IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.41377 OF 2017(L-TER) BETWEEN M/S ELASTREX POLYMERS PVT LTD NO.8/2, GANADHARANAPALYA KASABA HOBLI NELAMANGALA BENGALURU-562123 REPRESENTED BY ITS PRODUCTION MANAGER (BY SRI PRABHAKAR RAO K, ADVOCATE) AND 1. SRI NAGARAJU AGED ABOUT 43 YEARS, S/O SRI GOWDAPPA 2. SRI CHIKKEGOWDA AGED ABOUT 45 YEARS, S/O SRI KEMPAIAH BOTH REPRESENTED BY BANGALORE KARMIKARA SANGHA (REGD) NO.8, ADARSHA NILAYA RAJAGOPALANAGARA MAIN ROAD, PEENYA 2ND STAGE, BENGALURU-560058 REPRESENTED BY ITS PRESIDENT (BY SRI A J SRINIVASAN, ADVOCATE) ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE PRINCIPAL LABOUR COURT BENGALURU DTD:9.8.2017 IN APPLICATION NO.10/2015 AT IA NO.2 WHICH IS AT ANNEXURE-F AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 15.04.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
ORDER The petitioner is a Company registered under the Companies Act, engaged in manufacture of rubber products used in manufacturing ‘hawai’ chappals. The respondents- workmen filed an application under Section 33C(2) of the Industrial Disputes Act, 1947, before the Principal Labour Court, Bengaluru in Application No.10/2015.
2. The petitioner-Company filed objections statement and I.A.No.2 contending that the Principal Labour Court, Bangalore, has no territorial jurisdiction to entertain the application of the respondents-workmen, in view of the Government notification dated 22.01.2015 conferring the jurisdiction of matters relating to industrial disputes of Nelamangala area, Bengaluru to the Prl. District & Sessions Judge, Bengaluru Rural District. The Prl. Labour Court having rejected I.A.No.2 filed by the petitioner herein, the petitioner is assailing the said order dated 09.08.2017 in this writ petition.
3. It is necessary to notice that the Labour Court had passed an award dated 14.12.2001 directing the Management to pay the workmen-respondents backwages at 50% but denied continuity of service to the workmen. Both the Management and the workmen assailed the award before this Court. The Management questioned the correctness of the award insofar as payment of 50% of backwages, while the workmen questioned the denial of continuity of service. This Court, by order dated 13.06.2006 dismissed the petition filed by the Management and allowed the petition of the workmen and granted continuity of service. In W.A.No.3140/2005, the Division Bench set aside the order of 50% backwages, while confirming the direction regarding continuity of service to the workmen. When the matter was taken up before the Hon’ble Supreme Court of India in Civil Appeal No.3765/2015, by order dated 13.04.2015. Their Lordships modified the award and directed payment of 20% of backwages. The respondent- workmen herein approached the Labour Court by filing an application under Section 33C(2) of the Industrial Disputes Act. However, it is important to notice that the respondents- workmen herein were denied payment of backwages on the ground that they were not parties before the Hon’ble Supreme Court in Civil Appeal No.3765/2015.
4. Sri Prabhakar Rao.K., learned Counsel for the petitioner submits that the Government of Karnataka, vide notification dated 22.01.2015 has re-settled the jurisdiction under the Industrial Disputes Act and as per the said notification dated 22.01.2015, the Government conferred the jurisdiction of matters relating to industrial disputes of Nelamangala area, Bengaluru to the Prl. District & Sessions Judge, Bengaluru Rural District. It is contended by the learned Counsel that the petitioner-Company is situated within Nelamangala area and therefore the jurisdiction to decide the application lies with the Prl. District & Sessions Judge, Bengaluru Rural District.
5. In this regard, the learned Counsel places reliance on a decision of the Division Bench in W.P.No.6242/2015 which was decided on 21.07.2015. The learned Counsel for the petitioner, during the course of the argument brings to the notice of this Court the amendments brought to Section 11, especially sub-sections (8), (9) and (10) of Section 11. It is contended that by virtue of the amendment brought in with effect from 15.09.2010, sub-section (10) of Section 11 would provide that the Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a Civil Court having jurisdiction and such Civil Court shall execute the award, order or settlement as if it were a decree passed by it. It was therefore contended that after the amendment was brought in w.e.f. 15.09.2010, an application under Section 33C(2) cannot be maintained before the Labour Court and it is incumbent upon the Labour Court to transmit any award, order or settlement to a Civil Court having jurisdiction, to execute such award, order or settlement.
6. Sri A.J.Srinivasan, learned Counsel for the respondents-workmen seeks to justify the impugned order which rejected the contention of the Management on the ground that the decision of the Division Bench in W.P.No.6242/2015 (supra) also made it clear in paragraph No.7 that the cases pending on or before 22.01.2015 when the notification was issued by the State Government, cannot be transferred since the notification was not retrospective. It was noticed that the Division Bench had observed that all cases filed on or before 22.01.2015 and pending before the Labour Courts would have to be disposed of by the Labour Courts and not to be transferred in terms of the notification. The learned Counsel submits that the Labour Court had rightly held that an application under Section 33C(2) is in the nature of execution proceedings and continuation of the civil litigation and unless and until the award is satisfied, law mandates that the Court can proceed against the establishment.
7. As regards the amendment to Section 11 (10) of the Act, raised by the learned Counsel for petitioner, it is contended that similar questions were raised before the Delhi High Court in the case of Sri Chand and Anr. Vs. State of NCT of Delhi in W.P.(C) 6155/2012 and C.M. No.16573/2012 which was decided on 30.09.2014. The learned Counsel for the respondents would also submit that the petitioner should not be permitted to raise new grounds which were not canvassed before the Labour Court.
8. Heard the learned Counsels and perused the writ papers along with the impugned order.
9. During the course of these proceedings, the petitioner was directed to produce details by way of an affidavit of the Managing Director of the petitioner-Company as to whether the office of the petitioner-Company is situated at Peenya or the actual place where the Head Office is situated. In that regard, the affidavit dated 30.07.2018 filed by the Managing Director reiterates that the factory and registered office is situated at No.8/2, Gangadharnapalya, Kasaba Hobli, Nelamangala, Bengaluru-562 123 and there is no Head Office at Post Box No.5801, 45-A, 2nd Phase, Peenya Industrial Area, Bengaluru-560 058. In that regard, the Memorandum and Articles of Association of the petitioner-Company along with Form No.MR-1 which contains the Corporate Identity Number (CIN) and the name and address of the registered office of the Company is also produced. However, along with the counter- affidavit filed by the respondents, a letter addressed by the Company to the respondent-workmen have been produced. In both the letters dated 03.08.2015, at the header in the letter head, the office address as stated in the affidavit of the Managing Director is printed. But at the bottom, the address of the Head Office is shown as Post Box No.5801, 45-A, 2nd Phase, Peenya Industrial Area, Bengaluru-560 058. The affidavit of the Managing Director is silent in this regard.
10. As regards the amendment brought to Section 11 (10) of the I.D. Act, this Court is in respectful agreement with the decision of the Delhi High Court in the case of Sri Chand (supra), where it is held that the Industrial Disputes Act, 1947 is a welfare legislation. By this Act, a cheaper procedure has been provided for the welfare of the workmen. If the respondents do not do their duties as prescribed under Section 33C(1) of the Act, then the workmen have to approach the Civil Court for implementation of the award which will defeat the very purpose of the Act. Thus the workmen have to adopt an expensive procedure by engaging counsels to attend to Court proceedings.
11. Reference is also made to another decision of the Punjab and Haryana High Court in W.P.(C)No.5648/2011 which was disposed of on 22.05.2012, wherein it was held as under:
“10. Record produced before us does not suggest that provisions of sub-sections (9) and (10) to Section 11 of the 1947 Act are in derogation or suppression of existing provisions made under Sections 15, 17, 17-A, 29 and 33-C of the 1947 Act, therefore, Labour Court or Tribunal shall prepare the award in duplicate and shall transmit the award to the civil Court as well as to the appropriate Government for publication in accordance with Sections 15 and 17 of the 1947 Act so that workman can exercise his option either to approach the civil Court for its execution under Section 11 or to approach the authority under Sections 29 or 33-C of the 1947 Act.
11. In view of the observations made hereinabove, sub-sections (9) and (10) of Section 11 of the 1947 Act cannot be held to be in derogation or suppression of any other provision of the 1947 Act and same are in addition to existing provisions, therefore, their vires are upheld”.
12. At paragraph No.8, in Sri Chand (supra), it is observed that the Labour Department of the Government of NCT of Delhi, has clarified the position that even after the amendments to Section 11, the workmen can still file claims under Section 33 of the 1947 Act. It was therefore held that the petitioner still has the option to elect one of the two remedies to execute the award i.e., to proceed under Section 11(10) of the Act or under Section 33C(1). This position cannot be disputed since even after the amendment is brought to Section 11, Section 33C(1), (2) continue in the statute book.
13. A decision of a co-ordinate Bench in the case of Vimarsh Development Solutions Pvt. Ltd. Vs. Sylvia Karpagam and Another in W.P.No.26839/2017 which was decided on 02.02.2018 would also be beneficial to be noticed. In that case too, an interlocutory application was filed by the Management seeking dismissal of the application under Section 33C(2) on the ground of want of jurisdiction. This Court, while referring to the decision of the Apex Court in the case of D.P.Maheshwari Vs. Delhi Administration and Others reported in 1983 (4) SCC 293 held as follows:
“9. The observations made by the Hon’ble Court is as much applicable to an industrial dispute raised under Section 10 (1) of the Act, as it will be applicable to an application filed under Section 33-C(2) of the Act. After all, in order to deny the payment to a workman who has filed an application under Section 33-C(2) of the Act, a clever Management can raise a preliminary issue, and pray that the issue should be decided at the first instance. Having the issue posted as preliminary issue, the Management can take recourse to filing an appeal before this Court, and eventually approach the Hon’ble Supreme Court by filing a Special Leave Petition. Thus, the Management can drag the workman through a roller-coaster ride of endless litigation. Meanwhile, the workman would continue to hopelessly hope that justice would be done while he/she is left out in the cold. Obviously, this was not the intention of the Act. Since an application under Section 33-C (2) of the Act is like an execution proceeding, it should be decided as expeditiously as possible in order to grant, or refuse to grant the relief prayed for by the workman. In fact, it is in the interest of industrial peace to decide the industrial dispute as soon as possible so as to prevent industrial harmony from being damaged. Therefore, the observation made in the case of D. P. Maheshwari (supra) equally applies to a case filed under Section 33-C(2) of the Act.”
14. The learned Counsel for the petitioner-Company has cited few of the judgments of the Hon’ble Supreme Court of India which pertain to nullity of a decree which is passed by a Court without jurisdiction. In the opinion of this Court, the decisions cited by the learned Counsel have no bearing in the present case.
15. In the light of the above, this Court is of the opinion that this petition is bereft of any merit. The petitioner- Company is in no way prejudiced if the application under Section 33C(2) is heard and disposed of by the Labour Court, at Bengaluru City. In fact, even the Court of the Principal District and Sessions Judge, Bengaluru Rural District is situated at Bengaluru City, therefore, the objection raised by the petitioner-Company is frivolous and thus, rightly rejected by the Labour Court.
As a result, the petition fails and is accordingly dismissed.
This Court is also of the considered opinion that the petitioner-Company should be saddled with costs for filing frivolous petition. Therefore, this Court directs the petitioner- Company to pay Rs.5,000/- (Rupees five thousand only) each to the two respondents, before the Labour Court.
It is ordered accordingly.
JT/-
SD/- JUDGE