JUDGMENT Markandeya Katju, C.J.
1. This Letters Patent Appeal has been filed against the impugned judgment of the learned single Judge dated 6.8.2002 by which he has dismissed WP(C) No. 2031/1996 which was filed by the appellant.
2. Heard learned counsel for the parties and perused the record.
3. The appellant (writ petitioner) was engaged in respondent No.2, Delhi Cloth Mills Limited as a stamper in their foundry department through the contractor, M/s Bhim Singh Laxman Singh. It is alleged by the appellant that he was really doing regular and permanent work of respondent No.2 and the so called engagement through a labour contractor was an eyewash in order to escape various legal requirements and benefits which were liable to be paid by the management of respondent No.2. It is alleged that he and other employees shown to have been engaged by respondent No.3 were in reality the employees of respondent No.2. The appellant and other such workmen engaged through the contractor raised an industrial dispute against the management of the mill claiming various benefits available to the employees of the mill e.g. dearness allowance etc. The said industrial dispute was registered as ID 71/75 and was pending before the Industrial Tribunal No.1, Delhi.
4. It is alleged in para 5 of the writ petition that this made the management vindictive against the workmen many of whose services were terminated including that of the appellant without any good reason.
5. Since the dispute relating to dearness allowance etc was pending before the Industrial Tribunal No.1, Delhi, when the services of the appellant were terminated, the appellant challenged the termination by filing an application under Section 33A of the Industrial Disputes Act vide Annexure I to the writ petition. The management filed its written statement vide Annexure II to the writ petition. While the application under Section 33A was pending, the management filed an application seeking rejection of the application under Section 33A on the ground that the proceedings in the main reference case i.e. ID 71/75 was invalid because of the provisions of the Contract Labour (Regulations & Abolition) Act 1970. A copy of the application of the management in this connection is Annexure IV to the writ petition and a true copy of the appellant's reply thereto is Annexure-V to the writ petition. While the said application of the management was still pending, the Tribunal gave its award in ID No. 71/75, a true copy of which is Annexure VI to the writ petition.
6. We have carefully perused the said award dated 25.1.1990 in ID No.71/75. It was held by the Industrial Tribunal that the reference in respect of the contract labour is barred by the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 and the proper forum for getting relief would be a petition to the appropriate government and the Labour Commissioner under the Contract Labour (Regulation & Abolition) Act, 1970. Hence, the Tribunal held that it had no jurisdiction to entertain and decide the dispute. The Tribunal referred to various decisions of the Supreme Court and it is not necessary for us to refer to them here.
7. Subsequently by its award dated 6.11.1995 the Tribunal rejected the application of the workman under Section 33A of the Industrial Disputes Act. The appellant filed WP(C) No. 2031/1996 which has been dismissed by the learned single Judge by the impugned judgment dated 6.8.2002.
8. Having heard learned counsel for the parties, we find no merit in this appeal.
9. An application under Section 33A is maintainable only when there is a violation of Section 33 of the Industrial Disputes Act and an application under Section 33 is only maintainable when an industrial dispute is pending before the Tribunal or the Labour Court. Pendency of a proceeding before the Labour Court or the Tribunal referred to in Section 33 of the Industrial Disputes Act means pendency of a valid proceeding before the Labour Court or the Tribunal. If the proceeding was itself not valid, in our opinion, there is no pendency of a proceeding in the eyes of law.
10. Thus, we have to see the legal aspect of the matter and not merely the factual aspect. What must be pending is a valid proceeding and not merely a factual proceeding even if invalid. We find support for the view we are taking in the decision of the Mysore High Court in Gowrishanker Oil Mills v. Industrial Tribunal and Ors., 1962 II LLJ 527, and the decision of High Court of Assam and Nagaland in The Management of Pheros & Co. P. Ltd. Bamunimaidan, Gauhati v. The Presiding Officer, labour Court, Assam and Ors. 1971 I LLJ 608. The same view was taken by the Mysore High Court in Madras Bangalore Transport Co. v. Labour Court, Bangalore and Ors., Vol. XXV FJR 244, and the Calcutta High Court in Shalimar Paints Ltd v. Third Industrial Tribunal, 1974 Lab I.C 213. We agree with these decisions.
11. We fully agree with the view taken by the learned single Judge that Section 33 of the Industrial Disputes Act is attracted only when there is a valid reference under Section 10. If there is no valid reference, the proceedings under Section 33 are also invalid, and consequently the proceedings under Section 33A also become invalid.
12. We agree with the view taken by the learned single Judge and consequently we dismiss this appeal.