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PETITIONER: H.D.  SHARMA

       Vs.

RESPONDENT: NORTHERN INDIA TEXTILE RESEARCH ASSOCIATION & ANR.

DATE OF JUDGMENT:       28/03/2000

BENCH: Y.K.Sabharwal, S.S.Ahmad

JUDGMENT:

     Y.K.SABHARWAL J.

     The appellant was ordered to be dismissed from service in  terms  of  the dismissal order dated  24th  April,  1987 passed  by the employer ?  respondent no.1.  The said  order is  said  to have been passed considering the report of  the Inquiry  Officer in respect of the charges levelled  against the  appellant.   Section  6-E(2)(b) of  the  UP  Industrial Disputes  Act,  1947  (For  short, ‘the  Act’),  inter  alia stipulates  that  during the pendency of any proceedings  in respect  of  an  industrial dispute, the  employer  may,  in accordance  with the Standing Orders applicable to a workman concerned  in such dispute, for any misconduct not connected with  the dispute, discharge or punish, whether by dismissal or otherwise that workman.  The proviso to the said section, however, stipulates 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 proceedings  are  pending  for approval of the action taken by the employer.  On account of pendency  of industrial disputes in Reference Proceedings in Adjudication  Case  No.   53 of 1986,  respondent  no.1,  as required  by  the  aforesaid section, moved  an  application dated  27th  April,  1987  before  the  Industrial  Tribunal seeking  approval  of  the  order of  dismissal.   The  said application  was registered as Miscellaneous Case No.  7  of 1988.   It  was  resisted by the appellant.   In  reply  the appellant  inter  alia disputed that he was paid one  months wages  as  required  by Section 6- E(2)(b) of the  Act.   An application  was  also  moved by the  appellant  before  the Industrial Tribunal stating that he has not been paid HRA as well  as  CCA which was payable to him and,  therefore,  the employer  has not paid to him full month wages payable under Section 6-E(2)(b).

     After  the  dismissal  order was made,  the  appellant raised  an industrial dispute challenging his dismissal  and the  State Government made a reference under Section 4-K  of the  Act  for  adjudication  of  the  said  dispute  by  the Industrial  Tribunal.   This was registered as  Adjudication Case  No.  31 of 1988.  The dispute referred was as  follows "Whether  dismissal  order dated 24th April, 1987 passed  by the employer against workman Hari Dutt Sharma, son of Kishan

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Chand Sharma, General Clerk-cum-Duplicating Machine Operator is   legal  and/or  justified?   If   not,  then   to   what benefit/relief  the  workman  is entitled for and  with  any other details?"

     Respondent  no.1,  by  its   application  dated   31st January,  1990, sought permission of the Industrial Tribunal to  withdraw the approval application.  The said application was dismissed by the Industrial Tribunal by order dated 29th June, 1990.

     The  order  dated  29th June, 1990 was  challenged  by respondent  no.1 in a writ petition filed in the High Court. By  impugned  judgment  dated 11th February,  1998,  learned Single  Judge  of the High Court has set aside the order  of the  Tribunal  dated  29th June, 1990 and has  directed  the Tribunal  to  allow the withdrawal of the application  filed under Section 6-E(2)(b) of the Act.

     The  only  reason given by the High Court for  setting aside  the  order  of  the Tribunal  is  that  two  parallel proceedings  ?  one under Section 6-E(2)(b) and the other on reference  under  Section  4-K of the Act relating  to  same matter  cannot  be  allowed to continue and that  the  point raised  in  the application under Section 6-E(2)(b)  can  be agitated  and finally disposed of in a more effective manner if  the  proceedings are taken on the basis  of  application under Section 4-K of the Act.

     We  are unable to sustain the aforesaid reasons  given by  the High Court.  The scope of proceedings under the  two provisions  is  substantially different.   Separate  rights, remedies  and  protections have been provided under  Section 6-E(2)(b)  of the Act.  The proceedings under Section 4-K of the Act would not come to an end on grant of approval to the employer  under Section 6-E(2)(b) of the Act.  It cannot  be said that two proceedings ?  one under Section 6-E(2)(b) and other  on  reference under Section 4-K of the Act cannot  be continued  at the same time.  We do not have the benefit  of the viewpoint of the High Court on various grounds stated by the tribunal in the order declining permission to respondent no.1 to withdraw the approval application.  Since we propose to remand the matter to High Court for fresh decision of the writ petition, we refrain from expressing any opinion on the reasons  given in the order of the tribunal dated 29th June, 1990  which have not been dealt by the High Court nor do  we consider  it appropriate to express opinion at this stage on the  consequences of withdrawal of the approval  application or  prayer  for such withdrawal can be declined or not.   In short,  we  keep  open  all   questions  considered  by  the Industrial Tribunal.

     In  view  of the aforesaid, we set aside the  impugned judgment  of  the  High Court and direct the High  Court  to decide  the matter afresh.  We would request the High  Court to  decide  the writ petition preferably within a period  of three  months.   The  appeal  is  accordingly  disposed  of. Parties are, however, left to bear their own costs.