Case: Jaswant Sugar Mills Ltd. Meerut Vs. Lakshmi Chand &amp; Others

tribunal in respect of an industrial dispute is prohibited save with the express permission in writing of the authority before which the proceeding is pending, from altering, to the prejudice of the workmen concerned in such a dispute, the conditions of service applicable to them immediately before the commencement of the proceeding and from discharging or punishing, whether dismissal or otherwise, any workmen concerned in such dispute for any misconduct connected with the dispute. Both the enactments place restrictions upon the power of the employer to terminate the employment during the pendency of a dispute in which the employer and employee are concerned, and which is pending before a statutory authority. But whereas under Cl. 29 the power to grant permission is exercisable only by the conciliation officer, the power under S. 33 is exercisable by the authority before whom the proceeding is pending. Section33A of the Industrial Disputes Act provides, in so far as it is material, that"where an employer contravenes the provisions of S. 33 during the pendency of proceeding before a labour court, tribunal or national tribunal, any employee aggrieved by such contravention, may make a complain in writing, in the prescribed manner to such labour court, tribunal or national tribunal and on receipt of such complaint that labour court, tribunal or national tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly." 15. Contravention by an employer of the provisions of S. 33 when the proceeding is pending before the conciliation officer or the board does not attract S. 33A and does not make it an industrial dispute capable of being adjudicated upon in accordance with the provisions of S. 33A. Action taken by an employer during the pendency of conciliation proceedings contrary to S. 33, may therefore sustain a claim for adjudication, only if the dispute arising thereunder be referred by the appropriate Government to an industrial tribunal. For breach of S.33 of the Industrial Disputes Act or Cl. 29 of the order by the Governor of Uttar Pradesh no penalty may be imposed by the conciliation officer. It is thus manifest that the conciliation officer does not hold the status of an industrial tribunal in exercising powers under S.33 of the Industrial Disputes Act or Cl. 29 of the Uttar Pradesh order. It must therefore be held that an appeal under Art. 136 of the Constitution to this Court is not competent against the direction given by the conciliation officer exercising power under Cl. 29 of the order issued by the Governor of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947.The question whether an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 48 of 1950, does not present much difficulty in its solution. By S.4 of Act 48 of 1950, the Central Government is authorized to constitute Labour Appellate Tribunals for hearing appeals from the awards or decisions of industrial tribunal in accordance with the provisions of the Act; and "industrial tribunal" is defined in S. 2(c) as meaning -"(i) any industrial tribunal constituted under the Industrial Disputes Act, 1947 (XIV of 1947); or (ii) in relation to cases where an appeal lies from any court, wages board or other authority set up in any State under any law relating to the adjudication of industrial disputes made, whether before or after the commencement of this Act, by the legislative authority of the State to any other court, board or authority exercising appellate jurisdiction within the State; or (iii) in relation to other cases, where no appeal lies under any law referred to in Sub-cl. (ii), any court, board or other authority set up in any State under such law." 16. A conciliation officer functioning under Cl. 29 is not an industrial tribunal constituted under the Industrial Disputes Act, 1947, his authority being derived from the appointment made by the State of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947. Nor is any provision made in the Uttar Pradesh Industrial Disputes Act, 1947, or orders made thereunder for an appeal to any similar authority against the direction made by the conciliation officer in exercise of the power conferred under Cl. 29. An appeal lies under S.4 of Act 48 of 1950, against the direction of a conciliation officer only if he is a Court or authority. The legislature has used in Cl. (iii) the expression "any court, board or other authority"; the context indicates that the word "other authority" must be read ejusdem generis with court or board. The right to appeal conferred by S. 4 is only against awards or decisions, and a conciliation officer makes no award, nor even a decision. His function is not to deliver a definitive judgment affecting the rights of the party before him. He is not invested with power to adjudicate industrial disputes. It is true that he is constituted under a statute which relates to adjudication of industrial disputes, but his functions are purely incidental to industrial adjudication. His power is not of the same character that of an industrial court or board or tribunal. In our view, an "authority" under S. 2(c)(iii) to be an industrial tribunal must be a body constituted for the purpose of adjudication of industrial disputes under a law made by a State. The conciliation officer not having been invested with any such power, he cannot be regarded as an "authority" within the meaning of S. 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act. The labour Appellate Tribunal has consistently held, and we think rightly, that an appeal against the order of a conciliator is not maintainable under S.4 of the Industrial Disputes (Appellate Tribunal) Act - vide Sassoon and Alliance Silk Mills Company, Ltd., and another v. Mill Mazdoor Sabha and others [1955 - I L.L.J. 70].

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

Explanation:
0[ds]A conciliation officer functioning under Cl. 29 is not an industrial tribunal constituted under the Industrial Disputes Act, 1947, his authority being derived from the appointment made by the State of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947. Nor is any provision made in the Uttar Pradesh Industrial Disputes Act, 1947, or orders made thereunder for an appeal to any similar authority against the direction made by the conciliation officer in exercise of the power conferred under Cl. 29. An appeal lies under S.4 of Act 48 of 1950, against the direction of a conciliation officer only if he is a Court or authority. The legislature has used in Cl. (iii) the expression "any court, board or other authority"; the context indicates that the word "other authority" must be read ejusdem generis with court or board. The right to appeal conferred by S. 4 is only against awards or decisions, and a conciliation officer makes no award, nor even a decision. His function is not to deliver a definitive judgment affecting the rights of the party before him. He is not invested with power to adjudicate industrial disputes. It is true that he is constituted under a statute which relates to adjudication of industrial disputes, but his functions are purely incidental to industrial adjudication. His power is not of the same character that of an industrial court or board or tribunal. In our view, an "authority" under S. 2(c)(iii) to be an industrial tribunal must be a body constituted for the purpose of adjudication of industrial disputes under a law made by a State. The conciliation officer not having been invested with any such power, he cannot be regarded as an "authority" within the meaning of S. 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act. The labour Appellate Tribunal has consistently held, and we think rightly, that an appeal against the order of a conciliator is not maintainable under S.4 of the Industrial Disputes (Appellate Tribunal) Act - vide Sassoon and Alliance Silk Mills Company, Ltd., and another v. Mill Mazdoor Sabha and others [1955 - I L.L.J. 70]Reverting to the order issued by the Governor of Uttar Pradesh in 1954 it is manifest that no procedure is prescribed for the investigation to be made by the conciliation officer, under Cl. 29. He is not required to sit in public; no formal pleadings are contemplated to be tendered; he is not empowered to compel attendance of witnesses, nor is he restricted in making an enquiry to evidence which the parties may bring before him. The conciliation officer is against not capable of delivering a determinative judgment or award affecting the rights and obligations of parties. He is not invested with powers similar to those of the civil court under the Code of Civil procedure for enforcing attendance of any person and examining him on oath, compelling production of documents, issuing commissions for the examination of witnesses and other matters. He is concerned in granting leave to determine whether there is a prima facie case for dismissal or discharge of an employee or for altering terms of employment, and whether the employer is actuated by unfair motives; he has not to decide whether the proposed step of discharge or dismissal of the employee was within the rights of the employer. His order merely removes a statutory ban in certain eventualities, laid upon the common law right of an employer to dismiss, discharge or alter the terms of employment according to contract between the parties. The conciliation officer has undoubtedly to act judicially in dealing with an application under Cl. 29, but he is not invested with the judicial power of the State; he cannot, therefore be regarded as a "tribunal" within the meaning of Art. 136 of the Constitution.We are not in this case called upon to decide whether the proceeding for a writ may lie under Art. 226 of the Constitution before a competent High Court against the order of the conciliation officer. We are concerned only to deal with the limited question whether he is a "tribunal" within the meaning of Art. 136 of the Constitution having the attributes of the investment of the judicial powers of the State. It may be pertinent to note that provisions similar to Cl. 29 of the order issued under the Uttar Pradesh Industrial Disputes Act, 1947, are to be found in S.33 of the Industrial Disputes Act, 1947. By virtue of S. 33 an employer during the pendency of any conciliation proceeding before a conciliation officer or a board or of any proceeding before a labour court or tribunal or national tribunal in respect of an industrial dispute is prohibited save with the express permission in writing of the authority before which the proceeding is pending, from altering, to the prejudice of the workmen concerned in such a dispute, the conditions of service applicable to them immediately before the commencement of the proceeding and from discharging or punishing, whether dismissal or otherwise, any workmen concerned in such dispute for any misconduct connected with the dispute. Both the enactments place restrictions upon the power of the employer to terminate the employment during the pendency of a dispute in which the employer and employee are concerned, and which is pending before a statutory authority. But whereas under Cl. 29 the power to grant permission is exercisable only by the conciliation officer, the power under S. 33 is exercisable by the authority before whom the proceeding is pending. Section33A of the Industrial Disputes Act provides, in so far as it is material, that"where an employer contravenes the provisions of S. 33 during the pendency of proceeding before a labour court, tribunal or national tribunal, any employee aggrieved by such contravention, may make a complain in writing, in the prescribed manner to such labour court, tribunal or national tribunal and on receipt of such complaint that labour court, tribunal or national tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly."Contravention by an employer of the provisions of S. 33 when the proceeding is pending before the conciliation officer or the board does not attract S. 33A and does not make it an industrial dispute capable of being adjudicated upon in accordance with the provisions of S. 33A. Action taken by an employer during the pendency of conciliation proceedings contrary to S. 33, may therefore sustain a claim for adjudication, only if the dispute arising thereunder be referred by the appropriate Government to an industrial tribunal. For breach of S.33 of the Industrial Disputes Act or Cl. 29 of the order by the Governor of Uttar Pradesh no penalty may be imposed by the conciliation officer. It is thus manifest that the conciliation officer does not hold the status of an industrial tribunal in exercising powers under S.33 of the Industrial Disputes Act or Cl. 29 of the Uttar Pradesh order. It must therefore be held that an appeal under Art. 136 of the Constitution to this Court is not competent against the direction given by the conciliation officer exercising power under Cl. 29 of the order issued by the Governor of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947.The question whether an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 48 of 1950, does not present much difficulty in its solution. By S.4 of Act 48 of 1950, the Central Government is authorized to constitute Labour Appellate