from the side of the workmen. The employees Union have got no scope for coming up with such sort of complaints before the Labour Department after inclusion of Section 33A of the Act. The right is exclusively of the aggrieved employees in the matter. On the other hand, Mr. Dash, appearing for the employees'' Union by referring the case of Automobile Products of India Limited and Ors. v. Rukmaji Bala and Ors. (1955-I-LLJ-346(SC) and The Punjab National Bank Ltd. Vs. Its Workmen, argued that criminal prosecution u/s 32 of the Act for violation of Section 33 and the complaint by the aggrieved workmen u/s 33A of the Act are co-extensive and can be resorted to simultaneously without hindrance to any of the provisions mentioned above. The Apex Court has observed rightly that although the action u/s 32 towards criminal prosecution and reference/complaint by the aggrieved workmen before the tribunal itself are co-extensive but certainly the jurisdiction u/s 33A of the Act is wider than that of the criminal Court.

It has now become settled that only the aggrieved workmen (although Section 33A mentions about employee) can file a complaint for violation of Section 33 before the same reference court where the previous dispute had been referred to Reference in this connection: may be made to Bata Shoe Co. Ltd. Vs. Ali Hasan and Another, Ram Bachan Singh Vs. The State of Bihar and Others, National Power Supply Corporation Ltd. Vs. State of Assam and Others, Definitely the Employee''s Union have got no authority to come u/s 33A of the Act for any violation of (he terms and conditions as referred to u/s 33 of the Act.

Let me now consider the position and situation that would arise if no action is taken by aggrieved worker but criminal prosecution has been launched u/s 32 as envisaged after u/s 34 at the instance of or initialion of the Employees'' Union. In that circumstance, the criminal court shall have to adjudicate first of all whether there was any violation of the terms and conditions when the employer would deny the same and the burden would be rested with the prosecution. There might be a case where there is a complaint by the aggrieved worker before the referral court and there is adjudication to that effect, then there would be definitely apprehension of different findings by the different forums which is definitely, unwarranted, not only in normal and regular laws but particularly in respect of labour dispute when the whole purpose and notions behind the legislation is to get the disputes of the employer and the employee settled in peaceful atmosphere. u/s 33 of the Act, the employer has got jurisdiction to change or vary the terms and conditions but that should be with the permission of the referral Court or the conciliation board etc., but if that is not done, ie. no permission is taken and change and variation has been made prejudicially (underlining is mine) to the employee then the aggrieved employee can file a complaint u/s 33A of the Act to the referral court for redressal of his grievance. This has been done with the very purpose that all disputes between the employer and the employee in respect of labour dispute should be done in a peaceful atmosphere and the labour court or the referral court or the conciliation board wherever the labour disputes have already been referred to who would definitely be the best person to decide as to whether there was really any change/variation of the terms and conditions of the service during the pendency of the reference or not and if there is variation then the award will be made by the referral court and significantly on that award, the Government to take action as per the provision of the Act.

Section 33A of the Act was included in , the year 1950 and at that time, reference was in respect of only a Labour Court Tribunal or national tribunal but the same has been extended by amendment of 1984 including the conciliation officer, board and an arbitrator along with three references as mentioned above which shows the intention of the legislature that even if such complaint is made by the aggrieved workmen , then also there is a scope of conciliation even in respect of that change or variation in the terms and conditions of the service and in hypothetical case, if such conciliation has been arrived at but the referral court during the pendency of adjudication u/s 33A of (he Act and on the other hand if the matter had already been referred to a criminal court by launching criminal prosecution before the decision arrived at by the referral court u/s 33A of the Act, there will be anamolous position and the scope of divergent findings by different forums remains.

The whole intention of the Legislature is to give relief to the workmen and simply by prosecution of the employer there may not be proper relief to the aggrieved employee if really there are variation in the terms and conditions of service u/s 33 of the Act prejudicial to the workmen. The dispute hinges on the word "prejudicial" as contemplated u/s 33 of the act and whether the change and variation is prejudicial to the workmen or not can be best decided by the tribunal or conciliation officer when the dispute had already been referred to u/s 10 of the Act and after such decision is arrived at, then there would be no bar in launching prosecution against the employer u/s 32 of the Act. On proper construing of the Sections of the Act as referred to, it appears that the intention of the Legislature after amendment of 1950 and then in 1984 was to give relief to the aggrieved workmen and in giving that relief, there is also scope of prosecuting the employer for variation of the terms and conditions of service prejudicially to the workmen during the pendency of the dispute before the tribunal. If the prosecution is launched without a finding regarding variation of the terms and conditions prejudicial to the workmen then the same would be putting the cart before horse and this can be interpreted very well on the construction of the latter part of the Section 33A of the Act wherein it has been mentioned specifically that on adjudication of the complaint, the Labour Court or the tribunal or; the conciliation officer shall submit his or its award to the appropriate Government "and the provisions of the Act shall apply accordingly". Therefore, on the award being given by the tribunal after adjudication on the complaint by the aggrieved workmen to the effect that there is variation in the terms and conditions of the service prejudicial to the complainant then only launching of prosecution would arise against the employer.

There may be circumstances as, in the present case, where there is no complaint from the side of the alleged aggrieved workmen,; then there is no scope of launching prosecution unless there is a definite finding regarding prejudicial change of variation by the State Government for the purpose of prosecuting the employer. In the present case , there is no such inding either in Annexure-19 or in Annexure-1. According to Dr. Pal, the employees had no. grievance against the petitioner Company and as such none had come u/s 33A while in the sister concern the employees had moved the tribunal u/s 33A for such change.

In the result, this writ application is allowed and Annexure- 1 by which the authority given by the State Government Assistant Labour Commissioner, Ranchi, for launching prosecution against the petitioner Company and its subsequent actions are, hereby quashed but in the circumstances of the case, I shall make no order as to costs.