Amrita Bazar Patrika Pr. Ltd. v. U.P State Industrial Tribunal And Others

D.D Seth, J.:— This petition under Article 226 of the Constitution has been filed by. The Amrita Bazar Patrika, Private Ltd., under the following circumstances:

The Allahabad branch of the petitioner company was closed down with effect from January 15, 1959 and no business of the petitioner is transacted here at Allahabad. Parasnath Misra, opposite party No. 2 to the petition, was one of the workmen employed by the petitioner. He was charge-sheeted by the management of the petitioner on January 28, 1958 for misbehaviour, discourtesy, insubordination and disobedience and was suspended with effect from January 29, 1958. A domestic enquiry was held into the charges and he was ultimately dismissed by the Managing Director on March 12, 1958 with effect from the date of suspension. This order was communicated to him on March 20, 1958. Thereafter, the opposite party No. 2 approached the Regional Conciliation Officer, Allahabad, who registered a case as C.B Case No. 39 of 1958. Notice was issued by the Conciliation Officer to the petitioner who filed a written-statement. The case was withdrawn by the opposite party No. 2 unconditionally on May 9, 1958. Some time in August, 1958 the opposite party No. 2 again approached the Conciliation Officer who again registered a case as C.B Case No. 91 of 1958 and issued notice to the petitioner and the petitioner filed its written-statement on October 8, 1958. No conciliation was brought about by the Conciliation Officer who submitted a report to the State Government but the Government refused to refer the matter as an industrial dispute for adjudication on or about June 5, 1959. While the rpeort of the Conciliation Officer in C.B Case no. 91 of 1958 was pending with the State Government a letter dated November 15, 1958 was received by the Company from the Regional Conciliation Officer, Allahabad, to the effect that it had been brought to his notice that the services of Paras Nath Misra had been terminated by an order dated March 20, 1958 and that at the time of the termination of his services an industrial dispute No. 64 of 1957 was pending before the Industrial Tribunal (General) U.P and that the award of the said Tribunal was enforced by Government Notification dated March 21, 1958 and that the workman was neither paid wages for one month nor was any application made by the Company to the Industrial Tribunal for approval of the action taken by it in accordance with the provisions of Section 6-E(2)(b) proviso 1 of the U.P Industrial Disputes Act (hereinafter called “the Act”) and requiring the Company to show cause why the provisions of law were not complied with and why action be not taken for this breach. A reply was sent by the Company to the effect that the award of the State Industrial Tribunal in case No. 64 of 1957 was dated March 17, 1958 and the dismissal order was passed after the award had been made and, therefore, Paras Nath could not make any grievance regarding the alleged violation of the provisions of Section 6-E of the Act. Thereafter the opposite party no. 2 filed an application on July 18, 1959 under Section 6-F of the Act before the State Industrial Tribunal, Allahabad, which registered a case and issued notice to the petitioner. It may be noted here that at the time of the termination of the services of Paras Nath and at the time when Paras Nath made the application under Section 6-F of the Act industrial dispute (No. 64 of 1957) in regard to the payment of bonus for the year 1955 was pending before the Industrial Tribunal (General), U.P, Allahabad. Eventually it was held by an award dated March 17, 1958, published in the U.P Gazette on March 21, 1958, in case No. 64 of 1957 that the Allahabad branch of the petitioner Company did not contribute anything to the profits of the Company and the workmen were not entitled to claim any bonus. Sri Paras Nath contended that the provisions of Section 6-E(2) of the Act had been contravened inasmuch as an approval of the Tribunal was not taken before dismissing him and payment of one month's wages was not made to him as required by law and, therefore, the dismissal was null and void and he continued in service and should be re-instated. The petitioner filed its written-statement and contested the proceedings. The written-statement was filed along with some documents but the Tribunal did not accept in evidence the documents bearing on the domestic enquiry. After hearing the parties the Tribunal gave its award on August 24, 1959. The Tribunal held that the fact that the earlier disputes (C.B Case No. 39 of 1958 and C.B Case No. 91 of 1958) had either been withdrawn by the workman or the State Government had refused to refer the matter as an industrial dispute for adjudication did not mean that Paras Nath had given up his right to claim adjudication from the Tribunal. It also held that the Company has not ceased to exist and is even now carrying on its business at Allahabad, so far as it is necessary to wind it up. The Tribunal further held that there has undoubtedly been great delay on the part of Paras Nath in filing the application under Section 6-F of the Act. The Tribunal also held that “the charge-sheeting, the enquiry and the dismissal took place during the pendency” of the bonus dispute which continued from December 16, 1957 to April 20, 1958 and, therefore, it was the Company's duty to pay the complainant one months wages and to make an application to the Tribunal for the approval of the action taken by it and since it was not done the order of dismissal was null and void for non-compliance with the requirements of Section 6-E(2) of the Act. The Tribunal, therefore, ordered that the opposite party No. 2 be re-instated with benefit of continuity of service and be paid half of the wages and allowances that he would have earned for the period he was out of employment. This award was published by the State Government in U.P Gazette dated October 10, 1959. The petitioner challenges the award as null and void and prays that it be quashed.

2. Counter affidavits have been filed by the Additional Regioinal Conciliation Officer, Allahabad, by Paras Nath Misra, and on behalf of the State by Bhola Nath Gupta. The petitioner has filed its rejoinder affidavit. I have heard Sri Pandey, the learned counsel for the petitioner, Sri K.P Agarwala, the learned counsel for the opposite party No. 2 and Sri Lakshmi Saran, the learned Junior Standing Counsel for the State.

3. The learned counsel for the petitioner submitted that the Tribunal was not competent to set aside the order of dismissal on the ground of violation of the provisions of Section 6-E(2) of the Act and that the violation was a mere technicality. He also urged that the order of dismissal was passed on March 12, 1958 while the application of the opposite party No. 2 under Section 6-F of the Act was made on July 18, 1959 and as such the application was time-barred and the Tribunal could not entertain the same. It was submitted that the opposite party No. 2 was precluded from approaching the Tribunal as he had unconditionally withdrawn the case which he had originally registered with the Conciliation Officer and also because the State Government had refused to refer the alleged dispute for adjudication. It was, therefore, not open to the opposite party No. 2 to bring up the matter again by means of an application under Section 6-F of the Act. The learned counsel further submitted that the local branch of the petitioner had closed on January 15, 1959 and, therefore, the question of the re-instatement of opposite party No. 2 did not arise and in directing his re-instatement the Tribunal has committed a manifest error of law. It was urged that the Tribunal has not entered into the merits of the order of dismissal. Sri A.P Pandey also urged that the award was not enforceable as it was published by the State Govt. after a month: Lastly it was urged that an earlier award regarding bonus was given by the Tribunal on March 17, 1958 and was published in the U.P Gazette on March 20, 1958 and it remained in force for one year, while the application under Section 6-F was filed on July 18, 1959 and, therefore, the application was not competent after the award had spent its force by efflux of time.

4. Sri K.P Agarwala, on the other hand, submitted that by approaching the Regional Conciliation Officer twice the opposite party No. 2 was not debarred from filing his application under Section 6-F of the Act before the Tribunal. He submitted that sub-section (2) of Section 6-E of the Act is mandatory and its breach is not a mere technicality. The learned counsel contended that the Tribunal could not go into the merits of the order of dismissal and that no limitation has been provided in the Act for filing an application under Section 6-F. It was urged that the Tribunal had not become functus officio after the award in the earlier bonus dispute had been made and had the jurisdiction to entertain the application under Section 6-F. Sri K.P Agarwala submitted that after the order of dismissal had been found by the Tribunal to be illegal the only normal relief that could be granted to the opposite party No. 2 was reinstatement and that the order of reinstatement was proper as the opposite party No. 2 had been dismissed when the petitioner concern existed at Allahabad.

5. Section 6-F of the Act which is analogous to Section 33-A of the Central Industrial Disputes Act and to Section 23 of the Industrial Disputes (Appellate Tribunal) Act 1950, runs as follows:

“Where an employer contravenes the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal, any workmen aggrieved by such contravention may make a complaint in writing in the prescribed manner, to the Labour Court or Tribunal as the case may be, and on receipt of such complaint that Labour Court or Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with this Act and shall submit its award to the State Government and the provisions of this Act shall apply accordingly”.

6. This section provides speedy remedy to the workmen in disputes if there has been a contravention of the provisions of Section 6-E of the Act. Under this section even a single workman can lodge a complaint which has to be adjudicated upon as if it were a dispute referred to a Tribunal by the Government under Section 4-K of the Act. Section 6-F is brought into play only when there is a breach of the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal.

7. In the instant case it is admitted that there has been a contravention of Section 6-E(2) of the Act inasmuch as Paras Nath was dismissed during the pendency of an industrial dispute before the Tribunal without having been paid wages for one month and without an application having been made by the employer to the Tribunal before which the proceeding was pending for approval of the action taken by the employer, but it is contended that the employee could not derive any benefit from that breach as the breach was only a technicality.

8. Section 6-E of the Act which is ana-logus to Section 33 of the Central Act and to Section 22 of. The Industrial Disputes (Appellate Tribunal) Act, 1950 is as follows:—

“6-E(D During the pendency of any Conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall—

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute—

(a) alter, in regard to any matter not connnected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding, or

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:

Provided 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 proceeding is pending for approval of the action taken by the employer.

(3) Notwithstanding anything contained in sub-section (2) no employer shall, during the pendency of any such proceedings in respect of an industrial dispute take any action against any protected workman concerned in such dispute—

(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings, or

(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.

Explanation—For the purposes of this sub-section, a ‘protected workman’ in relation to an establishment, means a workman who, being an officer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf.

(4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub section (3) shall not exceed one percent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected work men and for the aforesaid purpose, the State Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which they may be chosen and recognized as protected workmen.

(5) Where an employer makes an application to a Board, Labour Court or Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, with out delay, hear such application and pass, as expeditiously as possible, such order in relation therato as it deems fit”.

9. This section provides a safe-guard to a workman against a malicious or capricious dismissal by the employer during the pendency of an industrial dispute before a Tribunal or other authority. It is open to an employer to dismiss a workman if there is no industrial dispute pending but if any such dispute is pending the employer cannot dismiss a workman even in respect of misconduct unconnected with the dispute pending before a Tribunal unless the approval of the Tribunal is obtained and the workman is paid one month's wages. Under Section 6-E the question of validity or otherwise of the order of dismissal is to be tried as if it had been referred to the Tribunal by the Government under Section 4-K of the Act, that is, the Tribunal has to examine the order of dismissal on merits. In the instant case the Tribunal has not entered into the merits of the order of dismissal, but has held that the order was bad because there was non-compliance of Section 6-E (2) of the Act, that is, an assumption has been made in favour of the workman.

10. It was held by the Supreme Court in Automobile Products of India, Ltd. v. Rukmaji Bala (1) that the authority to whom a complaint is made is to decide both the issues, viz., (1) the fact of contravention and (2) the merits of the act or order of the employer. The provisions of Section 6-E of the Act clearly indicate that the jurisdiction of the authority is not only to decide whether there has been a failure on the part of the employer to obtain the permission of the authority before dismissing an employee but also to go into the merits of the order of dismissal and grant appropriate reliefs. It is clear that a mere contravention of Section 6-E(2) of the Act does not, ipso facto, make the order of dismissal bad. If the order is good on merits a breach of Section 6-E(2) will be a mere technicality. The factum of contravention of Section 6-E (2) and the merit of the order of dismissal are two independent questions and both questions have to be decided by the authority to whom a complaint is made under Section 6-F. I am fortified in this view by a decision of the Supreme Court in Equitable Coal Ltd. v. Algu Singh (2) in which it was held that in an enquiry held under Section 23 of the Industrial Disputes (Appellate Tribunal) Act, which is analogous to Section 6-F of the Act two questions fall to be considered: “Is the fact of contravention by the employer of the provisions of Section 22 proved? If yes, is the order passed by the employer against the employee justified on the merits? If both these questions are answered in favour of the employee, the appellate Tribunal would no doubt be entitled to pass an appropriate order in favour of the employee. If the first point is answered in favour of the employee, but on the second point the finding is that, on the merits, the order passed by the employer against the employee is justified, then the breach of Section 22 proved against the employer may ordinarily be regarded as a technical breach and it may not, unless there are compelling facts in favour of the employee, justify any substantial order of compensation in favour of the employee”.

11. To the same effect is the case reported in Punjab National Bank, Ltd. v. Their Workmen (3). It was held in this case that the Tribunal should interfere in the case of dismissal of a workman in contravention of the provisions of Section 33 of the Central Act, where there is want of good faith, where there is victimization or unfair labour practice, where the management has been guilty of a basic error or violation of the principles of natural justice or where on the materials the finding of the management is completely baseless or perverse. It was also held in this case that there could be ???o doubt that in an enquiry under Section 33-A the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of Section 33 by the employer. After such contravention is proved it would still be open to the employer to justify the impugned dismissal on the merits.

12. The Tribunal has observed that under Section 6-E(2) of the Act it was the duty of the employer to make payment of one month's wages to the workman and to see??? the Tribunal's approval for his dismissal and if this was not done the order of dismissal was not valid in the eye of law. In this connection the Tribunal has relied upon a ruling of the Supreme Court reported in Workmen Of Dahingeapara Tea Estate v. Dahingeapara Tea Estate (4). This was not a case under Section 33 of the Central Industrial Disputes Act which is equivalent to Section 6-E of the Act, but was a case under Section 25-FF of the Central Act which makes special provision relating to workmen employed in undertakings which are transferred. Moreover in the case before the Supreme Court no dismissal order had been passed and only a notice of termination of services was given by the vendor of the Tea Estate during the pendency of conciliation proceedings.

13. Section 6-E of the Act deals with two kind of cases.

14. Section 6-E(1) deals with matters connected with industrial disputes. The ban in this section is absolute on the part of an employer to deal with his employees.

15. Section 6-E (2) deals with matters not connected with industrial disputes. Here the ban is only as far as an order of dismissal is concerned but it is open to the employer to frame a charge-sheet against a workman and to enquire into his conduct by setting up a domestic enquiry. In the instant case it is Section 6-E (2) which is applicable because the complaint lodged by the workman under Section 6-F had no connection with the industrial dispute regarding bonus which was pending before the Tribunal. The Supreme Court ruling, therefore, is distinguishable and the Tribunal misdirected itself by relying on the same and in holding that the order of dismissal was invalid just because there had been a contravention of Section 6-E(2) of the Act. The Tribunal has not dealt with the merits of the order of dismissal and has not given any finding that it was mala fide or was based on victimization. The Tribunal has assumed in the employer's favour that the order of dismissal would have been proper and valid if the proceedings had not been pending before the Tribunal.

16. In view of the rulings of the Supreme Court discussed above it must be held that the Tribunal should have entered into the merits of the order of dismissal and that breach of Section 6-E(2) of the Act in the instant case was a mere technicality and the Tribunal was manifestly wrong in holding that just because there has been a contravention of Section 6-E(2) the order of dismissal was invalid. This is an error apparent on the face of the record in the order of the Tribunal.

17. Sri K.P Agarwala contended that the rulings of the Supreme Court mentioned above are based on obsolete law and the provisions of the Act have been materially changed by the U.P Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (U.P Act No. 1 of 1957) by which the words “any misconduct connected with the dispute” were introduced in Section 6-E (1)(b) and the entire Section 6-E(2) was added and a new liability was created for the employer and, therefore, these rulings have no relevancy as far as the present dispute was concerned. He says that all the rulings discussed above were on Sections 22 and 23 of the Industrial Disputes (Appellate Tribunal) Act which correspond to Sections 6-E and 6-F of the Act. He also urged that there is no analogous provision in respect of Section 6-E (2) in Section 22 of the Industrial Disputes (Appellate Tribunal) Act 1950 and according to him Section 6-E (2) of the Act is mandatory and any breach thereof will make an order of dismissal an invalid order. Sri K.P Agarwala relied upon a ruling of the Supreme Court reported in Strawboard Manufacturing Company v. Gobind (5) in which it was held that Section 6-E(2)(b) of the Act read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him. If the Tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. The Supreme Court further held that the proviso to Section 6-E (2) contemplates three things mentioned therein, namely,.

(i) dismissal or discharge;

(ii) payment of wages;; and

(iii) making of an application for approval, to be simultaneous and to be part of the same transaction.

18. According to Sri Agarwala in the instant case since wages for one month were not paid and no application for approval was made the order of dismissal is vitiated. He also relied upon a ruling reported in P.H.Kalyani v. Air France, Calcutta, Calcutta (6). These cases have no bearing on the instant case as they deal with questions which are taken into account when an employer makes an application for approval of the order of dismissal. These are not cases of complaint filed under Section 6-F of the Act and are, therefore, distinguishable. Different considerations are bound to arise when an employer asks the Tribunal for approval of its action than which arise when a complaint is filed by a workman under Section 6-F of the Act.

19. I now proceed to discuss whether there has been a change in the law of Industrial Disputes by the U.P Act I of 1957. In the Central Industrial Disputes Act, as it stood in 1947, there was no section like Sec. 33-A which is analogous to Section 6-F of the Act. Section 33-A was introduced in the Central Act by Act No. 48 of 1950 while Section 33 of the Central Act which corresponds to Section 6-E of the Act, was there from before. Section 33 of the Central Act, as it stood in 1947, runs as follows:

“No employer shall, during the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings, nor, save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be, shall he, during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workmen, except for misconduct not connected with the dispute.”

20. This section placed a ban on dismissal or discharge save with the express permission in writing of the Conciliation Officer, Board or Tribunal as the case may be.

21. Act No. 48 of 1950 was for amendment of the Industrial Disputes (Appellate Tribunal) Act and a schedule was appended to it which amended the provisions of Central Disputes Act and the present Section 33-A of the Central Act was introduced thereby. Subsequently new Section 33 was substituted by Act 36 of 1954 and this section was split up into two parts: 33(1) and 33(2). Section 33(1)(a) and (b) deals with acts of misconduct connected with the dispute. Section 33(2)(a) and (b) is confined to acts of misconduct not connected with a dispute. Heading the old Section 33 and the new Section 33(1) and (2) of the Central Act I have no doubt that in principle there has been no change in the law. The ban regarding dismissal or discharge without approval of the Conciliation Officer, Board or Tribunal was in the old Section 33 of the Central Act and Section 22 of the Industrial Disputes (Appellate Tribunal) Act also. The only change that has been brought about in the law is that under Section 33(1) of the Central Act, that is, in regard to any matte: connected with the dispute express permission in writing of the authority before which the proceeding is pending has to be obtained and in Section 33(2) in regard to any matter not connected with the dispute approval of the action taken by the employer has to be obtained from the authority before which the dispute is pending. Therefore, it is not correct to say that the rulings of the Supreme Court relied upon by the learned counsel for the petitioner are not applicable to the instant case.

22. Coming to the U.P Industrial Disputes Act we find that there were no sections corresponding to Sections 33 or 33-A of the Central Act in the U.P Industrial Disputes Act as it originally stood in 1947.

23. Section 3 of the original U.P Act dealt with the power of the State Government to prevent strikes, lock-outs, etc. and ran as follows:—

“If in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or special order, make provision—

(a) for prohibiting, subject to the provisions of the order, strikes or lockouts generally, or a strike or lock-out in connection with any industrial dispute;

(b) for requiring employers workmen or both to observe for such period, as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order;

(c) for appointing industrial courts;

(d) for referring any industrial dispute for conciliation or adjudication in the manner provided in the order;

(e) for requiring any public utility service or any subsidiary undertaking not to close or remain closed and to work or continue to work on such conditions as may be specified in the order;

(f) for exercising control over any public utility service, or any subsidiary undertaking by authorising any person (hereinafter referred to as an authorised controller) to exercise, with respect to such service, undertaking or part thereof such functions or control as may be specified in the order and on the making of such order the service, undertaking or part, as the case may be, shall so long as the order continues, be carried on in accordance with any directions given by the authorised controller in accordance with the provisions of the order; and every person having any functions of management of such service, undertaking or part thereof shall comply with such directions.

(g) for any incidental or supplementary matters, which appear to the State Government necessary or expedient for the purpose of the order:

Provided that no order made under clause (b)(i) shall require an employer to observe terms and conditions of employment less favourable to them at any time within three months preceding the date of the order;

(ii) shall, if an industrial dispute is referred for adjudication under clause (d), be enforced after the decision of the adjudication authority is pronounced by, or with the consent of, the State Government.”

24. By sub-sections (c) and (g) of the above quoted section legislative power was delegated to the State Government.

25. Section 8 of the original U.P Act gave power to State Government to obtain informations. The combined effect of these sections was that the State Government was authorised to promulgate orders and it did issue an order dated March 10, 1948 for settlement of industrial disputes (See Annual Review of Activities parts I and II (1950) p. 20). Clause 23 of the order dated March 10, 1948 runs as follows:

“23. Save with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer, concerned, irrespective of the fact whether an enquiry is pending before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal has been filed before the Industrial Court, no employer, his agent or manager, shall discharge or dismiss any workmen during the continuance of an enquiry or appeal and pending the issue of the orders of the State Government upon the findings of the said court.

Provided that nothing in this clause shall apply to all or any of the following:

(1) Workers engaged on daily paid basis for work of a specified temporary nature, when that work has been completed.

(2) “Workers engaged temporarily as relief staff for absentees when the absentees have turned up.

(3) Workers employed on probation or trial, during or at the end of the period of probation or trial.

(4) Worker engaged on contract for a definite period at the close of that period.”

26. It is thus clear that by clause 23 of the order of the State Government dated March 10, 1948 some sort of a ban was placed on an employer from discharging or dismissing a workman during the continuance of an enquiry as was placed by Section 33 of the Central Act.

27. The order dated March 10, 1948 was replaced by an order of the State Government dated March 15, 1951. (See Annual Review of Activities, parts I and II (1952) p. 311). Clause 26 of the order dated March 15, 1951 is as follows:

“26. During the pendency of any conciliation proceedings or proceedings before the Tribunal or an Adjudicator in respect of any dispute and, where sub-clause (3) of clause 6 applies, for a further period of 30 days, (excluding holidays but not annual vacations observed by courts subordinate to the High Court) an employer shall not (a) alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceeding or (b) discharge or punish whether such punishment is by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of a Conciliation Officer of the area concerned irrespective of the fact whether the dispute is pending before a Board or the Tribunal or an Adjudicator:

Provided that nothing in the foregoing clause shall be construed as a restriction on the powers of an employer to discharge or dismiss all or any of his workmen employed on daily paid basis for work of a specified temporary nature, temporary relief staff for absentees, on probations or trial and on contract for a definite period, after the close of the term of their employment.”

28. The last order issued by the State Government is dated July 14, 1954. (See Annual Review of Activities Parts I and II (1954) p. 390). Clause 29 of this order is to the following effect:

“29. Conditions of service to remain unchanged during proceedings—

During the pendency of any conciliation proceedings or proceedings before the Tribunal or an Adjudicator in respect of any dispute and, where sub-clause (3) of clause 5 applies, for a further period of 30 days (excluding holidays but not annual vacations observed by courts subordinate to the High Court), an employer shall not—

(a) alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings, or

(b) discharge or punish, whether such punishment is by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of a Conciliation Officer of the area concerned, irrespective of the fact whether the dispute is pending before a Board or the Tribunal or an Adjudicator:

Provided that nothing in the foregoing clause shall be construed as a restriction on the powers of an employer to retire any workman, who is not directly involved in the dispute, and who has reached the age of retirement laid down in duly certified standing orders applicable to such workmen under the Industrial Employment (Standing Orders) Act, 1946, if such age in the certified Standing Orders is not less than 55 years, or to discharge or dismiss all or any of his workmen employed on daily paid basis for work of a specified temporary nature, temporary relief staff for absentees on probation or trial and on contract for a definite period after the close of the term of their employment.”

29. The last order was superseded by U.P Act I of 1957. Section 8 of this Act introduced Sections 6-B to 6-R of the Act as they now stand.

30. Thus, it is clear that there has been no change in the law and the ban has always been there on an employer to seek the approval of the Tribunal before passing an order of dismissal. Therefore, the rulings of the Supreme Court relied upon by Sri A.P Pandey are fully applicable in the instant case. It was held in P. Orr and Son (Private) Ltd. v. Labour Court, Madras () that whether a matter is brought before a Labour Court or the Industrial Tribunal by means of a complaint by the concerned workman under Section 33-A of the Central Act or by a reference made to it by the appropriate Government of the industrial dispute, relating to such dismissal, the labour court or the Industrial Tribunal has to dispose of the matter in the same way, that is, on the merits. It was held that on the language of the statute it is important to note that it nowhere says that an order passed in contravention of Section 33 shall be null and void. It follows, therefore, that mere breach of Section 6-E(2) of the Act, by itself, is not enough to hold that the order of dismissal is bad and vitiated. Such a breach is only a technicality. If the order of dismissal is otherwise valid it cannot be said to be vitiated by a breach of Section 6-E(2) of the Act and it was the duty of the Tribunal to have gone into the merits of the order.

31. In the instant case the workman was dismissed on March 12, 1958 and he filed the complaint under Section 6-F of the Act on July 18, 1959, that is, almost a year and a half after the order of dismissal had been passed. The Tribunal has also found that there was undoubtedly great delay on the part of the workman to file the complaint. It is true that no period of limitation has been prescribed in the Act for making a complaint but it could never be the intention of the legislature that a workman can file a complaint under Section 6-F at his convenience and at any time he likes. By an order dated December 31, 1957 published in the U.P Gazette the same day State Government, in exercise of the powers conferred by clause (d) of Section 3 of the U.P Industrial Disputes Act required that an application for the settlement of an industrial dispute may be made before the Conciliation Officer of the area concerned in Form I and provided that no such application shall ordinarily be entertained by the Conciliation Officer if it is in respect of a dispute airsing more than six months previous to the date of the application, or if the dispute has already been the subject of proceedings before a Conciliation Board, a Labour Court or a Tribunal and finally settled.

32. The order of the State Government dated December 31, 1957 has got statutory force as it was framed under the Act. A workman, in my opinion, must file his complaint under Section 6-F within a reasonable time and it will be undesirable to hold that there is no limitation for such a complaint to be filed before the Tribunal when the State Government itself has prescribed a period of six months for reference of disputes to Conciliation Board. The cause of action under Section 6-F cannot be kept alive ad infinitum. To hold otherwise would result in grave consequences for the employers. A suitor cannot be allowed to benefit from his latches arising out of his own negligence. The object of Section 6-E is to maintain status quo and to ensure fair and satisfactory enquiry on pending adjudication proceedings by providing a safeguard against victimization of the workmen concerned or to prevent unfair labour practice on the part of the employer at that stage. In order to achieve this, the complaint, in my view, should be made during the pendency of the dispute. Section 6-D of the Act deals with commencement and conclusion of consolidation proceeding and says “proceedings before a Labour Court or Tribunal shall be deemed to have commenced on the date of reference of a dispute to adjudication, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 6-A.”

33. The award under Section 6-A becomes enforceable on the expiry of 30 days from the date of its publication under section 6, Under Section 6-C of the Act an award remains in operation for a period of one year or such shorter period as may be specified therein. In the instant case the award regarding bonus dispute was given on March 17, 1958 and it was published in the U.P Gazette on March 21, 1958. The award, therefore, remained enforceable till March 20, 1959 and the application under Section 6-F was filed on July 18, 1959. The complaint therefore, was filed after the award had spent its force by efflux of time. These circumstances also show that the Legislature could never have contemplated that a complaint under Section 6-F could be filed without any consideration of limitation.

34. The learned counsel for the workman submitted that the question of limitation for filing a complaint under Section 6-F cannot be agitated in this petition as the Tribunal had the discretion to decide whether the workman was diligent in lodging the complaint. As has already been mentioned above the Tribunal itself came to the conclusion that “there has undoubtedly been great delay”. It cannot, therefore, be said that the finding of fact on this point has been recorded by the Tribunal in favour of the workman. It cannot be a matter of unfettered choice for the workman to file a complaint under Section 6-F at his convenience. If the order of dismissal has been passed during the pendency of a dispute then the complaint, in my view, should be filed during the pendency of that dispute because the Tribunal is seized of the dispute and will be in a better position to decide the workman's complaint. In cases of revisions under Section 115 of the Civil Procedure Code and petitions under Article 226 of the Constitution neither the Civil Procedure Code nor the Constitution provides any period of limitation but this Court has ruled that they have to be filed within 90 days from the impugned order. Similarly there must be a reasonable period for complaints to be filed under Section 6-F of the Act. The complaint in the instant case was much too belated and should not have been entertained by the Tribunal.

35. There is no substance in the contention of the learned counesl for the petitioner that the workman was precluded from approaching the Tribunal under Section 6-F as he had unconditionally withdrawn the dispute which he originally registered with the Conciliation Officer and also because the State Government had refused to refer the second dispute for adjudication. The remedy under Section 6-F is an extraordinary and speedier remedy. Looking at the scheme of the Act it cannot be said that if one remedy is resorted to then the workman is precluded from taking recourse to the other remedy. When a dispute is referred to a Conciliation Officer, the Officer can only make an effort for amicable settlement of a dispute. He has no power to decide or adjudicate upon the dispute. The reference of an industrial dispute for adjudication by the State Government is an administrative act. In my view, even if the two earlier conciliation proceedings had failed for the reasons that the workman in the first case had unconditionally withdrawn the dispute the workman was not precluded from taking recourse to the remedy provided under Section 6-F of the Act. It was held in Sri Rama Vilas Service Ltd. (Kumbakonam Branch) v. State of Madras represented by the Secretary to Government (7) that if there is an industrial dispute, the factual existence of which could not really be in dispute, a determination afresh by the Government of the question of the expediency of referring such a dispute for adjudication does not amount to a review and any question judicially determined previously, and, therefore, a prior order of the Government which refuses to refer for adjudication a given dispute, does not affect the jurisdiction of the Government to exercise the statutory power conferred upon it

36. To the same effect are the decisions reported in B. N. Elias and Co. Private Ltd. v. G.P Mukherjee (8) and G. Gurumurthy v. K. Ramulu (9).

37. If there is no bar for the State Government to refer a dispute for adjudication even though it had earlier refused to do so there can be no bar for a workman to lodge a complaint under Section 6-F even though he had earlier approached the Conciliation Officer and the State Government in respect of the dispute.

38. I also find no force in the argument of the learned counsel for the petitioner that since the local branch of the petitioner Firm had closed on January 15, 1959 the question of reinstatement of opposite party No. 2 did not arise and in directing his reinstatement the Tribunal has committed a manifest error of law. The Tribunal has recorded a finding of fact that the local branch of the petitioner Firm has not ceased to exist after January 15, 1959. The Tribunal has also recorded a finding that the Firm still exists and is “even now carrying on its business at Allahabad so far as it is necessary to wind it up.” It has admitted by the petitioner Firm's representative that as late as July 20, 1959, that is, after the workman had lodged the complaint the Firm was making payments to its Allahabad Ex-employees at Allahabad. These findings are findings of fact recorded by the Tribunal and must be accepted. It must, therefore, be held that the Tribunal had jurisdiction to entertain the workman's complaint. When the Tribunal came to a finding that the dimsissal of the workman was illegal the only normal order that could be passed was that the workman should be reinstated to his post.

39. There is also no force in the contention of the learned counsel for the petitioner that the complaint was not competent as the earlier award regarding bonus had spent its force by efflux of time.

40. Section 6-F says that the breach of Section 6-E must be during the pendency of proceedings before a labour court or Tribunal. It does not provide that a workman must lodge his complaint during the pendency of those proceedings. In the present case it is not disputed that the breach of Section 6-E took place during the pendency of proceedings regarding bonus dispute. Therefore, the workman could lodge the complaint after the earlier award had spent its force by efflux of time.

41. Section 4-B of the Act gives power to the State Government to constitute an Industrial Tribunal. The Tribunal is a permanent body and does not cease to exist after it has given its award. The Tribunal, therefore, cannot be said to have become functus officio in the instant case after April 20, 1958 when the award regarding bonus was published in the local Gazette. I am fortified in my view by the rulings reported in G. Claridge & Co., Ltd.… v. The Industrial Tribunal….* (11).

42. Any inconvenience caused to an employer is immaterial and has to be ignored. See Punjab National Bank Ltd. v. Their Workmen (12). Before parting with this case I would like to observe that this petition has been argued by the learned counsel for both the parties with great ability.

43. In view of my decision on the first two submissions of the learned counsel for the petitioner I allow this petition with costs and quash the award dated August 24, 1959.