Case: Vip Industries Limited Vs. Vip Industries Shramik Sangh &amp; Another

the purpose of bringing about the settlement of the dispute, the Conciliation Officer is empowered to investigate the dispute & do all such things as he thinks fit for the purpose of inducing a party to come to a fair and amicable settlement. Under the provisions of Section 33 of the Act, the Conciliation Officer is empowered to grant permission to the employer in writing to alter the conditions of service applicable to the parties before commencement of the conciliation proceedings and discharge of workman concerned in the dispute. Section 33A of the Act provides that an employee aggrieved by the contravention of the provisions of Section 33 may make a complaint in writing, to the Conciliation Officer or Board and the Conciliation Officer is expected to take such a complaint into account in mediating & promoting the settlement of the industrial dispute. The provisions of Section 33A(b) of the Act speak of a complaint by an employee aggrieved by the contravention of Section 33 to an Arbitrator, Labour Court, Tribunal or National Tribunal and empower these authorities to adjudicate upon the complaint as if it were a dispute referred to or pending before it. Under Section 33A(b) of the Act, the Labour Court, Tribunal or National Tribunal is empowered to pass an award after adjudicating the complaint pending before it. There is a clear distinction between the provisions of Section 33A(a) & Section 33A(b) of the Industrial Disputes Act. Section 33A(a) does not give any adjudicatory power to the Conciliation Officer and provides that the Conciliation Officer shall take the complaint filed by the employee into account while mediating in and promoting the settlement of the industrial dispute, whereas, Section 33A(b) of the Act empowers the Arbitrator, Labour Court, Tribunal, or National Tribunal to adjudicate upon the complaint pending before it in accordance with the provisions of the Industrial Disputes Act and also pass an award therein. It is, thus, clear from the provisions of Section 33A that though the arbitrator, Labour Court, Tribunal, or National Tribunal is empowered to adjudicate upon the complaint as if it were a dispute the Conciliation Officer is not empowered to adjudicate upon the complaint. The Conciliation Officer is only empowered to consider the complaint and take it into account while mediating in and promoting the settlement of the industrial dispute. The provisions of the Industrial Disputes Act, specially the provisions of Section 33A, do not empower the Conciliation Officer to adjudicate the complaint filed by the employee for the alleged contravention of the provisions of Section 33 of the Industrial Disputes Act by the employer. It would be necessary to refer to the decisions relied on by the learned counsel for the appellant in this regard.The Honble Supreme Court in Automobile Products of India Vs. Rukmaji Bais & oth., reported in AIR 1955 SC 258 , while considering the provisions of Section 33 and 33A of the Industrial Disputes Act, observed thus :There is no reason to think that the Legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in S. 33A of the 1947 Act or S. 23 of the 1950 ActThere is no machinery provided in S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban. .A Division Bench of this Court has in the judgment in Mah. General Kamgar Union Vs. P.T. Ltd., reported in 2011 (1) Mh.L.J. 601 observed that, on a plain reading of clause (a) of Section 33A, it is clear that the said clause does not confer any power of adjudication on a Conciliation Officer and therefore, to interfere with the action of an employer. The Court went on to add that the Conciliation Officer is entitled only to take into account a complaint made by the employee while mediating in and promoting the settlement of the industrial disputes.11. There is nothing in the provisions of Rule 65 of the Industrial Disputes (Bombay Rules) 1957 to hold that the Conciliation Officer is empowered to adjudicate the complaint received under Section 33A of the Act. In fact, Rule 65 of the Rules merely speaks of the issuance of a show cause notice by the Conciliation Officer on the receipt of an application under Section 33 of the Industrial Disputes Act for express permission in writing before taking action contemplated by the provisions of Section 33A(1)(a) and (b) of the Act. The submission made on behalf of the respondent No.1 that Rule 65 shows that the Conciliation Officer is empowered to adjudicate the dispute is not well founded and is liable to be rejected. Since it is clear from the reading of the provisions of the Act and the Rules that the Conciliation Officer is mainly charged with the duty of mediating in and promoting the settlement of the industrial disputes and is not empowered to adjudicate the dispute, the Conciliation Officer could not have adjudicated the complaint filed by the respondent No.1 under Section 33A(a) of the Act. Consequently, the Conciliation Officer could not have stayed the order transferring the 140 employees from the companys unit at Nagpur to Sinnar and Haridwar. Since the order dated 21.07.2011 suffers from a jurisdictional error, the same is liable to be set aside.

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

Explanation:
1[ds]The Honble Supreme Court in Automobile Products of India Vs. Rukmaji Baisoth., reported in AIR 1955 SC 258  , while considering the provisions of Section 33 and 33A of the Industrial Disputes Act, observed thus :There is no reason to think that the Legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in S. 33A of the 1947 Act or S. 23 of the 1950 ActThere is no machinery provided in S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban.Division Bench of this Court has in the judgment in Mah. General Kamgar Union Vs. P.T. Ltd., reported in 2011 (1) Mh.L.J. 601 observed that, on a plain reading of clause (a) of Section 33A, it is clear that the said clause does not confer any power of adjudication on a Conciliation Officer and therefore, to interfere with the action of an employer. The Court went on to add that the Conciliation Officer is entitled only to take into account a complaint made by the employee while mediating in and promoting the settlement of the industrial disputes.11. There is nothing in the provisions of Rule 65 of the Industrial Disputes (Bombay Rules) 1957 to hold that the Conciliation Officer is empowered to adjudicate the complaint received under Section 33A of the Act. In fact, Rule 65 of the Rules merely speaks of the issuance of a show cause notice by the Conciliation Officer on the receipt of an application under Section 33 of the Industrial Disputes Act for express permission in writing before taking action contemplated by the provisions of Section 33A(1)(a) and (b) of the Act. The submission made on behalf of the respondent No.1 that Rule 65 shows that the Conciliation Officer is empowered to adjudicate the dispute is not well founded and is liable to be rejected. Since it is clear from the reading of the provisions of the Act and the Rules that the Conciliation Officer is mainly charged with the duty of mediating in and promoting the settlement of the industrial disputes and is not empowered to adjudicate the dispute, the Conciliation Officer could not have adjudicated the complaint filed by the respondent No.1 under Section 33A(a) of the Act. Consequently, the Conciliation Officer could not have stayed the order transferring the 140 employees from the companys unit at Nagpur to Sinnar and Haridwar. Since the order dated 21.07.2011 suffers from a jurisdictional error, the same is liable to be set aside.