IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.09.2008 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI WRIT PETITION NO.15868 of 2008 and M.P.No.1 of 2008. Pradeep Stainless India Pvt. Ltd., C-3 Phase II, MEPZ-SEZ Tambaram Chennai 600 045 rep. By its Chairman Mr.B.Ramesh Chand. .. Petitioner vs. 1.The Joint Commissioner of Labour (Conciliations) 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 (Old name M.E.S. Road) Kadaperi, Tambaram Chennai 600 045. .. Respondents For petitioner : Mr.Vijay Narayan,Sr.Counsel for Mr.K.V.Shanmuganathan For respondents: Mr.A.Muthukumar Government Advocate for R.1 Mr.N.G.R.Prasad for Mr.V.Stalin for R.2 https://hcservices.ecourts.gov.in/hcservices/ Writ Petition presented under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the conciliation proceedings initiated by the 1st respondent vide proceedings No.D/5036/2036 dt. 28.11.207 and quash the same and consequently forbear the 1st respondent from holding conciliation proceedings. ORDER In this case, notice issued by the first respondent, Joint Commissioner of Labour (Conciliation), pursuant to the strike notice issued by the second respondent Sangam dated 21.11.2007, calling upon the petitioner/employer and the second respondent Sangam to participate in the conciliation is challenged by the petitioner/employer. 2. The challenge is mainly on the ground that the notice of strike issued by the second respondent Sangam dated 21.11.2007 is not in accordance with section 22 of the Industrial Disputes Act,1947 (in short, "the I.D.Act") and therefore, there cannot be any deemed conciliation under section 20 of the Act, even if it is taken that the petitioner company is a public utility service. It is the further case of the petitioner management that the first respondent without applying his mind to find out as to whether the petitioner remained as a public utility service on the date of strike notice issued by the second respondent, has mechanically issued the impugned notice which is a total non-application of mind. It is also the case of the petitioner that the termination of the employees during the said period cannot be said to be invalid on the ground that the strike notice itself is not valid in law and therefore, in fact, it is not obligatory on the part of the employer to apply for approval of such action under section 33(2)(b) of the Act. 3. A reference to the affidavit filed in support of the writ petition reveals the fact that the petitioner which is a company manufacturing and exporting stainless steel utensils, kitchen wares, etc. is situate in Madras Export Processing Zone (MEPZ), presently called as Special Economic Zone (SEZ) and in fact, the Government has notified the petitioner as a public utility service under section 2 (n)(vi) of the Act as per G.O.Rt.No.521, dated 18.12.2006, which was initially for a period of six months up to 18.4.2007. Even though immediately after the expiry of six months' period no extension was given, the Government by virtue of the powers under section 2(n)(vi) has issued another notification on 27.2.2008 notifying all the industries located in Madras Export Processing Zone as public utility service industries. In the affidavit filed in support of the writ petition, the petitioner has stated that during the relevant point of time, viz., when the strike notice was issued by the second https://hcservices.ecourts.gov.in/hcservices/ respondent on 21.11.2007, the original order issued by the Government declaring that the petitioner is a public utility service was not extended and it was extended from 27.2.2008 and therefore, at the time of issuance of the strike notice, the petitioner was not a public utility service. 4. The main contention of the learned senior counsel for the petitioner is that the first respondent, Conciliation Officer has failed to apply his mind even to find out whether on the date of strike notice the petitioner was a public utility service and therefore, the entire proceeding are initiated with non-application of mind. It remains a fact that as on date, the petitioner is a public utility service as it is seen in the Schedule I to the Industrial Disputes Act, 1947. It is also not in dispute that in furtherance of the strike notice issued by the second respondent dated 21.11.2007, the members of the second respondent Sangam did not proceed with the proposed strike, based on the directions of the first respondent. 4(a). The main contention of the learned senior counsel for the petitioner, Mr.Vijay Narayan is that under section 22 of the Industrial Disputes Act, 1947, the second respondent has not given notice as required under section 22(1) of the Act within six weeks before the strike, but, on the other hand, the notice of strike dated 21.11.2007 issued by the second respondent only states that after 15 days from the date of receipt of said notice at any time, the second respondent would go on strike and therefore, based on such notice dated 21.11.2007, the first respondent has proceeded to issue notice on 28.11.2007 without even waiting for the time contemplated under section 22(1) of the Act and in any event, according to him, there is no industrial dispute in existence at all not only due to the reason that the notice of strike was not in accordance with section 22(1) of the Act, but also the conduct of the first respondent in initiating conciliation proceedings on receiving strike notice without even verifying the correctness of the same which would make the notice as well as the subsequent conciliation proceedings invalid. 4(b). It is his submission that the second respondent has not even chosen to give particulars required under Rule 59 of the Industrial Disputes Rules,1958. Even though it is not in dispute that the first respondent has a right to initiate conciliation proceedings as per the Industrial Disputes Act, the initiation of conciliation proceedings on the basis of an unsustainable notice of strike has to be set aside or otherwise, the petitioner management would be burdened with the requirement of obtaining approval under section 33 of the Industrial Disputes Act on the basis of pendency of conciliation proceedings. 4(c). It is also his contention that subsequent to the strike notice, the members of the second respondent Sangam involved in a mob https://hcservices.ecourts.gov.in/hcservices/ violence against the Chairman, Managing Director and other Officers in the factory on 23.1.2008, which has resulted in the dismissal of those employees, but it remains a fact as it is seen from the affidavit filed by the petitioner that the petitioner management in fact filed application for approval of the action of termination of services of those workmen belonging to the second respondent Sangam and the said approval petition is pending before the first respondent. Therefore, the apprehension of the petitioner as submitted by the learned senior counsel for the petitioner that in the absence of a valid strike notice, there is no necessity on the part of the petitioner to approach the first respondent for granting approval of termination of services of the members of second respondent Sangam has no meaning on the factual matrix that such approval petition has in fact been filed by the petitioner and the same is pending before the first respondent. 5. On the other hand, it is the contention of Mr.N.G.R.Prasad, learned counsel appearing for the second respondent Sangam that under section 20(1) of the Industrial Disputes Act, when a notice of strike or lock out issued under section 22 is received by the Conciliation Officer, there is a deemed conciliation which has commenced and therefore, on the date when the members of the second respondent Sangam were terminated, according to the learned counsel for the second respondent the same is illegal, since the provisions of section 33 of the Act are applicable as the approval has to be obtained for the same. 5(a). He would also submit that inasmuch as it is the admitted case of the petitioner that such approval petition has been filed by the petitioner, it is not open to the petitioner now to go back to say that such approval is not required. It is his further contention that even though the impugned conciliation notice issued by the first respondent refers to the notice of strike issued by the second respondent Sangam dated 21.11.2007, it remains a fact that even otherwise under the Industrial Disputes Act, it is always open to the first respondent to initiate conciliation proceedings at any time independent of even a strike notice. He would submit that in such circumstances, when the first respondent has got inherent right and jurisdiction to initiate conciliation proceedings, there is no necessity to decide the validity or otherwise of the impugned conciliation notice issued by the first respondent. 5(b). It is his further submission that only in cases where it is a deemed conciliation under section 20(1) of the Act, the validity of the notice can be gone into. It is also his submission that inasmuch as the members of the second respondent Sangam have not resorted to strike as per the advice of the first respondent to which the first respondent is entitled, the petitioner is also equally bound to hear the advice of the first respondent and there is no necessity at this stage to decide as to whether there is a deemed https://hcservices.ecourts.gov.in/hcservices/ conciliation or not. 5(c). He would also submit that inasmuch as the entire dispute is pending before the first respondent, the first respondent can be directed to decide the entire issue on merits and in accordance with law which may even include the question of validity or otherwise of the strike notice. 6. It is true that the Hon'ble Supreme Court in Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad [(1999) 6 SCC 275] has held that when strike notice is issued under section 22 of the Act in respect of public utility service, the conciliation proceedings is deemed to have been commenced and no further notice is required from the Conciliation Officer. In a recent judgement, the Supreme Court consisting of Dr.Arijit Pasayat and P.Sathasivam,JJ. in Appeal (Civil) No.2567/06 [ Management, Essorpe Mills Ltd., vs. Presiding Officer, Labour Court and others ] referred to various stages enumerated under section 22(1) of the Industrial Disputes Act, which are as follows: "(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." 7. The Supreme Court has also held that under section 22 of the Industrial Disputes Act, there is no necessity to give notice to the Conciliation Officer under the said provision in the following words: "16. ..... There is nothing in Section 22 which requires giving of intimation or copy of the notice under Section 22 to the Conciliation Officer. At the stage of notice under Section 22 there is no dispute." Applying the said judgement, it may be true that the notice dated 21.11.2007 given by the second respondent under section 22 (1) of the Industrial Disputes Act,1947 is not in strict compliance of section 22(1) of the Act as the expression 'such notice' found in section 22(1)(b) refers to a notice of strike issued under section 22 (1)(a) of the Act, but on the factual matrix of this case, it remains a fact that pursuant to the notice of strike dated 21.11.2007, the members of the second respondent Sangam have not resorted to strike and therefore, there is no necessity to decide as to whether there is a deemed conciliation proceedings or not. Suffice it to say that under section 12(1) of the Industrial Disputes Act, even on the apprehension of an existing dispute, it is open to the Conciliation Officer to hold conciliation proceedings and in fact, it is not in dispute that there are certain disputes already raised by the second https://hcservices.ecourts.gov.in/hcservices/ respondent Sangam as early as on 4.5.2007 and on the admitted position that the petitioner management itself has approached the first respondent seeking for approval of termination of services of the members of the second respondent Sangam as contemplated under section 33 of the Industrial Disputes Act, I am of the considered view that there is no necessity to decide about the validity or otherwise of the impugned notice of conciliation issued by the first respondent in this case. 8. In view of the same, the writ petition stands disposed of with direction to the first respondent to decide the entire issues pertaining not only to the general demands stated to have been raised by the second respondent on 4.5.2007 including the approval sought for by the petitioner in respect of termination of members of the second respondent Sangam, but also to the validity or otherwise of the strike notice issued by the second respondent under section 22(1) of the Industrial Disputes Act and the implication of section 20(1) of the Act on such strike notice and also to decide as to whether on such situation, the approval under section 33(2)(b) of the Industrial Disputes Act is required for the termination of services of the members of the second respondent Union and the first respondent shall consider the entire issues on merits and in accordance with law and pass appropriate orders expeditiously. It is made clear that both the petitioner and the second respondent shall co-operate with the first respondent for arriving at such a decision. No costs. Connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1.The Joint Commissioner of Labour (Conciliations) Labour Welfare Board Buildings 6th Floor, DMS Complex Teynampet, Chennai 600 006. https://hcservices.ecourts.gov.in/hcservices/ 2.The General Secretary Chennai Yettrumathi Valaga Uzhiyargal Matrum Pothu Thozhilalar Sangam Old No.11/New No.15, Kannan Street (Old name M.E.S. Road) Kadaperi, Tambaram Chennai 600 045. 1 CC To Mr.K.V.Shanmuganathan, Advocate, SR NO.54161 1 CC to the Government Pleader, SR NO.54643 1 CC To Mr.V.Stalin, Advocate, SR NO.54835 W.P.No.15868 of 2008 tej(co) pmk/29.9.2008. https://hcservices.ecourts.gov.in/hcservices/