The Management of Bharathan Publication (P) Ltd. v. The Labour Officer III Kuralagam & Ors.

and one G.Karunakaran, working as Assistant Printer, was said tohave been involved in the charge of misconduct, in respect of whicha charge sheet was issued on 9.9.2006 and he was kept undersuspension pending enquiry. It is stated that on 14.9.2006, thesecond respondent Union has raised an industrial dispute regardingretrenchment, lock out, etc., including that of suspension ofG.Karunakaran and that dispute was numbered as A/514/2006 by thefirst respondent. 2(a). The first respondent issued notice on 15.9.2006 forenquiry which was posted on 21.9.2006, 4.10.2006 and 18.10.2006.On 18.11.2006, the petitioner submitted a reply to the effect thatthe petitioner is not proposing to indulge in retrenchment or lockout and that G.Karunakaran has been suspended pendingdisciplinary proceedings and therefore, the dispute is notmaintainable. While the enquiry was posted on 22.2.2007, thesecond respondent approached this Court by filing W.P.No.38315 of2006 against the disciplinary action initiated againstG.Karunakaran and also filed W.P.No.41190 of 2006 challenging thecharge sheet-cum-suspension order dated 9.9.2006 and both the writpetitions were dismissed on 3.4.2007 on the basis that the secondrespondent raised a dispute and hence, the alternative remedy wasresorted to. 2(b). It is the case of the petitioner that against the saidG.Karunakaran, enquiry was conducted and a second show-cause noticedated 06.04.2007 was issued, proposing to dismiss him from service,for which there was no reply and therefore, by order dated22.4.2007, the said G.Karunakaran was dismissed from service. Itis the case of the petitioner that even though the first respondentissued various notices, no conciliation proceedings have beeninitiated as per section 12 of the Industrial Disputes Act,1947. Onthe memorandum filed by the second respondent on 4.6.2007questioning the dismissal of the said G.Karunakaran from servicewithout prior approval, particularly when the dispute stood postedby the first respondent for enquiry on various dates, thepetitioner replied stating that no conciliation proceedings werepending when G.Karunakaran was dismissed on 22.4.2007. 2(c). Thereafter, the first respondent took up an applicationregarding non-employment of G.Karunakaran and the petitionerparticipated in the enquiry on 7.9.2007. That was also in caseNo.A/514/2006 and the enquiry was subsequently adjourned to17.9.2007 and there were no further proceedings. It is stated thatin the meantime, the second respondent raised two more disputes andthe same were numbered as 591/2006 and 810/2006 and according tothe petitioner, they were not taken up by the first respondent forconciliation.2(d). It is the case of the petitioner that in case of non-public utility service like that of the petitioner, notices areissued for enquiry inviting parties to attend to verify the records https://hcservices.ecourts.gov.in/hcservices/ and when notices are issued for conciliation proceedings within themeaning of section 12 of the Act, the Conciliation Officer is boundto submit his report and the first respondent has not submitted anysuch conciliation failure report.2(e). Even though the first respondent in A/572/07 called forthe discussion in respect of dismissal of G.Karunakaran during thependency of dispute in A/514/06, the petitioner was unable toattend by oversight and ultimately, the first respondent passed theimpugned order and after the impugned order was passed, the workmanG.Karunakaran filed C.P.No.44/08 on the basis that the terminationwas in violation of section 33-A of the Industrial Disputes Actand he was entitled for the balance of subsistence allowance andwages for the period from October,2006 to January,2008 to theextent of Rs.1,21,457/-. It was only after receipt of claimpetition in May, 2008, the petitioner was able to peruse theimpugned order of the first respondent dated 20.12.2007. 3. The impugned proceedings of the first respondent arechallenged by the petitioner on various grounds including thatthere were no conciliation proceedings pending within the meaningof section 12 of the Industrial Disputes Act and in suchcircumstances, there was no necessity for the petitioner to obtainprior permission for dismissing G.Karunakaran, since the petitionerbeing a non-public utlity service, the discussion held inA.No.514/2006 would not amount to conciliation proceedings in theeye of law and it is only an enquiry.4. In the counter affidavit filed by the second respondent itis reiterated that the union raised dispute on 14.9.2006, which wastaken up as A/514/2006 by the Conciliation Officer at Kuralagam,Chennai and when the conciliation proceedings were actuallypending, W.P.Nos.38351 of 2006 and 41190 of 2006 came to bedismissed for the reason that the second respondent availed thealternative remedy and in the order, the learned Judge has alsoexplained the conciliation proceedings bearing No.A/514/06. Afterthe W.A.Nos.703 and 704 of 2007 filed against the above said orderwere dismissed on the ground of alternative remedy, the petitionerdismissed the said G.Karunakaran from service without obtainingprior permission as contemplated under section 33 of the IndustrialDisputes Act, since the conciliation proceedings were pendingbefore the first respondent at that time. It is also stated thatthe management itself admitted that A/514/2006 are conciliationproceedings and on 17.9.2007, the second respondent gave a letterto the first respondent to convert the dispute under section 2(k)of the Industrial Disputes Act into one under section 2A of theIndustrial Disputes Act and thereafter, A/514/2006 was renumberedas A/620/2007 and the conciliation failure report was submitted on30.10.2007. Even if the proceedings under section 2(k) of theIndustrial Disputes Act were not converted into one under section2A of the Industrial Disputes Act, the conciliation proceedingswere still pending on the date of dismissal of G.Karunakaran, in https://hcservices.ecourts.gov.in/hcservices/ case the Conciliation Officer has no power to effect suchconversion. On the other hand, if such conversion has been made,the failure report has been submitted on 30.7.2007. 5. Mr.S.Ravindran for M/s.T.S.Gopalan & Co, learned counselappearing for the petitioner by referring to section 12 of theIndustrial Disputes Act would submit that only in respect of publicutility services, the method is prescribed and therefore, in thecase of non-public utility service, there is no method forconciliation with the result the notices sent by the firstrespondent for enquiry cannot be deemed to have been sent pursuantto the conciliation proceedings. He would also submit that thefirst respondent has never treated the proceedings as conciliationproceedings and even otherwise, he has no authority to decide thevalidity or otherwise of the dismissal since in the eye of lawthere is no conciliation. He would also rely upon the judgmentreported in Management Essorpe Mills Ltd., vs. Presiding Officer,Labour Court and others [2008(2) LLN 761]. His submission is thatconciliation in any proceedings must be as per section 2(c) of theIndustrial Disputes Act. Even assuming that the conciliationstarted in A/514/2006, there is no conciliation failure report. 6. On the other hand, it is the contention ofMr.S.Vaidhyanathan, learned counsel appearing for the secondrespondent that in the absence of a precise definition for the term'conciliation' in respect of non-public utility service, thenotices issued by the first respondent should be treated as havingbeen sent for conciliation proceedings and the argument that suchenquiry cannot be deemed to be conciliation proceedings is onlytechnical which cannot take away the substantive right of a workmanunder the Industrial Disputes Act, which is a beneficiallegislation. He would also rely upon the judgment inV.Palanishanmugavel and others vs. The General Manger, Tamil NaduState Transport Corporation (Madurai) Ltd., Tirunelveli and others[2007 (4) CTC 478] to substantiate his contention apart from thejudgment in The Correspondent, Sacred Heart Primary School, KamarajNagar, Padanthalumoodu, Kanyakumari District and another vs. TheDistrict Elementary Educational Officer, Kanyakumari District atNagercoil, Kanyakumari and others [2006 (4) CTC 34].7. The admitted facts are that the petitioner is a non-publicutility service and the second respondent Union has raised somedispute before the first respondent on 14.9.2006 under section 2(k)of the Industrial Disputes Act, 1947. The crux of the said disputeraised by the second respondent as stated above is that thepetitioner is attempting to close the unit and the saidG.Karunakaran was placed under suspension illegally on 9.9.2006with an intention to terminate him from service. In the saidpetition under section 2(k) of the Industrial Disputes Act, thesecond respondent has requested the first respondent to givedirection to the petitioner not to retrench workmen, not to closedown the factory without prior approval from the Government and to https://hcservices.ecourts.gov.in/hcservices/ declare that the suspension against G.Karunakaran is null and voidand to set aside the same and also requested the first respondentto conduct enquiry and pass appropriate orders at the earliestpoint of time. 8. The respondents therein have given reply denying variousallegations wherein it is stated that enquiry officer was appointedin the matter of Karunakaran but the said Karunakaran did not co-operate and therefore requested to reject the application. Based onthe said complaint, the first respondent has issued notices forenquiry in A.No.514/06 and in all enquiry notices, it is true, thefirst respondent has chosen to state it as 'enquiry' (tprhuiz) andnot 'conciliation' (rkurk;). Up to the date of order passed by thisCourt on 3.4.2007 in W.P.Nos.38315/06 and 41190/06, it is seen thatthe first respondent has referred the said proceedings in A.514/06as enquiry. W.P.No.38315 of 2006 was filed by the secondrespondent Union against the disciplinary proceedings initiatedagainst G.Karunakaran and the subsequent W.P.No.41190 of 2006 wasfiled challenging the order of petitioner dated 9.9.2006 placingthe said G.Karunakaran under suspension. Both the writ petitionswere dismissed on 3.4.2007 holding that the second respondent hasalready filed application under section 2(k) of the IndustrialDisputes Act and hence, resorted to alternative remedy. 9. At this juncture, it is relevant to point out that the saidG.Karunakaran was placed under suspension on 9.9.2006 and chargememo was issued against him on the same day. Ultimately, thepetition under section 2(k) of the Industrial Disputes Act asstated above, was filed by the second respondent Union on14.9.2006. The said G.Karunakaran was dismissed on 22.4.2007 viz.,after the dismissal of writ petitions on 3.4.2007. Even after thedismissal order, the first respondent has issued notice to theparties on 30.4.2007 for enquiry fixing the date as 10.5.2007 andin that enquiry no order was passed and in the meantime, on4.6.2007, the second respondent Union filed an application beforethe first respondent to the effect that when the application inrespect of G.Karunakaran was pending before the first respondent,the dismissal order passed by the petitioner without prior approvalfrom the authority under section 33 of the Industrial Disputes Actbecomes invalid and therefore, prayed to set aside the dismissalorder. 10. It is, thereafter, by a communication dated 5.6.2007, thefirst respondent in addition to A.No.514/2006 has included 591 and810 of 2006, which appear to be relating to enhancement of salaryand some other demand and the enquiry in respect of the above saidthree applications was subsequently adjourned to 28.6.2007 ascommunicated by the first respondent in the notice dated 14.6.2007.By subsequent communication dated 29.8.2007 in A.No.514/2006relating to the suspension of G.Karunakaran, the first respondenthas fixed the enquiry on 7.9.2007. By another communication dated7.9.2007, the first respondent restricted the enquiry to https://hcservices.ecourts.gov.in/hcservices/ A.591/2006 and A.810/2006 which, as stated above, appears to relateto the enhancement of salary and some other demands. Ultimately,under the impugned order, the first respondent by numbering it asA.572/07, decided that the dismissal of G.Karunakaran is againstsection 33(1)(b) of the Industrial Disputes Act. 11. The impugned order refers to the petition of the secondrespondent dated 24.8.2007. It appears, as it is seen in thecounter affidavit filed by the second respondent, that the secondrespondent Union had given a letter to the first respondent on17.9.2007 for converting the original application filed undersection 2(k) of the Industrial Disputes Act on 14.9.2006 into anindividual dispute under section 2A of the Industrial Disputes Actand the same was numbered as A.620/07. It is true that in respectof conciliation proceedings relating to other establishments andworkmen, the first respondent has been issuing notices captioned,'conciliation notices (rkur ngr;Rthu;j;ij) while in respect ofpresent case, in all notices issued by the first respondent, theterm used is 'enquiry' (tprhuiz). But, a reference to theproceedings of the first respondent in A.514/2006, the extract ofwhich has been filed by the petitioner/management in typed set ofpapers, shows that what was effected by the first respondentthroughout was only conciliation. On various dates of adjournmentfrom September, 2006 the first respondent has been using the word(rkur ngr;Rthu;j;ij) which means 'conciliation talk'. It is alsotrue that the first respondent had no jurisdiction to pass orders,since he was effecting conciliation. On the date of hearing,12.12.2006, there was an endorsement by the first respondent asfollows:"bjhHpw;r';fk; kDjhuhplkpUe;J kd;dpg;g[ fojk; bgw xg;g[f;bfhz;lJ/eph;thfk; xg;g[f;bfhz;l N:H;epiyapy; eph;thfk; xg;g[f;bfhz;L xUfojk; ju ntz;Lk;/ m/ng/thh;j;ij 21/12/06-12/30/"12. Again, on 28.12.2006, the endorsement made by the firstrespondent as it is seen in the typed set of paper of thepetitioner is, "eph;thfk; bjhHpw;r';fk; 12/12/06 md;W nfl;lij xg;g[f;bfhs;stpy;iy/kDjhuhpd; kd;dpg;g[ fojj;Jld; bjhHpw;r';fk; ntW vy;yhg; g[fhh;fs; jpUg;gp bgwt[k; kw;Wk; ,uz;L tUlj;jpw;F ve;j xU g[fhUk; jhf;fy; bra;akhl;nlhk; vd bjhptpj;jjhy; jhd; kDjhuhpd;kd;dpg;g[ Vw;Wf;bfhs;s Koa[k; bjhptpf;fg;gl;lJ/Writ petition not yet listed.m/ng/thh;j;ij 10/01/2007-12/30"13. Therefore, the hearing before the first respondent up to https://hcservices.ecourts.gov.in/hcservices/

13.6.2007 is only for effecting conciliation even though noticesissued are for enquiry. The mere reason that the first respondenthas not sent notices captioned 'conciliation notice' but has sentnotices with the caption, 'enquiry notice' does not take away thepower of jurisdiction and the nature of enquiry of the firstrespondent in effecting conciliation as per the Industrial DisputesAct. For, it is the substance of the proceedings of the firstrespondent which has to be taken into consideration and not theform in a technical manner, especially while construing abeneficial legislation like the Industrial Disputes Act.Therefore, the contention of the learned counsel for the petitioneras if the proceedings pending before the first respondent was notconciliation proceedings and it was only an enquiry which is notcontemplated under the Industrial Disputes Act cannot becountenanced. On record, it is seen that what had been done by thefirst respondent was only relating to conciliation even though theprayer in the petition filed by the second respondent under section2(k) of the Industrial Disputes Act is to set aside the suspensionorder, etc. 14. As it is stated in the counter affidavit filed by thesecond respondent, the conciliation failure report was submitted on30.10.2007, which fact is not controverted in the reply affidavitfiled on behalf of the petitioner. While so, the dismissal whichwas on 22.4.2007 before the filing of conciliation failure reportby the first respondent dated 30.10.2007 has to be taken only as anorder passed during the pendency of the conciliation proceedings.It is the definite case of the second respondent in the counteraffidavit that on an application filed by the second respondent on17.9.2007 for converting the original representation under section2(k) of the Industrial Disputes Act into one under section 2A ofthe Industrial Disputes Act, A.No.514/2006 stood renumbered asA.620/07 and ultimately, failure report was submitted on 30.10.2007which fact also stands not controverted in the reply affidavit. 15. The Industrial Disputes Act, being a labour legislationis intended for the purpose of investigation and settlement ofindustrial disputes by various methods like, conciliation,adjudication, etc. and while construing the provisions of theIndustrial Disputes Act, the view that advances the object of theAct and serves its purpose must be preferred to the one whichobstructs the object and paralyses the purpose of the Act, as itwas held by the Supreme Court in Kunal Singh v. Union India andanother [(2003) 4 SCC 524], wherein similar statutory provisions ofthe Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995 were construed.16. A Division Bench of this Court consisting F.M.IbrahimKalifulla,J and P.Murgesan,J. in The Correspondent, Sacr4ed HeartPrimary School v. The District Elementary Educational Officer,Kanyakumari (2006 (4) CTC 34), while explaining the purposiveconstruction known as 'Heydon's case', has held that while https://hcservices.ecourts.gov.in/hcservices/ construing the provisions of law importance must be given to thetrue intent of the makers of the Act,'Pro bono publico'. TheDivision Bench, after referring to various judgments of EnglishCourts as well as our Supreme Court, has observed as follows:"17. In this context, it will be worthwhile to refer tothe decisions wherein the rule in Heydon's case, which isalso known as 'purposive construction' or "mischief rule"has been succinctly set out. In the earliest decision ofthe Hon'ble Supreme Court in Bengal Immunity Co. v. State ofBihar and others AIR 1955 SC 661, in paragraph 22 theHon'ble Supreme Court set out the principle in Heydon's casewhich reads as under:"22. It is a sound rule of construction of a statutefirmly established in England as far back as 1584 when –'Heydon's case' 1584(3) Co Rep 7a(V) was decided that -".... for the sure and true interpretation of allStatutes in general (be they penal or beneficial,restrictive or enlarging of the common law) four things areto be discerned and considered:1st What was the common law before the making of theAct;2nd What was the mischief and defect for which thecommon law did not provide;3rd What remedy the Parliament hath resolved andappointed to cure the disease of the Commonwealth; and4th The true reason of the remedy; and then the officeof all the judges is always to make such construction asshall suppress the mischief, and advance the remedy, and tosuppress subtle inventions and evasions for continuance ofthe mischief, and 'pro privato commodo', and to add forceand life to the cure and remedy, according to the trueintent of the makers of the Act, 'pro bono publico".In a subsequent decision of the Hon'ble Supreme Courtin Commissioner of Income Tax, Madhya Pradesh and Bhopal v.Sodra Devi, AIR 1957 SC 832, the Hon'ble Supreme Court hasstated as under in paragraph 14:"14. .... It is only when the words used are ambiguousthat they would stand to be examined and construed in thelight of surrounding circumstances and constitutionalprinciple and practice Per Lord Ashbourne in Nairn v.University of St.Andrews, 1909 A.C.147 (B), in the latterevent the following observations of Lord Lindley M.R., inThomson v. Lord Clanmorris, 1900 (1) Ch 718 at p.725 wouldbe apposite:"In construing any statutory enactment, regard must behad not only to the words used but to the history of the Actand the reason, which led to its being passed. You mustlook at the mischief which had to be cured as well as at thecure provided" (See also the observations of Goddard C.J.,in R. v. Paddington and St.Maryleborne Rent Tribunal, 1949(65) TLR 200 at p.203(D)". https://hcservices.ecourts.gov.in/hcservices/ In an English decision in 1985 (2) All ER 355, the very samerule has been succinctly set out by Lord Rokill in thefollowing words:"It is, therefore, important that the question ofconstruction should be approached by reference to well knownprinciples ignoring that which is irrelevant howeverinteresting, but remembering that statutes should be givenwhat has become known as a purposive construction, that isto say that the Courts should where possible identify 'themischief' which existed before the passing of the statuteand then if more than one construction is possible, favourthat which will eliminate 'the mischief' so identified.In the recent decision of the Hon'ble Supreme Court inD.Saibaba v. Bar Council of India and another, AIR 2003 SC2502, the Hon'ble Supreme Court has held as under inparagraphs 9,18 and 19:"9. .... Where the law provides a remedy to a person,the provision has to be so construed in case of ambiguity asto make the availing of the remedy practical and theexercise of power conferred on the authority meaningful andeffective. A construction which would render the provisionnugatory ought to be avoided. True, the process ofinterpretation cannot be utilized for implanting a heartinto a dead provision; however, the power to construe aprovision of law can always be so exercised as to give throbto a sinking heart .... (Emphasis added)18. Reading word for word and assigning a literalmeaning to Section 48-AA would lead to absurdity, futilityand to such consequences as the Parliament could have neverintended. The provision has an ambiguity and is capable ofbeing read in more ways than one. We must, therefore,assign the provision a meaning and so read it – as wouldgive life to an otherwise lifeless letter and enable thepower of review conferred thereby being meaningfully availedand effectively exercised. (Emphasis added)19. On the same principle, the provision has to beinterpreted from the point of view of exercise of the powerby the Bar Council. The interpretation ought to be directedto wards giving the expression a meaning which will carryout the purpose of the provision and make the remedy ofreview conferred by the provision meaningful, practical andeffective...."In yet, another decision of the Supreme Court in Nasiruddinv. S.T.A. Tribunal, AIR 1976 SC 331, the Hon'ble SupremeCourt has held as under in paragraph 26:"26. If there are two different interpretations of thewords in an Act, the Court will not adopt that which is justreasonable and sensible rather than that which is none ofthose things....." https://hcservices.ecourts.gov.in/hcservices/

17. The significance of purposive interpretation theory beingapplied in welfare legislation like, the Industrial Disputes Act isalso reiterated by the Supreme Court in Bharat Singh v. New DelhiTuberculosis Centre [(1986) 2 SCC 614]. While referring to section17B of the Industrial Disputes Act, the Supreme Court has held asfollows:"11. In interpretation of statutes, courts have steeredclear of the rigid stand of looking into the words of thesection alone but have attempted to make the object of theenactment effective and to render its benefits into theperson in whose favour it is made. The legislators areentrusted with the task of only making laws. Interpretationhas to come from the courts. Section 17-B on its terms doesnot say that it would bind awards passed before the datewhen it came into force. The respondents' contention isthat a section which imposes an obligation for the firsttime, cannot be made retrospective. Such sections shouldalways be considered prospective in our view, if thissubmission is accepted, we will be defeating the verypurpose for which this section has been enacted. It is herethat the court has to evolve the concept of purposiveinterpretation which has found acceptance whenever aprogressive social beneficial legislation is under review.We share the view that where the words of a statute areplain and unambiguous effect must be given to them. Plainwords have to be accepted as such but where the intention ofthe legislature is not clear from the words or where twoconstructions are possible, it is the court's duty todiscern the intention in the context of the background inwhich a particular section is enacted. Once such anintention is ascertained the courts have necessarily to givethe statute a purposeful or a functional interpretation.Now, it is trite to say that acts aimed at socialamelioration giving benefits for the have-nots shouldreceive a liberal construction. It is always the duty ofthe court to give such a construction to a statute as wouldpromote the purpose or object of the Act. A constructionthat promotes the purpose of the legislation should bepreferred to a literal construction. A construction whichwould defeat the rights of the have-nots and the underdogand which would leave to injustice should always be avoided.This section was intended to benefit the workmen in certaincases. It would be doing injustice to the section if wewere to say that it would not apply to awards passed a dayor two before it came into force."18. In Workmen v. Williamson Magor and Co. Ltd. [(1982) 1 SCC117] the Supreme Court has held that while construing beneficiallegislation like the Industrial law, the benefit must go to theweaker section viz., the labour. The relevant portion of the https://hcservices.ecourts.gov.in/hcservices/ judgment is as follows:"12. ..... The word 'victimisation' has not beendefined in the statute. The term was considered by thisCourt in the case of Bharat Bank Ltd. v. Employees (1950 SCR459 : AIR 1950 SC 188). This Court observed, "It(victimisation) is an ordinary English word which means thata certain person has become a victim, in other words, thathe has been unjustly dealt with". A submission was made onbehalf of the management in that case that 'victimisation'had acquired a special meaning in industrial disputes andconnoted a person who became the victim of the employer'swrath by reason of his trade union activities and that theword could not relate to a person who was merely unjustlydismissed. This submission however, was not considered bythe Court. When, however, the word 'victimisation' can beinterpreted in two different ways, the interpretation whichis in favour of the labour should be accepted as they arethe poorer section of the people compared to the management.13. This Court in the case of Employees Association vs.Management of K.C.P.Ltd., Madras (1978 (2) SCC 42) observed:(SCC p.44, para 5)"In Industrial Law, interpreted and applied in theperspective of Part IV of the Constitution, the benefit ofreasonable doubt on law and facts, if there be such doubt,must go to the weaker section, labour. The Tribunal willdispose of the case making this compassionate approach butwithout overstepping the proved facts,...."19. Under the Industrial Disputes Act, section 2(e) definesconciliation proceedings as follows:"2(e). 'conciliation proceeding' means any proceedingheld by a conciliation officer or Board under this Act".20. It is not in dispute that the first respondent is aConciliation Officer appointed under the Industrial Disputes Act asper section 2(d) of the Act. The dispute raised by the secondrespondent Union making demands including the cancellation ofsuspension order against G.Karunakaran, one of the employeescertainly falls under section 2(k) of the Industrial Disputes Actwhich defines an industrial dispute as follows:"2(k). 'industrial dispute' means any dispute ordifference between employers and employers, or betweenemployers and workmen, or between workmen and workmen, whichis connected with the employment or non-employment or theterms of employment or with the conditions of labour, of anyperson".21. Section 11 of the Industrial Disputes Act which speaks https://hcservices.ecourts.gov.in/hcservices/ about the procedure, powers and duties of authorities including theConciliation Officer, under sub-section (2), specifically statesthat the Conciliation Officer or a member of a Board or a LabourCourt is empowered to conduct enquiry. The powers of ConciliationOfficer include the power of entering into compromise, compellingattendance of any person and examining him under sub-section (4).In this regard, sub-sections (2) and (4) are relevant which are asfollows:"11. Procedure and power of conciliation officers,Boards, Courts and Tribunals.- (1) ...(2) A Conciliation Officer or a member of a Board, [orCourt or the presiding Officer of a Labour Court,Tribunal or National Tribunal] may, for the purpose ofinquiry into any existing or apprehended industrialdispute, after giving reasonable notice, enter thepremises occupied by any establishment to which thedispute relates.(3) .....(4) A Conciliation Officer [may enforce the attendanceof any person for the purpose of examination of suchperson or call for] and inspect any document which hehas ground for considering to be relevant to theindustrial dispute [or to be necessary for the purposeof verifying the implementation of any award orcarrying out any other duty imposed on him under thisAct, and for the aforesaid purposes, the conciliationofficer shall have the same powers as are vested in aCivil Court under the Code of Civil Procedure, 1908 (5of 1908), [in respect of enforcing the attendance ofany person and examining him or of compelling theproduction of documents]."22. Section 12 of the Industrial Disputes Act which explainsabout the duties of Conciliation Officer makes it clear that incase of public utility service when notice is given under section22 of the Act, it is mandatory on the part of the ConciliationOfficer to conduct conciliation in the prescribed manner and inother cases where industrial dispute exists or apprehended, he mayperform conciliation. When the Conciliation Officer proceeds withenquiry, he has the right of investigation to work for an amicablesettlement. In the event of settlement being reached between theparties or its failure, he has to send a report to the appropriateGovernment. Section 12 is as follows:"12. Duties of Conciliation Officers.-(1)Where any industrial dispute exists or isapprehended, the conciliation officer may, or wherethe dispute relates to a public utility service and anotice under section 22 has been given, shall, hold https://hcservices.ecourts.gov.in/hcservices/ conciliation proceedings in the prescribed manner.(2)The conciliation officer shall, for the purpose ofbringing about a settlement of the dispute, withoutdelay investigate the dispute and all mattersaffecting the merits and the right settlement thereofand may do all such things as he thinks fit for thepurpose of inducing the parties to come to a fair andamicable settlement of the dispute.(3)If a settlement of the dispute or of any of thematters in dispute is arrived at in the course of theconciliation proceedings, the conciliation officershall send a report thereof to the appropriateGovernment [or an officer authorised in this behalf bythe appropriate Government] together with a memorandumof the settlement signed by the parties to thedispute.(4)If no such settlement is arrived at, the conciliationofficer shall, as soon as practicable after the closeof the investigation, send to the appropriateGovernment a full report setting forth the steps takenby him for ascertaining the facts and circumstancesrelating to the dispute and for bringing about asettlement thereof, together with a full statement ofsuch facts and circumstances, and the reasons onaccount of which, in his opinion, a settlement couldnot be arrived at.(5)If, on a consideration of the report referred to insub-section (4), the appropriate Government issatisfied that there is a case for reference to aBoard, [Labour Court, Tribunal or National Tribunal],it may make such reference. Where the appropriateGovernment does not make such a reference, it shallrecord and communicate to the parties concerned itsreasons therefor.(6)A report under this section shall be submitted withinfourteen days of the commencement of the conciliationproceedings or within such shorter period as may befixed by the appropriate Government:Provided that, [subject to the approval of the conciliationofficer], the time of the submission of the report may beextended by such period as may be agreed upon in writing byall the parties to the dispute]."23. In the present case, it is true that the second respondentis not a public utility service as defined under section 2(n) ofthe Industrial Disputes Act. It is seen that after receivingpetition under section 2(k) of the Industrial Disputes Act from thesecond respondent, the first respondent has proceeded toinvestigate and in fact, he has proceeded with conciliation.24. It is true that under section 20 of the IndustrialDisputes Act, the commencement and the conclusion of proceedings https://hcservices.ecourts.gov.in/hcservices/ under conciliation in respect of public utility service have beenexplained.25. There is no reason to conclude that in the absence of anyspecific provision explaining the procedure to be followed inrespect of commencement and the conclusion of proceedings relatingto non-public utility service, the same procedure as explainedunder section 20 cannot be made applicable.26. Section 33 of the Industrial Disputes Act contemplatesthat when conciliation proceedings before a Conciliation Officerare pending, no employer in regard to any matter connected with thedispute, shall alter, to the prejudice of the workmen concerned insuch dispute, the conditions of service applicable to themimmediately before the commencement of such proceedings or withregard to any misconduct connected with the dispute, shalldischarge, or punish whether by dismissal or otherwise, any workmanconcerned in such dispute, except with permission in writing fromthe authority before whom such proceedings are pending. Section 33(1) of the Industrial Disputes Act states as follows:"33.Conditions of service, etc., to remain unchangedunder certain circumstances during pendency of proceedings.-(1)During the pendency of any conciliation proceedingsbefore a conciliation officer or a Board or of anyproceeding before [an arbitrator or] a Labour Court orTribunal or National Tribunal in respect of anindustrial dispute, no employer shall-(a) in regard to any matter connected with thedispute, alter, to the prejudice of the workmenconcerned in such dispute, the conditions of serviceapplicable to them immediately before the commencementof such proceedings; or(b) for any misconduct connected with the dispute,discharge or punish, whether by dismissal orotherwise, any workmen concerned in such dispute,save with the express permission in writing of theauthority before which the proceeding is pending".27. In such event, section 33A of the Industrial DisputesAct, as a special provision, enables the workman aggrieved by suchcontravention to make a complaint before the authority orConciliation Officer before whom the dispute is pending who shallsubmit a report to the appropriate Government after enquiry.Section 33A is as follows:"33-A. Special provision for adjudication as to whetherconditions of service, etc., changed during pendency ofproceedings.-Where an employer contravenes the provisions of section33 during the pendency of proceedings [before a conciliation https://hcservices.ecourts.gov.in/hcservices/ officer, Board, an arbitrator, Labour Court, Tribunal orNational Tribunal], any employee aggrieved by suchcontravention, may make a complaint in writing, [in theprescribed manner,-(a) to such conciliation officer or Board, and theconciliation officer or Board shall take such complaint intoaccount in mediating in, and promoting, the settlement of,such industrial dispute; and(b) to such arbitrator, Labour Court, Tribunal orNational Tribunal and on receipt of such compliant, thearbitrator, Labour Court, Tribunal or National Tribunal, asthe case may be, shall adjudicate upon the complaint as ifit were a dispute referred to or pending before it, inaccordance with the provisions of this Act and shall submithis or its award to the appropriate Government and theprovisions of this Act shall apply accordingly.]"28. On the factual matrix enumerated above, I have nohesitation to hold that on the date when the said G.Karunakaran wasdismissed viz., on 22.4.2007, the conciliation proceedings beforethe first respondent were pending. As decided above, merelybecause the notice for conciliation was sent in the form ofenquiry, it does not take away the character of conciliationespecially when copies of records filed by the petitioner regardingthe proceedings of the first respondent clearly show that what waseffected by him was not a mere enquiry, but a conciliation withinthe meaning of the Industrial Disputes Act and in such view of thematter, there is no difficulty to conclude that there was astatutory obligation on the part of the petitioner under section 33(1) of the Industrial Disputes Act to obtain express permission,which has not been obtained in the present case and naturally byapplying section 33A of the Industrial Disputes Act, it cannot besaid that the impugned order of the first respondent is withoutjurisdiction. The statement of the first respondent in theimpugned order that the conduct of the petitioner in dismissing thesaid G.Karunakaran while conciliation proceedings were pending isopposed to section 33(1)(b) of the I.D. Act cannot be brushedaside.29. Again, on the facts, it is clear that the pendency ofproceedings before the first respondent is relating not only to thegeneral demands made by the second respondent Union against thealleged closure of units, but also to the suspension anddisciplinary proceedings against G.Karunakaran and it cannot besaid that the dispute relating to G.Karunakaran has no connectionwith the order of dismissal passed. In other words, it cannot besaid that the conciliation proceedings pending before the firstrespondent do not relate to the order of dismissal passed againstthe said G.Karunakaran dated 22.4.2007. In such view of the matter,the judgment of this Court in K.S.Mani Iyer v. Bombay Anand Bhavan,Coimbatore (23 FJR 541) on which reliance was placed by the learnedcounsel for the petitioner has no application, because in that https://hcservices.ecourts.gov.in/hcservices/ case, the learned Judge has found on facts that there was nopendency of proceedings before any of the Tribunals as mentioned insection 33 of the Industrial Disputes Act. In such view of thematter, it is not possible to accept the contention of the learnedcounsel for the petitioner. The writ petition therefore fails and the same is dismissed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhTo The Labour Officer III Kuralagam, Chennai 600 108.+1cc to Mr.S.Vaidyanathan,Advocate Sr 21452+1cc to Mr.T.s.Gopalan & Co., Advocate Sr 21263SSR(CO)km/11.6.W.P.No.18954 of 2008