(Per : HONOURABLE MR.JUSTICE A.L.DAVE) The appellant-workman is aggrieved by the order passed by the learned Single Judge in Civil Application No.2942/2009 in Special Civil Application No. 1060/2009, on 23.04.2009. Special Civil Application No.1060/2009 was preferred by the present respondent against the order of the Industrial Tribunal in Approval Application (IT) No.691/2004, dated 11.12.2008, seeking approval of action of terminating services of the workman-present appellant-original respondent. The learned Single Judge admitted the petition and stayed the operation of the order of the Tribunal. The workman, therefore, preferred Civil Application No. 2942/2009 praying that during the pendency of Special Civil Application No.1060/2009 preferred by the employer, employer be directed to comply with the provisions of Section 17B of the Industrial Disputes Act, 1947, or in the alternative, employer be directed to reinstate the applicant-workman, in the interest of justice. The learned Single Judge by order dated 23.04.2009, impugned in the appeal, rejected the application. Hence, this appeal.
2. The learned Single Judge, while rejecting the application, relied upon the decision of a Division Bench of this Court in Letters Patent Appeal No. 1076/2005 in Civil Application No. 11603/2001 in Special Civil Application No.13081/2000, dated 5.8.2005.
2.1 The Division Bench took a view that rejection of an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 for approval of the order of dismissal, when challenged before the High Court, would not attract the provisions of Section 17B of the Industrial Disputes Act.
3. Learned advocate Mr.Chaudhary for the appellant has relied on the following decisions;-
(i) Samser Ali (Sk) v. Kesoram Industries and Cotton Mills Ltd., and another, 1988(1) LLJ, page-1,
(ii) V.John v. Singareni Collieries Co.Ltd., Manuguru & Anr., 1996(1) CLR 43,
(iii) A Full Bench decision of Delhi High Court in the case of Delhi Transport Corporation v. Jagdish Chander, 2005-III-LLJ, 390, where a view is taken that if an application under Section 33(2)(b) of the Industrial Disputes Act is rejected by the Tribunal and the same is challenged by the employer before the High Court, the workman would be entitled to the benefit of Section 17B of the Industrial Disputes Act,
(iv) A decision of this High Court in Special Civil Application No. 11401/2006 and allied matters, dated 12.06.2006, where the learned Single Judge of this Court took the similar view, which came to be confirmed by a Division Bench of this Court by order dated 6.7.2006 in Letters Patent Appeal No.889/2006 arising out of the same judgment,
(v) A decision in the case of Jagdishchandra Pukhrajchandra v. Gujarat Urja Vikas Nigam Ltd.& Anr.(Civil Application No. 7424/2009 in Special Civil Application No. 29883/2007, dated 31.07.2009),
(vi) T.N.State Transport Corporation v. Neethivilangan, Kumbakonam, 2002 SCC (L&S)40, and certain other judgments to contend that rejection of an application under Section 33(2)(b) of the Industrial Disputes Act by the Tribunal is an Award by the Tribunal.
3. The question that arises for determination, therefore is, whether the provisions of Section 17B of the Industrial Disputes Act will be applicable in a case where employer/management in a writ petition challenges an order of the Labour Court/Industrial Tribunal rejecting an application under Section 33(2)(b) of the Industrial Disputes Act seeking approval of the order of dismissal ?
4. This Court is faced with two orders of two different coordinate Division Benches taking contrary view. In Letters Patent Appeal No. 1076/2005, by order dated 5.8.2005 a Division Bench took a view that Section 17B would not apply in such a situation, whereas another Division Bench, while dealing with Letters Patent Appeal No. 889/2006, by order dated 6.7.2006 approved the view of the learned Single Judge holding that Section 17B would be applicable in such a situation.
4.1 A Full Bench of Delhi High Court in the case of Delhi Transport Corporation (supra) has also taken a view that Section 17B would be attracted in a situation where order of the Labour Court/Industrial Tribunal, rejecting an application under Section 33(2)(b) of the Industrial Disputes Act, is challenged before the High Court by the employer.
5. Considering the above conflicting views expressed by two Division Benches and the importance of the issue, we are of the view that the above stated question is required to be referred to a Full Bench or Larger Bench. We, therefore, direct the Registry to place this matter before the Hon'ble Chief Justice for appropriate action.
[A.L.Dave,J.] [M.D.Shah,J.] (patel) Top