I T C LTD Vs. GOVERNMENT OF KARNATAKA

JUDGEMENT

(1.) In these two writ petitions presented by the I.T.C. Ltd., Bangalore, the following important question of law arises for consideration: Whether during the pendency of proceedings under Section 33 (2) (b) of the Industrial Disputes Act ('the Act' for short) pursuant to the application preferred by the management of an industry seeking the approval of the Labour Court or the Tribunal, as the case may be, to the dismissal of a workman, the Government has the power under sub-section (1) of section 10 of the Act refer the same dispute for industrial adjudication?

(2.) The facts of the case, in brief, are as fol- lows:- (i) In W.P.No. 31400/81: The petitioner instituted disciplinary proceedings against number of workmen on certain serious charges of misconduct. Domestic Inquiry was held against each of the workmen. The Inquiry Officer found them guilty of the charge levelled against them. The petitioner, accepted the findings and imposed penalty of dismissal, on various dates. The number of workmen so dismissed, who are concerned in this petition are 42. Ten out of 42 workmen were dismissed on 18-3-1980. One of them was dismissed on 14-3-1980. The rest of the 31 workmen were dismissed from service by orders made in December 1980. Some of these orders were made on 3-12-1980 and others on 18-12-1980. At the time when the orders of dismissal were made against 31 out of 42 workmen in December 1980, an industrial dispute was pending before the Labour Court, Bangalore. As these 31 workmen were connected with the said dispute, the petitioner made applications before the Labour Court, Bangalore, under section 33 (2) (b) of the Act seeking its approval to the orders of dismissal, as it is a mandatory requirement of section 33 (2) (b) of the Act. The applications were made on the same date on which the orders of dismissal were made. When these proceedings were pending before the Labour Court, the State Government by its. order dated 5-11-1981 referred the dispute concerning the dismissal of all the 42 workmen for industrial adjudication under section 10 (1) of the Act to the Labour Court, Bangalore. The said order, which is produced as Annexure-E to the petition, reads:- Now therefore, in exercise of the powers conferred by clause (C) of sub section (1) of Section 10 of the Industrial Disputes Act, 1947 (Central Act No. 14 of 1947), the Government of Karnataka hereby refer the said dispute for adjudication to the Labour Court at Bangalore. POINTS FOR DISPUTE I. Is the management of I.T.C. Limited, Bangalore justified in dismissing the workers with effect from the dates noted against their names as shown in the Annexure appended to this Government Order? II. If not, to what relief (s) the said workmen are entitled." Immediately thereafter this writ petition was presented on 7-12-1981 questioning the competency of the State Government to refer the dispute in so far it relates to the 31 workmen, when proceedings under section 33 (2) (b) of the Act was also pending before the Labour Court. (ii) In W.P.No. 37689/82: The petitioner in this writ petition is.also I.T.C. Ltd., Bangalore. The petitioner instituted disciplinary proceedings against 11 of its workmen also on certain serious charges of misconduct. Domestic Inquiry was held against each of the 11 workmen. The Inquiry Officer, who held the Domestic Inquiry, recording a finding to the effect that the charges levelled against each of them were established. The petitioner accepted the findings and imposed the penalty of dismissal from service by its order dated 3.12.1980. As on the said date, an industrial dispute was pending before the Labour Court, Bangalore, with which the aforesaid 11 workmen were connected, the petitioner made an application before the Labour Court on the same date on which the order of dismissal were made seeking its approval for the orders of dismissal. Even as these proceedings were pending before the Labour Court, the State Government by its order dated 26.11.1982 (Annexure-E) made the following order in exercise of its power under section 10 (1) of the Act. It reads:- Now, therefore, in exercise of the powers conferred by clause (c) of sub-section (1) of section 10 of the Industrial Disputes Act, 1947 (Central Act No. 14 of 1947) the government of Karnataka hereby refer the said dispute for adjudication to the Labour Court at Bangalore. POINTS OF DISPUTE I. Is the management of I.T.C. Limited. Bangalore justified in dismissing the following workers from service with effect from the date shown against their names.: Sriyuths: 1. Lingaraj 2. Shankarappa 3. Vasudevan 4. Chandrasekar 5. Yohan 6. Karunakaran 7. Ashokan M.S. 8. Thyagarajan 9. Irudayanadan 10. Gajarajan I1. Chandrakumar 3rd December 1980 12. Nagaraj. 13. Syed Yusuff 18th December 1980 14.Joseph 15. Prabhakar 16. Naronha 22nd December 1980 II. If not, to what relief(s) are these workmen entitled.? Immediately thereafter, this writ petition was presented by the petitioner on the 13th of October 1982 questioning the competence of the State Government to refer the dispute for adjudication even though an identical matter was pending before the Labour Court in proceedings commenced under section 33 (2) (b) of the Act.

(3.) Sri Shanti Bhushan, learned counsel for the petitioner, contended that the State Government had no competence to refer a dispute concerning the imposition of penalty of dismissal from service against a workman when an identical question was pending consideration in a proceeding commenced under section 33 (2)(b) of the Act. Elaborating the above contention, learned counsel submitted as follows:- Section 10(1) of the Act confers power on the State Government to refer an industrial dispute for adjudication to a Labour Court or the Tribunal, as the case may be, which is a general power, but in a circumstance where an industrial dispute is pending before the Labour Court or the Tribunal or Conciliation Officer, as the case may be, with which a workmen is connected, Section 33(2)(b) of the Act requires that if the management of the concerned industry were to dismiss or remove such workmen from service for misconduct, the management has to comply with three mandatory requirements, namely - (i) passing of an order after holding a due inquiry and communicating the same to the workmen concerned; (ii) payment of one month's wages to the workmen; and (iii) making an application to the Labour Court or the Tribunal or the Conciliation Officer, as the case may, seeking its approval, for the order of dismissal, simultaneously. When such an application is made to the Labour Court or the Tribunal, it has the full powers to go into the validity of the order of dismissal including the validity of the domestic inquiry and to pass final order either according approval or rejecting the application of the management. In the event of according of approval, the workmen concerned has the right to raise an industrial dispute and in view of the provisions of section 2-A read with section 10(1) of the Act, the State Government , has the power to refer such dispute for industrial adjudication. When such a dispute is referred for adjudication, it is equally well settled that the findings recorded by the Labour Court or the Tribunal, in section 33 (2)()b) proceedings do not operate as res judicata. Therefore, in respect of matters which are pending under section 33(2)(b) of the Act, the dismissal order becomes effective only in the event of the Labour Court or the Tribunal according approval'to the dismissal and, therefore, it is only thereafter, it can be said that a dispute relating to the dismissal of the workmen concerned arises which could be referred for adjudication under Section 10(1) of the Act. From this it follows, till such approval is record , there is no industrial dispute to be referred for adjudication. Even on the basis that the dispute relating to the validity of the dismissal, even at the stage of Section 33(2)(b) proceedings, is industrial dispute as defined under section 2 (k) read with section 2-A of the Act, when the Legislature has provided a special remedy in respect of cases falling under section 33(2)(b) of the Act, the special jurisdiction must prevail against the general jurisdiction conferred under section 10(1) of the Act.