Dismissal during pendency of industrial proceedings without Section 33(2)(b) approval renders it inoperative; workman deemed continuing in service with automatic reinstatement and adjusted back wages.

JUDGMENT:

1. Since both the present writ petitions arise out of a common Award, involve identical questions of law, and arise from the same factual background, it is considered appropriate to hear and decide them together. Accordingly, both the petitions are being disposed of by this common judgment.

2. Writ Petition No.15252 of 2024 has been instituted under Articles 226 and 227 of the Constitution of India by the petitioner- workman, challenging the Award dated 18 January 2024 passed by the Industrial Court, Thane in Complaint (IT) No.1 of 2014, insofar as the Tribunal declined the relief of reinstatement with full back wages. On the other hand, Writ Petition No.8711 of 2024 has been preferred by the petitioner-company assailing the very same Award to the extent the Industrial Court recorded a finding that the termination of workman had taken place during the pendency of References and, therefore, amounted to breach of Section 33(2) (b) of the Industrial Disputes Act, 1947.

3. The facts giving rise to the present proceedings, as pleaded by the petitioner-workman, may now be noticed. A charge-sheet dated 12 October 2012 came to be issued against the petitioner alleging misconduct under Standing Order Nos.31(I), (III), (VIII), (XI), (XXXIV), (XL), (XLIII) and (XIII) of the Certified Standing Orders applicable to the establishment. The charges were thus founded upon alleged acts of misconduct recognised under the service conditions governing the parties.

4. Pursuant to the said charge-sheet, a domestic enquiry was initiated against the petitioner-workman. The Enquiry Officer, upon conclusion of the proceedings, submitted his report together with final findings dated 31 July 2014, holding the petitioner guilty of the charges levelled against him. A copy of the said report and findings was thereafter forwarded to the petitioner under communication dated 6 October 2014. In response thereto, the petitioner submitted an apology letter on or about 16 October 2014. It is further the case of the petitioner that the recognised Union also addressed a representation to the respondent-company requesting that a sympathetic view be taken of the apology tendered by the petitioner. By a separate letter dated 16 October 2014, the Union requested the management to extend to the petitioner the same treatment as had allegedly been extended to thirteen similarly situated workmen.

5. It is the further case on record that an industrial dispute was then pending between the respondent-company and Vishwakalyan Kamgar Sanghatana, the recognised Union. During the subsistence of such dispute, the respondent and the Union entered into a Memorandum of Understanding dated 14 August 2014 pursuant to negotiations concerning suspension of eighteen workmen whose enquiries were pending. Under the terms of the said Memorandum, it was agreed that thirteen out of the eighteen workmen would be taken back in service subject to acceptance of charges, submission of written apology, undertaking for good conduct and compliance with the terms of settlement. It was also agreed that selection of those thirteen workmen would remain within the discretion of the management, whereas the disciplinary proceedings against the remaining five workmen would continue. The petitioner was one amongst those five workmen whose enquiry was not broug