Substitution is permissible in a proceeding under Section 33C(2) of the Industrial Disputes Act, 1947, in case of death of workman or employer.

JUDGMENT :

A. Pasayat, J. - A short, but interesting question has been raised in this case. Whether on the death of an employer, there is scope for substitution of his legal heirs, in aproceeding u/s 33C(2) of Industrial Disputes Act, 1947 (in short, the 'Act') is that question.

2. A brief reference to the factual aspects is necessary for clearing the deck relating to the legal position. One B.C. Mohanty (hereinafter referred to as the 'employer') was the lessee under State Government. In respect of chromite mine at Sukinda, and he was proprietor of his business concern. On account of advanced age, he sought for permission from the State Government to transfer the lease. Such permission was granted on October 30, 1980, On April 27, 1981 a transfer deed was executed, and the concern was taken over by a company incorporated under the Companies Act, 1956 styled as M/s. E.G. Mohanty and Co.Ltd. with effect from April 28, 1981. An application u/s 33C(2) of the Act was filed by the petitioner on April 28, 1981 before the Labour Court, Bhubaneswar. During its pendency, employer died on November 4, 1983. An application was filed by petitioner for substituting his legal heirs, which was rejected by the Labour Court on the ground that on the death of employer the proceeding abated, and there was no scope for any substitution as provisions of Code of Civil Procedure, 1908 (in short, 'CPC') were not applicable to aproceeding under Sec.33C(2) of the Act. Reliance was placed on a decision of this Court in Haramani Naik and Ors. v. Management, Samaj and another 46 (1978) CLT 283 where a Division Bench of this Court while dealing with the question v "ether on the death of worker, the proceeding abate" held in the affirmative. It was held that same analogy can be applied in case of employer.

3. Mr. A. Mukherjee, learned counsel for petitioner submits that analogy accepted by the Labour Court is not in accordance with law, equity and fair play. Though application of CPC to a proceeding under the Act is to a limited extent, procedure which would further ends of justice can be adopted, as there would be no repugnancy. With reference to Sub-Sec. (8) of Section 10 of the Act introduced by Act 45 of 1982 it is submitted that a proceeding before the Labour Court, Criminal Court, National Tribunal in relation to an industrial dispute, does not lapse merely on the reason of death of party, being a workman. Reference is also made to Section 18 of the Act which deals with persons on whom settlement and awards arc prescribed to be binding. Mr. S.P, Misra, learned counsel for opp. parties 1 and 2 however, submits that position is different so far as 'employer' is concerned. According to him had it been legislative intent, Sub-section (6) of Section 10 would have provided for both the workman and employer, and not workman alone.

4. It is necessary to take note of view expressed by apex Court in Rameshwar Manjhi (Deceased) through his son Lakhiram Manjhi Vs. Managemenmt of Sangramgarh Colliery and others. It was observed that on the death of a workman, liis heirs and legal representatives can continue the reference or an application under Sec.33C(2) of the Act, before the Tribunal/Labour Court. Even when the reference is of an individual dispute under Sec.24 of me Act, on the death of workman the Tribunal does not become functus officio, and the reference does not abate merely because pending adjudication the workman concerned died. It is open to the heirs and legal representative of the deceased workman to have the matter agitated and decided. Decision of this Court in Haramani Naik's case (supra) was specifically overruled, being not in the line with the view expressed by apex Court. The scope of adjudication by the Tribunal under the Act is wider than determination of legal rights of parties involved of redressing grievance of an aggrieved workman in accordance with law. Adjudication by the Act is only an alternative form of settlement of industrial disputes