1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2925 OF 2008 Shri Ganapati Zilla Krushi Audhogik Serva Seva Society Ltd. ..Petitioner. Vs. Patangrao Pandurang Shewale ..Respondent. .... Mr. Kiran S. Bapat with Mr. Avinath H. Fatangare for the Petitioner. None for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 11th November, 2008. P.C. : 1. The Respondent was appointed as a cashier by the Petitioner which is a co-operative society engaged in the sale of agricultural and industrial goods. It is alleged that during the period between May and November 1998 the Respondent engaged in an act of misappropriation. A charge-sheet was issued to the Respondent on 12th May, 1999 to which the Respondent submitted a reply. According to the employer, the Respondent, while submitting his reply also submitted an application requesting for a period of one month to pay the misappropriated amount. The Enquiry Officer by his report dated 5th June, 1999 came to the 2 conclusion that the charges stood proved. A notice to show cause was issued to the Respondent following which, upon the receipt of an explanation an order of dismissal was passed on 1st July, 1999. The Respondent raised an industrial dispute and accordingly a reference was made by the appropriate government to adjudication. The reference was numbered as Reference (IDA) 24 of 2000. About four years after the reference was made, the Respondent filed an application on 19th April, 2004 seeking to contend that the order of dismissal was in breach of the provisions of Section 33 of the Industrial Disputes Act, 1947. The Petitioner resisted the application. The Labour Court by its order dated 25th September, 2006 came to the conclusion that the application was liable to be allowed and accordingly directed the Petitioner to pay backwages to the Respondent from 5th July, 1999 till the date of his reinstatement in service. The order of the Labour Court has been called into question in these proceedings under Article 226. 2. The Labour Court came to the conclusion that a reference on the general demands of the workmen viz. Reference (IT) 1 of 1997 was pending before the Industrial Court. Consequently an application for approval was required to be 3 presented under Section 33 (2)(b). That not having been done, the Labour Court relying upon the judgment of the Supreme Court in Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma1 allowed the application filed by the Respondent. 3. The Respondent has been served in these proceedings. Since he has not appeared before the Court, by an order dated 22nd September, 2008 Mr. N.A. Kulkarni was appointed as amicus curiae to assist the Court. It would appear from the order that a letter was received from the Respondent on 14th August, 2008. 4. On behalf of the Petitioner it has been urged that under Section 33-A it has been provided that where an employer has contravened the provisions of Section 33 during the proceedings inter alia before the Labour Court or the Tribunal, any employee aggrieved by such contravention, may make a complaint in writing to the Labour Court or the Tribunal and that complaint has to be adjudicated upon as if it were a dispute referred to or pending before it in accordance with the provisions of the Act and an award has to be submitted to the appropriate government. 1 2002 I CLR 789. 4 5. In the present case, it was urged that as a matter of fact no complaint was filed under Section 33-A and it would appear that only a miscellaneous application was moved in Reference (IDA) 24 of 2000 upon which the impugned interim order was passed. 6. A perusal of the order passed by the Labour Court would show that the Labour Court proceeded on the basis that it was dealing with an application filed by the workman “ as per the provisions of Section 33-A”. Strictly speaking if a complaint is made under Section 33-A, then the mandate of the provision is that it is required to be adjudicated upon and the Labour Court or the Tribunal shall then pass its award thereupon. As a matter of fact, no complaint was made under Section 33-A by the workman in the present case. The Labour Court, proceeding on the basis there was an application under Section 33-A, proceeded to pass an interlocutory order. Even a complaint under Section 33-A is required to be adjudicated upon which has not been done in the present case. In the circumstances, the impugned order of the Labour Court dated 25th September, 2006 suffers from a clear procedural irregularity. The impugned order is accordingly 5 quashed and set aside. However, while doing so it is clarified that the Labour Court shall hear and dispose of Reference (IDA) 24 of 2000 on its own merits in accordance with law. The Petition shall stand allowed in the aforesaid terms. There shall be no order as to costs. *****