CHANDRA DHARI SINGH, J.

1. The instant petition under Articles 226 read with Article 227 of the Constitution of India has been filed on behalf of the petitioner challenging the award dated 3rd July, 2023 passed by the learned Central Government Industrial Tribunal cum Labour Court- II, New Delhi in case bearing I.D. no. 21/2021 (hereinafter "Impugned Award").

FACTUAL MATRIX

2. The petitioner is an international airlines carrier which employed the respondents, the members of the Lufthansa Cabin Crew Association, on a fixed term basis as crew members for a period of five years on permanent rolls.

3. In the year 2018, with regard to their service condition, the respondents had submitted a charter of demands to the petitioner management. Upon failure of a mutual agreement on the same, a conciliation proceeding was initiated before the Labour Commissioner.

4. After discussion on several rounds the conciliation failed and the appropriate Government referred the matter to the learned Central Government Industrial Tribunal cum Labour Court, New Delhi vide order dated 22nd January, 2018 for adjudication in terms of the reference and the said dispute is pending before the learned Tribunal in case bearing I.D. No. 5/2018.

5. The petitioner subsequently underwent financial crisis due to pandemic and undertook several HR measures including continuance of employment on unpaid leave for two years. The same was accepted by the crew members and a settlement was signed on 23rd December, 2020. However, because of internal issues with the workmen Union, only the permanent crew members agreed to proceed on unpaid leave.

6. In these circumstances, it allegedly became unviable for the petitioner management to maintain a large number of crew members as flights were grounded due to pandemic. Due to the same, the petitioner Signature Not Verified W.P. (C) 1376/2024 Page 2 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 terminated the services of the crew members vide order dated 2nd February, 2021.

7. The Lufthansa Cabin Crew Association, being alleged representative of the now terminated fixed term cabin crew members, challenged the aforesaid termination of their employment by raising a dispute which got referred to the learned Central Government Industrial Tribunal-cum-Labour Court-I, Delhi, and registered as case bearing I.D. no. 138/2021. The adjudication of said dispute is pending before learned CGIT.

8. During the pendency of the dispute I.D. no. 5/2018, the respondents filed the application bearing I.D. no. 21/2021 under Section 33A of the Industrial Disputes Act, 1947 (hereinafter " ID Act "), stating therein that the petitioner management terminated their fixed term employment contracts during pendency of the dispute without obtaining the permission or approval of the learned Tribunal, therefore, contravening the provisions of Section 33 of the ID Act.

9. Pursuant to completion of the proceedings, the learned Tribunal passed the impugned award dated 3rd July, 2023, thereby, reinstating the 17 workmen along with backwages. Aggrieved by the same, the petitioner management has approached this Court seeking setting aside of the same.

PLEADINGS BEFORE THIS COURT

10. The petitioner has filed the instant petition challenging the impugned award on following grounds:

11. In reply, the representative of the employees has filed the following brief synopsis:

The Ld. Tribunal categorically observed that the legislator by their wisdom have not stated that for invoking the provisions of Section 33 A, the condition precedent are there is a finding that the dispute pending prior to the initiation of the proceedings u/s. 33A is an industrial dispute. The intention of the legislator is clear form the use of the words "during pendency of the proceeding". (Annexure R-1) b. That based on the observation falling from this Hon‟ble Court, the Petitioner was constrained to withdraw the said Petition with liberty to approach Ld. Tribunal for expeditiously deciding the preliminary issue in ID No. 05 of 2018 and the same was allowed vide order dated 28.03.2023 (Annexure R-2)The Petitioner thereafter preferred an application agitating before the Ld. Tribunal for adjudication of issue of jurisdiction as a preliminary issue in I.D. No. 5 of 2018. However, the Ld. Tribunal by observing that the application is filed at belated stage, dismissed the said application vide its order dated 10.04.2023. (Annexure R-3) Signature Not Verified W.P. (C) 1376/2024 Page 10 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 c. Accordingly, the Petitioner once again preferred Writ Petition (C) No. 4763 of 2023 assailing the order dated 10.04.2023 on the grounds that the Respondent has denied the requirement to prove the espousal of the dispute, as required under the law. Pursuant thereto, this Hon‟ble Court vide its order dated 17.04.2023 disposed off the said Writ Petition by rejecting the prayer, however this Hon‟ble Court extended three weeks‟ time to conclude the evidence, before the Ld. Tribunal. (Annexure R-4) III. WRIT PETITION IS HIT BY CONSTRUCTIVE RES JUDICATA The Respondent submits that the Petitioner has already agitated various issues, which also forms part of the present Petition, before this Hon‟ble Court in earlier Writ Petition and has miserably failed to succeed in the same. The issues with regards to "existence of Industrial Dispute" as well "espousal of dispute" has already been decided in the earlier Writ Petition and accordingly the Petitioner were constrained to withdraw/not press the Writ Petition. Thus, the Petitioner cannot be allowed to raise the aforesaid issues in the present Writ Petition as the same is hit by constructive res-judicate.

IV. ISSUE WHETHER I.D. NO. 5 OF 2018 IS AN "INDUSTRIAL DISPUTE"

SUBMISSIONS (on behalf of the petitioner)

12. Mr. J.P. Cama, learned senior counsel appearing on behalf of the petitioner management submitted that the impugned award is bad in law as the same has been passed without taking into consideration the entire facts and circumstances of the case.

13. It is submitted that the learned Tribunal erroneously adjudicated the complaint under Section 33A of the ID Act by not taking into consideration the fact that there was a pending dispute i.e. I.D. No. 5/2018 which is at an advanced stage.

14. It is submitted that the complaint under which the impugned award has been passed was only signed and verified by the two persons and therefore, granting relief to 17 persons is illegal and contrary to the law.

15. It is submitted that the complaint made under Section 33A of the ID Act is required to be mandatorily signed, verified, pursued and proved by the complainants and the same would fail if the complaint is not proved by the persons in respect of whom the relief of reinstatement is being sought.

16. It is submitted that a complaint under Section 33 of the ID Act can only be maintainable if the pending dispute falls under the category of the industrial dispute and since the question pertaining to the same is pending before the learned Tribunal, a complaint under Section 33 of the ID Act cannot be held to be maintainable and adjudicated in light of the facts of the instant case.

17. It is further submitted that the learned Tribunal has erroneously held that since the service of respondents who were appointed on fixed term were terminated without complying with the provision of Section 25F and 25G of the ID Act, it amounted to breach of Section 33 of the ID Act.

18. It is also submitted that the termination of a fixed term contract does not qualify as retrenchment under Section 2(oo)(bb) of the ID Act Signature Not Verified W.P. (C) 1376/2024 Page 15 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 and even otherwise, breach of Section 25F and 25G of the ID Act does not amount to contravention of Section 33 of the said Act, as has been wrongly held by the learned Tribunal. The learned Tribunal has failed to appreciate the facts as well as the settled legal principles on the said issues.

19. It is submitted that the finding of the learned Tribunal with regard to termination of fixed term contract of the respondents during pendency of I.D. No. 5/2018 being in contravention of Section 33(2)(b) of the ID Act is legally incorrect as the question of change in condition of service and contravention of Section 33 of the ID Act did not arise, as there was no punitive termination which is a condition precedent for invoking the provisions of Section 33A of the ID Act.

20. Learned senior counsel also submitted that the learned Tribunal failed to abide by the procedure established for adjudication of the complaint under Section 33 of the ID Act and therefore, the impugned award is liable to be set aside.

21. It is submitted that the relief of reinstatement as granted by the learned Tribunal cannot be held to be legally tenable as there is no vacancy of the crew members in the petitioner management.

22. It is submitted that the relief of backwages was granted by the learned Tribunal without it being pleaded in the complaint and the same is in teeth of the settled position of law.

23. It is submitted that the witness namely Ms. Shalini Sharma as examined by the learned Tribunal was not a competent witness to depose Signature Not Verified W.P. (C) 1376/2024 Page 16 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 on behalf of the complainants as she was neither a complainant, nor one of the persons as per the list annexed with the complaint.

24. It is submitted that the learned Tribunal erred in adjudicating the issue of retrenchment as the same was not framed before adjudication of the dispute.

25. Therefore, in view of the foregoing submissions, the learned senior counsel for the petitioner submitted that the present petition may be allowed and the reliefs be granted as prayed.

(on behalf of the respondents)

26. Mr. Mahavir Singh, learned senior counsel appearing on behalf of the respondents vehemently opposed the instant petition submitting to the effect that the same is devoid of any merit as the learned Tribunal has passed a resonated award after taking into consideration the entire facts and circumstances of the case including the settled position of law.

27. It is submitted that Section 33A of the ID Act empowers the workmen to approach the labour Tribunal directly if the employer contravenes the statutory mandate and therefore, referral of the dispute by the Government was not required in filing the application under Section 33A.

28. It is submitted that the conditions prescribed in the above said provision were not complied with by the petitioner management and therefore, the same would amount to violation of the mandate as provided under the said provision.

29. It is submitted that the interpretation of the term punish was done by the learned Tribunal in right manner as the learned Tribunal referred to various authorities to do the same and therefore, the said interpretation deems to be sound and legally tenable.

30. It is submitted that the termination of employment is one of the harsh punishments inflicted upon the employees and the said punishment has been given by the petitioner management due to the alleged violation of the orders passed by it.

31. It is submitted that the scope and ambit of complaint under Section 33 of the ID Act has been dealt with by the Hon‟ble Supreme Court and this Court time and again and therefore, the law with regard to the same is no more res intergra.

32. It is submitted that the complainant before the learned Tribunal had categorically stated the endorsement to be on behalf of the 23 aggrieved employees and therefore, the complaint cannot be deemed to be only on behalf of two employees and thus, there is no illegality in the impugned award.

33. It is submitted that the employees of the petitioner management had already agreed to the pay cut due to advent of the COVID-19 pandemic and therefore, the termination cannot be justified due to the said pandemic.

34. Therefore, in view of the foregoing submissions, it is submitted that the present petition may be dismissed.

ANALYSIS AND FINDINGS Signature Not Verified W.P. (C) 1376/2024 Page 18 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29

35. The matter was heard at length with arguments advanced by the learned senior counsel on both sides. This Court has also perused the entire material on record. This Court has duly considered the factual scenario of the matter, judicial pronouncements relied on by the parties and pleadings presented by the learned counsel for the parties.

36. The petitioner has approached this Court against the impugned award passed by the learned Tribunal in a complaint filed by the respondent under Section 33 of the ID Act. In support of its claim that the impugned award is illegal, the learned senior counsel for the petitioner has submitted that the issue regarding maintainability of the dispute was pending before the Tribunal and therefore, a complaint under Section 33 ought to have not been adjudicated by the learned Tribunal.

37. In rival submissions, the above said contentions were rebutted by the learned senior counsel for the respondents by stating that the petitioner management was in clear violation of the statutory provision meant for protection of the employees in case there is a pending litigation between the employer and the employee and therefore, the impugned award was passed in accordance with the law.

38. Therefore, the question that falls for adjudication before this Court is whether the impugned award passed by the learned Tribunal requires interference under Articles 226/227 of the Constitution of India or not.

39. At this stage, it is apposite to peruse the impugned award, the relevant extracts of which reads as under:

On behalf of the claimants the General Secretary of Union Ms. Shalini Sharma testified as WWI and Mr. Mayank Malik testified as WW2. They also proved documents marked as WW1/1 (colly) and WW2/1 (Colly). Similarly, the mgt examined Mrs. Namita Chaudhary, Head, Human Resources, South Asia of Respondent no.1 as MWI. She also proved some documents in a series of MW1/1 to MW1/5 (colly).

The witnesses examined on behalf of the claimants stated that 25 cabin crew whose services were terminated, by authorizing Nayan Pahwa and Mayank Malik, had filed the present application. Out of them 8 including Nayan Pahwa settled the dispute with the mat and currently 17 of them are pursing the matter. Both the witnesses have stated in clear terras that they are connected with ID no. 05/2018 as that is a proceeding rating to general demand and service condition of the cabin crews. The met had sufficient knowledge about the pendency of that proceeding and connection of the complainants with the said proceeding. Despite that their services were terminated. Ww2 has stated that when the proceeding relating to the charter of demand was pending as ID No. 05/2018 the mgt had called them for a discussion and gave a proposal of salary cut. The cabin crew members agreed for the same and demanded that as a measure of assurance, their contract be extended beyond that period of two years from the date of agreement. The mgt did not accept the same and on the contrary, terminated their service. The witness examined on behalf of the mat has stated that despite the Signature Not Verified W.P. (C) 1376/2024 Page 20 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 pandemic and decline in business, the mgt was maintaining a large contingent of India based flight attendants. The mat took various cost effective measures for it's survival. All these steps were taken after an effective discussion with the representatives of the Lufthansa Cabin Crew Association, which was the recognized union. Several agreements to that effect were executed in the year 2020. But the mgt could not resume flight operation for several reasons causing huge loss in business and thus the cabin crew association was approached for their further cooperation including a major such as continuance of employment without salary for a period of two years. Though an agreement to that effect was signed, the same was not acted upon due to some internal disagreement in the union. However, few crew members proceeded on unpaid leave for two years. Since, the flights were grounded for a long time, the met was left with no option than terminating the service of crew members who were appointed on a fixed term contract. The termination was never for any kind of misconduct but in accordance to the contract of their appointment, as one month salary in lieu of notice along with other contractual dues were paid. Thereby the witness stated that the mgt had never contravened the provisions of section 33 of the ID Art entailing the action under section 33A of the Act.

Findings All the issues being interlinked and inter-dependent have been taken up for consideration together At the outset of the argument the Ld. A/R for the mgt no. 1 pointed out that the complaint has been filed alleging contravention of section 33 of the ld Act during the pendency of Id No. 05/2018. But the complaint is not maintainable as the same has been signed and verified by only two persons i.e. Mr. Nayan Pahwa and Mr. Mayank Malik and the remaining complainants have not signed or verified the complaint petition. Furthermore, Nayan Pahwa did not enter the witness box as he settled his dispute with the Respondent Signature Not Verified W.P. (C) 1376/2024 Page 21 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 no. 1 during the pendency of this proceeding. The other complainants, whose names find place in annexure A to the complaint petition, did not choose to testify as witnesses. He also argued that the complaint under section 33A of the ID Act is akin to a dispute raised under section 24 of the ID Act. Since the procedure of CPC is followed in these types of proceedings the complaint petitions ought to have been signed and verified by all the complainants. To support his stand he placed reliance in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. & Anr , 1979(3) SCC 371. While pointing out to the record of this proceeding, he submitted that no authority letter was executed in favour of Mayank Malik and Nayan Pahwa on the date of filing of the complaint on 25.02.2021. As a damage repairing measure, the authority letter executed in favour of Mayank Malik and Nayan Pahwa on 28.11.2021, was filed followed by another authority letter in form F dated 03.12.2021. All these documents are liable to be rejected and the complaint by two persons on behalf of 23 others cannot be entertained. The submission of the Ld. A/R has made it expedient to examine if the complaint need to be filed/signed by the individual complainants.

In the case of Shankar Chakravarti, the Hon'ble Supreme Court have observed that Rule 60 of the industrial Disputes (Central) Rules 1957 prescribes the procedure as to how the application under section 33 is to be made. According to this rule the application has to be filed in form J or K as the case may be, and need to be a verified application. But the said observation of the Hon'ble Supreme Court is not with regard to the application filed under section 33A by the workmen which is different in nature from the application filed under section 33 . No doubt as per rule 60 an employer intending to obtain express permission in writing of the Conciliation Officer, Labour Court or Tribunal under sub-section (1) or sub-section (3) of section 33 shall present an application in form J or K in triplicate.

But no such rule has been prescribed for the workmen filing application under section 33A of the Act alleging violation of Section 33 of the Act. In this proceeding, the claimants have filed authority letter executed by the individual workmen in favour of the applicants Mayank Malik and Nayan Pahwa and each of them have handed over the relevant documents like their appointment letter to the same authorized persons. In the complaint petition, the authorized persons have clearly mentioned that the claim is filed on behalf of themselves and 23 other cabin crew listed in annexure A. In addition to that the claimants have filed the authorization in favour of their representatives and the advocates in form F prescribed under the Rule. Hence, in absence of any clear rule or procedure for filing the application under section 33A individually by the aggrieved persons, this Tribunal finds no reason of rejecting the authority letter in form F and the joint complaint application filed by the authorized persons.

Strenuous argument was advanced by the Ld. A/R for the mgt no. 1 stating that the Id no. 05/2018 is admittedly pending before this Tribunal and it is in respect of the general demands of the Cabin Crew Association. But in that proceeding issues have been framed and one of the issues is about maintainability of the said proceeding. The maintainability has been challenged for want of valid espousal. Unless and until that proceeding is decided and held to be an Industrial Dispute, the applicants of this proceeding cannot take the advantage of section 33A of the ID Act alleging contravention of section 33 of the Act. He also argued that the complaint has been filed alleging termination of employment during pendency of ID no. 05/2018 and in view of the same the employer is required to seek permission or approval be love terminating the service. But unless and until that there is a positive finding by the Tribunal the pending dispute is an Industrial Dispute, no cognizance can be taken on the present complaint filed under section 33A of the ID Act. He also pointed out that in Signature Not Verified W.P. (C) 1376/2024 Page 23 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 the complaint petition filed, the complainants have not alleged that the termination of fixed term employment contract was punitive in nature. Unless it is so pointed out the provisions of section 33A for violation of section 33 (2(b) cannot be raised. To support his submission he placed reliance in the case of Syndicate Bank Ltd. Ve. K. Ramnath V. Bhat 1968(1) SCR 327 decided by the Hon'ble Supreme Court and in the case of Gowrishanker Oil Mills Va. Industrial Tribunal & Others, 1961 SCC Online KAR 197. Basing on these judgments, he argued that as observed by the Hon'ble Apex Court in syndicate bank case this Tribunal can take cognizance of the complaint only when there is a positive finding that the pending dispute is an industrial dispute and not otherwise. He also pointed out that before a compliant under section 33A against the employer is entertained, the workman must show that the employer has contravened the provisions of section 33 of the ID Act during the pendency of this proceeding. In this case, the termination of service not being punitive in nature, but for the administrative reason of the mgt and the applicants being in fixed term employment and the terms of employment was complied properly provision of section 33A is not invocable.

The Ld. A/R for the claimant in his reply submitted that the facts of ryndicate bank case (supra) is distinguishable from the facts of the present case. He pointed out to the pleadings of the met and submitted that the mat has admitted that the ID No. 05/2018 is in respect of the general demands relating to the service condition of the cabin crew raised by their Association, Hence, there is no controversy that the complainants of this proceeding are directly connected with the proceeding pending as ID 05/2018 On a careful perusal of the judgment of syndicate bank it is noticed that in that, case the contention of the Appellant mgt was that no industrial dispute was pending when the order of dismissal was passed. Hence, the question of contravention of section 33 of the Act never arose Signature Not Verified W.P. (C) 1376/2024 Page 24 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 entitling the claimants to file the complaint under section 33A of the Act. After examining the documents and evidence, the Hon'ble Supreme court in the case of syndicate hank concluded that the Id no. 04/1964 was pending from 08.01.1964 to 08.10.1964 and the order of the Managing Director dismissing the Respondent from service was made on 12.11.1963, which date, admittedly, falls outside the duration of the pendency of ID No. 04/1964.

The judgment of Syndicate Bank being distinguishable on facts, In this case, it is concluded that ID No. 05/2018 is a proceeding in which the complainants are connected with since the same is a proceeding relating to the general demand of the cabin crew of management no. 1.

Now, it is necessary to examine if the termination of service of the claimants is in contravention of section 33 (2(b) of the ID Act . The Ld. A/R for the mgt argued that contravention of section 33 (2(b) occurs when a person is discharged or dismissed for any misconduct not connected with the dispute pending and without complying the mandatory provisions laid there under. In this case, admittedly, the complainants fixed term contracts were terminated for operational reason of the Air Line. The said termination was never a punitive action for any misconduct of the complainants. Hence, the applicants are not permitted to invoke the provisions of section 33A of the ID Act. He also pointed out that in the claim petition the applicants have not whispered a word alleging the punitive action taken against them. While filing the rejoinder, though they have explained that for refusal to accept the proposal of the mat to go on leave for two years without pay the mgt out of vindication, terminated their services. But this statement, in the rejoinder cannot take the place of pleading and there being no pleading about dismissal as a mode of punishment the same should not be accepted to invoke the provisions of section 33 A of the Act. He also stated that the termination simplicitor of fixed tem employment contract which is an exception to the definition of retrenchment as defined in section 2(oo) Signature Not Verified W.P. (C) 1376/2024 Page 25 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 (bb) of the ID Act , does not amount to contravention of section 33A. He placed reliance in the case of Birla VXL. Limited Vs. State of Punjab & Others , 1998 LLR 1167 (para7) and Blue Star Employees Union Vs. Ex-OFF Private Secretary Government , 2008 SCC page 94.

The Ld. A/R for the complainants counter argued that the Hon'ble High Court of Delhi, in the recent Judgment delivered by the Division Bench in the case of Management of National Highways Authority of India Vs. Vinita reported in 2021 ICLR page 61 have Inter-alia held that:

In this case the witness examined on behalf of the mat admitted in clear terms that the provisions of section 25F , 250 were not complied. In the care of M. Venu Gopal vs. L.LC of India (1994) 1LLJ 597 the Hon'ble Supreme Court have held that the definition of retrenchment being very wide and comprehensive in nature, shall cover, within it's ambit, termination of service in any manner and for any reason otherwise than as a punishment inflicted by way of disciplinary action. On a careful reading of the decisions referred supra, It is concluded that the termination of the service of the complainants amounts to retrenchment defined under section 2(oo) of the ID Act and doesn't fall under the exception of section 2 (oo)(bb) of the said Act. It is the admitted position that the provisions of section 25F and 250 were not complied by the mgt before such termination. The Ld. A/R for the mgt further argued that the provisions of section 33 (2(b) can be held as contravened only when the alleged termination is being done as a mode of punishment. The complainants of this proceeding were not punished for any misconduct and the action of termination was never punitive. His other limb of argument is that this fact was never pleaded in the complaint petition and the rejoinder is not a pleading. To fortify his argument be placed reliance in the case of Amarjeet Singh vs. Smt. Bhagwati Devi, FAO 134/1979 decided by the Hon'ble High Court of Delhi wherein it has been held that under order VI Rule 1 of CPC pleading means plaint or written statement and the replication is not a pleading for claiming relief and the decision of a case cannot be based on grounds outside the pleadings of the parties. He thereby submitted that whatever has been raised for the first time by the complainant in the rejoinder cannot be entertained and cannot form basis of the award. But this argument of the Ld. A/R for the mgt does not sotind convincing since in the case of M.L. Gupta vs. Kripal Singh (98(2002) DLT 683) the Hon'ble High Court of Delhi Signature Not Verified W.P. (C) 1376/2024 Page 27 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 have held that replication cannot be filed by the plaintiff except by way of defence to set off as a matter of right. But with the leave of the court can be presented. Once the court required a party to file the replication, the said replication will become part of the pleading. Hence in this case when filing, of rejoinder was allowed without any objection from the mat the same is accepted as the pleading of the complainants wherein they have pleaded about the punishment inflicted on them by the mgt by terminating their service, since they refused the offer of the mgt to proceed on a two year unpaid leave and the said termination amounts to retrenchment.

The Ld. A/R for the claimants advanced the argument that the Industrial Dispute Act does not define the word punish or punishment. In Black's Zaw dictionary the word 'punish' has been given a meaning a sanction-such as a fine, penalty, confinement or loss of property, right or privilege assessed against a person who has violated the law. The mgt witness Ms. Namita Chaudhry has admitted during cross examination that the complainants were offered to remain under the employment of the mat but to proceed with unpaid leave for a period of two years in view of the slow down of the business. The witness during cross examination also admitted that the complainants did not accept the proposal and on account of disobediance their service was terminated. This clearly shows that the termination of service was a punitive action taken against the complainant. The misconduct referred to in section 33(1)(b) or section 33 (2()b)need not necessarily be a misconduct flowing out of an act of the workmen. If the action is followed by any direction not accepted by the employee, the same amounts to punishment.

The provisions of section of 33(2(b) unambiguously mandatory In nature. It has been clearly provided under section 33 (2(s) and 33(2(b) that during the pendency of an Industrial Dispute, the employer can alter the service condition of the employee in regard to any matter not Signature Not Verified W.P. (C) 1376/2024 Page 28 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 connected with the dispute or for any misconduct not connected with the dispute discharge or punish provided that no such workman shall be discharged or dismissed unless he has been paid wage for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. In the case of Mahendra Singh Dhantwal Vs. Hindustan Motor Ltd. , (1976) 4 SCC 606 the Hon'ble Supreme Court have held that section 33 (2(6) makes it obligatory upon the employer to make an application to the Tribunal under the proviso only when he discharges or dismisses a workman for misconduct. The misconduct contemplated under section 33 (2(b) of the Act need not be the one enumerated in the standing order of the company. Even though, a given conduct may not come within the specific terms of misconduct described in the standing order, it may still be a misconduct in the special facts of the case Hence in this case the refusal by the complainants to accept the conditions offered by the mat which was definitely damaging to their interest was taken as a misconduct by the employer and consequently their services were terminated.

The provisions of section 33 (2(b) provides that for discharging or punishing a workman whether by dismissal or otherwise during the pendency of the industrial dispute, the met is required to act simultaneously by paying wage for one month and making an application seeking approval of the Tribunal of the action taken. In this case admittedly no application for approval has been filed by the mgt. On behalf of the workman argument was advanced that all the claimants were working for the mgt. for a long period ranging from 14 to 15 years and the mgt witness had admitted that the provisions of section 250 and 250 were not complied as they were under the fixed term employment. He argued that provision of section 25f and 25G are mandatorily to be complied before termination of the employment and there is no distinction between a perasanent employee and temporary employee in this regard. Thus, from Signature Not Verified W.P. (C) 1376/2024 Page 29 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 the evidence on record it is again proved that the provisions of section 25 and G not complied and the order of termination was passed in contravention of the provisions of section 33 (2(b) of the ID Act .

In the case of Bholanath Lal and others Vs. Shree Om Enterprises (P) Ltd. , Manu/DE/1922/2018 (decided on 10/05/2018, the Hon'ble High Court of Delhi while considering the question of illegal termination and reinstatement held as under:-

A Similar view has been taken in the case of Delhi Jal Board Vs. Vimal Kumar (decided on 5-4-2018) MANU/de/1322/2018.

The constitution Bench of the Hon'ble supreme court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharm and Ors.,2002 CLR , 789 have held that a termination of service of employee effect- non grant of approval under section 33 (2(b) is that the order of dismissal becomes ineffective from the date it was passed Signature Not Verified W.P. (C) 1376/2024 Page 30 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 and therefore the employee becomes entitled to wage from the date of dismissal to the date disapproval of the application and no specific order for reinstatement would be necessary. In such a situation it will be deemed that the order or discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available."

In this case the mgt is guilty of contravening the provisions of section 33 (2(b) of the ID Act and for not complying the provisions of section 25 and 250 of the ID Act which makes the order dated 02.02.2021termusing the services of the claimants as per the list enclosed illegal.

Having regard to the legal positing as discussed above it is held that the applicants herein (as per the list enclosed) are entitled to reinstatement into service in the same position as they were on the date of termination with fall back wages in as much as the termination of the applicants is per-se illegal and the mat has not led any evidence to show that they have been gainfully employed during the intervening period after their termination. All the issues are accordingly answered in favour of the workmen. Hence ordered.

Order The Complaint filed by the claimants (List enclosed) is allowed. It is held that the Mgt no. 1 during the pendency of Id No. 05/2018, acted illegally in terminating the services of the claimants without seeking approval of this Tribunal and without complying the provisions of Section 25F & 25G of the ID Act. The action of the mat no. 1 is in complete violation of the provisions of Section 33(2)(b) of the ID Act. The claimants are held entitled to reinstatement with full back wages and continuity of service from the date of termination of service. The Mgt no. 1 is further directed to reinstate the complaints forthwith and pay them their last drawn salary and the arrears within 2 months from the date of publication of the award without interest, failing which Signature Not Verified W.P. (C) 1376/2024 Page 31 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 the amount accrued shall carry interest @ 6% per annun from the date of the challenged dismissal and till the amount are finally paid. The list of the claimants is attached herewith as annexure-A:-

Explanation.--For the purposes of this sub-section, a "protected workman", in relation to an establishment, means a workman who, being [a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub- section (3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.

(5) Where an employer makes an application to a conciliation officer, Board, [an arbitrator, a] labour Court, Tribunal or National Tribunal under the proviso to sub- section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, [within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit]."

33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings.--Where an employer contravenes the provisions of section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal], any employee aggrieved by such contravention, may make a complaint in writing, [in the prescribed manner,--

(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and

(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case Signature Not Verified W.P. (C) 1376/2024 Page 36 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.]

47. The petitioner herein has taken two-fold objections regarding the applicability of Section 33 of the ID Act by the learned Tribunal. Firstly, it has been stated that the complaint made by the workmen ought not to have been entertained by the learned Tribunal as there exists an issue regarding maintainability of the industrial dispute in another dispute bearing I.D. 05 of 2018 which has not been decided. Secondly, that the service of respondents were not terminated because of the misconduct, but was a simpliciter termination of a fixed term contract which is outside the purview of Section 33 and 33A of the ID Act. The relevant paragraph of the pleading is reproduced hereinbelow :

48. The settlement of an industrial dispute between the employer and the employee, by way of adjudication, is provided under the ID Act . On plain reading of the relevant provision of the ID Act , it becomes clear that there already is a provision under Section 10 of the ID Act which makes it statutory obligation to a workman to approach the „appropriate government‟ in case of any dispute between the employer and the workman for seeking its opinion whether an industrial dispute exists or is apprehended, and if the „appropriate government‟ is of the opinion that any industrial dispute exists or apprehended, it may refer the same to the „Board of Conciliation‟, Courts or Tribunals for adjudication.

49. In the case of Shambu Nath Goyal v. Bank of Baroda, Jullundur1it was held by the Hon‟ble Supreme Court that while making a reference under section 10(1) of the ID Act, the appropriate government performs an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute is a preliminary step in discharging its function. The relevant portion of the said judgment is as under:

For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are "dispute" or "difference". What is the connotation of these two words? In Beetham v. Trinidad Cement Ltd. [(1960) 1 All ER 274, 279 : 1960 AC 132] Lord Denning while examining the definition of expression "Trade dispute" in Section 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:

6. Thus the term "industrial dispute" connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non- employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section.

7. The reference in the case before us was made under Section 10(1) which provides inter alia that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication as therein mentioned. The power conferred by Section 10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under Section 10(1) . But in making a reference under Section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi- judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute Signature Not Verified W.P. (C) 1376/2024 Page 40 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on which it could have come to an affirmative conclusion of those matters, (vide Madras State v. C.P. Sarthy [(1952) 2 SCC 606 : AIR 1953 SC 53 : 1953 SCR 334 : (1953) 1 Lab LJ 174] ). The Tribunal, however, referred to the decision of this Court in Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal [AIR 1968 SC 529 : (1968) 1 SCR 515 :

50. The Hon‟ble Supreme Court in Ram Avtar Sharma v. State of Haryana,2 held that Section 10 of the ID Act requires the appropriate government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. The relevant part of the said judgment is reproduced herein:

51. Thus, it is made out that after reference by the appropriate Government, a dispute is established as a prima facie industrial dispute. In the instant case, conciliation proceedings were initiated before the Labour Commissioner and after several rounds of discussions, the conciliation failed, and hence, the appropriate government referred the matter to the learned Tribunal by order dated 22nd January, 2018 for adjudication in terms of the reference.

52. It is a well settled position of law that the referral of a dispute to the Tribunal by the appropriate Government would mean that the said dispute prima facie satisfies the ingredients of being an industrial dispute.

53. The said proposition has been reiterated by the Hon‟ble Supreme Court and this Court time and again and therefore, the issue remains settled with this regard. In the instant case, even though the learned Tribunal had formed the preliminary issue of maintainability of the dispute, the said dispute was referred by the Government on being prima facie satisfied about the nature of the dispute.

54. The petitioner relied upon the judgment in Syndicate Bank Ltd. v. K. Ramanath V. Bhat3to allege that the learned Tribunal should have waited to initiate any proceedings till there is a positive finding that the pending dispute is an industrial dispute.

55. However, it is hard to agree with this position as the judgment takes into consideration whether a dismissal order passed before the dispute was brought before the adjudicating authority comes under the scope of Section 33 of the ID Act or not. The relevant paragraphs are reproduced hereinbelow:

An order of discharge or dismissal, in our opinion, can be passed, only once; and, in this case, the order of dismissal is the one passed, by the Managing Director, on November 12, 1963. No doubt, either by virtue of the Standing Orders, or by virtue of a contract of service, a right of appeal may be given to a workman concerned, to challenge an order of dismissal. But the Appellate Authority only considers whether the order of dismissal has to be sustained, or whether it requires modification. Therefore, there is no question of the Appellate Authority passing, again, an order of dismissal. We are not concerned, in construing the provisions of Section 33 , as to the finality of the orders passed, by the authority concerned, in the first instance, in passing orders of dismissal or discharge. Further, the proviso to Section 33(2)(b) , when it refers to payment of wages for one month, also indicates that it relates to an order of discharge or dismissal, which comes into effect immediately, which, in this case, is the order passed, on November 12, 1963. The payment of one month's salary or Signature Not Verified W.P. (C) 1376/2024 Page 46 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 wages, is to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal, has been passed. If the management has to wait for the minimum period prescribed for filing an appeal, and also await the termination of the appeal when one is filed, considerable time would have lapsed from the date of the original order during which period the workman would not have received any salary. It will be anomalous to hold that even after the lapse of such a long time, the payment of one month's salary would satisfy the requirements of the section."

56. This Court finds no merit in submission of petitioner that the award passed by the learned Tribunal is in contravention of Syndicate Bank (supra), as the factual matrix and question of law are not applicable to the case at hand.

57. The Hon‟ble Supreme Court in Punjab Beverages (P) Ltd. v. Suresh Chand4 , defined the scope of Section 33 of the ID Act, stating that the object of the legislature in enacting such provision appears to be to protect the workman concerned in the dispute which forms the subject- matter of pending conciliation or adjudication proceedings, against victimisation by the employer on account of his having raised the industrial dispute or his continuing the pending proceedings and to ensure that the pending proceedings are brought to an expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate the already strained relations between the employer and the workmen.

(1978) 2 SCC 144 Signature Not Verified W.P. (C) 1376/2024 Page 47 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29

58. In the above said judgment, it was also held by the Hon‟ble Supreme Court that the said provision also recognises that occasions may arise when the employer may be justified in discharging or punishing by dismissing his employee and so, it allows the employer to take such action, subject to the condition that in the one case before doing so, he must obtain the express permission in writing of the Tribunal before which the proceeding is pending and in the other, he must immediately apply to the Tribunal for approval of the action taken by him.

59. Thus, when a dispute is prima facie held to be industrial dispute, merely raising the issue on maintainability in the preliminary proceedings would not exclude application of Section 33 and Section 33A of the ID Act where the workmen related to primary earlier industrial dispute are discharged or dismissed. This would defeat the very purpose of enacting Section 33 of the ID Act which aims for expeditious and harmonious resolution of industrial disputes.

60. With regards to second contention that the service of the respondents were terminated not because of the misconduct, but was a termination simpliciter of a fixed term contract which is outside the purview of Section 33 and 33A of the ID Act, this Court has taken note of the learned Tribunal‟s finding that the management terminated workmen due to their disobedience of settlement of 2 year unpaid leave. The extracts of the observations made by the learned Tribunal reads as under:

61. Upon perusal, it is crystal clear that the learned Tribunal had rightly held the said termination to be in non-compliance with the statutory mandate as the petitioner had terminated the services of the workmen and same amounts to punitive action under Section 33 of the ID Act.

62. As per Section 33(3) of the ID Act, when a dispute is pending for adjudication, such discharge or dismissal can only be taken after approval from the Tribunal which was not complied with in this case. In this regard, the Hon‟ble Supreme Court‟s judgment in P. D. Sharma vs State Bank Of India5is relevant wherein the scope of Section 33(2) vis-à-vis the scope of Section 33(3) of the ID Act was discussed. The relevant part of the said judgment is reproduced hereinbelow:

The section was amended by Act 48 of 1950. The amended section read:

The amended section dropped the exception made in respect of misconduct not connected with the dispute. This change in the law prevented the employers from discharging or Signature Not Verified W.P. (C) 1376/2024 Page 51 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 punishing their employees even in respect of a misconduct not connected with the industrial dispute. That was a serious inroad into the disciplinary jurisdiction of the employer. It is possibly with a view to avoid unnecessary interference with the rights of the employers the section was amended by Act 36 of 1956.

12. In Strawboard Manufacturing Co. v. Govind [(1962) Supp 3 SCR 618, 623] this Court observed:"The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that Section 33 , as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an Industrial Tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on the matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently Section 33 was re-drafted in 1956 and considerably expanded."

13. By enacting Section 33 the Parliament wanted to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and Signature Not Verified W.P. (C) 1376/2024 Page 52 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 his employees. The object of Section 33 is that during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it.

14. While construing the scope of sub- section 3 of Section 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub- section 3 of Section

33. There is no doubt that at the time the application in question was made, an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a "protected workman". He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence, the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybody's permission to exercise its rights. In other words, the limitation placed on the respondent's rights by sub- section 3 of Section 33 disappeared the moment the industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the industrial dispute was decided."

63. The above cited case makes it clear that the said provision is designed to protect employees during industrial disputes while allowing employers to maintain some disciplinary control, with specific safeguards in place for "protected workmen".

64. Furthermore, the insertion of such a provision in the ID Act also depicts the intent of maintenance of the status quo during the time of pendency of the dispute between the employer and the employee.

65. In light of the established legal principles, the adjudication of application and observations made by the learned Tribunal of Section 33 of the ID Act is upheld and this Court holds that the petitioner should have adhered to the requirements of Section 33(3) of the Industrial Disputes Act, 1947. As this was not done in the present case, the dismissal order issued by the petitioner is deemed invalid and in violation of the provisions of the Industrial Disputes Act , 1947

66. Accordingly, it is held that the learned Tribunal rightly adjudicated the complaint made by the respondents under Section 33 and 33A of the ID Act. Thus, the issue no. i is decided in favour of the respondents.

Issue ii - Whether the complaint made under Section 33A of the ID Act ought to be signed and verified by all parties?

67. Having adjudicated the first issue, this Court now deems it appropriate to deal with the issue of alleged non-espousal of the claim by all the workmen.

68. The petitioner has raised an objection that the complaint filed under Section 33A of the ID Act is akin to a plaint which ought to have been Signature Not Verified W.P. (C) 1376/2024 Page 54 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 compulsorily signed, verified and pursued by all the crew members/workmen and not just by the respondents. Reference in this regard is made to the judgment of the Hon'ble Supreme Court in the case of Shankar Chakravarti versus Britannia Biscuit Co. Ltd. & Another6

69. However, it is pertinent to mention here that the judgment in Shankar Chakravarti (supra), in its observation portion, refers to Section 33 of the ID Act, which is an application filed by an employer whereas the impugned award is concerned with an application filed by the employees under Section 33A of the ID Act. The relevant paragraphs are reproduced hereinbelow :

70. The above cited extract makes it clear that the Labour Courts and Industrial Tribunals act as a quasi judicial body when dealing with disputes referred to them under Section 10 or Section 33 of the ID Act and therefore, exercise judicial powers vested in them by the state, meaning they handle disputes between parties in a manner similar to traditional courts.

71. Qua the said issue, the learned Tribunal noted that the representatives of the said employees had been given the authority to file the complaint on their behalf. In order to substantiate the said claim, the learned Tribunal had relied upon the authority letter of the same.

72. Furthermore, the learned Tribunal also discussed the issue regarding espousal of the dispute and held that since the said provision does not have mandated procedure, the joint complaint application and letter in form F suffice to constitute the issue as a joint issue and filed by the complainant on behalf of all the aggrieved employees.

73. It is no doubt that the Section 10 of the ID Act mandates the proper espousal of the dispute, however, the mandate in the said provision is limited to the espousal of industrial dispute and the provision is silent on the aspect of complaint under Section 33 of the ID Act.

74. Hence, in absence of any clear rule or procedure for filing the application under section 33A of the ID Act individually by the aggrieved persons, this Court finds no merit in the argument that such decision of the learned Tribunal was contrary to law and therefore, the complaint filed by the representative of the employees is legally tenable.

75. Accordingly, the issue no. ii is decided in favour of the respondents.

Issue iii - Whether the learned Tribunal was right in concluding that there was a contravention of Section 25G and 25F of the ID Act?

76. Now coming to the last issue, the learned Tribunal held that the petitioner had contravened Section 25F and 25G of the ID Act when they retrenched the workmen without complying with the mandate under the ID Act , however, it is the contention of petitioner that the workmen fall into exception as contemplated by Section 2 (oo) of the ID Act.

77. The relevant part of the said provision is as under:

No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--

(a) the workman has been given one month‟s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].

25G. Procedure for retrenchment.--Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of Signature Not Verified W.P. (C) 1376/2024 Page 59 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."

78. The plain reading of the said provision makes it clear that the Section 25F states that before retrenching a workman with at least one year of continuous service, the employer must provide one month's notice or pay in lieu of notice, pay compensation, and notify the government. When deciding which workman to retrench, the employer should generally retrench the last person hired within the relevant category unless a different order is justified with recorded reasons.

79. It is the contention of petitioner that the respondents were appointed on a fixed term contract and its termination as per stipulation contained in the contract is an exception to the definition of retrenchment under Section 2(oo)(bb) of the ID Act. Thus, the petitioner was not obligated to comply with Sections 25F and 25G of the ID Act.

80. The term „retrenchment‟ leaves no manner of doubt that the termination of the workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action are being termed as retrenchment with certain exceptions and it is not dependent upon the nature of employment and the procedure, pursuant to which the workman has entered into service. In continuation thereof, the condition precedent for retrenchment has been defined under Section 25F of the ID Act which postulates that the workman employed in any industry, who has been in Signature Not Verified W.P. (C) 1376/2024 Page 60 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 continuous service for not less than one year, can be retrenched by the employer after clauses (a) and (b) of Section 25F have been complied with. As per the judicial dictum, compliance with both the clauses (a) and

(b) of Section 25F have been held to be mandatory and its non- observance is held to be void ab initio bad. The relevant part of the said provision is as under:

Explanation.--For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which--

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, 15 earned in the previous years;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.]"

81. Therefore, this Court is of the view that the scheme of the ID Act contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination, and if the employer wants to terminate the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of Section 25F of the ID Act, and to its non-observance held the termination to be void ab initio bad, and so far as the consequential effect of non- observance of the provisions of Section 25F and 25G of ID Act, may lead to grant of relief of reinstatement with full back wages and continuity of service in favour of retrenched workman.

82. In Devinder Singh v. Municipal Council, Sanaur7it was held by the Hon‟ble Supreme Court held that the definition of the workman also 7 (2011) 6 SCC 584 Signature Not Verified W.P. (C) 1376/2024 Page 62 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 does not make any distinction between full time and part time employee or a person appointed on contract basis, and if the mandatory requirements of the ID Act are violated, it would amount to retrenchment under the meaning of Section 2(oo) of the Act. The relevant portion of the said judgment reads as under:-

Central Government Industrial Tribunal-cum-Labour Court ( 1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Dass (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619.

21 In Anoop Sharma v. Executive Engineer, Public Health Division, Haryana (supra), the Court considered the effect of violation of Section 25F , referred to various precedents on the subject and held Signature Not Verified W.P. (C) 1376/2024 Page 65 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 the termination of service of a workman without complying with the mandatory provisions contained in Section 25-F (a) and (b) should ordinarily result in his reinstatement.

22. We may now advert to the impugned order. A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of time. In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. K.S. Radhakrishnan AIR (1964) SC 477, Swaran Singh v. State of Punjab ( 1976) 2 SCC 868 P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar ( 2001) 2 SCC 54, Surya Dev Rai v. Ram Chander Rai ( 2003) 6 SCC 675 and Shalini Shyam v. Rajendra Shankar Path (2010) 8 SCC 329."

83. Upon perusal, it is made out that Section 2(s) of the Industrial Disputes Act provides an exhaustive definition of the term "workman,"

84. On the criteria of determining workman status, the above cited extract makes it clear that the method of employment, terms of the contract, wage amounts, or mode of payment are irrelevant in Signature Not Verified W.P. (C) 1376/2024 Page 66 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 determining whether a person qualifies as a workman. The Act does not differentiate between full-time, part-time, contractual, or temporary employees. What matters is whether the person is employed in an industry for hire or reward to perform specific types of work. This broad interpretation ensures that various forms of employment, including casual or part-time work, fall under the protection of the Act.

85. Furthermore, the Courts of the country have consistently held that even workers engaged in simple tasks, such as bidi rollers or tailors, are considered workmen under the law. The key factor is the employer- employee relationship, which is established through control, supervision, and payment for services. The Hon‟ble Supreme Court has ruled in several cases that daily-rated workers and other similar employees are entitled to protections under the Act, such as those provided by Section 25F , which governs retrenchment.

86. Given the established law, this Court cannot agree with contention of petitioner that non-compliance with Section 25G and 25F of the ID Act was legal. This Court is of the considered view that the respondents having completed the continuous service of varying periods from 14 to 15 years, the mandatory provision of Section 25F and Section 25G of the ID Act should have been complied with by the petitioner management.

87. In view of the same, this Court finds no perversity in the findings of the learned Tribunal regarding the instant issue.

88. Accordingly, issue no. iii is decided in favour of the respondents.

89. The scope of intervention of the Court in an award passed by the Labour Courts/Industrial Tribunals under its writ jurisdiction is very limited and the same can only be done if the Court below has erred in law. It is well settled that the writ Court cannot get into the facts of the case and need to appreciate the findings made by the learned Tribunal in this regard.

90. In the instant case, the learned Tribunal adjudicated the complaint filed by the respondents on the aspect of alleged illegal termination. While dealing with various issues, the learned Tribunal held that the petitioner entity violated Section 33 of the ID Act and therefore, the termination cannot be held to be legal in the eyes of law.

91. As per the discussion in the foregoing paragraphs, this Court finds deems it appropriate to state that the petitioner, at this stage, cannot be permitted to take a view contradictory to the view taken by it before the learned Tribunal.

92. It is observed by this Court that the learned Tribunal has provided a detailed discussion in the impugned award which is based on the testimony and evidence presented before it. The reasoning in the impugned award evidently shows that the same is in accordance with the law and there is no infirmity in arriving at the said finding.

93. This Court has given a detailed scrutiny to the findings of the learned Tribunal and it is held that the contention of the petitioner management that the learned Tribunal erred in adjudicating the issue of Signature Not Verified W.P. (C) 1376/2024 Page 68 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29 maintainability of complaint, espousal and violation of conditions for dismissal does not hold any ground and therefore, the same cannot be accepted in any manner.

94. Taking into consideration the aforesaid, it is held that the petitioner management has failed to make out a case to show that the learned Tribunal has acted in an arbitrary manner or in contravention to the law.

95. In view of the aforesaid facts and circumstances as well as the discussions on law, this Court does not find any error or illegality in the impugned award dated 3rd July, 2023 passed by the learned Central Government Industrial Tribunal cum Labour Court-II, New Delhi in case bearing I.D. no. 21/2021, and the same is hereby upheld.

96. Accordingly, the instant petition stands dismissed along with the pending applications, if any.

97. The judgment be uploaded on the website forthwith.

(CHANDRA DHARI SINGH) JUDGE AUGUST 6, 2024 gs/av/ryp Signature Not Verified W.P. (C) 1376/2024 Page 69 of 69 Digitally Signed By:DAMINI YADAV Signing Date:13.08.2024 18:58:29