IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 05::11::2008 Coram: The Honourable Mr.A.K.GANGULY, CHIEF JUSTICE and The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA Writ Appeal No. 1195 of 2008 and M.P.No.1 of 2008 Pradeep Stainless Steel India Pvt. Ltd., C-3, Phase II, MEPZ-SEZ, Tambaram, Chennai – 600 045. Rep. by its Chairman, Mr.B.Ramesh Chand … Appellant/Petitioner Vs. 1. The Joint Commissioner of Labour (Conciliation) Labour Welfare Board Buildings, 6th Floor, DMS Complex, Teynampet, Chennai – 600 006. 2. The General Secretary, Chennai Yettrumathi Valaga Uzhiyargal Matrum Pothu Thozhilalar Sangam, Old No.11, New No.15, Kannan Street, Kadaperi, Tambaram, Chennai – 600 045. … Respondents Appeal filed under Clause 15 of the Letters Patent against the order passed in W.P.No. 15868 of 2008 dated 23.9.2008. W.P.15868/2008: Petition filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus calling for the records pertaining to the conciliation proceeding initiated by the 1st respondent vide proceedings No.D/5036/2036 dated 28.11.2007 and quash the same and consequently forbear the 1st respondent from holding conciliation proceedings. For Appellant :::: Mr.Vijay Narayanan, Senior Counsel for Mr.K.V.Shanmuganathan https://hcservices.ecourts.gov.in/hcservices/ For Respondent 2 :::: Mr.N.G.R.Prasad (Caveator) for Mr.V.Stalin J U D G M E N T THE HON’BLE CHIEF JUSTICE This appeal has been filed by the writ petitioner challenging the judgment and order dated 23rd September, 2008 passed by a learned Judge of the writ court whereby the writ petition was disposed of without granting the prayers therein. 2. The case in the writ petition is that the writ petitioner- appellant is a company engaged in the business of manufacturing and exporting stainless steel utensils, kitchen wares, etc. and is situate in Madras Export Processing Zone, Tambaram, Chennai, and about 450 employees are engaged in its factory. The said company received a strike notice dated 21.11.2007 raising certain demands from Chennai Yetrumathi Valaga Uzhiyargal Matrum Pothu Thozhilalar Sanga, the second respondent herein, under Section 22(1)(c) of the Industrial Disputes Act (hereinafter referred to as ‘ the said Act’). On the date of receipt of the said notice i.e., on 23.11.2007, the petitioner was not notified as an industry engaged in Public Utility Service. After the strike notice was issued, the conciliation officer-the first respondent, issued a notice dated 29.11.2007 to the petitioner asking them to appear in the conciliation proceedings, which was proposed to be held on 04.12.2007. Thereafter the first respondent issued another notice to the petitioner asking them not to alter the condition of service of the employees, pending conciliation. It is alleged that notice of the conciliation proceedings has been issued by the first respondent without proper application of mind, as the second respondent-union had issued only 15 days notice under Section 22(1)(c) of the Act and failed to give particulars as per Rule 59(1)(c) of the and Rule 59(1)(d) of the Tamil Nadu Industrial Disputes Rules, 1958, and the strike notice was not signed by the two office bearers of the union as per Rule 59(2)(b)(ii) of the Tamil Nadu Industrial Dispute Rules, 1958. Therefore, it was alleged that the strike notice was not legally valid and without examining the validity of the said strike notice, the conciliation proceeding was initiated. The further stand in the writ petition is that initiation of conciliation proceedings imposes certain restrictions on the management under Section 33 of the Act during the pendency of the conciliation proceedings, and it has been stated that there is hardly any existence or any apprehension of an industrial dispute between the petitioner and its workers, in as much as most of the demand of the second respondent union are frivolous. 3. The petitioner further took a stand that after receiving the conciliation notice it has sent a detailed representation on 11.12.2007 to the first respondent raising their objection against initiation of conciliation proceedings pursuant to the invalid strike notice. But https://hcservices.ecourts.gov.in/hcservices/ despite the said objection, the first respondent was insisting on the petitioner to participate in the conciliation proceedings. It is also stated that 54 workers belonging to the second respondent indulged in violence and attacked the Managing Director of the petitioner company on 23.01.2008, as a result of which he sustained grievous injuries and was admitted in a hospital for three days. Some other acts of violence were also committed against the Supervisor and Directors of the factory. The members of the second respondent union also abused and threatened the willing workmen from discharging their duties. As a result of such illegal activities of the members of the second respondent union, the situation became tense and the petitioner could not hold any formal enquiry and the services of 54 workmen were terminated. The petitioner thereafter filed a petition seeking approval of its action in effecting termination of the service of those workmen. Those applications are pending. In the meantime, the petitioner also made a representation to the first respondent on 23.06.2008 to drop the conciliation proceedings. 4. In this matter, the second respondent has filed a counter. In the counter, one of the grievances raised is that the workers are being paid less than the normal wages and are forced to work over time without any extra payment. Regular preventive and safety measures are not taken and many workers have lost their fingers, hands and they are not provided E.S.I and canteen facilities. As the long standing grievances of the workers were not met, a strike notice was issued under Section 22 (1)(c) of the Act and the said notice is legal and valid. The stand in the counter is that the company is coming under Public Utility Service. The first respondent advised the Union not to go on strike and also asked the management not to alter the service conditions of workers pending conciliation. In terms of the said directions of the conciliation officer, the workers did not go on strike, but the petitioner company altered the condition by suspending and dismissing the workers contrary to the direction of the first respondent. 5. On these facts, the learned Judge of the writ court came to a finding that pursuant to the strike notice dated 21.11.2007, the members of the second respondent have not resorted to strike, and therefore, there is no necessity to decide as to whether the conciliation proceedings initiated by notice dated 29.11.2007 is valid or not. The learned Judge further held that under Section 12(1) of the said Act even on an apprehension or on the existence of dispute, it is open to the conciliation officer to hold conciliation proceedings and it is nobody’s case that that there are no disputes, and disputes have been raised by the second respondent as early as on 4.5.2007 and the petitioner company has already approached the first respondent seeking approval under Section 33 of the said Act for termination of service of some of the members of the second respondent. Holding so, the learned Judge disposed of the writ petition with a direction upon the first respondent to decide all the issues pertaining not only to the general demands raised by the second respondent on 4.5.2007, but also the validity of the strike notice issued by the second respondent under Section 22(1) of the said Act and the implication of Section 20(1) of the said Act on such https://hcservices.ecourts.gov.in/hcservices/ strike notice. A direction has also been given to the first respondent to decide whether under such situation approval under Section 33(2)(b) of the said Act is required in respect of termination of the members of the second respondent. 6. Learned counsel for the petitioner-appellant however has taken before this Court a completely different stand by urging that the petitioner company is a Public Utility concern. But the stand taken in the writ petition and also before the learned Judge of the writ court, as recorded in his judgment, was that on the date of the issuance of strike notice, the petitioner company was not a Public Utility Service. Learned counsel, however, assailed the legality of the notice initiating conciliation on the basis of the judgment of the Supreme Court in the case of Management, Essorpe Mills Limited v. Presiding Officer, Labour Court and others reported in JT 2008 (5) SC 452. The facts in the said case are completely different. 7. In the case of Essorpe Mills, the respondent-workmen actually went on strike, which was found illegal and they were dismissed from service, after a disciplinary enquiry was held. Then petitions were filed under Section 2A of the said Act for reinstatement with backwages and continuity of service. On the basis of the said proceeding, the Labour Court held that the strike was illegal, but exercising its powers under Section 11-A of the said Act, the Labour Court substituted the punishment for dismissal by order of discharge and awarded compensation to each workmen. The workmen filed writ petition before a learned single Judge of the High Court inter alia on the ground that dismissal was effected without complying with Section 33(2)(b) of the said Act, and the learned Judge allowed the writ petition on the ground of non- compliance with Section 33(2)(b) of the said Act, and directed re- instatement of the workmen with full backwages and continuity of service inter alia on the ground that the copy of the strike notice was sent to the Conciliation Officer and therefore, the conciliation proceedings were pending on the date of dismissal and the dismissal was effected without the approval of the Conciliation Officer in terms of Section 33 of the said Act. On appeal being filed by the Management, the Division Bench of the High Court dismissed the appeal holding inter alia that the judgment of the Apex Court do not make any distinction between proceeding pending before the Conciliation Officer and those pending before an Industrial Tribunal. Against that judgment an SLP was filed before the Hon’ble Supreme Court. 8. The Hon’ble Supreme Court held that as the date of notice of strike was on 14th March 1991 and the proposed strike was to be held on 24th March, 1991, it cannot be treated to be a notice within the meaning of Section 22(1)(b) of the said Act, inasmuch as six weeks notice is to be given before proposed strike. The Hon’ble Supreme Court held that the workmen cannot go on strike within six weeks of the notice in terms of Section 22(1)(b) of the said Act and conciliation proceeding was not held in terms of the requirement of the law. The Supreme Court, therefore, held since there was no conciliation proceeding in terms of https://hcservices.ecourts.gov.in/hcservices/ the legal provision, Section 33 will not be attracted and there is no requirement of seeking permission from the Conciliation Officer for the dismissal of the workmen and the impugned judgment of the High Court was set aside. 9. In Essorpe Mills (supra), the Supreme Court recorded certain facts on which the judgment was rendered. The most significant fact was that the workmen went to strike on 08.11.1990. “Notice was given about the proposed strike after the strike” (See Para – 12, P.455). In the instant case, even though, the strike notice has been given by the workmen on 21.11.2007, but the workmen, in terms of the suggestion of the Conciliation officer, did not go on a strike. 10. Section 22(1) of the said Act runs as under: - “Prohibition of strikes and lock-outs: - (1)No person employed in a public utility service shall go on strike, in breach of contract- (a)without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or (c)within fourteen days of giving such notice; or (e)before the expiry of the date of strike specified in any such notice as aforesaid; or (g)during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.” 11. The Hon’ble Supreme Court held that different stages enumerated by Section 22(1) of the said Act are as follows: - (See Para – 12, Page 455) “ (i) Advance notice of 6 weeks. (ii)14 days given to the employer to consider the notice; (iii)the workmen giving the notice cannot go on strike before the indicated date of strike. (iv) Pendency of any conciliation proceedings.” 12. In Essorpe Mills (supra), the learned Judges held that an earlier illegal strike is not remedied by a subsequent strike in view of the provisions of Section 22. It was further held if such a stand is accepted it will go against the requirement of Section 22, which aims at stalling action for illegal strike. https://hcservices.ecourts.gov.in/hcservices/ 13. In paragraphs 19 and 20 of the judgment, the learned Judges of the Supreme Court interpreted Section 22(1)(a) and (b), and those findings are set out below:- “19. Somewhat unacceptable plea has been taken by the respondents 2 to 23 that in terms of Section 22(1)(b) after 14 days of giving the notice, the workmen can go on strike. If this plea is accepted six weeks’ time stipulated in Section 22(1)(a) becomes redundant. The expression ‘giving such notice’ as appearing in Section 22(1)(b) refers to the notice under Section 22(1)(a). Obviously, therefore, the workmen cannot go on strike within six weeks notice in terms of Section 22(1)(a) and 14 days thereafter in terms of Section 22(1)(b). 20. The expression ‘such notice’ refers to six weeks advance notice. Earlier illegal strike is not remedied by a subsequent strike as provided in Section 22. If such stand is accepted it will go against the requirement of Section 22 which aims at stalling action for illegal strike.” 14. In the instant case, the employees did not go on a strike at all so there is no question of illegal strike, pursuant to the strike notice. This is the fundamental factual difference between the instant case and the case in Essorpe Mills (supra). Therefore, the decision in Essorpe Mills cannot be applied to the facts of the present case. 15. In the instant case, the validity of the conciliation proceeding has been challenged, though the conciliation proceeding has been defined under Section 2(e) of the Act very broadly. Section 2(e) of the Act runs as under:- “2(e). ‘Conciliation proceeding’ means any proceeding held by a conciliation officer or Board under this Act.” 16. Section 12(1) of the said Act authorizes a conciliation officer to hold a conciliation proceeding in the prescribed manner, where any industrial dispute exists or is apprehended, or where the dispute relates to a public utility service and a notice under Section 22 has been given. 17. In sub Section (2) of Section 12 it is provided that the conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. 18. Sub Section (3) of Section 12 provides that if a settlement is arrived at the conciliation officer shall send a report to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. But if no settlement is arrived https://hcservices.ecourts.gov.in/hcservices/ at, the conciliation officer, under sub Sections (4) and (5), as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. 19. Section 12 of the said Act has some other sub Sections also, but we are not concerned with those sub Sections here. 20. Therefore, in a case where notice of strike has been given under Section 22, in respect of a public utility service, the holding of conciliation proceeding is a must, in view of the provisions under Section 12 (1) of the said Act. 21. Apart from that it cannot be disputed and has not been disputed before this Court that in the instant case industrial dispute exists between the management of the petitioner company and the members of the second respondent. 22. It is well known that the functions of a conciliation officer, strictly speaking, are not adjudicative in nature, but are administrative and are incidental to industrial adjudication. Therefore, unless a conciliation officer has committed any error of law in refusing to take up a dispute for conciliation, his actions cannot normally be interfered with in a writ proceeding [See Paints Employees’ Union Vs. M.D.Nail, 1966 (1) LLJ 579 (Bom.)]. Here the Conciliation Officer is trying to conciliate between the parties and the second respondent has responded to his request by not going on strike. 23. It is well known that one of the main purposes of conciliation is to ascertain the facts constituting the dispute. Therefore, in respect of any such endeavour on the part of a conciliation officer, the writ Court should not interfere by stalling the conciliation proceedings. In the instant case, the legality of the strike notice is not an issue, since workers did not go for a strike. Therefore, the ratio in the case of Essorpe Mills is not attracted in the facts and circumstances of this case. 24. We, therefore, do not find any merit in this appeal. Accordingly, this appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ Sm/pv Copy to: The Joint Commissioner of Labour (Conciliation) Labour Welfare Board Buildings, 6th Floor, DMS Complex, Teynampet, Chennai – 600 006. 1 cc to Mr.v.Stalin, Advocate, Sr.No.61361 1 cc to Mr.K.v.Shanmuganathan, Advocate, Sr.No.61360 Pre-delivery Judgment in W.A.No.1195 of 2008 VSM(CO) EM/14.11.08 https://hcservices.ecourts.gov.in/hcservices/