HINDUSTAN AERONAUTICS LIMITED BANGALORE Vs. S ALFRED SLIM

JUDGEMENT

(1.) The short question that arises for consideration in this writ petition is whether the application filed by the worker1st respondent under Section 10(4-A) is barred by limitation. The worker was dismissed from service on 30-9-1982. An application under Section 33(2)(b) of the I.D. Act was moved by the employer-petitioner. By order dated 3-10-1985 the said application was rejected by the Industrial Tribunal. The said order was challenged by the employer by filing Writ Petition No. 2094 of 1986 which was dismissed on 28-7-1989. Against the said dismissal order Writ Appeal No. 1912 of 1989 was filed. This Court by judgment elated 9-1-1990 set aside the order of the Tribunal and also the order in Writ Petition No. 2094 of 1986 and remitted the matter for fresh disposal. On 13-6-1991 after fresh consideration permission was granted by the Industrial Tribunal under Section 33(2)(b) to dismiss the worker. The application under Section 10(4-A) of the I.D. Act was moved by the worker within six months thereof challenging the termination order. A preliminary objection was raised by the employer alleging that the application is belated and that it should be filed within six months from 30-9-1982 the date of the order of dismissal. The Labour Court by the order impugned herein has overruled the objection and has held that the application is not belated. It is the said order that is being challenged in this writ petition.

(2.) I have heard the learned Counsel Sri Gururajan on behalf of the petitioner. According to him his application is not for permission but for approval. When an approval is sought, it is with respect to an action already taken; the dismissal order, hence has in fact come into existence. Therefore the period should be reckoned from that date of dismissal and the decision on the application under Section 33(2)(b) will not save the period of limitation. He relied on a decision of this Court in I.T.C. Limited v Government of Karnataka and Others , in support of his argument. According to him even when an application under Section 33(2)(b) is pending a dispute can be raised under Section 10(l)(c) or under Section 10(4-A) as there is an industrial dispute. The contention is that since such a case be raised the application under Section 10(4-A) should be made within 6 months from the date of such a dispute and the period of limitation does not depend on Section 33(2)(b) application. This contention is obviously erroneous for the reason that the dispute though existing does not come into effect immediately on the date the dismissal is effected. Its operation is suspended temporarily in view of the requirement conforming to Section 33(2)(b). It is to be noted that if the order passed in the application under Section 33(2)(b) is against the employer then automatically the order of dismissal is not effective and the worker has to be reinstated. It means there is no industrial dispute for adjudication by the Tribunal. The learned Counsel further relied on the following passage from I.T.C. Ltd.'s case, supra, to show that the enquiry under Section 10 and Section 33(2)(b) of the I.D. Act is similar qua an order of termination.

(3.) Secondly it may be noticed that in the event the approval is sought by the employer under Section 33(2)(b) the jurisdiction of the Tribunal/Labour Court extends, upto the validity of the dismissal itself. The following passage from Bharat Sugar Mills Limited v Jai Singh and Others, will make the position clear.