CWP No.2369 of 2009 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CWP No.2369 of 2009
Date of decision August 3 , 2009
Adarsh Gupta
....... Petitioner
Versus
State of Haryana, through Secretary Labour Department, Haryana,
Chandigarh and others
........ Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. Sarjit Singh, Sr. Advocate with
Mr. Vikas Singh, Advocate and
` Mr. Jagdev Singh, Advocate
for the petitioner.
Mr. D. S. Nalwa, Additional Advocate
General, Haryana.
****
1. Whether reporters of local newspapers may be
allowed to see the judgment ? Yes
2. To be referred to the reporters or not? Yes
3. Whether the judgment should be reported in the
digest? Yes
K. Kannan, J.
I Scope:
1. The above writ petition and a batch of 70 other
cases involve a common question, namely, the validity of the notices
issued by the Government of Haryana through the Secretary to
Government, Labour Department to two named individuals purporting to
represent the Management as liable for prosecution under Section 25-U for
violation of Section 25-T of the I. D. Act. The prosecution notices which
are impugned in the writ petitions germinated from individual complaints of
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about 70 workmen against the Management when they were served with
orders of transfer from the place where, the factory was situate, namely, at
Gharaunda District Karnal to Phusgarh Road where, according to the
workmen, no unit of factory had been as yet established. Mala fides of the
action, according to the workmen were seen from the fact that they were
deliberately transferred after their plea to the government to close down
some units was turned down, to a place where there was not even a
manufacturing unit and the orders issued by the Management to
constituted ‘unfair labour practice’.
2. The Government had issued show cause notices
to one Adesh Gupta , who was shown as “occupier” of the factory in
relation to certain manufacturing units of the factory. Another person was
Adarsh Gupta who had not been issued with any notice at all but the
impugned orders had been issued against the above named two
individuals as ‘occupiers’ of the manufacturing units. The Government
received objections only from Adesh Gupta but still proceeded to issue the
impugned orders. The impugned orders could be seen as stereo typed in
that they say that in exercise of the powers conferred under Section 32 and
34 of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘Act’).,
the Governor of Haryana authorized the Labour Commissioner to lodge a
complaint against the two named private individuals referred to above
under Section 25-T read with Section 25-U of the Act in the Court of the
Magistrate Ist class, Karnal.
II Grounds of Challenge:
3. The notices are challenged in this batch of 70 writ
petitions on common grounds viz. (i) The Government did not have any
power to determine whether the particular act complained of constituted
‘unfair labour practice’. Without adjudication and finding by the Labour
Court that the action complained of by the workmen against the
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Management constitute unfair labour practice, the Government itself cannot
arrive at such a conclusion and launch a proceeding; (ii) Adesh Gupta who
is petitioner in several petitions had no doubt been served with show cause
notices but the action taken by the Government deciding to launch a
prosecution without considering the objections given by him that he was
not an “occupier” of the Units from where some workmen had been
transferred and without considering his objection that he had not
transferred any workmen at all, was the result of a complete non-
application of mind of the Government and hence vitiated. (iii) As regards
Adarsh Gupta though he was a Director of the Company, no notice at all
had been issued to him personally and the order without any proper notice
constituted violation of principles of natural justice and hence not justified.
(iv) The attempt to prosecute was an extraordinary power which could not
be exercised in a cavalier fashion for alleged wrongs committed by the
Company without ascertaining the actual personnel who was responsible
for the decision made on behalf of the Company.
III Text of impugned order(s)
The impugned order reads as thus:-
“Whereas the management submitted the reply to the
above said show cause notice but the same was found
to be evasive as they did not explain the existence of
condition of work in any standing order or appointment
letter of any worker which provided for transferability of
any worker to any other location. Besides the
management also did not prove and explain the
existence of factory registered under the Factories Act,
1948 of a place to which the concerned worker was
transferred. The management was also afforded
hearing on different dates but they failed to supplement
the submission already made in their written reply.
Whereas Sh. Adarsh Gupta is responsible
person being Occupier of the factory from which the
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concerned workman was transferred and he has
committed unfair labour practice within the meaning of
entry 7 of Vth Shedule to the Industrial Disputes Act,
1947 and is liable to be prosecuted under Section 25-U
for violation of Section 25-T of the above said Act.”
Note: (The respective orders in each one of the writ petitions incorporate
respective name of the petitioners only and they are left out.)
4. It should be noted that the impugned orders
themselves did not impose any penalty. It is the first stage taking a
decision for setting criminal process in motion. At this stage, no one is
found guilty. The details of the wrong attributed to the respective private
individuals, though form the basis for the complaint, are not put on record.
The trial has not commenced nor is any charge sheet levied. It is at this
stage that all the petitioners have resorted to the writ petitions that the
batch of writ petitions have been filed at the instance of the two named
individuals.
IV Non-maintainability of writ petition, as perceived by
State.
5. To the argument of the learned counsel on behalf
of the petitioners that the Government itself does not have power to take
action or decide that the acts complained of constituted unfair labour
practice, learned counsel for the State points out that the unfair labour
practice is defined under Section 2 (ra) as meaning any practice specified
in the 5th Schedule and the 5th Schedule includes, the acts, inter alia, in
entry 7 “to transfer a workman mala fide from one place to another, under
the guise of following management policy”. According to learned counsel
appearing for the State submits that the Government could not have
referred the matter for adjudication under Section 10 in view of the fact that
the transfer per se would not qualify for reference since only matters
pertaining to 3rd Schedule could be adjudicated under Section 10 (i)
proviso, of the Act. . He would submit that an ‘ Industrial dispute’ under
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Section 2-K could not to be adjudicated since all the complaints have
originated not through the union but by individual workmen whose right to
seek for adjudication stems only under Section 2-A and it applies only to
issues of discharge, dismissal and retrenchment etc. and it would not be
possible even for the individual workman to seek for adjudication on a
subject mentioned in Schedule V.
V. Complaint of unfair labour practice could originate
even from an individual workman.
6. In my view, the fact that individuals cannot seek
for references for any matter other than issues of discharge/dismissal as
found under Section 2-A itself contains an answer to the query whether the
issue of ‘unfair labour practice’ could be decided only by a Court and
whether it would be incompetent for the Government to make such a prima
facie inference before deciding to take action for prosecution. In a similar
fashion if we must see that the definition of ‘Industrial dispute’ under
Section 2-K contains a larger scope for an enquiry relating to a dispute
between employees and hence confined only to a dispute espoused
through a Union, it would lead to an absurd consequence of a complaint
of unfair labour practice being unavailable to an individual workman.
Sections 25-T and U could not be seen in a restrictive sense as enabling
only the union to seek for adjudication through reference and disabling any
individual workman to complain of unfair trade practice.
VI Prima Facie finding of unfair labour practice is the
only pre-requisite- No final proof necessary at the
stage of complaint.
7. The power exercises under Section 32 and 34 is
after coming to a prima facie conclusion that there is ‘ unfair labour
practice’ The respective Sections do not stipulate any one authority to be
exclusive for determining this question, as it does not state anywhere that
this finding could be rendered by the Labour Court on a reference from the
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Government. If the Section 25-T itself prohibits ‘unfair labour practice’ and
Section 32 provides that if an offence is committed by a Company, every
Director, Manager, Secretary or other Officer concerned with the
Management shall, unless he proves that the offence was committed
without his knowledge or consent, be deemed to be guilty of such offence.
It means that power of adjudication does not reside even with the
Government any more than obtaining relevant information in order to take
further proceedings provided under Section 34 of the Act. Section 34 of the
Act provides thus:
34. Cognizance of offences: (1) No Court shall take
cognizance of any offence punishable under this
Act or of the abetment of any such offence, save
on complaint made by or under the authority of
the appropriate Government.
(2)` No Court inferior to that of a Metropolitan
Magistrate or a Judicial Magistrate of the first
class shall try any offence punishable under this
Act.”
The cognizance of the offence itself shall not be made either by the
Government or by the Labour Court. Such a power resides in a Magistrate
of the Ist Class who shall try any offence punishable under the Act. It is
this Section which gives a clue to who determines the commission of the
offence which the law interdicts under Section 25-T and prescribes the
penalty under Section 25-U of the Act. In Mysore Structurals Ltd. and
others 2002 1 SCC 477, the Hon’ble Supreme Court referred to Section 34
and 29 of the Act to hold that Section 34 is in the nature of a limitation on
the entitlement of a workman or a trade union or an employer to complain
about the offences under the Act and the object behind the said limitation is
to restrain the complainant from making frivolous, vexatious or otherwise
patently untenable complaints.
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VII Power to initiate action with appropriate
government,effect.
8. Again, the Section places the power not on any
private individual but leaves it to the appropriate Government. The
Hon’ble Supreme Court held in Workmen of Meenakshi Mills Ltd. and
others Vs. Meenakshi Mills Ltd. and another 1992 (3) SCC 336 that a
power which is entrusted to the Government under Section 25-N is of such
a nature that it was always expected that a responsible decision is taken
and it noted that the power vested in the Government itself to be an
inherent check against arbitrary exercise of such power. As is Section 25-
N, so with Section 34 of the Act. In Hindustan Lever Ltd. Vs. Ashok
Vishnu Kate and others (1995) 6 SCC 326 the Hon’ble Supreme
Court dealt with distinction in the procedure contained in the Maharashtra
Recognition of Trade Unions and Prevention Act, 1971 and the provisions
that were contained under the Act. While detailing the differences the
Hon’ble Supreme Court held that Section 25-T of the Industrial Disputes
Act prohibits an employee or Union or workman from committing any unfair
labour practice, while the Maharashtra Act prohibited any employer or
Union or employee from engaging in any unfair labour practice, which was
a more comprehensive term. Section 25 H makes a direct prosecution
possible while the Maharashtra Act requires the prosecution to be
preceded by an adjudication by a competent Court regarding such
engagement. This distinction in my view is very significant. Unlike the
Maharashtra Act, the Industrial Disputes Act puts the adjudication for the
purpose of applying the penal provision to unfair labour practice only in the
hands of a Ist class Magistrate. The High Court, in my view, shall not
cause an impediment for the legal action to ensue at such a preliminary
stage, when the government forms opinion about commission of the
offence and decides to lodge a complaint.
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VIII. Premature interference by High Court, undesirable
9. The Industrial Disputes Act being a welfare
legislation, its provisions should be so interpreted as to effectuate the
intendment of the Act. The Hon’ble Supreme Court cautioned in People’s
Union for Democratic Rights Vs. Union of India and others 1982 (3)
SCC 235 that violation of labour laws must be strictly followed and
appropriate and adequate punishment must be imposed. Adverting to the
provisions of various labour laws in relation of the workman employed in
the construction connected with the Asian Games, the Hon’ble Supreme
Court observed that labour laws are enacted for improving the conditions
of workers and the employers can not be allowed to buy off immunity
against violations of labour laws…. All this is only to state that a violation
of the provisions of the Act or the enforcement of the prohibition of
commission of unfair labour practice are serious enough that the High
Court in its exercise of writ jurisdiction, shall not interfere in lackadaisical
fashion for an action proposed by the Government to give effect to some of
the penal provisions of the Act.
IX Inherent safeguards under Section 34 of Industrial
Disputes Act.
10. The persons against whom the proceedings are
sought to be taken have come to no harm to this date. I have already
outlined scope of the impugned orders. The proceedings contemplated
under Section 34 are not a warrant procedure. In a summons procedure,
a complaint has to contain all the necessary details and the trial could
proceed only on the basis of facts revealed in the complaint against
persons who are sought to be proceeded against for alleged commission of
the prohibited offence. The sufficiency of details in the complaint before a
Magistrate can issue summons to the persons against whom the action is
proposed is the first safeguard against the frivolous complaint. The fact
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that the complaint should be lodged only by the Government which is a
responsible body is the second safeguard against the irreverent use of the
provisions. Per chance, if the basic safeguards are flouted and a
complaint is made with no details sufficient to hold the persons responsible
such persons against whom complaint is made, they shall always have
opportunity to resort to the relevant provisions of the Criminal Procedure
Code to have the complaint quashed. If the complaint passes the stage
and summons are issued the workman shall still have opportunity to allow
the case to go through trial and require the prosecution to establish its
case. If the Government cannot show that any of the persons against
whom the prosecution is attempted is not in any way responsible for the
transfer, on that day comes the sure exit for the petitioners. Again, if it is
not shown by the prosecuting agency that the persons against whom the
action was proposed had not been guilty of any mala fide exercise of the
power of transfer that should also be possible at the stage of trial to
establish that they were not owners or occupiers of the manufacturing
units from where the particular workmen were ordered to be transferred, or
that they had no role to play at all in the orders of transfers will be matters
that could be established only at the trial. In other words, every one of the
contentions which is sought to be now raised to throw a cloud of doubt to
prosecute the named individuals could be appropriately taken at the stage
when the case is filed and when summons are issued. This is not certainly
an occasion propitious to intervene under Article 226.
11. The Delhi High Court held through its
decision in Tarlok Chand Vs. National Industrial Development Corpn.
Ltd. 1994 (4) SCT 745 that a relief under Article 226 of the Constitution
cannot be availed to consider whether the Management had been guilty of
unfair labour practice. The Delhi High Court was dealing with a case of a
workman’s complaint against the Management that it was guilty of unfair
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labour practice and the Court had held that the appropriate remedy would
be to seek a reference. In this case, a reference is not sought by either the
workman or the Management and the Government had taken a prima facie
decision that there had been an offence committed. Most importantly, the
Government, at this stage when it proposes to take the action, does not
itself have the power to impose any penalty, it is always left in the hands of
the judiciary. In this case, it shall be the Judicial Magistrate who shall
decide whether it is a fit case to take cognizance of the case and issue
summons and if it chooses to issue summons to decide whether the
offence has been committed against the persons who are accused.
X Conclusion:
12. The complaint of want of notices or solid proof
against the persons against whom the orders are issued are quite
unnecessary at this stage.The intervention as sought for through writ is
impermissible and unwarranted. The writ petitions are dismissed. No costs.
(K. KANNAN)
JUDGE
August 3, 2009
archana