Gangpur Labour Union Vs. Industrial Tribunal and anr. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 1. the sole question urged in this case is whether an industrial tribunal is entitled to drop a proceeding under section 33-a of the industrial disputes act, 1947 (hereinafter referred to as the act), as having become infructuous since the original dispute, during the pendency of which the contravention of the provisions of section 33 of the act is complained of, ends in a no-dispute award.rath, j. 1. the sole question urged in this case is whether an industrial tribunal is entitled to drop a proceeding under section 33-a of the industrial disputes act, 1947 (hereinafter referred to as the act), as having become infructuous since the original dispute, during the pendency of which the contravention of the provisions of section 33 of the act is complained of, ends in a no-dispute award. the short facts are that industrial dispute case. no. 5 of 1984 was pending before the industrial tribunal between the management (opposite party 2) and the petitioner-union to decide as regards the notice of change issued on february 10, 1984 given under section 9-a of the act by management, whether the effect of such no-lice was to reduce the wages of the workmen. during the pendency of the proceeding the alleged contravention was made by the management of reduction of the rate of wages, increase in the workload, payment to each piece-rated worker and each gang leader at the rate of rs. 15 and rs. 18 respectively as basic wages per day, and the introduction of stiff norm regarding earning of minimum basic wages, which resulted in workmen being deprived of the guaranteed minimum wages. in deciding the proceeding under section 33-a of the act, the tribunal held as follows:'in the circumstances, i would reject the application as being infructuous. the award is passed accordingly'. the learned counsel for the petitioner has urged such award being misconceived as it is not in terms of section 33-a of the act.2. section 33-a of the act is a provision where if an allegation is made of the contravention of the provisions of section 33 during the pendency of a proceeding, inter alia, before the tribunal and an application is made in that behalf, the tribunal is to proceed to determine the complaint as if it is a dispute referred to it or is pending before it. hence once an application is made to a tribunal under section 33-a it has to decide as to whether there has been in fact a contravention of section 33 of the act which, if it may be so said, is the primary, corollary or jurisdictional fact to, decide. on its reaching a decision that there has been in fact a contravention of the provisions of section 33, the tribunal is thereafter to treat the complaint as a dispute referred to it and to proceed to adjudicate upon the same in accordance with the provisions of the act. so far as the present case is concerned, it is the conceded case of the opposite party 2, the management, that in fact there was contravention of section 33 inasmuch as there was change of conditions of service without prior approval of the tribunal during the pendency of industrial dispute case no. 5 of 1984 (central). that being so, the tribunal was under a mandate to treat the application under section 33-a as a dispute referred to it and to proceed to adjudicate upon it. there was no jurisdiction in it to pass an award saying that the dispute had become infructuous. the claim of the applicants was to be decided on merit and since that was not done, we have no hesitation to hold that the award of the tribunal was illegal and without jurisdiction.3. but it is brought to our notice by the learned counsel for the opposite party 2, the management, that during the pendency of the writ petition the very questions as were raised before the tribunal in the application under section 33-a of the act became the subject-matter of the settlement between the parties and that the settlement has been arrived at, copy of which has been annexed as annexure a/2 to the counter-affidavit filed by it. it is the submission of the learned counsel that in view of the settlement having already been reached, the dispute which was to be adjudicated upon by the tribunal does no longer survive.4. once the conclusion is reached that the tribunal was under a binding duty to have decided the application under section 33-a of the act as a dispute pending before it, the only order necessary to be passed is to set aside the award and remand the matter to the tribunal for fresh adjudication. in that background, the fact of settlement now pleaded by the opposite party 2 is to be judged, if the dispute was pending before the tribunal, it was open for the parties also to have settled the dispute out of the tribunal and bring such fact to the notice of the tribunal which was to record the settlement and dispose of case accordingly passing award accepting the settlement or modifying it if the occasion so arose.5. in that view of the matter, the writ petition is allowed, the award passed by the tribunal in annexure 2 is set aside, and the matter is remitted to the tribunal for fresh adjudication. the parties may bring to the notice of the tribunal the settlement reached between them as in annexure a/2 and in deciding the proceeding, the tribunal shall take due notice of the same and dispose of the proceeding in accordance with law. no costs.j. m.mahapatra, j. 6. i agree.