Heard learned advocate Mr. MK Shelat on behalf of petitioner, learned advocate Mr. RC Jani appearing for respondent.
In this petition, petitioner has challenged award passed by Industrial Tribunal, Ahmedabad in Complaint IT No. 253/91 in Reference IT no. 429/91 dated 23/3/2000. The Industrial Tribunal, Ahmedabad has partly allowed complaint and punishment order dated 3/8/1994 has been modified to the effect of stoppage of one increment without cumulative effect. The petitioner has imposed punishment to complainant by order dated 3/8/1994 with stoppage of three increment with cumulative effect, which has been modified as referred above.
Learned advocate Mr. Shelat raised legal contention before this Court challenging said award that Industrial Tribunal has committed gross error in considering relevant section 33(2)(b) of Industrial Dispute Act, 1947 and also not properly appreciated relevant provision of Section 33(A) of Industrial Dispute Act, 1947.
He submitted that punishment was imposed with stoppage of three increments with cumulative effect by order dated 3/8/1994. At that occasion, Reference IT no. 429/91 relating to bonus was pending before Industrial Tribunal but because of punishment imposed other than dismissal and discharge, question of obtaining approval under section 33(2)(b) by petitioner does not arise. Therefore, it is not breach of section 33 committed by petitioner while passing order of punishment against respondent and then complaint under section 33(A) is not maintainable.
Learned advocate Mr. RC Jani appearing for respondent workman raised contention that now respondent workman is already retired from service and this is merely a technical contention raised by petitioner but in substance on merits, Industrial Tribunal has rightly modified order of punishment. For that, under Article 227, this Court may not interfere with such award.
I have considered submissions made by both learned advocates and I have also perused award passed by Industrial Tribunal, Ahmedabad. Considering legal contention raised by learned advocate Mr. Shelat that complaint under section 33(A) is not maintainable and approval under section 33(2)(b) of Industrial Dispute Act is not necessary in case of punishment other than dismissal or discharge. For that, section 33(2)(b) and section 33(A) are quoted as under:
"Section 33(2)(b) : for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
Section 33 (A) :Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding. - Where an employer contravenes the provisions of section 33 during the pendency of proceedings (before a conciliation officer, Board, an arbitrator, 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 with 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."
In view of relevant provision and considering undisputed fact found from record that by order dated 3/8/1994 respondent was punished by stoppage of three increments with cumulative effect, at that occasion, dispute in respect to bonus was pending before Industrial Tribunal but because of punishment is other than dismissal and discharge, Approval Application is not required to be filed by petitioner.
Therefore, finding which has been given in respect to legal issue in para 11 is contrary to provisions of section 33(2)(b) and 33(A), which amounts to misconception of law by Industrial Tribunal, Ahmedabad. Therefore, according to my opinion, contention raised by learned advocate Mr. Shelat is to be accepted and complaint filed by employee respondent under section 33(A) is not maintainable under law. However, only on legal issue, this award is required to be set aside by this Court without expressing any opinion on merits and liberty is given to respondent workman if he so desire he can raise industrial dispute challenging punishment order dated 3/8/1994 under provision of Industrial Dispute Act, 1947. As and when such reference is made by Appropriate Government to Industrial Tribunal then it is open for Industrial Tribunal to decide such dispute without influence by reasoning given by Industrial Tribunal in present award in respect to merits.
In short, if dispute is raised by workman against punishment order, whatever observation made in present award by Industrial Tribunal on merits will not come in way of Industrial Tribunal while deciding fresh dispute. With above clarification, present petition is allowed only on legal aspect and award passed by Industrial Tribunal, Ahmedabad in complaint no. 253/94 dated 23/3/2000 is hereby quashed and set aside with aforesaid liberty given to respondent. Accordingly, Rule is made absolute to the aforesaid extent.
(H.K.RATHOD, J) asma Top