wp3535.11.odt 1/7 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.3535/2011 VIP Industries Limited -vs- VIP Industries Shramik Sangh, Nagpur and another ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri V. R. Thakur, learned counsel for the petitioner. Shri V.P.Marpakwar, learned counsel for the respondent No.1. Shri A.D.Sonak, learned A.G.P.for the respondent No.2. CORAM : R. M. SAVANT, J. DATED : 09/08/2011. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 21st July, 2011 passed by the Conciliation Officer, by which order the Conciliation Officer has granted stay on the transfer issued by the Management of 140 workmen i.e. 90 workmen to Sinnar, District Nashik and 50 workmen to Haridwar, Uttarakhand. The petitioner herein is engaged in the manufacture of luggage as also performs job work for other companies. In so far as its undertaking at Nagpur is concerned, the petitioner was doing the job work for the company known as M/s. B. P. Ergo Limited. The contract with the said M/s. B.P. Ergo Limited was for the period 01/04/2010 to 30/06/2011. It appears that the said M/s. B. P. Ergo Limited informed the wp3535.11.odt 2/7 petitioner on 28/06/2011 prior to the said contract coming to an end, but it was no more interested in continuing with the contract. It appears that certain demands were raised on behalf of the respondent Union in respect of which the parties approached the Conciliation Officer. It appears that meetings were held by the Conciliation Officer between the parties so as to find out whether a solution could be found out. Thereafter a meeting was held on 24th March, 2011 to take stock of the progress made. A meeting was again held on 31/05/2011, whilst the parties were before the Conciliation Officer, the petitioner on the ground that work to about 140 workmen could not be provided, as the renewal of the contract by the M/s. B. P. Ergo Limited was only in respect of the part of the original contract, issued a transfer order thereby transferring 90 workmen to Sinnar at Nashik and 50 workmen to Haridwar in Uttarakhand. The said transfers were on the basis that only about 76 workmen could be given work pursuant to the renewal of the part of the contract by M/s. B. P. Ergo Limited by the said transfer order. The said 140 workmen were granted joining time between 16/07/2011 and 31/07/2011. In view of the transfers being effected when the parties were before the Conciliation Officer, the respondent Union filed an application under Section 33 (1) of the Industrial Disputes Act inter alia contending that the service conditions of the said 140 workmen were sought to be changed during the pendency of the proceedings before the Conciliation Officer. To the said wp3535.11.odt 3/7 application a reply came to be filed by the petitioner herein inter alia contending that the services of the 140 workmen were transferable in terms of the appointment letters, which were issued to them. It appears that thereafter a notice under Rule 11 of the Industrial Disputes (Bombay) Rules, 1957 came to be issued by the Conciliation Officer on 28th July, 2011. Thereafter on 16st July, 2011 the application filed by the respondent Union under Section 33 (1) of the Industrial Disputes Act came to be allowed and the impugned order dated 21/07/2011 came to be passed thereby staying the transfers of the said 140 workmen. As indicated above, it is the said order which is challenged by the petitioner Company by way of this petition. It is sought to be contended by Shri Thakur, the learned counsel appearing for the petitioner Company that the said order has been passed without any intimation to the petitioner Company. It is contended that there was no impediment for the petitioner to transfer the said workmen, as the conciliation proceedings had not commenced. It is further contended that under the scheme of the said Act, the Conciliation Officer is only obliged to use his discretion to facilitate the resolution of the disputes and he is not entitled to adjudicate upon the disputes. By adverting to Section 33A of the said Act, learned counsel Shri Thakur would contend that the Conciliation Officer has to act within the parameters laid down in terms of Clauses (a) and (b) of the said Section 33 of the said Act. As regards the directions issued by the Conciliation Officer, as contained in the impugned order dated 21/07/2011, the learned counsel would contend wp3535.11.odt 4/7 that such directions could not have been issued by the Conciliation Officer, as the power of adjudication, if any, is that of the concerned Court. To buttress his submission, the learned counsel for the petitioner Company relied upon the judgment of the Division Bench this Court reported in 2011 (1) Mh.L.J. 601 in the matter of Maharashtra General Kamgar Union, Nagpur and others vs. Pix Transmissions Ltd., Nagpur and another, wherein the Division Bench has held that in terms of Section 33A of the said Act, it is the duty of the Conciliation Officers of mediating and promoting the settlement of industrial disputes and that there is no jurisdiction in so far as adjudication of industrial disputes is concerned. The said case also involved the transfer of two employees which had been stayed by the Conciliation Officer. The next judgment relied upon is the judgment of a learned Single Judge of this Court reported in 1984 LAB. I.C. 1686 in the matter of D.C. Tonge and another v. The Divisional Secretary, Maharashtra State Transport Kamgar Sangathana, Nagpur and another. In the context of the bar of Section 59 as contained in the M.R.T.U. & P.U.L.P. Act, the learned Single Judge of this Court has held that in so far as the conciliation proceedings are concerned, it is not in dispute that the Conciliation Officer has no power to pass any orders binding upon the parties. Per contra, it is submitted by Shri Marpakwar, the learned counsel appearing for the respondent Union that the petitioner company has innovated a novel method of doing away 140 employees of the petitioner Company by transferring wp3535.11.odt 5/7 them. The learned counsel would contend that the Conciliation Officer was entitled to pass an order in respect of staying the transfer order, in exercise of the power under Rule 65 of the Industrial Disputes (Bombay) Rules. The learned counsel would contend that the said mode of transferring the 140 employees has been innovated by the petitioner Company so as to obviate the need for compliance of Section 25N of the Industrial Disputes Act. The learned counsel would further contend that the action of the petitioner Company would result in the complement of workers being reduced which was not permissible as per the settlement. In my view, the challenge raised to the order dated 21/07/2011 by the petitioner Company is bereft of any merit. It is significant to note that the parties were before the Conciliation Officer in respect of the demands raised by the respondent Union. In this regard, it would be apposite to consider the definition as contained in Section 2(e) of the Industrial Disputes Act, it is posited in Section 2(e) that ‘conciliation proceedings’ means any proceeding held by a Conciliation Officer or Board under this Act i.e. the Industrial Disputes Act. The parties being before the Conciliation Officer right from 24th March, 2011, the Conciliation Officer was entitled to consider the application filed by the respondent Union under Section 33(1) of the said Act and pass appropriate orders in the event he reached a conclusion that there was a change in the conditions of service pending the conciliation proceedings. In my view, therefore, no illegality or infirmity wp3535.11.odt 6/7 can be attributed in so far as the said order passed by the Conciliation Officer is concerned. The contention of the learned counsel for the petitioner that the conciliation proceedings can only be said to have commenced on 19th July, 2011 when the notice under Rule 11 of the Industrial Disputes (Bombay) Rules came to be issued in my view, cannot be accepted in the light of the definition of conciliation proceedings, as contained in Section 2(e) of the said Act. As regards the judgments relied upon by the learned counsel for the petitioner Company are concerned, in so far as the judgment of the Division Bench in Maharashtra General Kamgar Union, Nagpur (supra) is concerned, though the said Division Bench judgment is an exposition as regards the powers of the Conciliation Officer under Section 33A of the said Act, the facts which were involved in the said case are not clear, except that two employees were sought to be transferred pending the conciliation proceedings whose transfers were stayed. There is also no reference to Rule 65 in the said judgment. In the instant case the power to issue directions under Rule 65 of the Industrial Disputes (Bombay) Rules has been adverted to by the respondent Union which ex facie was not an issue before the Division Bench. In the instant case the Conciliation Officer was required to interdict in view of the fact that the service conditions of as many as 140 workmen were sought to be changed, pending the conciliation proceedings. There can be no dispute about the protection afforded to the wp3535.11.odt 7/7 workmen under Section 33 of the Industrial Disputes Act and Rule 65 of the Industrial Disputes (Bombay) Rules is only an aid to the said protection which the workmen in the present case have involved. In so far as the judgment of a learned Single Judge of this Court in D. C. Tonge (supra), the said judgment would have no application inasmuch as the issue in the said case was as to whether the bar under Section 59 would apply even in the case of the conciliation proceedings. Having perused the impugned order passed by the Conciliation Officer, no case for interdiction in the writ jurisdiction is made out. The Writ Petition is accordingly dismissed. JUDGE KHUNTE