IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3675 of 2008 1. BIHAR STATE CO-OPERATIVE MILK PRODUCERS FEDERATION LIMITED, BIHAR VETERINARY COLLEGE CAMPUS, PATNA THROUGH ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, BIHAR STATE COOPERATIVE MILK PRODUCERS FEDERATION LIMITED, BIHAR VETERINARY COLLEGE CAMPUS, PATNA :---PETITIONERS. Versus 1. THE STATE OF BIHAR THROUGH PRESIDING OFFICER, LABOUR COURT, BEGUSARAI. 2. CHANDRA BHUSHAN KUMAR, SON OF LATE SITA RAM SINGH, RESIDENT OF ABHINAV NIWAS, KHAGRA ROAD, MUZAFFARPUR, P.S. , DIST. MUZAFFARPUR :--- RESPONDENTS. ----------- For the petitioners : Mr. Rajesh Prasad Choudhary, Advocate. For Respondent No.2 : Mr. Yogendra Mishra, Advocate. ====== 12. 8.12.2010 . Petitioners are aggrieved by the Award/order dated 05.10.2007 passed by the Presiding Officer, Labour Court, Begusarai in Misc. Case No. 01/2003, Annexure-1, whereunder order dated 05/07.10.2002 passed by Petitioner No.2 dismissing Respondent No. 2 from service (Annexure-2), has been set aside holding that the dismissal order was passed contrary to the provisions contained in sub- section (2) (b) of Section 33 of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘Act’), as before passing the dismissal order 2 approval of the Labour Court was not taken although Industrial Dispute Case Nos. 11/1996 and 01/1998 between the workmen of Barauni, Mithila Milk Producers Co-operative Union Limited, the two affiliates of the petitioners and the Management, remained pending before the Labour Court violating sub-section (2)(b) of Section 33 of the Act. 2. Learned counsel for the petitioners assailed the impugned Award on the ground that in the facts of the present case sub-section (2)(b)of Section 33 of the Act has no application. The petition filed by Respondent No.2 invoking Section 33 A of the Act asserting that his dismissal without the approval of the Labour Court, where the aforesaid two industrial disputes remained pending, is wholly misconceived as those disputes concerned the workmen who challenged their removal order and the validity of the dismissal order passed against Respondent No. 2 is not connected with 3 the aforesaid two disputes. In this connection it is further submitted that merely because the dismissal order of Respondent No. 2 was passed during the pendency of the aforesaid two disputes, it is not obligatory for the Management to have sought the approval of the Labour Court for dismissing Respondent No. 2. Such approval would have been necessary if Respondent No. 2 is also bound by the Award passed in the two pending industrial disputes. Learned counsel for the petitioners submitted that Respondent No. 2 was appointed by the petitioners on the post of Cattle Feed Sales Assistant. In terms of clause (16) of the Offer of Appointment, services of Respondent No. 2 was transferred to Barauni Union, wherefrom he was transferred to Muzaffarpur and from Muzaffarpur to Madhubani. Respondent No. 2 questioned the aforesaid transfer by raising industrial dispute vide Reference Case No. 13 of 1988 which was rejected under Award dated 4 18.12.1998, Annexure-3. Even after pronouncement of the Award dated 18.12.1998, Annexure-3, Respondent No. 2 did not join the transferred post and was proceeded against by initiating a domestic enquiry against him. After conclusion of the domestic enquiry, he was dismissed from the service of the petitioners under order dated 05/07.10.2002, Annexure-2 which was challenged by filing petition under Section 33 A of the Act on the ground that on the date of his dismissal aforesaid two Industrial Dispute Case Nos. 11/1996 and 01/1998 by the other employees of the petitioners questioning their removal order remained pending and the petitioners ought not to have dismissed Respondent No. 2 without seeking approval from the Labour Court where the aforesaid two disputes remained pending. 3. According to counsel for the petitioners, aforesaid finding of the Labour Court recorded in the impugned order is wholly 5 misconceived as the Award likely to be passed in the two pending industrial disputes have no bearing over the case of Respondent No. 2, inasmuch as, the Award to be passed in the two pending disputes shall decide the correctness or otherwise of the termination order passed against the workmen who raised the aforesaid two earlier disputes. According to learned counsel for the petitioners, Respondent No. 2 is also required to raise industrial dispute questioning the validity of the dismissal order dated 05/07.10.2002, Annexure-2 and until such dispute is raised, correctness or otherwise of the dismissal order dated 05/07.10.2002 cannot be examined by invoking the jurisdiction under Section 33 A read with sub-section (2) (b) of Section 33 of the Act, as there is no connectivity between the two earlier disputes and the validity of the dismissal order passed against Respondent No. 2. 4. Counsel for Respondent No. 2 has 6 opposed the aforesaid submission. According to him, Respondent No. 2 was dismissed by Sri Swarnendu Verma, who was Incharge Managing Director of the Federation and not competent to pass the dismissal order against Respondent No. 2. It is further submitted that workmen who raised Industrial Dispute Case Nos. 11/1996 and 01/1998 were also removed from the service of the Union/Federation by the General Manager and the same question as to whether the General Manager of the Union was authorized to terminate the services of the employees of the Federation, was raised in the aforesaid two earlier disputes. Sri Swarnendu Verma was also holding the substantive rank of General Manager when he passed the dismissal order of Respondent No. 2 and was never notified by the State Government to hold the post of Managing Director of Petitioner No.1. Under the rules it is the Managing Director of Petitioner No.1 who is the disciplinary authority 7 of the employees of Petitioner No.1. 5. The Labour Court having considered the aforesaid submission of Respondent No. 2, raised in his petition filed invoking the provisions of Section 33A read with sub-section (2) (b) of Section 33 of the Act relying on the judgment of the Hon’ble Supreme Court in the case of M/s. New India Motors (P.) Ltd., New Delhi Vs. K.T.Morris, reported in A.I.R. 1960 Supreme Court 875, set aside the dismissal order of Respondent No.2, as the same was passed during the pendency of the aforesaid two disputes and this Court should be slow in setting aside the impugned order reinstating Respondent No. 2 in the service, so submitted the counsel for Respondent No.2. In this connection, learned counsel for Respondent No. 2 heavily relied on the judgment of the Hon’ble Supreme Court in the case of M/s. New India Motors (P.) Ltd., New Delhi Vs. K.T.Morris (supra) and submitted that the common 8 question which arises in the two earlier disputes and the case of Respondent No. 2 is about the determination of the competent authority who is authorized to dismiss/remove the employees of the Federation including the two who raised the pending dispute and Respondent No.2. The ground(s) of dismissal/removal is secondary. He further elaborated his submissions by stating that validity of the grounds of dismissal will be examined after it is concluded that the authority passing the removal/dismissal order has the jurisdiction to pass such order. In the event, the authority, passing the order of removal/dismissal, is not competent to pass such order, the grounds taken in support of such order may hardly persuade the authority, in the instant case Labour Court, to uphold the same. Learned counsel for Respondent No. 2 further clarified by stating that in the earlier two disputes, pending in the Labour Court, the 9 question of jurisdiction of the General Manager to pass the order of removal was the subject matter of consideration. During the pendency of those two disputes the Incharge Managing Director who was also holding the substantive rank of General Manager and was never notified to serve as Managing Director ought not to have passed the impugned dismissal order of Respondent No. 2 and as the same was passed the order infracted sub-section (2) (b) of Section 33 of the Act authorizing Respondent No. 2 to invoke jurisdiction of the Labour Court under Section 33 A of the Act where the aforesaid two disputes remained pending. He further pointed out that the court below in paragraphs 21 and 25 of the impugned Award/order has recorded a finding with reference to the order of reference and the order-sheet of the aforesaid two pending Industrial Dispute Case Nos. 11/1996 and 01/1998 that Respondent No. 2 is also bound by the Award which is to be passed in 10 the earlier two disputes and in view of such finding recorded by the Labour Court, this Court should be very slow in interfering with the impugned Award/order. 6. Having considered the impugned Award/order together with the submissions of the parties, it appears that the Labour Court in paragraphs 20 and 21 of the impugned Award has noted the terms of reference of the earlier two pending disputes questioning the validity of the termination order passed against M/S Smt. Anita Kumari and Sri Abdul Hayat from the service of the Milk Producers Union and in case the termination orders are invalid whether the terminated employees are entitled for reinstatement or any other relief. It further appears that with reference to the aforesaid terms of reference the Labour Court has concluded in paragraphs 20, 21 and 25 that Respondent No. 2 is also bound by the Award passed in the earlier two disputes and as he 11 has been dismissed during the pendency of the earlier two disputes, his dismissal order is violative of sub-section (2) (b) of Section 33 of the Act as the dismissal order was passed without its approval. While recording the aforesaid finding the Labour Court has not indicated as to how Respondent No. 2 is bound by the Award passed in the earlier two disputes. The court below has also not indicated the common question which is involved in the earlier two disputes and the case of Respondent No. 2. Further the court below has also not indicated that the question of jurisdiction of the authority passing the removal/dismissal order is the common question involved in the earlier two pending disputes as also in the case of Respondent No. 2 and thereby Respondent No. 2 is also bound by the Award to be made in the earlier two pending disputes. After amendment of Section 33 of the Act in 1956 the employer is empowered to remove or dismiss an employee in 12 relation to matters not connected with the pending industrial dispute. In my opinion, therefore, the Labour Court before proceeding to set aside the dismissal order of Respondent No. 2 as violative of sub-section (2) (b) of Section 33 of the Act was obliged to have enumerated in the impugned order reasons which persuaded him to hold that the Award to be passed in the two pending disputes i.e. Industrial Dispute Case Nos. 11/1996 and 01/1998 is binding on Respondent No. 2. The reasons/grounds which according to the Labour Court bound Respondent No. 2 of the Award passed in the aforesaid two pending disputes having not been disclosed in the Award, the Award suffers from the vice of being cryptic and without reasons. The Award dated 05.10.2007, Annexure-1 is, accordingly, set aside and the matter is remitted back to the court below to enable it to reconsider the matter afresh so as to discover the common thread 13 running through the earlier two disputes which shall bind Respondent No.2 of the Award passed in the aforesaid two earlier pending disputes. In the event, answer to the aforesaid question is in affirmative, the court below shall maintain the Award but in the event the answer is in negative, the court below shall dispose of the petition asking Respondent No. 2 to invoke the remedy under Section 10 of the Act with further request to the appropriate Government to expedite the request of Respondent No. 2 to make the reference at the earliest appreciating the fact that matter has remained pending for over eight years. 7. The writ application is, accordingly, disposed of. P.K.P./A.F.R. (V.N.Sinha,J.)