- (1.) IN this writ petition the petitioner has challenged the validity of an interim award made by the Industrial Tribunal on June 13, 1972 which was published in the official Gazette on July 15, 1972. The petitioner happened to be an employee of Oil india Limited and the petitioner also happened to be an officebearer of the Union which was, however, not recognised by the company. On January 31, 1968 the petitioner along with the other office-bearers of the Union was dismissed. Against the said order of dismissal a Writ petition was filed before the Assam and Nagaland high Court on January 27, 1970 and in the said Writ petition the validity of the order of dismissal was challenged. The said Writ petition was dismissed by the High Court. It appears that some of the employees moved the Supreme Court against the judgment and order of the Assam and Nagaland High Court and there was a difference of opinion between the employees on this question as to whether the Supreme Court should be moved or not. The petitioner wanted to move the Labour Court under Section 33-C (2) of the Industrial Disputes Act and on December 14, 1970 the petitioner along with another employee made an application under Section 33-C (2) of the Act which was, however, dismissed on the ground of lack of jurisdiction. On January 27, 1971 the Central Government by notification No. 25 (a) 68lrlj (L. R. IV) dated January 27, 1971 referred the following issue to the Industrial Tribunal for adjudication. "whether the action of the management of Oil India Limited, dhuliajan in dismissing the following thirteen workmen is justified? if not, to what relief are the workmen concerned entitled from the dates of their dismissal? the petitioner is one of the employees mentioned in the said notification. Because of difference of opinion between the petitioner and some other employees and the Union the petitioner on march 30, 1971 wrote to the Tribunal at Dibrugarh for separate representation. It appears that a preliminary objection as to the competence of the reference was taken before the Tribunal by the company. It was contended on behalf of the company that the order of reference is not competent and in any event the petitioner along with four other employees who have taken proceedings under Section 33-C (2) of the Act were not entitled to participate in the said proceeding before the Tribunal. The Tribunal made an interim award and by the said award the Tribunal held that the petitioner along with four other employees who had started proceedings under section 33-C (2) of the Act could not participate in the proceeding before the Tribunal and they should be excluded from the said proceeding. As I have already observed the validity of this award has been questioned in this proceeding. It may be noted that the proceeding initiated by the petitioner under Section 33-C (2) before the Labour Court was dismissed on August 26, 1972 on the ground that the said proceeding was premature.
(2.) IT has been contended on behalf of the petitioner that the Tribunal's award excluding the petitioner from the benefit of the reference before the Tribunal on the ground that the petitioner has made an application under Section 33-C (2) of the Act is clearly illegal and unjustified. The argument is that the said act on the part of the petitioner cannot and does not have the effect of depriving the petitioners right of participating in the reference to which the petitioner is a party and the petitioner cannot be deprived of his right to get the benefit, if any, in the said proceeding before the Tribunal on the basis of the reference made. The further argument is that the proceeding taken under Section 33-C (2)cannot have the effect of debarring an employee from participating in an adjudication proceeding on the basis of a reference before the tribunal. Learned Counsel on behalf of the petitioner has submitted that in the facts and circumstances of this case, the proceeding under Section 33-C (2) was misconceived and was taken by the employee under a misconception of fact and law. It is, however, his submission that the said fact cannot deprive the employee of his right to participate in the industrial dispute referred to the Tribunal to which is a party and the Tribunal was not clearly justified in excluding the petitioner from the reference before him. It is the submission of the learned Counsel that the effect of the order of the Tribunal will be to leave the petitioner without any remedy, as the petition of the petitioner under Section 33-C (2) has already been rightly rejected as the same was misconceived and the decision of the Tribunal to exclude him from the proceeding before him will leave the petitioner without any remedy.
(3.) ON behalf of the Company Mr. Chowdhury has contended that in view of the inconsistent stand taken by the petitioner, the Tribunal was perfectly justified in excluding the petitioner from participating in the proceeding before the Tribunal. Mr. Chowdhury has argued that an application under Section 33-C (2) can be made by an employee on the basis that the contract of employment still subsists. It is his argument that when the petitioner chose to make an application under Section 33-C (2) he must have proceeded on the basis that the contract of employment subsisted and he remained in the employment of the company. Mr. Chowdhury contends that the order of reference, on the other hand, proceeds on the basis that the employee has been dismissed and naturally the contract of employment has come to an end and the subject-matter of dispute in the reference is the legality and the validity of the dismissal on the basis of the provisions contained in the industrial law. It is the argument of Mr. Chowdhury that in view of the inconsistent stand taken by the petitioner, the Tribunal was perfectly justified in excluding the petitioner whose case was that he has not been dismissed and he could therefore, have no grievance with regard to the question of dismissal and the validity of the dismissal forms the subject-matter of reference before the Tribunal. Mr. A. K. Dutt (Jr.), learned counsel appearing on behalf of some of the workmen, viz. , P. M. De, P. C. Sharma and Bishnupada Das, has submitted before me that the petitioner having elected to choose his remedy under Section 33-C (2) of the Act cannot be permitted to avail of the remedy under Section 10 of the Act. His argument is that the petitioner has voluntarily elected to proceed under Section 33-C (2) and in view of the election before the petitioner the petitioner forfeits his right under Section 10 of the Act.;