Case Note & Summary
The High Court of Bombay at Goa disposed of two writ petitions filed by the Mapusa Municipal Council challenging awards of the Industrial Tribunal. The first award dated 11 December 1998 declared Smt. Krupa Hallikar (respondent no.1) and others as permanent workmen of the Council with effect from 24 February 1995, following a reference for regularization of daily wage labourers who had served over four years. The second award dated 1 April 2011 directed reinstatement of respondent no.1 with full backwages and continuity of service, holding her dismissal on 21 August 1997 void for non-compliance with Section 33(2)(b) of the Industrial Disputes Act, 1947. The workman had been engaged as a daily wager since 1985, and while a regularization reference was pending, she was dismissed on disciplinary grounds without the employer seeking approval from the Industrial Tribunal as mandated by Section 33(2)(b). The Industrial Tribunal proceeded ex parte due to the Council's neglect and passed the award in her favour.
After the award, the Council did not reinstate her or pay backwages. The workman initiated recovery proceedings under Section 33(c)(1) of the Act, leading to recovery notices and demands. The Council ignored these, and only after the recovery authority was directed by the High Court in an earlier writ petition to expedite recovery, the Council filed the present writ petitions challenging the awards with delays of about fifteen years and two years respectively.
The High Court dismissed both petitions. It found that the challenge to the regularization award was barred by gross delay and laches, as the award had been implemented and some workmen had retired. Regarding the reinstatement award, the Court held that Section 33(2)(b) of the Industrial Disputes Act is mandatory; any termination without prior approval during pendency of an industrial dispute is void ab initio. The Council had admittedly not applied for approval, thus the dismissal was a nullity and the workman was deemed to be in continuous service. The Court observed that the petitions were an abuse of process aimed solely at escaping payment of backwages, and since the workman had already superannuated, only monetary relief remained. The petitions were dismissed with the observation that the Council must comply with the award and pay the backwages.
Headnote
A) Industrial Disputes - Delay and Laches - Writ Petition challenging award after 15 years - Industrial Disputes Act, 1947 - The petitioner filed writ petition in 2013 against award dated 1998 declaring workman permanent; award had already been implemented and some workmen had retired - Held that the petition suffers from gross delay and laches, disentitling the petitioner to any relief (Paras 2-5, 8).
B) Industrial Disputes - Termination - Mandatory compliance with Section 33(2)(b) - Industrial Disputes Act, 1947, Section 33(2)(b) - Dismissal of workman during pendency of industrial dispute without seeking approval from the Industrial Tribunal - Held that contravention renders termination void and inoperative, workman deemed in service, relying on Jaipur Zila Sahakari Bhoomi Vikas Ltd. v. Ram Gopal Sharma (2002) I CLR 789; no application for approval was made, hence award of reinstatement with backwages upheld (Paras 9-12).
C) Writ Jurisdiction - Abuse of Process - Challenge to awards after recovery proceedings initiated - High Court discretion - Petitioner filed writ petitions only after recovery proceedings for backwages were commenced - Held that the conduct of the petitioner is an abuse of process, only to avoid monetary liability (Paras 7-8).
Issue of Consideration
Whether the writ petitions challenging the Industrial Tribunal awards after inordinate delay are maintainable, and whether the termination of respondent no.1 was in violation of Section 33(2)(b) of the Industrial Disputes Act, 1947
Final Decision
Both writ petitions dismissed. The challenge to the award of regularization is barred by gross delay of 15 years and the award having been implemented. The award of reinstatement with full backwages is upheld, finding the termination of respondent no.1 void for non-compliance with Section 33(2)(b) of the Industrial Disputes Act, 1947. The court notes that respondent no.1 has superannuated, so only monetary relief remains. The petitioner is directed to comply with the award and pay backwages.
Law Points
- Section 33(2)(b) Industrial Disputes Act
- 1947 is mandatory
- termination without approval is void
- employer cannot take advantage of own wrong
- delay and laches in filing writ petition
- award of reinstatement with full backwages
Case Details
2013 LawText (BOM) (05) 50
Writ Petition No.76 of 2013 and Writ Petition No.114 of 2013
Smt. R.P. SondurBaldota, J.
Shri G. Sardessai with Shri V. Palekar for the Petitioner; Shri G. Agni with Shri Prashant Agrawal for Respondent No.1; Shri K. Noorani, Additional Government Advocate for Respondents No.2, 3 & 5 in W.P. No.76/2013; Shri S. Narvekar, Additional Government Advocate for Respondents No.2, 3 & 5 in W.P. No.114/2013
The Mapusa Municipal Council
Smt. Krupa Hallikar, The Labour Commissioner, The Mamlatdar of Bardez, The Hon'ble Presiding Officer, Industrial Tribunal, The State of Goa, The Goa Municipal Employees Union, The Director, Municipal Administration
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Nature of Litigation
Writ petitions challenging two awards of the Industrial Tribunal: one declaring respondent no.1 as permanent workman, and another directing reinstatement with full backwages.
Remedy Sought
The petitioner (Mapusa Municipal Council) sought to quash the awards dated 11 December 1998 and 1 April 2011.
Filing Reason
The petitioner filed the writ petitions after recovery proceedings were initiated for payment of backwages, with a delay of about 15 years for the first award and about 2 years for the second award. The petitions were filed only to avoid monetary liability.
Previous Decisions
The Industrial Tribunal passed: (i) award dated 11.12.1998 in Reference No.67/1989 declaring respondent no.1 permanent from 24.02.1995; (ii) award dated 1.4.2011 in IT No.37/2000 directing reinstatement with backwages.
Issues
Whether the writ petition challenging the award of regularization after 15 years is maintainable due to delay and laches?
Whether the termination of respondent no.1 was in violation of Section 33(2)(b) of the Industrial Disputes Act, 1947, rendering it void?
Whether the petitioner is entitled to any relief in the writ petitions given its conduct and the initiation of recovery proceedings?
Submissions/Arguments
Petitioner contended that the Industrial Tribunal's awards were passed ex parte and that respondent no.1's dismissal was justified due to indiscipline.
Respondent contended that the writ petitions are grossly delayed and that the termination violated Section 33(2)(b) of the Industrial Disputes Act, 1947, rendering it void, and the employer could not escape payment of backwages.
Ratio Decidendi
Under Section 33(2)(b) of the Industrial Disputes Act, 1947, an employer cannot dismiss a workman involved in a pending industrial dispute without prior approval from the authority; any dismissal without such approval is void and the workman is deemed to be in service, entitling them to reinstatement and backwages. Additionally, writ petitions challenging awards after inordinate delay and where the award has been given effect to are not maintainable.
Judgment Excerpts
the provision of Section 33(2)(b) is mandatory and the employer cannot disobey the mandatory provision. He cannot be permitted to say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative and he cannot be permitted to take advantage of his own wrong.
the order of termination of respondent no.1 was not operative and a natural corollary would be that respondent no.1 is deemed to be in service.
all that the petitioner is interested in is to wriggle out of execution of the award for payment of full backwages.
Procedural History
Reference No.67/1989 raised by union for regularization of daily wage workers; referred on 15.09.1989. Written statement filed by petitioner on 26.03.1990. Respondent no.1 appointed on temporary basis on 24.02.1993 with probation of two years. Industrial Court directed ex parte proceedings on 15.04.1996. Award dated 11.12.1998 declared respondent no.1 permanent from 24.02.1995. Respondent no.1 absent from 01.02.1996 to 16.02.1996, suspended on 08.03.1996, dismissed on 21.08.1997. Industrial reference I.T. No.37/2000 made on 24.03.2000 challenging dismissal. Ex parte award on 01.04.2011 reinstating respondent no.1 with full backwages. Respondent no.1 sought resumption of duty on 06.06.2011 but not reinstated. Application under Section 33(c)(1) filed on 07.12.2011 for recovery of Rs.15,68,806. Recovery proceedings initiated by Labour Commissioner and Mamlatdar in 2012. Writ Petition No.820/2012 filed by respondent no.1 for recovery, disposed on 03.01.2013 directing recovery within three months. Further recovery notices in January-February 2013. Writ Petition No.76/2013 filed on 07.02.2013; Writ Petition No.114/2013 filed on 13.02.2013. Common order on both petitions dismissing them on 07.05.2013.
Acts & Sections
- Industrial Disputes Act, 1947: Section 33(2)(b), Section 33(c)(1), Section 33
