WP(C) 6214/2003 Page 1 of 7 *IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C)6214/2003 % Date of decision: 28th April, 2010 SH. RAM CHET ..... PETITIONER Through: Mr. S.K. Anand, Advocate Versus M/S RENUTROL LIMITED & ANR. ..... RESPONDENTS Through: Mr. Vinod Wadhwa, Advocate for Respondent No.1. CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? No 2. To be referred to the reporter or not? No 3. Whether the judgment should be reported No in the Digest? RAJIV SAHAI ENDLAW, J. 1. The petitioner workman impugns the order dated 4th March, 2003 of the Industrial Tribunal dismissing the complaint of the petitioner against the respondent employer under Section 33A of the I.D. Act. The petitioner in the complaint stated that the respondent employer, during the pendency of industrial dispute No.76/1991 & industrial dispute No.77/1991, with the following reference:- “Whether there was a lock out with effect from 15th March, 1991? If so, whether the workman shown in Annexure-A are entitled to wages for the lock out period and if so, what directions are necessary in this respect?” WP(C) 6214/2003 Page 2 of 7 without holding any enquiry or serving any charge-sheet on the petitioner workman had dismissed him from employment to victimize him because of trade union activities. It was further stated that though an application under Section 33(2)(b) of the Act had been filed by the respondent employer on 3rd September, 1991 but the same had been withdrawn in or about the year 1996 and as such the respondent/employer had violated the provisions of Section 33 of the Act. 2. The Tribunal found – A. that while the dismissal of the petitioner was on 15th March, 1991, the reference order in Industrial Disputes No.76/1991 & 77/1991 was of 10th April, 1991. It was thus held that no case of violation of Section 33 was made out. B. that the plea of the respondent employer in Industrial Disputes No.76-77/1991 was that the same did not constitute an industrial dispute and the said plea had been accepted and in those disputes award had been made holding that there were no industrial dispute. The Tribunal thus held that it having been held that the dispute on the basis whereof complaint was filed was not an industrial dispute, Section 33 was not attracted. C. that the application under Section 33(2)(b) was filed by the respondent employer because of pendency of another Industrial Dispute No. 526/1983. However, in that also, an award had been made on 1st December, 1995 holding the same also to be WP(C) 6214/2003 Page 3 of 7 not an industrial dispute. It was also noticed that the complaint of the petitioner under Section 33A was not based on the said reference. D. It was thus held that the respondent employer was justified in withdrawing the application under Section 33(2)(b). The Tribunal thus held that no case of violation of Section 33 was made out and accordingly the complaint under Section 33A was not maintainable. 3. The petitioner has neither pleaded that any of the factual findings aforesaid of the Tribunal are incorrect nor filed any document to controvert the same. The argument of the counsel for the petitioner is single point. It is stated that the complaint under Section 33A of the Act and Industrial Disputes No.76-77/1991 had been consolidated vide order dated 5th July, 1999 of the Tribunal and copy whereof has been filed as Annexure-H to this petition. The counsel contends that the Tribunal has not only dismissed the complaint under Section 33A vide order impugned in this petition but also made the award on Industrial Disputes No.76-77/1991 for the reason of no evidence having been led thereon. It is argued that the order is thus bad in law. 4. It was put to the counsel for the petitioner as to whether the petitioner has challenged the award of the Tribunal in Industrial Disputes No.76- WP(C) 6214/2003 Page 4 of 7 77/1991. The counsel states that he has no knowledge in that regard. He further contends that even in the complaint case under Section 33A of the Act, subject matter of this petition, the following issues were framed by the Tribunal:- “(i) Whether the complaint / petition under Section 33A of the Industrial Dispute Act is maintainable or not (OPM)? (ii) Whether the dismissal of workman is unjustified, illegal and against the principles of natural justice? (iii) Relief, if any.” He contends that the Tribunal has in the impugned order only answered the issue No.(i) and not answered the issued No.(ii) (supra). 5. The Supreme Court in Punjab National Bank Ltd Vs. All India Punjab National Bank Employees’ Federation AIR 1960 SC 160, relied on by the counsel himself had held that “In an enquiry under Section 33A the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of Section 33 by the employer; after such contravention is proved it would still be open to the employer to justify the impugned dismissal on merits; that is a part of the dispute which the tribunal has to consider because the complaint made by the employee is treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under Section 33A”. Even though the said judgment is now no longer good law in view of pronouncement in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma (2002) 2 WP(C) 6214/2003 Page 5 of 7 SCC 244 but it explains the framing of issue (ii) (supra). In fact, the only prayer of the petitioner in his complaint under Section 33A was for his reinstatement with full back wages. Be that as it may, even as per the judgment (supra), the question of the Tribunal to go into the validity of action of employer of dismissing the petitioner was to arise only in the event of contravention of Section 33 being established. In the present case, the Tribunal having found Section 33 to be not attracted, the need to adjudicate issue No.(ii) supra did not arise. 6. As far as the contention of the counsel for the petitioner of the proceedings in the Industrial Dispute No. 76-77/1991 and in the complaint under Section 33A having been consolidated, the counsel for the respondent controverts the same. A reading of the order dated 5th July, 1999 also does not show that there was any such order of consolidation. Moreover, even if there was consolidation and the same has resulted in any error in the disposal of the industrial dispute, the same would be a case for challenging the award in the industrial dispute and will not be a ground for impugning the order on the complaint under Section 33 A of the Act. I may mention that the petitioner has not even bothered to place before this Court, the award on the Industrial Dispute No. 76-77/1991. WP(C) 6214/2003 Page 6 of 7 7. The petitioner has in the petition also sought to raise a bogey of the impugned order not recording that Industrial Dispute No. 77/1991 had been adjudicated by the date of the impugned order. However, the impugned order records in para 13 thereof that Industrial Dispute No.77/1991 was given to the order under Section 10(3) of the Authorities; and the same cannot be termed as a reference and the dispute referred was Industrial Dispute No.76/1991 only, the terms of reference whereof had been amended in terms of order of this court in earlier writ petition challenging the order under Section 10(3) of the Act. The said facts have not been controverted. 8. Similar complaints under Section 17 B of the I.D. Act were filed by two other employees also of the respondent and which were also dismissed vide identical orders dated 4th March, 2003 of the same Industrial Tribunal. WP(C) No.2166/2004 & WP(C) No.8422/2003 preferred by the said other two employees of the respondent through the same advocate as the advocate for the petitioner in the present case have been dismissed vide order dated 12th March, 2010 & 27th April, 2010. It has been enquired from the counsel for the petitioner as to whether there is any difference in the present matter, for this Court not to pass the same order as in WP(C) No.2166/2004 & WP(C) No.8422/2003. The counsel for the petitioner has not been able to point out any distinguishing feature. Resultantly, the order dismissing WP(C) 6214/2003 Page 7 of 7 WP(C) No.2166/2004 & WP(C) No.8422/2003 has been followed in the present case also. 9. The writ petition is misconceived. The counsel for the petitioner at this stage states that the petitioner has certain financial claims for his dues, against the respondent. It is clarified that this order shall not come in the way of the petitioner instituting any proceedings for any claims against the respondent and such proceedings shall be decided in accordance with law. In the circumstances, I refrain myself from imposing any cost on the petitioner. The petition is dismissed. RAJIV SAHAI ENDLAW (JUDGE) 28th April, 2010 gsr