Case: Atherton West &amp; Co. Ltd Vs. Suti Mill Mazdoor Union And Others

also provided for the constitution by the Provincial Government of such number of Industrial Courts as it might be necessary consisting of a President assisted by such equal number of assessors as the President might determine representing employers and employees Provision was made for appeals to such industrial Courts from the awards of the Board and also for the hearing of the said appeals. After making further provision for the procedure to be adopted before the Boards as well as the Industrial Courts the Order by Clause 23 above mentioned imposed a ban on the discharge or dismissal any workman by the employer, his agent or manager during the pendency of an enquiry before the Regional Conciliation Board or the Provisional Conciliation Board, or of an appeal before the Industrial Court except with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and by cl. 24 made even order or direction issued under the provisions of the said Government Order final and conclusive except as hereinbefore provide.18. It is clear that cl. 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such written permission was forthcoming the employer, his agent or manager might or might not discharge or dismiss he workman and the only effect of such written permission would be to remove the ban against the discharge of dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned this was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. Once such written permission was granted by him, that order made or direction issued by him was to be final and conclusive and was not to be questioned by any party thereto in any proceedings. The only effect of cl. 24(1) was to prevent any party to the pending proceeding from challenging the written permission thus granted by the officer concerned. Such written permission could not be made the subject-matter of any appeal at the instance of either party and both the parties would be bound by the order made or direction issued by the officer concerned so far as it gave or refused the permission to the employer, his agent or manager in the matter of the proposed discharge or dismissal of the workman.19. This was the only scope of the provision of cls. 23 and 24 (1) above mentioned. Once the written permission was granted by the officer concerned, the ban against the discharge or dismissal of the workman would be removed and the employer, his agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in S. 2 (k) of the Industrial Disputes Act, 1947 would arise and the workmen who had been discharged or dismissed would be entitled to have that industrial dispute referred to the Regional Conciliation Board for enquiry into the same. That right of the workman to raise an industrial dispute could not be taken away in the manner suggested by Shri C. K. Daphatary by having resort to the provisions of cls. 23 and 24 (1) aforesaid. That right was given to the workman by the terms of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 28 of 1947 and would remain unaffected by any of the provisions hereinbefore referred to.20. We are, therefore, of the opinion that this contention of Shri C. K. Daphtary also fails.21. We may before concluding advert to one circumstance and that is that even though Labour Appellate Tribunal rightly confined its jurisdiction to determining substantial questions of law involved in the appeal, it nevertheless observed that even on the facts the conclusions of the Board were perfectly justified and there was no substance in the appeal on merits as well. The appellants were not heard at all on merits and it was hardly legitimate for the Labour Appellate Tribunal suo motu to consider the merits of the appeal and arrive at a finding in regard to the same. If at all the Labour Appellate Tribunal had any jurisdiction in regard to the merits it was incumbent upon it to have heard the Appellants in regard to the merits before arriving at a conclusion in regard to the same.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. These amendments in cls. 4 and 7 (3) are enough in our opinion to repel the contention of Shri. C. K. Daphtary that the absence of Shri J. K. Bhagat from the last meeting and also his non-participation in the making and signing of the award rendered the award void and inoperative. The Board was empowered under the amended cls. 4 and 7 (3) to act in the absence of Shri J. K. Bhagat and the award as it was made and signed by the two remaining members viz., Shri R. P. Maheshwari and Shri B. B. Singh was lawful and binding on the parties.This was the only scope of the provision of cls. 23 and 24 (1) above mentioned. Once the written permission was granted by the officer concerned, the ban against the discharge or dismissal of the workman would be removed and the employer, his agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in S. 2 (k) of the Industrial Disputes Act, 1947 would arise and the workmen who had been discharged or dismissed would be entitled to have that industrial dispute referred to the Regional Conciliation Board for enquiry into the same. That right of the workman to raise an industrial dispute could not be taken away in the manner suggested by Shri C. K. Daphatary by having resort to the provisions of cls. 23 and 24 (1) aforesaid. That right was given to the workman by the terms of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 28 of 1947 and would remain unaffected by any of the provisions hereinbefore referred to.Shri C. K. Daphtary contended that the order made by the Additional Regional Conciliation Officer on 12-10-1950 giving the Appellant permission to dismiss Respondents 2 3 and 4 was final and conclusive in regard to the Appellants right to dismiss them from their employ and their dismissal accordingly by the Appellant could not be the foundation of any industrial dispute which could be referred to the Regional Conciliation Board at the instance of Respondent1. He further contended that if no industrial, dispute could thus arise the Regional Conciliation Board had no Jurisdiction to entertain the same and the award made by the Board was therefore, without Jurisdiction, void and inoperative and could not also be confirmed by the Labour Appellate Tribunal.17. We are unable to accept this contention. The Government Notification dated 10-3-1948 was issued by the Governor of the United Provinces in exercise of the powers conferred by cls (b), (c), (d) and (g) of section 3 and section 8 of the United Provinces Industrial Disputes Act, 1947 It provided for the constitution by the provincial Government of such number of Conciliation Boards as might be deemed necessary for the settlement of industrial disputes consisting of three members of which one was to be the Conciliation Officer for the area, one was to be representative of the employers and one was to be the representative of workmen the Conciliation Officer for the area being the Chairman of the Board. The order provided for the made in which industrial dispute may be referred to the Board for enquiry and the manner in which the enquiry was to be conducted. It also provided for the constitution by the Provincial Government of such number of Industrial Courts as it might be necessary consisting of a President assisted by such equal number of assessors as the President might determine representing employers and employees Provision was made for appeals to such industrial Courts from the awards of the Board and also for the hearing of the said appeals. After making further provision for the procedure to be adopted before the Boards as well as the Industrial Courts the Order by Clause 23 above mentioned imposed a ban on the discharge or dismissal any workman by the employer, his agent or manager during the pendency of an enquiry before the Regional Conciliation Board or the Provisional Conciliation Board, or of an appeal before the Industrial Court except with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and by cl. 24 made even order or direction issued under the provisions of the said Government Order final and conclusive except as hereinbefore provide.18. It is clear that cl. 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such written permission was forthcoming the employer, his agent or manager might or might not discharge or dismiss he workman and the only effect of such written permission would be to remove the ban against the discharge of dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned this was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. Once such written permission was granted by him, that order made or direction issued by him was to be final and conclusive and was not to be questioned by any party thereto in any proceedings. The only effect of cl. 24(1) was to prevent any party to the pending proceeding from challenging the written permission thus granted by the officer concerned. Such written permission could not be made the subject-matter of any appeal at the instance of either party and both the parties would be bound by the order made or direction issued by the officer concerned so far as it gave or refused the permission to the employer, his agent or manager in the matter of the proposed discharge or dismissal of the workman.We are, therefore, of the opinion that this contention of Shri C. K. Daphtary also fails.21. We may before concluding advert to one circumstance and that is that even though Labour Appellate Tribunal rightly confined its jurisdiction to determining substantial questions of law involved in the appeal, it nevertheless observed that even on the facts the conclusions of the Board were perfectly justified and there was no substance in the appeal on merits as well. The appellants were not heard at all on merits and it was hardly legitimate for the Labour Appellate Tribunal suo motu to consider the merits of the appeal and arrive at a finding in regard to the same. If at all the Labour Appellate Tribunal had any jurisdiction in regard to the merits it was incumbent upon it to have heard the Appellants in regard to the merits before arriving at a conclusion in regard to the same.