NAVALBHAI KARSANBHAI CHAUHAN Vs. DIGVIJAY WOOLLEN MILLS LIMITED

JUDGEMENT

(1.) In this petition under Art. 226/227 of the Constitution a short but an interesting question is posed for our consideration The question is whether a reference of industrial dispute centering round dismissal of a workman awaiting decision of approval application under sec. 33 (2)(b) of the Industrial Disputes Act 1947 (the Act for short) as taken out by the employer can be said to be premature.

(2.) A few relevant facts leading to this petition are required to be noted at the outset to appreciate the contours of the controversy posed for our consideration. The petitioner was serving as a filter in the respondent mill company since 4-8-1973. He was served with a charge sheet dated 5-12-1975 alleging that on 4-12-1975 while the petitioner was leaving the factory premises at 4-50 p.m. a search was made of the petitioner and his belongings at the middle gate by the watchman. The watchman after searching the body of the petitioner asked the petitioner to show his jersey which was folded and kept on cycle carrier. While the petitioner was unfolding the jersey two washing shop cakes fell from the jersey on the ground. On this charge the petitioner was served with a charge sheet and a departmental inquiry was conducted against him. After completion of the departmental inquiry the respondent mill company dismissed the petitioner from service by an order dated 20-8-1976. That at that time Reference (IT) No. 188 of 1976 regarding revision of wages was pending before the Industrial Tribunal. Consequently the respondent company applied to the said Tribunal for approval of its action under sec. 3312)(b) of the Act. The petitioner in the meantime had raised an industrial dispute centering round the order of his dismissal. He had approached the conciliation officer for conciliation under the provisions of the Act. As the conciliation failed the Commissioner of Labour as competent authority referred the dispute of the petitioner to the Labour Court at Rajkot for adjudication of the dispute of the petitioner about his illegal dismissal and reinstatement in service with full back wages. The said reference was made on 5-1-1977. Eight days thereafter precisely on 13-1-1977 the Tribunal before which the approval application under sec. 33(2)(b) was moved by the management granted the said approval application. Thereafter the reference as filed by the petitioner before the Labour Court for adjudication of his dispute being Reference (LCR) No. 2 of 1977 which was pending before the presiding officer second Labour Court Rajkot was taken up for adjudication. The respondent-management took up a preliminary objection to the effect that the reference itself was premature as it was made on 5-1-1977 by the competent authority while the approval application was granted on 13-1-1977 and it is on the grant of this approval that the order of dismissal came into force and consequently on the day on which the reference was made the order of dismissal was not force. Therefore there was no industrial dispute in existence on 5-1-1977 between the parties and consequently the reference as filed was premature and incompetent. It is the aforesaid preliminary objection canvassed by the respondent which was taken up for consideration by the Presiding Officer of the Labour Court who after hearing both the parties came to the conclusion that the reference as made on 5-1-1977 was premature and that the workman may raise a dispute if so advised thereafter. The said order of the presiding officer was rendered on 12-3-1979. By the said Order the reference was dismissed as premature. As stated above the aforesaid decision of the Labour Court has been brought in challenge by the dissatisfied workman by way of the present petition.

(3.) Mr. P. C. Master for the petitioner vehemently contended that under the scheme of the Aces when the order of dismissal or discharge as passed by the management is sought to be approved by the competent authority under sec. 33(2)(b) of the Act the concerned order does not lose its efficacy because the approval application is pending. If the approval application is granted the approval relates back to the date of the original order but the order remains in the field nevertheless till that approval is granted or refused. Thus pendency of the approval application under sec. 33(2)(b) does Dot nullify or wipe Out the order of dismissal or termination and that proceedings for approval under sec. 33(2)(b) do not have the same consequence as the proceedings under sec. 33(1) or 33(3) of the Act which deal with permission proceedings where the concerned orders can be passed after permissions are granted by the appropriate authority. It was therefore submitted that the Labour Court was patently in error in taking the view that the reference was premature as the dismissal order had already been passed months back in August 1976 while the Reference was made en 5-1-1977. That Reference therefore could not have been treated as premature. It was further contended that in any case under sec. 10 of the Act appropriate authority can refer a dispute not only in case an industrial dispute exists but even in cases where it is apprehended between the parties. It was also contended that looking to the broad definition of industrial dispute even proposed order of dismissal would be covered even assuming that it is merely a proposed order. It was lastly submitted that in any case on the day on which the Labour Court dismissed the Reference as premature on 12-3-1979 the approval application had stood granted already and more than two years had passed since then. Consequently Labour Court has taken too narrow a view of the existing situation. That the Reference as made was at the highest premature only for eight days from 5-1-1977 to 13-1-1977 but atlast from 13-1-1977 when the approval application was granted though conditionally by the Tribunal the Reference would not be premature and thereafter the Labour Court could not have rejected it as premature.