JUDGMENT :

Saumitra Dayal Singh, J.

Civil Misc. Substitution Application No. 6 of 2020

Heard counsel. No objection received. Substitution application is allowed.

2. Let legal representatives of respondent No. 5, as described in paragraph-2 of the application be substituted during the day.

Order on petition

3. Heard Sri Shakti Swaroop Nigam learned Senior Counsel assisted by Sri Karshit Nigam learned counsel for the petitioner, Sri Abhishek Mishra learned counsel for respondent No. 4 and legal representatives of respondent No. 5 (since deceased) and learned Standing Counsel for the State.

4. Present writ petition has been filed by the employer against the order dated 18.12.2019 passed by the Presiding Officer, Labour Court, Gautam Budh Nagar in Miscellaneous Case No. 20 of 2018 (Nand Kishore and another v. M/s. Eveready Industries India Ltd.). By that order, overtly passed with reference to powers vested in the Labour Court under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Central Act') that is pari materia to the powers vested in the Labour Court under Section 6-H (2) of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the State Act'), the Labour Court has provided for payment of full wages to the respondent Nos. 4 and 5, from the date of their disengagement i.e. with effect from 9.6.2017 and 9.10.2017, respectively.

5. In short, undisputedly, respondent Nos. 4 and 5 were permanent workmen at the petitioner establishment. At the relevant time, those respondents were posted as Technician/Operators. With respect to a Charter-of-demand, raised by Dheeraj Prasad, Mukesh Kumar, Gopal Mishra, Ramphal Singh (respondent No. 5) since deceased and Nand Kishore (respondent No. 4) objecting to engagement of contractual workmen and to artificially close down the unit at Gautam Budh Nagar, Conciliation Proceeding/Case No. 01 of 2017 was instituted before the Conciliation Officer, Gautam Budh Nagar, on 2.3.2017. On that, notices were issued to the petitioner on 8.3.2017. The petitioner submitted its reply thereto, dated 4.5.2017. Admittedly, while that Conciliation Proceeding/Case became pending, the petitioner chose to dispense with the services of respondent Nos. 4 and 5 with effect from 9.6.2017 and 9.10.2017, respectively, without prior or any permission of the Conciliation Officer. Subsequently, on 13.3.2020, the petitioner sought ex post facto permission of the Conciliation Officer. That was rejected by order dated 17.1.2022. It is engaging the attention of the Court in another writ petition being Writ-C No. 7304 of 2022 (to be decided by a separate order of date). It is the petitioner's case that disciplinary proceedings initiated against the respondents-workmen were pending from before and that those proceedings were concluded in accordance with law, after due notice and enquiry. Also, it has been asserted, the Conciliation Case did not arise at the instance of any Union. The respondents-workmen were not 'protected workmen'.

6. Learned Senior Counsel for the petitioner submits, in the first place the Labour Court had no jurisdiction to entertain the application filed with reference to Section 33-C of the Central Act. Sections 33-C of the Central Act and 6-H of the State Act do not contemplate such proceedings. Second, the only remedy available to the workman in such situation, if at all, was to seek a reference under Section 4-K of the State Act. Such reference has been made, vide order dated 21.6.2018 (in the case of respondent No. 4). Third, there was no adjudication proceeding pending before the Industrial Tribunal or the Labour Court and qua the proceedings claimed pending in Conciliation Case No. 01 of 2017 before the Conciliation Officer, remedy was not available to the respondent under Section 6-F of the State Act. Thus, inherent lack of jurisdiction and illegality has been set up.

7. On the other hand, learned counsel for the respondents-workmen would submit that the petitio