M/S. SAFESHIELD INDIA RUBBER PRODUCTS PRIVATE LIMITED v. Development Commissioner, Cochin Special Economic Zone, and SMT. VASANTHY K.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 10TH DAY OF OCTOBER 2013/18TH ASWINA, 1935** ## **WP(C).No. 21572 of 2012 (V)** **----------------------------------------** **PETITIONER:** ## **-------------------** **M/S. SAFESHIELD INDIA RUBBER PRODUCTS PRIVATE LIMITED, COCHIN SPECIAL ECONOMIC ZONE (CSEZ), KAKKANAD, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS.SRI.P.RAMAKRISHNAN, SRI.T.C.KRISHNA.** **RESPONDENTS:** **-----------------------** **1. THE DEVELOPMENT COMMISSIONER, COCHIN SPECIAL ECONOMIC ZONE, KAKKANAD, KOCHI - 682 037.** **2. SMT.VASANTHY K.A., C/O.ABDUL KHADER E.K., ELAMPATTI HOUSE, EDAKKATTUSSERY, NILAMPATHINJAMUKAL, KOCHI - 682 039.** **R1 BY SRI.P.PARAMESWARAN NAIR,A.S.G OF INDIA, R2 BY ADVS. SRI.K.S.MADHUSOODANAN, SRI.THOMAS CHAZHUKKARAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.21572/2012-V:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1. TRUE COPY OF THE CHARGE MEMO DATED 30.06.2011 ISSUED TO THE 3RD RESPONDENT.** - **EXHIBIT P2. TRUE COPY OF APPLICATION FOR PERMISSION UNDER SECTION 33(3) OF THE INDUSTRIAL DISPUTES ACT 1947 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P3. TRUE COPY OF LETTER DATED 21.05.2012 FROM THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P4. TRUE COPY OF JUDGMENT DATED 02.07.2012 IN W.P.(C) NO.13154/2012.** - **EXHIBIT P5. TRUE COPY OF NOTICE DATED 14.08.2012 OF THE 1ST RESPONDENT.** - **EXHIBIT P6. TRUE COPY OF ORDER OF THE 1ST RESPONDENT DATED 27.08.2012.** ## **RESPONDENTS' EXHIBITS:** - **EXT.R2.A: COPY OF THE REPLY DTD. 13/07/11.** - **EXT.R2.B: COPY OF THE CONCILIATION PETITION DTD. 27/05/11.** - **EXT.R2.C: COPY OF THE LETTER OF APOLOGY SUBMITTED BY THE R2.** - **EXT.R2.D: COPY OF THE SETTLEMENT OF KERALA WOMEN COMMISSION DTD. 02/03/12 BEARING NO.C4/4074/EKM/2011.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **A.M. SHAFFIQUE,J. ========================== W.P.(C) NO. 21572 of 2012 ========================== Dated this the 10[th] day of October 2013** ## **JUDGMENT** The petitioner challenges Ext.P6 order passed by the Development Commissioner, Cochin Special Economic Zone (CSEZ) exercising the power of the Conciliation Officer under Section 4 of the Industrial Disputes Act, 1947(for short 'the I.D.Act'). 2. The facts involved in the above case would disclose that the petitioner suspended the 2[nd] respondent from service on 26/5/2011. At the relevant time, she was working as a worker in the establishment of the petitioner. Thereafter, she was served with a charge memo and after seeking her explanation, an enquiry was conducted. In the enquiry , the Enquiry officer found the petitioner guilty of the alleged misconducts and accordingly, a second show cause notice was issued enclosing the enquiry report, inter alia, calling upon her to explain as to why disciplinary action should not be taken against her. According to the petitioner, they received information during May 2011 that the second respondent was the Vice President of CSEZ workers Union. A list of five workers were provided to the management to treat them as W.P.(C) NO. 21572 of 2012 2 protected workers. Though the management called upon the Union to provide the number of employees who had joined the Union, no reply was given and on enquiry it was revealed that only nine among the total 47 workers had joined the union and therefore, the second respondent cannot be treated as a protected worker. In the meantime, the 2[nd] respondent had given a complaint against the suspension before the first respondent and therefore to avoid unnecessary controversy in the matter, the petitioner submitted Ext.P2 application before the first respondent seeking permission under Section 33(3) of the I.D.Act to award punishment of dismissal of the 2[nd] respondent. 3. The petitioner was issued Ext.P3 letter dated 21/5/2012 by the Security officer of Cochin Special Economic Zone stating that the Conciliation officer desires that the management may reconsider the punishment of dismissal and should award only a lesser punishment. Since Ext.P2 application was pending for quiet some time, the petitioner filed W.P.(C)No.13154/2012 before this Court and by judgment dated 2/7/2012, this Court directed the first respondent to consider Ext.P2 and pass appropriate orders. Thereafter, the matter was heard on 27/12/2012. According to W.P.(C) NO. 21572 of 2012 3 the petitioner, they alone appeared and there was no representation from the second respondent. But thereafter, Ext.P6 order has been served rejecting the request of the petitioner and holding that the best course of action is to continue conciliation efforts for a settlement and awarding punishment of dismissal to the employee at this stage is likely to close the door for a negotiated settlement. Hence, the application was rejected under Section 33(5) of the I.D.Act. 4. The main contention urged by the petitioner is that they had filed Ext.P2 application only as an abundant precaution. In fact, no such application was necessary in view of the fact that the worker could not have initiated conciliation proceedings as against an order of suspension. That apart, after the order of suspension, charge memo had been issued and the enquiry has been completed. The disciplinary proceedings is at the stage when the second show cause had been issued and what remains is only imposition of punishment. Therefore, according to the petitioner, there was no scope for any conciliation in the matter. That apart, it is contended that the 2[nd] respondent is not a protected worker as the Trade Union has only nine members and it is not a Trade Union which could be protected under Section 33(3) of ## W.P.(C) NO. 21572 of 2012 4 the I.D.Act. 5. Counter affidavit is filed by the respondent, inter alia, contending that the issued involved was only of a very minor nature and the second respondent had denied the allegations in the memo of charges. The incident did not happen as alleged by the petitioner and all steps were being taken by the Conciliation Officer for settlement of the issue involved in the matter. That apart, it is contended that while granting permission under Section 33(3) of the I.D.Act, the first respondent has to take into consideration whether the conditions of service of a protected workmen can be altered. It is also contended that it was the union, who had filed a complaint before the Conciliation Officer aggrieved by the order of suspension and therefore when unfair labour practice is continued against the worker, it is open for the Conciliation Officer to interfere in the matter. It is also contended that, even going by Ext.P6 order, all steps were being taken for settling the issue and the Conciliation Officer had even stated in the impugned order that at one stage of the conciliation efforts, both the parties have almost agreed to settle the disputes on tendering apology by the worker and subsequently they drifted apart since the words used in the apology letter W.P.(C) NO. 21572 of 2012 5 was not satisfactory. That apart, it was contended that the Union had argued the matter before the Conciliation Officer as separate hearings were held by the officer on account of certain circumstances. Reference is also made to Ext.R2(d) and settlement arrived at before the Kerala Women's Commission as per which, the management has agreed at clause 8 that “Director of the Company, Kavitha, shall not interfere directly to the employees in connection with the administration of employees in work”. 6. Having regard to the aforesaid factual situation, it is contended by the second respondent that the management was trying to victimise the worker for having interfered in the working arrangement by which they have reduced the number of workers in the establishment, as a result of which the worker had to handle double the volume of work that they were doing at that point of time. Though the second respondent had spoken aloud, she had not used any abusive language against the Director of the Company as alleged and therefore, the Conciliation Officer was justified in passing the impugned order. 7. The learned counsel for the respondent also relied upon the judgment of this Court in **Air India Corporation,** ## W.P.(C) NO. 21572 of 2012 6 ## **Bombay v. V.A. Rebellow and another [1972(1)LLJ 501]** . In that case, the Supreme Court had occasion to consider the scope and effect of Section 33 (3)of the I.D.Act. The Supreme Court held at paragraph 12 as under: “In this connection reference by way of contrast may be made to sub-s. (3) of S. 33 which imposes an unqualified ban on the employer in regard to action by discharging or punishing the workman by dismissal or otherwise. In this sub-section we do not find any restriction such as is contained in cl. (b) sub-ss. (1) and (2). Sub-section (3) protects "protected workman" and the reason is obvious for the blanket protection of such a workman. The legislature in his case appears to be anxious for the interest of healthy growth and development of trade union movement to ensure for him complete protection against every kind or order of discharge or punishment because of his special position as an officer of a registered trade union recognised as such in accordance with the rules made in that behalf.” 8. Further reference is made to judgment of the Supreme Court in **The Lord Krishna Textile Mills v. Its workmen(AIR 1961 SC 860)** wherein also the Supreme Court had occasion to consider the effect of Section 33(3) of the Act at paragraph 11 which reads as under: “(11) Section 33(3) deals with cases of protected workmen and it assimilates cases of alterations of conditions of service or orders of discharge or dismissal proposed to be made or passed in respect of them to cases falling under S.33(1); in W.P.(C) NO. 21572 of 2012 7 other words, where an employer wants to alter conditions of service in regard to a protected workman, or to pass an order of discharge or dismissal against him, a ban is imposed on his rights to take such action in the same manner in which it has been imposed under S.33(1). Subsection (4) provides for the recognition of protected workmen, and limits their number as therein indicated; and sub-section (5) requires that where an employer has made an application under the proviso to sub-section (2), the authority concerned shall without delay hear such application and pass as expeditiously as possible such orders in relation thereto as it deems fit. This provision brings out the legislative intention that, though an express permission in writing is not required in cases falling under the proviso to S.33(2)(b), it is desirable that there should not be any time lag between the action taken by the employer and the order passed by the appropriate authority in an enquiry under the said proviso.” 9. Having regard to the aforesaid factual issues, the question to be considered is the validity of Ext.P6 order. 10. The main argument centres around the fact that no permission from the Conciliation Officer is required in a matter relating to the present dispute as the complaint given by the Union was against an order of suspension, which was W.P.(C) NO. 21572 of 2012 8 not a matter coming within the ambit of conciliation as defined under the I.D. Act to enable the conciliation officer to interfere. That apart, the second respondent was not a protected worker and therefore she was not entitled for the benefit of Section 33(3) of the I.D.Act. It is also submitted by the petitioner that Ext.P2 application was filed as an abundant precaution and that by itself does not mean that the Conciliation Officer had jurisdiction in the matter if under law he has no jurisdiction at all. 11. The Conciliation Officer is appointed under Section 4 of the Act which reads as under: “4. Conciliation Officers,-(1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes. (2) A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period.” 12. Apparently a notification has been issued by the Central Government appointing the Development Commissioner of CEPZ as the Conciliation Officer. The W.P.(C) NO. 21572 of 2012 9 purpose of conciliation is to conduct mediation and promoting settlement of the industrial disputes. The issue before the Conciliation Officer should be with reference to an industrial dispute. Section2 (k) defines 'industrial dispute' which reads as under: “(k) “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons;” Section 10 relates to reference of disputes to Boards, Courts or Tribunals. 13. Having regard to the aforesaid statutory provisions, the question would be whether an order of suspension can give rise to a dispute which could be considered for conciliation. The duties of Conciliation Officer is referred to under Section 12 (1) to (4) which reads as under: ## W.P.(C) NO. 21572 of 2012 10 12. Duties of conciliation officers (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given shall, hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government a[or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. Settlement is defined under Section 2(p) of the I.D. Act, which reads as under: “settlement” means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to [an officer authorised in this behalf by] the appropriate Government and the conciliation officer]; Section 33 (3)of the I.D.Act reads as under: W.P.(C) NO. 21572 of 2012 11 “[33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings . (3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute - (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. **Explanation. -** For the purposes of this subjection, a 'protected workman', in relation to an establishment, means a workman who, being [any member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. 14. An order of suspension is not an industrial dispute coming within the meaning of section 2(k). Hence, the second respondent or the Union, who represented the second respondent, could not have approached the Conciliation Officer under the I.D.Act and for that reason there was nothing for the Conciliation Officer to have adjudicated for a settlement between the parties. Only in a case where the dispute is with reference to employment or non-employment, terms of employment or the conditions of service of the worker, an individual dispute arises. An order of suspension cannot give rise to a dispute unless it alters the conditions of W.P.(C) NO. 21572 of 2012 12 the service of the workmen. The main argument of the learned counsel for the respondent is that when there is a suspension, there is reduction in payment of allowance and the workmen will get only subsistence allowance. Such an eventuality is provided under the statute and cannot be treated as an industrial dispute. 15. This is not a case in which the suspension was not followed by memo of charges. This is not a case where the suspension had been indefinitely prolonged. The suspension is followed by the issuance of memo of charges on 30.06.2011. Though an enquiry has been conducted by the action of the Conciliation Officer, the management is not in a position to impose any punishment on the workmen. Though notice for conciliation had been given by the suspended worker or union representing the said worker, it cannot be stated that it is with reference to an industrial dispute for which conciliation is required. In that view of the matter, I do not think that there was any valid conciliation proceedings before the first respondent. 16. The next question is with reference to Section 33(3) of the I.D.Act. The management has a case that the petitioner is not a protected worker. If the management has to take W.P.(C) NO. 21572 of 2012 13 such a view definitely, it shall be open for the management to take necessary action without invoking Section 33(3) of the I.D.Act. Management has a case that the application is filed in abundant caution. The Union which represented the 2[nd] respondent is not a recognised Union. That being the position, the 2[nd] respondent cannot claim such a protection. In such circumstances, I am of the view that Ext.P6 order has been issued by the first respondent without considering the question as to whether the order of suspension was a dispute which could have been settled by way of conciliation. In that view of the matter, Ext.P6 order has to be set aside. The judgment relied upon by the learned counsel for the respondent does not apply to the factual circumstances involved in this case as the judgment traverses on a different set of facts. In the above circumstances, this writ petition is only to be allowed as follows: Ext.P6 is quashed and it shall be open for the management to proceed further in accordance with law. ## **A.M. SHAFFIQUE, JUDGE** **ks.**