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Petitioner: TECHNOLOGICAL INSTITUTE OF TEXTILES VS Respondent: LABOUR COURT, JULLUNDUR AND JUDGMENT
Court Name: Punjab and Haryana High Court Judge(s): R. S. Narula Title:TECHNOLOGICAL INSTITUTE OF TEXTILES vs LABOUR COURT, JULLUNDUR AND
JUDGMENT
Reported As: 1970 PLC 603 Result: petition is allowed Judgment JUDGMENT The effect, construction and true scope of the expression "for reasons td be stated therein" occurring in subsection (1) of section 33-B of the Industrial Disputes Act (XIV of 1947) (as, subsequently amended), hereinafter referred to as the Act, calls for decision in this petition under. Articles 226 and 227 of the Constitution filed by the Management of the Technological Institute' of Textiles, Bhiwani, for quashing the award of the Labour Court, Jullundur, dated 2nd January 1965 (Annexure `N'), directing the re-instatement of Hanuman Prasad Seni (hereinafter called the employee), respondent No. 3, in the service of the petitioner, and further directing payment of back wages to him. The employee joined the service of the petitioner on 6th June 1957. In the appointment letter issued to the employee (Exb. M-2 before the Labour Court), it was specifically stated that his employment was subject to notice of one calendar month from either side., Under rule 13(1) of the certified standing orders in respect of the petitioner Institute it is laid down that the employment of any permanent workman, whether time-rated or piece-rated, may be terminated by thirteen days' notice or by payment of thirteen days wages in lieu thereof by either side. The employee contracted tuberculosis and, therefore, remained on leave on medical grounds from 28th June to 22nd October 1960. After working for barely -one day on resumption of his duties on 23rd October is that year, he again proceeded on thirteen days' lave. He finally resumed work on 7th November 1960. On 1st May 1961, he again applied for leave from the 19th of that monthtothe30thof v June 1961, on grounds of health. His application was rejected. 1 Soon thereafter, the petitioner served the employee with a notice, dated 23rd May 1961 (Annexure `B'), wherein it was stated that having been
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a patient of tuberculosis, the employee's efficiency of work had gone down, and that since the employee was not feeling well in those days, it was, not in. the interest of his other co-workers that he should continue in service. In the said communication, the employee was, therefore, informed that his services would stand terminated after the expiry of one month from the date of receipt of the letter, under Standing Order 13(1) applicable to the workmen of the petitioner Institute. After the termination of his services, a request was made on his behalf by respondent No. 2 Union on 24th June 1961 (Annexure `C') to reconsider the matter, and to allow the employee to continue in service. It was specifically pleaded on behalf of the employee that the Management of the petitioner Institute could not state that there were any symptoms of any disease in the employee "in the absence of any medical examination". In the petitioner's reply, dated 26th July 1961, (Annexure `D'), it was stated that the services of the employee had been terminated as he was showing some, symptoms of tuberculosis and his efficiency of work had gone down on account of his bad health. It was, however, stated that if the employee was willing to submit to a medical examination, he should approach the Medical Officer Incharge of the Civil Hospital within a week of the receipt of the letter for medical examination at petitioner's expense. It was added by the petitioner in the said letter that in case the employee was found to be fit for duty in the mills, the petitioner would be willing to reconsider the matter but that if the employee did not submit to medical examination within a week, it would be, presumed that be had no intention of getting himself medically examined. The employee admittedly did not submit to medical examination, In letter, dated 7th August 1961 (Annexure 'E'), the second respondent Union stated that the employee had no symptoms of tuberculosis, and as such the question of his undergoing any medical examination did not arise. The petitioner wrote back on 9th August 1961, (Annexure `F') to respondent No. 2, that the second respondent was now backing out of the suggestion to have the employee medically examined, and that, therefore, the termination of the employee's services under standing order 31(1) of the Institute was legal and justified. After some further correspondence between the petitioner on the one hand and respondent No. 2 on the other, and after an abortive attempt of the Conciliation Officer to have the matter settled, the following dispute between the petitioner and respondents Nos. 2 and 3 was referred by the Governor of Punjab to the Labour Court, Rohtak, for adjudication:- "Whether the action of the Management in terminating the services of Shri Hanuman Parshad Seni is justified and 'in order? If not, to what relief the workman is entitled?" A copy of the notification issued under section 10(1)(c) of the Act in this respect and published in the Punjab Government Gazette, dated 21st November 1961, is Annexure `H' to the writ petition. When the Labour Court, Rohtak, had recorded the evidence of both parties, and had fixed the case for hearing of arguments, the staff Union made an application to the Punjab Government for transferring the case from that Labour Court. After calling for the comments of the Presiding Officer of the Labour Court, Rohtak, and perusing and considering the same, but without issuing any notice of the application for transfer of the petitioner Institute, the Punjab Government directed the transfer of the case from Labour Court, Rohtak, to the Labour Court, Jullundur, by notification, dated 24th August 1962, wherein de novo proceedings were directed to be held by the transferred Court in the following words: - "Whereas an industrial dispute between the workmen and the Management of Messrs Technological Institute of, Textiles, Bhiwani, was referred to the Labour Court, Rohtak, .........for adjudication; "And whereas a petition of transfer of the aforessaid reference was received from the workers' Union on which comments of the Labour Court, Rohtak, were also invited "And whereas on a careful consideration of the comments of the said Labour Court, the Governor of Punjab is of the opinion that in the interest of justice the proceedings in the aforesaid reference; pending before the Labour Court, be withdrawn and transferred to the Labour Court, Jullundur;
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"Now, therefore, in exercise of the powers conferred by subsection (1) of section 31-B of-the Industrial Disputes Act, 1947 (Act XIV of 1947), the Governor of Punjab is pleased to withdraw the proceedings in respect of the aforesaid industrial dispute from the Labour Court, Rohtak, and transfer the same to the Labour Court, Jullundur, which will proceed with the reference de novo". When in pursuance of the-above-quoted order of transfer of proceedings the parties appeared before respondent No. 1, an additional written statement, dated 29th October 1962, was filed by the petitioner challenging the validity and legality of the order of transfer. From the pleadings of the parties, respondent No.1. Originally framed the following two issues: "(1) Whether the order of the Government in transferring this case to this Court is invalid and opposed to law for any of the reasons stated in paragraph 6 of the written statement? If so, what is its effect? (2) Whether the action of the Management in terminating the services of Shri Hanuman Parshad Seni is justified and in order? If not, to what relief the workman is entitled?" Subsequently the petitioner made an application, dated 19th November 1962 alleging that the dispute in question was not an industrial dispute. This led to the framing of an additional issue which was issue No. (3) and was in the following terms :- "Whether the dispute raised is not an industrial dispute?" By his impugned award, dated 2nd January 1965 (Annexure `N) Shri Manohar Singh, Presiding Officer, Labour Court, Jullundur, decided all the three issues against the petitioner and ordered the petitioner to re-instate the employee on the job he was holding when his services were terminated, and also awarded full back wages to him from the date of the termination of his services, i.e. from 24th June 1961, to the date on which he might be re-instated by the petitioner Institute. The employee was further allowed the benefit of continued service. The award, dated 2nd January 1965, was published in the official Gazette, dated 15th January 1965. This writ petition which was filed on 5th March 1965, for the issuance of a writ in the nature of certiorari to quash the impugned award, was admitted by the Motion Bench (S. B. Capoor and 1. D. Dua, JJ.) on 8th Match 1965. The petition has been contested by respondents Nos. 2 and 3 who have filed a joint return to the rule issued in the case. Though the findings of the Labour Court on all the three issues had been impugned and assailed in the writ petition, the attack on the findings on issue No. 3 was expressly abandoned by Mr. Ganga Parshad Jain, the learned counsel for the petitioner, at the hearing of this writ petition. The impugned order of transfer of the proceedings from the Labour Court, Rohtak, to respondent No. 1 (the Labour Court, Jullundur), was admittedly passed under section 33-B(1) of the Act. The said provision reads as follows: - "The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal, or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred: Provided that where a proceeding under section 93 or section 33-A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court." The only ground on which the validity of the order 'of transfer has been questioned before me is that the State Government (which is the appropriate Government in this case) did not, in its order in writing, state the reasons for withdrawing the proceedings from the Labour Court, Rohtak. The view enunciated by a learned single Judge of this Court in Aeron Steel Rolling Mills v. State of Punjab (1) and upheld by a Letters Patent Bench of this Court in Aeron Steel Rolling Mills, Jullundur v. State of Punjab (2) to the effect that the provision requiring the Government to state the reasons
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on which an order of transfer is based does not relate to the essence of the thing to be performed and compliance with its terms is a matter of convenience rather than of substance, is no longer good law in view of the authorita--tive pronouncement of their Lordships of the Supreme Court in Associated Electrical Industries (India) (Private) Ltd., Calcutta v. Its Workmen ((1961) 2.L L J 122). In the above said judgment of the Supreme Court, it has been unequivocally held that the requirement of supporting the order of transfer under section 33-B(1) of the Act by reasons is not merely directory but mandatory. Gajendra--gadkar, J., who prepared the judgment of the Court observed and held:- "When we turn to the orders by which the reference was withdrawn from one industrial tribunal and transferred to another, we find that there is no reason mentioned in any of them. All that the orders purport to say is that it is expedient to withdraw the reference from one tribunal and transfer it to another. In our opinion, the said bare statement made in the orders by which the proceedings are withdrawn from one Tribunal and transferred to another dots not amount to a statement of reasons as required by section 33-B(1). It is quite clear that the requirement about the statement of the reason must be complied with both in substance and in letter. To say that it is expedient to withdraw a case from one Tribunal and transfer it to another repeatedly on three occasions in respect of the same proceedings is not to give any reason as required by the section. Normally, when an industrial dispute is referred to an industrial Court or Tribunal, it should be tried before the said Court or tribunal, and so the power of transfer can be exercised only for sufficient reasons. In the circumstances of this case we are not prepared to hold that any reasons have been stated as required by the section, and so the orders of transfer cannot be held to be justified under section 33-B(1)." In Collector of Monghyr v. Keshav Prasad Goenka, (AIR 1962 SC 1694) the question whether section 5-A of the Bihar Private Irrigation Works Act, 1922, as amended by Bihar Act 10 of 1939, requir--ing that reasons should be recorded by the Collector was mandatory or not was answered by the Supreme Court in the affirmative. It was observed that section 5-A of the Bihar Act constituted a departure from the normal procedure and that though the question whether the circumstances recited in section 5-A(l) existed or not is entirely for the Collector to decide in his discretion, it is the recording of the reasons which is the only protection afforded to the persons affected to ensure that reasons which impelled the Collector "were those germane to the content and scope of the power vested in him." Their Lordships of the Supreme Court observed that it could not be disputed that, if the reason- recorded by the Collector was to be totally irrelevant as a justification for considering that an emergency had arisen or for dispensing with notice and enquiry under sections 3 to 5 of the Bihar Act, the exercise of the power undersection 5-A would be void as not justified by the statute. Ayyangar, J., who preparedthe judgment of the Court, held in .::r, as below :- " ---------------.. Circumstances the section requires what might be termed a 'speaking order' before persons are saddled with liability, theca the object with which the provision is inserted will be wholly defeated and the protection afforded nullified, if it were held that the requirement is anything but mandatory.. " ....To suggest that by a recital of the nature of the repairs required to be carried out and employing the language of section 5-A(1) the officer has recorded his reason for invoking section 5-A is to confuse the recording of conclusion of the officer with the reason for which he arrived at that conclusion ---------.---It is not, therefore, the presence of the material that is of sole relevance or the only criterion but the collector's opinion as to the urgency coupled with his recording his reasons why he considers that the procedure under sections 3 to 5 should not be gone through." A somewhat similar question as the one that faces me in the instant case, arose before Harbans Singh, J., in Workmen of Punjab Worsted Spinning Mills, Chhehartaa v. State of Punjab ((1963) 27 F J R 88). In that case the application had been made by the employer for transfer of proceedings
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under section 33-B of the Act from one Industrial Tribunal to another. The application was supported an affidavit in which loss of confidence reposed in the Presiding Officer of the Industrial Tribunal was urged. No notice of the application was given to the Union representing the workmen. The award of the Tribunal was then impugned by the Union of the workmen in the petition under Article 226 of the Constitution on the ground the order of transfer which merely stated that the traps for administrative reasons and in the public interest" was invalid. The learned Judge held that such requirement as the one contained in section 33-B(1) of the Act must be complied with both in substance and in letter. It was then observed:--- "There was a dispute between the employer on one side and the workman on the other and if the State Government was going act on the allegations made against the impartiality of the Industrial Tribunal for ordering transfer of proceedings at the instance of the employer, it was incumbent on it to give a reasonable opportunity to the other party to be heard before passing the impugned order which had serious effects on their rights. The order of transfer which was impugned by the workmen of Punjab Worsted Spinning Mills, Chheharta, was set aside by the learned Judge on both the grounds, viz., (i) that it was not by the statutory provisions to be therein, and (ii) it had been passed in violation of the principles of natural justice, inasmuch as the transfer had been ordered on the application of one of the parties without affording the other party an opportunity of refuting the allegations made by the party praying for transfer. Letters Patent Appeal No. 60 of 1963 preferred by the Management of the Punjab Worsted Spinning Mills, Chheharta, against the judgment of Harbans Singh, J., was dismissed by a Division Bench of this Court (Dulat and Grover, JJ.) on 19th February 1965. The learned Judges constituting the Division Bench repelled the argument of the counsel for the appellant to the effect that the order passed in that case was different from the one passed in Associated Electrical Industries' case inasmuch as the appropriate Government had in the case before the Supreme Court merely stated that it was expedient to transfer the case, which was merely stating a `conclusion', the State Government had in the Chheharta's case mentioned a reason, however brief the reason be, i.e. public interest, which according to the counsel for the employer was not a conclusion but the statement of reason. Dulat, J., held that the distinction sought to be made was somewhat subtle, but was not real. The learned Judge observed ---The Supreme Court, when holding that the statement, that 'it was expedient to transfer the case from the Tribunal to another, was not enough for the purposes of section 33-B of the Act, did not say that the appropriate Government-had merely stated its 'conclusion' but emphasised on the other hand its insufficiency, J and therefore, observed that the attempt of reasons must be substantial, and also said that sufficient reasons should be stated, the obvious meaning being that the statement of reasons ought not to be so vague as to leave everything to conjecture. It is in one sense was legitimate to say that an assertion, that public interest demands the transfer of a case, is merely the statement of a conclusion, as it is to say that expediency requires that the case should be transferred. What is really common in both the cases is that person reading the order is wholly unable to make out what led the appropriate Government to made the transfer order; the ground of public interest is no more illuminating than the ground of expediency, and the Supreme Court was, in my opinion, referring to this insufficiency in the contents of the order, when it struck down the order in Asso--ciated Electrical Industries' case (1961) 2 L L J 122 Mr. Misra urges that 'Public interest' is a well understood concept, but so is 'expediency' and so may be "administrative ground'. There is, however, no denying that a person, 'who learns that a transfer has been made in 'the public interest' or for 'administrative reasons' or in the 'interest of expediency' learns really nothing about the reason for transfer and if full effect is to be given to the observations of the Supreme Court that the requirement about the statement of the reason must be complied with both in substance and in letter, then it must be insisted that when a transfer order is mad under
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section 33-B of the industrial Disputes Act, the fact ought to be stated, which induced the State Government to exercise its power. In the present case such facts have not been stated. I am not saying that the State Government has, under section 33-B of the Act, to write a long or reasoned judgment, but there is no doubt, in view of the Supreme Court decision, that a clear indication of the particular reason requiring the transfer has to be given. I am not, therefore, able to agree that the present case is distinguishable from the case before the ' Supreme Court in Associated Electrical Industries (India) (Private) Ltd. v. Its Workmen (1961) . 2 L L J. 122 and, the learned Single Judge was, in my opinion, justified 'in holding that the order of transfer in the present case was illegal and could not be permitted to stand.--- In view of the finding of the Letters Patent Bench on the first point which had found favour with the learned Single Judge, the appellate Bench held that it was unnecessary to go into the more controversial question, whether the order of transfer was in the circumstances of that ease quasi- judicial or not. Mr. Ganga Parshad Jain, the learned counsel for the petitioner, then referred in this connection to the judgment of a Division Bench of this Court in the Municipal Committee, Kharar, District Ambala v. The State of Punjab (AIR 1967 Punj. 430); wherein while dealing with a somewhat similar question relating to the requirement of recording reasons in support of an order under section 238 of the Punjab Municipal Act (III of 1911) for superseding a Municipal Committee. I held as follows:- ---The first question that calls for determination in the above circumstances is whether merely repeating the words of the section, amounts to giving reasons, for superseding the Municipality or not. On behalf of the Municipality it is contended that the impugned notification merely contains the conclusions of the Government requisite for superseding it but not the reasons for arriving at those conclusions. It Appears to me that the reasons and the conclusion arrived at on account of a consideration of those reasons are two distinct matters. The repeating of the conclusion necessary to supersede a Municipality under section 238 of the Act cannot possibly be equated to the reasons impelling such a decision. The scheme of the section itself shows that the Legislature has specifically provided that a Municipal Committee should be allowed to be superseded only if and when the appropriate Government comes to the conclusion that the committee is incompetent to perform or has made persistent default in the performance of its duties under the Act or has exceeded or abused its powers. There must always exist reasons for the Government to come to that conclusion. A statutory safeguard against abuse of the powers conferred' on the State Government under section 238 of the Act has been provided by making it necessary for the Government to state the reasons for coming to the requisite conclusion in the notification itself. The decision of the State Government is not subject to any appeal. As a result of a notification under section 238 of the Act drastic consequences ensue.--- "It is open to this Court in exercise of its writ jurisdiction to see whether in a given case the notified reasons are at all germane to the exercise of power vested in the State Govern--ment for superseding a Municipality. The requirement to give reasons can also be supported on the ground that a mere reading of the notification should be able to help the Court in determining the bona fides of the State Government or its appropriate authorities if say order superseding a Municipality is challenged on the ground of mala fides. The orders of the State Government are subject to scrutiny by this Court in exercise of its writ jurisdiction within certain limits. The moment the reasons impelling the Government to take the impugned action are available to the Court it can be found out whether the same are extraneous or germane to the action taken. I would, therefore, hold that the mere copying of the words of the section into the notification amounts only to notifying the conclusions of the Governed and is no sub--stitute whatever for the statutory requirement of notifying the reasons leading the Government to take the action in question."
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Dua, J. (as the learned Chief Justice of the Delhi High Court then was), while agreeing with my judgment on the above--mentioned points further observed as below: "It is, however necessary for the notification superseding tine Committee to contain' reasons for the supersession. This requirement is expressed -in mandatory language and nothing cogent or convincing has been brought to our notice to persuade us to construe the requirement as merely optional or permissive. Indeed, it has not even been canvassed on behalf of the respondents that reasons can without entailing invalidation be dispensed with or that a notification even without stating the reasons is legally sustainable. The broad contention pressed before us is…
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