435 v LPLNo1231 of2009 Ill INTHE HIGH COURT FOR THE STATES OF PUNJAB 8 HARYANA AT CHANDIGARH eee Letters PatentAppealNo1231 of2009 OSLMJ Decidedon 07 2010 Mls PfizerLimited eeeAppellant 0 VERSUS 0 The Presiding Officer Labour Court Chandigarh and another eee Z CORAM 1 HONBLE MRJUSTICE MMKUMAR r HONBLE MRJUSTICE AJINDAL I Present MrPawan Advocate 08 for the m MrOPGoyalSeniorAdvocate assistedby MsKanwaljit Kaur Advocatefor r Nomworkman r AllJINDAL J The crucial which arises for considerationin the instantappeal is whetherthecase of the Company herein referredas the is coveredby Section33ll or 33621 of th6 IndustrialDisputes Act 19476forbrevitythe Act The Labour 0 V Courtwhile ordering restorationof the powers of PurchaseAssistant to the workman No2 referredas the workman approvcd the act of the the scrvices of the workman on the groundofinisconduct The workman filed Civil Writ Petition No 1159 of 1996 Radhika 2014.07.18 16: 33 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 436 ar4 LPeAeNoJ231of2009 1 W theorderof of referencefor his Later on he also the orderdated4A1996 passedby the Labour Coun for his for the misconductby filingCivil Writ Petition No14502 of 1996 The learned SingleJudgewhile CWP No1159 of 1996 allowed CWP 1 No4502 f 1996 of the workman for alleged Lr misconduc As such the has come in appealAt the same 0 0 time it alsoneedsmentionthat the workmanhas not the order mpe W 0 in CWP No1159 of 1996 his claimfor I Brieflythe are thatthe workmanhad been wolcing Z as a PurchaseAssistant and was to be as PurchaseOfflcer e However insteadof him the transferredone I MrTSSaini Production to the Purchase and 08 him as Officer c0 in August 1989 The m woIkmanraisedhis claim beforethe Labour Court for him his dutiesof PurchaseAssistant n themeantimethe workman on leaveon account of of his and when reoined he was snatchedofwhole ofhis work which was entrustedto MrSaini duringhis leaveperiod Thus a reference was made which was contestedby the The Labour Court the contention of the workman while that promotion was a matter of policyand the workman wasnot entitledto claim promotiononlyif some 4 vacancy existed Similarlythe leamed SingleJudgeupheldthe award of Labour Court while relyingupon the decision of the ApexCourl ln case Brooke Bond 1Indial Private Limited VSe Their Workman 1966 LLJ402 wherein it was observed that promotionlS purelythe Radhika 2014.07.18 16: 33 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 437 LPANo1231 of2009 131 functionthough an IndustrialTribunalmay interfereon some occasion with madeby the whereit is felt that personshad and it was so done on account of mala fides or VlctimizatlOlle It was further observedthat in the absence of such malafides the workman cannot claim when the had onlyutilised the services of a person froin their own C to the postof PurchaseOfficer However the Labour Court 0 0 confirmedtherestorationofstatusofthe workman as PurchaseAssistantas the hadalready restoredhim thedutiesofPurchase Assistant With regard to the second contention raised by the workman Z that he was illegallyterminatedon the groundof misconductand the n C LabourCourt1i wrongly theact ofthe thelearned I SingleJudgeobservedthatthe terminationbyway of was void 08 for want of proper sanction of the Labour Court becausea referencewas r10 already pending his in the are that the was served upon the workmanon 283 1 993 threeincidentsrelating to the datesof6A1993 16 1993 and 631993 when the workmanhad been directedto do typingwork relating to the issuance of purchase order amendmentof the order and some otherancillary works He refusedto obeythe commandof the SUpenors 1 thereforehis act of re8tsalwas construed as subversiveto discipline and also constituted habitual neglectof work or gross habitual negligence which could also be said to be acts of misconductunder the certied Standing Orders applicable to the EstablishmentThls chargeleetbecaine the subject matter of enquirywh resultedin the proofof charge of Radhika 2014.07.18 16: 33 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 438 LPAN001231of2009 141 misconductof insubordination On the basis of this enquiryreport No was servedwith an orderof from servicewef 241301 994 The letter also an amount of equalto one monthssalaryin theshape of a pay order as under Section of the Industrial Act The also sought theapproval on the same dayfromthe Labour Court Now the arisesif the misconductattributedto the 0 C workmanwas thathe had not donethetypingwork to him and lt wason thebasisthattypingwork wasone of the functions of a Purchase I Assistant Section33a9 prohibits the duringthependency ofa Z in respectof an industrialdisputebeforea Labour Court or 2 Tribunal or National Tribunalfromaltering to the ofthe workman I concernedin thedispute his existing conditionsofservice Subwsection C45 of Section 33 however permits the to alter the conditionsof 10 serVlCe in regard to any matter not connectedwith thedispute in accordance with the orders to the workman concerned or 111 accordancewith the terms of the contract betweenthe and the workman The rightgivento the under subesection21is subject to theconditionlaid down in submsection of Section 33 that therightcan be exercised onlywith the express in writingof the beforewhich the is pendingSection33A of the Act that where an contravenes the provlSlOnsof Section 33 during the of before a Labour Coun Trl bunal or National Tribunal any employeeaggrievedby such contravention may make complaint in writingto such Labour Court Tribunal or National Tribunal and on receiptof such complaint the Labour Court Tribunal or National Radhika 2014.07.18 16: 33 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 439 LPAN0a1231 of2009 Tribunalshall upon the as if it were a dispute referred to it or pending beforeit ln accordancewith the of the Act and submit its awardto the govemmentSection 3161 of theAct provides for penaltyfor contravention of the of Section33 an found guilty of such contravention 1S with 1 for a term which may extendtO SlX months or with fine 0 which may extendto one thousandrupeesor withboth 0 C3 Once it 1S provedthat there was an act of misconduct I connectedwith thedispute andterminationis madeduringthe pendency of Z the referencethenit beingin violationof the of Section33 m Q of the Act necessary permissionwas requiredto be obtained before I the workman Ifanymisconductis committedbya workman c6 duringthe of such which is not connected withthe r0 disputeand the conditions of service to the workman before the commencement of such then the 0m workmancould be or dismissedwith the paymentof wagesfor one month and the for approvalcould be 6 Ied before the Authority by the The leamedSingleJudgehas rightlyheldthat the acts of misconductas mentionedbythe on the basisof which the workmanhas been Were directlyconnectedwith the dispute the workmanand the conditionsof hls service therefore the oughtto have appliedfor prevlOUS sanction before the Labour Court before enquiry or of the servicesofthe workmanunder Section33 ofthe Act thc order of teminationbyway of of the worklnan bythe employer Radhika 2014.07.18 16: 33 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 440 P LePeAeNo1231 of2009 1611 withoutpriorsanctioll of the Tribunalbeingin apparentviolation of the ofthe law is void findingno ment Ill the appealthe same IS dismissed 4 1 i MKUMAR9 6 1 72010 JUDGE JUDGE gian 0 11t 11 0 C C5 I Z I 08 ao Z tl 1 r Ot 4 l Radhika 2014.07.18 16: 33 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document