Sh. Nandji vs M/S Renutrol Limited
2010 Latest Caselaw 1373 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) 2166/2004

%                                        Date of decision: 12th March, 2010

SH. NANDJI                                              ..... PETITIONER
                              Through: Mr. S.K. Anand, Advocate

                                      Versus

M/S RENUTROL LIMITED                                   ..... RESPONDENT
                              Through: Mr. Gulshan Chawla, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?               Yes

2.       To be referred to the reporter or not?              Yes

3.       Whether the judgment should be reported             Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner workman impugns the order dated 4th March, 2003 of

the Industrial Tribunal dismissing the complaint of the petitioner against

the respondent employer under Section 33A of the I.D. Act. The petitioner

in the complaint stated that the respondent employer, during the pendency

of industrial dispute No.76/1991 & industrial dispute No.77/1991, with the

following reference:-

"Whether there was a lock out with effect from 15th March, 1991? If so, whether the workman shown in Annexure-A are entitled to wages for the lock out period and if so, what directions are necessary in this respect?"

without holding any enquiry or serving any charge-sheet on the petitioner

workman had dismissed him from employment to victimize him because of

trade union activities. It was further stated that though an application under

Section 33(ii)(b) of the Act had been filed by the respondent employer on 3rd

September, 1991 but the same had been withdrawn in or about the year 1996

and as such the respondent/employer had violated the provisions of Section

33 of the Act.

2. The Tribunal found -

A. that while the dismissal of the petitioner was on 15 th March, 1991, the reference order in Industrial Disputes No.76/1991 & 77/1991 was of 10th April, 1991. It was thus held that no case of violation of Section 33 was made out.

B. that the plea of the respondent employer in Industrial Disputes No.76-77/1991 was that the same did not constitute an industrial dispute and the said plea had been accepted and in those disputes award had been made holding that there were no industrial dispute. The Tribunal thus held that it having been held that the dispute on the basis whereof complaint was filed was not an industrial dispute, Section 33 was not attracted.

C. that the application under Section 33(ii)(b) was filed by the respondent employer because of pendency of another Industrial Dispute No. 526/1983. However, in that also, an award had been made on 1st December, 1995 holding the same also to be not an industrial dispute. It was also noticed that the complaint

of the petitioner under Section 33A was not based on the said reference.

D. It was thus held that the respondent employer was justified in withdrawing the application under Section 33(ii)(b).

The Tribunal thus held that no case of violation of Section 33 was

made out and accordingly the complaint under Section 33A was not

maintainable.

3. The petitioner has neither pleaded that any of the factual findings

aforesaid of the Tribunal are incorrect nor filed any document to controvert

the same. The argument of the counsel for the petitioner is single point. It

is stated that the complaint under Section 33A of the Act and Industrial

Disputes No.76-77/1991 had been consolidated vide order dated 5th July,

1999 of the Tribunal and copy whereof has been filed as Annexure-H to this

petition. The counsel contends that the Tribunal has not only dismissed the

complaint under Section 33A vide order impugned in this petition but also

made the award on Industrial Disputes No.76-77/1991 for the reason of no

evidence having been led thereon. It is argued that the order is thus bad in

law.

4. It was put to the counsel for the petitioner as to whether the petitioner

has challenged the award of the Tribunal in Industrial Disputes No.76-

77/1991. The counsel states that he has no knowledge in that regard. He

further contends that even in the complaint case under Section 33A of the

Act, subject matter of this petition, the following issues were framed by the

Tribunal:-

"(i) Whether the complaint / petition under Section 33A of the Industrial Dispute Act is maintainable or not (OPM)?

(ii) Whether the dismissal of workman is unjustified, illegal and against the principles of natural justice?

(iii) Relief, if any."

He contends that the Tribunal has in the impugned order only

answered the issue No.(i) and not answered the issued No.(ii) (supra).

5. The Supreme Court in Punjab National Bank Ltd Vs. All India

Punjab National Bank Employees' Federation AIR 1960 SC 160, relied

on by the counsel himself had held that "In an enquiry under Section 33A

the employee would not succeed in obtaining an order of reinstatement

merely by proving contravention of Section 33 by the employer; after such

contravention is proved it would still be open to the employer to justify the

impugned dismissal on merits; that is a part of the dispute which the

tribunal has to consider because the complaint made by the employee is

treated as an industrial dispute and all the relevant aspects of the said

dispute fall to be considered under Section 33A". Even though the said

judgment is now no longer good law in view of pronouncement in Jaipur

Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma (2002) 2

SCC 244 but it explains the framing of issue (ii) (supra). In fact, the only

prayer of the petitioner in his complaint under Section 33A was for his

reinstatement with full back wages.

Be that as it may, even as per the judgment (supra), the question of

the Tribunal to go into the validity of action of employer of dismissing the

petitioner was to arise only in the event of contravention of Section 33

being established. In the present case, the Tribunal having found Section

33 to be not attracted, the need to adjudicate issue No.(ii) supra did not

arise.

6. As far as the contention of the counsel for the petitioner of the

proceedings in the Industrial Dispute No. 76-77/1991 and in the complaint

under Section 33A having been consolidated, the counsel for the respondent

controverts the same. A reading of the order dated 5 th July, 1999 also does

not show that there was any such order of consolidation. Moreover, even if

there was consolidation and the same has resulted in any error in the

disposal of the industrial dispute, the same would be a case for challenging

the award in the industrial dispute and will not be a ground for impugning

the order on the complaint under Section 33 A of the Act. I may mention

that the petitioner has not even bothered to place before this Court, the

award on the Industrial Dispute No. 76-77/1991.

7. The petitioner has in the petition also sought to raise a bogey of the

impugned order not recording that Industrial Dispute No. 77/1991 had been

adjudicated by the date of the impugned order. However, the impugned

order records in para 13 thereof that Industrial Dispute No.77/1991 was

given to the order under Section 10(3) of the Authorities; and the same

cannot be termed as a reference and the dispute referred was Industrial

Dispute No.76/1991 only, the terms of reference whereof had been

amended in terms of order of this court in earlier writ petition challenging

the order under Section 10(3) of the Act. The said facts have not been

controverted.

8. The counsel for the petitioner after the close of hearing has filed

photocopies of judgments namely:-

(i) Air India Ltd. Vs. Vishal Capoor 2005(7) SCALE 619.

(ii) Gujarat Agricultural University Vs. All Gujarat Kamdar Karamchari Union JT 2009 (10) SC 449.

(iii) D.P Maheshwari Vs. Delhi Administration (1983) 3 SCR

(iv) M.D. Tamil Nadu State Transport Corporation Vs. Neethivilangan Kumbakonam AIR 2001 SC 2309.

(v) Management of National Power Supply Corporation Vs. State of Assam AIR 1963 Assam 24.

(vi) Mcleod & Co. Vs. Sixth Industrial Tribunal, West Bengal AIR 1958 Cal. 273

However, neither of the said judgments is found apposite the matter in

controversy.

9. This writ petition is therefore found to be misconceived. I however

refrain myself from imposing any costs on the petitioner. The petition is

dismissed.

RAJIV SAHAI ENDLAW (JUDGE) 12th March, 2010 gsr