High Court · 2012

Alleged illegal termination of service of Shri S.N. Singh by the managem

10. Alleged non payment of monthly salary of July, 2010 to the workers which was to be released on or before 7th August, 2010.

11. n their factory establishment w.e.f. 8.00 am of 5.8.2010. (cid:29) Alleged breaches of law by management due to lock-out declared by them i

3. The reference has been registered and numbered as Reference Case No. 6/2 010. During the pendency of the said reference, the learned Labour Court issued notice dated 10.3.2011 to the petitioner management to file its objection agains t the MIsc. Application filed by the Labour Union under Section 33-A of the Indu strial Disputes Act, 1947. For a ready reference, the Misc. Application filed by the employees’ union is reproduced below :- (cid:28)The complainant begs to state that the Management M/s. Buildworth Pvt. Ltd. has been guilty of a contravention of the provision of Section 33.1(a) of the Indus trial Disputes Act, 1947 as below :-

1. That the Ref. Case No. 06/2010 is running before the Court of your Honou r. The case was registered in accordance with the Governor Notification No. GLR. 147/2003/201 dtd. 29.10.2010.

2. That Hon’ble Court of your Honour vide Memo No. LCG.476-77 dated 3.11.20 10 was pleased to fixed for filling the Written Statements of the Parties first on 1.12.2010. While the Written Statement of the Workmen side is already filed, the same from the Management sides is yet to be submitted even after passing the following dates :-

18.12.2010, 30.12.2010, 24.1.2011, 15.2.2011 and 22.2.2011.

3. 6/2010. The issue in Serial No. 11 is as under :- That there are 11 (eleven) issues in the Schedule of the Ref. Case No. 0 ’Alleged breaches of law by the Management due to lock-out declared by them in t heir factory establishment w.e.f. 8.00 am of 5.8.2010.’

4. That the lock-out in factory establishment of M/s. Buildworth Pvt. Ltd. was declared vide their Lock-out Notice dated 5.8.2010 and till date, the said n otice is not withdrawn by the Management. As a result, the Workmen of Buildworth Pvt. Ltd. have been in out of gainful employment due to illegal and forceful lo ck-out in factory establishment of M/s. Buildworth Pvt. Ltd.

5. That in December, after receiving the Notice issued in Ref. Case No. 06/ 2010 from the Court of your honour, the Management has delivered of its product in two different consignment from their factory (MUD TANK SYSTEMS, ordered by Oi l India Ltd, Duliajan). The Mud Tank Systems were in the factory of M/s. Buildwo rth Pvt. Ltd. in a stage of incomplete at the time of declaration of Lock-out. T he Management had engaged hired workers to complete the Mud Tank Systems. Now th e Management of M/s. Buildworth Pvt. Ltd has again engaged 25-30 hired workers t o complete the C.F.T. Works ordered by Digboi Refinery in their factory.

6. That in such fact and situation, showing willingness of the workers to a ttend their works in the factory of M/s. Buildworth Pvt.Ltd., a Demand Notice fo r lifting the Lock-out Notice Dated 5.8.2010 was again issued and mailed under S peed Post on 1.2.2011 to the Management, but till date, no response is found fro m the Management.

7. That the Management has not lift their Lock-out Notice dated 5.8.2010 an d without lifting their Lock-out Notice dated 5.8.2010 or obtaining expressed pe rmission from honourable Court of Your honour, the Management has started works in their factory establishment and engaged hired workers to complete works order to the prejudice of workers. The Management, has, thus, contravened the provisi on of Section 33(1) (a) of the Industrial Disputes Act, 1947. It is therefore prayed, Hon’ble Court may be pleased to decide the complaint set out above and pass such order or orders thereon as it may deem fit and proper. (cid:29)

4. Along with the said Misc. Application, the employees’ Union also enclose d copy of the Demand Notice dated 31.1.2011, by which the employees’ union had d emanded withdrawal of Lock-out notice dated 5.8.2010. Another demand made was as to why contempt proceeding as per the provisions of the Contempt of Courts Act, 1971 should not be initiated against the Management for altering the service co nditions of the workers, during the pendency of the reference.

5. Responding to the said Misc. Application, the petitioner-Management subm itted its objection stating that the allegation made of violation of Section 33- A of the Industrial Disputes Act, is not sustainable on two counts, namely, the application having been filed by one Shri S.N. Singh, who had already tendered h is resignation from service, the same was not maintainable. The second ground on which the objection was filed is that there was no change / alteration of condi tions of service of the employees. Responding to the said objection by which a p rayer was also made for framing the preliminary issue in respect of maintainabil ity of the Misc. Application filed under Section 33-A of Industrial Disputes Act , the employees’ union preferred another objection dealing with the two grounds on which the Management had sought for framing of a preliminary issue. In the sa id objection, the employees’ union inter alia stated that the application under Section 33 was not filed by said Shri S.N. Singh but the same was filed by the e mployees’ union, represented by Shri Singh in his capacity as General Secretary of the employees’ union. As regards the change of conditions of service, the emp loyees’ union referred to the issues framed in the reference, one of which is al leged breaches of law by the Management due to lock-out declared by them in thei r factory establishment w.e.f. 8.00 am of 5.8.2010. After the aforesaid counter objection filed by the employees union, it w 6. as the turn of the Management to file another objection reiterating the earlier grounds. In the said objection, the petitioner-management also enclosed the copi es of the orders passed by this Court on 19.11.2010 and 6.12.2010 in WP(C) No. 6 070/2010 and WP(C) No. 6465/2010. The said two writ petitions were filed by the petitioner-management praying for a direction to the authorities for taking appr opriate action in terms of the particular Police case registered by Dispur Polic e Station and also to provide adequate security to the petitioner-management for moving out Mud Tank Systems loaded on 5 (five) Nos. of Heavy Transport Carrier (Trolley trucks). In both the writ petitions, this Court allowed the petitioner- management to move out the trolley trucks from the factory premises. However, it was made clear that the police would verify whether the articles to be removed are concerned with the orders placed with the management by the particular autho rity.

7. Placing reliance on the aforesaid two orders of this Court, it is the ca se of the petitioner-management that when the particular articles have been remo ved in trolley trucks with the permission of this court, it cannot be said that the activities of the management have led to violation of any of the conditions of service of the workmen, who are no-longer in active engagement due to the loc k-out already declared by the management.

8. From the above, what is seen is that the management was permitted to rem ove certain articles. By no stretch of imagination, such permission granted by t his Court can extend to activities leading to change of conditions of service du ring the pendency of the aforesaid reference.

9. Dealing with the prayer of the petitioner-management to frame a prelimin ary issue, learned Labour Court has passed the impugned order dated 7.6.2012 dec lining to do so as it felt the same not necessary. It has been observed in the i mpugned order that framing of a preliminary issue on the point of maintainabilit y of the petition filed by the employees’ union is not necessary for adjudicatio n of the dispute and real controversy between the parties, which may also delay the proceeding.

10. As recorded in the impugned order and could be gathered from the applica tion filed by the employees’ union, it is their specific case that the managemen t had engaged hired workers to complete the Mud Tank Systems. It has also been a lleged that the management had again hired 25-30 workers to complete the CFT wor ks ordered by the Digboi Refinery. It was on such counts, the employees’ union h ad alleged contravention of provisions of Section 33-A of the Industrial Dispute s Act, 1947.

11. Mr. S.S. Dey, learned counsel for the petitioner placing reliance on two decisions of the Apex Court reported in AIR 2000 SC 3110 (Blue Star Employees’ Union Vs. Ex. Off. Principal Secretary to Government and another) and AIR 1968 s c 231 (Syndicate Bank Ltd. Vs. K. Ramanath V. Bhat) submits that the management having raised the issue relating to non-contravention of any service conditions of the employees, the learned Labour Court was obliged to decide the issue in th e form of a preliminary issue to find out as to whether there was any contravent ion of the provisions of Section 33 of the Act. In Syndicate Bank Ltd (Supra), the plea taken by the appellant was that 12. there was no industrial dispute pending at the time of the order of dismissal. Dealing with the said contention, the Apex Court observed that if the said conte ntion was to be accepted, then there was no question of contravention of Section 33 of the Act and consequently, there could not have been any occasion for ente rtaining any complaint under Section 33-A of the Act.

13. In Blue Star Employees Union (supra), the Apex Court referred to the pro visions of Section 33 and 33-A of the Industrial Disputes Act, has held that the contravention of provision of Section 33 of the Act being the foundation toward s exercising the power under Section 33 of the Act, the first question to be ans wered is as to whether there was any contravention of Section 33 of the Act.

14. In the instant case, we have noticed the issues under the reference now pending before the learned Labour Court. One of the issues (Issue No.11) is the alleged breach of law by management due to lock-out declared by them in their fa ctory establishment w.e.f. 8.00 am of 5.8.2010. As to what is complaint made by the employees’ union has also been noted above. It is the specific case of the e mployees’ union that there has been contravention of Section 33 of the Act requi ring intervention under Section 33-A of the Industrial Disputes Act, 1947. Thus, it cannot be said that the plea of the workers’ union is not based on any indic ation and / or pleadings in respect of violation of Section 33 of the Industria l Disputes Act, based on which they have raised the complaint under Section 33 o f the Act. Above apart, the learned Labour Court is within its competence and juris 15. diction to frame or not to frame a preliminary issue on the question of maintain ability of the complaint lodged by the employees’ union. The learned Labour Cour t has duly taken note of the facts stated in the complaint that the management h as engaged hired workers to complete the Mud Tank Systems and that it had again hired 25-30 workers to complete the CFT works ordered by the Digboi Refinery in their factory and thus the management has contravened the provision of Section 3 3-A of the Industrial Disputes Act, 1947.

16. The formation of opinion of the learned Labour Court not to frame any pr eliminary issue on the points of maintainability of the case, cannot be said to be faulted with any legal premises. As has been held by the learned Labour Court that framing of a preliminary issue and adjudicating the same, may likely to de lay the proceeding. Instead the learned Labour Court has decided to proceed with the adjudication of the real controversy between the parties. Such an approach cannot be said to be illegal and arbitrary.

17. For all the aforesaid reasons, I am not inclined to interfere with the i mpugned order dated 7.6.2012 passed by the Learned Labour Court. Accordingly, th e writ petition is dismissed, leaving the parties to bear their own costs.