THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.6067 OF 2003 O R D E R Heard both the counsel. 2. Aggrieved by the award dated 20.1.2003, passed by the Industrial Tribunal- II, Hyderabad in I.D.No.4/2001 in dismissing the petition filed under Section 2 A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’), the workman filed the present writ petition. 3. By the impugned award, the Tribunal held that since as on the date of filing of the petition on 25.5.1995, the dispute was not existing, the petition filed under Section 2A(2) of the Act, which provision came into fore from 27.7.1987 and which has no retrospective effect, is not maintainable. 4. A perusal of the material on record would reveal that the petitioner who was working as Godown clerk at Mannaur Godown of Girijan Co-operative Corporation Ltd., was dismissed from service by order dated 21.7.1984 and challenging the same, he raised the present industrial dispute and the respondent – Corporation resisted the claim petition inter alia on the ground of maintainability of the petition under Section 2 A (2) of the Act. Based on the averments, the Tribunal framed the following points for consideration: (a) Whether the petition is maintainable u/s 2 A (2) of the I.D. Act? (b) Whether the Management is justified in removing the petitioner from service? (c) To what relief, the petitioner is entitled? 5. On the ground that as on the date of introduction of Section 2 A (2) of the Act, as no dispute was pending, the Tribunal held that the I.D. is not maintainable and accordingly answering the first issue in the negative, dismissed the I.D. 6. In the present case, the dispute pertains to the removal of the petitioner in the year 1984. The Tribunal relying on the judgment of a learned single Judge of this court reported in DETERGENTS INDIA LTD., KODUR vs. THE PRESIDING OFFICERS, LABOUR COURTS[1] held that as on the date of introduction of provision under Section 2 A(2) of the Act, the dispute shall be exiting and then only the petition is maintainable before the Tribunal. 7. In my considered view, the Tribunal has not proper appreciated the law laid down by this court and the Tribunal has given interpretation stating that the dispute between the workman and the employer, shall be pending as on the date of introduction of Section 2 A (2) of the Act on 27.7.1984, for maintaining a petition before the Tribunal. In other words, the Tribunal was tacitly of the view that in order to entertain a petition under Section 2 A (2) of the Act, the application with regard to discharge, dismissal, retrenchment or termination of a workman, should practically be pending between the employer and the employee, on the file of Conciliation Officer, as on the date of introduction of the said provision under Section 2 A (2) of the Act, for adjudication. This interpretation cannot stand to scrutiny, if the said provision is perused. The said provision reads as under: Section 2-A. Dismissal, etc., of an individual workman to be deemed to be an Industrial Dispute: (1)Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. (2) Notwithstanding anything in Section 10, any such workman as is specified in sub-section (1) may, make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application the Labour Court hall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act; and accordingly all the provisions of this Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute. 8. A reading of the above provision makes it clear that discharge, dismissal, retrenchment or termination of a workman, is an industrial dispute under sub section (1) of Section 2-A and under sub section (2), such industrial dispute can be raised by the workman directly before the Labour Court by making an application and on receipt of such application, the Labour Court shall adjudicate the dispute, as if such dispute was referred to by the appropriate Government or as if such dispute was pending before it, in accordance with the provisions of the Act. After introduction of sub-section 2 of Section 2-A, for entertaining the application filed by the workman directly before the Labour Court, the provision has contemplated two hypothetical situations viz., that it shall treat that as if the dispute was referred to by the appropriate Government under Section 10 of the Act, or, it shall teat that as if the said dispute was pending before it. Therefore, the said provision only contemplates the situation to entertain the dispute by the Labour Court, filed by the workman directly, for adjudication, and it does not even remotely suggestion that the dispute should arise subsequent to the introduction of sub section 2 of Section 2-A or that it has any prospective effect and it is only a procedural change in filing the applications. The only criterion for the Labour Court to entertain the dispute is that there should be a dispute between the employer and the employee with regard to discharge, dismissal, retrenchment or termination. 9. A learned single Judge of this court in Detergents India Ltd., (1 supra) considering the judgment of the Apex Court in RUSTON & HORNSY (I) LTD. v. T.B.KADAM[2],wherein similar question arose after introduction of Section 2-A of the Act, and interpreting the judgment of the Apex Court (2 supra), held as under: 7. Thus as interpreted by the Supreme Court, the relevant fact to be considered is whether the dispute is existing on the date when the application is filed by the workman. What all sub-section (2) of Section 2A says is, that the dispute which was not earlier considered as ‘existing’ as per Section 2(k) of the Act, was made a dispute as per sub-section (2) of Section 2A and a right was given to the workman to move the Labour Court directly, notwithstanding anything contained in Section 10 of the Act. Therefore, the question whether sub-section (2) of the Section 2 A has got retrospective effect or not, will not arise at all. The only question is whether there exits a dispute on the date when the application is filed under sub-section (2) of Section 2A. In this case, there is no dispute that a ‘dispute’ was pending between the workman and the petitioner- factory on the date of application before the Labour Court for adjudication. Further, by reading sub-section (2) of Section 2A, it is clear that notwithstanding anything contained in Section 10, a right is given to the workman to directly approach the Labour Court and it is further made clear that the said application will be made as if it were a dispute referred to or pending before the Labour Court. The word ‘pending’ denotes that the application was filed regarding the dispute that arose even earlier and it can also be entertained as if it were pending before the Labour Court. Therefore, the language of sub-section (2) of Section 2 A makes it clear that if there is a dispute existing on the date when the application is filed, after the commencement of sub-section (2) of Section 2A of the Act, even though the dismissal/discharge/removal/retrenchment of the workman might have taken place earlier to the commencement of the above sub –section, the application is quite maintainable. 8. Therefore, the contention of the learned counsel for the petitioner-factory that sub-section (2) of Section 2A which came into effect on 27.7.1987 has given a positive right to the workman to move the Labour Court for adjudication of the dispute and that this is a new right created to the workmen who has to exercise that rightly only if he is dismissed/discharged/removed/retrenched after the introduction of sub-section (2) of Section 2A i.e., after 276.7.1987, but not where he was dismissed/discharged/removed/retrenched earlier to the above date, is untenable and cannot stand to judicial scrutiny. 10. The rights given under Section 25-H of the Act are substantial rights - right to payment of retrenchment- compensation or right to reinstatement etc., whereas the right given under sub-section (2) of Section 2A is only a limited right, rather procedural right to move the Labour Court for adjudication of a dispute. It must also be noted that even earlier to introduction of sub-section (2) of Section 2A, the workman was having a right to move the Conciliation Officer who in turn used to move the Government to get an order to refer the matter to the Labour Court. Therefore, the change now introduced is instead of approaching the conciliation officer to get the dispute referred to Labour Court, the workman is given a right directly to approach the Labour Court when a dispute exist, for adjudication. Except making a change in the process of approaching the Labour Court, there is no substantial change. There is no specific benefit even, to the workman under sub-section (2) of Section 2A, as is given under Section 25H of the Act. Therefore, the facts of the above case are thus distinguishable and are not applicable to the fact of the present case. 15. . . . As stated supra, the only test is whether a dispute was existing on the date when the workmen have filed applications for adjudication before the Labour Court or not. Once a dispute is exiting, the applications are maintainable even though the dispute might have arisen due to the dismissal, removal, discharge and retrenchment of the workmen earlier to the introduction of sub-section (2) of Section2A of the Industrial Disputes Act. 10. From the above judgment of the learned single Judge of this court, it is clear that even if the dismissal/discharge/removal/retrenchment is prior to introduction of sub section (2) of Section 2-A, the Labour Court has jurisdiction to entertain such dispute and the only question that has to be considered is whether the ‘dispute’ was existing as on the date of filing of the application. 11. In the present case, the petitioner was removed from service during the year1984 and he raised the dispute before the Labour Court in the year 1995, and as already noticed above, as on the date of filing of the application before the Tribunal, there is no necessity that the petitioner should raise the dispute and the same should be pending. The only question that requires to be looked into is whether there is dispute between the employer and the employee with regard to the dismissal, discharge, removal or retrenchment. In this case the dispute is with regard to the dismissal of the petitioner by the employer and hence the Tribunal ought to have entertained the I.D. and disposed of the same on merits, instead of dismissing on the ground of lack of jurisdiction. 12. For the foregoing reasons, the impugned award of the Tribunal on the issue framed under (a) i.e., with regard to maintainability, is set aside and the matter is remitted back to the Labour Court for adjudication on the points (b) and (c) which it has framed, in accordance with law, within a period of three months from the date of receipt of a copy of this order. 13. The writ petition is accordingly allowed. No costs. AVS -------------------------------- 17—06—2011 [1] 1993(1) An.W.R. 219 [2] AIR 1975 SC 2025