ALL INDIA WOMENS CONFERENCE Vs. RAJ KARAN

JUDGEMENT

(1.) Both these writ petitions raise a common question of law i.e. whether the provisions of Section 33 of the I.D. Act prohibiting the employer "During the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceeding before an Arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute" from discharging or dismissing a workman save with the express permission/approval of the Conciliation Officer or Arbitrator or Labour court or Tribunal before whom the proceedings are pending, apply to a proceeding under Section 36A of the Act.

(2.) The respondents workmen in both these writ petitions were employed with the petitioner 'All India Women's Conference'. Both the workmen were discharged after holding disciplinary proceedings. On dispute being raised by both workmen, the same was referred to the Labour Court. The Labour Court vide award dated 12th January, 2004, on identical terms, in both the cases, answered the reference by holding that the termination of service of workmen in both the cases is illegal for the reason of the same being without obtaining the permission under Section 33(2)(b) of the Act.

(3.) The Labour Court in both the awards has merely mentioned that ID. No. 483/1998 between the petitioner and its workmen was pending at the time when the order of dismissal of workmen was made. The award does not discuss the nature of the said ID. No. 483/1998. The petitioner has in the writ petitions filed before this Court stated that ID. No. 483/1998 was in fact not an industrial dispute but a reference under Section 36A of the Act. It is the contention of the petitioner that the petitioner was not required to obtain approval under Section 33(2)(b) of its action of dismissal/discharge of workmen in both the cases for the reason of pendency of reference aforesaid under Section 36A of the Act numbered as I.D. No. 483/1998. Reliance in this regard is placed on a Division Bench judgment of the Patna High Court in Management of Sendra Bansjora Colliery Co. (Pvt.) Ltd. v. Shantilal M. Bhatt, 1963 AIR(Pat) 288 holding that a reference made under Section 36A of the Act is not a proceeding "in respect of an industrial dispute" within the meaning of Section 33(1) or Section 33(3) of the Act. It was further held that the legal test for judging whether a reference is "in respect of an industrial dispute is whether the reference is substantially or in its true nature and character a reference with regard to an industrial dispute." The reference under Section 36A in that case as to the interpretation of the award was held to be not an industrial dispute. The counsel for the petitioner has rested his case solely on the said judgment.