STATE TRANSPORT EMPLOYEES FEDERATION Vs. STATE OF ORISSA

JUDGEMENT

(1.) AN order of the State Government dated 12. 9. 1989 prohibiting the continuance of a strike in the exercise of powers under Sub-section (3) of Section 10 of Industrial Disputes Act, 1947, which has been annexed as Annexure-4 is being assailed in this writ application. During the pendency of the writ application, notwithstanding the prohibitory order under Annexure-4, the workers not having joined the services, the management issued orders of dismissal of some of the employees, whereafter one such order of dismissal dated 23. 9. 1989, annexed as Annexure-5, passed against Sri Narasingha Tripathy has been challenged in this writ application by way of amendment.

(2.) THE petitioner's case, briefly stated, is that the petitioner is a registered trade union and has issued a strike notice to the Orissa State Road Transport Corporation (opposite party No. 4) on 21. 8. 1989 making a charter of demands on 16 heads. A conciliation proceeding was initiated but the same ended in failure and a failure report was submitted under Sub-section (4) of Section 12 of the Industrial Disputes Act (hereinafter referred to as the "act") on 11. 9. 1989. The failure report has been annexed as Annexure-2. The State Government thereafter made a reference in respect of 3 demands by the order dated 12. 9. 1989 which has been annexed as Annexure 3. Having made a reference in respect of 3 demands out of the 16, the State Government also issued the prohibitory order under Sub-section (3) of Section 10 prohibiting continuance of the strike on 12. 9. 1989, which has been annexed as Annexure-4. The petitioner asserts that the employees had commenced their strike on 12. 9. 1989 and the order of the State Government, making a reference with respect to 3 of their demands as well as prohibiting continuance of strike was served on it on 13. 9. 1989 Notwithstanding the said order of prohibition. The employees continued their strike and the management dismissed some of the employees on the ground that they had misconducted themselves in continuing and inciting the strike notwithstanding the prohibitory order and it was also stated that in the prevailing situation it was not possible for the employer, to make an elaborate inquiry and the employer, therefore, had dispensed with the same in exercise of their power tinder Regulation 146 of the Orissa State Road Transport Corporation Employees (Classification, Recruitment and Conditions of Services) Regulations, 1978 (hereinafter referred to as the "regulations") framed by the Corporation. The petitioner approached this Court on 14. 9. 1989 and as the order of dismissal was passed during the pendency of the writ application, the petitioner by way of amendment challenged the legality of the order of dismissal in respect of one of the employees. Further while this writ petition was pending the State Government by order dated 5. 10. 1989 referred one more dispute to the Industrial Tribunal for adjudication out of the balance 13 demands, which has been annexed as Annexures-6 and 7.

(3.) MR. Palit, the learned counsel appearing for the petitioner, contends that out of 16 demands made by the employees the State Government having made a reference in respect of only three of them was incompetent to pass a prohibitory order in exercise of its power under Sub-section (3) of Section 10 of the Act and, therefore, the order under Annexure-4 must be held to be without jurisdiction. In assailing the order of dismissal, Mr. Palit argues that since the order of dismissal is based solely on the ground of continuance of strike notwithstanding the prohibitory order, if the prohibitory order is held to be without jurisdiction, the order of dismissal must be set aside since it has no independent legs to stand upon. The learned Advocate General appearing on behalf of the Corporation, on the other hand, contends that some of the disputes having been referred to the Tribunal for adjudication in the eye of law it must be held that the appropriate authority has refused to refer the other disputes and, therefore, it could exercise its power under Sub-section (3) of Section 10 of the Act. So far as the order of dismissal is concerned, the learned Advocate General argues that the order that has been communicated to the employee does not contain the grounds of dismissal, but merely it contains the reasons as to why elaborate enquiry has been dispensed with in exercise of powers under the Regulations. Since the Corporation has filed an application under Section 33 (2) (b) of the Act for approval and that matter is pending adjudication before the labour authorities the legality of the order of dismissal cannot be decided by this Court in exercise of its jurisdiction under Article 226 of the Constitution. The rival contentions require careful examination of the provisions of the Industrial Disputes Act as well as the Regulations.