State Transport Employees' Federation Vs. State of Orissa and Ors. (13.02.1990 - ORiHC) - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - a conciliation proceeding was initiated but the same ended in failure and a failure report was submitted under sub-section (4) of section 12 of the industrial disputes act (hereinafter referred to as the 'act') on 11.9.1989. the failure report has been annexed as annexure-2. the state government thereafter made a reference in respect of 3 demands by the order dated 12.9.1989 which has been annexed as annexure 3. having made a reference in respect of 3 demands out of the 16, the state government also issued the prohibitory order under sub-section (3) of section 10 prohibiting continuance of the strike on 12.9.1989, which has been annexed as annexure-4. the petitioner asserts that the employees had commenced their strike on 12.9.1989 and the order of the state government, making a reference with respect to 3 of their demands as well as prohibiting continuance of strike was served on it on 13.9. 1989 notwithstanding the said order of prohibition. the rival contentions require careful examination of the provisions of the industrial disputes act as well as the regulations. for better appreciation sub-section (3) of section 10 is extracted hereinbelow in extenso: ' a plain reading of the aforesaid provision clearly indicates that to invoke the power under the said sub-section for making an order prohibiting a strike, two conditions must exist: sub-section (2) of section 33 authorises the employer to take such action against an employee in accordance with the standing orders applicable to the employee even during the pendency of a proceeding in respect of an industrial dispute, but the proviso to the said sub-section clearly stipulates that no such workman could 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. at any rate, since the legality of the order of dismissal is pending before the industrial tribunal in the application filed by the employer under the proviso to sub-section (2) of section 33, it would not be appropriate for this court to express any final opinion on the same and the matter can be better adjudicated by the industrial tribunal.g.b. patnaik, j. 1. an order of the state government dated 12.9.1989 prohibiting the continuance of a strike in the exercise of powers under sub-section (3) of section 10 of industrial disputes act, 1947, which has been annexed as annexure-4 is being assailed in this writ application. during the pendency of the writ application, notwithstanding the prohibitory order under annexure-4, the workers not having joined the services, the management issued orders of dismissal of some of the employees, whereafter one such order of dismissal dated 23.9.1989, annexed as annexure-5, passed against sri narasingha tripathy has been challenged in this writ application by way of amendment.2. the petitioner's case, briefly stated, is that the petitioner is a registered trade union and has issued a strike notice to the orissa state road transport corporation (opposite party no. 4) on 21.8.1989 making a charter of demands on 16 heads. a conciliation proceeding was initiated but the same ended in failure and a failure report was submitted under sub-section (4) of section 12 of the industrial disputes act (hereinafter referred to as the 'act') on 11.9.1989. the failure report has been annexed as annexure-2. the state government thereafter made a reference in respect of 3 demands by the order dated 12.9.1989 which has been annexed as annexure 3. having made a reference in respect of 3 demands out of the 16, the state government also issued the prohibitory order under sub-section (3) of section 10 prohibiting continuance of the strike on 12.9.1989, which has been annexed as annexure-4. the petitioner asserts that the employees had commenced their strike on 12.9.1989 and the order of the state government, making a reference with respect to 3 of their demands as well as prohibiting continuance of strike was served on it on 13.9. 1989 notwithstanding the said order of prohibition. the employees continued their strike and the management dismissed some of the employees on the ground that they had misconducted themselves in continuing and inciting the strike notwithstanding the prohibitory order and it was also stated that in the prevailing situation it was not possible for the employer, to make an elaborate inquiry and the employer, therefore, had dispensed with the same in exercise of their power tinder regulation 146 of the orissa state road transport corporation employees (classification, recruitment and conditions of services) regulations, 1978 (hereinafter referred to as the 'regulations') framed by the corporation. the petitioner approached this court on 14.9.1989 and as the order of dismissal was passed during the pendency of the writ application, the petitioner by way of amendment challenged the legality of the order of dismissal in respect of one of the employees. further while this writ petition was pending the state government by order dated 5.10.1989 referred one more dispute to the industrial tribunal for adjudication out of the balance 13 demands, which has been annexed as annexures-6 and 7.3. mr. palit, the learned counsel appearing for the petitioner, contends that out of 16 demands made by the employees the state government having made a reference in respect of only three of them was incompetent to pass a prohibitory order in exercise of its power under sub-section (3) of section 10 of the act and, therefore, the order under annexure-4 must be held to be without jurisdiction. in assailing the order of dismissal, mr. palit argues that since the order of dismissal is based solely on the ground of continuance of strike notwithstanding the prohibitory order, if the prohibitory order is held to be without jurisdiction, the order of dismissal must be set aside since it has no independent legs to stand upon.the learned advocate general appearing on behalf of the corporation, on the other hand, contends that some of the disputes having been referred to the tribunal for adjudication in the eye of law it must be held that the appropriate authority has refused to refer the other disputes and, therefore, it could exercise its power under sub-section (3) of section 10 of the act. so far as the order of dismissal is concerned, the learned advocate general argues that the order that has been communicated to the employee does not contain the grounds of dismissal, but merely it contains the reasons as to why elaborate enquiry has been dispensed with in exercise of powers under the regulations. since the corporation has filed an application under section 33(2)(b) of the act for approval and that matter is pending adjudication before the labour authorities the legality of the order of dismissal cannot be decided by this court in exercise of its jurisdiction under article 226 of the constitution. the rival contentions require careful examination of the provisions of the industrial disputes act as well as the regulations.4. sub-section (3) of section 10 of the act confers power on the appropriate government to prohibit the continuance of any strike in connection with a dispute which has been referred to the industrial tribunal. therefore, the precondition for exercise of power under the said sub-section is that the dispute in question must be referred to the tribunal. for better appreciation sub-section (3) of section 10 is extracted hereinbelow in extenso:-'where an industrial dispute has been referred to a board, labour court, tribunal or national tribunal under this section the appropriate government may by order prohibit the continuance of any strike or lockout in connection with such dispute which may be in existence on the date of the reference.'a plain reading of the aforesaid provision clearly indicates that to invoke the power under the said sub-section for making an order prohibiting a strike, two conditions must exist: first, there must be an industrial dispute in existence and secondly, such dispute must have been already referred for adjudication. obviously, therefore section 10(3) of the act cannot operate in regard to disputes which are not referred under sub-section (1) of section 10. under the industrial law a workman cannot be deprived of his basic right to go on strike in support of his demand as the right to strike is integral to a collective bargain. when the government unilaterally decides against the workman not to refer several disputes for adjudication and refers only a few, the workman cannot be deprived of the right to strike. if the government feels that it should prohibit a strike under sub-section (3) of section 10, then it must afford a scope for a dispute or demand being decided on merits by adjudication in a reference of all those demands under sub-section (1) of section 10. the supreme court considered the legality of a similar order in the case of delhi administration, delhi v. workmen of edward keventers 1978 (2) llj 209; and interpreting section 10(3) of the act held:-'.......... where several demands are raised by the workmen but some of them only are referred for adjudication section 10(3) cannot operate in regard to such disputes as are not referred under section 10(1) of the act....'in view of the aforesaid authorities pronouncement interpreting sub-section (3) of section 10 of the act and in the view of the admitted facts of this case that on 12.9.1989 only 3 out of the 16 demands had been referred to the industrial tribunal for adjudication, the government could not have taken recourse to its power under sub-section (3) of section 10 and, therefore, the order under annexure-4 dated 12.9.1989 prohibiting the continuance of strike is without jurisdiction and hence must he quashed. the first contention of mr. palit is accordingly sustained.5. so far as the second contention of mr. pailt is concerned, it relates to the legality of an order of dismissal of the employee. according to mr. palit, the sole basis for issuing the order of dismissal is the continuance of the strike notwithstanding the prohibitory order having been passed and once it is held that the prohibitory order is without jurisdiction, the dismissal order must fall on its own force and, therefore, the court should quash the order of dismissal. mr. rath, the learned advocate general, on the other hand, contends that the order of dismissal has been passed by the employer on a finding that the employee has committed misconduct. what has been communicated to the concerned employee is the reasons as to why the employer has not followed an elaborate inquiry and has dispensed with the same in accordance with its power under regulation 146. the learned advocate general, therefore, contends that the legality of the order of dismissal is pending before the tribunal since the employer has filed application for approval of the action taken by it in accordance with the proviso to sub-section (2) of section 33 and, therefore, it would be wholly inequitable for this court to entertain the same and express any opinion on the same. in view or the rival submissions made by the counsel for parties, referred to above, it would be appropriate to examine the provisions contained in section 33 of the act.6. a bare reading of section 33 indicates that the provisions contained therein prohibit during the pendency of any conciliation proceeding or proceedings before a tribunal any change being made in conditions of service or any action being taken against the workman concerned in the dispute except with the express written permission of the authority, concerned. sub-section (2) of section 33 authorises the employer to take such action against an employee in accordance with the standing orders applicable to the employee even during the pendency of a proceeding in respect of an industrial dispute, but the proviso to the said sub-section clearly stipulates that no such workman could 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. it is because of this proviso, the corporation in the present case has filed an application for approval of the action of dismissal and the said application is stated to be still pending before the tribunal. a perusal of the order of dismissal passed against one of the employees which has been annexed as annexure-5, does not indicate that the said order has been passed merely because the employee continued with the strike notwithstanding the prohibitory order being passed. at any rate, since the legality of the order of dismissal is pending before the industrial tribunal in the application filed by the employer under the proviso to sub-section (2) of section 33, it would not be appropriate for this court to express any final opinion on the same and the matter can be better adjudicated by the industrial tribunal. we, therefore, refrain ourselves from examining the legality of the order of dismissal which would be appropriately gone into by the tribunal. but since the employees have been dismissed from service, we would observe that the tribunal would dispose of the applications filed by the employer for approval under the proviso to sub-section (2) of section 33 of the act as expeditiously as possible.7. in the net result, therefore, the order prohibiting the continuance of strike, annexed as annexure-4 is quashed and the question of the legality of the order of dismissal is left open since the matter is pending before the industrial tribunal. this writ application is allowed to the extent indicated above, but there will be no order as to costs.a .k. padhi, j. 8. i agree