Rajendra Babu, J. - (1.) Certain disputes having arisen between the appellant union and respondent No. 2, a reference was made to the Industrial Tribunal (hereinafter referred to as 'the Tribunal') in I.D. No. 2 of 1990. Pending adjudication of the said dispute, it is alleged that respondent No. 2 coerced the workmen to individually enter into settlement under Section 18(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). However, Balanarsimha and Mallesh refused to sign the settlement. Thereafter, the respondent No. 2 is stated to have notified the seniority list of mechanics of the weigh bridge/weighing machines department, while Mallesh was transferred, orders of termination of service of Balanarsimha and another was made. The seniority list exhibited was for the purpose of termination of the services of the said Mallesh. Balanarsimha and Mallesh made a complaint under Section 33-A of the Act complaining that the provisions of Section 33 of the Act had not been complied with in modifying their conditions of service. An award was made by the Tribunal holding that the termination of services of Balanarsimha and Mallesh is justified and dismissed the complaint. Thereafter, an industrial dispute was sought to be raised and the Government by an order made on April 8, 1991 stated that the dispute raised does not merit reference for adjudication as the Tribunal has passed awards dismissing the cases of Balanarsimha and Mallesh. This order was challenged before the High Court in a writ petition. The learned single Judge took the view that the workmen cannot avail two opportunities for the same relief once on appearing before the Labour Court in individual capacity under Section 10(2-A) of the Act although application was made under Section 33-A of the Act and second by employees union of which the appellant is a member and, therefore, the Government is right in rejecting the application. This view on being affirmed on appeal before the Division Bench, this appeal by special leave is filed.
(2.) It is not clear from the order of the learned single Judge of the High Court as to how the conclusion could be drawn that an application or complaint under Section 33-A of the Act could become a reference to the Tribunal under Section 10(2-A) of the Act. The only complaint made by the workmen was in their individual capacity under Section 33-A of the Act and not as contemplated under Section 10(2-A) of the Act. Neither the learned single Judge nor the Division Bench considered the scope of the proceedings arising under Section 33-A of the Act and the effect of findings recorded in such an inquiry. The Division Bench proceeded on the basis that the complaint before the Tribunal having been adjudicated the award would operate as res judicata.
(3.) Learned counsel for the appellant contended that if the real scope of Section 33-A of the Act is borne in mind, there is no impediment in the present case to make reference under Section 10 of the Act, notwithstanding the awards in question. He further submitted that the awards in question could not have decided the question that the dismissal of the workmen is justified without first examining whether such termination of service is contrary to Section 33 of the Act which alone gave competence to the Tribunal to proceed further in the matter. We find force in this contention.. However, Shri V. R. Reddy, learned senior counsel for the respondent, very strenuously contended that there was no dispute before the Tribunal as to the jurisdiction and, therefore, there was no occasion for the Tribunal to give a finding on that aspect of the matter on question whether there has been any contravention of the terms of Section 33 of the Act to attract the reliefs sought for under Section 33-A of the Act. This argument ignores the essential requirement of Section 33-A of the Act. Section 33-A of the Act, in fact, involves consideration of two aspects of the matter, firstly, whether there has been any violation or contravention of the provisions of Section 33 of the Act and secondly, whether the act complained of is justified or not. Therefore, violation or contravention of the provisions of Section 33 of the Act would be the justification for the authority concerned to entertain an application under Section 33-A of the Act. If this essential requirement is forgotten and if an authority decides a question as to whether the act complained of under Section 33-A of the Act is justified or not cannot in a matter of this nature operate as res judicata or cannot be treated to have decided the dispute between the parties.;