HONOURABLE SRI JUSTICE B. PRAKASH RAO AND HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 1890 OF 2004 DATED 6th OCTOBER, 2010. BETWEEN Management of Singareni Collieries Company Limited, Ramakrishnapur Area Division, M.P. Mandamarri, Adilabad District …Appellant and Atmakuri Narsaiah and ors ….Respondents. HONOURABLE SRI JUSTICE B. PRAKASH RAO AND HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 1890 OF 2004 JUDGMENT: (Per the Hon’ble Sri Justice B. Prakash Rao) The appellant herein is the ﬁrst respondent and respondents 1 and 2 herein are the petitioners in the Writ Petition. The appellant- Management of Singareni Collieries Company Limited ﬁled this Writ Appeal under Clause 15 of the Letters Patent inter alia seeking to assail the correctness of the order dated 18.06.2004 passed by a learned Single judge of this Court allowing Writ Petition No. 27793 of 1997 ﬁled by the ﬁrst and second petitioners under Article 226 of the Constitution of India assailing the correctness of the Award dated 23.04.1994 passed in I.D.No. 45 of 1989 by the third respondent herein (Industrial Tribunal-I, Hyderabad) to the extent it denial of back wages and other attendant benefits. Heard Ms. V.Uma Devi, learned Advocate representing Sri K.Srinivasa Murthy, learned Counsel appearing for the appellant- Management, Sri P.V.Narayana Rao, learned Counsel appearing for the ﬁrst and second respondents- Workmen and the Learned Government Pleader for Labour, who was present appearing on behalf of the third respondent-Industrial Tribunal. Brieﬂy stated the facts of the case for its disposal are that: Respondents 1 and 2 herein (for the sake of convenience, hereinafter referred to as ‘the petitioners’) were working as Coal-Fillers with the Appellant-Singareni Collieries Company Limited and they were removed from service through orders dated 20.09.1984 and 30.09.1984 respectively alleging that they have committed the oﬀences punishable under Sections 506, 341 and 294 read with Section 34 of the Indian Penal Code. Whereupon a Criminal Case in C.C.No. 104 of 1984 was registered on the ﬁle of the learned Judicial Magistrate of First Class, Laxettipet. However, in the said case, both the petitioners were acquitted as per the judgment of the trial Court dated 25.07.1985. Thereupon the Workmen of the appellant-Management raised an Industrial Dispute as against the termination of the petitioners and others, and the said dispute was referred to the Industrial Tribunal by the Government for adjudication under Section 10(1)(d) read with Section 2-A of the Industrial Disputes Act, 1947 on the question as to whether the action of the Management of M/s. Singareni Collieries Company Limited, Ramakrishnapur Area, in terminating the services of the petitioners who were working as Coal-Fillers in RI-1 and 3 inclines with eﬀect from 21.9.1984 and 01.10.1984 respectively and not paying back-wages with retrospective eﬀect is justiﬁed, and, if not, to what relief the workmen are entitled. Before the Industrial Tribunal, the matter was contested by appellant-Management. Both sides adduced evidence, both oral and documentary. On a consideration and appreciation of the evidence thereof, the Industrial Tribunal passed Award dated 23.04.1994 holding that the action of the appellant-Management terminating the services of the petitioners and others and not paying back wages with retrospective eﬀect is not justiﬁed. Further a direction was given with regard to reinstatement of the petitioners and others into service from the date of the Award. However, the Tribunal held that the petitioners are not entitled to back-wages and other attendant beneﬁts. The petitioners challenged the said Award in the Writ Petition to the extent of denial of back-wages and other attendant benefits to them. Before the learned single Judge, both sides have put forth their respective submissions. It was contended on behalf of the petitioners that having regard to the fact that there was joint proceedings initiated against the petitioners as well as other three employees for the alleged misconduct under the Company’s Standing Order No. 16(5) that they assaulted an oﬃcer of the Company, a criminal complaint was lodged which had ended in acquittal. However, one of the employees ﬁled I.D.No. 56 of 1984 before the Industrial Tribunal (Central), Hyderabad, challenging the disciplinary proceedings initiated by the Management and pending the said proceedings, the Management has ﬁled Miscellaneous Application No. 79 of 1985 under Section 33 (2)(b) of the Industrial Disputes Act, 1947 seeking approval to dismiss the petitioner therein from service. The Industrial Tribunal dismissed the said application by an order dated 30.04.1986 holding that the domestic enquiry conducted by the Management is illegal and contrary to the terms of the Settlement dated 13.04.1984 under Section 12(3) of the Industrial Disputes Act, 1947. Similar such application ﬁled by the Management in I.D.No. 56 of 1984 seeking approval to dismiss two other employees was also dismissed on the same grounds by the Industrial Tribunal. However, on the same lines, no such applications under Section 33(2)(b) of the Act were ﬁled by the Management insofar as the petitioners are concerned seeking approval to dismiss the petitioners in the present case. Therefore, the Industrial Tribunal, rejecting the contention of the Management that the petitioners in the present case are not covered under the Settlement dated 13.04.1984, held that the action of the Management in terminating the services of the petitioners was not justiﬁed and accordingly directed their reinstatement. Now, the question that falls for consideration is whether the petitioners are entitled to back wages. There is no dispute as to the ﬁnding of the Industrial Tribunal that the action of the appellant-Management terminating the services of the petitioners was illegal and thereby directing their reinstatement. Whether the holding of the learned single Judge that petitioners are entitled to the back wages is correct or not is the controversy which requires to be resolved. Reliance was placed on Understanding/Settlement dated 10.04.1995 which was reached in between the Management and the Workers Union, according to which, the appellant-management will reinstate the petitioners into service without back wages from 01.08.1994 in full and ﬁnal settlement of Award dated 10.04.1995 in I.D.No. 45 of 1989. It was the contention of the appellant-management that having agreed that they will not challenge the impugned award, it is not open for them to ﬁle Writ Petition claiming back wages and other attendant beneﬁts. It is to be seen that the Industrial Tribunal has gone into the claim of the Workmen of the appellant, and also, the learned Single Judge of this Court in the judgment in appeal has categorically held, which remains un rebutted, to the eﬀect that admittedly the settlement dated 10.04.1995 was not arrived at during the pendency of the conciliation proceedings, nor there is compliance of sub-rule (4) of Rule 58 of the Industrial Disputes (Central) Rules,1957 which is mandatory, where under, a copy of the settlement has to be sent to the oﬃcials speciﬁed thereunder, which was not done and thus, the settlement dated 10.04.1995 is not binding on the parties to the settlement. The Apex Court in WORKMEN OF M/S. DELHI CLOTH GENERAL MILLS LIMTED VS. THE MAANGEMENT OF M/S DELHI CLOTH AND GENERAL MILLS LTD[1] held that compliance of sub-rule (4) of Rule 58 of the Industrial Disputes (Central) Rules, 1957 is mandatory and without which the proceedings would be invalid. Inasmuch as, in the present case, there is no such following of the procedure and therefore the ﬁnding recorded by the Labour Court and conﬁrming the said ﬁnding by the learned Single Judge, that the action of the appellant-management in terminating the petitioners’ services without following the procedure prescribed under Section 33(2)(b) of the Industrial Disputes Act, 1947 was illegal, does not call for any interference and thereby the question that the petitioners are estopped from assailing the correctness of the Award of the Industrial Tribunal in terms of the settlement in question does not arise in any manner. Therefore, ultimately, the learned Single Judge has allowed the Writ Petition holding that as the termination of the petitioners from service without following the procedure contemplated under Section 33(2)(b) of the Act was illegal, the petitioners shall be entitled to the backwages. In the aforesaid back ground and considering of the contentions advanced on behalf of the appellant and the petitioners, nothing remains to be considered in the Writ Appeal since no other aspect is pointed out as to how the ﬁndings of the learned Single Judge, either in law or fact, are vitiated. In JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LIMITED Vs. RAM GOPAL SHARMA AND OTHERS[2] the Supreme Court while considering the provisions under Sections 31,33(2)(b) and 33-A of the Industrial Disputes Act, 1947 has categorically held that if approval be not granted for the order of discharge or punishment, by dismissal or otherwise, of workman during pendency of industrial dispute proceedings, said order becomes ineﬀective from the date it was passed, and not making application for such approval or withdrawing it is a clear case of contravention of statutory requirement. In WORKMEN OF M/S. DELHI CLOTH GENERAL MILLS LIMITED VS. THE MANAGEMENT OF M/S. DELHI CLOTH AND GENERALMILLS LIMITED (1 supra) the Apex Court held that compliance of Rule 58 of the Industrial Disputes (Central) Rules, 1957 is mandatory. I n EID PARRY (INDIA) LIMITED, TADEPALLE Vs. LABOUR COURT, GUNTUR & OTHERS [3] the Supreme Court while considering the provisions of Sections 18, 25 and 25N of the Industrial Disputes Act, 1947, held that prior permission of government under Section 25N of the Act is necessary and absence thereof, would be vitiated. I n M.D., TAMILNADU STATE TRANSPORT COPORRATION VS. NEETHIVILANGAN, KUMBAKONAM[4] the Apex Court while interpreting with Section 33(2)(b) of the Industrial Disputes Act, 1947, held that when termination is found to be bad, nonpayment of backwages is not justified. The learned Counsel for the appellant placed reliance on the letter dated 26.08.1999 alleged to have been given by the appellant-management whereunder it was stated that the case of the petitioners is proposed for reinstatement subject to the condition that he and the Union should withdraw I.D.No. 45 of 1989 pending before the Industrial Tribunal (Central), Hyderabad. Such letter would prejudice any right in favour of others and also it would deprive the vested existing rights of the other employees. Therefore, in such circumstances, and especially when the self same ground has made in other cases as to about slack failure to follow procedure contemplated under the provisions of the Act and rules made thereunder, it amounts to vitiating the procedure. For the foregoing discussion, we do not ﬁnd any merit in the Writ Appeal. The Writ Appeal is devoid of merits and is accordingly dismissed. There shall be no order as to costs. ---------------------------------------- JUSTICE B. PRAKASH RAO -------------------------------------- - JUSTICE SANJAY KUMAR 6th OCTOBER, 2010. Msnr. [1] AIR 1970 SC 1851 [2] (2002)1 LLJ 834 [3] 1992 (2) LLJ 580 [4] 2001(4) Supreme 91