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

The appellant Company is a manufacturer of luggage and apart from its industrial undertaking at Nagpur, it has two manufacturing units, one at Sinnar, District Nasik and the other at Haridwar, Uttarak hand. The workmen in the Nagpur plant of the appellant Company are represented by the first respondent the recognized Union and their conditions of service are governed by the terms of the appointment letter as well as the terms settled by the management and the first respondent Union. The last settlement governing the conditions of service of the workmen ended on 31.12.2010 and the respondent Union gave a fresh charter of demands. Nothing happened in the matter for a long time and the respondent Union approached the Conciliation Officer under the provisions of the Industrial Disputes Act. The Conciliation Officer issued a notice to theon 18.03.2011. The meetings before the Conciliation Officer were held on 24.03.2011, 16.05.2011, 31.05.2011, 14.06.2011 and 30.06.2011.2. The appellant Company was carrying on the operations of manufacturing on job work basis at the Nagpur plant in view of a contract between the appellant Company and a company named B.P. Ergo Limited(hereinafter referred to as B.P.E.L. for the sake of brevity). It is the case of the appellants that B.P.E.L. was not interested in renewing the contract with the appellant and after some persuasion by the appellant Company, a contract was signed by the appellant Company and B.P.E.L. but, the renewed contract curtailed the scope of the original contract in the sense that lesser job work was required to be performed by the appellant Company. The appellant Company wanted to protect all the 216 employees working at the Nagpur plant but, it could not do so in view of the curtailment of the contract by B.P.E.L. Only 76 workmen could be utilized by the appellant Company for the job work in Nagpur plant and for about 140 employees, there was no work. In this background, it is the case of the appellant Company that the company desired to transfer 90 employees to Sinnar, Nasik District and 50 to Haridwar (Uttarakhand), where the appellant Company had its units. The transfer orders were issued on 14.07.2011. The employees were relieved on 15.07.2011 and the appellant Company granted time to the employees to report at Sinnar and Haridwar till 31st of July. After the transfers were effected, an application was filed by the respondent no.1Union before the Conciliation Officer under the provisions of the Industrial Disputes Act seeking appropriate action against the appellant Company for breach of the provisions of Section 33 of the Industrial Disputes Act. The application was moved by the respondent Union on 16.07.2011 and after serving a copy of the same on the appellant Company, the Conciliation Officer fixed the meeting on 19.07.2011. On 19.07.2011, the appellant Company filed the reply and the first meeting of conciliation was fixed on 26.07.2011. According to the appellant Company though the matter was fixed before the Conciliation Officer on 26.07.2011, the appellant Company was surprised to come across a stay order passed by the Conciliation Officer on 21.07.2011 staying the order transferring the employees from Nagpur to Sinnar and Haridwar. The order passed by the Conciliation Officer during the conciliation proceedings on 21.07.2011 was challenged by the petitioner in Writ Petition No.3535/2011. The learned Single Judge, however, by the order dated 09.08.2011, was pleased to dismiss the writ petition.

Reasoning: 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.