ORISSA HIGH COURT: CUTTACK O.J.C. NO. 5186 OF 1994 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Shri Jagannath Weavers’ Co-operative Spinning Mills Ltd. Nuapatna, represented by its General Manager. …… Petitioner -Versus- The Presiding Officer, Industrial Tribunal, Orissa, Bhubaneswar & another. …… Opp. Parties For Petitioner: M/s. J.K.Tripathy, S.N.Mishra, P.K.Chand, D.Satpathy, B.P.Tripathy & A.Mohanty. For Opp. Parties: M/s. Prasanna Kumar Rath, Mohak Dash, R.K.Bose, S.K. Swain, B.K. Bisweal & D.R.Rath. ( for O.P. no.2.) ----------------------- Date of judgment- 21.07.2010. ------------------------ P R E S E N T : THE HONOURABLE SHRI JUSTICE M.M. DAS ----------------------------------------------------------------------------------------------- M. M. DAS, J. The sole question raised in this writ petition is as to whether an application filed under section 33 (1)(b) of the Industrial Disputes Act, 1947 ( for short, ‘the Act’) in a pending dispute automatically terminates on disposal of the dispute by an award after the award is notified. 2. Facts reveal that the petitioner-management is a Spinning Mill in the co-operative sector being a unit of Orissa State Co-operative Spinning Mills Federation (SPINFED) situated at Nuapatna in the district of Cuttack. The opp. party no. 2 is the workman. He being allegedly involved in serious action of misdemeanor including assaults, riots and illegal strike etc. was discharged along with others and after domestic enquiry having been conducted, the charges framed being established, the petitioner – management decided to dismiss the workman-opp. party no. 2 from service. Because of the pendency of the I.D. Case No. 48 of 1986 before the Industrial Tribunal, Orissa, Bhubaneswar, though the dismissal of the workman-opp. party no.2 had no nexus with the pending dispute, as required under law, an application under section 33 (1) (b) of the Act was filed by the petitioner before the learned Tribunal , which was registered as Misc. Case No. 9 of 1987. Before any order was passed in the said Misc. Case seeking approval, I.D. Case No. 48 of 1986 culminated in an award dated 31.12.1993, which was published in the Orissa Gazette on 27.1.1994. 3. It is contended on behalf of the petitioner- management that the petitioner-management could ordinarily have taken action against the workman-opp. party no.2 by 2 dismissing him from service, but for pendency of the aforesaid industrial dispute, an application under section 33 (1)(b) of the Act was filed. As the industrial dispute culminated in the award and the proceeding came to an end before disposal of the application which was registered as aforesaid Misc. Case No. 9 of 1987, the learned Tribunal became functuous officio and had no jurisdiction to hear and pass order on the aforesaid Misc. Case No. 9 of 1987 either allowing or refusing permission to dismiss the workman-opp. party no.2. The petitioner- management thereupon filed an application on 13.6.1994 indicating therein that in view of the fact that the industrial dispute which was pending has been disposed of and the learned Tribunal has become functuous officio, it should not exercise any power under section 33 of the Act. The learned Tribunal , however, by order dated 15.7.1994 came to the conclusion that the application under section 33 (1) (b) of the Act is an independent application and, even if, the industrial dispute is disposed of, an order is required to be passed on the said application with regard to grant of approval or refusal of the same. Being aggrieved by order dated 15.7.1994 passed in Misc. Case No. 9 of 1987, the petitioner – management has approached this Court for appropriate relief. 3 4. From the impugned order, it appears that the learned Tribunal repelling the contention of the petitioner- management and distinguishing the decision in the case of P.D.Sharma v. State Bank of India, AIR 1968 SC 985 and further relying upon the decision in the case of Tata Iron and Steel Co. Ltd. v. S.N.Modak, AIR 1966 SC 380 came to the conclusion that the application filed by the petitioner – management that the learned Tribunal has become functuous officio and cannot proceed with the aforesaid Misc. Case, is not correct and dismissed the said application directing the opp. parties to get ready for hearing of the application. 5. Learned counsel for the petitioner-management strenuously urged that in the case of P.D. Sharma (supra), the Supreme Court has distinguished the provisions of sub-sections (2) and (3) of section 33 of the Act and has held that the scope of the said two provisions are wholly different, holding that in the case of workers discharged or punished by dismissal or otherwise under sub-section (3) of section 33 of the Act, previous permission of the authority before which the industrial dispute is pending is necessary. But under sub- section (2) of section 33 of the Act, only a subsequent approval of the competent authority is needed and once approval is given, it goes back to the date on which the order in question 4 was made. If the approval asked for is not accorded, then the action taken by the employer becomes ab initio void and the employee will continue in service and the conditions of service will also continue without any break as if the order in question have not been made at all. As a matter of fact, in the case of P.D. Sharma (supra), the Supreme Court was considering as to whether an application made under section 33 (3) of the Act will survive after disposal of the industrial dispute. Referring to the case of Tata Iron and Steel Co. Ltd. (supra), the Supreme Court observed that in the said case, the consideration was as to whether an application under section 33 (2) (b) of the Act was surviving after disposal of the industrial dispute in which the application was made. The Supreme Court made a distinction between sub-sections (1) and (2) of section 33 of the Act and sub-section (3) thereof. The Supreme Court observed that while construing the scope of sub-section (3) of section 33 of the Act, it has to be borne in mind that under the common law, the employer has a right to punish his employee for mis-conduct. Thus, the consideration in the said case was as to what extent that right is taken away by sub-section (3) of section 33 of the Act. In the instant case, we are not concerned with sub-section (3) of section 33. In the case of Tata Iron and Steel Co. Ltd. (supra), the Supreme Court held as follows:- 5 “ It is of course true that under section 33, the authority to grant permission or to accord approval in cases falling under section 33 (1) and (2) respectively is vested in the Tribunal before which the main industrial dispute is pending, but that is not an unqualified or inflexible requirement, because section 33-B (2) seems to permit transfers of application before one Tribunal to another and in that sense, the argument urged by the appellant that the condition that a specified Tribunal alone can deal with applications made to it is an inflexible condition, cannot be accepted. We are, therefore, satisfied that the Tribunal was right in over- ruling the contention raised by the appellant that the application made by it for approval under section 33 (2) (b) ceased to constitute a valid proceeding by reason of the fact that the main industrial disputes, the pendency of which had made the application necessary, had been finally decided. 6. In the instant case, the question is with regard to application filed under section 33 (1) (b) of the Act. 7. Section 33 of the Act reads as follows:- “33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before (an arbitrator or) a Labour Court or Tribunal or National 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, 6 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 standing orders applicable to a workman concerned in such dispute (or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman)- (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 (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. (3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute- (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding; or (b) by discharging or punishing whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. 7 Explanation.-For the purposes of this sub-section, a “protected workman” in relation to an establishment, means a workman who, being (a member of the executive or other office bearer) of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub-section (3) shall be one percent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognized as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board, (an arbitrator, a) Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass (within a period of three months from the date of receipt of such application), such order in relation thereto as it deems fit: ). (Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit: Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub- section had expired without such proceedings being completed.) 8. In the case of Tata Iron and Steel Co. Ltd., (supra), the Supreme Court was considering as to whether after disposal of the industrial dispute , the application filed under section 33 8 (2) (b) of the Act will survive or would be treated to have come to an end. No doubt, in the aforesaid case, it was contended before the Supreme Court that the broad features of section 33 impress upon the applications made under section 33 (1) and (2), the character of interlocutory proceedings and thus considered, interlocutory proceedings must be deemed to come to an end as soon as the main dispute has been finally determined. However, the apex Court held that there are several considerations which do not support the argument of the appellant therein that as soon as the main industrial dispute is decided, the application made by it for approval under section 33 (2) should automatically come to an end. It was further held that the application under section 33 (2) in a sense can be treated as an incidental proceeding but it is a separate proceeding all the same and in that sense, it will be governed by the provision of section 33 (2) (b) of the Act as an independent proceeding. It is not an interlocutory proceeding properly so called in its full sense and significance; it is a proceeding between the employer and his employee who was no doubt concerned with the main industrial dispute along with other employees, but it is nevertheless a proceeding between two parties in respect of a matter not covered by the said main dispute. The Supreme Court, therefore, concluded that it is 9 difficult to accept the argument that a proceeding which validly commences by way of an application made by the employer under section 33 (2) (b) should automatically come to an end because the main dispute has in the meanwhile been decided. With regard to the contention raised on behalf of the appellant before the Supreme Court in the case of Tata Iron and Steel Co. Ltd., (supra), it was held as follows: “It is, however, urged by the learned Solicitor General that it would be futile to allow the present application to proceed any further, because the appellant can proceed to dismiss the respondent notwithstanding the fact that the Tribunal does not accord its approval to its order in question. This argument, in our opinion, is misconceived. It cannot be denied that with the final determination of the main dispute between the parties, the employer’s right to terminate the services of the respondent according to the terms of service revives and the ban imposed on the exercise of the said power is lifted. But, it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondent’s services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute 10 would become futile and meaningless cannot be accepted. 10. This Court, therefore, finds that the attempt of the learned counsel for the petitioner – management to make a distinction between an application under section 33 (1) (b) and 33 (2) (b) of the Act is misconceived. Applying the ratio of the decision in the case of Tata Iron and Steel Co. Ltd., (supra), this Court finds that the conclusion arrived at by the learned Tribunal in the impugned order cannot be interfered with. 11. The writ petition, therefore, is devoid of merit and is accordingly dismissed. The matter being stayed by an interim order of this Court, the learned Tribunal is directed to dispose of the application filed by the petitioner – management for grant of approval under section 33 (1) (b) of the Act to dismiss the workman-opp. party no. 2, by end of October, 2010. The parties are directed to appear before the learned Tribunal on 16.8.2010. ………………………. M. M. Das, J. Orissa High Court, Cuttack July 21st ,2010/Biswal 11 12