IMPORTANT POINT
A dispute cannot be said to be pending before an Industrial Tribunal for the purpose of proviso to Section 33(2)(b) of the Industrial Disputes Act during the period when operation of the order of reference of dispute itself remained stayed.

Headnote:Industrial Disputes Act, 1947-Section 33(2)(b)-Stay of order of reference-Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings-Seeking an approval for discharge or dismissal of a workman from service by the employer-Respondent workmen were dismissed from service on account of misconduct during the period when operation of order of reference remained stayed-Workmen filed a complaint u/s 33A of the Act complaining that they have been dismissed from service in contravention of provisions contained in Section 33(2) of the Act-Workmen claiming entitlement to be reinstated-Whether a dispute is said to be pending before an Industrial Tribunal for the purpose of proviso to Section 33(2)(b) of the Act during the period when operation of order of reference of dispute itself remained-Stayed-(No).
       Held : Under sub-section (2) of the Section 33 of the Act during pendency of proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied between him and the workman for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman, provided no such workman shall be discharged or dismissed unless he has been paid wages 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. From this provision it is clear that for seeking an approval for discharge or dismissal of a workman from service by the employer essentially proceedings in respect of an industrial dispute must be pending. In the present case the respondent-workmen 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 Government. (Paras 10 and 11)
       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 Act. (Para 17)
       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 the 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. The question set out above in the beginning of this judgment is answered in the negative. (Paras 19 and 20)

Judgement Key Points

Key Points: - The judgment holds that while the operation of an industrial reference order is stayed, no industrial dispute is considered pending for the purposes of Section 33(2)(b) of the Act. (!) - As a consequence, the dismissal of workmen on 31 March 1999 did not contravene Section 33(2)(b) because proceedings were not pending at that time. (!) (!) - The preliminary objection to the Section 33A complaint is upheld, and the complaint is dismissed as not maintainable. (!) (!) - An employer cannot seek or obtain approval for a disciplinary action under Section 33(2) while the stay of the reference order remains operative, as the stay acts as a threshold bar. (!) - The stay does not invalidate the reference order itself; it merely suspends its operation until the stay is lifted on 12 April 1999, after which the dispute becomes pending. (!) (!)

What is the effect of a stay on the operation of an industrial reference order on determining whether a dispute is pending before an Industrial Tribunal for the purpose of proviso to Section 33(2)(b) of the Industrial Disputes Act?

What is the implication of that stay for an employer’s power to discharge a workman under Section 33(2)(b)?

JUDGMENT

Shivaraj V. Patil, J.-Leave granted.

2. The short and straight question, which arises for consideration is "whether a dispute is said to be pending before an Industrial Tribunal for the purpose of proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short `the Act ) during the period when operation of the order of reference of dispute itself remained stayed."

3. In each one of these appeals appellant No. 1 is a company and appellant No. 2 is one of its shareholders. The BPL Group of Companies Karmikara Sangha (Union) had raised certain disputes on behalf of the workmen of the appellant companies. On failure of conciliation the disputes came to be referred by the Government for adjudication to the Industrial Tribunal, Bangalore (for short the Tribunal ). By order dated 26.2.1999 the aforesaid union, not being fully satisfied with the order of reference, filed writ petition No. 7355/99 in the High Court seeking a mandamus to the State Government for referring some more points/disputes raised by them. A learned single Judge of the High Court on 11.3.1999, at the stage of issuing notice for admission, passed the interim order in the following terms :-

"The operation of the order dated 26.2.1999 bearing No. KAE 117 KA Ky VI 99 & No. KAE-117, KA KY VI 99 passed by R-1 (Annexure `A and `B to the writ petition respectively) be and the same is hereby stayed for a period of two weeks from 11.3.1999."

4. During the course of hearing the learned counsel for the parties submitted that this interim order, having been continued, was in operation till the writ petition was finally disposed of on 12.4.1999. During the pendency of the said writ petition the workmen were dismissed from the service on 31.3.1999 on the ground of serious misconduct. The aggrieved workmen (respondents herein) filed a complaint under Section 33A of the Act before the Tribunal complaining that they have been dismissed from service in contravention of the provisions contained in Section 33(2) of the Act and, therefore, they were entitled to be reinstated. The Management of the appellant companies resisted the complaint raising a preliminary objection to the effect that the orders of dismissal were passed during the period when the order of stay passed by the learned single Judge in the aforesaid writ petition No. 7355/99 was in operation and as such there was no violation of Section 33(2)(b) of the Act. It was urged that when the appellant companies took action in accordance with law no proceedings were pending before the Tribunal as the operation of the very order of reference had been stayed by the High Court. The Tribunal, by its order dated 19.5.2000, rejected the preliminary objection. The appellant companies filed writ petition Nos. 28377-28378, 28446-28450, 28452 and 28454-28458 of 2001 challenging the correctness and validity of the aforementioned order of the Tribunal rejecting the preliminary objection. The learned single Judge of the High Court dismissed the writ petitions upholding the view taken by the Tribunal. Aggrieved by and not satisfied with the order of the learned single Judge of the High Court the appellant companies filed writ appeals before the Division Bench of the High Court. The Division Bench of the High Court, fully concurring with the conclusion arrived at by the learned single Judge, dismissed the writ appeals by the common order under challenge in these appeals.

5. Mr. R.F. Nariman, learned senior counsel in support of the appeals, urged that the High Court proceeded on a wrong footing that staying the operation of the order of reference made by the Government did not wipe out the proceedings instead of considering whether on the relevant date proceedings were pending before the Tribunal or not on account of the stay order; the learned single Judge as well as the Division Bench of the High Court did not appreciate that the Tribunal being a creature of statute derived its jurisdiction only upon an order of reference

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2004 Supreme(SC) 637

IMPORTANT POINTA dispute cannot be said to be pending before an Industrial Tribunal for the purpose of proviso to Section 33(2)(b) of the Industrial Disputes Act during the period when operation of the order of reference of dispute itself remained stayed.

What is the effect of a stay on the operation of an industrial reference order on determining whether a dispute is pending before an Industrial Tribunal for the purpose of proviso to Section 33(2)(b) of the Industrial Disputes Act?

What is the implication of that stay for an employer’s power to discharge a workman under Section 33(2)(b)?

Cases Referred (6)

IMPORTANT POINT
A dispute cannot be said to be pending before an Industrial Tribunal for the purpose of proviso to Section 33(2)(b) of the Industrial Disputes Act during the period when operation of the order of reference of dispute itself remained stayed.