KAMESHWAR RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN all these writ petitions, the challenge is directed against the award in Reference Case nos. 5/1993 and 77/1994 on the file of the labour Court, Patna. The issues referred for adjudication in both the cases are whether the termination of the workers named therein by the bihar State Scheduled Caste Corporation Ltd. ('the Corporation', for brevity), a Corporation registered under the Bihar Co-operative societies Act, 1935 ('the Act', in short) is valid or not and whether they should be reinstated in service and given compensation. The references were made under Section 10 (1 ) (c) of the Industrial Disputes Act (for short, 'the I. D. Act' ). The workers were appointed by the executive Officer/administrator on a temporary basis. Their services were terminated after the continuous service of one year and in that year, they had worked for more than 240 days. All the workers involved in the dispute were appointed in 1990-91 purely on temporary basis. Their services were not confirmed despite their request since, according to the respondent, they were employed in violation of the circular (No. 526 dated February 9, 1989) issued by the department of Co-operative, Government of bihar. As per the above notification, a selection committee, headed by the members of the board of Revenue, was constituted for selection and appointment to be made in any of the co-operative societies. That appointments, though made purely on temporary basis, were violative of the provisions of the Act and the circular. Therefore, the appointments were invalid. Some of the workers challenged their termination of services by filing C. W. J. C. No. 3773/1991, which was dismissed as withdrawn. Some other workers filed another writ petition, which was dismissed on merit by a Division bench of this Court (See 1992 (2) PLJR 568)holding that the appointments were made without authority and thus there is violation of articles 14 and 16 of the Constitution of India and Section 66 of the Societies Act. Section 66-B of the Societies Act, as inserted by the amendment Act 5 of 1989, reads as follows:

(2.) ONE of the contentions raised by the workmen is that the termination of their service is in violation of the provisions of Section 33 of the I. D. Act and, therefore, they are entitled to full back wages since their services were not terminated. In the written statement (See annexure-6 attached to the supplementary affidavit filed by the workman in C. W. J. C. 1754/1996 and Annexures 10 and 11), it is stated that though the workmen were appointed only temporarily, they had filed representations to the authorities concerned for making their service permanent. The Deputy Labour commissioner issued several notices regarding the dispute for confirmation of services. It was contended that the questions regarding the termination of their services and the confirmation of their services are pending conciliation. Even though this point was raised in the written statement, from a perusal of the award, it could be seen that the above questions were not seriously argued or considered by the labour Court in the award. Since that question is raised before us also, we shall consider the same.

(3.) SECTION 33 of the I. D. Act deals with the conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings. Section 33 (1) (a)deals with change of conditions in any manner connected with the dispute and Section 33 (l) (b)deals with misconduct connected with the dispute, discharge or punishment, for which permission is required. The services of the workmen were terminated only on the ground that their initial appointments were illegal and, therefore, Section 33 (1) (a) is not applicable as it is not a change in conditions connected with the dispute. Admittedly, the services of the workmen were not terminated for any misconduct. Therefore, Section 33 (l) (b) also does not, apply in their case. Section 33 (2) (a) is also regarding the change of conditions of service and 33 (2) (b) deals with dismissal or discharge for any misconduct for which, approval is necessary. The rest of the provisions under Section 33 deal with protected workers and the workmen are not claiming the said benefit. We have seen that the termination of services on ground that initial appointment itself was illegal will not come under Section 33 (l)or 33 (2) of the I. D. Act. Aiming that it will come under Section 33 (1) or 33 (2), and permission or approval, as the case may be, of the concerned authority is necessary for discharge or termination of service, the effect of violation of the same is provided in Section 33-A. The effect of filing of the complaint is that such complaint would be deemed as an industrial dispute and the same, would be adjudicated by the authority. The Supreme court, in Automobile Products of India Ltd. v. Ruktnaji Bala AIR 1955 SC 258 : 1955-1-LLJ-346, observed as follows at p. 351 of LLJ: