1. With the consent of the parties, writ petition is heard finally.
2. By this petition, a challenge is made to the order dated 23rd July, 2009 so as the award dated 9th January, 2015.
3. It is a case where a complaint was filed by the respondent employee by invoking Section 33A of the Industrial Dispute Act, 1947 (in short "the Act of 1947"). The petitioner herein raised objections about maintainability of the complaint. The objections aforesaid were decided by the order dated 23rd July, 2009. The complaint under Section 33A of the Act of 1947 was held maintainable on the ground that general reference bearing No. 102/01 is pending before the Industrial Tribunal and the respondent employee is concerned workman to the dispute. The termination of service cannot be given effect unless application for approval under Section 33(2)(b) of the Act of 1947 is filed simultaneously.
4. The argument of the learned counsel for petitioner-Corporation is that reference bearing No. 102/01 is not related to the respondent employee. The pending reference is on a dispute raised by the retired employees claiming benefit of gratuity stopped by way of punishment after retirement. The argument of the petitioner-corporation was not accepted, rather it was held that pending reference for claim of gratuity relates to all the workmen which includes the respondent employee herein. It was an interim order. The petitioner-corporation did not challenge it immediately thereupon, rather they waited for final disposal of the case. It is in view of
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udgment of Hon'ble Apex Court in the case ofD.P. Maheshwari v. Delhi Admn. & Ors., reported in 1984 AIR 153holding that writ petition should not be entertained against the interim order passed by the Labour Court or the Tribunal. The award has now been passed in favour of the respondent-employee after adjudication. The award dated 9th January, 2015 as well as order dated 23rd July, 2009 have been challenged on the grounds raised above. To appreciate the arguments, Section 33 of the Act of 1947 is quoted hereunder:"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.(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman]-(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman:Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.(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 sub-section, a "protected workman", in relation to an establishment, means a workman who, being [a 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.(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of subsection (3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the 45 distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.(5) Where an employer makes an application to a conciliation officer, Board, [an arbitrator, a] labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, [within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit:][Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.]"5. Sub-section (2) of Section 33 applies when during the pendency of proceedings of an industrial dispute, the employer wants to alter condition of service, discharge or punish by way of dismissal or otherwise of a workman concerned to the dispute on a issue not connected with the pending dispute. In view of the above, Section 33 (2)(b) applies only when the pending industrial dispute is concerned to the workman who is punished on an issue not connected with the dispute. For application under Section 33(2)(b), it is necessary that workman should be concerned with the pending dispute. The object in bringing Section 33 was that if dispute is pending then concerned workman may not be harassed thus any action against him is subjected to permission or approval under Section 33 of the Act of 1947. The provision thus does not apply when pending dispute is not concerned to the workman against whom action has been taken. The pending dispute before the Industrial Tribunal is as under:"D;k izca/k funs'kd@v/khuLFk vf/kdkjh jkt0 jkT; iFk ifjogu fuxe t;iqj vius ;gka dk;Zjr Jfedksa tks fd fdlh Hkh dkj.k ls lsok fuo'Rr gq, gksa mUgsa lsok fuo'fRr ds ckn nf.Mr dj miknku jkf'k esa ls n.M jkf'k dkVk tkuk ,oa jksdk tkuk mfpr ,oa oS/k gS rFkk fu;kstd }kjk Jfed Qwypan ;kno] nsohyky /kkHkkbZ ,oa guqeku lgk; 'kekZ dks vkns'k la0 1087 fnukad 13-08-1999] 786 fnukad 19-02-1998 ,oa 121 fnukad 15-01-2000 ls miknku jkf'k dks iw.kZr% ,oa vkaf'kd :i ls nsus ls badkj fd;k tkuk mfpr ,oa oS/k gS ;fn ugha rks Jfedx.k fdl jkgr dks izkIr djus ds vf/kdkjh gSa"6. The perusal of terms of the reference does not reveal that respondent is a concerned workman. The dispute raised therein pertains to the claim of gratuity by the retired employees against whom order for stoppage of gratuity was passed as a measure of punishment. The Tribunal has committed a grave illegality in holding that pending reference would not be limited to those who have raised it but would be applied to the respondent-employee herein also. The respondent-workman is presently in service and not a retired employee and not subjected to stoppage of gratuity. In fact, therein the retired employees were denied benefit of gratuity by passing order of punishment after their retirement. Whether action of stoppage of gratuity is valid or not would be decided by the Tribunal in respect to few retired employees only. The respondent is not a concerned workman therein so as to require approval of the order of punishment by filing an application under Section 33(2)(b) of the Act of 1947. Section 33(2)(b) applies when pending dispute is concerned to the workman but therein misconduct committed by him is not connected with the dispute. It is true that misconduct committed by the respondent is not connected with the dispute pending before the Industrial Tribunal but at the same time, respondent-employee is not the concerned workman as required for application of Section 33(2) (a) of the Act of 1947. The words "concerned workman" used under Section 33(2) are of significance but has not been appreciated by the Tribunal.7. The issue raised herein came up for consideration before the Apex Court in the case ofNew India Motors (P) Ltd. New Delhi v. K.T. Morris, reported in AIR 1960 SC 875. It was held that words "concerned workman" would be not only those workmen on whose behalf dispute has been raised but even those who would be bound by the award, which may be made in the said dispute. The conclusion given therein is that not only those who espoused their dispute would be concerned workman but who would be bound by the award. Para 10 of the said judgment is quoted thus:"10. Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such disputes must be workmen directly or immediately concerned in the said disputes. We do' not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out this construction is harmonious with the definition prescribed by section 2(s) and with the provisions contained in section 18 of the Act. Therefore, we are not prepared to hold that the expression " workmen concerned in such dispute " can be limited only to such of the workmen who are directly concerned with the dispute in question. In our opinion, that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute."8. In the instant case, neither pending dispute was espoused by the respondent nor he would be bound by the award, rather award would be applicable to those workman whose gratuity has been held as a punishment after retirement. The subsequent judgment of the Apex Court is in the case ofDigwadih Colliery v. Ramji Singh, reported in 1964 II L.L.J. 143. Therein, it was clarified that for maintaining an application, it would be necessary to see nature of pending dispute before asking the Tribunal to make a finding in favour of the workman. The provision would not apply unless the workman is concerned to the dispute. Therein, the workman was dismissed from service for having been found guilty of misconduct of lending money to a subordinate employee. A complaint under Section 33A of the Industrial Disputes Act was filed without providing that he is a concerned workman in the other dispute. The Tribunal did not ascertain whether the workman is concerned to other dispute while passing the order thus interference was caused by the Apex Court in the order passed by the Labour Court. The same issue came up for consideration before Calcutta High Court in the case ofA.K. Corporation Pvt. Ltd. v. State, reported in (1977) ILR 1Cal 386. Paras 4 to 6 of the said judgment are quoted for ready reference:"4. In theNew India Motors Put. Ltd. v. K.T. Morris A.I.R. 1960 S.C. 875, the Supreme Court held that the expression 'workmen concerned includes all workmen on whose behalf it has been raised as well as those would be bound by the award which may be made in the said dispute. But in a later decision inDigwadhi Colliery v. Ramji Singh (1964) II L.L.J. 143, the Supreme Court observed that unless the nature of the pending dispute was ascertained and considered, it could not be said that the concerned workman was a workman concerned in the pending dispute simply on the ground that there was some reference pending.5. InUpper Ganges Valley Electric Supply Co. Ltd. v. Srivastava (1963) I L.L.J. 237 (S.C.)in construing Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950, the Supreme Court held that an application under Section 23 of that Act was not maintainable because the workman was not concerned in the pending appeal before the Labour Appellate Tribunal which was related to an individual dispute.6. By deeming provisions of Section 2A of the Act an individual dispute becomes an industrial dispute. But, in that dispute the other workmen are not concerned. There must be a common feature in the nature of dispute in two cases which would serve as a connecting link thereby rendering workman in later case also workman concerned in dispute in the earlier case. So, there the pending reference was an individual dispute in respect of one employee, it could not be said that all other workmen were concerned in that dispute. Accordingly, in my view, provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947, are not attracted where a reference under Section 2A of the Act is pending before any Industrial Tribunal."9. The paras quoted above clarify that if a workman is not concerned to the pending dispute then complaint under Section 33A of the Act of 1947 would not be maintainable. In view of aforesaid judgment, the view taken by learned court below is not correct.10. In view of above, impugned order dated 23rd July, 2009 holding application under Section 33A of the Act of 1947 to be maintainable is not sustainable in the eye of law and is accordingly set aside. When application under Section 33A of the Act of 1947 is not maintainable, consequential award dated 9th January, 2015 passed on a complaint would also go and is accordingly set aside.11. The writ petition is accordingly allowed. The respondent workman would however be at liberty to raise dispute against the order of termination by approaching to the conciliation officer under Section 10 of the Act of 1947. If settlement is not made then appropriate Government would take a decision for its reference. It is because the respondent-employee cannot be made remediless. If complaint under Section 33A is not maintainable then he has a right to raise dispute by approaching to the conciliation officer under Section 10 of the Act of 1947.Writ Petition allowed.
"2016 (2) WLC 61, 2016 (150) FLR 524, 2016 (4) RAJLW 3255, 2015 (31) SCT 528,"