Case: M/s. B.P.L. Ltd. &amp; Others Vs. R. Sudhakar &amp; Others

not that the workmen do not have remedy to challenge the order of dismissal. They can raise dispute challenging the said order of dismissal by initiating separate proceedings. Even if the an application was to be made under proviso to Section 33(2)(b), the Tribunal could not have proceeded to pass any order because of the interim order passed by the High Court staying the operation of the order of reference. If the Tribunal were to proceed to pass any order there would have been a possibility of it committing contempt of the order passed by the High Court. This Court in Baradakanta Mishra, Ex-Commissioner of Endowments vs. Bhimsen Dixit [1973 (2) SCR 495 ], dealing with the case that where the authority did not follow a binding precedent of the High Court and tried to justify not following it on some grounds, observed thus:-- Contempt of Court is disobedience to the court, by acting in opposition to the authority, justice and dignity thereof. It signifies a willful disregard or disobedience of the courts order, it also signifies such conduct as tends to bring the authority of the court and the administration of law into disrepute. (Vide 17 Corpus Juris Secundum pages 5 and 6; Contempt by Edward N. Dangel (1939 Edn.) page 14. Oswalds Contempt of Court (1910 Edn.) pages 5 and 6). It is a commonplace that where the superior courts order staying proceedings is disobeyed by the inferior court to whom it is addressed, the latter court commits contempt of court for it acts in disobedience to the authority of the former court. The act of disobedience is calculated to undermine public respect for the superior court and jeopardize the preservations of the law and order. The appellants case is to be examined in the light of the foregoing principles and analogy.. That was a case where binding precedent of High Court was not followed, but in the present case the Tribunal, if was to proceed with an application under Section 33(2)(b) of the Act, it would have been direct disobedience of the interim order of stay passed by the High Court. 19. A situation may arise where workman commits a grave misconduct and situation does not allow any delay in taking action against such workman and the interim order staying operation of order of reference is operative and if it was to prolong for a long time, it would lead to anomalous situation. The case of the appellant-companies, as can be seen from paragraph 3 of the Counter Statement filed by them in reply to the complaint made by the workmen under Section 33A of the Act, reads:-- It is submitted that the services of the First Party was terminated on 31.3.1999 for his involvement in the barbaric incident of setting fire to a bus carrying workmen resulting in the death of TWO women workers and critically injuring six others besides injuring Several Others. The Second Party, in the normal course, would have held inquiries before taking any action but the fear psychosis generated in the minds of the workmen by the said act of First Party necessitated the Second Party apprehended that the situation may go out of control and the delinquents may be emboldened to indulge in further acts of violence. Therefore, the Second Party had no other option other than to dispense with the services of the First Party in order to ensure that the services of the other employees were protected and that further acts of violence, if contemplated upon, could be curbed. Considering the gravity of the situation and in view of the apprehension expressed by the witnesses of their safety and security, the Second Party felt that holding an enquiry was neither possible nor was it just and expedient. Hence, the services of the First Party was terminated for indulging in serious acts of violence and this was strictly in accordance with the standing order. The Second Party will lead evidence on the acts of misconduct for which the First Party was dismissed from service and will justify its order of dismissal before this Honble Court in the event of this Honble court holding the complaint as maintainable. No doubt, the object of Section 33 of the Act is to protect the workman concerned during pendency of the proceedings in a dispute against victimization by the employer for having raised industrial dispute or his continuing the pending proceedings. Further it is to ensure that the proceedings in connection with the industrial disputes already pending should be concluded in a peaceful atmosphere and to say that no employer should, during pendency of the proceedings, take action of any kind mentioned in this said Section, giving rise to fresh disputes leading to straining the relations between the employer and the workman. But, then, the requirements of the said Section are to be satisfied in order to invoke the jurisdiction of the Tribunal under the said provision. For the purpose of the present case pendency of the proceedings before the Tribunal was pre-requisite condition for making an application under the proviso to Section 33(2)(b) of the Act. Since the proceedings were not pending at the relevant time, i.e. on the date of dismissal of the workmen by virtue of the interim order granted by the High Court, the preliminary objection raised by the appellant Companies as to the very maintainability of complaint under Section 33A is valid and sustainable. 20. The question set out above in the beginning of this judgment is answered in the negative. 21. Thus, viewed from any angle in our considered opinion the impugned order cannot be sustained. The preliminary objection raised by the appellant companies is upheld and consequently the complaint made by the respondent-workmen is dismissed as not maintainable. We must, however, make it clear that this order does not prejudice or preclude the respondent workmen from questioning the validity and correctness of the order of their dismissal from service by raising appropriate dispute in accordance with law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. In the present case then were dismissed from service on account of misconduct during the period when operation of the order of reference remained stayed. Compliance of proviso to Section 33(2)(b) would be required if the dispute was pending on the date when the workmen were dismissed from service. The Tribunal held that the dispute was pending before it notwithstanding stay of the operation of the order of reference by the GovernmentWhile admitting the liability to pay the appellant company stated that it was expecting certain sums of money towards developmental loan from the Government of Karnataka and as soon as the same was received it would pay the outstanding amount. Since the amount was not paid respondent issued a notice under Section 434 of the Companies Act and, thereafter, a petition was filed in the High Court under Section 433(e) of the Companies Act for winding up of the appellant company12. We are concerned only with question number one. The proceedings before the Board under Sections 15 and 16 of the SICA had been terminated on 26.4.1990. The appeal filed by the appellant company before the appellate authority had been dismissed on 7.1.1991. As a result of these orders no proceeding under the Act was pending either before the Board or before the appellate authority on 21.2.1991 when the Delhi High Court passed the interim order staying the operation of the order of appellate authority dated 7.1.1991. This Court held that the said stay order could not have the effect of reviving the proceedings, which had been disposed of by the appellate authority by its order dated 7.1.1991 observing that While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in restoration of the position as it stood on the date of passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the appellate authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the appellate authority would be restored and it can be said to be pending before the appellate authority after the quashing of the order of the appellate authority. The same cannot be said with regard to an order staying the operation of the order of the appellate authority because in spite of the said order, the order of the appellate authority continues to exist in law and so long as it exists it cannot be said that the appeal, which has been disposed of by the said order has not been disposed of and is still pending. In that view this Court held that it cannot be said that any proceedings under the Act were pending before the Board or the appellate authority on the date of passing the order dated 14.8.1991 by the learned single Judge of the Karnataka High Court for winding up of the company or on 6.1.1991 when the Division Bench passed the order dismissing OSA No. 16 of 1991 filed by the company and, therefore, there was no impediment in the High Court dealing with the winding up petition filed by the respondents13. In the case on hand the situation is entirely different. The Tribunal gets jurisdiction only on reference made by the Government. When the operation of the very order of reference was stayed the question of dispute pending before the Tribunal did not arise inasmuch as the reference order itself stood suspended. So long as stay order was operating it could not be said that the dispute was pending before the Tribunal. Admittedly, when workmen were dismissed from service stay order was operating. Learned single Judge as well as the Division Bench of the High Court have proceeded on wrong footing relying upon the decision of this Court in Shri Chamundi Mopeds Ltd. (supra), that the order of the reference was not wiped out by virtue of staying of the operation of order of reference. It is not the question as to whether the order of the reference is wiped out but the question is what is the effect of the staying of the operation of order of reference itself. Once the operation of order of reference is stayed there is no question of dispute pending before the Tribunal so long as the said order remains in operation because reference precedes dispute. To put it differently, dispute could come up for adjudication by the Tribunal pursuant to the order of reference only. If in a pending proceeding operation of order is stayed pending disposal of the main matter such as an appeal or revision, obviously the impugned order does not get quashed or wiped out. It only remains suspended. But the position is different in this case, as already stated above. It was not a case where the dispute was pending and only further proceedings were stayed. When the order of reference itself was stayed the Tribunal did not have the jurisdiction to pass any further order. As such the question of either management making an application under the proviso to Section 33(2)(b) or the Tribunal passing an order of such application would not arise. In case any tribunal proceeds to pass an order in spite of stay of the operation of the order of reference by the High Court it may amount to contempt of the order of the High Court. In case of some grave misconduct the management cannot afford to sit idle or simply wait to take action, particularly, when stay of the operation of the order of reference is obtained at the instance of union on behalf of the workmen. The case of Shri Chamundi Mopeds Ltd. is quite distinguishable and it is on the facts of that case. Even in that case it is stated that the order of stay did not amount to revival of appeal or proceedings16. The effect of grant of stay of operation of the order of industrial reference was that the Industrial Tribunal could not take up the reference for adjudication. Consequently, no action based on such reference could be taken by the Tribunal including grant or refusal of approval to the disciplinary action under Section 33(2) of the Act. The employer could not have, therefore, approached the Tribunal for seeking approval to its disciplinary action so long as the order of reference remained stayed by the order of the High Court. The industrial reference stood revived, only when the writ petition against the industrial reference was finally disposed of by the High Court on 12.4.1999. The industrial reference would be said to be pending only from 12.4.1999. The action of dismissal of the services of the workmen was taken on 31.3.1999. On that date, as a result of the order of the stay of the operation of reference by the High Court on 11.3.1999, no reference was pending for adjudication before the Tribunal. The provisions of Section 33 of the Act are attracted only when an industrial dispute is pending for adjudication and not merely when an order of reference is made by the Government. In the present case, proceedings were not pending before the Tribunal because of the stay of the order of reference itself. Bothn (2) of Section 33 employ the language during the pendency of any proceeding which clearly convey that obligation on the part of the employer under the said Section of seeking express permission for the purpose ofn (1) or approval for the purpose ofn (2) arises only when there are proceedings pending on industrial dispute before the Tribunal or other specified statutory adjudicatory authorities under the Act17. In the present case as on date of dismissal of workmen from service the interim order staying the operation of the order of reference was operative. Hence the question of dispute being pending on that day did not arise. As already stated above, in order to make an application under proviso to Section 33(2)(b) of the Act, pendency of the proceeding was essential. In this view the appellant companies did not contravene the provisions of Section 33(2)(b) of the ActNo doubt, the object of Section 33 of the Act is to protect the workman concerned during pendency of the proceedings in a dispute against victimization by the employer for having raised industrial dispute or his continuing the pending proceedings. Further it is to ensure that the proceedings in connection with the industrial disputes already pending should be concluded in a peaceful atmosphere and to say that no employer should, during pendency of the proceedings, take action of any kind mentioned in this said Section, giving rise to fresh disputes leading to straining the relations between the employer and the workman. But, then, the requirements of the said Section are to be satisfied in order to invoke the jurisdiction of the Tribunal under the said provision. For the purpose of the present case pendency of the proceedings before the Tribunal wase condition for making an application under the proviso to Section 33(2)(b) of the Act. Since the proceedings were not pending at the relevant time, i.e. on the date of dismissal of the workmen by virtue of the interim order granted by the High Court, the preliminary objection raised by the appellant Companies as to the very maintainability of complaint under Section 33A is valid and sustainable20. The question set out above in the beginning of this judgment is answered in the negative21. Thus, viewed from any angle in our considered opinion the impugned order cannot be sustained. The preliminary objection raised by the appellant companies is upheld and consequently the complaint made by then is dismissed as not maintainable. We must, however, make it clear that this order does not prejudice or preclude the respondent workmen from questioning the validity and correctness of the order of their dismissal from service by raising appropriate dispute in accordance with law.