Case Note & Summary
The dispute arose from a transfer order issued by VIP Industries Limited, which transferred 140 workmen from its Nagpur plant to Sinnar and Haridwar units following curtailment of a job work contract with B.P. Ergo Limited. The workmen were represented by VIP Industries Shramik Sangh, the recognized union. The last settlement governing their conditions of service expired on 31.12.2010, and the union submitted a fresh charter of demands. Conciliation proceedings were initiated before the Conciliation Officer, with notices and meetings held from 18.03.2011. On 14.07.2011, the appellant company issued transfer orders for 140 employees. The union filed a complaint under Section 33A of the Industrial Disputes Act, 1947 before the Conciliation Officer, alleging contravention of Section 33, as it claimed the transfers changed conditions of service during pendency of conciliation. On 21.07.2011, the Conciliation Officer passed an ex parte stay order staying the transfers. The appellant challenged this order in Writ Petition No. 3535/2011, contending that the Conciliation Officer lacked jurisdiction to pass such a stay order and that conciliation proceedings had not yet commenced when transfers were made. The learned Single Judge dismissed the writ petition on 09.08.2011. In appeal, the appellant argued that under Section 33A(a), the Conciliation Officer can only take the complaint into account for mediation and has no adjudicatory power, which is reserved for Labour Courts, Tribunals, or National Tribunals under Section 33A(b). The respondents contended that conciliation proceedings had commenced with the notice on 18.03.2011 and that the Conciliation Officer could investigate the complaint under Rule 65 of the Bombay Industrial Court Rules. The High Court, focusing on the jurisdictional question, held that Section 33A(a) does not grant any adjudicatory power to the Conciliation Officer; it merely requires the officer to consider the complaint during mediation. The power to adjudicate and pass awards is explicitly conferred on specified adjudicatory bodies under Section 33A(b). Consequently, the stay order suffered from a jurisdictional error. The court allowed the appeal, set aside the order dated 21.07.2011, and thereby vacated the stay on the transfer of the workmen.
Headnote
A) Labour Law - Conciliation Officer's Powers - Industrial Disputes Act, 1947, Sections 33, 33A(a), 33A(b) - A Conciliation Officer under the Industrial Disputes Act is empowered under Section 33A(a) only to take an employee's complaint regarding contravention of Section 33 into account while mediating a settlement; the Conciliation Officer does not have the power to adjudicate upon such complaint or pass orders staying the employer's actions. The power to adjudicate complaints under Section 33A is exclusively vested in Labour Courts, Tribunals or National Tribunals under Section 33A(b). Therefore, the stay order passed by the Conciliation Officer on 21.07.2011 lacked jurisdiction. (Paras 10)
Issue of Consideration
Whether the Conciliation Officer had jurisdiction to stay transfer orders under Section 33A of the Industrial Disputes Act, 1947 during pendency of conciliation proceedings.
Final Decision
The appeal was allowed. The court held that the Conciliation Officer had no jurisdiction to pass the stay order dated 21.07.2011 under Section 33A(a) of the Industrial Disputes Act, 1947, as the Conciliation Officer's role is limited to mediation and does not include adjudication. The stay order was accordingly set aside.
Law Points
- Conciliation Officer lacks adjudicatory power under Section 33A(a) of Industrial Disputes Act
- 1947
- stay orders by Conciliation Officer are without jurisdiction
- distinction between Section 33A(a) and 33A(b).
Case Details
2012 LawText (BOM) (04) 87
Letters Patent Appeal No. 355 of 2011 in Writ Petition No. 3535 of 2011 (D)
Smt. Vasanti A. Naik, M.L. Tahaliyani
Mr. V.R. Thakur (Appellant), Mr. V.P. Marpakwar (Respondent No.1), Mr. T.R. Kankale (Respondent No.2)
1. VIP Industries Shramik Sangh, 2. Shri B.V. Chikhale, Asstt. Commissioner of Labour & Conciliation Officer
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Nature of Litigation
Challenge to stay order passed by Conciliation Officer staying transfer of workmen during conciliation proceedings.
Remedy Sought
Appellant sought quashing of order dated 21.07.2011 passed by Conciliation Officer staying transfer orders.
Filing Reason
Appellant filed writ petition after Conciliation Officer stayed transfer orders on complaint under Section 33A, alleging jurisdictional error.
Previous Decisions
Writ Petition No. 3535/2011 was dismissed by learned Single Judge on 09.08.2011, leading to this appeal.
Issues
Whether the Conciliation Officer had jurisdiction to stay transfer orders under Section 33A of the Industrial Disputes Act?
Whether the conciliation proceedings were pending on the date of transfer orders, 14.07.2011?
Whether the transfer of 140 workmen constituted a change in conditions of service attracting Section 33 of the Industrial Disputes Act?
Submissions/Arguments
Appellant argued that conciliation proceedings had not commenced before 19.07.2011 and that the meetings prior were pre-conciliation; hence, the transfer orders dated 14.07.2011 were not passed during pendency of conciliation proceedings.
Appellant contended that the Conciliation Officer lacks adjudicatory power under Section 33A(a) and could only take the complaint into account in mediation, not stay transfers.
Appellant submitted that transferability was a condition of service and transferring 140 employees did not amount to a change in conditions of service.
Respondent No.1 contended that conciliation proceedings had commenced from the issuance of notice on 18.03.2011 and that the Conciliation Officer is entitled to entertain and investigate the complaint under Rule 65 of the Bombay Industrial Court Rules.
Respondent No.1 argued that the transfer changed the conditions of service as the workmen were shifted from furniture manufacturing to luggage manufacturing.
Respondent No.2 supported the order, stating that the conciliation proceedings had commenced before the transfer and the order was justified.
Ratio Decidendi
A Conciliation Officer under the Industrial Disputes Act, 1947 lacks adjudicatory power under Section 33A(a) and cannot stay actions of an employer; only Labour Courts, Tribunals, or National Tribunals under Section 33A(b) can adjudicate complaints of contravention of Section 33.
Judgment Excerpts
Section 33A(a) does not give any adjudicatory power to the Conciliation Officer and provides that the Conciliation Officer shall take the complaint filed by the employee into account while mediating in and promoting the settlement of the industrial dispute, whereas, Section 33A(b) of the Act empowers the Arbitrator, Labour Court, Tribunal, or National Tribunal to adjudicate upon the complaint pending before it in accordance with the provisions of the Industrial Disputes Act and also pass an award therein.
Procedural History
The appellant-company filed Writ Petition No. 3535/2011 challenging the Conciliation Officer's order dated 21.07.2011 staying the transfer orders. The learned Single Judge dismissed the writ petition on 09.08.2011. Aggrieved, the appellant filed Letters Patent Appeal No. 355 of 2011.
Acts & Sections
- Industrial Disputes Act, 1947: 2(e), 4, 11, 12, 33, 33A(a), 33A(b)
- Industrial Disputes (Bombay) Rules, 1957: Rule 11
- Bombay Industrial Court Rules: Rule 65
