The Managing Director, Mushirabad, Apsrtc and Another Vs. J. Pullaiah and Another - Court Judgment

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constitution of india – article 226 – industrial disputes act – section 17-b, section 33 (2) (b) and section 33-a – writ petition is filed against the order of the tribunal – tribunal held that order of termination from service passed against the conductor was illegal – termination was set aside and directed his reinstatement in service with all benefit except back wages – procedure prescribed under section 33(2)(b) was not followed.the officers of the andhra pradesh state road transport corporation (apsrtc) assail the correctness of the award dated 11.07.2001 passed by the industrial tribunal-i, hyderabad, in miscellaneous petition no.14 of 2000 in i.d.no.12 of 1998. by order dated 27.11.2001, this court granted interim suspension of the said award subject to the condition that the apsrtc comply with section 17-b of the industrial disputes act, 1947 (for brevity, ‘the act of 1947’) from the date of enforceability of the award. the said order was made absolute on 24.01.2003. it is however stated by the learned counsel appearing for the parties that the first respondent-conductor was in fact reinstated in service and therefore, the question of payment of section 17-b wages did not arise. miscellaneous petition no.14 of 2000 was filed by the first respondent herein under section 33-a of the act of 1947 alleging that during the pendency of certain disputes which were referred to the tribunal in i.d.no.12 of 1998, with which he was very much concerned and connected, the apsrtc issued proceedings dated 24.03.2000 terminating his services . as the apsrtc did not follow the procedure prescribed under section 33(2)(b) of the act of 1947, the first respondent challenged the validity of the proceedings dated 24.03.2000. the apsrtc contested the claim of the first respondent stating that he had submitted a bogus ssc record for securing appointment as a conductor. it was on this basis that the apsrtc removed him from service. the industrial tribunal, upon considering the matter, held that the order of termination from service passed against the first respondent-conductor was illegal as the apsrtc had not followed the prescribed procedure under the act of 1947, though i.d.no.12 of 1998 was pending adjudication. the tribunal accordingly set aside the order of termination of services dated 24.03.2000 passed against the first respondent conductor and directed his reinstatement in service with all benefits except back wages. the matter revolves around the applicability of section 33(2)(b) of the act of 1947 and the proviso thereunder. the provision reads as under: “33. conditions of service. etc., to remain unchanged under certain circumstances during pendency of proceedings:- (1) … … … (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, or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,- (a) alter, in regard to any matter not connected 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) … … …” sri anand kumar shinde, learned counsel representing the apsrtc, contended that as the first respondent conductor was terminated from service owing to the bogus certificate produced by him for securing appointment, section 33 of the act of 1947 would have no application. learned counsel placed reliance on the judgment of the supreme court in air-india corporation, bombay v/s. v.a.rebellow (1972 (1) llj 501). in that case, the employee was removed on the ground of loss of confidence. however, the labour court held that the said removal was in breach of section 33 of the act of 1947. while considering the scheme and object of section 33 and 33-a of the act of 1947, the supreme court observed that the basic object of these two sections was to protect the workmen concerned with the disputes which formed the subject matter of pending conciliation proceedings or proceedings by way of reference under section 10 of the act, against victimization by the employer on account of raising or continuing such pending disputes and to ensure that those pending proceedings are brought to expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate the already strained relations between the employer and the workmen. to achieve this objective, the supreme court said that a ban, subject to certain conditions, had been imposed by section 33 on the ordinary right of the employer to alter the terms of his employees’ services to their prejudice or to terminate their services. this ban however, according to the supreme court, was designed to restrict interference with the general rights and liabilities of the parties and the employer was left free to deal with the employees when the action concerned was not punitive or mala fide or did not amount to victimization or unfair labour practice. the supreme court elaborated further on this aspect by stating that the employer was free to take action against his workmen if it was not based on any misconduct on their part. as the action taken in that case was owing to the loss of confidence and not any misconduct, the supreme court held that section 33 had no application. the case on hand however presents a different scenario altogether. the petitioner was admittedly a workman who was connected to and concerned with the disputes pending adjudication before the tribunal in i.d.no.12 of 1998. he therefore could not be subjected to either alteration in his conditions of service or to removal from service except in keeping with the prescribed procedure, if the said action was occasioned by any misconduct on his part. it is conceded that the apsrtc resorted to termination of his services on the ground that he had secured employment under false pretences by relying upon a bogus ssc record. this clearly implied misconduct on his part. going by the observations of the supreme court in air-india corporation, bombay, and the clear language of the statutory provision, it is clear that the apsrtc could not have resorted to such punitive action against the petitioner on the count of this misconduct without obtaining approval from the tribunal as posited by the proviso to section 33(2)(b). the impugned award of the industrial tribunal-i, hyderabad, therefore does not warrant interference on any count and is accordingly confirmed. the writ petition is bereft of merit and is dismissed. interim order dated 27.11.2001, made absolute on 24.01.2003, shall stand vacated. no order as to costs.