MISRA, J. - (1.) THIS appeal has been preferred by the appellant-workman Shri Madan Lal Sharma against the order of the learned Single Judge passed on 2. 7. 2001 in SBCWP No. 2667/2001 by which the writ petition filed by the petitioner-appellant herein was dismissed upholding the order of the Industrial Tribunal which had been pleased to hold that the application filed by the workman-appellant under Section 33-A of the Industrial Disputes Act 1947 was not maintainable. While upholding the order of the Industrial Tribunal, the learned Single Judge was pleased to make certain observations indicating that the appointment of the petitioner-appellant was purely temporary in nature as a Conductor who had been appointed on daily wages and daily wager has no right to hold the post as it was not a substantive appointment. While recording these observations, the learned Single Judge has also observed that the order of termination of the services of the petitioner/appellant was a simplicitor order of termination of a temporary daily-wages employee and this order nowhere casts stigma on the services of the petitioner-appellant.
(2.) THE aforesaid order of the Industrial Tribunal as also the order of the learned Single Judge has been challenged by the appellant-workman and first of all it has been contended on his behalf by learned counsel for the appellant-workman Shri Gupta, that the order of termination passed by the respondent RSRTC although did not disclose that his services had been terminated on account of a charge of misconduct and a simple order of termination was passed merely stating that his services had been dispensed with on account of his appointment being temporary in nature, the order in fact was passed due to charge levelled against him that he had carried passengers as a Conductor in the bus without issuing tickets to them, although money had been realised from them. Learned counsel placed reliance on the following authorities in support of his contention:- (Gujrat Steel Tubes Ltd. Etc. vs. Gujrat Steel Tubes Mazdoor Sabha & Others) AIR 1980 SC page 1896. (Dipti Prakash Banerjee vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Others), AIR 1999 SC page 983. (Jarnail Singh & others vs. State of Punjab & Others), SLR 1986 (2) page 278. (Chandra Prakash Shahi vs. State of U. P. & Others) SCC 2000 (5) page 152. Learned counsel submitted that even though an order of termination does not disclose the charge of misconduct, the Tribunal ought to have lifted the veil and should have examined the reason behind passing this order which would have disclosed that the order of termination was in fact on account of misconduct and once the charge of misconduct could be noticed, the application filed under Section 33-A of the Industrial Disputes Act should have been adjudicated as if it were a reference, by allowing the parties to lead evidence. In addition to this, it was further contended that the learned Single Judge, while dismissing the writ petition against the order of the Tribunal, has been pleaded to observe that the petitioner- appellant workman had no case on merits which should not have been the subject matter of consideration, since the only question before the learned Single Judge was whether the application filed by the petitioner-appellant could have been entertained under Section 33-A of the Industrial Disputes Act or whether it was rightly held not maintainable by the Tribunal. In order to consider the submissions of the learned counsel for the appellant, we have noticed the facts of the case and also have perused the contents of Section 33-A of the Industrial Disputes Act, 1947. In so far as the surrounding facts giving rise to the dispute of the parties is concerned, it could be noticed that the appellant-workman had admittedly been granted appointment which was temporary in nature and while he was functioning as a Conductor merely for seven months, the respondent-authorities raised questions about his integrity and alleged that he had carried passengers by realising money from them but tickets were not issued in this regard. Since the respondent RSRTC had scope within legal ambit to dispense with the services of the petitioner-appellant-workman as his services were temporary in nature, it was indulgent and thought proper to issue an order of his termination which was simplicitor in nature as it merely disclosed, which was as follows:- *** The RSRTC, therefore, dispensed with the services of the petitioner which was challenged by the appellant-workman before the Tribunal under Section 33-A of the Industrial Disputes Act, 1947 which was rejected as not maintainable in view of the provisions enumerated under Sections 33-A (a) and (b) of the Industrial Disputes Act, 1947, which may be quoted for facility of reference as under:- ``33a- Special provision for adjudication as to whether conditions of service, etc. , changed during pendency of proceedings- where an employer contravenes the provisions of Section 33 during the pendency of proceedings (before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal), any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner,- (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and (b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance whit the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly. ''
(3.) ON perusal careful reading of Section 33-A (a) & (b) it is clear that an application under that provision can be entertained and adjudicated as if it were reference only if there is a complaint existing against the workman and the order of termination having not been based upon any complaint, alleged by the respondent the respondent RSRTC had a legal ground in its favour to dispense with the services without taking recourse to the lengthy procedure of proving the misconduct, obviously because the appointment was temporary in nature. When the argument of the counsel is tested in this background and in the light of Section 33-A (a) & (b), we find that the Tribunal was perfectly justified in holding that the application was not maintainable under Section 33-A of the Industrial Disputes Act, 1947 as the order of termination was neither based on a scrutiny nor any allegation, therefore, the application has rightly not been held maintainable under Section 33-A (a) & (b) as we have already stated that it presupposes the existence of a complaint against a workman before an application could be entertained under that provision. We find no substance in the argument of the learned counsel that the Tribunal should have lifted the veil and found out whether it was the case under Section 33-A of the Industrial Disputes Act, 1947 by looking into the background under which the order of termination without levelling any charge was passed. If it were not a case of temporary appointment, perhaps it could be argued that the Court below should have lifted the veil in order to examine whether the order of termination in fact was an order simplicitor for termination or there were reasons behind it. If the workman had worked only for a period of seven months and his appointment was temporary in nature, then, we feel that the respondent RSRTC was justified in dispensing with the services on a ground which stood on a stronger footing in the sense that his services could be dispensed with, without taking course to prove the charge of misconduct. In our view, if a workman is discharging his duties on the basis of a temporary appointment and the order is simplicitor in nature indicating that his services have been terminated ion account of the appointment being temporary, it is not open for him to challenge the order that the application ought to have been held maintainable under Section 33-A of the Industrial Disputes Act, 1947. The workman, in that event, is not remediless as he could have got a reference initiated in that regard under other provisions of the Industrial Disputes Act but in so far as the Section 33-A of the Industrial Disputes Act is concerned, the same had to be entertained only if the order of termination indicated any adverse remark against the workman or leveled any allegation which admittedly is not the case in the instant matter. The learned Single Judge has also held against the appellant workman that his appointment was temporary in nature and was not substantive appointment and merely because it is not recorded in express words that the application was rightly not entertained by the Tribunal Section 33-A of the Industrial Disputes Act, 1947 cannot grant a reason to the workman to challenge the same on the ground that the learned Single Judge has dismissed the writ petition for an altogether different reason which was not the ground of dismissal by the Tribunal. We thus find to merit in this appeal and hence it is dismissed at the admission stage itself. . ;