C.W.P. No.4450 of 2000 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4450 of 2000 (O&M) Date of Decision: 07.10.2009 Punjab Ex-Servicemen Corporation .....Petitioner Versus Presiding Officer, Industrial Tribunal, Punjab and another ...Respondents Present: Mr. P.K. Mutneja, Advocate with Mr. S.S. Sudan, Advocate for the petitioner. Mr. Ravi Kant Sharma, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The above writ petition arises out of a complaint made by the workman in a pending reference No.74 of 1997, which is itself considered as a subject matter in C.W.P. No.5624 of 2000. The workman complained that he had joined the Punjab Ex-Servicemen Corporation on 27.09.1994 and employed in the Stitching Centre and his periods of engagement had been periodically extended till 02.02.1998 when he had applied for leave upto 09.02.1998. He had overstayed on his leave and when he reported for work on 19.02.1998, he was not allowed to enter. He was reported to have sent the intimation to the effect that he was not able to resume his duty on 10.02.1998 on account of his illness and after he had fully recovered and obtained a fitness certificate to report for duty, he was verbally intimated that he would not be permitted to continue. A complaint had C.W.P. No.4450 of 2000 (O&M) -2- been given to the Assistant Labour Commissioner, upon which the management was called but the representative of the management informed that they were not willing to take back the workman. Since the refusal to permit the workman to resume duty on 19.02.1998 was treated as termination, the workman had filed the application under Section 33-A on 27.04.1998. The Industrial Tribunal considered the issue as to whether the act of removal during the pendency of the dispute without resorting to the procedure prescribed under Section 33 was justified or not. Applying the decision of the Hon'ble Supreme Court in M/s Punjab Beverages Pvt. Ltd. Chandigarh Vs. Suresh Chand and another etc. 1978 AIR (SC) 995 and yet another decision in Mohinder Singh Beniwal Vs. Hindustan Motors 1976 2 LLJ 259, the Industrial Tribunal held that mere contravention of the provisions of Section 33 would not itself entitle the workman to the relief and the same could be allowed if on merit the impugned action was found to be invalid and unjustified. The reference to decisions are no longer valid in view of the subsequent decision rendered by the Constitutional Bench of the Hon'ble Supreme Court in Jaipur Zila Sahakari Bhoomi Bank Ltd. Vs. Ram Gopal Sharma 2002 (1) SCT 966; 2002 AIR (SC) 643 that spelt out the law emphatically that if a violation of Section 33 was made out, the termination would become void and inoperative. M/s Punjab Beverages Pvt. Ltd. Chandigarh's case (supra) was expressly held as not laying down the correct law. The law as stated in Jaipur Zila Sahakari Bhoomi Bank Ltd. is bound to be applied even to decisions which were initiated prior to the said decision, as held in United Bank of India v Siddhartha Chakraborty in (2007) 7 SCC 670. Consequently, if violation of Section 33 is made out, it would not C.W.P. No.4450 of 2000 (O&M) -3- require to be examined whether the termination was justified or not. 2. Learned counsel appearing for the management would contend that the reference which was pending had been dismissed for default on 22.12.1997 and it was restored only on 31.03.1998. The alleged termination which was made in the interregnum could not be stated to be during the pendency of the dispute and therefore, the bar under Section 33 did not apply at all. The only response by the learned counsel appearing for the workman to this argument would be that since an application for restoration was pending, it should be taken that the reference was pending. I do not feel inclined to accept an argument that even after the dismissal of the reference for default, it should be treated as pending for the only reason that an application for restoration was pending. It shall not be, therefore, possible to uphold the contention that there had been any violation of Section 33. In order that a complaint is entertained under Section 33-A, it shall first be shown that there had been a violation of Section 33 of the Industrial Disputes Act. If such a violation is not possible on account of the fact that the reference itself was not pending at that time, an application under Section 33-A would also have to fail. The adjudication made by the Industrial Tribunal was, under the circumstances, not tenable in law and the workman could not have a remedy by resort to a complaint under Section 33-A of the Industrial Disputes Act. It is not as if the workman was not aware of the inherent difficulty and he had not taken action immediately after the so-called termination. He waited till the reference application was restored and moved an application under Section 33-A on 27.04.1998. The workman may have other remedies by raising an independent industrial dispute and seeking for a reference under C.W.P. No.4450 of 2000 (O&M) -4- adjudication as per law. It is permissible for him to plead the pendency of the case before the Industrial Tribunal on a complaint made by him and the pendency before this Court as a reason for delay in seeking for reference. The order of the Industrial Tribunal on the complaint treating the act of termination as having resulted in violation of Section 33, in my view, cannot survive in view of the fact that there was no pending reference on the day when the alleged termination took effect. 3. Reserving the liberty for the workman to approach the Industrial Tribunal again in the manner referred to above, the writ petition filed by the management is allowed. All the findings rendered by the Industrial Tribunal as regards the alleged termination of service are also set aside and any adjudication that may be undertaken on a fresh reference if it is done, shall be considered afresh and the findings already rendered by the Industrial Tribunal in the complaint petition filed by the workman shall not fetter the jurisdiction of the Industrial Tribunal in a properly constituted reference to consider the whole case afresh and make an adjudication in the process known to law. 4. The civil writ petition is allowed in the above terms. There shall be however no direction as to costs. (K. KANNAN) JUDGE October 07, 2009 Pankaj*