SBCWP No.6531/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.6531/1994. Municipal Corporation Kota Vs. Hans Raj & Anr. Date of Order:- February 24, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.S. Raghav for the petitioner. Shri N.U. Qazi for respondent No.1. Shri Kunal Rawat for respondent No.2. ****** BY THE COURT: This writ petition has been filed challenging the order passed by the learned Industrial Tribunal, Kota whereby application of the respondent under Section 33(A) of the Industrial Disputes Act 1947 has been allowed. Respondent- workman approached the Industrial Tribunal by filing application under Section 33(A) on the premise that he was initially engaged with the petitioner on 1/6/1983 as Beldar on daily wage basis. His services were terminated w.e.f. 31/10/1983 but subsequently SBCWP No.6531/94. 2 he was reinstated and was allowed to work upto 30/4/1984. His services were again arbitrarily terminated and then he was re-engaged and he worked with the petitioner upto 31/3/1985. Management did not seek approval of the Industrial Tribunal, where a reference on an industrial dispute being Case No.40/1979 was pending adjudication with regard to employees and management of the Municipal Corporation Kota. The terms of reference made at the instance of Nagar Parishad Employees Union were whether the workers, who were working with the Municipal Corporation Kota on daily wage basis for more than six months, are not entitled to regularization and regular pay scale. Contention of the respondents workman before the Industrial Tribunal was that he having worked with the petitioner management for more than six months was entitled to regularization if and when reference was answered in the positive terms. Industrial Tribunal allowed the application and declared action of the petitioner in terminating the services of the respondent as illegal and held him entitled to reinstatement in service with 40% back wages. 2) Shri M.S. Raghav, learned counsel for the petitioner has argued that appointment of the respondent workman was only on contractual basis and SBCWP No.6531/94. 3 as and when necessity arises, he was engaged. He was not regularly working with the petitioner. It was argued that case of the respondent could not be covered by the terms of Reference No.40/1979 because such reference was made in the year 1979 whereas respondent in the present case was initially engaged with the petitioner on 1/6/1983 as per his own showing. Learned counsel referred to the provisions contained Section 33(1) which provides that during pendency of proceedings before the Judge Industrial Tribunal or Labour Court in respect of any industrial dispute, no employer shall 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. If in the present case, respondent having been reinstated only on 1/6/1983, was not in service before the commencement of the proceedings and therefore there was no requirement for the management to seek prior approval of the Industrial Tribunal within the meaning of Section 33(2)(b). 3) Per contra, Shri N.U. Qazi, learned counsel for respondent No.1 and Shri Kunal Rawat, learned counsel for respondent No.2 have opposed the writ petition and argued that this issue which is being SBCWP No.6531/94. 4 raised by the petitioner has been directly answered by Three Judge Bench of the Supreme Court in M/s.New India Motors (P) Ltd., New Delhi Vs. K.T. Morris : AIR 1960 SC 875 wherein it has been held that such reference would concern not only the employees who are in service on the date of dispute but also such employees who subsequently became employer in the establishment concerned. Learned counsel for respondents submitted that Reference Case No.40/1979 was ultimately answered in favour of the workmen/Union and employees, who were engaged not only prior to the date of reference but subsequently also if completed six months on the date of passing of the award, were held also entitled to the benefits flowing from such award and were actually granted such benefits. The award of the Tribunal was challenged by the Management before this court and also before the Supreme Court and ultimately all such challenges failed. The award had to be implemented. Learned counsel also relied on Constitution Bench judgment of Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharma and others : (2002) 2 SCC 244 : AIR 2002 SC 643 wherein it was held that consequent upon refusal of approval of removal, the delinquent would be treated to be in continuous service as if order SBCWP No.6531/94. 5 of discharge or dismissal was never passed. It was further held that the order of refusal to grant approval of removal or dismissal renders void inoperative. Consequence of order of discharge/removal being treated as inoperative would obviously be reinstatement of the workman or deemed reinstatement. He has to be therefore treated continuing in service with all consequential benefits. The writ petition be therefore dismissed. 4) Upon hearing learned counsel for the parties and perusing the impugned-order, I find that the controversy that is raised in the present matter is squarely covered by the judgment of Supreme Court in M/s.New India Motors (P) Ltd., New Delhi supra in paras 8 and 9 of which, the Supreme Court observed, as under:- “8. Section 18 of the Act is also relevant for this purse. It deals with persons on whom awards are binding. Section 18(3) provides, inter alia, that an award of a tribunal which has become enforceable shall be binding on (a) all parties to the industrial dispute, (b) all other parties summoned to appear in the proceedings as parties to the dispute unless the tribunal records the opinion that they were so summoned without proper cause, and (d) where a party referred to in cl. (a) or cl. (b) is composed of workmen all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute, and all persons who subsequently become employed in that establishment or part. It is thus clear that the award passed in an industrial dispute raised even by a minority union binds not only the parties to the SBCWP No.6531/94. 6 dispute but all employees in the establishment or part of the establishment, as the case may be, at the date of the dispute and even those who may join the establishment or part subsequently. Thus the circle of persons bound by the award is very much wider than the parties to the industrial dispute. This aspect of the matter is also relevant in construing the material words in S.33(1)(a). 9. In this connection the object of S.33 must also be borne in mind. It is plain that by enacting S.33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. That being the object of S.33 the narrow construction of the material words used in S.33(1)(a) would toned to defeat the said object. If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the term and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. Similarly, it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying S.33 is inconsistent with the narrow construction sought to be placed by the applicant on the material words used in S.33 (1)(a).” 5) Perusal of the aforesaid law enunciated by the Supreme Court, makes it clear that award of the Tribunal would be enforceable and binding on all the parties in the industrial dispute proceedings either in Section S.33(1)(a) and or Section S.33(1)(b), whether such persons were already employed or SBCWP No.6531/94. 7 subsequent to the date of reference, employed in that establishment. Supreme Court in the above referred to case held that narrow construction of the material words used in S.33(1)(a) would tend to defeat object of the legislature, which is to ensure implementation thereof where the industrial dispute is pending and binding for all the workers either who are already employed or were subsequently engaged in an establishment. 6) In view of above, I do not find any merit in this writ petition. The view taken by the learned Industrial Tribunal cannot be faulted. Petitioner in any case would be entitled to benefits to the extent of 40% only for the period prior to passing of impugned award dated 23/2/1994 and not during the pendency of the writ petition. The writ petition is dismissed with the aforesaid observations. (MOHAMMAD RAFIQ) J. anil