IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.03.2002
CORAM
THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM
WRIT PETITION Nos.4884 to 4887 of 2002 and WRIT PETITION Nos.5651 of 2002
and
W.P.M.P.Nos.6906 to 6909 and 7853 of 2002
Anaimalai National Estate
Workers Union represented
by its General Secretary,
Valparai. Petitioner in W.P.No.4884 of 2002
Anaimalai Ambedkhar Thotta
Makkal Sangam represented
by its General Secretary,
Valparai. Petitioner in W.P.No.4885 of 2002
Anaimalai Dravida Thozhilalar
Munnetra Sangam (LPF),
Valparai, represented by its
General Secretary. Petitioner in W.P.No.4886 of 2002
Tamil Nadu Plantation Worker's
Union, represented by its
General Secretary,
Coonoor. Petitioner in W.P.No.4887 of 2002
Edayadeivam M.G.R.Thotta Thozhilalar
Sangam, represented by its President,
Valparai. Petitioner in W.P.No.5651 of 2002
/versus/
1.The Planter's Association
of Tamil Nadu, Coimbatore.
2.Stanmore Estate,
represented by its Manager,
Valparai.
3.Injiparai Estate
represented by its Manager,
Valparai.
4.Siricundra Estate,
represented by its Manager,
(M/s.Hindustan Levers Ltd.),
Valparai.
5.Panchamalai Estate,
represented by its Manager,
Valparai.
6.Valparai Estate,
represented by its Manager,
Valparai.
7.Veloni Estate,
represented by its Manager,
Valparai
8.Urilikal Estate,
represented by its Manager,
M/s.Tata Tea Ltd.
Urilikal Estate Post,
Valparai.
9.Pannimedu Estate,
represented by its Manager,
M/s.Tata Tea Ltd.,
Pannimedu Estate Post,
Valparai.
10.Sholayar Estate,
represented by its Manager,
Sholayar Estate (P.O.),
Valparai.
11.Kallar Estate,
represented by its Manager,
M/s.Jay Shree Tea and
Industries Ltd.,
Sholayar Estate (P.O.)
12.Water falls Estate-East,
represented by its Manager,
Water falls Estate (PO).
13.Water falls Estate-West,
Water falls Estate (PO).
14.Iyerpadi Estate,
represented by its Manager,
(M/s.Parry Agro Industries Ltd.),
Iyerpadi Estate (PO).
15.Paralai Estate,
represented by its Manager,
(M/s.Parry Agro Industries Ltd.),
Iyerpadi Estate (PO).
16.Murugally Estate,
represented by its Manager,
(M/s.Parry Agro Industries Ltd.),
Murugally Bazaar (PO).
17.Sheikal Mudi Estate,
represented by its Manager,
(M/s.Parry Agro Industries Ltd.),
Murugally Bazaar (PO).
18.Mukkottumudi Estate,
by its Group Manager,
Mudis Group,
M/s.Bombay Burmah Trading
Corporation Ltd.,
Mudis Post.
19.Thonimudi Estate,
by its Group Manager,
Mudis Group,
M/s.Bombay Burmah Trading Corpn. Ltd.,
Mudis Post.
20.Thayamudi Estate,
by its Group Manager,
Mudis Group,
M/s.Bombay Burmah Trading Corpn. Ltd.,
Mudis Post.
21.Gajamudi Estate,
by its Group Manager,
Mudis Group,
M/s.Bombay Burmah Trading Corpn. Ltd.,
Mudis Post.
22.Anamudi Estate,
by its Group Manager,
Mudis Group,
M/s.Bombay Burmah Trading Corpn. Ltd.,
Mudis Post.
23.Karamalai Estate,
represented by its Manager,
(M/s.Periya Karamalai Tea
& Produce Company Ltd.),
Karamalai Bazaar Post,
Valparai.
24.Akamalai Estate,
represented by its Manager,
(M/s.Periya Karamalai Tea
& Produce Company Ltd.),
Karamalai Bazaar Post,
Valparai.
25.Vellamalai Estate,
represented by its Manager,
(M/s.Periya Karamalai Tea
& Produce Company Ltd.),
Karamalai Bazaar Post,
Valparai.
26.Nadumalai Estate,
represented by its Manager,
(M/s.Periya Karamalai Tea
& Produce Company Ltd.),
Karamalai Bazaar Post,
Valparai.
27.Waverly Estate,
represented by its General Manager,
NEPC Tea Garden,
Water falls Estate Post,
Valparai.
28.Mount Stuart Tea Estate,
represented by its General Manager,
NEPC Tea Garden,
Water falls Estate,
Valparai.
29.Commissioner of Labour,
Teynampet,
Chennai 600 006. Respondents in all
cases.
30.PASI Tea Research Foundation,
represented by its Director,
Nirar Dam BPO,
Valparai,
Coimbatore District. R.29 in WP.4885/2002
For petitioners in all cases : Mr.K.Chandru,
Senior Counsel, for
Mr.D.Hariparanthaman in
WP.Nos.4884 to 4887 of 2002
Mr.S.Saravanan, in
WP.No.5651 of 2002
For 1st respondent : Mr.Vijay Narayan
For 2nd respondent : Mr.A.L.Somayaji,
Senior Counsel for
Mr.T.S.Gopalan
For 12th respondent : Mr.R.T.Doraisami
: ORDER
These writ petitions have been filed by the different
Trade Unions registered under the Trade Unions Act,1926, representing the
Plantation Workmen employed in the various Estates in Valparai, Anaimalai
areas in Coimbatore District. According to them there are about 24,000
permanent workmen and about 26,000 temporary workmen and daily rated
workmen employed in the Estate/respondents 2 to 28. Considering that
identical issues are raised in all the above writ petitions, it is
convenient to refer to the facts stated in W.P.No.4884 of 2002.
2.According to the petitioner, the Union has been
entering into various settlements from time to time right from 1962
separately for each category of workmen regarding the wages and working
conditions. The last of such settlement was entered into between Unions
and the first respondent under Section 18(1) of the Industrial Disputes
Act ( hereinafter called “the Act”) on 10.7.1996`. Though the period of
settlement was for three years, ending on 31.12.1998, the terms of the
settlements stand automatically extended even after the said period in
terms of Section 19(2) of the Act. Regarding wages of Supervisory staff
and the skilled workers also, similar settlement was arrived at on
2.5.2000 for the period commencing from 1.9.1999 and for the general
category on 12/13.1.2000 for the period commencing from 1.1.1999 to
31.12.2001.
3.In terms of such settlement the employees have also
been receiving apart from wages, Dearness Allowance, incentive etc. On
completion of the period of settlement, they had demanded revision of the
wages considering the price of essential commodities. But to their
surprise and shock the Planters Association of Tamil Nadu, the first
respondent herein (P.A.T.) issued three individual notices dated
24.10.2001 informing their intention to terminate the settlement dated
10.7.199 6, 2.5.2000 and 12/13.1.2000 with effect from 31.12.2001.
4.On receipt of such notices almost all the Unions wrote
letters objecting to the proposals and requested withdrawal of the
proposals. Instead of holding talks and arriving at a mutual settlement,
respondents 2 to 28 sent individuals notices on 30.11.2001 and 8.12.2001
to all Unions under Section 9-A of the Act seeking to withdraw, alter,
modify the existing benefits flowing from the said settlement. The
changes thus contemplated not only result in reduction of wages and
incentives, but also changes in the work pattern resulting in increased
work load. A conciliation notice dated 7.12.2001 was received from the
Commissioner of Labour, 29th respondent. The Union and the first
respondent Association took part in the Conciliation proceedings and the
29th respondent advised respondents 2 to 28 not to give the effect to the
proposed changes and also both parties to have bilateral negotiations to
resolve issues amicably. As on the date of the writ petition, nine
rounds of talks were held, but the first respondent was adamant in
implementing the proposed change in working conditions. Respondents 2 to
28 have also notified that the wages and other benefits for the month of
January, 2002 would be paid only in accordance with the changes proposed
in the notice issued under Section 9-A of the Act. The disbursement of
wages will be made with effect from 7th or 10th of every month depending
on the strength of the workers in each of the estate. According to the
petitioner Union, as per the proposed change each workmen will lose about
30 to 40 per cent. Consequently, the workers refused to receive wages
for the month of January, 2002. It is further stated that the settlement
cannot come to an end without following the procedure under Section 19(2)
of the Act. It was also not open to the management to change the terms
and conditions of service during the pendency of the dispute.
5.In their counter, the Planters Association have not
disputed the details relating to the execution of the settlement as
arrived at between the parties as pleaded by the petitioners; but would
state that the agreements were terminated by issuing notice under Section
19(2) of the Act with effect from 31.12.2001. Thereafter, individual
notices have been issued by each of the Estate separately under Section
9-A of the Act and not by the Association. It is also pleaded that the
writ petition is not maintainable since the individual Estate or the
Planters Association is not a State or Instrumentality of the State in
terms of Article 12 of the Constitution of India and hence no mandamus
can be issued against respondents 1 to 28. As a result of the financial
crisis faced by the Tea industry and the Plantation, the proposed
revision of wages was imminent and necessary and in fact a High Level
Meeting of the representatives of the employers and the Union was
convened and also a meeting took place with the Hon’ble Minister for
Labour and pursuant to the said meeting they had requested the Joint
Commissioner of Labour by their letter dated 29.11.2001 to convene a High
Level meeting. Notice under Section 9-A of the Act was given between
30.11.2001 and 8.12.2001. Notice of Conciliation was given by the Joint
Commissioner on 7.12.200 1. Even prior to 1.1.2002 (when the changes in
the condition of service were to take effect) on 18.12.2001 itself the
Commissioner directed both parties to hold direct talks between
themselves. Such talks did commence on 1.1.2002 and continued on several
dates. Therefore, there was no Conciliation proceeding pending on
1.2.2002 or subsequently. It is further stated that the Association has
only a representative status and hence the intimation given by the Labour
Commissioner to the Association cannot be treated as notice to individual
employers. The parties are still carrying on by-partite negotiations in
which the petitioner’s Union are also taking part. There is no
contravention of Section 33 of the Act in any manner. Even assuming that
a Conciliation proceeding was pending as alleged by the petitioners and
that there was any violation of Section 33 of the Act, the petitioners
should have filed a complaint under Section 33-A of the Act and the
Conciliation Officer should have held discussions in an attempt to arrive
at an interim arrangement. Section 33-A of the Act itself provides an
alternative and efficacious remedy and hence, there was no justification
to invoke the jurisdiction of this Court under Article 226 of the
Constitution of India.
6.It is further stated that earlier there was a direct
industrywise negotiation covering all the areas and because of the delay,
the Unions operating in Nilgiris District, has expressed desire to arrive
at a settlement in respect of their areas, covering plantations in the
Taluks of Udhagamandalam, Kotagiri, Coonoor. A settlement was arrived at
agreeing on fixing wages at Rs.70/- per day plus Attendance bonus of
Rs.2/- per day and thus in respect of a major Plantation area, settlement
had been arrived at. The settlement was to remain in operation for a
period of three years. It is further stated that the settlement covers
more than 12,000 workmen. In fact, the Unions affiliated to the Central
Federations to which some of the present petitioner’s Union are
affiliated, are also signatories to the said settlement.
7.In the counter, further details have also been given
which according to the first respondent, would provide more than adequate
reasons to justify the downward revision of wages as contemplated. The
circumstances thus expressed include various factors such as
Liberalisation policy of Government of India, Trade policy allegedly
dictated by the World Trade Organisation (W.T.O.), general recession in
the industries etc. Considering the issues which are relevant for the
disposal of these writ petitions, there is no need to go into those
details.
8.Separate counter affidavits have been filed by the
various Estates (i) 12th respondent (ii) Respondents 14 to 17 (iii)
Respondents 23 to 26. The defence taken therein are almost similar to
that of the counter filed by the Association. In addition, they have
also pleaded reasons for justifying the downward revision of the wages.
9.Mr.K.Chandru, learned Senior Counsel for the
petitioners submits that the proposed revision affects not only the
service conditions, but also the very living conditions of the labour
force in the area. Cut in the wages and allowances were so drastic that
it was not possible for the petitioners/workers to survive. There was no
justification in comparing the workers in Nilgiris area as most of them
are natives of the said area while the workers in Anaimalai and Valparai
areas are migrants from other Districts. He would also state that if the
very same Unions had agreed for the settlement in the Nilgiris area and
they are not agreeing for Valparai area, it cannot be due to any ulterior
motive. The objections are based only due to peculiar conditions of one
area and therefore, it was neither proper for comparing one area with the
other nor to contend that the petitioner’s Unions were unnecessarily and
deliberately refusing to arrive at a settlement.
10.It is further contended that the existing service
conditions as covered by the settlement can be altered only by following
procedure under Section 19(2) of the Act. It was the employer who had
given notice under Section 9-A of the Act and had also approached the
authorities under the Act and had commenced the Conciliation proceedings.
That being so, it was not open for the respondents to violate the
provisions of Section 33(1) of the Act and seek to alter the conditions
of service to the disadvantage of the employees during the pendency of
the Conciliation proceedings. Such conduct not only amounted to
non-compliance of the statutory provisions, but also attracted penal
provisions. Therefore, respondents cannot be permitted to raise
technical objections such as alternative remedy or the maintainability of
a writ of mandamus.
11.Mr.A.L.Somayaji, learned Senior Counsel for some of
the employers contends that the writ petition itself is not maintainable
as against a Private Company. It is further stated that there was no
Conciliation Proceeding pending as on date, in view of the fact that the
Commissioner had directed bipartite talks among the parties and talks
were taking place. Hence, Conciliation proceedings have come to an end.
The Conciliation Proceeding was no more subsisting. The roll of the
Conciliation Officer was only to bring about a settlement and he does not
decide rights of parties. He would further submit that even assuming
that Conciliation was pending, the Unions had the alternative remedy of
invoking Section 33-A of the Act to implement the existing service
conditions or to invoke Section 33(c) of the Act. The alleged violation
of Section 33(1) cannot justify invoking extraordinary jurisdiction of
this Court. Facts and figures were also furnished by learned Senior
Counsel to support the contention that the Plantation industry was facing
a crisis and it was no more possible to comply with the old wages. I
would be subsequently dealing with the rulings cited by learned Senior
Counsel in the context of the above submissions.
12.Mr.Vijay Narayan learned counsel appearing for the PAT
contended that it was within the rights of the management to give effect
to the changes contemplated under the notice under Section 9-A of the Act
after notice is given. The effect of the provision under Section 33(1)
of the Act has to be considered in the light of the other provisions of
the Act. The duties of the Conciliation Officer in the context of public
utility services were dealt with under Section 12 of the Act. His duties
in the context of other institutions cannot also vary and his duty was
only to bring about a settlement if possible and he was not deciding the
rights of parties. Learned counsel also very strenuously pleaded that
the very survival of the plantations was becoming impossible and in fact,
the labour wing were fully aware of the position and that is the reason
why the Union in other areas had come to amicable settlement agreeing for
bringing down the wage structure. This is not an industry which can be
closed down or be subject to lay-off, as in the case of other types of
industries. Therefore, the labour force should realise that the survival
of both would depend upon each other and being alive to the realities of
the financial constraints on the management. He would also submit that
notice of Conciliation was not given to the employers individually and
hence, cannot be construed as a Conciliation proceeding within the
meaning of Section 33 of the Act. The notice given to the Association
cannot be construed as notice to the individual employer. On the facts
of the case, the Conciliation Proceedings cannot be said to have
commenced. He would further submit that even in a case where no notice
under Section 9-A of the Act was given, it is not in every case, the
Court would be inclined to interfere. There is no public duty cast upon
the employer. The issues are purely contractual. It is further stated
that the negotiations were proceeding in the right direction and if there
should be interruption by the Court now at this stage, it might result in
scuttling an amicable settlement.
13.Mr.R.T.Doraisamy, appearing for the 12th respondent
contended that the employees had acted bona fide by initiating
proceedings for Conciliation and genuine attempts were being made to find
out proper solution. It is only a minority section of the employees who
were opposing the settlement.
14.In reply, Mr.K.Chandru, learned Senior Counsel,
contended that both the management and the labour were not at the same
bargaining level. The very survival of the workers was at stakes. If
certain concessions have been announced in the present Central Budget, it
was due to joint-lobbying with the Government which shows that the labour
was very much interested in the survival of the Plantation. The
management was aiming only at keeping up its proportion of profits by
reducing the salary unmindful of the consequential adverse effects which
cannot be borne by the labour. This was a labour intensive industry
which cannot contemplate reduction of the work force and that is the
reason why the employers have thought it fit to cut down the wages
unmindful of its grave effects on the workers. As regards the issue as
to whether Conciliation Proceedings could be stated to be pending or not,
learned Senior Counsel referred to the pleadings of the respondents
themselves to support his contention that the proceeding was very much
pending.
15.I have considered the submissions of both sides and
given my utmost consideration. The points for determination can be
broadly formulated as follows:-
(a) Maintainability of the writ petition;
(b) Alternative remedy and monstrosity of the issue;
(c) Whether as on date the Conciliation Proceeding is
pending?
(d) Whether the notice given to the Association is
sufficient to bind the individual employer/Estate.
16.MAINTAINABILITY:
The contention that a writ of mandamus cannot be issued
as against a Private Company especially where no public duty is involved
in the discharge of duties, is mainly based on the judgment of the
Supreme Court in V.S.T.INDUSTRIES LTD. v. V.S.T. INDUSTRIS WORKERS’
UNION (200 1 (1) S.C.C., 298). Much reliance is placed on the
observations contained in paragraph No.8 of the judgement which is as
follows:
“The High Court has relied very strongly on the decision
of a learned single Judge in T.GATTAIAH CASE where in it was stated that
a writ may lie under Article 226 of the Constitution against a company
incorporated under the Companies Act, 1956 as it is permissible to issue
a writ against any person. Prima facie, therefore, a private person or
an incorporated company cannot be taken out of the sweep and
contemplation of Article 226 of the Constitution. That decision does not
take note of the fact as to the nature of the functions that a person or
an incorporated company should be performing to attract judicial review
under Article 26 of the Constitution. In ANANDI MUKTA CASE this Court
examined the various aspects and the distinction between an authority and
a person and after analysis of the decisions referred in that regard came
to the conclusion that it is only in the circumstances when the authority
or the person performs a public function or discharges a public duty that
Article 226 of the Constitution can be invoked. In the present case, the
appellant is engaged in the manufacture and sale of cigarettes.
Manufacture and sale of cigarettes will not involve any public function.
Incidental to that activity there is an obligation under Section 46 of
the Act to set up a canteen when the establishment has more than 250
workmen. That means, it is a condition of service in relation to a
workman providing better facilities to workmen to discharge their duties
properly and maintain their own health or welfare. In other words, it is
only a labour welfare device for the benefit of its workforce unlike a
provision where the Pollution Control Act makes it obligatory even on a
private company not to discharge certain effluents. In such cases public
duty is owed to the public in general and not specifically to any person
or group of persons. Further the damage that would be caused in not
observing them is immense. If merely, what can be considered a part of
the conditions of service of a workman is violated then we do not think
there is any justification to hold that such activity will amount to
public duty. Thus, we are of the view that the High Court fell into
error that the appellant is amenable to writ jurisdiction.”
17.Mr.A.L.Somayaji, also relies on few other
judgments in support of the same contentions.
18.The statement of law thus expressed by the
Supreme Court in V. S.T.INDUSTRIES case, supra, had already been
pronounced by the Supreme Court in PRAGA TOOLS CORPORATION v. IMANUAL
(1969 (2) L.L.J., 749).
19.In that case also, the Supreme Court observed
that mandamus would lie to secure the performance of a statutory duty and
as such the condition precedent for the issue of a mandamus is that there
should be legal right in the petitioner and also could be issued to a
person or to a Corporation to do a particular thing which is in the
nature of public duty. Therefore, we have to see whether the principles
stated in PRAGA TOOLS case, and VST INDUSTRIES case, supra, would nonsuit
the petitioners in seeking for direction to the respondents to comply
with their statutory duties and obligations.
20.The power of the writ Court to issue the
prerogative writs is well known. There is no controversy over the
position that it is an extra-ordinary and plenary power to be exercised
by the Supreme Court and the High Courts and could be issued to any
person inclusive of a private individual. Whatever restrictions or
embargo which are placed against the exercise of such power are only a
series of self imposed restrictions which the Courts have imposed upon
themselves considering that it is a discretionary remedy. Normally writs
will not be issued in situations such as availability of alternative
remedy, parties approaching the Court very belatedly, notices which are
in the nature of show-cause notices, Executive functions which are
administrative and discretionary in nature and based on the subjective
satisfaction of the authorities etc. Likewise, for issuing writs
positively, notwithstanding any of the above mentioned self imposed
restrictions, writs can be issued for securing ends of justice, the
Executive Authority acting without application of mind or without
jurisdiction and deliberately violating statutory obligations and last
but not the least when the action of respondents may be described as
“monstrous”. What is to be characterised as monstrous is no doubt to be
left to the judicial conscience in the exercise of its discretion in the
facts and circumstances of each case.
21.The question whether a writ can be issued to a
private person and a Private Company is positively answered in the above
two judgments themselves relied on by the employers namely, in PRAGA
TOOLS’s case and VST.INDUSTRIES case, supra. It is made clear that writ
can be issued to a private individual or a Corporate body or Company and
such category of persons need not be discharging any public or statutory
duty. Distinction is made only on the basis as to whether the impugned
action of the respondents is in relation to any public duty or statutory
duty. In VST.INDUSTRIES case, supra, in spite of the Supreme Court
having found that the Company was not involved in any public duty, at the
same time made it clear that if the same Company was violating the
provisions of the Pollution control Act, a writ can be issued.
Therefore, there is no question of any blind or universal embargo against
issuing a writ against a private individual or a Company. If they
violate statutory or public duties or indulge in monstrous activities,
writ can be issued.
22.While attempting to interpret the judgments of
the Supreme Court in PRAGA TOOLS case, supra, and VST.INDUSTRIES case,
supra, it is needless to emphasise that the first principle of rule of
precedents is that a decision is an authority for only what it decides
and what it specifically deals with. The ratio of a decision cannot be
operative to all situations by ignoring the background in which the
judgment had been rendered. It is also settled proposition of law that a
judgment cannot be interpreted as an Act of Legislature, but would govern
only the specific, legal and factual issues dealt with by the judgments.
23.In PRAGA TOOLS case, supra, two rival Trade
Unions had executed two different agreements with the management under
Section 18 of the Act. One group of workmen approached the High Court
under Article 2 26 of the Constitution of India questioning the agreement
executed by the rival group. A mandamus was sought for to restrain the
Company from implementing the agreement. Needless to say that the issue
was purely contractual and there was no statutory violation much less
transgression of any public duty. Likewise in VST.INDUSTRIES case,
supra, the issue was as regards the provisions of the Factories Act and
not about the obligations arising under the Industrial Disputes Act. The
prayer was for a mandamus to treat the employees of the canteen of one of
the factories belonging to the Company, as employees of the Company
itself. This plea was rejected by the Supreme Court in the context of
Section 46 of the Factories Act, 1948 and it was rightly held that no
public duty was involved in the running of the canteen. This judgment is
only a restatement of the law on the subject.
24.In GENERAL UNION v. K.M.DESAI (1990 (1)
L.L.N., 181, a learned single Judge of Bombay High Court held that the
employees of a canteen under a contractor do not become direct employees
of the Company.
25.In WORKMEN OF ASHOK LEYLAND LTD. v. ASHOK
LEYLAND & OTHERS (199 1 (2) L.L.J., 12, a Division Bench of this Court
held that such employees of the canteen do not become the employees of
the Company or the occupier of the factory.
26.In WORKMEN, S.R.F.LTD. v. GOVT. OF TAMIL
NADU (1995 (1) L.L.N., 485, again a Division Bench of this Court held
that there was no obligation on the part of the industrial establishment
to run a canteen by itself by employing its own workmen.
27.In WORKMEN v. ASHOK LEYLAND LTD. (1986 (II)
L.L.N., 1035, it was held that where a canteen ceased to function as a
result of heavy loss, the factory was not bound to re-employ the
erstwhile employees of the canteen.
28.The above judgments have been rendered in the
context of the scope of the provisions of the Factories Act,1948, which
is only a Legislative measure aimed at securing better living conditions
to the worker. A perusal of the statement of objects and reasons shows
that the Act “provides for health, safety, welfare, other aspects of
workers in factories.” The obligations of the employer under that Act
cannot be over stated or compared with the provisions of the Industrial
Disputes Act.
29.In contrast with the provisions of the
Factories Act, the scope of the Industrial Disputes Act is well-known.
The Industrial Disputes Act deals with the basic obligations, fundamental
rights, duties, obligations and liabilities of both labour and
management. The scope of disputes involve not only that of a single
individual worker and the management alone. With the recognition of
Trade Unions and their rights to raise disputes in the context of not
only individual grievances, but also collective demands and grievances of
large number of workers, the issues have impact on the industrial peace,
law and order, productivity and consequent wastage and thus affect public
interest to a very great extent.
30.The public interest involved in the issues
covered under the Industrial Disputes Act has been very effectively
stated by the Constitution Bench of the Supreme Court 50 years ago in
D.N.BANERJI v. P.R. MUKHERJEE (A.I.R.1953 S.C., 58) as follows:
“It is therefore incumbent on us to ascertain what the statute means by
“industry” and “industrial dispute”, leaving aside the original meaning
attributed to the words in a simpler state of society, when we had only
one employer perhaps, doing a particular trade or carrying on a
particular business with the help of his own tools material and skill and
employing a few workmen in the process of production or manufacture, and
when such disputes that occurred did not go behind individual levels into
acute fights between rival organisations of workmen and employers, and
when large scale strikes and lock-outs throwing society into chaos and
confusion were practically unknown Legislation had to keep pace with the
march of times and to provide for new situations. Social evolution is a
process of constant growth, and the State cannot afford to stand still
without taking adequate measures by means of legislation to solve large
and momentous problems that arise in the industrial field from day to day
almost.”
31.If the introduction of the Industrial Disputes Act was
a product of social evolution and was meant to meet the changes in the
society, throwing society into chaos and confusion, I fail to appreciate
how to term the Industrial Disputes Act as a mere legislation dealing
with only personal or individual rights and to hold that no public duty
was involved in the proceedings under the Act. It is true that in a case
of a dispute between a single workman and the management, no public
interest would be involved. But in a case of the present type, which
involves the question of wages due to thousands of workers and the
potential dangers to which the society would be exposed if their
grievances are not sorted out, definitely the issue affects public
interest and a corresponding public duty is cast upon both the management
and the labour to ensure public peace. It is also a fact that on the
very same issue, peace, law and order in the areas where the Tea estates
are located have been greatly affected and public peace, tranquility had
been very much disturbed. The public interest and public duty involved
is as much as that of violation of the Pollution Control Act, which has
been pointed out by the Supreme Court as an instance which would justify
invocation of Article 226 of the Constitution of India, notwithstanding
the fact that the respondent may be only a private individual and not
being involved in the discharge of any public duty, vide VST.INDUSTRIES
case.
32.In the very same judgment of the Constitution Bench
cited above, the Supreme Court went further to point out that industrial
disputes could affect large groups of workmen and employees arrayed on
opposite sides on certain common issues such as wages, bonus etc., and
observed as follows:-
“Such widespread extension of labour unrest is not a rare phenomenon but
is of frequent occurrence. In such a case, even an industrial dispute in
a particular business becomes a large scale industrial dispute, which the
Government cannot afford to ignore as a minor trouble to be settled
between particular employer and workman.”
33.In BALLARPUR COLLIERIES CO. v. PRESIDING OFFICER,
DHANBAD (1972 (2) S.C.C.,27), the Supreme Court dealt with the scope of
the Industrial Disputes Act and held as follows:-
“In this connection it has to be borne in mind that proceedings of
industrial adjudication are not considered as proceedings purely between
two private parties having no impact on the industry as such. Such
proceedings involve larger public interest in which the industry as such
(including the employer and the labour) is vitally interested. The
scheme of the law of industrial adjudication designed to promote
industrial peace and harmony so as to incre ase production and help the
growth and progress of national economy has to be considered in the
background of our constitutional set-up according to which the State has
to strive to secure and effectively protect a social order in which
social, economic and political justice must inform all institutions of
national life and the material resources of the community are so
distributed as best to sub-serve the common good.”
34.This is precisely the situation now faced in the
present case and therefore, I find it difficult to accept the contentions
that Article 226 of the Constitution of India cannot be invoked and no
mandamus can be issued.
35. For the very same reasons, as above, I am unable to
accept the comparison which Mr.A.L.Somayaji was drawing as regards the
Rent Control Act, namely, if every statutory violation could justify
invocation of Article 226 of the Constitution of India, then a landlord
or a tenant could do so complaining that the opposite party had violated
the provisions of the Rent Control Act. Firstly, the wider and pervasive
nature of the disputes under the Industrial Disputes Act had been very
succinctly described by the Constitution Bench as above. The Rent
Control Act which deals with the individual and mutual contractual
obligations between one landlord and one tenant (or at the most a five or
six tenants) cannot at all be compared with the range of disputes
contemplated under the Industrial Disputes Act. Secondly, I had already
mentioned that in a given case a dispute raised by a single worker or as
against the single worker, public interest or public duty will not be
involved. But in the present case, we are confronted with a dispute
between thousands of workers and about 30 Tea Estates.
36. A Division Bench of this Court when confronted with
similar objections in MADRAS LABOUR UNION v. BINNY LIMITED (1995 (1)
C.T.C.,73) had dealt with the issue in detail with reference to several
rulings of the Supreme Court and had ultimately concluded that a mandamus
can be issued as against a private body in the context of gross violation
of statute or public duty and if the monstrosity of the facts would
justify intervention by the Court.
37.Therefore, I am inclined to hold that the above writ
petitions are maintainable and the judgment in VST.INDUSTRIES case supra,
does not in any manner affect the facts of the case. On the other hand,
the said judgment is positive that a writ can be issued even as against a
private individual the impugned issue relates to a public duty or public
interest.
38.ALTERNATE REMEDY AND MONSTROSITY OF THE ISSUE The
issue of alternate remedy is inter related with the monstrosity of the
issue and would also be relevant for the issue of maintainability which
has been considered above. Both Mr.A.L.Somayaji and Mr.Vijay Narayan had
emphasised at length that the forums constituted under the act were
effective remedies and as such writ petitions cannot be entertained. It
is further stated that Section 33-A of the Act entitles the aggrieved
party to complain against violation of Section 33(1)(a) of the Act and as
such the petitioners were not entitled to invoke the writ jurisdiction.
It is true that Section 33-A of the Act deals with the situation of an
employer contravening the provisions of Section 33 of the Act during the
pendency of the proceedings before the authorities under the Act. An
employee aggrieved by the contravention may make a complaint in writing
to the concerned authority and such authority shall adjudicate upon it as
if it were a dispute pending before it. To appreciate this objection, it
is necessary to extract Section 33(1) of the Act.
“33.Conditions of service, etc. To remain unchanged under certain
circumstances during pendency of proceedings
(1)During the pendency of any conciliation proceeding before a
conciliation officer or a Board or of any proceeding before (an
arbitrator or) a Labour Court or Tribunal or National Tribunal in respect
of an industrial dispute, no employer shall-
(a) in regard to any matter connected with the dispute, alter, to the
prejudice of the workmen concerned in such dispute, the conditions of
service applicable to them immediately before the commencement of such
proceeding; or
(b) for any misconduct connected with the dispute, discharge or
punish, whether by dismissal or otherwise, any workmen concerned in such
dispute,
save with the express permission in writing of the authority before which
the proceeding is pending;”
39.Section 33(1) makes it mandatory that during pendency
of the proceedings under the Act, the existing conditions of service
shall not be altered to the disadvantage of the employee save with the
express permission in writing of the authority before which the
proceeding is pending. If there is violation of the said mandatory
requirement then the employee has the right to complain under Section
33-A of the Act which will be treated as a dispute and dealt with
accordingly.
40.To appreciate the objections of the respondents as
regards this contention, it is necessary to recall the background in
which the issue went before the Conciliation Officer after issuing notice
to the Unions under Section 9-A of the Act. The first respondent by
their letter to the Joint Commissioner of Labour Chennai, dated
29.11.2001 informed the issue of notice under Section 9-A of the Act.
The Joint Commissioner, Coimbatore, on receipt of the said notice by his
letter dated 7.12.2001 informed the first respondent as well as the
Labour Unions that negotiations will take place before the Commissioner
of Labour on 18.12.2001 and that the said notice was sent in terms of
Section 12(1) of the Act and Rules 23 and 37 of the Industrial Disputes
Rules.
41.It is very important to bear in mind that it was the
employer who chose to raise the dispute and it is expected of the
management to adhere to the statutory obligations under Section 33 of the
Act in terms of which the employer shall not be entitled to vary the
existing terms of employment to the disadvantage of the workers. The
rights of the workers thus incorporated under Section 33 of the Act is a
very valuable right and imposes a duty on the employer not to alter the
conditions of service.
42.The right of the worker under Section 33 of the Act
should also be viewed along side their right to go on a lawful strike by
complying with the provisions of the Act and the conditions envisaged
thereunder. It is a right which is statutorily recognised and does not
require citing a plethora of precedents in support of the said accepted
rights of the workers and the right of the employer to resort to a lawful
lock-out. But Sections 22 and 23 of the Act place an embargo on such a
right under the circumstances specified thereunder. While Section 22 of
the Act deals with strike and lock out in public utility services,
Section 23 deals with general prohibition of strikes and lock-out.
43.Section 23 of the Act prohibits workmen going on
strike during the pendency of Conciliation proceedings or a dispute
before the Labour Court, Industrial Tribunal or the Arbitration
proceedings and during any period when a settlement or award is in
operation. In the present case, the period of settlement is over and the
management not being satisfied by expressing their intention to reduce
the wages by issuing statutory notice, had also initiated Conciliation
proceedings before the Commissioner, thereby depriving the valuable right
of the workers to resort to a legal strike which is the only method of
their exercising the bargaining power. At the same time, the management
will not also condescend to move the appropriate authority for permission
and would violate the mandate that they should not alter the conditions
of service to the detriment of the employees resulting in the following
series of consequences, thus pushing the workers into an inequitable and
unfairly disadvantageous position as follows:-
(a)Giving notice for reducing the existing wage structure which
itself is a justifiable grievance for the workers which ought not to have
been resorted to except by way of settlement or by an award.
(b)Not seeking permission before the Conciliation Officer to vary
the terms of service thereby intentionally violating mandate under
Section 31(1) of the Act.
(c)Having failed to comply with the requirement of seeking
permission under Section 33(1) of the Act raising an untenable contention
that the workers, if they wish they may raise a dispute under Section
33-A of the Act.
(d)If the workers in a helpless situation invoke jurisdiction of
this Court under Article 226 of the Constitution of India, the management
raising a contention that the writ is not maintainable.
(e)Having themselves initiated a dispute, raising further
untenable technical contentions regarding the pendency of the dispute and
the individual estates not being a party etc., which have neither legal
nor moral basis as explained below.
44.The above mentioned series of conduct on the part of
the management would be sufficient to indicate not only the unreasonable
attitude of the employers, but also the “monstrosity” of the existing
situation. Reducing the existing wage structure is itself an unusual and
rare feature to be proposed by the management considering the spiralling
cost of living. I do not propose to say that such a variation is
impermissible, but is a rare proposal which could be justified only by
adducing proper and convincing materials before the authorities.
Therefore, to reduce the wages to which the workers are accustomed to,
without even seeking the statutory permission from the authorities before
whom the dispute is pending as required under the Act, would be in my
opinion sufficient to estop the management from raising the contention of
alternate remedy.
45.The necessity of seeking permission of the authority
during the pendency of the dispute is a mandatory requirement and a
precondition before the management could seek to alter the conditions of
service. It is intended to maintain status quo. In PUNJ.N.BANK v.
A.I.P.N. B.E.FEDERATION (A.I.R.1980 S.C., 160), the Supreme Court
highlighted the mandatory nature of the ban as follows:-
“The object of the Legislature in enacting this section is obvious. By
imposing the ban S.33 attempts to provide for the continuance and
termination of the pending proceedings in a peaceful atmosphere
undisturbed by any causes of friction between the employer and his
employees. In substance it insists upon the maintenance of the status
quo pending the disposal of the industrial dispute between the parties;
nevertheless it recognises that occasions may arise when the employer may
be justified in discharging or punishing by dismissal his employees, and
so it allows the employer to take such action subject to the condition
that before doing so he must obtain the express permission in writing of
the Tribunal. It is true that the ban is imposed in terms which are
mandatory and S.31(1) makes the contravention of the provisions of S.33
an offence punishable as prescribed therein.”
46.It is true that Section 33-A entitles the workmen to
raise a complaint. Reliance is placed on the following judgments by the
employers in support of their contention that the workers should resort
to that remedy, which are in my opinion not applicable to the facts of
the present case.
47.In SREE SEETHA VENKATESH MILLS EMP. UNION v. GOVT.
OF T.N. (200 1(II) L.L.J.,185) (which was also confirmed by a Division
Bench in Writ Appeal No.151 of 2001). F.M.Ibrahim Kalifulla,J. was
confronted with the situation where the Conciliation proceedings had
ended in a failure report and no reference had been made to the Labour
Court. It is at that stage, the Union filed the writ petition praying
for the issue of a writ of mandamus to direct the Government to refer the
dispute for adjudication and in the mean time to direct the employer to
maintain status quo. In other words, it was a case where no proceeding
was pending before any of the authorities under the Act when the writ
petition was resorted to.
48.The judgment of another Division Bench in GORDON
WOODROFFE EMP. UNION v. STATE OF T.N. (1988 (I) L.L.N., 196) also
arose under the same circumstances, namely, the Conciliation had ended in
failure and the Union came forward with a writ to prohibit the management
from altering the conditions of service. Therefore, the said judgment
also will not apply.
49.Both the decisions as aforementioned are perfectly
understandable having regard to Section 20 of the Act which deals with
commencement and conclusion of the proceedings. Under Section 20(2) of
the Act, a conciliation proceeding shall be deemed to have concluded
where no settlement is arrived at and when the report of the Conciliation
Officer is received by the appropriate Government. Therefore, when the
writ petitions were filed in those cases, no proceeding was pending
before any authority.
50.The judgment of the Division Bench in SUN
PHARMACEUTICAL INDS. LTD. v. S.P.I.L.STAFF UNION (2000 (4) L.L.N.,
932) also deals with a case under different circumstances. The Union
filed the writ petition for the issue of a writ of mandamus to direct the
Conciliation Officer to complete the proceedings and also sought for
interim injunction restraining the employer from shifting the machinery
or transferring the employees. The Division Bench held on facts that the
attempt on the part of the Union was premature and also amounted to a
plea to maintain status quo ante. The Division Bench did not go into the
issue of the obligations of the management to move the authority to grant
permission to alter the conditions of service. On facts also it was held
that there was no monstrous situation requiring the intervention of the
Court.
51.The nature and scope of the enquiry under Section 33-A
of the Act, would in my opinion render the provision as an ineffective
remedy and cannot be pleaded an effective alternative remedy so as to
prevent the Union to seek for the issue of a writ of mandamus to compel
the employer to comply with the mandatory requirement under Section
33-(1) of the Act. Resort to Section 33-A of the Act is nothing more
than a fresh reference and another dispute and is not an effective remedy
to maintain the status quo. In the following judgments, the Supreme
Court had clearly held that the proceedings under Section 33-A of the Act
is not different from a dispute arising out of a reference under Section
10 of the Act. For instance, in the case of dismissal of an employee in
contravention of Section 33 of the Act, on a complaint under Section 33-A
of the Act, the Tribunal has to separately deal with not only the
question of contravention, but also the merits of the order of the
dismissal.
(i)PUNJ.N.BANK v. A.I.P.N.B.E.FEDERATION (A.I.R 1960 S.C., 160);
(ii)DELHI CLOTH & GENERAL MILLS v. RAMESHWAR (A.I.R.1961 S.C., 689)
(iii)BHAVNAGAR MUNICIPALITY v. A.KARIMBAI (1977 (34) F.L.R., 279).
Therefore, resort to Section 33-A of the Act is not at all an effective
or an alternate remedy. It is in fact more complicated and long winding
than the main dispute itself which is awaiting adjudication. The
management which intentionally and with impunity violates Section 33(1)
of the Act cannot be heard to plead that Section 33-A of the Act is an
effective alternative remedy. The object of invocation of Article 226 of
the Constitution of India in a monstrous situation is intended to secure
timely justice and a p lea of alternative remedy cannot be entertained at
the instance of a defaulting party.
52.The more appropriate ruling in this context would be
the latest judgment of a Constitutional Bench of the Supreme Court in
JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. v RAM GOPAL SHARMA (2002 (2)
S.C.C., 244). In that case, the Supreme Court dealt with a provision
similar to Section 33(1) of the Act namely, Section 33 (2)(b) of the Act
which requires the management to seek for approval of the discharge or
dismissal of an employee during the pendency of the proceedings. The
management took the stand that the Union can only raise another dispute
or forward a complaint under Section 31(1) or 33-a of the Act. The
Constitution Bench came down heavily on such a plea and held that such a
person who contravenes the provision “cannot be rewarded by relieving him
of the statutory obligations created on him to make such an application.”
The Supreme Court went further to observe as follows:-
“Section 31 speaks of penalty in respect of the offences stated therein.
This provision is not intended to give any remedy to an aggrieved
employee. It is only to punish the offender. The argument that Section
31 provides a remedy to an employee for contravention of Section 33 is
unacceptable. Merely because penal provision is available or a workman
has a further remedy under Section 33-A to challenge the approval
granted, it cannot be said that the order of discharge or dismissal does
not become inoperative or invalid unless set aside under Section 33-A.
There is nothing in Sections 31,33 and 33-A to suggest otherwise even
reading them together in the context. These sections are intended to
serve different purposes.”
53.My conclusions as above are therefore, fortified by
the observations of the Constitution Bench and the plea of Section 33-A
as being an alternate remedy cannot be sustained, more so in a case where
it is the management which went before the Conciliation Officer. I am
inclined to hold that the facts stated above and the situation having
been brought about by the management itself, are more than sufficient to
hold that the situation is a monstrous one enough to invoke the
jurisdiction of this Court.
54.As regards alternate remedy, it is also a settled
proposition of law that it is only a rule of policy convenience and
discretion and not one of bar of jurisdiction under Article 226 of the
Constitution of India, vide the judgment of the Constitution Bench in
U.P.STATE v. MOHMMAD NOOH (A.I.R. 1958 S.C., 86)
55.Whether as on date the Conciliation proceeding is
pending:
The contention on behalf of the respondents is that as a
result of the Commissioner of Labour having suggested the issue to be
discussed between the Union and the Planter’s Association by bilateral
talks, the process of conciliation is over and does not subsist any more.
The role of the Conciliation Officer is only to mediate and he cannot
decide the rights of the parties. Therefore, in directing the parties to
negotiate between themselves, the Conciliation Proceeding is deemed to
have come to an end.
56.I am unable to accept the aforesaid contention. The
Commissioner, after sending the letter dated 7.12.2001, calling upon all
the parties to attend the Conciliation on 18.12.2001, admittedly
proceeded with the Conciliation talks. The suggestion for bipartite
talks is nothing more than an attempt to facilitate both parties to
narrow down the area of difference and such a step or suggestion cannot
be deemed as abandoning or closing the Conciliation or Conciliation
Officer loosing his jurisdiction. It is nothing more than a Court or a
Tribunal, adjourning the hearing to enable the parties to come to a
settlement. In fact, that is how the employers themselves had understood
the issue. By letter 29.12.2001 the Planters Association had reported
about the progress of bipartite talks and that further discussions were
to continue on 4.10.2001. This was followed by similar letter dated
7.1.2002. The Commissioner by his letter dated 11.1.2002, had asked the
Association to intimate the present stage of the bilateral talks by
return fax in order to proceed further in the matter. There was
absolutely no need for either the Commissioner or the Association to have
gone through such correspondence, if the Conciliation had been
terminated. This was followed by a series of similar letters dated
12.1.2002, 15.1.200 2, 19.1.2002, 25.1.2002, 31.1.2002, 5.2.2002,
14.2.2002 and 22.2.2002 to the Commissioner stating that the talks were
in progress and further developments will be reported to the
Commissioner. If the Conciliation was closed, there was no need for such
an exercise. In the mean time, the Association also addressed a letter
to the Collector, Coimbatore, requesting the District Administration to
give protection to maintain law and order. The District Collector by his
letter dated 6.2.2002, had in fact referred to the pendency of the
Conciliation proceedings before the Commissioner of Labour and as such no
unilateral change can be effected by the planters and that therefore, the
members of the Association may not precipitate this issue. I am
referring to this letter only to the limited extent as reflecting the
factual position of the pendency of the Conciliation proceedings. The
PAT did not raise a contention that conciliation was not pending.
Therefore, the mere circumstance of the parties having been allowed to
hold talks between themselves cannot result in terminating the
Conciliation proceedings. In fact as referred to earlier, under Section
20 of the Act, a Conciliation proceeding can be stated to have concluded
only where settlement is arrived at and signed by the parties or when no
settlement is arrived at, and the failure report is received by the
appropriate Government. There is no other process by which a
Conciliation proceeding can be stated to have concluded.
57.Apart from the aforesaid circumstances, a perusal of
the counter affidavits filed by the respondents themselves disclose how
they themselves have understood about the position. In the counter
affidavit, it is admitted that the respondents had given a letter to
initiate Conciliation proceedings. In fact the very pleading that the
Union should have invoked a complaint under Section 33-A of the Act leads
to the presumption about the pendency of the Conciliation proceedings.
If no proceeding is pending, then there is no possibility of invoking
Section 33-A of the Act at all.
58.Therefore, it is not possible to accept the contention
that the Conciliation proceeding is not pending.
59. WHETHER NOTICE GIVEN TO THE P.A.T. IS SUFFICIENT TO
BIND THE INDIVIDUAL EMPLOYER/ESTATE?
This point is urged by the respondents/employers again in an
attempt to wriggle out of the situation which they themselves created by
having initiated Conciliation proceedings. I do not find any basis for
this objection. It is pertinent to note that all the employers are
members of the PAT. This position is not in dispute. All the talks have
been proceeding only with PAT and not with the individual planters. It
is most important to note that agreements or settlements have also been
entered into only by PAT as representing the planters. In fact, it is
the PAT which had given notice under Section 19(2) of the Act to
terminate the continued operation of the existing settlement after its
expiry on 31.12.2001. It is only on the advise of PAT the format of the
notice under Section 9-A of the Act as prescribed by the PAT vide their
letter dated 29.11.2001 was sent to the individual employers as well as
to the Joint Commissioner, Labour, and thus the conciliation was
initiated. The process of negotiation commenced with PAT writing a
letter to the Hon’ble Minister for Labour which was followed by
subsequent talks with him. A perusal of the notice given by the
employers for change of service condition also discloses that reference
is made only to the agreement arrived at by the PAT on their behalf and
PAT having given notice of termination on 24.10.2001 on behalf of their
members/estates. Therefore, the role played by PAT was well understood
by the PAT as well as the individual estates.
60.The most crucial feature is the notice of Conciliation
which was sent by the Joint Commissioner on 7.12.2001 only to the PAT
under Section 12(1) of the Act read with Rules 23 and 37 of the Tamil
Nadu Rules. Rule 23 of the Rules enables the Conciliation Officer to
intimate to the parties declaring his intention to commence the
Conciliation proceedings. Rule 37 deals with service of summons or
notice where there are numerous persons as parties to the proceedings and
when such persons are members of the any Trade Union or Association, the
service of notice on the Secretary or the Principal Office of the Union
or Association shall be deemed to be service on such persons. Such a
service shall also be considered as sufficient in the case of parties
represented by such Unions or Associations.
61.It is pertinent to note that neither PAT nor
individual employer at any time raised any demur when the Commissioner
sent his notice only to PAT specifically quoting Rules 23 and 37 nor
during discussions with him. The negotiations have been taking place on
numerous occasions to the knowledge of the individual employers only with
the PAT representing all the employers. Therefore, the present defence
which is now taken only in these writ petitions by PAT and the individual
estates, is not at all fair.
62.Mr.Vijay Narayan was at pains to emphasise that in the
absence of individual authorisation by the members, the PAT cannot be a
properly constituted representative. Reliance is placed on Rule 46.
Rule 46 is in relation to a worker or workers authorising another to
represent him or them. The said Rule can have no relevance to a notice
which had been issued under Rule 37. An argument was also advanced that
Rule 37 may not strictly apply to the employers, but would apply only to
the Trade Unions. I am afraid that there is no basis for such a
distinction.
63.As stated earlier, it is the PAT which has always been
negotiating with the Unions, executing agreements, holding talks with the
Minister after the present dispute arose and the Commissioner of Labour
and corresponding with the Commissioner on behalf of the estates and
corresponding with the District Collector at all stages. Therefore, the
defence now raised is obviously resorted to as a desperate remedy without
basis.
64.The very claim by the employers that the earlier
settlements are no more effective and not binding on them is based on the
notice issued by PAT under Section 19(2) on 24.10.2001. Agreements are
executed with PAT only and notice of termination is issued by PAT. PAT
initiates conciliation proceeding and conciliation is proceeded with only
PAT representing all the estates. No objection is raised at any stage by
PAT or the individual employer that PAT is not representing them, or by
the PAT that they are not representing the individual Estates.
65.In conclusion, I find that the writ petitions are
maintainable and the petitioners are entitled to the relief. It is true
that the difficulties expressed by both Mr.A.L.Somayaji and Mr.Vijay
Narayan, on behalf of the Estates regarding the problems experienced by
the Plantation Industry may be correct to a considerable extent. But
when the statute requires that the existing service conditions cannot be
altered to the disadvantage of the workers without a written permission
from the authorities before whom the proceeding is pending, the employer
cannot be heard to violate the same and to drive the workers to an
inequitable position. It is only to enable the employer to alter the
conditions of service even during the pendency of the dispute, the
employer is given the liberty and statutory right to move the authority
for the said purpose. When such a petition is filed, the authority is
bound to pass a considered order by taking into account all the materials
and circumstances objectively. The authority would be performing a quasi
judicial function and therefore, bound to pass a reasoned order and if
the PAT has enough materials to substantiate their claims, there need not
be any hesitation on their part. The fact that the Unions in other areas
had come to amicable settlement will also be an added ground for the
employer to justify their proposed action which cannot be ignored by the
authority without proper material. When the statute prescribes a certain
mode or procedure, the party who is obliged to comply with the same
cannot be heard to violate the same and plead otherwise.
66.Therefore, the above writ petitions are allowed with
liberty to the respondents to move the Conciliation Officer for
permission under Section 33(1) of the Act before altering the conditions
of service and till then, the respondents are bound to comply with the
existing terms of the service conditions. No costs. Connected W.P.M.Ps
are closed as unnecessary.
Index: Yes.
21.03.2002
Internet: Yes.
sai/-
K.P.SIVASUBRAMANIAM,J.
Order in
W.P.No.4884 to 4887 of 2002
and 5651 of 2002
Delivered on: 21.03.2002