1 Spb/- IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL SIDE JURISDICTION APPEAL NO. 1142 OF 2005 IN WRIT PETITION NO. 2671 OF 2002 Anil R. Joshi .. Appellant. V/s. Air India Limited .. Respondents. --- Shri Anil R. Joshi, appellant in person. Mr. S.K. Talsaniya, Sr.Advocate with S.K. Chari & Ms. Kavita Anchan i/by M.V. Kini & Co. for the Respondents. --- CORAM: D.K.DESHMUKH AND V.R.KINGAONKAR,JJ. DATED: 31st MARCH, 2010 P.C.: 1. By this appeal the appellant, who appears- in-person, challenges the order passed by the learned single Judge dated 13th October 2005 in writ petition no. 2671 of 2002. By that writ petition, the respondents -Air India Limited had challenged the order dated 12th August, 2002 passed by the Presiding 2 Officer, National Industrial Tribunal (NIT),Mumbai on Approval Application No. NTB-91 of 1996 arising out of Ref. No.NTB-1-1990. By that order dated 12th August, 2002, the National Industrial Tribunal, declined to grant its approval to the order dated 03.12.1996 issued by the Air India, dismissing the appellant/ petitioner from the services. That application for approval was made under section 33(2)(b) of the Act by the Air India on the assumption that a reference made under the Industrial Disputes Act, pending before the Industrial Tribunal, is between itself and its workmen. It appears that the reference No. NTB 1 of 1990 because of which application for approval was made, came to be decided by the National Industrial Tribunal by its Award dated 6th of September, 2004. Insofar as the question whether Air India was a party to that reference is concerned, it is paragraph 27 of that Award, which is relevant, it reads as under : 27. Now hitherto the entire analysis was to point that order of reference could not be bind the workmen of Air India. Neither the Air India nor the workmen shall agree to 3 abide by the award if it want against their interests. For example if an award is given to the effect that all the pilots of Air India and the Indian Airlines are not workmen. The Airlines shall be bound by the award and also its Pilots. But the Pilots of Air India shall not be bound by that award as they shall claim that there was no industrial dispute which could be referred. . 2. The National Industrial Tribunal thus held that the dispute before it was between the Indian Airlines and its workmen and the Air India was not a party to that reference. 3. It appears that in the writ petition no. 2671 of 2002 an interim order was made by the learned single Judge. An appeal was filed by the appellant against that interim order. That appeal was decided by a Division Bench of this court by its judgment in Anil R. Joshi vs. Air India Ltd., 2003 (I) CLR 131. The Division Bench modified the said interim order passed by the learned single Judge. That order was challenged before the Supreme Court by Air India but that challenge failed. At the final hearing of that petition it appears that on behalf of the Air India, 4 only one contention was raised that in view of the Award referred to above by the National Industrial Tribunal, it was not necessary for the Air India to apply for approval under section 33. The learned single Judge relying on the Award of the National Industrial Tribunal and the observations of the Supreme Court in judgment in the case of Air India Ltd., vs. Vishal Capoor & Ors. (2005 AIR SC-6490), held that as Air India was not a party to the industrial dispute, which was then pending, it was not necessary to seek any approval under section 33. It is this order which is challenged in this appeal. 4. The appellant appearing-in-person, firstly, submits that in view of the judgment of the Division Bench referred to above in Petition No. 980 2002, the learned single Judge could not have made the order impugned. Then he submitted that the Award made by the National Industrial Tribunal which is relied on by the Air India is rejected by the Union of India. Firstly, it is clear that the application 5 was made under section 33 of the Act. Perusal of section 33 of the Industrial Disputes Act, shows that the necessity of making an application for approval before the Tribunal arises if conciliation proceeding or any dispute or any reference between employer and the employee is pending either before the Conciliation Officer or before the Industrial Tribunal. The application for approval in the present case was made by Air India because of the order dated 7th of December, 1990 made by the Government of India, making reference. In that order, what is referred by the Central Government to the Industrial Tribunal is the dispute existing between the employees in relation to the management of the Indian Airlines and their workmen in respect of the matters specified in the schedule thereto. It appears from this order that a copy of the order was also forwarded to the Air India but from the body of the order it appears that dispute between Air India and its employees or workmen was not referred. In any case, the National Industrial Tribunal which decided that dispute in paragraph 27 of its Award, 6 which is quoted above, in categorical terms held that the dispute referred to it and pending before it was not between the Air India and its workmen. It appears that this Award has also been considered by the Supreme Court in its judgment in the case of Air India vs. Vishal Capoor, referred to above. Paragraph 38 of that judgment is relevant, which reads as under : 38. The High Court s decision allowing the writ petition was based on reasons which we cannot sustain. Consequently its conclusion that the issue of seniority between the respondents 7 to 12 and the writ petitioners was concluded was also erroneous. Therefore, the question whether the letters issued by the respondent no.3 cancelling the letters for command training issued to the writ petitioners could have been validly issued is, along with other issues raised between the parties, still at large and will ultimately have to be decided by a competent Industrial Forum as had been rightly held by the earlier decision of the High Court in W.P. No. 2930 of 1999 . From the above quoted paragraph from the judgment of the Supreme Court it is clear that even the Supreme Court has held that reference NTB -01 of 1990 was not a dispute, pending in the Industrial Tribunal, between Air India and its workmen. Therefore, it is clear beyond doubt that 7 application for approval was wrongly made by the Air India. In other words, its assumption that NTB -1 /1990 pending before the Industrial Tribunal was the dispute between itself and its workmen is factually wrong. In our opinion, therefore, no exceptions can be taken to the order passed by the learned single Judge. Sofar as the next submission of the appellant appearing-in-person is that in view of the judgment of the Division Bench in the Appeal No. 1981 of 2002, the learned single Judge could not have allowed the petition is concerned, in our opinion, it has no substance because the question in that appeal was about what should be appropriate interim relief to operate during the pendency of the writ petition no. 2671 of 2002. Therefore, at the final hearing of that petition that interim order was not relevant. 5. Sofar as the next submission made by the appellant that the reference has been rejected by the Government of India is concerned, firstly there is no order pointed out to us made by the Union of 8 India, rejecting the Award. We have also not been pointed out any provision of law under which the Award can be rejected by the Union of India. Even assuming that there is such a power in the Union of India and it has rejected the Award, by mere order of rejection one cannot jump to the conclusion that the dispute that was pending before the Industrial Tribunal was a dispute between Air India and its employees. We have referred to the order of reference made by the Government of India. Perusal of that order clearly shows that what was referred to adjudication to the Industrial Tribunal was the dispute between Indian Airlines and its workmen and not dispute between Air India and its workmen. 6. Taking over all view of the matter, therefore, we find no reason to interfere with the order passed by the learned single Judge and the Appeal is, therefore, dismissed. (D.K.DESHMUKH,J.) (V.R.KINGAONKAR,J.)