CASE NO.: Appeal (civil) 2999-3011 of 2004 PETITIONER: B.P.L. LTD. AND ORS. RESPONDENT: R. SUDHAKAR AND ORS. DATE OF JUDGMENT: 06/05/2004 BENCH: SHIVARAJ V. PATIL & D.M. DHARMADHIKARI JUDGMENT:
JUDGMENT
2004 Supp(2) SCR 414
The Judgment of the Court was delivered by SHIVARAJ V. PATIL, J. : Leave
granted.
The short and straight question, which arises for consideration is “whether
a dispute is said to be pending before an industrial Tribunal for the
purpose of proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947
(for short ‘the Act’) during the period when operation of the order of
reference of dispute itself remained stayed”.
In each one of these appeals appellant No. l is a company and appellant No.
2 is one of its shareholders. The BPL Group of Companies Karmikara Sangha
(Union) had raised certain disputes on behalf of the workmen of the
appellant companies. On failure of conciliation the disputes came to be
referred by the Government for adjudication to the Industrial Tribunal,
Bangalore (for short ‘the Tribunal’), by order dated 26.2.1999, The
aforesaid union, not being fully satisfied with the order of reference,
filed writ petition No. 7355/99 in the High Court seeking a mandamus to the
State Government for referring some more points/ disputes raised by them. A
learned “single Judge of the High Court on 11.3.1999, at the stage of
issuing notice for admission, passed the interim order in the following
terms :-
“The operation of the order dated 26.2.1999 bearing No. KAE 117 KA Ky VI 99
& No. KAE-117, KA KY VI 99 passed by R-1 (Annexure ‘A’ and ‘B’ to the writ
petition respectively) be and the same is hereby stayed for a period of two
weeks from 11.3.1999.”
During the course of hearing the learned counsel for the parties submitted
that this interim order, having been continued, was in operation till the
writ petition was finally disposed of on 12.4.1999. During the pendency of
the said writ petition the workmen were dismissed from the service on
31.3.1999 on the ground of serious misconduct. The aggrieved workmen
(respondents herein) filed a complaint under Section 33A of the Act before
the Tribunal complaining that they have been dismissed from service in
contravention of the provisions contained in Section 33(2) of the Act and,
therefore, they were entitled to be reinstated. The Management of the
appellant companies resisted the complaint raising a preliminary objection
to the effect that the orders of dismissal were passed during the period
when the order of stay passed by the learned single Judge in the aforesaid
writ petition No. 7355/99 was in operation and as such there was no
violation of Section 33(2)(b) of the Act. It was urged that when the
appellant companies took action in accordance with law no proceedings were
pending before the Tribunal as the operation of the very order of reference
had been stayed by the High Court. The Tribunal, by its order dated
19.5.2000, rejected the preliminary objections. The appellant companies
filed writ petition Nos. 28377-28378, 28446-28450, 28452 and 28454-28458 of
2001 challenging the correctness and validity of the aforementioned order
of the Tribunal rejecting the preliminary objection. The learned single
Judge of the High Court dismissed the writ petitions upholding the view
taken by the Tribunal. Aggrieved by and not satisfied with the order of the
learned single Judge of the High Court the appellant companies filed writ
appeals before the Division Bench of the High Court. The Division Bench of
the High Court, fully concurring with the conclusion arrived at by the
learned single Judge, dismissed the writ appeals by the common order under
challenge in these appeals.
Mr. R.F. Nariman, learned senior counsel in support of the appeals, urged
that the High Court proceeded on a wrong footing that staying the operation
of the order of reference made by the Government did not wipe out the
proceedings instead of considering whether on the relevant date proceedings
were pending before the Tribunal or not on account of the stay order; the
learned single Judge as well as the Division Bench of the High Court did
not appreciate that the Tribunal being a creature of statute derived its
jurisdiction only upon an order of reference being made by the Government
under Section 10 of the Act; such being the legal position the proceedings
could not be deemed to have been pending as on 31.3.1999 when the workmen
were dismissed from service during the period when the operation of the
order of reference itself remained stayed by the High Court; the High Court
has failed to distinguish the difference between stay of further
proceedings and stay of reference itself; stay of operation of the order of
reference being in force, the proceedings could not be deemed to have
commenced as the Tribunal could not enter upon the reference itself. He
urged that the Division Bench of the High Court committed a grave error in
applying the decision of this Court in Shree Chamundi Mopeds Ltd. v. Church
of South India Trust Assn. CST Cinod Secretariat, Madras, to the facts of
the case and the real question that was required to be resolved. The said
case has no bearing on the question to be decided.
In opposition, Mr. S.R. Bhat, learned advocate for the respondents, made
submissions supporting the impugned judgment. He drew our attention to
Section 20(3), 23 and 33(1) of the Act in support of his submissions. He
placed reliance on decisions of this Court in Kanoria Chemicals and
Industries Ltd. and Others v. U.P. State Electricity Board and Others2 and
Tukaram G. Gaokar v. R.N. Shukla and Others3. He also submitted that merely
because the operation of the order of reference was stayed it could not be
said that the proceedings before the Tribunal were wiped out.
On facts there is no dispute or debate between the parties. Section 33 of
the Act, to the extent it is relevant, reads :-
“33. Conditions of service, etc., to remain unchanged under certain
circumstances during pendency of proceedings. – (l)
1. (1992) 2 SCR 999.
2. [1997] 5 SCC 772.
3. AIR (1968) SC 1050
During the pendency of any conciliation proceedings before a conciliation
officer or a Barad 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 workman 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 standing orders applicable to
a workman concerned in such dispute or, where there are no such standing
order, 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, 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.” It is to be stated here
itself that in writ petition No. 7534 of 1999, filed by the union on behalf
of the workmen interim order was sought by themselves to stay the operation
of the order of reference. It is at the instance of the union that interim
order was passed by the learned single Judge, which is already extracted
above.
Under sub-section (2) of the Section 33 of the Act during pendency of
proceeding in respect of an industrial dispute, the employer may, in
accordance with 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 for any misconduct not connected with the dispute, discharge or
punish, whether by dismissal or otherwise, that workman, provided 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. From this provision it is clear that for seeking an approval
for discharge or dismissal of a workman from service by the employer
essentially proceedings in respect of an industrial dispute must be
pending.
In the present case the respondent-workmen were dismissed from service on
account of misconduct during the period when operation of the order of
reference remained stayed. Compliance of proviso to Section 33(2)(b) would
be required if the dispute was pending on the date when the workmen were
dismissed from service. The Tribunal held that the dispute was pending
before it notwithstanding stay of the operation of the order of reference
by the Government. The said view was upheld by the learned single Judge of
the High Court following the decision of this Court in Shree Chamundi
Mopeds Ltd. case (supra). In the impugned order the Division Bench of the
High Court observed that the learned single Judge rightly relied on the
said decision and dismissed the writ appeals. Hence it is necessary to have
a closer look at the facts of Shri Chamundi Mopeds and the ratio. The
appellant in that case was a public limited company. It had taken on rent
the premises belonging to the respondent – Church of South Indian Trust
Association. The appellant company committed default in payment of rent.
The respondent issued the legal notice dated 1.4.1987 calling upon the
appellant company to pay the said amount. While admitting the liability to
pay the appellant company stated that it was expecting certain sums of
money towards developmental loan from the Government of Karnataka and as
soon as the same was received it would pay the outstanding amount. Since
the amount was not paid respondent issued a notice under Section 434 of the
Companies Act and, thereafter, a petition was filed in the High Court under
Section 433(e) of the Companies Act for winding up of the appellant
company. During the pendency of that petition the appellant company
claiming that it had become a sick industrial company, filed a reference
under Section 15(1) of the Sick Industrial Companies (Special Provision)
Act, 1985 (for short ‘the SICA’), before the Board of Industrial and
Financial Reconstruction. After publication of general notice in newspapers
and on intimation to the concerned parties the Board concluded that the
appellant company should be wound up. The appeal filed by the appellant
company against the order of the Board to the Appellate Authority for
Industrial and Financial Reconstruction was dismissed on 7.1.1991. The
appellant company filed writ petition in the High Court of Delhi
challenging the order passed by the appellate authority, The High Court on
21.2.1991 issued notice in the writ petition returnable on 10.5.1991. On
the stay petition filed in the writ petition notice was issued for
10.5.1991 and in the meanwhile operation of the order of the appellate
authority dated 7.1.1991 was stayed, After dismissal of the appeal of the
appellant company by the appellate authority, the winding up petition was
taken up for consideration and it was allowed by a learned single Judge of
the Karnataka High Court by order dated 14.8.1991. The learned single Judge
of the Karnataka High Court took the view that the pendency of the writ
petition in the High Court of Delhi and stay of the operation of the order
of the appellate authority did not stand in the way of the court to proceed
with the matter. The appellant company’s appeal filed against this order of
the learned single Judge was dismissed by the Division Bench of the
Karnataka High Court by order dated 6.11.1991. On 26.2.1988 the respondent
filed a petition seeking eviction of the appellant company from the demised
premises under Section 21(1) of the Karnataka Rent Control Act, 1961 on the
ground that the appellant company was a chronic defaulter in payment of
rent. In those proceedings the appellant company moved an application under
Section 151 of Civil Procedure Code read with Section 22 of the SICA for
stay of the said proceedings on the ground that the appellant company had
been declared a sick industrial company. The said application was rejected
by the Small Causes Court by order dated 14.9.1989 taking the view that
Section 22 of the SICA had no application inasmuch as proceedings
instituted by the landlord for recovery of possession of the premises of
which a sick industrial company is a tenant is not included among the
proceedings which are required to be suspended under Section 22(1) of the
SICA. Thereafter, eviction petition was allowed by order dated 30.9.1989.
the appellant company filed a writ petition challenging the order of
eviction, which was later converted into revision petition under Section 50
of the Karnataka Rent Control Act. The said revision petition was dismissed
rejecting claim for exemption from the applicability of Section 29(1) of
the Karnataka Rent Control Act stating that no inquiry under Section 16 was
pending nor any scheme referred under Section 16 was pending nor any scheme
referred under Section 17 of SICA was under preparation or consideration.
It was held that the stay order passed by the Delhi High Court in the writ
petition did not entitled the appellant company to invoke the protection of
Section 22 of the SICA, as if appeal was pending. On these facts following
two questions arose for consideration before this Court :-
“(1) What is the effect of the order passed by Delhi High Court dated
February 21, 1991 staying the operation of the order dated January 7, 1991
passed by the Appellate Authority? Does it mean that after the passing of
the said order by the High Court, the proceedings under the Act should be
treated as pending and, if so, before which authority?
(2) Are the proceedings instituted by landlord for eviction of a tenant who
is a sick company from the premises let out to it, required to be suspended
under Section 22(1) of the Act?”
We are concerned only with question number one. The proceedings before the
Board under Sections 15 and 16 of the SICA had been terminated on
26.4.1990. The appeal filed by the appellant company before the appellate
authority had been dismissed on 7.1.1991. As a result of these orders no
proceeding under the Act was pending either before the Board or before the
appellate authority on 21.2.1991 when the Delhi High Court passed the
interim order staying the operation of the order of appellate authority
dated 7.1.1991. This Court held that the said stay order could not have the
effect of reviving the proceedings, which had been disposed of by the
appellate authority by its order dated 7.1.1991 observing that “While
considering the effect of an interim order staying the operation of the
order under challenge, a distinction has to be made between quashing of an
order and stay of operation of an order. Quashing of an order results in
restoration of the position as it stood on the date of passing of the order
which has been quashed. The stay of operation of an order does not,
however, lead to such a result. It only means that the order which has been
stayed would not be operative from the date of passing of the stay order
and it does not mean that the said order has been wiped out from existence.
This means that if an order passed by the appellate authority is quashed
and the matter is remanded, the result would be that the appeal which had
been disposed of by the said order of the appellate authority would be
restored and it can be said to be pending before the appellate authority
after the quashing of the order of the appellate authority. The same cannot
be said with regard to an order staying the operation of the order of the
appellate authority because in spite of the said order, the order of the
appellate authority continues to exist in law and so long as it exists it
cannot be said that the appeal, which has been disposed of by the said
order has not been disposed of and is still pending.” In that view this
Court held that it cannot be said that any proceedings under the Act were
pending before the Board or the appellate authority on the date of passing
the order dated 14.8.1991 by the learned single Judge of the Karnataka High
Court for winding up of the company or on 6.1.1991 when the Division Bench
passed the order dismissing OSA No. 16 of 1991 filed by the company and,
therefore, there was no impediment in the High Court dealing with the
winding up petition filed by the respondents.
In the case on hand the situation is entirely different. The Tribunal gets
jurisdiction only on reference made by the Government. When the operation
of the very order of reference was stayed the question of dispute pending
before the Tribunal did not arise inasmuch as the reference order itself
stood suspended. So long as stay order was operating it could not be said
that the dispute was pending before the Tribunal. Admittedly, when workmen
were dismissed from service stay order was operating. Learned single Judge
as well as the Division Bench of the High Court have proceeded on wrong
footing relying upon the decision of this Court in Shri Chamundi Mopeds
Ltd. (supra), that the order of reference was not wiped out by virtue of
staying of the operation of order of reference. It is not the question as
to whether the order of reference is wiped out but the question is what is
the effect of the staying of the operation of order of reference itself.
Once the operation of order of reference is stayed there is no question of
dispute pending before the Tribunal so long as the said order remains in
operation because reference precedes dispute. To put it differently,
dispute could come up for adjudication by the Tribunal pursuant to the
order of reference only. If in a pending proceeding operation of order is
stayed pending disposal of the main matter such as an appeal or revision,
obviously the impugned order does not get quashed or wiped out. It only
remains suspended. But the position is different in this case, as already
stated above. It was not a case where the dispute was pending and only
further proceedings were stayed. When the order of reference itself was
stayed the Tribunal did not have the jurisdiction to pass any further
order. As such the question of either management making an application
under the proviso to Section 33(2)(b) or the Tribunal passing an order of
such apptication would not arise. In case any tribunal proceeds to pass an
order in spite of stay of the operation of the order of reference by the
High Court it may amount to contempt of the order of the High Court. In
case of some grave misconduct the management cannot afford to sit idle or
simply wail to take action, particularly, when stay of the operation of the
order of reference is obtained at the instance of union on behalf of the
workmen, The case of Shri Chamundi Mopeds Ltd. is quite distinguishable and
it is on the facts of that case. Even in that case it is stated that the
order of stay did not amount to revival of appeal or proceeding.
In Ravi S. Naik v. Union of India and Others4 , dealing with the staying of
the operation of the order of disqualification, passed by the Speaker of
the Assembly in regard to two members of the House, this Court held that
the order of disqualification made by the Speaker dated 13.12.1990 was not
operative and consequently it could not be said that they were not members
of Goa Assembly. The Court, looking to the terms of the interim order and
its effect on the disqualification of the members on the relevant date,
held, it is settled law that an order, even though interim in nature, is
binding till it is set aside by a competent court”. Similarly, in the
present case also looking to the terms of the interim order granted by the
High Court staying the very operation of order of reference it could not be
said that dispute was pending before the Tribunal on the relevant date,
viz., the date on which the workmen were dismissed from service. 4. [1994]
Supp. 2 SCR 641. In the case of Kanoria Chemicals (supra), the notification
of the Uttar Pradesh Electricity Board enhancing the electricity rates was
under challenge. The High Court had granted interim order staying the
operation of the said notification. Dealing with the contention that since
the notification had been stayed the petitioners could not be compelled to
pay the enhanced electricity rates after the dismissal of the writ
petition, this Court, in view of what is stated in Shree Chamundi Mopeds,
took the view that the stay of operation of the notification only meant
that it would not be operative from the date of passing such order and it
did not mean that the notification itself had been wiped out from the
existence. Obviously after the dismissal of the writ petition the
notification, which stood suspended during period of stay, became
operative. The Court held that by virtue of the stay order even after
dismissal of the writ petition the petitioners could not be relieved of
their obligation to pay late payment surcharge/interest on the amount
withheld by them. Again, Style (Dress Land) v. Union Territory, Chandigarh
and Another5, was also a case where the High Court granted stay order in
writ petitions filed challenging the increase in the rent of lease in
commercial premises. Those writ petitions were ultimately dismissed
directing the petitioners to pay the interest @ 18% per annum for the
period during which the payment of rent at the new rates remained stayed by
the High Court. Dealing with the contention that during the period when the
stay was operative the petitioners could not be directed to pay interest,
the Court held that mere passing of an order of stay could not be presumed
to be a conferment of an additional right upon the litigating party.
Referring to Shree Chamundi Mopeds the Court stated that the stay only
meant that it would not be operative from the date of its passing till the
writ petitions were dismissed and it did not mean the demand had been wiped
out. These two decisions, in our view, do not help respondent-workmen,
having regard to the terms of the interim order and in the context of the
facts of those cases.
The effect of grant of stay of operation of the order of industrial
reference was that the Industrial Tribunal Could not take up the reference
for adjudication. Consequently, no action based on such reference could be
taken by the Tribunal including grant or refusal of approval to the
disciplinary action under Section 33(2) of the Act. The employer could not
have, therefore, approached the Tribunal for seeking approval to its 5.
[1999] 7 SCC 89. disciplinary action so long as the order of reference
remained stayed by the order of the High Court. The industrial reference
stood revived only when the writ petition against the industrial reference
was finally disposed of by the High Court on 12.4.1999. The Industrial
reference would be said to be pending only from 12.4.1999. The action of
dismissal of the services of the workmen was taken on 31.3.1999. On that
date, as a result of the order of the stay of the operation of reference by
the High Court on 11.3.1999, no reference was pending for adjudication
before the Tribunal. The provisions of Section 33 of the Act are attracted
only when an industrial dispute is pending for adjudication and not merely
when an order of reference is made by the Government. In the present case,
proceedings were not pending before the Tribunal because of the stay of the
order of reference itself. Both sub-section (1) and sub-section (2) of
section 33 employ the language “during the pendency of any proceeding”
which clearly convey that obligation on the part of the employer under the
said Section of seeking “express permission” for the purpose of sub-section
(l) or “approval for the purpose of sub-section (2) arises only when there
are proceedings pending on industrial dispute before the Tribunal or other
specified statutory adjudicatory authorities under the Act.
In the present case as on date of dismissal of workmen from service the
interim order staying the operation of the order of reference was
operative. Hence the question of dispute being pending on that day did not
arise. As already stated above, in order to make an application under
proviso to Section 33(2) (b) of the Act, pendency of the proceeding was
essential. In this view the appellant companies did not contravene the
provisions of Section 33(2)(b) of the Act.
Under proviso to Section 33(2)(b) one of the essential conditions for
making an application for approval of action is pendency of an industrial
dispute. It is true that, as held in Shree Chamundi Mopeds case (supra), a
distinction has to be drawn between the stay of an order and quashing of an
order. In the instant case when the High Court stayed the operation of the
order of reference itself either pendency of dispute or proceeding to
adjudicate the dispute did not arise. In other words, the interim order of
stay worked as a threshold bar for proceeding with the dispute. So long as
interim order of stay continued, it could not be said that the dispute was
pending. The High Court relied on the decision of this Court in Shree
Chamundi Mopeds and emphasised that grant of interim order did not wipe out
the existence of order of reference. But it did not focus its attention to
the actual terms of the stay order and their effect in deciding the
question as to pendency of proceedings before the Tribunal. What an interim
order means or what is its effect and/or consequences of it depend upon its
own terms. In case of some ambiguity or difficulty in understanding an
interim order, which rarely happens, one has to understand the interim
order looking to the prayer made for interim relief, facts of a given case
and the terms of the interim order. In the case on hand we should first
look at the terms of the interim order in order to judge whether a dispute
was pending before the Tribunal or not. The interim order is plain in its
terms, viz., the operation of the order of reference was itself stayed. As
already noticed above, the effect of this interim order was that no
proceedings could commence or were pending before the Tribunal at the
material and relevant time. In this case whether the order of reference was
wiped out or not by the interim order of stay was not relevant. It is not a
case of staying an impugned order in appeal or revision. But the very order
of reference is itself stayed. In the very nature of things interim order
and final order are distinct and they serve different purposes. Interim
order operates during the pendency of the proceedings and final order
results in adjudication of a dispute finally. May be in some cases final
order may be passed in terms of the interim order, but then interim order
merges in final order and it gets elevated to the status of final order.
One more factor to be kept in mind is that it is not that the workmen do
not have remedy to challenge the order of dismissal. They can raise dispute
challenging the said order of dismissal by initiating separate proceedings.
Even if an application was to be made under proviso to Section 33(2)(b),
the Tribunal could not have proceeded to pass any order because of the
interim order passed by the High Court staying the operation of the order
of reference. If the Tribunal were to proceed to pass any order there would
have been a possibility of it committing contempt of the order passed by
the High Court. This Court in Baradakanta Mishra, Ex-commissioner of
Endowments v. Bhimsen Dixit6, dealing with the case that where the
authority did not follow a binding precedent of the High Court and tried to
justify not following it on some grounds, observed thus :-
“Contempt of Court is disobedience to the court, by acting in opposition to
the authority, justice and dignity thereof. It signifies a willful
disregard or disobedience of the court’s order, 6. [1973] 2 SCR 495. it
also signifies such conduct as tends to bring the authority of the court
and the administration of law into disrepute. (Vide 17 Corpus Juris
Secundum pages 5 and 6; Contempt by Edward N. Dangel (1939 Edn.) page 14.
Oswald’s Contempt of Court (1910 Edn.) pages 5 and 6).
It is a commonplace that where the superior court’s order staying
proceedings is disobeyed by the inferior court to whom it is addressed, the
latter court commits contempt of court for it acts in disobedience to the
authority of the former court, The act of disobedience is calculated to
undermine public respect for the superior court and jeopardize the
preservations of the law and order. The appellant’s case is to be examined
in the light of the foregoing principles and analogy.”
That was a case where binding precedent of High Court was not followed, but
in the present case the Tribunal, if was to proceed with an application
under Section 33(2)(b) of the Act, it would have been direct disobedience
of the interim order of stay passed by the High Court.
A situation may arise where workman commits a grave misconduct and
situation does not allow any delay in taking action against such workman
and the interim order staying operation of order of reference is operative
and if it was to prolong for a long time, it would lead to anomalous
situation. The case of the appellant-companies, as can be seen from
paragraph 3 of the Counter Statement filed by them in reply to the
complaint made by the workmen under Section 33A of the Act, reads :-
“It is submitted that the services of the First Party was terminated on
31.3.1999 for his involvement in the barbaric incident of setting fire to a
bus carrying workmen resulting in the death of TWO women workers and
critically injuring six others besides injuring SEVERAL OTHERS. The Second
Party, in the normal course, would have held inquiries before taking any
action but the fear psychosis generated in the minds of the workmen by the
said act of First Party necessitated the Second Party apprehended that the
situation may go out of control and the delinquents may be emboldened to
indulge in further acts of violence, Therefore, the Second Party had no
other option other than to dispense with the services of the First Party in
order to ensure that the services of the other employees were protected and
that further acts of violence, if contemplated upon, could be curbed.
Considering the gravity of the situation and in view of the apprehension
expressed by the witnesses of their safety and security, the Second Party
felt that holding an enquiry was neither possible nor was it just and
expedient. Hence, the services of the First Party was terminated for
indulging in serious acts of violence and this was strictly in accordance
with the standing order. The Second Party will lead evidence on the acts of
misconduct for which the First party was dismissed from service and will
justify its order of dismissal before this Hon’ble Court in the event of
this Hon’ble court holding the complaint as maintainable.”
No doubt, the object of Section 33 of the Act is to protect the workman
concerned during pendency of the proceedings in a dispute against
victimization by the employer for having raised industrial dispute or his
continuing the pending proceedings. Further it is to ensure that the
proceedings in connection with the industrial disputes already pending
should be concluded in a peaceful atmosphere and to say that no employer
should, during pendency of the proceedings, take action of any kind
mentioned in the said Section, giving rise to fresh disputes leading to
straining the relations between the employer and the workman. But, then,
the requirements of the said Section are to be satisfied in order to invoke
the jurisdiction of the Tribunal under the said provision. For the purpose
of the present case pendency of the proceedings before the Tribunal was
pre-requisite condition for making an application under the proviso to
Section 33(2)(b) of the Act. Since the proceedings were not pending at the
relevant time, i.e., on the date of dismissal of the workmen by virtue of
the interim order granted by the High Court, the preliminary objection
raised by the appellant Companies as to the very maintainability of
complaint under Section 33A is valid and sustainable.
The question set out above in the beginning of this judgment is answered in
the negative.
Thus, viewed from any angle in our considered opinion the impugned order
cannot be sustained. The preliminary objection raised by the
appellant companies is upheld and consequently the complaint made by the
respondent-workmen is dismissed as not maintainable. We must, however, make
it clear that this order does not prejudice or preclude the respondent
workmen from questioning the validity and correctness of the order of their
dismissal from service by raising appropriate dispute in accordance with
law.
The appeals are accordingly allowed. No costs.