MAHABIT MALLAH Vs. SONE VALLEY PORTLAND CEMENT CO LTD

JUDGEMENT

(1.) The two petitioners in this case were the workmen employed in the Cement Factory of respondent No. 1. During the pendency of an industrial dispute before the Industrial Court, they were dismissed by the respondent Company on the 17th of August, 1959. The said Company filed an application before the Labour Court, respondent No. 2, under the proviso to Section 33 (2) of the industrial Disputes Act, 1947 (Act 14 of 1947) hereinafter called the Act, for approval of the action of dismissal taken against the petitioners. The petitioners filed an application under Section 33A of the Act on the ground of the alleged contravention of the provisions of Section 33 during the pendency of proceedings before the Labour Court and asked for a relief of reinstatement. The Labour Court dealt with the two applications together and, by its order dated 2nd of November, 1960, refused to accord its approval to the action of dismissal taken by the Management against the two workmen, the effect of which was dismissal of their (Management's) application made under the proviso to Section 33(2) of the Act for approval. At the same time, by Its award of the same date contained in the same order published in the Bihar Gazette dated November 16, 1960, (a copy of which is annexure 'A' to the writ application), the Labour Court refused to order the reinstatement of the petitioners under Section 33A of the Act and, instead, directed payment of three months' wages as compensation in lieu of their prayer for reinstatement. The petitioners have obtained a rule from this Court against the respondents to show cause why the said award made under Section 33A of the Act be not set aside and, instead an award directing reinstatement of the workmen be not made. Cause has been shown on behalf of respondent No. 1, which did not file any application for interference with the order of the Labour Court refusing to accord approval to their action of dismissal against the petitioners.

(2.) According to the case of the Management, the services of the petitioners were terminated as they, had absented themselves without leave or information for more than ten days. Their case, on toe other hand, was that regular application for leave had been sent by them to the Works Manager through post and, accordingly, they were not guilty of any act of misconduct within the meaning of the Standing orders of the respondent Company. The Labour Court has held that (sic) charge was ever framed against the workmen and at no stage prior to the dismissal of the workmen was any opportunity afforded to them to meet any charge of misconduct which, according to the employer, they were guilty of. On merits also, the Court has rejected the stand of the management that the workmen had absented themselves from work without leave or information for more than 10 days. In that view of the matter, it has refused, to accord its approval to the action of dismissal taken by the Management against the two workmen. The Labour Court has further held that since the dismissal order has not been made in strict, observance of the Standing Orders of the Company, the Management must toe deemed to have contravened the provision of Section 33 of the Act. In that view of the matter, it has thought it fit to allow the petitioners' application under Section 33A of the Act and give them the relief of compensation as stated above.

(3.) The only argument put forward by Mr. K. P. Verma, learned advocate for the petitioners is that after refusing to accord approval to the action of dismissal taken by the Management against the petitioners, the effect of which was the dismissal of the application of the respondent Company filed under the proviso to Section 33 (2) of the Act, the petition under Section 33A filed by the petitioners also ought to have been merely rejected and the court has committed an error of jurisdiction in allowing that application and giving the relief of compensation only, by taking an erroneous view in regard to the contravention of the provisions of Section 33 of the Act. In view of the submission aforesaid made on behalf of the petitioners, their prayer for modifying the award under Section 33A of the Act and giving them the relief of reinstatement has not been pressed. Mr. T. K. Prasad, learned advocate for respondent No. 1, did not object to the prayer made on behalf of the petitioners for rejection of their application under Section 33A of the Act, rather he submitted that the view taken by the Labour Court in regard to the alleged contravention of the provisions of Section 33 of the Act is erroneous and, there being no contravention, the application under Section 33A ought to have failed on that ground alone. He, however, submitted that, on the facts and in the circumstances of this case, the order of the Labour Court refusing to accord its approval to the action of dismissal taken by Management against the two workmen is erroneous and should be interfered with in this proceeding. Counsel submitted that the said order is an integral part of the award itself and, therefore, even though the Management has not attacked it by a separate application under Articles 226 and 227 of the Constitution of India, it is open to us to interfere with that part of the order if we are satisfied that it is, in fact, erroneous on the face of it. We have refused to examine the propriety or impropriety of the order of the Labour Court made on the application of the Management for approval of their action of dismissal against the petitioners and to find for ourselves as to whether the said order is correct or not for the simple reason that, although the said order is contained in the award ma.de under Section 33A of the Act and published in the Gazette, it is nonetheless an order in a separate proceeding under Section 33 (2) (b) of the Act and the same having not been challenged on behalf of the Management by an appropriate application cannot be examined and Interfered with.