Indian Smelting and Refining Co. Ltd. . vs Subhash Vishnu Patil and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 53

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
The Indian Smelting Refining Co. Ltd. ..... Petitioner.
Versus
Shri Subhash Vishnu Patil another .... Respondents.
Writ Petition No. 1996 of 1997, decided on 22-1-1998.
Advocates appeared :
P.K. Rele with Ms. Nayana Dhutiya and J.S. Balia i/by Piyush Shah, for the petitioner.
N.M. Ganguli, for respondent No. 1.

Headnote:Article 227-Industrial Disputes Act, 1947, Sections 17-A, 20, 33Complaint-Maintainability of-Order of dismissal of employer-No proceeding under Section 33-A were pending under Section 33-A were pending when contravention of Section 33 have taken place-Held-Complaint not tenable-However even if there was contravention of Section 33 adjudating the complaint, it will not render ipso facto the order of dismissal bad and of no effect-To the relief.-In the present case it is seen that foundation of making complaint by the aggrieved employee under Section 33-A of the to. Act is contravention of provisions of Section 33 by the employer during the pendency of the proceedings. It on the basis of the facts available on record it is shown that no proceedings as contemplated under Section 33-A were pending when the alleged contravention of Section 33 is said to have taken place, obviously such complaint could not proceed further. However, converse of it would not entitle the aggrieved employee to the relief because even if it is held that there was contravention of Section 33 before adjudicating the complaint the Tribunal shall be required to go into further question whether the order of discharge or dismissal passed by the employer was justified on merits. In other words, the conclusion by the Tribunal that the contravention of Section 33 took place shall not render ipso facto the order of discharge or dismissal is bad and of no effect. In 25 FJR 244, the Mysore High Court (DB) held that the words during the pendency of any such proceeding in sub-section (2) of Section 33 of the I.D. Act, 1947, have a clear reference to the proceeding referred to in sub-section (1) of the section i.e. any proceeding before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute two conditions have, therefore, to be fulfilled in order that sub- section (2) may apply. viz. (i) there must be a proceeding before one of the authorities mentioned therein in respect of an industrial dispute, and (ii) that proceeding must be pending.
Sections17-A, 20 and 33-See Constitution of India, Article 227.
Sections 33 and 33-A-Filing Of complaint under Section 33-A for dismissal of workman-Issue of pendency of valid proceeding be decided by Tribunal a preliminary issue. Where the reference proceedings are held to be invalid, incompetent or not maintainable, it would be held that there was no valid reference resultantly, it would be deemed that no proceedings were pending because what is contemplated under Section 33-A is the pendency of a valid proceeding. In that situation obviously the provisions of Section 33 would not be applicable and its consequences shall follow while considering the maintainability of the complaint under Section 33-A.

JUDGMENT - R.M. LODHA, J.:---Rule. Returnable forthwith. Mr. Ganguli waives service for respondent No. 1. Service of respondent No. 2 is dispensed with. Heard finally at this stage by consent of the learned Counsel for the parties.

2.This writ petition under Article 226 of the Constitution of India is filed by the Indian Smelting Refining Co. Ltd. (for short "the employer") aggrieved by the order dated September 3, 1997 passed by the Industrial Tribunal, Mumbai, whereby the said Tribunal rejected the application made by the employer for deciding the issues relating to maintainability of the complaint as preliminary issues.

3.The brief facts essential for the disposal of the writ petition and the contentions advanced by the learned Counsel for the parties are : Shri Subhash Vishnu Patil (for short "the workman") - the 1st respondent herein - was employed by the employer in the year 1978 as Shell Mould Cum ore Maker. The workman is an active member of a union, namely, the Association of Engineering Workers. The Association of Engineering Workers, which according to the employer, is not a recognised union, submitted a charter of demands in or about the year 1984 to the employer. The said charter of demands was referred for adjudication to the Industrial Tribunal, Mumbai, which Registered the said reference as Reference (IT) No. 204 of 1984. The employer says that before the said reference was made, there was already an existing award dated 28-4-1980 in terms of the settlement dated 19-3-1980 with the recognised union, namely, Sarva Shramik Sangh and upon the objection raised by the employer about the competence and maintainability of reference the said Reference (IT) No. 204 of 1984 was rejected as not maintainable by the Industrial Tribunal on 26-7-1988. The workman is alleged to have indulged in misconduct and accordingly he was dismissed from service by the employer vide order dated 11-8-1988. The workman filed a complaint under section 33-A of the Industrial Disputes Act, 1947 (for short "I.D. Act") on 29-12-1988 on various grounds including breach of provisions of section 33 of I.D. Act. The employer contested the said complaint by filing written statement on 9-6-1989. The employer, inter alia, raised the plea that the complaint was not maintainable since no proceedings were pending as contemplated under section 33-A at the time of passing of the order of dismissal on 1-8-1988. The concerned Industrial Tribunal framed issues on 21-6-1990 including the two issues, namely.:--

(1) Is it proved that there was an industrial dispute pending before Court on the date of order of dismissal?

and

(2) Is the complaint maintainable in view of the order passed on 26th July 1988?

It appears that proceedings continued and no substantial progress was made for number of years. On 8-2-1995, the employer made a specific application that issue No. 2 relating to the maintainability of the complaint which is purely based on uncontroverted facts and is an issue of law should be decided as preliminary issue. The said application was contested by the workman. The workman as well as the employer submitted their written arguments before the Industrial Court and by the impugned order dated 3-9-1997 the Industrial Tribunal rejected the application made by the employer for deciding the issue relating to maintainability of the complaint as preliminary issue.

4.Mr. Rele, the learned Counsel for the petitioner strenuously urged that admittedly the reference made at the instance of the Association of Engineering Workers registered as Reference (IT) No. 204 of 1984 was rejected as not maintainable by the Industrial Tribunal on 26-7-1988. The workman was dismissed on 1-8-1988 and, therefore, apparently no proceedings as contemplated under section 33-A were pending when the alleged contravention by the employer is said to have been made. He, therefore, submitted that the condition precedent for valid complaint under section 33-A was lacking and the complaint b

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