Aniruddha Bose, J.@mdashIn the instant writ petition under challenge is an order passed by the National Industrial Tribunal, Mumbai, by which an application filed by the writ petitioner for approval of an order of removal respondent No. 1 has been rejected. In the main writ petition an interim order has been passed staying the operation of the impugned order being Annexure P-23 to the writ petition.
2. Subsequently an affidavit affirmed by the respondent No. 1 has been filed in which it has been pleaded that she is not gainfully employed in any establishment from the date of termination of her service till the date of affirming the affidavit, which is 19th March, 2007. This affidavit has been filed in terms of Section 17B of the Industrial Disputes Act, 1947. There has been no specific prayer or relief claimed in this affidavit excepting statements to that extent.
3. Learned Counsel for the respondent No. 1 has however, submitted that in terms of Section 17B of the Industrial Disputes Act, 1947 what is needed is only filing of an affidavit stating the conditions stipulated in that section stands satisfied, and the relief ought to flow from the said fact being brought to the notice of the Court.
4. The controversy in this proceeding, however, is not in connection with the mode in which the prayer for back wages and continuation of payment of last drawn salary has been made, but the very maintainability of the prayer u/s 17B of the Industrial Disputes Act, 1947 in a case where there is no award per se of the Tribunal directing reinstatement of the workman, but there is only an order rejecting an application for approval of an order for removal from service.
5. Mr. Majumdar, learned Counsel appearing for the petitioner has taken up this preliminary point relying on a Bench decision of this Court in the case of Saxby Farmer v. State of West Bengal reported in 1997(2) CHN 598. Prior to this judgment by the Appellate Bench, the view of this Court as reflected in two Bench decisions was that in a case where there is rejection of an application for approval of this nature, the claim for relief in terms of Section 17B of the Act would be maintainable. These two authorities are:
(1) Sk. Samser Ali v. Kesoram Industries & Cotton Mills Ltd. and Anr. 1987(II) CHN page 8 and
(2) Bata India Limited v. 7th Industrial Tribunal and Ors. 1993(II) CHN page 464.
6. In the case of Sk. Samser Ali it was held that:
Hearing the learned Advocates on the point as indicated hereinbefore and considering them with the definition of an ''award'' as in Section 2(k) of the same, we feel it difficult to hold in favour of the submissions of Mr. Ginwalla. We are of the view that an order made u/s 33(2)(b) of the said Act, can be enforced in an application u/s 17B of the said Act and thus it is also very difficult to hold in agreement with the submissions of Mr. Ginwalla, that on the basis of the language of Section 17B, the same has application only in respect of reinstatement arising out of awards and not in a case where order has been passed u/s 33(2)(b) of the said Act. In fact, we are also of the view that the determinations in Straw Board Manufacturing Co. Ltd. etc. v. Govind (supra), on which Mr. Ginwalla placed great reliance, will not really help him, but the observations are made therein, with really go against his contentions.
7. The same ratio was applied in the case of Bata India Limited (supra), it was held:
In that view of the matter we are unable to accept the submission of Mr. Ginwalla that provision of Section 17B would not be applicable as there was no award directing reinstatement. The definition of award and industrial disputes as it would appear from Section 2(b) and Section 2(k) of the said Act, themselves, are of the widest amplitude. Award has been defined u/s 2(b) of the Act as an interim or final determination of any industrial disputes or of any question relating thereto of any Labour Court of Industrial Tribunal or National Industrial Tribunal and Industrial Disputes has been defined u/s 2(k) of the said Act as any dispute between the employers and employees or between the employeres and workman and between the workman and employers which is connected with the employment or non-employment or with the terms of employment or with the conditions of labour of any persons. The decision of the Industrial Tribunal u/s 33(2)(b) of the Industrial Disputes Act, disapproving the order of dismissal, is certainly a matter relating to employment or non-employment of the workman and is certainly a determination by the Tribunal in respect thereto. Such a decision is certainly a determination that the dismissal in question is invalid and therefore cannot be approved. There is no reason therefore, as to why giving a liberal interpretation to the provision of Section 17B of the said Act, such a decision of the Industrial Tribunal u/s 33(2)(b) of the said Act cannot be termed as an award within the meaning of Section 17B of the said Act.
8. The Hon''ble Division Bench in the case of Saxby Farmer (supra) however, opined that an order rejecting an application for approval u/s 33(2) is not an award and to that extent Their Lordships differed from the view taken by the earlier two Division Bench decisions. The issue as to whether an order dismissing an application on approval of an order for removal of a workman u/s 33(2)(b) of the Industrial Disputes Act is an award directing reinstatement within the meaning of the phrase u/s 17B of the Act has been referred to the Hon''ble Chief Justice for resolution of the matter by a larger Bench by the Hon''ble Decision Bench in the case of Saxby Farmer (supra).
9. At this stage, I am first to consider whether the ratio of the two earlier decisions still remain binding on me or because of the disagreement by the Hon''ble Division Bench, the issue remains open before me to form an independent opinion.
10. The factual position as submitted by the learned Counsels appearing for the parties is that the matter has not yet been resolved by a larger Bench and these three judgments remain as precedents so far as this Court is concerned on the point involved in the present proceeding.
11. I am of the opinion, however, that so far as this Court is concerned, the ratio of the decisions reported in
12. Mr. Majumder has also submitted that I ought to bring this matter to the notice of the Hon''ble Chief Justice so that a larger Bench could be constituted for resolving this controversy. Such course is permissible, as held in the Full Bench decision of this Court in the case of
13. I am, however, not inclined to take such a course as this Court delivered in the case of Sk. Samser Ali and Bata India Limited.
14. The reason as to why I agree with the ratio of the two decisions is that in my opinion the order of rejection to grant approved filed by an employer for removal of a workman comes within the expression "award directing re -instatement of a workman." The expression "award has been defined in Section 2(b) of the Industrial Disputes Act to mean " an interim or final determination of any Industrial Dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Tribunal." This is an inclusive definition and includes an arbitration award made u/s 10A of the Act.
15. So far as the facts of the present case is concerned, there was an initiation of proceeding against the respondent No. 1 by issuing a chargesheet which resulted to an enquiry proceeding culminating in an order for her removal, the National Industrial Tribunal had considered the dispute at length and delivered the judgment upon considering the various stages of the proceeding which led to the removal of the respondent No. 1. This fits the description contained in the first part of definition of the term "award" that is final determination by a National Industrial Tribunal of a question relating to an industrial dispute. However, at this stage, I do not think I ought to enter into the merits of this judgment for that has to be tested while deciding the writ petition itself.
16. Next comes the question as to whether the refusal to grant approval amounts to direction for reinstatement of any workman or not. In reality, if the order for removal is not approved, the concerned workman shall be deemed to have continued in service from the date of her removal. On the other hand, if the approval is given, then her removal would become effective. The effect of such rejection is reinstatement of the workman only.
17. So far as the Bench decision in the case of Saxby Farmer is concerned, there is one vital difference with the present case on facts. In the case of Saxby Farmer, the order for rejection came from the Assistant Labour Commissioner, who was discharging the duty of a Conciliation Officer, In that light the Bench observed that since the Conciliation Officer was neither a Labour Court nor Tribunal or National Tribunal, these being the three authorities, whose direction for reinstatement could invite invocation of Section 17B. Their Lordships took the view that the Conciliation Officer is not included as one of the authorities who could pass the award. In the present case, however, the order for rejection has come from the National Industrial Tribunal and not from a Conciliation Officer.
18. In the cases of Sk. Samser Ali and Bata India Limited also it was the Industrial Tribunal who had rejected the order of approval u/s 32 of the Industrial Disputes Act, 1947.
19. In view of the aforesaid facts, I direct the writ petitioner to continue with the payment of last drawn wages to the respondent No. 1 until disposal of the writ petition or until further order whatever may by the case.
20. There is another aspect, to which I shall address in this matter. For this interim relief, no independent application has been filed, but only an affidavit has been filed stating the facts as regards non-employment of the respondent workman.
21. Section 17B of the Industrial Disputes Act does not contemplate filing of any application and the scheme of this Act seems to be that if by the affidavit it is brought to the notice of the Court that the concerned workman is not gainfully engaged elsewhere, then the relief ought to automatically follow. However, since this has been taken as an independent proceeding. I direct the department to treat this affidavit as an application and assign a CAN number to the application.
22. With these directions the proceeding u/s 17B stand disposed of. So far as the main writ petition is concerned, let the interim order continue till disposal of the writ petition.
Xerox certified copy, if applied for, be given to the appearing parties on priority basis.
