- (1.) D. P. Singh, J. Heard Sri Rakesh Bahadur for the petitioner and Sri Shyam Narain, learned counsel for the contesting respondent workmen.
(2.) THESE writ petitions are directed against an award dated 31-3- 1981. While writ petition No. 9498 of 1981 challenges that part of the impugned award by which the Labour Court has awarded 50% of the backwages from the date of discharge to the date of Award to the respondent workmen. The other writ petition No. 10321 of 1981 attacks the entire award by which the termination of the workmen has been upheld. The determinative facts of both the petitions are the same however, for convenience sake, writ No. 9498 of 1981 filed by the management is being taken up as the leading case. Brief facts for the decision of this petition are that the respondent No. 3 lodged a first information report under Sections 293, 427 and 323 I. P. C. against the Director, Administrative Officer and Field Officer of the petitioner company. Since no action was taken, the respondent No. 3 followed it up by lodging a criminal complaint before the Judicial Magistrate, Rampur. The allegations in the complaint were that on 10th April, 1977 at about 11 P. M. while the complainant and others were engaged in realizing union fee from the employees, the officials of the company called them to the office and on refusal to show the receipt book they manhandled him and deprived him of Rs. 691/- and also assaulted him. In the trial, respondent No. 4 and 5 appeared as witnesses on behalf of the respondent No. 3. The Special Judicial Magistrate vide his judgment dated 29th June, 1978 honorably acquitted all the accused persons on the ground that the charges were not proved and the entire case was fabricated. Thus the charge-sheet was issued to the workmen for making false allegations against senior officers of the company and also knowingly and deliberately maligning them. This resulted in termination of service of respondents No. 3 and 4 on 17th July, 1978 and that of respondent No. 5 on 26th July, 1978. The workmen approached the Conciliation Officer and upon a failure report the matter was referred under Section 4-K of the U. P. Industrial Disputes Act which was registered as Adjudication Case No. 95 of 1979. After giving parties due opportunity of hearing, the Labour Court itself held an enquiry into the charges leveled against the workmen. It found that the workmen were guilty of gross misconduct and thus he refused to set aside the termination order. However, the Labour Court found that since another industrial dispute with regard to some other workmen was pending when the termination order was made and also on the ground that the Labour Court itself had held the enquiry, therefore, since approval under Section 6-E had not been obtained prior to the termination granted only 50% backwages from the date of their respective termination to the date of award. Both the parties have challenged the said award by their respective writ petitions.
(3.) THE counsel for the petitioner has contended that since the removal was found justified on the basis of gross misconduct, the order of termination would related back to the date when it was passed. THErefore, according to him the Labour Court was not justified in granting backwages for the period between the termination and the date of award. In support of his contention he has relied upon a decision of the Supreme Court rendered in R. Thiruvirkolam v. THE Presiding Officer and another, 1997 (75) FLR 136. However, the learned counsel for the workman urges that the termination was void as no approval under Section 6-E (2) was taken, which according him, was mandatory in view of the pendency of a dispute before the Labour Court. In support of his argument, he relies upon the decision of the Apex Court rendered in Jaipur Zila Sahkari Bhumi Vikas Bank v. Sri Ram Gopal Sharma, 2002 (1) LBESR 802 (SC) : 2002 (92) FLR 667. It is not denied that some industrial dispute was pending before the Labour Court when the workmen were removed. It is also not denied that any application under Section 6-E (2) was moved. It will be useful to quote the relevant portion of Section 6-E: "6-E. Conditions of service, etc. to remain unchanged in certain circumstances during the pendency of proceedings.- (2) During the pendency of any such proceedings in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute - (a ). . . . . . . . . . . . . . (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. ";