{"id":234495,"date":"2004-05-06T00:00:00","date_gmt":"2004-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/b-p-l-ltd-and-ors-vs-r-sudhakar-and-ors-on-6-may-2004"},"modified":"2015-03-20T16:45:23","modified_gmt":"2015-03-20T11:15:23","slug":"b-p-l-ltd-and-ors-vs-r-sudhakar-and-ors-on-6-may-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/b-p-l-ltd-and-ors-vs-r-sudhakar-and-ors-on-6-may-2004","title":{"rendered":"B.P.L. Ltd. And Ors vs R. Sudhakar And Ors on 6 May, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
B.P.L. Ltd. And Ors vs R. Sudhakar And Ors on 6 May, 2004<\/div>\n
Bench: Shivaraj V. Patil, D.M. Dharmadhikari<\/div>\n
           CASE NO.:\nAppeal (civil)  2999-3011 of 2004\n\nPETITIONER:\nB.P.L. LTD. AND ORS.\n\nRESPONDENT:\nR. SUDHAKAR AND ORS.\n\nDATE OF JUDGMENT: 06\/05\/2004\n\nBENCH:\nSHIVARAJ V. PATIL & D.M. DHARMADHIKARI\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2004 Supp(2) SCR 414<\/p>\n
The Judgment of the Court was delivered by SHIVARAJ V. PATIL, J. : Leave
\ngranted.\n<\/p>\n
The short and straight question, which arises for consideration is “whether
\na dispute is said to be pending before an industrial Tribunal for the
\npurpose of proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947
\n(for short ‘the Act’) during the period when operation of the order of
\nreference of dispute itself remained stayed”.\n<\/p>\n
In each one of these appeals appellant No. l is a company and appellant No.
\n2 is one of its shareholders. The BPL Group of Companies Karmikara Sangha
\n(Union) had raised certain disputes on behalf of the workmen of the
\nappellant companies. On failure of conciliation the disputes came to be
\nreferred by the Government for adjudication to the Industrial Tribunal,
\nBangalore (for short ‘the Tribunal’), by order dated 26.2.1999, The
\naforesaid union, not being fully satisfied with the order of reference,
\nfiled writ petition No. 7355\/99 in the High Court seeking a mandamus to the
\nState Government for referring some more points\/ disputes raised by them. A
\nlearned “single Judge of the High Court on 11.3.1999, at the stage of
\nissuing notice for admission, passed the interim order in the following
\nterms :-\n<\/p>\n
“The operation of the order dated 26.2.1999 bearing No. KAE 117 KA Ky VI 99
\n& No. KAE-117, KA KY VI 99 passed by R-1 (Annexure ‘A’ and ‘B’ to the writ
\npetition respectively) be and the same is hereby stayed for a period of two
\nweeks from 11.3.1999.”\n<\/p>\n
During the course of hearing the learned counsel for the parties submitted
\nthat this interim order, having been continued, was in operation till the
\nwrit petition was finally disposed of on 12.4.1999. During the pendency of
\nthe said writ petition the workmen were dismissed from the service on
\n31.3.1999 on the ground of serious misconduct. The aggrieved workmen
\n(respondents herein) filed a complaint under Section 33A of the Act before
\nthe Tribunal complaining that they have been dismissed from service in
\ncontravention of the provisions contained in Section 33(2) of the Act and,
\ntherefore, they were entitled to be reinstated. The Management of the
\nappellant companies resisted the complaint raising a preliminary objection
\nto the effect that the orders of dismissal were passed during the period
\nwhen the order of stay passed by the learned single Judge in the aforesaid
\nwrit petition No. 7355\/99 was in operation and as such there was no
\nviolation of Section 33(2)(b) of the Act. It was urged that when the
\nappellant companies took action in accordance with law no proceedings were
\npending before the Tribunal as the operation of the very order of reference
\nhad been stayed by the High Court. The Tribunal, by its order dated
\n19.5.2000, rejected the preliminary objections. The appellant companies
\nfiled writ petition Nos. 28377-28378, 28446-28450, 28452 and 28454-28458 of
\n2001 challenging the correctness and validity of the aforementioned order
\nof the Tribunal rejecting the preliminary objection. The learned single
\nJudge of the High Court dismissed the writ petitions upholding the view
\ntaken by the Tribunal. Aggrieved by and not satisfied with the order of the
\nlearned single Judge of the High Court the appellant companies filed writ
\nappeals before the Division Bench of the High Court. The Division Bench of
\nthe High Court, fully concurring with the conclusion arrived at by the
\nlearned single Judge, dismissed the writ appeals by the common order under
\nchallenge in these appeals.\n<\/p>\n
Mr. R.F. Nariman, learned senior counsel in support of the appeals, urged
\nthat the High Court proceeded on a wrong footing that staying the operation
\nof the order of reference made by the Government did not wipe out the
\nproceedings instead of considering whether on the relevant date proceedings
\nwere pending before the Tribunal or not on account of the stay order; the
\nlearned single Judge as well as the Division Bench of the High Court did
\nnot appreciate that the Tribunal being a creature of statute derived its
\njurisdiction only upon an order of reference being made by the Government
\nunder Section 10 of the Act; such being the legal position the proceedings
\ncould not be deemed to have been pending as on 31.3.1999 when the workmen
\nwere dismissed from service during the period when the operation of the
\norder of reference itself remained stayed by the High Court; the High Court
\nhas failed to distinguish the difference between stay of further
\nproceedings and stay of reference itself; stay of operation of the order of
\nreference being in force, the proceedings could not be deemed to have
\ncommenced as the Tribunal could not enter upon the reference itself. He
\nurged that the Division Bench of the High Court committed a grave error in
\napplying the decision of this Court in Shree Chamundi Mopeds Ltd. v. Church
\nof South India Trust Assn. CST Cinod Secretariat, Madras,<\/a> to the facts of
\nthe case and the real question that was required to be resolved. The said
\ncase has no bearing on the question to be decided.\n<\/p>\n
In opposition, Mr. S.R. Bhat, learned advocate for the respondents, made
\nsubmissions supporting the impugned judgment. He drew our attention to
\nSection 20(3), 23 and 33(1) of the Act in support of his submissions. He
\nplaced reliance on decisions of this Court in Kanoria Chemicals and
\nIndustries Ltd. and Others v. U.P. State Electricity Board and Others2 and
\nTukaram G. Gaokar<\/a> v. R.N. Shukla and Others3. He also submitted that merely
\nbecause the operation of the order of reference was stayed it could not be
\nsaid that the proceedings before the Tribunal were wiped out.\n<\/p>\n
On facts there is no dispute or debate between the parties. Section 33 of
\nthe Act, to the extent it is relevant, reads :-\n<\/p>\n
“33. Conditions of service, etc., to remain unchanged under certain
\ncircumstances during pendency of proceedings. – (l)<\/p>\n
1.    (1992) 2 SCR 999.\n<\/p>\n
2.    [1997] 5 SCC 772.\n<\/p>\n
3.    AIR (1968) SC 1050<\/p>\n
During the pendency of any conciliation proceedings before a conciliation
\nofficer or a Barad or of any proceeding before an arbitrator or a Labour
\nCourt or Tribunal or National Tribunal in respect of an industrial dispute,
\nno employer shall –\n<\/p>\n
(a)     in regard to any matter connected with the dispute, alter, to the
\nprejudice of the workmen concerned in such dispute, the conditions of
\nservice applicable to them immediately before the commencement of such
\nproceeding; or<\/p>\n
(b)     for any misconduct connected with the dispute, discharge or punish,
\nwhether by dismissal or otherwise, any workman concerned in such dispute,<\/p>\n
save with the express permission in writing of the authority before which
\nthe proceeding is pending.\n<\/p>\n
(2) During the pendency of any such proceeding in respect of an industrial
\ndispute, the employer may, in accordance with standing orders applicable to
\na workman concerned in such dispute or, where there are no such standing
\norder, in accordance with the terms of the contract, whether express or
\nimplied, between him and the workman –\n<\/p>\n
(a)     alter, in regard to any matter not connected with the dispute, the
\nconditions of service applicable to that workman immediately before the
\ncommencement of such proceeding; or<\/p>\n
(b)     for any misconduct not connected with the dispute, discharge or
\npunish, whether by dismissal or otherwise, that workman:\n<\/p>\n
Provided that no such workman shall be discharged or dismissed, unless he
\nhas been paid wages for one month and an application has been made by the
\nemployer to the authority before which the proceeding is pending for
\napproval of the action taken by the employer.” It is to be stated here
\nitself that in writ petition No. 7534 of 1999, filed by the union on behalf
\nof the workmen interim order was sought by themselves to stay the operation
\nof the order of reference. It is at the instance of the union that interim
\norder was passed by the learned single Judge, which is already extracted
\nabove.\n<\/p>\n
Under sub-section (2) of the Section 33 of the Act during pendency of
\nproceeding in respect of an industrial dispute, the employer may, in
\naccordance with standing orders applicable to a workman concerned in such
\ndispute or, where there are no such standing orders, in accordance with the
\nterms of the contract, whether express or implied between him and the
\nworkman for any misconduct not connected with the dispute, discharge or
\npunish, whether by dismissal or otherwise, that workman, provided no such
\nworkman shall be discharged or dismissed unless he has been paid wages for
\none month and an application has been made by the employer to the authority
\nbefore which the proceeding is pending for approval of the action taken by
\nthe employer. From this provision it is clear that for seeking an approval
\nfor discharge or dismissal of a workman from service by the employer
\nessentially proceedings in respect of an industrial dispute must be
\npending.\n<\/p>\n
In the present case the respondent-workmen were dismissed from service on
\naccount of misconduct during the period when operation of the order of
\nreference remained stayed. Compliance of proviso to Section 33(2)(b) would
\nbe required if the dispute was pending on the date when the workmen were
\ndismissed from service. The Tribunal held that the dispute was pending
\nbefore it notwithstanding stay of the operation of the order of reference
\nby the Government. The said view was upheld by the learned single Judge of
\nthe High Court following the decision of this Court in Shree Chamundi
\nMopeds Ltd. case (supra). In the impugned order the Division Bench of the
\nHigh Court observed that the learned single Judge rightly relied on the
\nsaid decision and dismissed the writ appeals. Hence it is necessary to have
\na closer look at the facts of Shri Chamundi Mopeds and the ratio. The
\nappellant in that case was a public limited company. It had taken on rent
\nthe premises belonging to the respondent – Church of South Indian Trust
\nAssociation. The appellant company committed default in payment of rent.
\nThe respondent issued the legal notice dated 1.4.1987 calling upon the
\nappellant company to pay the said amount. While admitting the liability to
\npay the appellant company stated that it was expecting certain sums of
\nmoney towards developmental loan from the Government of Karnataka and as
\nsoon as the same was received it would pay the outstanding amount. Since
\nthe amount was not paid respondent issued a notice under Section 434 of the
\nCompanies Act and, thereafter, a petition was filed in the High Court under
\nSection 433(e) of the Companies Act for winding up of the appellant
\ncompany. During the pendency of that petition the appellant company
\nclaiming that it had become a sick industrial company, filed a reference
\nunder Section 15(1) of the Sick Industrial Companies (Special Provision)
\nAct, 1985 (for short ‘the SICA’), before the Board of Industrial and
\nFinancial Reconstruction. After publication of general notice in newspapers
\nand on intimation to the concerned parties the Board concluded that the
\nappellant company should be wound up. The appeal filed by the appellant
\ncompany against the order of the Board to the Appellate Authority for
\nIndustrial and Financial Reconstruction was dismissed on 7.1.1991. The
\nappellant company filed writ petition in the High Court of Delhi
\nchallenging the order passed by the appellate authority, The High Court on
\n21.2.1991 issued notice in the writ petition returnable on 10.5.1991. On
\nthe stay petition filed in the writ petition notice was issued for
\n10.5.1991 and in the meanwhile operation of the order of the appellate
\nauthority dated 7.1.1991 was stayed, After dismissal of the appeal of the
\nappellant company by the appellate authority, the winding up petition was
\ntaken up for consideration and it was allowed by a learned single Judge of
\nthe Karnataka High Court by order dated 14.8.1991. The learned single Judge
\nof the Karnataka High Court took the view that the pendency of the writ
\npetition in the High Court of Delhi and stay of the operation of the order
\nof the appellate authority did not stand in the way of the court to proceed
\nwith the matter. The appellant company’s appeal filed against this order of
\nthe learned single Judge was dismissed by the Division Bench of the
\nKarnataka High Court by order dated 6.11.1991. On 26.2.1988 the respondent
\nfiled a petition seeking eviction of the appellant company from the demised
\npremises under Section 21(1) of the Karnataka Rent Control Act, 1961 on the
\nground that the appellant company was a chronic defaulter in payment of
\nrent. In those proceedings the appellant company moved an application under
\nSection 151 of Civil Procedure Code read with Section 22 of the SICA for
\nstay of the said proceedings on the ground that the appellant company had
\nbeen declared a sick industrial company. The said application was rejected
\nby the Small Causes Court by order dated 14.9.1989 taking the view that
\nSection 22 of the SICA had no application inasmuch as proceedings
\ninstituted by the landlord for recovery of possession of the premises of
\nwhich a sick industrial company is a tenant is not included among the
\nproceedings which are required to be suspended under Section 22(1) of the
\nSICA. Thereafter, eviction petition was allowed by order dated 30.9.1989.
\nthe appellant company filed a writ petition challenging the order of
\neviction, which was later converted into revision petition under Section 50
\nof the Karnataka Rent Control Act. The said revision petition was dismissed
\nrejecting claim for exemption from the applicability of Section 29(1) of
\nthe Karnataka Rent Control Act stating that no inquiry under Section 16 was
\npending nor any scheme referred under Section 16 was pending nor any scheme
\nreferred under Section 17 of SICA was under preparation or consideration.
\nIt was held that the stay order passed by the Delhi High Court in the writ
\npetition did not entitled the appellant company to invoke the protection of
\nSection 22 of the SICA, as if appeal was pending. On these facts following
\ntwo questions arose for consideration before this Court :-\n<\/p>\n
“(1) What is the effect of the order passed by Delhi High Court dated
\nFebruary 21, 1991 staying the operation of the order dated January 7, 1991
\npassed by the Appellate Authority? Does it mean that after the passing of
\nthe said order by the High Court, the proceedings under the Act should be
\ntreated as pending and, if so, before which authority?\n<\/p>\n
(2) Are the proceedings instituted by landlord for eviction of a tenant who
\nis a sick company from the premises let out to it, required to be suspended
\nunder Section 22(1) of the Act?”\n<\/p>\n
We are concerned only with question number one. The proceedings before the
\nBoard under Sections 15 and 16 of the SICA had been terminated on
\n26.4.1990. The appeal filed by the appellant company before the appellate
\nauthority had been dismissed on 7.1.1991. As a result of these orders no
\nproceeding under the Act was pending either before the Board or before the
\nappellate authority on 21.2.1991 when the Delhi High Court passed the
\ninterim order staying the operation of the order of appellate authority
\ndated 7.1.1991. This Court held that the said stay order could not have the
\neffect of reviving the proceedings, which had been disposed of by the
\nappellate authority by its order dated 7.1.1991 observing that “While
\nconsidering the effect of an interim order staying the operation of the
\norder under challenge, a distinction has to be made between quashing of an
\norder and stay of operation of an order. Quashing of an order results in
\nrestoration of the position as it stood on the date of passing of the order
\nwhich has been quashed. The stay of operation of an order does not,
\nhowever, lead to such a result. It only means that the order which has been
\nstayed would not be operative from the date of passing of the stay order
\nand it does not mean that the said order has been wiped out from existence.
\nThis means that if an order passed by the appellate authority is quashed
\nand the matter is remanded, the result would be that the appeal which had
\nbeen disposed of by the said order of the appellate authority would be
\nrestored and it can be said to be pending before the appellate authority
\nafter the quashing of the order of the appellate authority. The same cannot
\nbe said with regard to an order staying the operation of the order of the
\nappellate authority because in spite of the said order, the order of the
\nappellate authority continues to exist in law and so long as it exists it
\ncannot be said that the appeal, which has been disposed of by the said
\norder has not been disposed of and is still pending.” In that view this
\nCourt held that it cannot be said that any proceedings under the Act were
\npending before the Board or the appellate authority on the date of passing
\nthe order dated 14.8.1991 by the learned single Judge of the Karnataka High
\nCourt for winding up of the company or on 6.1.1991 when the Division Bench
\npassed the order dismissing OSA No. 16 of 1991 filed by the company and,
\ntherefore, there was no impediment in the High Court dealing with the
\nwinding up petition filed by the respondents.\n<\/p>\n
In the case on hand the situation is entirely different. The Tribunal gets
\njurisdiction only on reference made by the Government. When the operation
\nof the very order of reference was stayed the question of dispute pending
\nbefore the Tribunal did not arise inasmuch as the reference order itself
\nstood suspended. So long as stay order was operating it could not be said
\nthat the dispute was pending before the Tribunal. Admittedly, when workmen
\nwere dismissed from service stay order was operating. Learned single Judge
\nas well as the Division Bench of the High Court have proceeded on wrong
\nfooting relying upon the decision of this Court in Shri Chamundi Mopeds
\nLtd. (supra), that the order of reference was not wiped out by virtue of
\nstaying of the operation of order of reference. It is not the question as
\nto whether the order of reference is wiped out but the question is what is
\nthe effect of the staying of the operation of order of reference itself.
\nOnce the operation of order of reference is stayed there is no question of
\ndispute pending before the Tribunal so long as the said order remains in
\noperation because reference precedes dispute. To put it differently,
\ndispute could come up for adjudication by the Tribunal pursuant to the
\norder of reference only. If in a pending proceeding operation of order is
\nstayed pending disposal of the main matter such as an appeal or revision,
\nobviously the impugned order does not get quashed or wiped out. It only
\nremains suspended. But the position is different in this case, as already
\nstated above. It was not a case where the dispute was pending and only
\nfurther proceedings were stayed. When the order of reference itself was
\nstayed the Tribunal did not have the jurisdiction to pass any further
\norder. As such the question of either management making an application
\nunder the proviso to Section 33(2)(b) or the Tribunal passing an order of
\nsuch apptication would not arise. In case any tribunal proceeds to pass an
\norder in spite of stay of the operation of the order of reference by the
\nHigh Court it may amount to contempt of the order of the High Court. In
\ncase of some grave misconduct the management cannot afford to sit idle or
\nsimply wail to take action, particularly, when stay of the operation of the
\norder of reference is obtained at the instance of union on behalf of the
\nworkmen, The case of Shri Chamundi Mopeds Ltd. is quite distinguishable and
\nit is on the facts of that case. Even in that case it is stated that the
\norder of stay did not amount to revival of appeal or proceeding.\n<\/p>\n
In Ravi S. Naik v. Union of India and Others4<\/a> , dealing with the staying of
\nthe operation of the order of disqualification, passed by the Speaker of
\nthe Assembly in regard to two members of the House, this Court held that
\nthe order of disqualification made by the Speaker dated 13.12.1990 was not
\noperative and consequently it could not be said that they were not members
\nof Goa Assembly. The Court, looking to the terms of the interim order and
\nits effect on the disqualification of the members on the relevant date,
\nheld, it is settled law that an order, even though interim in nature, is
\nbinding till it is set aside by a competent court”. Similarly, in the
\npresent case also looking to the terms of the interim order granted by the
\nHigh Court staying the very operation of order of reference it could not be
\nsaid that dispute was pending before the Tribunal on the relevant date,
\nviz., the date on which the workmen were dismissed from service. 4. [1994]
\nSupp. 2 SCR 641. In the case of Kanoria Chemicals (supra), the notification
\nof the Uttar Pradesh Electricity Board enhancing the electricity rates was
\nunder challenge. The High Court had granted interim order staying the
\noperation of the said notification. Dealing with the contention that since
\nthe notification had been stayed the petitioners could not be compelled to
\npay the enhanced electricity rates after the dismissal of the writ
\npetition, this Court, in view of what is stated in Shree Chamundi Mopeds,
\ntook the view that the stay of operation of the notification only meant
\nthat it would not be operative from the date of passing such order and it
\ndid not mean that the notification itself had been wiped out from the
\nexistence. Obviously after the dismissal of the writ petition the
\nnotification, which stood suspended during period of stay, became
\noperative. The Court held that by virtue of the stay order even after
\ndismissal of the writ petition the petitioners could not be relieved of
\ntheir obligation to pay late payment surcharge\/interest on the amount
\nwithheld by them. Again, Style (Dress Land) v. Union Territory, Chandigarh
\nand Another5,<\/a> was also a case where the High Court granted stay order in
\nwrit petitions filed challenging the increase in the rent of lease in
\ncommercial premises. Those writ petitions were ultimately dismissed
\ndirecting the petitioners to pay the interest @ 18% per annum for the
\nperiod during which the payment of rent at the new rates remained stayed by
\nthe High Court. Dealing with the contention that during the period when the
\nstay was operative the petitioners could not be directed to pay interest,
\nthe Court held that mere passing of an order of stay could not be presumed
\nto be a conferment of an additional right upon the litigating party.
\nReferring to Shree Chamundi Mopeds the Court stated that the stay only
\nmeant that it would not be operative from the date of its passing till the
\nwrit petitions were dismissed and it did not mean the demand had been wiped
\nout. These two decisions, in our view, do not help respondent-workmen,
\nhaving regard to the terms of the interim order and in the context of the
\nfacts of those cases.\n<\/p>\n
The effect of grant of stay of operation of the order of industrial
\nreference was that the Industrial Tribunal Could not take up the reference
\nfor adjudication. Consequently, no action based on such reference could be
\ntaken by the Tribunal including grant or refusal of approval to the
\ndisciplinary action under Section 33(2) of the Act. The employer could not
\nhave, therefore, approached the Tribunal for seeking approval to its 5.
\n[1999] 7 SCC 89. disciplinary action so long as the order of reference
\nremained stayed by the order of the High Court. The industrial reference
\nstood revived only when the writ petition against the industrial reference
\nwas finally disposed of by the High Court on 12.4.1999. The Industrial
\nreference would be said to be pending only from 12.4.1999. The action of
\ndismissal of the services of the workmen was taken on 31.3.1999. On that
\ndate, as a result of the order of the stay of the operation of reference by
\nthe High Court on 11.3.1999, no reference was pending for adjudication
\nbefore the Tribunal. The provisions of Section 33 of the Act are attracted
\nonly when an industrial dispute is pending for adjudication and not merely
\nwhen an order of reference is made by the Government. In the present case,
\nproceedings were not pending before the Tribunal because of the stay of the
\norder of reference itself. Both sub-section (1) and sub-section (2) of
\nsection 33 employ the language “during the pendency of any proceeding”
\nwhich clearly convey that obligation on the part of the employer under the
\nsaid Section of seeking “express permission” for the purpose of sub-section\n<\/p>\n
(l) or “approval for the purpose of sub-section (2) arises only when there
\nare proceedings pending on industrial dispute before the Tribunal or other
\nspecified statutory adjudicatory authorities under the Act.\n<\/p>\n
In the present case as on date of dismissal of workmen from service the
\ninterim order staying the operation of the order of reference was
\noperative. Hence the question of dispute being pending on that day did not
\narise. As already stated above, in order to make an application under
\nproviso to Section 33(2) (b) of the Act, pendency of the proceeding was
\nessential. In this view the appellant companies did not contravene the
\nprovisions of Section 33(2)(b) of the Act.\n<\/p>\n
Under proviso to Section 33(2)(b) one of the essential conditions for
\nmaking an application for approval of action is pendency of an industrial
\ndispute. It is true that, as held in Shree Chamundi Mopeds case (supra), a
\ndistinction has to be drawn between the stay of an order and quashing of an
\norder. In the instant case when the High Court stayed the operation of the
\norder of reference itself either pendency of dispute or proceeding to
\nadjudicate the dispute did not arise. In other words, the interim order of
\nstay worked as a threshold bar for proceeding with the dispute. So long as
\ninterim order of stay continued, it could not be said that the dispute was
\npending. The High Court relied on the decision of this Court in Shree
\nChamundi Mopeds and emphasised that grant of interim order did not wipe out
\nthe existence of order of reference. But it did not focus its attention to
\nthe actual terms of the stay order and their effect in deciding the
\nquestion as to pendency of proceedings before the Tribunal. What an interim
\norder means or what is its effect and\/or consequences of it depend upon its
\nown terms. In case of some ambiguity or difficulty in understanding an
\ninterim order, which rarely happens, one has to understand the interim
\norder looking to the prayer made for interim relief, facts of a given case
\nand the terms of the interim order. In the case on hand we should first
\nlook at the terms of the interim order in order to judge whether a dispute
\nwas pending before the Tribunal or not. The interim order is plain in its
\nterms, viz., the operation of the order of reference was itself stayed. As
\nalready noticed above, the effect of this interim order was that no
\nproceedings could commence or were pending before the Tribunal at the
\nmaterial and relevant time. In this case whether the order of reference was
\nwiped out or not by the interim order of stay was not relevant. It is not a
\ncase of staying an impugned order in appeal or revision. But the very order
\nof reference is itself stayed. In the very nature of things interim order
\nand final order are distinct and they serve different purposes. Interim
\norder operates during the pendency of the proceedings and final order
\nresults in adjudication of a dispute finally. May be in some cases final
\norder may be passed in terms of the interim order, but then interim order
\nmerges in final order and it gets elevated to the status of final order.
\nOne more factor to be kept in mind is that it is not that the workmen do
\nnot have remedy to challenge the order of dismissal. They can raise dispute
\nchallenging the said order of dismissal by initiating separate proceedings.
\nEven if an application was to be made under proviso to Section 33(2)(b),
\nthe Tribunal could not have proceeded to pass any order because of the
\ninterim order passed by the High Court staying the operation of the order
\nof reference. If the Tribunal were to proceed to pass any order there would
\nhave been a possibility of it committing contempt of the order passed by
\nthe High Court. This Court in Baradakanta Mishra, Ex-commissioner of
\nEndowments v. Bhimsen Dixit6,<\/a> dealing with the case that where the
\nauthority did not follow a binding precedent of the High Court and tried to
\njustify not following it on some grounds, observed thus :-\n<\/p>\n
“Contempt of Court is disobedience to the court, by acting in opposition to
\nthe authority, justice and dignity thereof. It signifies a willful
\ndisregard or disobedience of the court’s order, 6.    [1973] 2 SCR 495. it
\nalso signifies such conduct as tends to bring the authority of the court
\nand the administration of law into disrepute. (Vide 17 Corpus Juris
\nSecundum pages 5 and 6; Contempt by Edward N. Dangel (1939 Edn.) page 14.
\nOswald’s Contempt of Court (1910 Edn.) pages 5 and 6).\n<\/p>\n
It is a commonplace that where the superior court’s order staying
\nproceedings is disobeyed by the inferior court to whom it is addressed, the
\nlatter court commits contempt of court for it acts in disobedience to the
\nauthority of the former court, The act of disobedience is calculated to
\nundermine public respect for the superior court and jeopardize the
\npreservations of the law and order. The appellant’s case is to be examined
\nin the light of the foregoing principles and analogy.”\n<\/p>\n
That was a case where binding precedent of High Court was not followed, but
\nin the present case the Tribunal, if was to proceed with an application
\nunder Section 33(2)(b) of the Act, it would have been direct disobedience
\nof the interim order of stay passed by the High Court.\n<\/p>\n
A situation may arise where workman commits a grave misconduct and
\nsituation does not allow any delay in taking action against such workman
\nand the interim order staying operation of order of reference is operative
\nand if it was to prolong for a long time, it would lead to anomalous
\nsituation. The case of the appellant-companies, as can be seen from
\nparagraph 3 of the Counter Statement filed by them in reply to the
\ncomplaint made by the workmen under Section 33A of the Act, reads :-\n<\/p>\n
“It is submitted that the services of the First Party was terminated on
\n31.3.1999 for his involvement in the barbaric incident of setting fire to a
\nbus carrying workmen resulting in the death of TWO women workers and
\ncritically injuring six others besides injuring SEVERAL OTHERS. The Second
\nParty, in the normal course, would have held inquiries before taking any
\naction but the fear psychosis generated in the minds of the workmen by the
\nsaid act of First Party necessitated the Second Party apprehended that the
\nsituation may go out of control and the delinquents may be emboldened to
\nindulge in further acts of violence, Therefore, the Second Party had no
\nother option other than to dispense with the services of the First Party in
\norder to ensure that the services of the other employees were protected and
\nthat further acts of violence, if contemplated upon, could be curbed.
\nConsidering the gravity of the situation and in view of the apprehension
\nexpressed by the witnesses of their safety and security, the Second Party
\nfelt that holding an enquiry was neither possible nor was it just and
\nexpedient. Hence, the services of the First Party was terminated for
\nindulging in serious acts of violence and this was strictly in accordance
\nwith the standing order. The Second Party will lead evidence on the acts of
\nmisconduct for which the First party was dismissed from service and will
\njustify its order of dismissal before this Hon’ble Court in the event of
\nthis Hon’ble court holding the complaint as maintainable.”\n<\/p>\n
No doubt, the object of Section 33 of the Act is to protect the workman
\nconcerned during pendency of the proceedings in a dispute against
\nvictimization by the employer for having raised industrial dispute or his
\ncontinuing the pending proceedings. Further it is to ensure that the
\nproceedings in connection with the industrial disputes already pending
\nshould be concluded in a peaceful atmosphere and to say that no employer
\nshould, during pendency of the proceedings, take action of any kind
\nmentioned in the said Section, giving rise to fresh disputes leading to
\nstraining the relations between the employer and the workman. But, then,
\nthe requirements of the said Section are to be satisfied in order to invoke
\nthe jurisdiction of the Tribunal under the said provision. For the purpose
\nof the present case pendency of the proceedings before the Tribunal was
\npre-requisite condition for making an application under the proviso to
\nSection 33(2)(b) of the Act. Since the proceedings were not pending at the
\nrelevant time, i.e., on the date of dismissal of the workmen by virtue of
\nthe interim order granted by the High Court, the preliminary objection
\nraised by the appellant Companies as to the very maintainability of
\ncomplaint under Section 33A is valid and sustainable.\n<\/p>\n
The question set out above in the beginning of this judgment is answered in
\nthe negative.\n<\/p>\n
Thus, viewed from any angle in our considered opinion the impugned order
\ncannot  be sustained.  The  preliminary  objection  raised  by  the
\nappellant companies is upheld and consequently the complaint made by the
\nrespondent-workmen is dismissed as not maintainable. We must, however, make
\nit clear that this order does not prejudice or preclude the respondent
\nworkmen from questioning the validity and correctness of the order of their
\ndismissal from service by raising appropriate dispute in accordance with
\nlaw.\n<\/p>\n
The appeals are accordingly allowed. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India B.P.L. Ltd. And Ors vs R. Sudhakar And Ors on 6 May, 2004 Bench: Shivaraj V. Patil, D.M. Dharmadhikari 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-234495","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nB.P.L. Ltd. And Ors vs R. 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