IMPORTANT POINT
(1) It is well settled that in a complaint under section 32A, even if the employer is found to have contravened the provisions of section 33, the Tribunal has to pronounce upon the merits of the dispute between the parties.
(2) It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer.

K.M. THAKER, J.

Heard Mr. Chauhan, learned advocate for Mr. Munshaw, learned advocate for the petitioner and Mr. Anish learned advocate for Mr. Chari, learned advocate for the respondent.

2. In present petition the petitioner has challenged award dated 4.5.2006 passed by learned Industrial Tribunal in Complaint No. 4 of 2003 in Reference No. 28 of 2001 whereby learned Labour Court has directed the petitioner to reinstate the respondent i.e. original claimant on his original post with continuity of service.

3. So far as factual background is concerned, it has emerged from the record of present petition that present respondent invoked Section 33 of Industrial Disputes Act, 1947 (hereinafter referred to as the “I.D. Act”) and filed complaint against present petitioner with the allegation that the dispute / reference seeking regularization in service was pending and that despite pendency of the said dispute / reference the corporation illegally terminated his service without following procedure prescribed by law i.e. without seeking permission or approval from the learned Tribunal, as contemplated under Section 33 of the I.D. Act. Learned tribunal adjudicated the complaint. It appears that despite notices issued by the learned tribunal the corporation did not care to file reply and did not lead any evidence before learned tribunal. Ultimately learned tribunal was compelled to decide the complaint in absence of reply by the corporation. Learned tribunal found that during pendency of the dispute / reference the service of the complainant was terminated which amount to breach of Section 33 of the Act and that therefore the corporation's action is illegal. Having reached such conclusion learned tribunal passed award dated 4.5.2006 with abovementioned directions.

4. Mr. Chauhan, learned advocate for the petitioner could not dispute the fact that the corporation had not filed any reply before learned tribunal and / or did not lead any evidence before learned tribunal. He, however, submitted that in view of the fact that the claimant had worked with the corporation on purely adhoc and temporary basis inasmuch as for the period from 1985 to 2003 the claimant had worked only for 41 days on daily-wage basis (i.e. for 4 days in 1991, 22 days in 1994, for 3 days in 1995 and for 12 days in 1998) the direction passed by the learned tribunal are not justified and that therefore the award may be set aside. Except said submission any other submission is not urged by learned advocate for the petitioner.

5. Mr. Anish, learned advocate for the respondent did not make any submission on merits. He merely submitted that though the Court had directed the petitioner vide order dated 29.4.2010 to pay last drawn wages in accordance with Section 17B of the I.D. Act the corporation failed to pay last drawn wages in accordance with said order dated 29.4.2010 passed in Civil Application No. 1693 of 2009. He submitted that there is no error in the award. He has not raised any other submission on merits.

6. I have considered the material available on record of the petition. I have also considered the award passed by learned tribunal and whatever little submissions, as mentioned above, put forwarded by the learned advocates for the parties.

7. From the award and from the details mentioned by the claimant in his statement of claim it has emerged that the relevant facts are not in dispute. From the factual details which are recorded by the learned tribunal in the award it has emerged that :-

(a) according to his own claim in statement of claim, the claimant was engaged on casual, temporary and adhoc basis and he was not permanent employee;

(b) the claimant alongwith other workmen and through union, raised industrial dispute with the demand for regularization in service;

(c) the said demand itself established that the claimant and other workmen were not regular and permanent employees of the corporation;

(d) the said dispute was referred to adjudication by appropriate