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CASE NO.: Appeal (civil)  2257-2258 of 2005

PETITIONER: M/s. KEC International Limited

RESPONDENT: Shankar Lal Sharma

DATE OF JUDGMENT: 30/03/2005

BENCH: ASHOK BHAN & Dr.AR. LAKSHMANAN

JUDGMENT: J U D G M E N T

(Arising out of S.L.P. (C) Nos. 9843-9844 OF  2004)

WITH

CIVIL APPEAL NOS.2259-2260 OF 2005 (Arising out of S.L.P (C) Nos.12041-12042 of 2004)

BHAN, J.

                Leave granted.   

The employer-appellant (for short "the  appellant") is aggrieved by the impugned order in  judgment by the Division Bench of the High Court of  Judicature for Rajasthan at Jaipur Bench in Review  Petitions No.2255 and 2275 of 2002 dated 22.01.2004  arising in D.B. Civil Special Appeal Nos. 589 and  591 of 1997 (M/s. KEC International Ltd. Vs. Shankar  Lal & others) decided on 08.11.2001 to the limited  extent set out hereafter.

According to the appellant, the only issue in  these proceedings was regarding the validity of  termination of the service of the respondent-workman  with effect from 08.08.1981 and other incidental  matters.  However, while deciding the dispute the  Single Judge has also approved the proceedings under  Section 33(2)(b) of the Industrial Disputes Act,  1947 (for short "the Act") with respect to the  subsequent dismissal with effect from 08.04.1992  arising out of the domestic inquiry and finding of  guilt regarding later misconduct of the respondent- workman.   It is the case of the appellant that the  approval of the subsequent dismissal was not at all  before the Single Judge in the proceedings in  question.  The learned Single Judge in its judgment  dated 20.03.1993 had observed as follows :-

"On the question of the subsequent  termination of his service, no formal  approval having been taken within the  meaning of Sec. 33 (2) (b) of the Act, the  net effect is that he continues in service

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and the subsequent order of termination of  his services would not be deemed to be  operative."

The appellant, being aggrieved, filed appeals  before the Division Bench.   As per case set out in  these appeals, the Division Bench has also approved  the above observations of the learned Single Judge.   The appellant filed review applications which have  been dismissed by the impugned order in Civil Appeal  Nos..............of 2005 @ S.L.P. (C) Nos.9843-9844  of 2004.  The appellant has sought the setting aside  of the above quoted observations made by the Single  Judge which have been affirmed by the Division  Bench.  That the Division Bench has erred in  dismissing the review applications although there  was a mistake apparent on the face of the record.   

As the present litigation has acquired  chequered history with several proceedings pending,  it would be necessary to set out the few relevant  facts which are necessary to adjudicate upon the  controversy raised in these appeals.

Services of Shri Shankar Lal Sharma, (the  respondent herein) who was employed as workman with  the appellant company since 19.09.1977 were  terminated with effect from 08.08.1981.  The  respondent raised an industrial dispute against the  action of the appellant.  The matter was taken up by  the Conciliation Officer-cum-Joint Labour  Commissioner, Jaipur for conciliation but the  parties failed to arrive at a settlement.  The  Conciliation Officer submitted failure report to the  State Government on 23.02.1982.  The State  Government in exercise of powers conferred upon it  under Section 10 (1) of the Act made a reference of  the dispute to the Labour Court, Jaipur for  adjudication.  The respondent filed his statement of  claim on 03.12.1982 and challenged the legality of  termination of his services on the ground of  violation of Section 25-F and 25-G of the Act and  also on the ground that fresh hands were employed   subsequently without complying with the provisions  of Section 25-H of the Act.

Appellant in its reply pleaded that the workman  was engaged as a casual labour to do the temporary  work after recovery of his accident.  He was again  recruited on 11.12.1980 on temporary basis and was  employed for the last time between 29.05.1981 to  08.08.1981 on temporary basis.  After the expiry of  the period of temporary employment on 08.08.1981 his  services were terminated as no work was available  with the employer and that the respondent did not  opt to come forward to join when fresh appointments  were made by the appellant.  It was also pleaded  that the respondent had not completed the period of  240 days of service immediately preceding the date  of termination of his services i.e. 08.08.1981 and  therefore, the provisions of Section 25-F, 25-G and  25-H of the Act were attracted in the case.  

The Labour Court on the basis of the evidence  adduced by the parties and after affording due

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opportunity of hearing to them passed its award on  01.08.1985.  The Labour Court declared the  termination of the services of the respondent as  illegal and unjustified and ordered his re- instatement with consequential benefits.  This award  was challenged by the appellant-company by filing  S.B. Civil Writ Petition No.2130 of 1989 which was  ultimately allowed on 13.05.1993 and the award of  the Labour Court dated 01.08.1985 was set aside and  the matter was remitted back to the Labour Court for  a fresh decision within a period of six months in  the light of the observations made in the judgment.  

Since no stay was granted on the order of re- instatement and payment of 50% back wages, the  appellant company re-employed the respondent on  19.02.1986 in terms of the award dated 01.08.1985  passed by the Labour Court, Jaipur.  

During the pendency of writ petition, on  02.06.1990 the respondent was placed under  suspension for subsequent gross misconduct and was  charge sheeted for the same.  After holding  departmental enquiry and giving due opportunity to  the respondent, he was ordered to be dismissed from  service on 08.04.1992.  But as the dispute was  pending adjudication before the Labour Court, the  appellant made an application under Section 33 (2)  (b) of the Act before the industrial tribunal for  approval of action of the dismissal of respondent  proposed to be taken by the appellant.  This  application was dismissed on 06.11.1993 as having  become infructuous in view of the judgment of the  Single Judge dated 13.05.1993 setting aside the  award dated 01.08.1985.  After the fresh award made  by the larbour court on 21st April, 1994 in view of  the remand of the case by the High Court, the  appellant filed an application for revival of its  application filed under Section 33 (2)(b) of the Act  seeking approval of the subsequent dismissal of the  respondent on 8.4.1992.  This application was  dismissed by the industrial tribunal on 7.4.1997.

In compliance to the directions of the Single  Judge in S.B. Civil Writ Petition No.2130 of 1985  the Labour Court after hearing the parties and on  the basis of the oral and documentary evidence  available on record passed the award on 21.04.1994  declaring the termination of the service of the  respondent as illegal and unjustified.  This award  was challenged by both the parties i.e. the  appellant by filing S.B. Civil Writ Petition No.4127  of 1994 and by the respondent by filing S.B. Civil  Writ Petition No.2860 of 1995.  Both these petitions  were heard and decided by a Single Judge.  The  Single Judge vide its judgment dated 20.03.1997  disposed of the writ petition by observing thus :-

"I am of the considered view that in  the facts and circumstances of the case,  there was a genuine mis-appreciation on the  part of the Judge, Labour Court in not  having made a proper computation as regards  the period of continuity in service within  the meaning of Sec. 25-F of the Act and on

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this score, the matter should go back  before the Labour Court.  Labour Court is  further to appreciate whether it went  beyond its scope of jurisdiction in  deliberating on the question that  interviews were taken after 8.8.1981 in  respect of juniors to the present workman  Shanker Lal, and whether he should be  deemed to be a permanent workman within the  meaning of law.

As the matter stands now, I am of the  considered view that the petitioner should  be deemed to be in continuous service.  On  the question of the subsequent termination  of his service, no formal approval having  been taken within the meaning of Sec.33 (2)  (b) of the Act, the net effect is that he  continues in service and the subsequent  order of termination of his services would  not be deemed to be operative. While the  final decision is to be arrived at by the  Labour Court again on these two specified  questions, I would make it clear that the  petitioner Shanker Lal would be deemed to  be in continuous service and it would not  be construed that the Award as made by the  Labour Court as regards directing  reinstatement of the workman Shanker Lal  Sharma has in any manner been set aside or  recalled."

                                               [Emphasis supplied]

Since both the writ petitions were disposed of  by the aforesaid common judgment, the appellant  filed two special appeals against the aforesaid  judgment.  The Special Appeal No.589 of 1997 was  filed by the appellant against the decision of the  Single Judge in S.B. Civil Writ Petition No.4127 of  1994 on the ground that the learned Single Judge had  examined the factual aspect of the matter as if it  was a court of appeal and the conclusion arrived at  with regard to the number of days the workman had  worked with the appellant company during 12 months  immediately preceding his termination on 08.08.1981  was factually incorrect.  It was prayed that the  order of the Single Judge be set aside and the writ  petition be allowed and the relief be granted in  terms of the prayers made in the writ petition.

Special Appeal No.591 of 1997 was filed by the  appellant against the decision of the Single Judge  in S.B. Civil Writ Petition No.2860 of 1997 on the  ground that the learned Single Judge had exceeded in  the exercise of its jurisdiction in holding that the  order of termination of the respondent’s services  would be inoperative as formal approval under  Section 33 (2) (b) of the Act for subsequent  dismissal had not been obtained.  The Division Bench dismissed the Special  Appeal No.589 of 1997 by observing that the Single  Judge could examine the factual aspect of the matter  on the basis of the evidence available and upheld  the order of remand passed by the Single Judge to

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ascertain as to whether the workman had completed  240 days of service or not.  The learned counsel for  the appellant does not challenge this finding of the  Division Bench.   The Division Bench dismissed the Special Appeal  No.591 of 1997 as well and rejected the contention  advanced on behalf of the appellant that the Single  Judge had exceeded in the exercise of his  jurisdiction that the subsequent dismissal of the  respondent on 8.4.1992 will be inoperative because  of the lack of formal approval under Section 33 (2)  (b) of the Act for the subsequent dismissal.

The appellant has filed the present appeals for  setting aside the observations made by the Single  Judge,  reproduced in para 5 of this judgment, and  its affirmation by the Division Bench.  The counsel  appearing for the respondent-workman fairly concedes  that the aforesaid observations made by the Single  Judge as affirmed by the Division Bench did not  arise in the present proceedings and therefore,  unwarranted and uncalled for being obiter.  He has  no objection to the setting aside the above quoted  observations made by the Single Judge as affirmed by  the Division Bench.  Accordingly, the above quoted  observations made by the Single Judge in its order  which have been later on affirmed by the Division  Bench are set aside.

Learned counsel for the appellant prayed that  in view of the setting aside of these observations,  the tribunal be directed to decide the application  filed by the appellant for approval of the  subsequent proceeding with regard to the subsequent  dismissal afresh, we do not agree with this  contention.

The appellant filed an application before the  tribunal on 08.01.1999 for fixing the date in  application under Section 33 (2) (b) of the Act  pursuant to the tribunal’s order dated 07.04.1993 on  the ground that the order of   Single Judge had been  stayed by the Division Bench.  Tribunal dismissed  the application filed by the appellant on the ground  that the appellant was indirectly seeking review of  its order dated 07.04.1997.   

Appellant, being aggrieved,  by the aforesaid  order of the tribunal filed CWP NO.4618 of 1997.   This writ petition was dismissed by the Single Judge  on 19.08.2002.  Aggrieved against the order passed  by the Single Judge in CWP No.4618 of 1997, the  appellant has filed DBSAW No.1006 of 2002 which is  still pending.  The appellant would be at liberty to  urge the point regarding the approval under Section  33 (2) (b) of the Act to the subsequent dismissal of  the respondent-workman in DBSAW No. 1006 of 2002.   We agree in substance with the contention raised by  the learned counsel for the appellant that the  appellant is entitled to get a decision on merits on  the application filed by it under Section 33(2)(b)  of the Act seeking approval on the subsequent action  taken but for that we cannot send the case back to  the industrial tribunal as the tribunal has already  decided the said application and the matter is now

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pending for adjudication before the High Court in  DBSAW No. 1006 of 2002.  Remittance of the case to  the tribunal would amount to deciding the matter  pending before the High Court in DBSAW No. 1006 of  2002 which we refrain ourselves from doing.

The Division Bench shall decide DBSAW No.1006  of 2002 without being influenced by any of the  observations made by the Single Judge, the Division  Bench or by us regarding the approval to the  application filed by the appellant under Section 33  (2) (b) of the Act with regard to the subsequent  dismissal of the respondent-workman.  All  contentions are left open to the parties in this  regard.

        The Civil Appeals are allowed and the impugned  judgment is set aside to the limited extent  indicated in the judgment.  No costs.