Gulf Air vs Gulf Air Employee''s Association

N.M. Jamdar, J.—By this petition, the petitioner-Gulf Air challenges the order of the Central Government Industrial Tribunal dated 18 August, 2004, answering the reference against the petitioner and holding that the order of dismissal of Vinod Malhotra, a member of the respondent Union, as illegal, with a direction that he should be reinstated with back wages and continuity of service. Mr. Vinod Malhotra was working as a Passenger Service Supervisor with the petitioner. One Ms. Shalini Vaswani was employed as a Passenger Service Agent. The Petitioner issued a charge-sheet to Mr. Malhotra on 28 January, 1997. Gist of the charge-sheet was that Ms. Vaswani checked in a passenger who had excess baggage of twelve kgs., and she asked the passenger to pay Rs. 1400/- for excess baggage. Ms. Vaswani collected Rs. 1000/-from the passenger and when Mr. Malhotra came to know, he asked her to give him half of the amount. The passenger then asked Ms. Vaswani for return of the amount which she repaid. Mr. Malhotra was charged with fraud, dishonesty, giving bribes, collection of money without the permission of the management and acts subversive to discipline and good behaviour. Mr. Malhotra was called upon to submit his explanation, which he did by letter dated 6 February, 1997. He stated that no such incident took place, and he was being victimized as he was an office bearer and activist of the Gulf Air Employees'' Association, i.e. the Respondent.

An enquiry was instituted against Mr. Malhotra. In the enquiry Ms. Vaswani was examined as the witness by the petitioner. She was the only witness. She did not support the case of the petitioner, and she as cross-examined by the Petitioner also. Mr. Malhotra was represented through an advocate. The Enquiry Officer came to the conclusion that Mr. Malhotra was guilty of fraud, dishonesty in connection with petitioner''s business and property, taking bribe and illegal gratification and collecting money without the permission of the management. As regard the charges of giving bribe or illegal gratification to anyone and engaging in trade in the premises of the establishment, Mr. Malhotra was not held guilty by the Enquiry Officer. The Enquiry Officer accordingly gave his report on 31 July, 1997. By letter dated 27 October, 1997, the findings of the Enquiry Officer with the report were given to Mr. Malhotra and he was called upon to show-cause within seven days. On 11 November, 1997, Mr. Malhotra submitted his reply. He denied and controverted the conclusions of the Enquiry Officer and contended that the findings of the Enquiry Officer were perverse.

On 10 November, 1997, the respondent Association served demand upon the petitioner. The demand was regarding the disciplinary action taken against Ms. Shalini Vaswani and Mr. Malhotra. The demand was as under:

"The management shall not take any disciplinary action against Ms. Shalini Vaswani and Mr. Vinod Malhotra in respect of charge-sheets issued to them until the fairness of the domestic enquiries conducted against them or action proposed to be taken against them is proved."

In the letter of demand, the respondent stated that the enquiry conducted against Ms. Vaswani and Mr. Malhotra was biased and unfair. It was a part of a design to do away with the permanent employees and bringing a contractor. It was stated that en masse terminations were taking place in various places with bogus charge-sheets being issued and the enquiries conducted in an unfair, hasty and improper manner. Accordingly, the petitioner was called upon not to take any action against the charge-sheeted workmen until the fairness of the enquiry was decided.

On 13 November, 1997, the Respondent called upon the Assistant Commissioner of Labour - Conciliation Officer to intervene in respect of the above stated industrial dispute raised. A copy of the demand was enclosed. The Conciliation Officer was requested to act urgently stating that otherwise the workmen concerned in the demand would be dismissed. On the same day, the Conciliation Officer issued a notice to the petitioner and the respondent informing the Petitioner that the Conciliation Officer will hold conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947, on 18 November, 1997 at 11.30 a.m. The attention of the parties was invited to the obligations imposed by Sections 22(1), 22(2) and 33 of the Industrial Disputes Act. The Petitioner wrote back to the Conciliation Officer on 17 November, 1997 stating that it had not received any demand in respect of suspension of any of the workmen from the respondent Association. On 18 November, 1997, the petitioner wrote to the Conciliation Officer acknowledging the fax message received. The petitioner stated that since the subject-matter of the letter dated 13 November, 1997 mentioned suspension and that demand was not received, there was some confusion. The petitioner stated that since the Model Standing Orders deal about the subject of suspension and dismissal what was raised was not an industrial dispute. The petitioner stated in the letter that it will be appropriate to inform that it had dismissed Ms. Shalini Vaswani and Mr. Vinod Malhotra from service.

On 18 November, 1997, the conciliation proceedings took place before the Conciliation Officer in which the management and Union were represented. On 18 November, 1997, the conciliation proceedings were adjourned to 20 November, 1997. During the proceedings, the petitioner submitted that Mr. Malhotra and Ms. Vaswani have been terminated. The Union representative stated that the action of the petitioner was arbitrary, and it was during the pendency of the conciliation proceedings that both the workmen were dismissed. The conciliation proceedings then continued on subsequent dates. On 20 June, 1998, the Conciliation Officer submitted a failure report in two parts to the Secretary, Ministry of Labour, Government of India. It was stated that the industrial dispute regarding the disciplinary action against Ms. Vaswani and Ms. Malhotra was subject-matter of discussions and in spite of best efforts the proceedings ended in failure. In Part-II conciliation report, the Conciliation Officer gave details of the proceedings. He stated that after it was informed by the petitioner that Mr. Malhotra stood terminated on 17 November, 1997, the discussions took place regarding the dismissal. It was stated that the Union objected to the action of the petitioner while petitioner supported the same. Accordingly, the Conciliation Officer recommended the following dispute for adjudication:

"Whether the termination of services of Kum. Shalini Vaswani and Shri Vinod Malhotra with effect from 12.11.1997 and 17.11.1997 by Gulf Air Company is justified, legal and proper?"

The reference accordingly came to be made in respect of the dismissal of Mr. Malhotra, which was referred to for adjudication to the Central Government Industrial Tribunal. It appears that no other proceedings took place in respect of Ms. Vasvani, and she stood terminated. On 13 July, 1998, Mr. Malhotra raised an individual demand with the Petitioner. He demanded that the action taken in respect of the charge-sheet against him was illegal and mala fide and should be withdrawn. This letter was replied to by the Petitioner on 28 July, 1998. No further conciliation proceedings took place in respect of the demand made by Mr. Malhotra.

The Government, upon the failure report of the Conciliation Officer and the industrial dispute raised therein, made a reference to the Central Government Industrial Tribunal, Mumbai, for adjudication. The term of the Reference was regarding the termination of Ms. Vaswani on 12 November, 1997 and of Mr. Malhotra on 17 November, 1997. The Tribunal framed issues as to whether the reference was maintainable, whether Mr. Malhotra was a workman; whether the enquiry conducted was fair and proper; whether the findings of the enquiry were perverse; and whether the action of dismissal was justified. The petitioner and the respondent Association filed their pleadings. Mr. Malhotra filed his affidavit and also one Mr. Narayan More. Both the witnesses were cross-examined by the Petitioner. The petitioner filed an affidavit of Mr. Mazumdar and Ms. Kavita Kanwar. These witnesses were cross-examined by the respondent. The Tribunal after examining the duties of Mr. Malhotra found that he was a ''workman''. The Tribunal found that the Government had passed an order of reference after considering the record of the Conciliation Officer and there is a presumption in favour of the record of the Conciliation Officer. This record indicated that the dispute was regarding dismissal and, therefore, the reference was proper and maintainable. The Tribunal found that the conciliation proceedings commenced on 13 November, 1997 and thereafter during the pendency of the conciliation proceedings the Tribunal found that the action of the petitioner was not bona fide. The Tribunal found that the notice of 13 November, 1997 was received before 17 November, 1997 i.e. the date of termination of the Petitioner. The Tribunal then proceeded to hold that since the termination was during the pendency of the conciliation proceedings, it was in violation of Section 33(1)(a) of the Industrial Disputes Act, and being in violation of this provision, the termination was void. The Tribunal held that the termination was void as there was no question of giving any opportunity to the Petitioner to lead evidence to justify it''s action. The Tribunal accordingly answered the reference in favour of the respondent and directed the Petitioner to reinstate Mr. Malhotra with back wages and consequential benefits. As regard Ms. Vaswani, the Tribunal did not pass any order as there existed no dispute. This award is challenged in the present petition.

I have heard Mr. Pai for the petitioner and Mr. Singh for the respondent. The crux of the dispute is whether the termination of Mr. Malhotra was in violation of Section 33(1)(a) of the Act. If it is held to be so, then there would be no termination in the eyes of law and there would be no error on the part of the Tribunal in directing the reinstatement.

Mr. Pai, firstly submitted that the reference dated 17 December, 1999 was erroneous as it was based on the demand made by the respondent Association dated 10 November, 1997. He submitted that, this demand makes no reference to dismissal of Mr. Malhotra and that conciliation proceedings which were initiated on this demand culminated in failure, and therefore there was no question of making a reference as regards the dismissal of Mr. Malhotra. He submitted that the demand regarding dismissal was raised by Mr. Malhotra individually on 13 July, 1998, which was never taken in conciliation and therefore, could not have been made the basis of the reference. He submitted that it was open for the Tribunal to consider this position while deciding the reference. Mr. Pai urged that when the notice issued by the Conciliation Officer on 13 November, 1997 specified that conciliation proceedings will commence from 18 November, 1997. It was admitted by the respondent in its statement of claim that the termination took place on 17 November, 1997. The termination took place before the commencement of me conciliation proceedings and therefore, there is no breach of Section 33(1)(b). He also submitted that the action taken by the petitioner is as per the Standing Orders and until the disciplinary proceedings taken under the Standing Orders culminate into an order of dismissal, no industrial dispute can arise. He submitted that the demand of the respondent Association was a preemptive action to stall the termination of two of its members, which is not permissible in law. Thus, in short, the submission is that Section 33(1)(b) is not attracted, firstly, because there is no industrial dispute and secondly, even if there was an industrial dispute, the termination was prior to commencement of conciliation proceedings. He also submitted that, since the termination was not in violation of Section 33(1)(b), an opportunity ought to be given to the petitioner to justify the dismissal, by leading evidence.

First point is regarding competence of the reference. According to Mr. Pai, the demand of the respondent Association was merely regarding suspension of Mr. Malhotra and Ms. Vasvani. In this demand, there was no reference to termination. Reference to termination is only in the individual demand made by Mr. Malhotra, which at no time fructified into any conciliation proceedings. According to Mr. Pai, therefore, the reference made based on demand of the Union could never constitute the basis for making reference as regard the dismissal. Mr. Pai placed a strong reliance on the decision of the Apex Court in The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, , to contend that it was open to the Tribunal, based on material before, to hold that the industrial dispute, which was purported to be referred by the State Government never existed. Mr. Singh, placing reliance on the decision of the Apex Court in the case of Sadhu Ram Vs. Delhi Transport Corporation, and the decision of Shambu Nath Goyal Vs. Bank of Baroda, , submitted that the courts cannot question whether an industrial dispute existed and wide latitude has to be given to the satisfaction of the Government regarding existence of an industrial dispute. He submitted that a written demand is not a sine qua non for existence of the industrial dispute.

Firstly, the scope of the enquiry into the satisfaction of the Government as regards existence of an industrial dispute needs to be noticed. In the case of The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, , the Court set aside the reference regarding reinstatement on the ground that no industrial dispute as regards reinstatement arose. The decision in the case of Sindhu Resettlement (supra) was considered and distinguished in the case of Sadhu Ram (supra). In the case of Sadhu Ram Vs. Delhi Transport Corporation, , the Delhi Administration referred a dispute to the Presiding officer, Labour Court, Delhi, as regard the validity of termination of Sadhu Ram. The management took an objection before the Labour Court that the workman had never raised any demand regarding termination and, therefore, there was no industrial dispute and reference was incompetent. The Labour Court overruled that contention. The employer of Sadhu Ram filed a writ petition questioning the award of the Labour Court. The High Court by a detailed decision considered what is an industrial dispute, the concept of jurisdictional facts, and came to a finding that there no industrial dispute existed as there was no demand received, which could be referred to the Government for adjudication. On that basis, the High Court quashed the award of the Labour Court. The workman approached the Apex Court and the Apex Court disapproved the exercise of powers by the High Court. The Apex Court distinguished the decision of Sadhu Ram (supra) and held as under:--

"3. We are afraid the High Court misdirected itself. The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate Court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court.

The High Court appeared to think that the decision of this Court in the Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat justified its conclusion that the failure of the conciliation proceedings and the report of the Conciliation Officer to the Government were not sufficient to sustain a finding that there was an industrial dispute. This was also what was urged by the learned counsel for the respondents. The High Court was in error in so thinking. In Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat, the question really was about the precise scope of the reference made by the Government for adjudication. Throughout it appeared that the only reference that the Government could have made related to the payment of retrenchment compensation which alone was the subject-matter of dispute between the parties. The conciliation which failed had also concerned itself with the question of payment of retrenchment compensation and in their claims before the management, the workmen had requested for payment of retrenchment compensation and raised no dispute regarding reinstatement. It was in those circumstances that the Court held that there was no industrial dispute regarding resettlement. We do not see how The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, can be of any assistance to the respondents."

The case of Sindhu Resettlement (supra) was distinguished as the Apex Court found that in that case the conciliation proceedings which failed, concerned itself with the completely different issue than the one which was in the reference. In that case in the conciliation proceedings the workman had only requested for payment of retrenchment compensation and raised no dispute regarding reinstatement. The question agitated before the Conciliation Officer was totally different than the one which was referred and on that ground, the reference was called in question.

In the case of Shambu Nath Goel, the Apex Court has observed as under:--

"6. The reference in the case before us was made under Section 10(1) which provides inter alia that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication--as therein mentioned. The power conferred by Section 10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under Section 10(1). But in making a reference under Section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on those matters, (vide Madras State v. C.P. Sarthy (1958) SC 53. The Tribunal, however, referred to the decision of this Court in The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under Section 10(1) was not examined. But that apart the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C.P. Sarthy''s case (Supra). In the case before us, it can be shown from the record accepted by the Tribunal itself that there was in existence a dispute which was legitimately referred by the Government to the Industrial Tribunal for adjudication. Undoubtedly, it is for the Government to be satisfied about existence of the dispute and the Government does appear to be satisfied. However, it would be open to the party impugning the reference that there was no material before the Government, and it would be open to the Tribunal to examine the question, but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government."

Mr. Pai submitted that the case of The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, has been followed by the Apex Court in the recent decision of the Apex Court in the case of Tata Iron and Steel Company Ltd. Vs. State of Jharkhand and Others, . In this case, the Apex Court has reiterated the principle that the Industrial Court/Labour Court acquires jurisdiction based on reference made to it, and the Tribunal has to confine itself to the scope of term of reference. After considering the provisions of Section 2(k) of the I.D. Act and the facts of the case before it, the Apex Court held that the term of reference was not properly worded, inasmuch as, the term of reference did not reflect the real dispute. The Apex Court concluded that the reference in question did not take care of the correct and precise nature of the dispute and set aside the reference. This decision in no manner deviates from the proposition laid down by the Apex Court in the case of Sadhu Ram Vs. Delhi Transport Corporation, . In the case of Sadhu Ram (supra), the Apex Court held that the scope of interference was extremely narrow, and the Court could not lightly set aside the satisfaction of the Government about existence of an industrial dispute.

The question is whether such fact situation exists in the case at hand. If the proceedings before the Conciliation Officer were in respect of a completely different dispute and the reference was made in respect of dispute, which was never in conciliation, then Mr. Pai may be justified in relying on the case of The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, . The demand dated 10 November, 1997 stated that it was regarding suspension of two employees. On 18 November, 1997, after it was revealed by the petitioner that Mr. Malhotra and Mr. Vaswani were terminated, the proceedings continued. They did not end on that day. The record of proceedings before the Conciliation Officer shows that the Union demanded that the terminations be withdrawn. The witness of the Respondent asserted in his deposition that the proceedings after 18 November, 1997 were in respect of the termination of the two workmen. In the cross-examination, a suggestion was given to the witness of the petitioner that the proceedings after 18 November, 1997 were regarding withdrawal of the order of termination. Pertinently, the witness did not deny the suggestion, but stated that he did not remember whether during the conciliation proceedings on or after 18 November, 1997, the sole demand was of withdrawal of termination. This is an evasive reply. If the proceedings and discussions after 18 November, 1997 were not regarding the dismissal, he would have been categorically denied this position. It is obvious, in the natural course of events, that after 18 November, 1997, the discussions would be for about termination orders.

Furtherance for existence of an industrial dispute a written demand is not necessary. In the case of Shambu Nath Goyal Vs. Bank of Baroda, , the Apex Court observed as under.--

"4. A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written cause is not a sine qua non unless of course in the case of public utility service, because S. 22 forbids going on strike without giving a strike notice.

The key words in the definition of industrial dispute are ''dispute'' or ''difference''. That is the contention of these two words. In beetham v. Trinidad Cement Ltd., All KS 244 at 249, Lord Denning while examining the definition of expression ''Trade dispute'' in S. 2(1) of Trade Dispute (Arbitration and Inquiry) Ordinance of Trinidad observed:

By definition a ''trade dispute'' exists whenever a ''difference'' exists and a difference can exist long before the parties became locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sperring for an opening."

Thus the term ''industrial dispute'' connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section."

The Failure Report Part-II makes it clear that there were discussions regarding dismissal of the two workmen and the conciliation proceedings ended in failure, and this report was sent to the Government. Once this report was before the Government, it had an adequate material to come to the conclusion that there existed an industrial dispute and reference needed to be made. The Tribunal has rightly considered this aspect by holding that presumption has to be given to the official record, i.e. to the failure report Part-II of the Conciliation Officer. In the present case, it is not the question, whether reference has been correctly worded or otherwise. The proceedings before the Conciliation Officer after 18 November, 1997 were only in respect of termination, and both parties were aware that it was so, and this was the reference. Court does have the power to set aside the reference in a given case. But no such case is made out. The contention of Mr. Pai that the reference was not competent, cannot be accepted.

The next question that arises for consideration is the applicability of Section 33(1)(b). This is a pivotal issue. If it is held that the termination of Mr. Malhotra is in breach of Section 33(1)(b), then the termination would be no termination in the eyes of law.

First contention of Mr. Pai in this regard is that Section 33(1)(b) would not arise as there was no industrial dispute before the Conciliation Officer. According to him, the demand made by the Respondent was only that the Petitioner should not take any action against Ms. Vaswani and Mr. Malhotra until the competent court decided the fairness of the enquiry. He submitted that the action taken was under the Standing Orders and once the action is initiated under the Standing Orders, it has to be concluded. He submitted that it only upon the conclusion of the disciplinary proceedings that the industrial dispute can arise. He relied on the decision of the Division Bench of this Court in the case of Associated Cement Staff Union, Mumbai Vs. State of Maharashtra and others, . He contended that merely because a demand is made, it does not become an industrial dispute unless it falls within the definition of an industrial dispute.

In the case of Associated Cement Staff Union, Mumbai Vs. State of Maharashtra and others, , a demand was made by the Union that the workers should be made stockholders in the Company. The Conciliation Officer came to the conclusion that the demand had nothing to do with the conditions of service and refused to intervene. In the petition filed by the Union, the question that fell for consideration of the Division Bench as to whether upon the demand made by the workman and upon the failure of the Company to accept the demand, whether the Conciliation Officer was mandated to take the matter in conciliation. While answering this question, the Division Bench held as under:--

"11. Section 2(k) of the Industrial Disputes Act for the purpose of discussion may be reproduced :

"Industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons".

The expression ''Industrial Dispute'' thus is a dispute or difference amongst others, between the employer and workmen and must be connected amongst others with the terms of employment and or the conditions of service of labour. If the demand raised falls within those predicates, then considering Section 11, the Conciliation Officer can enter into an enquiry or investigation for the purpose of trying to arrive at the settlement. The exercise of power to enter into conciliation is the prima facie existence of an industrial dispute between employer and workman. Considering the terminology used in Section 12, prima facie existence of an industrial dispute which exists or is apprehended is the principal requirement before the Conciliation Officer holds conciliation proceedings.

Before we answer the issue, we may examine the position in law for exercise of power of reference of an industrial dispute to an Industrial Tribunal. We are not considering a case where the appropriate Government on receipt of the failure report has for the reasons recorded considering Section 12(5) declined to make the reference. The issue for consideration before us is whether it was open to the Conciliation Officer at the threshold itself, not to initiate conciliation proceedings. Insofar as the power of the appropriate Government to make reference, the law is well settled. In Bombay Union of Journalists and Others Vs. The State of Bombay and Another, , the Supreme Court has held that when the appropriate Government considers the question as to whether any Industrial Dispute should be referred for adjudication or not, it may consider prima facie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. If the dispute in question raises questions of law, the appropriate Government should not purport to reach final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach the conclusions, for that again would be in the province of the Industrial Tribunal. The law laid down there is that even at the stage of taking a decision whether not to make reference, the appropriate Government is not precluded from considering the prima facie existence of the dispute. If the claim made is frivolous or belated, the appropriate Government may refuse to make reference. If the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must therefore be held that a prima facie examination of the matter cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under Section 10(1). The law has been summarized in the judgment of the Supreme Court in the The Secretary Indian Tea Association Vs. Ajit Kumar Barat and Others, . The appropriate Government thus must satisfy itself on the facts and circumstances brought to its notice that an Industrial Dispute exists or is apprehended. When to make a reference, it is desirable wherever possible for the Government to enter the nature of dispute in the order of reference."

The Division Bench in the above mentioned paragraphs held an enquiry as to the prima facie existence of an industrial dispute, which apprehended or in existence, needs to be undertaken before the conciliation proceedings are held.

Two questions thus arise. Firstly, whether the dispute raised by the Respondent by its letter dated 10 November, 1997 could be prima facie termed as an industrial dispute. Secondly, when the Conciliation Officer issues a notice for holding conciliation, whether the employer can ignore the notice on his own assertion that there exists no industrial dispute.

The demand made by the Respondent was that Mr. Malhotra and Ms. Vaswani were being targeted with mala fide intention as a greater plan of dispensing the work force to bring in a contractor. It was asserted by the Respondent that the suspension of these employees was a part of greater plan of the petitioner, and employees were being victimized. In the circumstances, it was demanded that no action be taken against these employees.

Industrial Dispute is defined in Section 2(k) of the Act as under--

"Section 2(k). ''Industrial dispute'' means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons."

The Industrial Dispute thus means any dispute or difference between the employer and employees and between employer and workmen, in connection with employment or non-employment. The definition is cast in wide terms. In the case of Shambu Nath Goyal Vs. Bank of Baroda, , the Apex Court held that the term Industrial Dispute refers to a real and substantial difference, which if not resolved, is likely to endanger the industrial peace.

It is not necessary for the Conciliation Officer to launch into a detailed enquiry to satisfy himself whether an industrial dispute has arisen or likely to arise by examining all possible parameters, even before taking the first step. What is material is the prima facie satisfaction of the existence of an industrial dispute. The Conciliation Officer is enjoined with the duty to act expeditiously and intervene when an ongoing industrial dispute or the one likely to arise, will lead to breach of industrial peace. The Respondent brought to the notice of the Conciliation Officer its stand that the apprehended action against the two employees was patently illegal. The Conciliation Officer considered it as an industrial dispute and issued notices as he was prima facie satisfied about the existence and/or apprehension of an Industrial Dispute. The main question is whether the Petitioner could ignore this notice.

Under Section 33(1)(b) of the Act, during the pendency of the conciliation proceedings, the employer has to take permission of the Conciliation Officer. If it was the case of the petitioner that there was no industrial dispute, the course of action permissible was to approach the Conciliation Officer and point out to him that there did not exist any industrial dispute. When the Conciliation Officer had been prima facie satisfied that there existed an industrial dispute and if according to the Petitioner, the Conciliation Officer had committed an error, the petitioner ought to have approached the Conciliation Officer and pointed out the same. It was not open for the petitioner to ignore the notice and proceed to terminate the employee and then argue that since there was no industrial dispute, therefore there could not have been any conciliation proceedings, as a result, the Petitioner was entitled to ignore the notice. An employer cannot be left with a discretion to decide for itself whether there existed an industrial dispute. It was the prima facie satisfaction of the Conciliation Officer. If the petitioner had a legitimate case that there was no industrial dispute, it could have brought it to the notice of the Conciliation Officer. If the Conciliation Officer was satisfied, he would have dropped the proceedings and/or permitted the petitioner to terminate the services.

Therefore, though elaborate submissions have been made as regards the existence of an industrial dispute, it must be kept in mind that the proceedings do not arise from rejection of the approval application. The petitioners have not taken any permission from the Conciliation Officer. The arguments are advanced in retrospect justifying the action of termination on the ground that there existed no industrial dispute. As pointed out earlier, even this perception of the petitioner is incorrect. For initiation of conciliation proceedings, all that is required is prima facie satisfaction of existence of an industrial dispute. Prima facie perusal of the demand indicated that the industrial dispute as regard the employment of two workmen was raised.

Mr. Pai then submitted that, even assuming industrial dispute existed, the termination was not in violation of Section 33(1)(b). He submitted that, when the termination was effected on 17 November, 1997, there were no conciliation proceedings pending. There are two parts to this submission. First the factual one, as to when the termination was effected. Secondly, the legal one, as to since when the conciliation proceedings deemed to have been pending.

As regard the precise date of termination, there is a great deal of ambiguity on record. In the letter dated 25 November, 1997, the petitioner informed the Conciliation Officer that the termination order of Mr. Malhotra was sent to him by hand delivery, he was not found, and therefore, it was sent by Registered Post (A.D.). There is no specific reference as to when it was sent by R.P.A.D. but it appears from the tenor of the letter that it was on 17 November, 1997. The petitioner informed the Conciliation Officer by its letter dated 18 November, 1997 that they had already dismissed Mr. Malhotra from service. A query was put to both the counsel as to what happened with the notice sent by R.P.A.D. to Mr. Malhotra, however, both the counsels were unable to assist in that regard. According to Mr. Singh, Mr. Malhotra came to know about the termination on 18 November, 1997 when the petitioner informed this fact in the conciliation proceedings. The evidence of the witness of the petitioner is also highly unsatisfactory and rather evasive. The Tribunal has not thrown any light on this factual dispute.

Mr. Singh has relied on the decision in the case of Division Bench of Calcutta High Court in the case of Umasankar Chatterjee Vs. Union of India (UOI) and Others, . In this decision, the Division Bench has made a distinction between communication of the order of suspension and communication of the order of dismissal. In that context, the Division Bench observed as under:--

"12. Much reliance has been placed on the above observation by the learned counsel for the Corporation. We do not however think that the observation is of any help to the Corporation. It is apparent from the observation that a distinction has been made regarding the points of time when an order of dismissal and an order of reversion or suspension becomes effective. In the case of an order of reversion or suspension, when it goes out of the control of the authority concerned, that is to say, when it is despatched to the Government servant either by post or by messenger, it becomes effective not only on the authority concerned in the sense that the order cannot be changed or modified, but also on the Government servant sought to be bound by it. This principle is not, however, applicable in the case of an order of dismissal in view of the consequences as pointed out in State of Punjab Vs. Amar Singh Harika, . When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him. This, we think, was all that was meant by Untwalia J., in the above observation in Balbir Singh''s case. In view of the principles aforesaid, we hold that in the instant case, the impugned order of removal became effective when the same was received by the appellant through post in Calcutta, he having no prior knowledge of the same by any other means."

According to Mr. Singh, the principle referred in the case, albeit concerning service law, also applies to the labour law. According to him, since the order was not served, it never became effective and not before 18 November, 1997 at least. According to the petitioner, the dismissal notice was notified on the notice board. Mr. Pai has relied upon the averments made by the respondent himself in the statement of claim and refusal to contend that the termination was of 17 November, 1997.

The reference is about the termination dated 17 November, 1997, so this date will have to be taken as the base. Proceeding accordingly, the question will be whether the termination dated 17 November, 1997, was in violation of Section 33(1)(b) of the Act. For it to be so, it will have to be held that on 17 November, 1997 the conciliation proceedings were pending. The Tribunal has held that notice issued by the Conciliation Officer on 13 November, 1997 was received by the petitioner on or before 17 November, 1997 and the termination being after 13 November, 1997, it was in violation of Section 33(1)(b). Though the witness of the petitioner, firstly, evaded to give a clear answer, subsequently admitted that the notice was received by the petitioner. The Tribunal has not in terms stated that the pendency of the conciliation proceedings would commence from the date of notice is issued, but the basis of reasoning and the conclusion is on those lines.

The Section 33(1)(b) of the Act reads as under:

"Sec. 33(1)(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending."

The Section 33(1)(b) places an embargo upon an employer not to discharge or punish by dismissal or otherwise any workmen concerned with the dispute pending before Conciliation Officer Board or Court in respect of industrial dispute, without an express permission. Mr. Pai has stressed on the phrase "pendency" of the conciliation proceedings used in Section 33 to contend that on the date of termination i.e. on 17 November, 1997 no conciliation proceedings were pending. According to him Section 20 of the Act read with Rule 10 of Industrial Disputes (Central Rules), 1957 lay down that the proceeding would commence upon admission of the conciliation proceedings. Section 20 of the Act reads as under:

"20. Commencement and conclusion of proceedings.--

(1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lockout under section 22 is received by the Conciliation Officer or on the date of the order referring the dispute to a Board, as the case may be.

(2) A conciliation proceeding shall be deemed to have concluded--

(a) where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute;

(b) where no settlement is arrived at, when the report of the Conciliation Officer is received by the appropriate Government or when the report of the Board is published under section 17, as the case may be; or

(c) when a reference is made to a Court, Labour Court, Tribunal or National Tribunal] under section 10 during the pendency of conciliation proceedings.

(3) Proceedings before an arbitrator under section 10A or before a Labour Court, Tribunal or National Tribunal] shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudication, as the case may be] and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under section 17A].

Rule 10 reads as under :

"10. Conciliation proceedings in non-public utility service--Where the Conciliation Officer receives any information about an existing or apprehended industrial dispute which does not relate to public utility service and he considers it necessary to intervene in the dispute, he shall give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be specified therein."

The bare perusal of Section 20 shows that it does not specifically refer to commencement of conciliation proceedings when the Conciliation Officer receives an information that the industrial dispute is apprehended or is ongoing. Rule 10 deals with formal notice in writing to the parties concerned by the Conciliation Officer declaring his intention to commence proceedings with effect from such a date as may be specified therein. Mr. Pai has found force in the language of Rule 10, more particularly, the word to "commence conciliation proceedings with effect from such a date as may be specified." He has also relied on the decision of the Apex Court in the case of Chief Forest Conservator (Wild Life) and Others Vs. Nisar Khan, to contend that rules are part of the Act.

The phrase used in Section 33(1)(b) is ''pendency'' of conciliation proceedings. It is during the pendency of conciliation proceedings that the embargo is placed on the parties. Section 33 provides an additional safeguard to the workmen. A phrase occurring in the statutory provision has to be understood in the context and intent of a provision. The intent can be gathered from the scheme. The Scheme of the Act, therefore, needs to be noticed. Section 4 deals with the Conciliation Officers. A Conciliation Officer is charged with the duty of mediating and promoting settlement of industrial disputes. Section 12 lays down the duties of Conciliation Officer. Section 12 reads as under:

"12 : Duties of conciliation officers:--(1) Where an industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.

(2) The Conciliation Officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.

(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the Conciliation Officer shall send a report thereof to the appropriate Government or an officer authorized in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.

(4) If no such settlement is arrived at, the Conciliation Officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.

(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore.

(6) A report under this Section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government:

Provided that, subject to the approval of the Conciliation Officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute."

Section 12(2) states that the Conciliation Officer shall, for bringing settlement without delay will investigate the dispute and may do all such things he may, thinks fit for inducing parties to come to a settlement. Function of the Conciliation Officer is to ensure that the industrial dispute, which in his prima facie opinion is likely to arise or has arisen, is attended to and resolved, to ensure industrial peace. Having formed a prima facie opinion, the Conciliation Officer next calls on the parties to attend a meeting wherein actual interaction and conciliation will take place with the parties, to end the dispute with the consensus. If he cannot settle the dispute, then he submits a failure report.

When the industrial dispute is apprehended or is ongoing, the Conciliation Officer is expected to act urgently to stem further worsening of the situation. In that sense, his duty commences the moment, he gets information that there is a dispute which is pending or is apprehended. On the basis of the demand made before him, the Conciliation Officer has to arrive at a prima facie finding regarding industrial dispute and then move urgently. He cannot take a leisurely approach. He is expected to call the parties together at the conciliation and strive to carry out a settlement by issuing a notice under Section 12(2) of the Act.

The notice sent by the Conciliation Officer calling the parties for conciliation is pursuant to his duty under Section 12(2) of the Act. It is by this notice the Conciliation Officer calls on the parties to come together so that the dispute can be resolved. Once such notice calling on the parties to attend the conciliation proceeding is issued, it has to be presumed that the Conciliation Officer formed prima facie opinion about existence of industrial dispute unless the language of the notice expressly states otherwise. The Conciliation Officer sets the process of conciliation in motion by issuing a notice under Section 12(2). It cannot be said that only on the date the actual meeting is supposed to be held the conciliation proceedings for Section 33(1)(b) will begin. To take such a view would provide a weapon in the hands of unscrupulous employers, who would, upon receipt of notice of conciliation would immediately proceed to terminate the services of workmen, something, which has happened in the present case. Such interpretation would completely nullify the object of Section 33(1)(b). The proper course of action for an employer is upon receipt of notice under Section 12(2) of the Act is to attend the conciliation proceeding and seek approval for its actions. The employer is not rendered remediless but is placed under an embargo to seek approval. The employer cannot simply disregard a notice issued under Section 12(2) of the Act, on a spacious plea that on the date specified in the notice, the embargo will commence and before that services of a workman can be terminated.

The decision of the Apex Court in Chief Forest Conservator (Wild Life) and Others Vs. Nisar Khan, is relied upon by Mr. Pai to contend that Rules will form part of the Act. This case arose from provisions of the Wild Life (Protection) Act, 1972. The Apex Court held that even though grant of the licence in case of birds in captivity was not altogether prohibited but before grant of the licence, the authority was under obligation to ensure that provisions of the act, as well as rules, are not violated. Even if Rule 10 is read with Section 20 it does not take the case of Petitioner any further. Rule 10 lays down the procedure to be followed by Conciliation Officer. Rule 10 states that when a Conciliation Officer receives an information, he shall give a formal intimation in writing declaring his intention to commence conciliation proceedings. This rule only concerns itself with the procedural aspect of issuance of notice.

Though a formal intimation needs to be given to the parties declaring the intention to commence conciliation proceedings, the phrase used in Section 33 is the pendency of conciliation proceedings. As stated earlier, under Section 12(2), the Conciliation Officer has to act upon the dispute without delay. He must do all such acts necessary to bring about an industrial peace. How a notice is to be issued and in what format are all procedural matters. However, a convoluted interpretation of a rule laying down the procedural aspect, defeating the legislative intention behind the main provisions, cannot be taken.

When the Conciliation Officer specifies in the notice that the conciliation proceedings will commence from a particular date, all he states is that on that date the parties will meet and effort will be made to bring about a resolution of dispute. The Conciliation Officer merely gives time to the parties to arrange their affairs to attend the meeting. When the Conciliation Officer becomes aware of the apprehended or pending industrial dispute, he calls the parties to attend on a particular date so that the dispute can be resolved. If for some reasons, this event post keeps getting postponed and interpretation of Mr. Pai is accepted, then the protection contained in section 33(1)(b) will become illusionary. If the Conciliation Officer is not sure that there exists an industrial dispute, the Conciliation Officer can issue a notice calling on the parties to give particulars so that he can form a prima facie opinion, whether there exists an industrial dispute. For that purpose, he may state so in the notice that the notice is only for obtaining more information.

Therefore, much will turn on the language of notice issued by the Conciliation Officer. The notice issued in the present case is reproduced as under:--

"Dear Sir,

This is to inform you that I shall hold Conciliation Proceedings/Joint Discussions under Section 12of the Industrial Disputes Act. 1947 in the above mentioned industrial dispute in this office on 13.11.97 at 11.30 hrs. with a view to bring about an amicable settlement of the dispute. You are, therefore, requested to attend the Conciliation Proceedings/Joint Discussions either in person or through a duly authorized representative with all relevant records and documents and evidence oral/documentary. Please note that if you fail to attend the discussions without reasonable cause in advance of the aforesaid date, the dispute will be proceeded ex-parte.

In this connection your attention is invited to the obligation imposed by Sec. 22(1), 22(2) & 33 of the I.P. Act

Your comments on the issue raised by the Union/Workman be furnished to this office endorsing a copy to the Union/Workmen (by the employer). The comments and the following particulars in four copies may be sent to the undersigned by 17.11.97 as it would facilitate prompt disposal of the case.

(a) No. of workmen in the concern (b) No. & occupation of workmen affected by this dispute (c) whether any of the demands are covered by the provisions of any other labour legislation or settlement or award and (d) name of the Unions operating in the Organization.

Yours faithfully, Sd/- (Pankaj Dubey) Conciliation Officer and Asstt. Labour Commissioner (c), Mumbai."

The notice reproduced above shows that the Conciliation Officer had drawn the attention of the parties to Section 22(1), 22(2) and 33 of the Act. The Conciliation Officer may not have power to issue a positive direction to the employer not to terminate the services. The Conciliation Officer, therefore, invited the attention of the Petitioner to Section 33 of the Act. The notice clearly indicated that it was issued under Section 12. The Conciliation Officer was prima facie satisfied about the existence of the industrial dispute. He referred to the embargo under Section 33 and therefore, for all purposes it was initiation of conciliation proceedings, and the next step was to hold the actual discussions. Though it has been urged by Mr. Pai that the notice referred to the issue of suspension and no demand was served upon the Petitioner, the Petitioner''s witness had admitted that the demand was served. Thus, it is with full knowledge and after service of the notice of 13 November, 1997, that the Petitioner terminated the services of Mr. Malhotra. This was in clear defiance of the notice and was an attempt to pre-empt the conciliation proceedings. Lengthy arguments made by Mr. Pai invoking legal intricacies on behalf of the Petitioner, cannot detract from the fact that after receipt of notice, without seeking approval, breach of Section 33(1)(b) termination has been effected. Following the dicta of the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, , the only conclusion possible is that the termination of Mr. Malhotra was ineffective and void.

Before the Division Bench of Karnataka High Court, an identical issue arose for consideration in the case of Management of S.K.F. Bearings India Ltd. v. S.M. Ravi Kumar, reported in Laws (Kar) 2005-6-65 (2006 (1) AIR Kar R 616). In this case, the Conciliation Officer first issued a notice on 27 November, 1998 informing the management that a joint meeting is proposed to be held on 4 December, 1998. Thereafter, the parties appeared before Conciliation Officer on 4 January, 1999, and thereafter matter was adjourned from time to time and then to 22 September, 1999. In the meanwhile, on 19 July, 1999, management terminated the services of the workmen. Thereafter again, a notice was sent by the Conciliation Officer quoting Section 12 of the Act. The failure report was sent on 13 July, 2000. The issue arose before single Judge of the Karnataka High Court as to when exactly the conciliation proceedings commenced as there were two notices issued by the Conciliation Officer. The initial notice called the parties for holding conciliation proceedings, and the subsequent notice was issued mentioning Section 12 and Rule 10. The Learned single Judge held that the Court is required to consider the content and substance of notice, and found that the initial notice calling the parties for conciliation was, in fact, a notice under Section 12 of the Act, and it is from that date that the conciliation proceedings were initiated. In appeal, the view taken by the Single Judge was upheld, and the Division Bench observed as under:

"10 conciliation proceedings in non-public utility service--where the Conciliation Officer receives any information about an existing or apprehended industrial dispute which does not relate to public utility service and he considers it necessary to intervene in the dispute, ''at such place and at such time as he deems fit'' he shall give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be specified therein.

Now, the question is whether the conciliation proceedings came to be initiated pursuant to notice Annexure-C dated 27th November, 1998 issued by the Conciliation Officer as contended by the Learned Counsel for the workman or the proceedings came to be initiated pursuant to notice dated 2nd November, 1999 issued by the Conciliation Officer as contended by the learned Counsel for the management?

The State Government in the impugned endorsement Annexure-A rejected the prayer of the workman for permission to lodge a complaint against the management under Section 33 of the Act on the short ground that the services of the workman was not terminated by the management during the pendency of the conciliation proceedings. However, the Learned single Judge on consideration of the contents of the notice-Annexure-C dated 27th November, 1998 and also on the basis of the proceedings maintained by the Conciliation Officer dated 4th December, 1998, 4th January, 1999 and 25th January, 1999 took the view that the conciliation proceedings came to be initiated pursuant to the notice-Annexure-C dated 27th November, 1998 issued by the Conciliation Officer fixing the conciliation meeting on 4th December, 1998 at 3.00 p.m. This is clear from the observation made by the Learned single Judge at paragraph 5 of the judgment. We have gone through the contents of notice-Annexure-C and also the proceedings maintained by the Conciliation Officer commencing from the issue of notice-Annexure-C till the submission of the report by the Conciliation Officer as per Annexure-R1 dated 30th October, 1999. As noticed by us earlier, though it is the contenting of Sri Murthy, that the conciliation proceedings commenced only subsequent to issue of notice dated 2nd November, 1999, we are unable to accede to his submission. In our considered view, the facts of the present case as rightly pointed out by the Learned single Judge indicates that the conciliation proceedings commenced on issue of notice-Annexure-C dated 27th November, 1998. It is useful to extract the translation copy of the notice-Annexure-C which has been produced by the appellant. The same reads as follows:

NOTICE

Subject: Regarding regularising the services of apprentice workers in M/S SKF Bearings Limited, Bangalore.

With reference to the above subject, it is to inform that next joint meeting for conciliation shall be held on 4.12.98 at 3-00 p.m. You are requested to be present on the said date without fail along with the related documents and registers. Both the parties are directed to maintain status quo and not to indulge in any untoward incidents as conciliation proceedings are on.

Sd/- Deputy Labour Commissioner, Region-2 Bangalore

From the contents of the notice-Annexure-C extracted above, it is clear that the meeting was convened by the Conciliation Officer for considering the subject regarding "Regularisation of the services of the apprentice workers" in the establishment of the management on 4th December, 1998 at 3.00 p.m. In the notice, the parties were directed to be present along with the relevant documents and registers. They were also directed to maintain status quo and not to indulge in any untoward incident as the conciliation proceedings were on. Subsequent to the notice-Annexure-C, the proceedings maintained by the Conciliation Officer show that on several dates the Conciliation Officer held the proceedings and the proceedings stood adjourned on many occasions either on the ground that the representative of the management was not present or a request for adjournment was made on behalf of the management. At no stage of the proceedings before 30th October, 1999 it was observed by the Conciliation Officer in his proceedings that the meeting convened by him was not in the course of conciliation proceedings or the meeting was convened for a purpose other than exploring the possibility of settlement with regard to the claim made by the workmen''s union regarding Regularisation of service of apprentices. Therefore, we are unable to appreciate as to under what circumstances for the first time the Conciliation Officer in the order-sheet subsequent to the issue of order of termination to the workman recorded that the dispute between the parties was determined as an Industrial Dispute and the proceedings were treated as conciliation proceedings and subsequently issued notice dated 2nd November, 1999 purporting to be one under Section 12(1) of the Act read with Rule 10 of the Rules. The conciliation proceedings referred to in Section 2(e) of the Act means any proceedings held by a Conciliation Officer or the Board under the Act. According to Law Lexicon ''conciliation'' means "bringing of opposing parties or individuals into harmony (as)". Though Sri Narasimhan would contend that the conciliation proceedings mean any proceedings held by a Conciliation Officer which necessarily need not be under the Act, we find it difficult to accept the said submission of Sri Narasimhan. In our considered view, conciliation proceedings mean any proceedings held by a Conciliation Officer under the Act. As noticed by us earlier, the notice-Annexure-C issued by the Conciliation Officer directs the parties to be present before him for the purpose of conciliation and to maintain status quo as conciliation proceedings are on. The Conciliation Officer has no power under the Act to give a positive direction to the parties to maintain status quo or directing them to refrain from doing any act or directing them to do any act. Therefore, the said instruction or direction given by the Conciliation Officer could only be traced to the obligation cast on the management. Under Section 33 of the Act not to alter the conditions of service of the workmen as set out in Section 33. Though the notice does not indicate that the same was issued in exercise of the power conferred on him under Section 12 of the Act read with Rule 10 of the Rules, the contents of the notice-Annexure-C clearly indicates that the notice was issued by the Conciliation Officer in exercise of the powers conferred on him under Section 12(1) of the Act read with Rule 10 of the Rules. It is relevant to point out that Section 4 of the Act provides for appointment of Conciliation Officer. Section 12 of the Act comprises of two parts. Firstly, in respect of industries which are not in the nature of public utility services, a Conciliation Officer is empowered, if he is satisfied that an industrial dispute exists or is apprehended, to hold conciliation proceedings. No doubt, in this a discretion is conferred on the Conciliation Officer to hold or not to hold conciliation proceedings. However, so far as disputes relating to public utility services are concerned and a notice prohibiting a strike and lockout in terms of Section 22 of the Act has been issued, the Conciliation Officer is bound to hold the conciliation proceedings. In this, there is no discretion left to the Conciliation Officer and he is required to hold the conciliation proceedings immediately after the issue of notice under Section 22 of the Act. However, it is necessary to point out that the discretion given to the conciliation officers to hold conciliation proceedings in respect of industries which are not public utility services cannot be exercised arbitrarily. He is required to exercise the discretion fairly and reasonably and keeping in mind the object of the power conferred on him. From the scheme of the Act, it is clear that conciliation officers are appointed with a view to mediate and bring about settlement and create a congenial atmosphere for the purpose of industries peace. Therefore, once the Conciliation Officer is satisfied that there is an existing industrial dispute or the industrial dispute is apprehended, he has an imperative duty to initiate conciliation proceedings to maintain industrial peace and harmony in the industries. Therefore, we are unable to accept the submission of Sri Murthy that since a discretion is conferred on the Conciliation Officer not to hold conciliation proceedings in the case of industries other than public utility services, the notice-Annexure-C should not be understood as initiating conciliation proceedings and the said notice should be understood only as convening of a meeting between the management and the workmen. From the scheme of the Act, it is clear that the conciliation officers are appointed with a view to mediate and bring about settlement and create a congenial atmosphere for the purpose of industrial peace. Therefore, it would not be permissible for him not to initiate conciliation proceedings, if in the circumstances, the materials placed before him call for initiation of conciliation proceedings. This is also clear from the reading of Sub-section (2) of Section 12 of the Act, wherein it is provided that the Conciliation Officer should for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and all right of settlement and he should do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. Under these circumstances, when an industrial dispute exists or is apprehended, a Conciliation Officer cannot be a silent spectator to such disputes on the ground he has discretion not to initiate conciliation proceedings in respect of industries other than public utility services. However, in a given case, it may be permissible for him before he initiates conciliation proceedings only for the purpose of ascertaining whether any industrial dispute exists or is apprehended under the Act, to convene the meeting of the parties by making it clear in the notice issued to them that he has convened the meeting only for the purpose of satisfying himself whether any industrial dispute exists or is apprehended. However, in cases where he issues a notice notifying that he has convened the meeting for conciliation proceedings, it is not possible to take the view that the proceedings initiated are not conciliation proceedings. The conciliating officer gets the jurisdiction to convene, the meeting of the management and the union of the workmen in his capacity as a Conciliation Officer and the source" of power is Sections 11, 12 and 13 of the Act. Rule 10 of the Rules on which strong reliance is placed by Sri Murthy, in our view cannot be read, to understand that the proceedings initiated are not conciliation proceedings. Rule 10 of the Rules only provides for the format of the notice to be issued in cases where the industrial dispute does not relate to public utility service. The power to initiate conciliation proceedings is conferred on the Conciliation Officer under Sub-Section (1) of Section 12 of the Act and any minor error in the form of the notice issued cannot be made as a ground to take the view that the conciliation proceedings has not commenced. While determining the question whether conciliation proceedings have commenced, or not, the Court has to look into the substance of the notice and not be guided by any minor error that may creep into the contents of the notice issued to the parties for the purpose of conciliation proceedings. The Court cannot ignore the fact that by placing technical interpretation. the notice issued initiating conciliation proceedings is not treated as such a notice. the consequences of such interpretation would be very serious so far as the workmen are concerned, and it would have the effect of frustrating the very mandate contained in Section 33 of the Act. In the instant case, as noticed by us earlier, the notice-Annexure-C in unequivocal terms indicates that the meeting convened on 4th December, 1998 was for the purpose of conciliation. Pursuant to the said notice, meetings were held on several dates. As noticed by us earlier, the meetings were held on 4th January, 1999, 14th January, 1999, 25th January, 1999, 8th February, 1999, 31st March, 1999, 12th April, 1999, 7th August, 1999, 20th September, 1999, 22nd September, 1999 and 30th October, 1999. It is only on 30th October, 1999, for the first time the Conciliation Officer observes that he has decided to initiate conciliation proceedings. However, he issues a notice referring to Rule 10 of the Rules and Section 12(1) of the Act only on 2nd November, 1999 directing the parties to appear before him on 11th November, 1999. In our view, the subsequent observations made by the Conciliation Officer on 30th October, 1999 in the order-sheet or issue of notice on 2nd November, 1999 in the facts and circumstances of the case will not make the conciliation proceeding earlier initiated not a conciliation proceeding under the Act and the same is of no assistance to Sri Murthy to support his contention that on the date of the order of termination made against the workman on 19th July, 1999, conciliation proceedings had not commenced, An obligation is cast on the management under Section 33 of the Act not to alter the conditions of service of the workmen as set out in Section 33 of the Act. Having gone through the proceedings maintained by the Conciliation Officer, we find it difficult to take the view that all the proceedings that commenced from 4th December, 1998 till 30th October, 1999 were not held as part of the conciliation proceedings pursuant to the notice issued to hold conciliation proceedings. While deciding the question as to when exactly the conciliation had commenced, the action of the Conciliation Officer subsequent to the order made by the management adverse to the interest of the workmen cannot be made as the sole basis to decide the question whether the conciliation proceedings had actually commenced prior to an order made terminating the services of the workman. In each case. when the question arises as to when the conciliation proceedings commenced, the court will have to examine the contents of the notice issued by the Conciliation Officer convening the proceedings and the stages at which the proceedings were held. In the instant case, as noticed by us earlier, we find it difficult to believe that the Conciliation Officer held the proceedings on the various dates referred to above without treating it as conciliation proceedings and the parties had participated in the proceedings without treating them as conciliation proceedings, we are of the considered view, merely because the notice issued by the Conciliation Officer subsequent to the termination of service of the workman states that it is a notice issued under Sub-section (1) of Section 12 of the Act read with Rule 10 of the Rules, if such a subsequent notice only has to be treated as a notice of conciliation, it would have the effect of exposing the workman to be at the mercy of a Conciliation Officer who for extraneous considerations may act against the interest of the workman at the behest of the management. Therefore, as noticed by us earlier, while considering the question as to whether the conciliation proceedings have commenced or not, the Court has to be guided by the substance and contents of the notice issued and the contents of the proceedings actually held pursuant to the said notice; and not to be guided by the notice issued by the Conciliation Officer subsequent to the termination of the service of the workman in violation of the provisions contained under Section 33 of the Act.

I am in respectful agreement with the above-mentioned observations of the Division Bench of Karnataka High Court, which supports the view that I have taken. To take any other view will be completely frustrating the object of Section 33."

Mr. Pai then submitted that while construing the provisions of Section 33 of the Act, balance between employer''s right to terminate the workmen, and the protection to the employee needs to be struck. He submitted that, if such pre-emptive action as resorted to by the Union in the present case is permitted, an employer will never be able to terminate or take action against the workman. This balance has already been achieved under Section 33of the Act. The Apex Court in the case of Air-India Corporation, Bombay Vs. V.A. Rebellow and Another, , has indicated the legislative intent. Further, there is no absolute embargo on the employer to take steps against an employee. All that Section 33(1)(b) mandates is that a prior approval be sought. The paramount interest is that there should be industrial peace. The Conciliation Officer is empowered to achieve it by way of conciliation. If a dispute can be resolved through conciliation, it accrues to benefits of all the parties as the litigation comes to an end. Therefore, both the employer, workman and the Union are placed under embargo not to take any adverse steps as specified in the said section, without the approval.

Mr. Pai submitted that even assuming Section 33(1)(b) applies to the facts of the present case, one of the grounds for taking action against Mr. Malhotra was of loss of confidence and this has not been dealt with. He relied on the decision of Air-India Corporation, Bombay Vs. V.A. Rebellow and Another, . More particularly, on the following paragraphs:

"10. The basic object of these two sections broadly speaking appears to be to protect the workmen concerned in the disputes which form 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 a ban, subject to certain conditions, has 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 under the general law governing contract of employment and Section 33A provides for relief against contravention of Section 33, by way of adjudication of the complaints by aggrieved workmen considering them to be disputes referred or pending in accordance with the provisions of the Act. This ban, however, is designed to restrict interference with the general rights and liabilities of the parties under the ordinary law within the limits truly necessary for accomplishing the above object. The employer is accordingly left free to deal with the employees when the action concerned is not punitive or mala fide or does not amount to victimization or unfair labour practice. The anxiety of the legislature to effectively achieve the object of duly protecting the workmen against victimization or unfair labour practices consistently with the preservation of the employer''s bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the overall scheme of these sections. Turning, first to Section 33, sub-section (1) of this section deals with the case of a workman concerned pending dispute who has been prejudicially affected by an action in regard to a matter connected with such pending dispute and sub-section (2) similarly deals with workmen concerned in regard to matters unconnected with such pending disputes. Subsection (1) bans alteration to the prejudice of the workman concerned in the conditions of service applicable to him immediately before the commencement of the proceedings and discharge or punishment whether by dismissal or otherwise of the workman concerned for misconduct connected with the dispute without the express permission in writing of the authority dealing with the pending proceeding. Sub-section (2) places a similar ban in regard to matters not connected with the pending dispute but the employer is free to discharge or dismiss the workman by paying wages for one month provided he applies to the authority dealing with the pending proceeding for approval of the action taken. In the case before use we are concerned only with the ban imposed against orders of discharge or punishment as contemplated by clause (b) of the two sub-sections. There are no allegations of alteration of the complainant''s terms of service. It is not necessary for us to decide whether the present case is governed by Sub-section (1) or sub-section (2) because the relevant clause in both the sub-sections is couched in similar language and we do not find any difference in the essential scope and purpose of these two sub-sections as far as the controversy before us is concerned. It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore, free to take action against his workmen if it is not based on any misconduct on their part. In this connection reference by way of contrast may be made to sub-section (3) of Section 33 which imposes an unqualified ban on the employer in regard to action by discharging or punishing the workman whether by dismissal or otherwise. In this sub-section we do not find any restriction such as is contained in clause (b) of Sub-sections (1) and (2). Sub-section (3) protects "protected workman" and the reason is obvious for the blanket protection of such a workman. The legislature in his case appears to be anxious for the interest of healthy growth and development of trade union movement to ensure for him complete protection against every kind or order of discharge or punishment because of his special position as an officer of a registered trade union recognised as such in accordance with the rules made in that behalf. This explains the restricted protection in Sub-sections (1) and (2).

It is in the background of the purpose and scope of Section 33(1) and (2) that we have to consider whether the action taken against the complainant is hit by either of these two sub- sections. We have seen the form and the language of the impugned order. On its face the language does not show that the complainant''s services were terminated because of any misconduct. Prima facie, therefore. the impugned order is not an order dis-charging or punishing the complainant for any misconduct. But then the complainant''s learned counsel Shri Menon argued that the face or the form of the order is not conclusive and that the Court is entitled to and indeed should go behind the form and by looking at the real substance of the matter try to find the real cause and then come to its conclusion whether or not the order is a mere camouflage for an order of dismissal for misconduct."

The careful perusal of the aforesaid decision indicates that the facts of this case were totally different. In that case, Air India - the appellant terminated the services of its employee in accordance with Regulation 48 of the Air India Service Regulations. The termination order was challenged by a complaint under Section 33(A) of the Act. Regulation 48 empowered the appellant Air India to terminate the services of an employee without assigning any reason. The service of the workman therein was terminated with a simple termination letter stating that it has been decided to terminate the service, with immediate effect. In the complaint filed by the workman, it was contended that the appellant Air India was bound to disclose reasons for termination. The Labour Court held that the workman therein was a concerned workman and is discharge simplicitor was in breach of Section 33 of the Act. The Apex Court considered the Scheme of Section 33 and Section 33A of the Act. The Apex Court held that the embargo is placed in respect of action taken for misconduct, whether connected or unconnected with the dispute. The employer was, therefore, free to take action not based on the misconduct. The Apex Court then considered the order of termination and found that the action was not for discharge or punishment of the workman for any misconduct. The services of the workman therein were terminated because of suspicion about his private conduct and behaviour with an air hostess. In that context, the Apex Court held that the termination for loss of confidence was bona fide and was not founded on misconduct and, therefore, not in violation of Section 33 of the Act. The facts at hand are totally different. The loss of confidence is not independent of the misconduct alleged. It is founded on the very enquiry report, which is the basis of the misconduct. Mr. Malhotra was sought to be terminated purely on the ground of misconduct and, therefore, by styling it as a discharge for loss of confidence, the petitioner cannot seek to bring it out of the purview of Section 33(1)(b) of the Act. This contention will have to be accordingly rejected.

It was then contended by Mr. Pai that even if termination is found to be illegal, reinstatement ought not to be ordered. He has relied on the decisions in the case of (1) Bharat Iron Works Vs. Bhagubhai Balubhai Patel and Others, ; (2) J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another, ; (3) Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, ; (4) Madhya Pradesh Electricity Board Vs. Jagdish Chandra Sharma, . All the cases relied upon by Mr. Pai are in respect of termination of an employee being set aside. None of the cases are applicable when there is a breach of Section 33(1)(b) of the Act. It has been settled by the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, , that if there is a breach of Section 33(1)(b) of the Act, there is no termination in the eyes of law. Same is the view taken by the Division Bench of the Karnataka High Court in the case of S.K.F. Bearings (2006 (1) AIR Kar R 616) (supra).

Mr. Singh, submitted that the order passed by the Tribunal was after considering the factual position and after considering the legislative policy behind Section 33(1)(b). He submitted that, once the Tribunal considered all the parameters and has taken a possible view of the matter, this Court should not interfere in the equitable jurisdiction of this Court. He also submitted that the conduct of the petitioner in proceeding to terminate the services of Mr. Malhotra in full knowledge of conciliation proceedings is an act of defiance of law and does not deserve any indulgence.

The Apex Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, , laid down the parameters of review under Article 226 as under :

"7. "The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised."

In the case of Sawarn Singh and Another Vs. State of Punjab and Others, , it was held :

"13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

In the case of Surya Dev Rai Vs. Ram Chander Rai and Others, , the Apex Court held as under:--

"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:--

(1) Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction -by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction or by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

These principles will have to be kept in mind while testing the challenge of the petitioner.

Ultimately, what was the case against Mr. Malhotra? The petitioner had alleged that Ms. Vaswani has taken an amount of Rs. 1000/- from a passenger which she subsequently returned. According to the petitioner, when Mr. Malhotra came to know from Ms. Vaswani that she has taken an amount of Rs. 1000/-, he asked for Rs. 500/- and assured her that no action will be taken against her. Mr. Malhotra was not occupying higher or superior position to protect her. There was no witness at all except Ms. Vaswani. Ms. Vaswani was herself charged. She was examined against Mr. Malhotra. Termination of Ms. Vaswani was not in dispute, and the proceedings in respect of her termination were not taken further. The Enquiry Officer held some of the charges against Mr. Malhotra were not proved. Mr. Malhotra was an office bearer of the Union. The charges against Mr. Malhotra were extremely sketchy. Even going by the enquiry, one gets an impression that the enquiry based on such charges against Mr. Malhotra was somehow nothing but a design to dispense with services of Mr. Malhotra at any costs. The respondent had made a grievance that this was a methodology adopted by the petitioner to dispense with its work force to bring in a contractor. Conduct of the petitioner shows that the grievance of the respondent was justified. Even after getting a notice from the Conciliation Officer, the petitioner proceeded to terminate the services of Mr. Malhotra. It is now in retrospect that various legal arguments are being advanced to justify the action. The Industrial Court considered this factual and legal position and has come to a correct decision.

The services of Mr. Malhotra were terminated in breach of Section 33(1)(b). The termination, therefore, had not come into effect at all. He will have to be treated as continued in service till the date of superannuation, and the petitioner will have to pay him the monetary benefits accordingly. Mr. Malhotra has now crossed the age of superannuation. The present petition, challenging the Award dated 18 August, 2004 was admitted on 25 January, 2005. The petitioner was paid last drawn wages under Section 17B of the Act until 10 February, 2011, being the date of his superannuation. Thus, the claim for wages, if any, of Mr. Malhotra will be for the period excluding the above-mentioned period. Since he has crossed the age of superannuation, there is no question of reinstatement in service at this stage.

Before parting one more aspect needs to be noted. The petition was extensively heard spread over different dates. The arguments were advanced on behalf of the petitioner for at least 2 to 3 sessions. After the conclusion of the arguments, the points were crystallized and the respondent was called upon to reply. During the main arguments, the learned counsel for the petitioner made no reference at all to the findings of the Tribunal as regard Mr. Malhotra being a workman. When the counsel for the respondent argued in reply, he proceeded to address the Court on other issues since the issue as to status of workman was not raised by the learned counsel for the petitioner in his arguments. In fact, the learned counsel for the respondent had made a specific reference to the fact that this point has not been urged, and therefore, he is not dealing with it. Thereafter, the matter was adjourned for the rejoinder of the petitioner. At the end of rejoinder, the learned counsel for the petitioner filed a summary of his arguments in which the petitioner raised the issue of the status of the respondent as workman. The conduct of the petitioner of slipping in an argument never made, in the written submission, after the conclusion of the arguments, needs to be deprecated. The counsel for the petitioner was informed that this argument will not be dealt with. In the circumstances, there is no merit in this petition. The writ petition is dismissed. Rule discharged.