1960 (12) TMI 77 - SC - Indian Laws

Maintainability of an application made by the Employers Association of Northern India, Kanpur on behalf of , the J. K. Cotton and Weaving Mills Co., Ltd., a member of the Association in connection with the proposed termination of service of certain members of its Watch and Ward Staff challenged Held that - The Labour Appellate Tribunal of India rightly held that the application under cl. 5(a) filed on June 13, 1950 was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed. As already pointed out the order made by the appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be reached by any writ of the Allahabad High Court. In view of our conclusion that the application under cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Court s order must also be dismissed. Appeal dismissed.

Issues Involved:
1. Maintainability of the application under clause 5(a) of the Government Order.
2. Jurisdiction of the Board to entertain the application.
3. Applicability of clause 23 of the Government Order during the pendency of an inquiry.
4. Whether an industrial dispute arises upon the employer's decision to dismiss workmen.

Detailed Analysis:

1. Maintainability of the Application under Clause 5(a) of the Government Order:
The primary issue was whether the application made by the Employers' Association on behalf of J. K. Cotton and Weaving Mills Co., Ltd. under clause 5(a) of the Government Order was maintainable. The Labour Appellate Tribunal of India had previously held that such an application was not maintainable, relying on an earlier decision in Kanpur Mill Mazdoor Union v. Employers' Association of Northern India. The Supreme Court upheld this view, concluding that the application under clause 5(a) was not maintainable because clause 23 of the Government Order specifically required written permission from the Regional Conciliation Officer before discharging any workman during the pendency of an inquiry.

2. Jurisdiction of the Board to Entertain the Application:
The Board initially entertained the application and allowed the termination of services of the workmen, subject to compensation. However, the Industrial Court pointed out that the procedure adopted by the Employers' Association was defective as the Mills did not apply to the Regional Conciliation Officer for permission to discharge the sepoys. The Supreme Court agreed that the Board had no jurisdiction to entertain the application under clause 5(a) during the pendency of an inquiry, as clause 23 specifically barred such actions without the required permission.

3. Applicability of Clause 23 of the Government Order During the Pendency of an Inquiry:
Clause 23 of the Government Order prohibited the discharge or dismissal of any workman without the written permission of the Regional Conciliation Officer during the pendency of an inquiry or appeal. The Supreme Court emphasized the importance of this clause, noting that it was designed to prevent fresh disputes during ongoing inquiries. The Court held that the Employers' Association could not bypass this requirement by filing an application under clause 5(a), as doing so would render clause 23 ineffective and defeat its purpose.

4. Whether an Industrial Dispute Arises Upon the Employer's Decision to Dismiss Workmen:
The Court did not find it necessary to address whether an industrial dispute arises as soon as an employer decides to dismiss workmen and proposes to give effect to such a decision. The decision focused on the maintainability of the application under clause 5(a) and the applicability of clause 23, rendering this question moot in the context of the case.

Conclusion:
The Supreme Court dismissed both appeals, affirming that the application under clause 5(a) was not maintainable due to the specific provisions of clause 23, which required written permission from the Regional Conciliation Officer before discharging workmen during an ongoing inquiry. The Labour Appellate Tribunal of India's decision to set aside the awards of the Conciliation Board and the Industrial Court was upheld. The Court did not express an opinion on the preliminary objection regarding the jurisdiction of the Allahabad High Court to call for records from Calcutta. Both appeals were dismissed with costs to the contesting respondent, and one set of hearing fees was awarded.

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