Prosecution under Section 34 of the Industrial Disputes Act, 1947, for violation of Section 33 cannot be permitted based on an erroneous finding of admission when the applicability of the permission/approval requirements is still pending adjudication before the Labour Court.

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR THE RECORDS LEADING TO THE PASSING OF THE IMPUGNED ORDER DTD 10.10.2017, PASSED BY THE R-1 VIDE ANNX-M. QUASH THE IMPUGNED ORDER DTD 10.10.2017, PASSED BY THE R-1 VIDE ANNX-M.

THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

ORAL ORDER

Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for respondent No.1.

2. This petition is filed assailing the order dated 10.10.2017 marked at Annexure- M. In terms of the said order, respondent No.1 has allowed the application filed by respondent No.2 under Section 34 of the Industrial Disputes Act, 1947 (for short 'Act, 1947') and permitted respondent No.2 to prosecute the petitioner-Management for alleged violation of Sections 33(1)(b) and 33(2)(b) of the Act, 1947.

3. Learned counsel appearing for the petitioner would submit that respondent No.2 was dismissed from service on account of misconduct. Respondent No.2 raised a dispute under Section 10(4) of the Act, 1947 and same is pending consideration.

4. Respondent No.2 has raised a contention before the Labour Court, that while dismissing respondent No.2 from employment, mandatory requirement under Section 33(1)(b) and Section 33(2)(b) of the Act, 1947, are not followed, as such, the order of dismissal is untenable. Having raised a dispute, he has also moved an application under Section 34 of the Act, 1947, alleging violation.

5. Learned counsel appearing for the petitioner would submit that in a dispute under Section 10(4) of the Act, 1947, the petitioner before this Court, who is the second party Management in the proceeding, has raised a contention that there was no pending dispute as on the date of dismissal of respondent No.2. That being the position, the petitioner-Management took a stand that there was no need to file an application either under Section 33(1)(b) or Section 33(2)(b) of the Act, 1947.

6. It is further contented that, the matter is still pending adjudication before the Labour Court and the Labour Court has to give a finding as to whether the requirement of Sections 33(1)(b) or 33(2)(b) of the Act, 1947 have been complied or not and unless that adjudication takes place, respondent No.1 could not have permitted respondent No.2 to prosecute the petitioner .

7. It is also urged that the employer may be bonafide carrying the impression that no permission or approval is required in a given set of facts of the case, and ultimately, employer may suffer an order at the hands of the Labour Court or Tribunal which would hold that the permission or approval was required, and in that situation, the petitioner- employer cannot be penalised for carrying a bonafide impression that the case is not covered either Sections33(1)(b) or 33(2)(b) of the Act, 1947. And in such cases, the mens rea angle is missing and there cannot be any prosecution is the contention.

8. Learned Government Advocate would defend the order and would contend that respondent No.1 has taken into account all the relevant factors into consideration and since it is a requirement under law that before dismissing the employee in a case falling under Sections 33(1)(b) or 33(2)(b) of the Act, 1947, there has to be a permission or approval, as the case may be, and same has not been obtained.

9. The learned counsel appearing for respondent No.2 would submit that in the impugned order, the Authority has recorded a finding that the Management has admitted that the dispute is pending b