IN THE HIGH COURT OF BOMBAY AT GOA *** WRIT PETITION NO. 106 OF 1999 The Goa MRF Employees’ Union, a registered trade union, represented by its President, Shri Rohidas Naik, with its registered office at Saidham Dhavalimol, P.O. Quelem, Ponda, 403 401. ... Petitioner Versus 1. MRF Ltd., a company incorporated under the Companies Act, 1956, having its factory at Post Box No.1, Ponda, Goa, 403 401, through its Senior General Manager, E. M. Mathai, and 2. The Industrial Tribunal of Goa, Junta House, Panaji, Goa. ... Respondents. Mr. Arshad Shaikh and Mr. V. Menezes, advocates for the petitioner. Mr. G. K. Sardessai and Mr. S. G. Bhobe, advocates for respondent no.1. CORAM : S. J. VAZIFDAR,J. DATE OF RESERVING THE JUDGMENT : 28th March, 2003. DATE OF PRONOUNCING THE JUDGMENT : 2nd May, 2003. JUDGMENT The petition raises an interesting question of law of considerable importance. Does the Industrial Tribunal have the power to grant interim reliefs, including in the nature of injunctions, in a complaint filed before it under section 33A of the Industrial Disputes Act, 1947? - 2 - 2. The petitioner is a registered Trade Union. Its members are workmen employed by respondent no.1. Respondent no. 2 is the Presiding Officer of the Industrial Tribunal who passed the impugned Order. 3. The settlement arrived at between the parties on 20th November, 1991, was due to expire on 30th September, 1995. The petitioner had served a notice of termination dated 29th July, 1995, on respondent no.1. By a letter dated 15th February, 1996, the petitioner as the sole bargaining agent of the workmen of respondent no.1 served its Charter of Demands on respondent no.1. The Charter of Demands was in respect of conditions of service of the workmen of respondent no.1. Respondent no.1 in turn served its Charter of Demands by a letter dated 7th February, 1996. Thereupon negotiations ensued between the petitioner and respondent no.1. The same however did not culminate into a settlement. 4. The petitioner therefore by its letter dated 29th August, 1996, called upon the Labour Commissioner to intervene in the dispute and to commence conciliation proceedings. The petitioner also forwarded a justification statement alongwith the said letter. The Labour Commissioner in Goa incidentally is also the Ex-Officio Secretary of the Government for the purpose of making references under Section 10(1) of the Industrial Disputes - 3 - Act, 1947, of disputes where conciliation has failed and the failure report is forwarded. The Labour Commissioner made a failure report on 28th October, 1996. As he failed to make a reference the petitioner filed Writ Petition No.135 of 1997 before this Court seeking a Writ of Mandamus directing the Labour Commissioner in his said capacity as the Ex-officio Secretary of the Government, to refer the dispute under Section 10(1), to the Industrial Tribunal for adjudication. The petition was disposed of by an order dated 9th June, 1997, recording the statement made on behalf of respondent no.1 therein that the dispute had been referred to the Industrial Tribunal by an order dated 5th June, 1997. The dispute is pending adjudication before the Industrial Tribunal. 5. The petitioner’s case is that in the meanwhile, to pressurize the workmen, respondent no.1 started illegally changing their service conditions to their prejudice. The petitioner by a letter dated 20th August, 1997, called upon respondent no.1 to refrain from going ahead with the same. It is not necessary for me to consider whether or not respondent no.1 in fact altered or changed the conditions of service of its workmen to their prejudice. This is a question of fact which must be decided by the Tribunal. For the purpose of this judgment counsel are agreed that - 4 - the judgment be confined to the question of law and proceeded therefore on the basis that the changes are to the prejudice of the workmen. 6. Respondent no.1 having refused to withdraw the changes the petitioner filed a complaint under Section 33 A of the Industrial Disputes Act inter-alia for a declaration that respondent no.1 had illegally changed the service conditions of the workmen and for a direction calling upon respondent no.1 to cease and desist from changing the service conditions of the workmen and not to implement the seven-day running system on the departments hitherto run on a six-day Sunday off system. Prayer (IV) of the application was for interim reliefs restraining respondent no.1, pending the hearing and final disposal of the complaint, from running the departments hitherto run on a six-days Sunday off system in the seven-day running system and to further restrain the respondents from making any changes in the service conditions as set out in para 23 or at all. 7. The Industrial Tribunal by the impugned Order dated 3rd September, 1998, dismissed the petitioner’s application for interim reliefs. Relying upon a judgment of the Kerala High Court in Dhanalakshmi Bank Ltd. vs. Dhanalakshmi Bank Ltd. vs. Dhanalakshmi Bank Ltd. vs. Parameswara Menon, 1980 II LLJ 45, Parameswara Menon, 1980 II LLJ 45, Parameswara Menon, 1980 II LLJ 45, the Tribunal held that it had no power to grant the interim reliefs sought as they - 5 - were in the nature of injunctions and that the provisions of the Act do not confer powers on the Tribunal to grant such orders. 8. As the decision of the Industrial Tribunal is based solely on the judgment of the Kerala High Court in Dhanalakshmi Bank Ltd. vs. Parameswara Menon, 1980 II LLJ Dhanalakshmi Bank Ltd. vs. Parameswara Menon, 1980 II LLJ Dhanalakshmi Bank Ltd. vs. Parameswara Menon, 1980 II LLJ 45, 45, 45, I will refer to it after dealing with the other judgments. Before dealing with the judgments, it is necessary to refer to Sections 10(4) and 33A of the Act which are as under:- "S.10(4): S.10(4): S.10(4): Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto. S.33-A. S.33-A. S.33-A. Special provision for adjudication Special provision for adjudication Special provision for adjudication as as as to whether conditions of service, etc., to whether conditions of service, etc., to whether conditions of service, etc., changed changed changed during pendency of proceedings. - during pendency of proceedings. - during pendency of proceedings. - Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner, - (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and (b) to such arbitrator, Labour Court, - 6 - Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly." 9(a). In Kamarhatty Company Ltd. vs. Ushinath Kamarhatty Company Ltd. vs. Ushinath Kamarhatty Company Ltd. vs. Ushinath Pakrashi, 1959 II LLJ 556 (S.C.) Pakrashi, 1959 II LLJ 556 (S.C.) Pakrashi, 1959 II LLJ 556 (S.C.), there was a dispute pending before the Industrial Tribunal between a number of jute mills in West Bengal and their employees, including the appellant. During the pendency of that dispute, the appellant laid off the respondent on the ground that the ration shop maintained by the appellant in which the respondent worked was closed following the end of rationing and that the respondent, therefore, became surplus. Nine persons, including the respondent, were selected for retrenchment on the principle of "last come first go". The appellant applied under Section 33 of the Act to the Industrial Tribunal for permission to retrench the employees. Before that the respondent filed an application under Section 33A. The Tribunal came to the conclusion that the lay-off was justified. The respondent appealed successfully to the Appellate Tribunal. The permission to retrench the respondent was refused. The Supreme Court granted special leave limited only to the question whether an order of reinstatement can be made on an application under Section 33A. Answering the question in the affirmative, the Supreme Court held:- - 7 - "In our opinion, the answer to the limited question on which the special leave has been granted can only be one in view of the language of S.33A. That section lays down that where an employer contravenes the provision of S.33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention may make a complaint in writing to the tribunal and on receipt of such complaint the tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly. It is thus clear that a complaint under S.33A of the Act is as good as a reference under S.10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under S.10. It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman. In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore, a complaint under S.33A being in the nature of a dispute referred to a tribunal under S.10 of the Act, it is certainly within its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S.33." (emphasis supplied) (b). It is true that the specific question presently under consideration, was not argued before the Supreme Court. However, while considering Section 33 A, the Supreme Court in the sentence emphasized above, clearly held that the Tribunal has all the powers to deal with a complaint under Section 33A as it would have in dealing with a reference under Section 10. I am unable, therefore, to agree with Mr. Sardessai’s submission that the judgment must be - 8 - limited to mean that the Tribunal while dealing with a complaint under Section 33A has all the powers as it has while dealing with a reference under Section 10 only for the purpose of final adjudication and nothing more. (c). For reasons I shall state later, I have come to this conclusion even independent of this judgment. 10. The next question logically therefore, is whether while dealing with a reference under Section 10 the Tribunal has the power to grant interim reliefs including in the nature of injunctions. 11(a). In The Management Hotel Imperial, New The Management Hotel Imperial, New The Management Hotel Imperial, New Delhi & Ors. vs. Hotel Workers’ Union Delhi & Ors. vs. Hotel Workers’ Union Delhi & Ors. vs. Hotel Workers’ Union, AIR 1959 SC 1342 AIR 1959 SC 1342 AIR 1959 SC 1342, the Supreme Court dealt with a similar question. Three hotels and their employees were concerned in that case. In Hotel Imperial there was a reference under Section 10 of the Act in respect of a large number of matters, including the case of 22 workmen whom the management had decided to dismiss on 4th October, 1955. The reference however, did not refer to 19 workmen whom the management had decided to dismissed on 7th October, 1955. The dismissal of these nineteen workmen was eventually confirmed. These nineteen workmen in the meantime applied under Section 33A of the Act on the ground that they had been suspended without pay for an indefinite period and had thus been punished in - 9 - breach of Section 33 of the Act. No application was made by Hotel Imperial for permission to dismiss the nineteen workmen. In the case of all three hotels applications were filed on behalf of the workmen for interim reliefs directing that the employees be paid certain amounts. Interim reliefs were granted directing the hotels to pay certain amounts to the workmen. As pointed out by Mr. Sardessai, no injunction was granted. The three hotels filed appeals against the orders granting interim relief which were dismissed by the Labour Appellate Tribunal. Thereupon the hotels applied for special leave to appeal to the Supreme Court, which was granted. (b). One of the questions that fell for the consideration of the Supreme Court was whether the tribunal had the power to grant interim reliefs. Holding that under Section 10(4) the tribunal did have the power to grant interim reliefs, the Supreme Court observed thus:- "21. After a dispute is referred to the tribunal under S.10 of the Act, it is enjoined on it by S.15 to hold its proceeding expeditiously and on the conclusion thereof submit its award to the appropriate government. An ‘award’ is defined in S.2(b) of the Act as meaning ‘an interim or final determination by an Industrial Tribunal of any industrial dispute or of any question relating thereto’. Where an order referring an industrial dispute has been made specifying the points of dispute for adjudication, the - 10 - tribunal has to confine its adjudication to those points and matters incidental thereto; (S.10(4)). It is urged on behalf of the appellants that the tribunal in these cases had to confine itself to adjudicating on the points referred and that as the question of interim relief was not referred to it, it could not adjudicate upon that. We are of the opinion that there is no force in this argument, in view of the words ‘incidental thereto’ appearing in S.10(4). There can be no doubt that if, for example, question of reinstatement and/or compensation is referred to a tribunal for adjudication, the question of granting interim relief till the decision of the tribunal with respect to the same matter would be a matter incidental thereto under S.10(4) and need not be specifically referred in terms to the tribunal. Thus interim relief where it is admissible can be granted as a matter incidental to the main question referred to the tribunal without being itself referred in express terms." (emphasis supplied) After observing the difference between a final award, interim award and interim reliefs, the Supreme Court held:- "Interim relief, on the other hand, is granted under the power conferred on the tribunal under S.10(4) with respect to matters incidental to the points of dispute for adjudication." (c). It is true that the interim orders granted by the Tribunal as pointed out by Mr. Sardessai were not in the nature of injunctions. It is however, important to note that in the aforesaid paragraph the Supreme Court considered an example of where the "question of reinstatement" is referred to a tribunal for adjudication and held that the question of granting interim relief till the decision of the tribunal "with respect to the same", would be a matter incidental thereto under section 10(4). - 11 - The Supreme Court thus expressly held that interim relief in the nature of an injunction can be granted "where it is admissible". That this is so was held by the Supreme Court itself in Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, (1999) 6 SCC 275, (1999) 6 SCC 275, (1999) 6 SCC 275, which I shall refer to shortly. Whether the Tribunal ought to grant an injunction in a given case or of a particular nature is an altogether different question from whether the Tribunal has the power or jurisdiction to grant it. (d). To say the least, the Supreme Court in any view of the matter did not hold that monetary relief is the only interim relief that the tribunal can grant under Section 10(4). Nor did it hold that an injunction cannot be granted. (e). I am unable to agree with Mr. Sardessai’s submission that the observations of the Supreme Court are neither ratio nor obiter dicta. The question whether interim reliefs could be granted in proceedings under Section 10 or not squarely fell for consideration. The observations regarding the power to grant interim reliefs can hardly be said to be mere casual observations. They constitute at the very least, obiter dicta. Thus, in my view, the Supreme Court in the case of Hotel Imperial (supra), Hotel Imperial (supra), Hotel Imperial (supra), held that under Section 10(4) the tribunal has the power to - 12 - grant interim reliefs, including in the nature of injunctions. (f). The question whether an interim order is an award within the meaning of 2(b) of the Act and must, therefore, be published under Section 17 of the Act in order to make it enforceable, was expressly kept open in paragraph 23. Mr. Sardessai’s contention that the Supreme Court in paragraph 22 in fact held that an interim order is not an award under Section 2(b), is not correct. In paragraph 23, the Supreme Court clearly stated:- "We do not think it necessary to decide for the present purposes whether an order granting interim relief of this kind is an award within the meaning of S.2(b) and must therefore be published under S.17." For the purpose of this petition, it is not necessary for me to decide this question either and I would leave it open. 12(a). In The Delhi Cloth and General Mills Co., The Delhi Cloth and General Mills Co., The Delhi Cloth and General Mills Co., Ltd. vs. Shri Rameshwar Dayal & Anr. AIR 1961 SC 689 Ltd. vs. Shri Rameshwar Dayal & Anr. AIR 1961 SC 689 Ltd. vs. Shri Rameshwar Dayal & Anr. AIR 1961 SC 689, the respondent, an employee of the appellant, was transferred from the night shift to the day shift in accordance with the Standing Orders. At that time an industrial dispute was pending. The respondent Sharda Singh failed to report for work in the day shift and was marked absent. He reported for work on the night shift, - 13 - but was not allowed to work on the ground that he had been transferred to the day shift. The respondent thereafter made an application to the Industrial Tribunal under Section 33A of the Act contending that the aforesaid action amounted to an alteration in his conditions of service, which was prejudicial and detrimental to his interest and that as the alteration was made against the provisions of Section 33 of the Act, he applied for necessary reliefs from the tribunal under Section 33A of the Act. After having been given another opportunity, the appellant took disciplinary action against the respondent and he was ultimately dismissed. As the dispute was pending, the respondent contended that the permission of the Industrial Tribunal should have been taken before the order of dismissal was passed. In the meantime, Section 33 and Section 33A of the Act were amended with effect from 10th March, 1957. The amendment provided that where an employer intended to take action in regard to any matter connected with the dispute, or in regard to any misconduct connected with the dispute, he could only do so with the express permission in writing of the authority before which the dispute was pending. However, where the matter in regard to which the employer wanted to take action in accordance with the Standing Orders applicable to a workman was not connected with the dispute, or the misconduct for which action was proposed to be taken was not connected with the dispute, the employer could take such action as he thought - 14 - proper subject only to this, that in case of discharge or dismissal, one month’s wage should be paid and an application should be made to the tribunal before which the dispute was pending for approval of the action taken against the employee by the employer. The appellant acted under the amended provision. The respondent thereupon filed another application under Section 33A of the Act in which he complained that the appellant had terminated his service without the express permission of the tribunal and that this was a contravention of Section 33 of the Act. He therefore prayed for necessary interim reliefs. The tribunal granted an interim order directing the appellant to permit the respondent to work and that in the event of the appellant’s failing to permit him to work the respondent would be paid his full wages after he reported for duty. Ultimately, the application was dismissed due to a technical defect. After rectifying the same, the respondent filed another application identical to the earlier one. After certain proceedings which are not relevant for the present purpose, a similar interim relief was passed by the tribunal on the fresh application. This order was challenged by the appellant before the High Court. An alternative submission made by the appellant was that the tribunal had no jurisdiction to pass an interim order of reinstatement, or in lieu thereof, payment of full wages to the respondent even before considering the questions raised in the application under Section 33A of - 15 - the Act on the merits. The High Court held that the order of the tribunal granting interim reliefs was within its jurisdiction and was justified. (b). The Supreme Court held that the interim order was erroneous in law. It was held that where the tribunal is dealing with an application under Section 33A of the Act and the question before it is whether an order of dismissal is against the provisions of Section 33, it would be wrong in law for the tribunal to grant reinstatement, or full wages, in case the employer did not take the workmen back in its service as an interim measure. The Supreme Court in paragraph 7 held as under:- "(7) The same two points which were raised in the High Court have been urged before us. We are of opinion that it is not necessary in the present case to decide the first point because we have come to the conclusion that the interim order of May 16, 1957, is manifestly erroneous in law and cannot be supported. Apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award, (a point which was considered and left open by this Court in The The The Management, Management, Management, Hotel Imperial v. Hotel Hotel Imperial v. Hotel Hotel Imperial v. Hotel Workers’ Workers’ Workers’ Union, AIR 1959 SC 1342) Union, AIR 1959 SC 1342) Union, AIR 1959 SC 1342) we are of the opinion that where the tribunal is dealing with an application under S.33A of the Act and the question before it is whether an order of dismissal is against the provisions of S.33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did not take the workman back in its service as an interim measure. It is clear that in case of a complaint under S.33A based on dismissal against the provisions of S.33, the final order which the tribunal can pass in case it is in favour of the workman, - 16 - would be for reinstatement. That final order would be passed only if the employer fails to justify the dismissal before the tribunal, either by showing that proper domestic inquiry was