HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 72 of 2011 (M/S) Sanjeev Kumar ..… Petitioner. Versus P.O., Labour Court Dehradun and others. ….. Respondents. Mr. M.C. Pant, Advocate for petitioner. Mrs. Seema Sirohi, Advocate for respondent No. 2. Mr. Sudhir Kumar, Brief Holder for the State/respondent No. 1. Hon’ble B.S. Verma, J. Heard learned counsel for the parties. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 29.10.2010 (annexed as annexure No. 1 to the writ petition) along with the termination order dated 27.08.2008 (annexed as annexure No. 10 to the writ petition). Briefly stated the facts giving rise to the writ petition are that petitioner was appointed as Conductor in U.P. State Road Transport Corporation (herein after referred as UPSRTC) on 01.08.1988 at Dehradun. While he was posted in Hill Depot, Dehradun, for an alleged incident dated 12.04.1990, he was charge sheeted by the Regional Manager, UPSRTC, Dehradun, vide letter dated 30.01.1991 on the allegation of misconduct and thereafter he was punished vide order dated 30.06.1992 (annexed as annexure no. 2 to the writ petition), whereby his 3 years annual increment was stopped with future effect alongwith adverse entry in his character roll. Against said order dated 30.06.1992, an industrial dispute was raised on behalf of the petitioner by the concerned Union namely 2 Roadways Karmchari Sanyukt Parishad, Hill Depot, Dehradun, before the Conciliation Officer, Dehradun, which was registered as CB Case No. 17 of 2002 and notices were issued to the parties. Thereafter, a reference in the month of February 2004 was made to the Labour Court, Dehradun, which has been annexed as annexure no. 4 to the writ petition. In pursuance to the aforesaid reference order, the Labour Court, Dehradun, registered it as Adjudication Case No. 112 of 2004, which is still pending for disposal. During the pendency of said reference, the petitioner was placed under suspension vide order dated 28.11.2007 (annexed as annexure no. 10 to the writ petition), passed by respondent No. 3 and the petitioner was chargesheeted vide letter dated 30.11.2007. After completion of departmental enquiry, the petitioner was removed from service and his balance salary for suspension period was forfeited. Feeling aggrieved, the petitioner preferred a departmental appeal before the appellate authority, which was dismissed vide order dated 10.09.2008 (annexed as annexure no. 11 to the writ petition). Thereafter, revision filed on behalf of the petitioner before Chairman, UTC, was also dismissed vide order dated 26.11.2008 (annexed as annexure no. 12 to the writ petition). It is pertinent to mention here that after the dismissal of both the appeal and revision, the petitioner made a complaint under Section 6-F of the U.P. Industrial Disputes Act, 1947, before Labour Court, Dehradun, which was registered as Case No. 01 of 2009. Thereafter, summons were issued to the parties. A written statement (annexed as annexure no. 14 to the writ petition) was filed on behalf of respondent No. 3 and thereafter rejoinder affidavit 3 (annexed as annexure no. 15 to the writ petition) was filed on behalf of the petitioner. Learned counsel for the petitioner has contended that the controversy arose when respondent No. 3 without obtaining mandatory permission, as required under the proviso to Section 6-E (2)(b) of U.P. Industrial Dispute Act, 1947, passed the termination order. Section 6-E (2)(b) is being reproduced as under:- “6-E. Conditions of service, etc. to remain unchanged in certain circumstances during the pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or 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 the standing orders applicable to a workman concerned in such dispute- (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 4 (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 further contended by learned counsel for the petitioner that the learned tribunal has committed manifest error of law in coming to the conclusion that Sanjeev Kumar and Union are two different persons and that neither any industrial dispute case relating to a workman namely Sanjeev Kumar, is pending before it nor he is party to the dispute raised by the Union. He further drew attention of this Court to provision of Section 6-I read with Rule 40 of Industrial Dispute Act, 1947. Section 6-I of the Act, provides as under:- “6-I. Representation of the parties- (1) Subject to the provisions of sub-sections (2) and (3), the parties to an industrial dispute may be represented before a Board, Labour Court, or Tribunal in the manner prescribed. (2) No party to any proceeding before a Board shall be represented by a legal practitioner, and no party to any proceeding before a Labour Court or Tribunal shall be represented by a legal practitioner, unless the consent of the other party or parties to the proceeding and the leave of the Presiding Officer of the Labour Court or Tribunal, as the case may be, has been obtained. (3) No officer of a Union shall be entitled to represent any party unless a period of two years has elapsed since its registration under the Indian Trade Unions Act, 5 1926, and the Union has been registered for one trade only: Provided that an officer of a federation of unions may subject to such conditions as may be prescribed represent any party.” Relevant portion of Rule 40 of U.P. Industrial Disputes Rules, 1957, reads as under:- “40. Representation of parties. –(1) The parties may, in their discretion, be represented before a Board, Labour Court or Tribunal- (i) in the case of a workman subject to the provisions of sub-section (3) of Section 6-I, by- (a) an officer of a Union of which he is member, or (b) an officer of a Federation of Unions to which the union referred to in clause (a) above, is affiliated, and (c) where there is no union of workmen, any representative, duly nominated by the workmen who are entitled to make an application before a Conciliation Board under any orders issued by Government, or any member of the executive, or other officer; ……………………………………………………………..” It is further submitted that after the order of dismissal, in view of provision of Section 2A of Industrial Disputes Act, which was inserted by way of amendment in the year 1978, a workman has a right to assess the order in individual capacity. Said Section 2A is being reproduced below:- “2-A. Dismissal etc., of an individual workman to be deemed to be an industrial dispute.- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between that workman and his employer connected with or arising 6 out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.” Learned counsel for respondent No. 2-Uttarakhand Transport Corporation, has vehemently urged that as far as earlier case in which adverse entry was made was of year 2002 when UPSRTC was in existence and the respondent No. 2 has no concern with the earlier proceedings. Learned counsel further stated that the order of dismissal has been passed after giving show cause notice, after receipt of the charge sheet and after hearing the parties. It is further argued on behalf of respondent No. 2 that order dated 29.10.2010, of Presiding Officer, Labour Court, has been passed in view of the definition given under Section 2(x) and Section 2 (Z) and has rightly held that petitioner- Sanjeev Kumar and Union are two different persons. I have heard learned counsel for the parties and perused the impugned order and material on record. The only controversy to be decided before this Court is that whether there is a condition precedent to obtain permission prior to dismissal of any workman in conciliation proceedings before Conciliation Officer, or a Board, or Labour Court or tribunal. After perusal of the impugned order, it shows that learned Presiding Officer, Labour Court did not address on the issue raised on behalf of the petitioner in view of the proviso to Section 6-E(2)(b), which provides that an application for obtaining approval has to be made prior to passing of the dismissal order. It further shows that Labour Court did not consider the proviso to Section 6-I read with Rule 40 of U.P. Industrial Dispute Act, 1947, which provides that the dispute can be raised by a workman or by his representative. 7 Learned counsel for the petitioner has relied upon the judgment passed by Allahabad High Court, reported in 2007 (7) AWC 6674, Uttar Pradesh State Road Transport Corporation, Jhansi Region and another Versus Ramji Naik and another, wherein the same controversy has been dealt with in detail. Paragraph no. 7 of said judgment is reproduced as under:- “In view of the aforesaid, it is clear, that if the mandatory provision of Section 6E(2)(b) of U.P. Industrial Disputes Act is not followed, the order of termination would be void ab initio and the workman would be entitled to be reinstated and that there would be no requirement for any adjudication to be made on the merits of the dismissal order.” The above order of Allahabad High Court has been passed following the Hon’ble Apex Court judgment in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others, 2002 (2) SCC 244, wherein the Supreme Court held:- “The proviso to Section 33 (2) (b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33 (2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions beings mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 8 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33 (2) (b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso of Section 33 (2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33 (2) (b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or 9 inoperative, the employer may with impunity discharge or dismiss a workman.” So far as the contention raised by learned counsel for respondent no. 2 that Uttarakhand Transport Corporation, has no concern with the proceedings and liabilities occurred before it came into existence, is concerned it is pertinent to mention here that Central Government had issued a notification in exercise of the powers conferred by Section 47(A) of the Road Transport Corporation Act, 1950 and in view of sub- Clause (1) of Clause 1 of Part-I of the notification, the Order may be called the Uttar Pradesh and Uttaranchal State Road Transport Corporation (Reorganisation) Order, 2003 and as per sub-Clause (3) of Clause 5 of Part III, the field staff whose appointing authority are officers of the region or zone or depot of the existing corporation, shall be absorbed by the respective successor Corporation in which the said zone or region or depot is located. Since the fact that workman-Sanjeev Kumar was working as Conductor since 1992 in Dehradun, and was appointed by the regional authority is not disputed, therefore, the argument advanced on behalf of learned counsel for respondent is not tenable in the eyes of law. In view of compliance of mandatory provision under Section 6-I (2) of U.P. Industrial Disputes Act, 1947, and considering para-7 of the judgment of Allahabad High Court, quoted above, application 6-F, is liable to be allowed. So far as termination order dated 27.08.2008 (annexure no. 10 to the writ petition), is concerned, it is void ab initio, as mandatory provision of Section 6-E (2) (b) of U.P. Industrial Dispute Act, 1947, has not been followed. 10 Having heard learned counsel for the parties and in the facts and circumstances of the case, and in view of discussions made in foregoing paragraphs, the writ petition deserves to be allowed. The same is allowed. Application No. 6-F is allowed. Impugned order dated 29.10.2010 and termination order dated 27.08.2008, are hereby quashed. However, respondents No. 2 and 3 would be at liberty to obtain permission from the Labour Court in accordance with law. (B.S. Verma, J.) 23.06.2011 S 11