JUDGMENT
Brijesh Kumar, C.J.
1. This writ appeal is preferred against the order dated January 29, 1996 passed in Civil Rule No. 766/1990 dismissing the petition filed by the petitioner-appellant, challenging the award given by the Labour Court, Respondent No. 1 and ordering reinstatement of the workman Respondent No. 2 in service.
2. The short question which calls for answer is, as to whether during the period of non-publication of the Labour Court’s award under Section 17 of the Industrial Disputes Act, though the award has been written, signed and submitted, it would amount to ‘pendency’ of the ‘proceedings’ before the Labour Court or not for the purposes of Sections 33 and 33A of the Industrial Disputes Act. According to the respondent No. 2 the order dispensing with his services was passed on August 20, 1986 during the pendency of the proceedings in Misc. Case No. 3/85.
3. Only with a view to clarify the facts, it may be indicated that initially it was the case of the respondent No. 2 that order of dismissal was bad as it was passed during pendency of the proceedings in Misc. Case No.2/86 also which was finally decided in the year 1988. However, there is no dispute before us now, that respondent No. 2 was in no way connected with the proceedings i.e. Misc. Case No. 2/86. Learned counsel for the respondent No. 2 has very fairly made that statement before us.
4. The respondent No. 2 was, however, connected only with Misc. Case No. 3/85 in which the Tribunal gave its award on July 5, 1986, whereas the order of dismissal from service was passed on August 20, 1986. According to the learned counsel for the appellant since the proceeding in Misc. Case No. 3/85 had already been concluded, it cannot be said that any proceeding was pending on August 20, 1986 when the order of dismissal was passed. Hence, the order passed by the Labour Court is without jurisdiction and it is liable to be set aside. Whereas according to the learned counsel for the respondent No. 2, the award was not published till August 20, 1986, hence the proceedings were still pending before the Labour Court. Therefore, prior permission under Section 33 of the Act was necessary.
5. For the purpose of appreciating the controversy it would be appropriate to peruse certain provisions of the Industrial Disputes Act. Section 33 provides as follows :
“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 (an arbitrator of) 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)……………..”
Section 33A of the Industrial Disputes Act provides as follows:
“33-A. Special provision for adjudication as to whether conditions of service, etc. changed during pendency of proceeding : “Where an employer contravenes the provisions of Section 33 during pendency of proceedings (before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal) any employee aggrieved by such contravention, make a complaint in writing, in the prescribed manner–
(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of such industrial dispute; and
(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.”
6. The respondent No. 1 entertained the application under Section 33A of the Act on the basis of the case taken up by the respondent No. 2 that the order of dismissal was passed by the employer/appellant during the pendency of the proceeding before the Labour Court namely, Misc. Case No. 3/85. We have already noted that the order of dismissal was passed subsequent to the award given by the Labour Court. The date of dismissal order is August 20, 1986 whereas the date of award in Misc. Case No.3 of 1985 is July 5, 1986. Learned counsel appearing for the respondent-workman has, however submitted that the award was not published upto August. 20, 1986. Therefore till the award was not published the provisions of Section 33 of the Industrial Disputes Act would be applicable. His contention is that the proceedings before the Labour Court shall be taken to be continuing till the publication of the award and they would not come to an end on merely passing of the award by the Labour Court.
7. We find it difficult to accept the contention of the learned counsel for the respondent as referred in the preceding paragraph. Section 16 of the Industrial Disputes Act provides as follows :
“16. Form of report or award– (1) The report of a Board or Court shall be in writing and shall be signed by all the members of the Board or Court as the case may be:
Provided that nothing in this section shall be deemed to prevent any member of the Board or Court from recording any minute or dissent from report or from any recommendation made therein. (2) The award of a Labour Court or Tribunal or National Tribunal shall be in writing and shall be signed by its Presiding Officer.”
8. It is thus clear that as soon as an award is prepared in writing and signed by the Presiding Officer, the ‘award’ comes into being under Section 16 of the Act. Thereafter it is only to be submitted to the State Government who has to publish the award under Section 17 of the Act. Section 17A provides about the commencement of the award and its publication under Section 17 of the Act. The provisions as contained in Sections 17 and 17A of the Act are quoted below:
“17. Publication of reports and awards.–(1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such a manner as the appropriate Government thinks fit.
(2) Subject to the provisions of Section 17A, the award published under Sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.
17-A. Commencement of the award.-
(1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17.
Provided that-
(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal,
that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award under the proviso to Sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.
(3) Where any award as rejected or modified by an order made under Sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid, and where no order under Sub-section (2) is made in pursuance of a declaration under the proviso to Sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in Sub-section (2).
(4) Subject to the provisions of Sub-section (1) and Sub-section (3) regarding the en force ability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under Sub-section (1) or Sub-section (3), as the case may be.”
9. The provisions relating to reference of a dispute to the Labour Court and Tribunal etc. are contained in Sections 10 to 16 of the Act. The said provisions provide for exchange of the pleadings and adducing of evidence etc. as well as about the procedure which may be adopted and powers and duties of the Board and Labour Courts. Section 15 provides that the Labour Court/Tribunal shall hold its proceedings expeditiously and shall submit its award to the appropriate Government. Section 16 provides for, as indicated earlier, writing and signing of the award. Therefore, it is clear that proceedings before a Labour Court or Tribunal conclude with writing and signing of the award and submission of the same to the appropriate Government for publication. Thereafter, it is the appropriate Government which is concerned with the matter and the Labour Court or Tribunal ceases to have any concern with the same as the proceedings already stand concluded. On publication under Section 17, which is a function discharged by the appropriate Government, the award becomes enforceable under Section 17A of the Act. Thus publication of the award has relevance for the purpose of its en force ability and not about its existence. Delay in publication beyond the period prescribed does not render it invalid or non existent or non est. It remains a valid award as soon as it is written and signed.
10. Section 33 of the Industrial Disputes Act provides for seeking express permission in writing only in case where proceeding is pending before the Labour Court. The order passed during the pendency of a proceeding before the Labour Court can alone be complained of under Section 33A of the Industrial Disputes Act in case of violation of the provisions of Section 33 of the Act. In a case reported in Mahendra Singh Dhantawal v. Hindustan Motors Ltd., (1976-II-LLJ-259) (SC) it has been held that foundation of jurisdiction of the Tribunal to entertain complaint under Section 33A of the Industrial Disputes Act is the contravention of Section 33 of the Act. It is clear from the said observation of the Hon’ble Supreme Court that where no proceedings is pending before any Tribunal or Labour Court, there would be no occasion of violation of Section 33 of the Act. Consequently the Labour Court will not be vested with the jurisdiction to entertain a complaint under Section 33A of the Industrial Disputes Act.
11. In the instant case, we find that the order of dismissal of the respondent No. 2 was passed in August 20, 1986 whereas the proceedings before the Labour Court had already come to an end on submission or writing and signing of the award on July 5, 1986. On the proceeding coming to an end, before the order of dismissal was passed it cannot be said, at least for the purpose of Section 33A of the Industrial Disputes Act that so long as the award was not published in the official gazette, express permission of the Labour Court was necessary before passing the dismissal order. Publication of award is a statutory function of the appropriate Government over which the Labour Court has no control. It is a stage after the award is signed and submitted to the appropriate Government, the proceedings thus come to an end before the Labour Court.
12. In this view of the matter we find force in the submissions made on behalf of the appellant that the Labour Court had no jurisdiction to entertain the complaint and decide the same under Section 33A of the Industrial Disputes Act.
13. In the result, the appeal is allowed and the impugned order dated January 29, 1996 passed by the learned single Judge and the award dated December 29, 1989 are set aside. The writ petition, Civil Rule No. 766/1990 also stands allowed.
14. We may, however, clarify that this order would not affect any other remedy which may be admissible to the workman under the law against the order of dismissal of his service, if advised, it will be open to the petitioner to seek any such remedy as may be available in accordance with law.