IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.4179 OF 2015 (L-RES) C/W WRIT PETITION NO.4176 OF 2015 (L-TER) IN W.P.NO.4179/2015 BETWEEN:
M/S. PEARLITE LINERS PVT. LTD., N.T.ROAD, P.B.NO.100, SHIVAMOGGA – 577 202.
REPRESENTED BY ITS DIRECTOR – FINANCE AND ADMN., SRI.M.VENUGOPAL.
(BY SRI.SOMASHEKAR, ADVOCATE) AND:
1. SRI.R.NAGARAJA, S/O SRI.RAJARAM, MAJOR, C/O M/S. VINAYAKA TELELINKS, SRI.RAMANAGAR MAIN ROAD, GOPALA EXTENSION, SHIVAMOGGA CITY – 577 202.
2. THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF KARNATAKA, DEPARTMENT OF LABOUR, 3RD FLOOR, VIKASA SOUDHA, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.
(BY SRI.K.GOVINDRAJ, ADVOCATE FOR R1; SRI.M.Y.RAMESH JOIS, AGA FOR R2) ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.02.2013 AT ANNEXURE – G PASSED BY INDUSTRIAL TRIBUNAL, MYSORE, IN SERIAL APPLICATION NO.4/2009 IN REF.NO.82/2009 AND FURTHER DIRECT THE R2 TO TRANSFER THE SAME TO THE ADDL. INDUSTRIAL TRIBUNAL, BANGALORE.
IN W.P.NO.4176/2015 BETWEEN:
M/S. PEARLITE LINERS PVT. LTD., N.T.ROAD, P.B.NO.100, SHIVAMOGGA – 577 202.
REPRESENTED BY ITS DIRECTOR – FINANCE AND ADMN., SRI.M.VENUGOPAL.
(BY SRI.SOMASHEKAR, ADVOCATE) AND:
1. SRI.BHAVANI RAO N.S., SINCE DECEASED LRS 1(a) SMT. NIRMALA BAI, W/O LATE SRI.BHAVANI RAO N.S., MAJOR, 1(b) SRI.N.B.RAGHAVENDRA, S/O LATE SRI.BHAVANI RAO N.S., AGED 36 YEARS, 1(c) SRI.N.B.SRIKANTHA, S/O LATE SRI.BHAVANI RAO N.S., AGED 34 YEARS, 1(d) SRI.N.B.RAJESHA, S/O LATE SRI.BHAVANI RAO N.S., AGED 32 YEARS, 1(e) SMT. NAVEENA, W/O GANESH RAO, D/O LATE SRI.BHAVANI RAO N.S., AGED 30 YEARS, RESPONDENT NO.1(a) TO 1(e) ALL ARE RESIDING AT ... PETITIONER VITAGONDANA KOPPA, HARANAHALLI POST, SHIVAMOGGA DISTRICT.
2. THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF KARNATAKA, DEPARTMENT OF LABOUR, 3RD FLOOR, VIKASA SOUDHA, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY.
(BY SRI.K.GOVINDRAJ, ADVOCATE FOR R1; SRI.M.Y.RAMESH JOIS, AGA FOR R2) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.02.2013 AT ANNEXURE – G PASSED BY INDUSTRIAL TRIBUNAL, MYSORE, IN SERIAL APPLICATION NO.8/2009 AND FURTHER DIRECT THE R2 TO TRANSFER THE SAME TO THE ADDL. INDUSTRIAL TRIBUNAL, BANGALORE.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the management of an industry is invoking the writ jurisdiction of this Court for assailing the order dated 28.02.2013, a copy whereof is at Annexure – G, whereby the Industrial Tribunal, Mysore, has returned it’s Serial Application No.4/2009 in Reference No.82/2009, on the ground that it lacks the territorial jurisdiction; the operative portion of the said order reads as under:-
“Return the Application to the Applicant for presentation before the appropriate Industrial Tribunal as this Tribunal has no territorial jurisdiction to adjudicate this dispute.”
2. After service of notice, the respondent No.1 – workman having entered appearance through his counsel resist the writ petition.
3. Since the fact matrix is similar and common, question of law arises in consideration, both the writ petitions are taken up for hearing & disposal together by this common judgment, with the concurrence of the Bar.
4. Learned counsel for the Capital submits that whenever the reference itself is transferred from one Court to another by the appropriate Court in exercise of power under Section 33 (B), the application filed under Section 33 (2) (b) of the Industrial Dispute Act, 1947 (hereafter ‘Act’ for short), also needs to follow the transferred filed to the transferee Court/Tribunal.
5. Per contra, the learned counsel for the Labour contends that the impugned order cannot be faltered inasmuch as, after the reference is transferred, the original Court from which the transfer is made loses competence to treat the Serial Application and therefore, it has rightfully returned the same; even otherwise, it is open to the petitioner to make appropriate application before the transferee tribunal.
6. Having heard the learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioner for the following reasons:
(a) Section 33(2)(b) of the I.D.Act reads as under:
“S.33(2)(b): for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceedings is pending for approval of the action taken by the employer”.
The provisions of sections 22 & 23 suspend the use of traditional weapons of self help available to the parties in the process of collective bargaining while section 33 restricts the exercises of employer’s prerogatives vis-a-vis the workmen concerned in the dispute; the provisions of Section 33 introduce a fundamental change in the law of master & servant; sub-section (2) of sec.33 deals with alteration in the conditions of service or the punishment of the workman concerned in the pending dispute; but in regard to any matter not connected with such pending dispute, though this sub- section places a kind of ban in regard to matters not connected with the pending dispute, it leaves some freedom with the employer to discharge or dismiss a workman by paying wages for one month and making an application to the Court/Tribunal dealing with the pending proceedings for its approval of the action taken; the Apex Court in LORD KRISHNA TEXTILE MILLS LTD., vs. WORKMEN, AIR 1961 SC 860 has differentiated the scope and operation of sub- sections (1) & (2) of sec. 33; sub-section (1) speaks of previous permission, whereas sub-section (2) speaks of ex post facto approval.
(b) Section 33(2)(b) permits an employer to discharge or punish a workman by way of dismissal or otherwise for any act or misconduct not connected with the dispute pending before the authority, in accordance with the Standing Orders applicable to a workman concerned, in such dispute and in the absence of the Standing Orders in accordance with the terms of the contract whether express or implied. The proviso to this clause requires the employer, in cases of discharge or punishment by way of dismissal or otherwise, to pay to the workman concerned, wages for one month and to make an application to the authority before which the proceeding is pending for ‘approval’ of the action taken. The opening words of the proviso to sec.33(2)(b) require the employer to perform its conditions in the manner and at the time as laid down therein. The proviso contemplates three things, namely: (i) action of discharge or dismissal; (ii) payment of wages for one month; and (iii) making of an application for ‘approval’ of the action taken. These conditions are of a mandatory nature and if any of these has not been complied with by the employer, the application for ‘approval’ would be liable to be dismissed. The authority before whom the application is made, in the first instance, is required to examine as to whether these conditions have been fulfilled. The compliance with these conditions is a condition precedent for dealing with an application for approval on merits by the tribunal. In other words, it is only on being satisfied that these conditions have been simultaneously complied with, that the tribunal will consider the application for grant of approval on merits. If, therefore, the action of discharge or dismissal, payment of wages for one month and filing of the application for approval are not simultaneous and part of the same transaction, the tribunal will reject the application straightaway without going into the merits of the case for approval.
(c) Section 33B(1) reads as under:
“33B. Power to transfer certain proceedings. – (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred:
Provided that where a proceeding under section 33 or section 33-A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court”.
Before the amendment of the Act by the Industrial Disputes (Amendment & Miscellaneous Provisions) Act, 1956, there was no provision in the Act empowering the Government to withdraw, cancel or supersede an order of reference, after having made the reference to an authority, or to transfer the same to another. Section 33B is to be read along with the definition of a ‘tribunal’ in s.2(a) of the Act, which defines a ‘tribunal’ to mean ‘an industrial tribunal constituted under s.7A and includes an industrial tribunal constituted before 10 March 1957 under this Act’. The result of the combined reading of these provisions is that in respect of proceedings pending before a tribunal constituted before 10 March 1957, the Government has power to transfer them from that date to any other tribunal.
(d) The text of the proviso to sec.33B(1) reproduced above needs to be interpreted keeping in view the principles of interpretation of proviso to the main sections; it is a settled principle of statutory construction that ordinarily a proviso is usually construed as operating to qualify that which precedes it; when one finds a proviso to a section the natural presumption is that, but for the proviso the enacting part of the section would have included the subject matter of the proviso vide BENNION ON STATUTORY INTERPRETATION, Sixth Edition, Lexis Nexis page 675; if this is kept in view the proviso to the said section empowers the appropriate Government to transfer any proceeding inter alia pending u/s.33, whether the other proceeding under the Act is transferred or not; however, when the reference proceeding itself is transferred, then all the serial applications filed in the said reference proceeding need to tail the transferred file; an argument to the contrary would offend the logic and common sense employed in sec.33B; if the main proceeding is transferred to other court and the serial proceeding is retained in the original court, there would be multiplicity of fora before which the capital & the labour concurrently plead before; this cannot be the object of the Act; such an eventuality would put the labour class to unnecessary expenses and enormous hardships. This having not being kept in mind, the impugned order is infected with error apparent on the face of the record and therefore exercise of writ jurisdiction is warranted for setting the same right.
In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned order; a Writ of Mandamus issued to the 2nd respondent to transfer petitioner’s subject Serial Application filed u/s.33(2)(b) to the Additional Industrial Tribunal, Bengaluru, which had heard and disposed off the case in Reference No.82/2009.
All contentions of the parties are kept open. Costs made easy.
Sd/- JUDGE MH/Snb