Full Judgment Text
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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.