S.H.A.Raza, J. - (1.) This writ petition is directed against the award of the Labour Court dated 25.9.82 by means of which the Tribunal held that the dismissal of the complainant-workman Phool Chand Gupta, with effect from 1.7.82, was illegal and irregular. The order of the employer dated 30.6.82 terminating the services of the complainant-workman was, therefore, quashed and the workman was reinstated with full back wages with effect from 1.7.82.
(2.) The facts giving rise to the award is that a complaint under Section 6F of the U. P. Industrial Disputes Act, 1947, was filed by the workman Phool Chand Gupta against the petitioner alleging that his services were terminated with effect from 1.7.82 inspite of the fact that he was a 'concerned workman' in adjudication Case No. 19 of 1960 which was pending before the Tribunal. The adjudication-Case No. 19 of 1980 pertained to the lay-off in the establishment of the petitioner. The workman had asserted that he could not have been removed from service in view of the proviso to Section 6B (2) of the Industrial Disputes Act which provides that no workman whose proceedings are pending in adjudication case, against the employers 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 proceedings were pending for the approval of the action taken by the employer. It was urged on behalf of the workman before the Tribunal that the establishment did not take the approval of the Tribunal where the adjudication Case No. 19 of 1980 was pending. The contention of the workman/respondent to this writ petition appears to be that he was a workman in the establishment of the petitioner and on account of the lay-off declared by the petitioner, he was a 'concerned workman' within the meaning of Section 6E of the Act. The provisions of Section 6E of the U. P. Industrial Disputes Act, 1947, is more or less analogous to Section 33 of the Industrial Disputes Act (Central). Section 6E of the Industrial Disputes Act is reproduced below : "6E. Conditions of service, etc., to remain unchanged in certain circumstances during the pendency of proceedings :--(1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute-( a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding, or (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. (3) Notwithstanding anything contained in sub-section (2) no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute- (a) by altering to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding, or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman. Explanation.--For the purposes of this sub-section, a 'protected workman' in relation to an establishment means a workman who, being an officer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of-sub-section (3) shall not exceed one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the State Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which they may be chosen and recognised as protected workmen. (5) Where an employer makes an application to a Board. Labour Court or Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit." The mention of the word 'workmen concerned in such dispute' occurring in Section 6E (2) is relevant for the decision in this case.
(3.) It cannot even be imagined that in the matter of lay-off in an establishment a workman working in that establishment is not a 'workman concerned in such dispute'. The proviso to Section 6E clearly indicates that no such workmen 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. According to sub-section (3) of Section 6E, an employer during the pendency of such proceedings in respect of industrial dispute cannot take action against any protected workman concerned in such dispute by altering the conditions of service applicable to him immediately before the commencement of such proceedings or by discharging or punishing whether by dismissal or otherwise of such protected workman, save that express permission in writing of the authority before which the proceeding is pending. Thus, according to Section 6E (3), a workman would be deemed to be a 'protected workman' if any dispute is pending for adjudication before the Tribunal. The lay-off resorted to by the petitioner, has undoubtedly effected the workman. Adjudication case was pending, hence he would be deemed to be a 'workman concerned' in such a dispute and also a 'protected workman' and his services cannot be dispensed with until and unless the workman is paid one month wages and a permission is obtained from the Tribunal where the case is pending before terminating or removing him from service.;