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Judgment
K. Chandru, J.—The petitioner has filed this writ petition seeking for issuance of writ of Certiorari to call for the records of the proceedings
in C.P. No. 2 of 2003 pending on the file of the first respondent and quash the same.
The Claim Petition u/s 33C(2) of the Industrial Disputes Act, 1947 (for short, ''I.D. Act'') was filed by the workmen / respondents 2 to 4 herein
before the Labour Court, Vellore, claiming that the termination of their services by the writ petitioner Management is void ab initio since the writ
petitioner did not comply with the provisions of Section 33C(b) of the I.D. Act before terminating their services. According to the respondents 2 to
4, the said action of the Management was void ab initio in the light of the decision of the Supreme Court reported in 2002 (1) L.L.J. 834 [Jaipur
Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors.]. In view of the same, they have sought for several amounts for the period
starting from 01.6.1991 to 31.12.2000.
The claim of the respondents 2 to 4 was resisted by the writ petitioner Management by filing a counter affidavit. In paragraph 4 of the counter
affidavit, the writ petitioner alleged that the respondents 2 to 4 have raised Industrial Disputes being I.D. Nos. 41 of 1995, 42 of 1995 and 210 of
1996 respectively before the Labour Court and the Labour Court dismissed the same by common Award dated 21.11.1997. Hence, the question
of agitating the issue once again does not arise. It was also stated by them that the workmen / respondents 2 to 4 were not parties to the dispute
I.D. No. 77 of 1989, which is pending before the Industrial Tribunal, Madras, and hence, the question of violation of Section 33C(b) of the I.D.
Act does not arise. It was further stated that the company itself was closed even by 27.7.1998. Under these circumstances, the writ petitioner has
filed the present writ petition challenging the proceedings pending before the first respondent Labour Court in C.P. No. 2 of 2003.
The writ petition was admitted on 01.02.2005 and interim stay was granted by this Court. The respondents 2 to 4 have now filed a petition in
W.V.M.P. No. 1548 of 2005 seeking to vacate the stay granted earlier. When the petition for vacating the stay came up for hearing, the main writ
petition itself was taken up for hearing.
There is no representation on the side of the writ petitioner and I have heard Mr. S.T. Varadarajulu, learned Counsel appearing for the
respondents 2 to 4 and have also perused the records.
When questioned as to how the Claim Petition was filed, Mr. S.T. Varadarajulu, learned Counsel appearing for the respondents 2 to 4,
contended that the basis for filing the Claim Petition was the authoritative pronouncement of the Supreme Court reported in 2002 (1) L.L.J. 834
(cited supra) wherein it was held that the infraction of Section 33 of the I.D. Act will make the order of the appellant Management void ab initio.
However, there is no quarrel with that proposition. The said judgment itself came to be delivered by the Constitution Bench only in the year 2002
wherein the earlier decision of the Supreme Court reported in 1978 SCC (L & S) 165 known as Punjab Beverages Case was overruled. In that
judgment, the Supreme Court has held that if there was an infraction of Section 33(2) of the I.D. Act and no claim petition can be filed seeking for
computation of monetary benefit then the workmen will have to question the order of termination.
It is seen from the records that the common Award dated 21.11.1997 passed in the Industrial Disputes raised by the respondents 2 to 4 has
become final. In the said disputes, the workmen never raised any such issue about the violation of Section 33 of the I.D. Act. On the contrary, the
only contention raised by them was that they were eligible for reinstatement with the new Management. This was squarely rejected by the Labour
Court vide its Award dated 21.11.1997 and it was not challenged by the workmen in a manner known to law. When the non-employment has
already been covered by a conclusive Award of the Labour Court, it would not be open to the workmen to go before the Labour Court and file
petition u/s 33C(2) of the I.D. Act claiming benefits as if the termination was a non-existant one and the resultant position was that they were
eligible to get salary for the said period on the basis of certain pronouncements of the Supreme Court which came later.
I am afraid, the said contention put forth by the learned Counsel for the respondents 2 to 4 is not available to him and the common Award
passed in the main Industrial Disputes holding that non-employment is justified, will operate as res judicata for making any such claim unless they
had kept the issue of non-employment alive by challenging the Award before the higher Court and if at that juncture, any decision of the higher
Courts came to their rescue, then only they can take advantage of the same. Even the factual basis about the violation of Section 33 of the I.D. Act
in the pending Industrial Dispute before the Industrial Tribunal, has not been proved by the respondents 2 to 4 / workmen.
Normally, the Court would not interfere with the petition pending before the Labour Court unless it is finally decided. But in the present case, it
is an extra-ordinary circumstance, where after losing their case in a regularly raised dispute and allowing the Award to become final, the workmen
had gone before the Labour Court and made a claim afresh, that too, u/s 33C(2) of the I.D. Act when such a course is not available to them.
In the light of the above, the writ petitioner succeeds and the writ petition stands allowed. The petitions in W.P.M.P. No. 3170 of 2005 and
W.V.M.P. No. 1548 of 2005 stand dismissed. C.P. No. 2 of 2003 pending before the Labour Court shall stand quashed. However, the parties
are directed to bear their own costs.