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Dismissal of workmen during pendency of Reference is not acceptable: Bombay High Court

Non-compliance under Section 33(2)(b) of the Industrial Disputes Act, is a mandatory provision and cannot be ignored. Dismissing a workman during pendency of said reference cannot be accepted, held, a single-judge bench of Justice Anuja Prabhudessai while adjudicating the matter in Duncan Engineering Limited v. Ajay C Shelke; [WRIT PETITION (ST.) NO. 93088 OF 2020].

The Petitioner is engaged in the business of manufacturing Tube Valves for Automobile Sector. Respondent-workmen were employed in one of the factories of the Petitioner. They were served with charge sheets alleging wilful insubordination, disobedience, illegal strike, riotous and disorderly behaviour, etc. which constituted misconduct under model standard orders under Sections 24(a), (b), (k), (l), (w) framed under the Industrial Employment (Standing Orders) Act. The Petitioner, not being satisfied with the explanation submitted by the Respondent-workmen, initiated enquiry into the alleged misconduct. The Enquiry Officer recorded a finding that the Respondent -workmen were guilty of misconduct. Hence, the petitioner terminated the services of Respondent-workmen with immediate effect. Aggrieved by the dismissal order, the Respondent-Workmen raised an industrial dispute, which was referred to the Labour Court for adjudication, in exercise of the powers conferred under Section 10 of the ID Act. The Reference was on the question of validity and legality of termination of services of the Respondent-Workmen and if so, whether the Respondent-Workmen were entitled for reinstatement with continuity of service, back-wages, and other benefits. The Respondent-workmen fled their statement of claim before the Labour Court inter alia contending that dismissal is illegal and void for want of approval under Section 33(2)(b) of the ID Act. It was the case of the Respondent – workmen that issuance of charge sheet and consequent dismissal was a result of victimization for having joined the Union viz. Maharashtra Rajya Rashtriya Kamgar Sangh (INTAK), which was espousing their cause. The Respondent-workmen contended that the dismissal orders were inoperative, having been passed without seeking approval from the authority before which the Reference was pending. On merits the Respondent-workmen alleged that the enquiry was not fair and proper and that the findings recorded by the Enquiry Officer as regards the misconduct were perverse.

The Court upon considering the aforesaid facts stated that; “It is not in dispute that the Reference relating to Charter of Demands was pending. As it is evident from the averments in para 6 of the written statement, the Petitioner was aware of pendency of the Reference. The Petitioner has dismissed the Respondent-workman during the pendency of the said Reference without complying with the mandatory provision of Section 33(2)(b). Non-compliance of this mandatory provision renders the dismissal order void and non-est. The employer-employee relationship not having been legally terminated, the Petitioner is bound to treat the Respondent workmen as continuing in service and give them all consequential benefits. Consequently, the Respondent-workmen, are entitled for reinstatement with consequential benefits.”

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