Adjudication under Section 33-A is necessary before invoking penalty clauses under Section 31 of the Industrial Disputes Act.

ORDER :

The Writ of Mandamus has been filed to direct the respondents 1 and 2 to initiate forthwith action to punish the third respondent and their officials for the offence committed by them and contravening Section 33 of the I.D. Act by terminating the services of four workmen namely, M/s.Prakas, Desingh, Anand and Senthil and by altering their status and conditions of service adversely during the pendency of conciliation and without getting prior permission under Section 33(1)(a) of the Industrial Disputes Act, which is punishable under Section 31 read with Section 32 and award costs.

2. The petitioner is Minjur Paguthi Pothu Thozhilalar Sangam, which is a registered Trade Union and affiliated to CITU.

3. The workmen-employees in various Industries and Establishments in the petitioner-establishment are the members of the petitioner-Union, which is established to protect the rights of the workmen.

4. The grievance of the writ petitioner is that the second respondent failed to act in consonance with the provisions of the Industrial Disputes Act, 1947 and the petition filed by the petitioner was not disposed of. Thus the petitioner is constrained to move the present writ petition.

5. A complaint was submitted regarding termination of four workmen by the third respondent-Company and thus the second respondent ought to have initiated appropriate action by invoking the provisions of the Industrial Disputes Act, 1947.

6. The learned Special Government Pleader, appearing on behalf of the respondents 1 and 2, objected the said contentions raised on behalf of the petitioner by stating that the second respondent submitted a failure report in respect of the conciliation proceedings and accepting the failure report of the second respondent, the Government issued orders in G.O.(D) No.209, Labour and Employment Department, dated 20.03.2018 and G.O.(D) No.210, Labour and Employment Department, dated 20.03.2018. Since the Government has already passed an order based on the failure report submitted by the Conciliation Officer, the petitioner-Sangam have to go for adjudication of the issues. Thus no further consideration is required in respect of the relief sought for in the present writ petition.

7. The learned Senior Counsel, appearing on behalf of the third respondent-Company, made a submission that the workmen referred by the petitioner-Sangam are not the employees of the third respondent-Company. However, the Conciliation Officer-second respondent submitted his failure report, which was acted upon by the Government and orders were issued and thus, no further adjudication is required in respect of the relief sought for in the present writ petition.

8. The learned Senior Counsel, appearing on behalf of the third respondent, made a submission that initiation of penal action against the third respondent under Section 33 of the Act, would not arise in this case. Unless an adjudication was completed and a complaint is made to the Government, then alone the question of invoking the penalty clause would arise, but not otherwise. Thus the very relief sought for in the present writ petition is incorrect and not in consonance with the Scheme of the Industrial Disputes Act, 1947.

9. The learned counsel for the petitioner-Sangam in reply contended that under Section 31 of the Industrial Disputes Act, penalty can be imposed if any employer contravenes the provisions of Section 33, which is a punishable offence with imprisonment for a term, which may extend to six months or with fine, which may extend to Rs.1,000/- or with both. Therefore, the Conciliation Officer has to adjudicate the issue regarding the violation of the provisions of Section 33, if any, committed by the third respondent-Company.

10. Section 33 of the Act, contemplates conditions of service etc., to remain unchange under certain circumstances during the pendency of proceedings. It is not in dispute that the Conciliation proceedings were pending before the second respondent. The complaint made b