DESEIN PRIVATE LIMITED Vs. INDUSTRIAL TRIBUNAL III DELHI

JUDGEMENT

(1.) . By the impugned order dated 12th September 2002 the Industrial Tribunal dismissed the application filed by the management/petitioner for staying the proceedings initiated by respondent No.2/workman under Section 33 of the Industrial Disputes Act filed by the respondent by holding that Section 33 can not be said to be inapplicable merely because a plea was raised about the lack of competence of the original reference i.e. ID 27 of 1992.

(2.) The main plea raised by the learned senior counsel for the petitioner, Shri Vinay Bhasin, is that Section 33 of the Industrial Disputes Act (hereinafter referred to as the Act) was inapplicable on account of the plea of this invalidity of reference taken by the petitioner in the reply to the statement of claim filed by the workman in the Industrial Tribunal in the pending reference I.D. 27 of 1992. He has submitted that since as per his plea the reference made and pending was without jurisdiction and incompetent, the bar contemplated by Section 33 did not come into play. He has referred to the following position of law laid down by the learned single Judge of this Court in Chandrmani vs. Shri P.K. Jain & Others reported as 2003 FLR 351 following a judgment of the Mysore High Court in Gowrihankar Oil Mills vs. Industrial Tribunal & others. The relevant portion of the Chandramani case (supra) reads as under:

(3.) In my view the reference was held incompetent in the above decision on the basis of an adjudication resulting in an award which had been quashed or declared invalid and such a finding having attained finality. The above judgment in my view cannot support the preposition that a plea raised in reply to the statement of claim by respondent No.2 to the effect that the reference is incompetent, can bar the operation of Section 33 of the Act. In Chandrmani (supra) case it has also been observed that Section 33 (2) of the Act is not attracted if reference has been declared to be invalid and quashed. In the present case the reference No. 27/92 has neither been declared to be invalid nor quashed in any proceedings and in my view the mere raising of the plea by a party that the reference is incompetent cannot ipso facto bar the operation of Section 33 of the Act. Learned counsel for the respondent/ workman, Shri F.S. Chauhan, has submitted that there is no substantial plea of the invalidity of the reference in paragraph 3 of the reply. In any case he has stated that an application under section 33(2)(b) of the Act had been made by the petitioner in respect of another employee during the pendency of the aforesaid reference. He has by relying on the provisions of Section 33(2)(b) submitted that such an application under Section 33(2)(b) by the petitioner presupposes the pendency and existence of a valid industrial dispute and estoppes the petitioner from questioning the validity of the reference. In particular he has relied on paragrpah 12 of the judgment of Hon'ble Supreme Cout in Jaipur Zila Sahkri Bhoomi Vikas Bank Ltd. vs. Shri Gopal Sharma and others reported as 2002(92) FLR 667, which reads as under: