Rajinder Kumar & Ors v. Management of Inditravel Pvt Ltd

ORDER %

20.10.2011

¶1One New Delhi General Mazdoor Union had raised an industiial disputemakingcertainfinancialdemandsincludingwage settlementetc. by approaching the Conciliation Officer in the Labour Department of the Govt. of NOT of Delhi. These disputes were referred for adjudication to the Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Industfial Tribunal and were registered as ID No.56 of 1988. The respondent Management contested on various grounds. The vahdity of reference was also challenged on the following gi'ounds:- a. a long tenn wage settlement dated 2^^ November, 1987 ah'eady existed between the workmen employed at the printing division of the respondent management at Noida and the respondent Management and which settlementwas valid and operativetill September, 1990 and during the validity of said settlement it was not open to the workmen/union to raise any dispute which was covered by the said settlement; and, b. the printing division in which the workmen were employedwas at Noida and Govt. of NCT of Delhi was not the "appropriate govemmenf which could refer the dispute. In fact, iiiunediately after the reference was made, the respondent Managementhad challengedthe reference by filing a wiit petition which was disposed of with the direction that respondent Management could take all pleas before the IndustrialTribunal in the pending references. / y

¶2While the aforesaid references/industiial disputes were pending, some of the workmen including the appellants herein went on strike. The respondent Managementheld the said strike illegal and charge sheeted some of the workmen includingthe appellants.After holdingthe inquny in which charges were proved, the appellants were dismissed from semce.

¶3The appellants filed a complaint under Section 33A of the Industrial Disputes Act, 1947 (ID Act) because of pendency ofthe aforesaid industiial dispute which was registered as I.D.No.lO of 1989. It was inter alia contended by the appellants that their services could not have been teiininated without taking prior approval of the Industrial Court where the wage dispute was pending as the appellants were 'protected workmen' within the meaning of Section 33(3) of the ID Act.

¶4The Industrial Tribunal took up the complaint along with the industrialdisputeand renderedcommonawai'ddated 30"' September,1996. The Tribunal set aside the objectionof the respondent Managementthat the Delhi Government was not competent to refer the matter and held that the reference was valid. Thereafterit discussedthe ternis of reference on merits; though it was held that the settlementdated 2"'' November, 1987 between the workmenemployedat theprintingdivisionat Noidaandtherespondent Management was fair and reasonable and binding on the workmen for the puiposes of DA & HRA, it was held that in so far as the settlementqua wages is concerned, the settlement was not binding on the New Delhi General Mazdoor union because it was not a party to the settlement. The IndustrialTribunal also decidedthe complaintfiled by the appellantsunder Section 33A of the ID. Act holding the same to be maintainable as the industrialdisputewas pendingand duringthe pendencyof the said dispute > the complaint was filed. The Tribunal accordinglycame to the conclusion that there was a contiaventionof Section 33 of the ID Act as prior peimissionof the Tribunalwas not taken before temiinatingthe servicesof the appellants.Onthis basis,the Tribunalpassedorderin thesaid complaint directingreinstatementof the appellantswith 50%backwages.

¶5Challengingthe awai'd dated 30^'' September, 1996 in ID No.56 of 1988 and ID No.10 of 1989, the respondent Management filed writ petitions.ThesepetitionshadbeenallowedbythelearnedSingleJudgevide impugnedjudgmentdated 17"' August, 2011. Sequentially,learnedSingle Judge has proceededby first decidingthe issue of jurisdictionand holding that the Delhi Governmentwas not an appropriategovernmentto refer the industiial dispute as the printing division where the workmen were (7 employed was at Noida. However the learned Single Judge has not restricted his decision on this ground alone, he examined the validity of the awai'd in ID No.56 of 1988 on merits also. The learned Single Judge took note of the fact that the Tribunal had itself come to a finding that settlement dated2"^^ November,1987whichwas stillsubsistingwas fail"and reasonable and binding on the workmen for the purposes of DA and HRA. On that basis, the learned Single Judge has held that the finding of the Tribunal that j^ itisnot bindingqua otherdemandsiscleaiiyinconsistentand contradictory. Following observations are made in this behalf- "24. Since both on the issue of territorial jurisdiction and the binding nature of the settlement the reference to the Tribunal was invalid, the question of violation of Section 33 (2) (b) of the ID Act by the management in not seeking approval of the Tribunal for its action of dismissing the ten workmen would not arise. Since this Court has found that the reference itself is bad in law, the consequence is that no application under Section . 33A of the ID Act could have beenfiled by the workmen complaining of violation ofSection 33 (2) (b) of the ID Act by the management.As a result, the impugnedorders of the Tribunal allowing the applications under Section 33A and directing reinstatement of workmen with 50% back wages are unsustainable in law and are hereby set aside. TheAward is also hereby set aside.'"

¶6We are quite in agreement with the aforesaid view taken by the learned Single Judge. x

¶7Once we proceed on the premise that there was a subsisting settlementdated2"'^ November,1987 itwill bind all the workmenincluding those whose cause was espoused by New Delhi General Mazdoor Union which had raised the industiial dispute, it would lead to the conclusion that there was no dispute between the parties which could have been refened for adjudicationand the preliminarysubmissionof the respondentManagement in this respect stands vindicated. On that basis, the reference has to be held to be bad in law and has been rightly set aside.

¶8In view thereof, the learned SingleJudge has further rightly obseived that the question of violation of Section 33(2)(b) of the ID Act thereby mandating the respondent Management to seek approval of the Tribunal before its action of dismissing the appellants would not arise and in such ciicumstancethe only coursewhich was open to the appellantswas to raise an industrial dispute under Section 10 of the Act.

¶9We thus do not find any merit in this appeal; it is accordingly dismissed. CM No.19397/2011 (for exemption) in LPA 873/2011 & CM No.19398/2011 (for exemption) in LPA 874/2011. Allowed, subject to just exceptions. ACT JUSTICE RAJIV^ SAHAIENDLAW, J OCTOBER 20, 2011/pp.. in

$-42. * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 873/2011 GYAN CHAND & ORS Appellants Through; Mr. H.K. Chaturvedi, Adv. versus MANAGEMENT OF INDITRAVELPVT LTD Respondent Through: Mr. Vinay Bhasin, Sr. Adv. with Mr. H.L. Raina, Adv. for R-1. AND 43. j + LPA 874/2011 RAJINDER KUMAR & ORS Appellants Through: Mr. H.K. Chaturvedi, Adv. versus MANAGEMENT OF INDITRAVELPVT LTD Respondent Through: Mr. Vinay Bhasin, Sr. Adv. with Mr. H. L. Raina, Adv. for R-1. CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAIENDLAW