TMI Blog2004 (5) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, not being fully satisfied with the order of reference, filed writ petition No. 7355/99 in the High Court seeking a mandamus to the State Government for referring some more points/ disputes raised by them. A learned single Judge of the High Court on 11.3.1999, at the stage of issuing notice for admission, passed the interim order in the following terms :- The operation of the order dated 26.2.1999 bearing No. KAE 117 KA Ky VI 99 No. KAE-117, KA KY VI 99 passed by R-1 (Annexure 'A' and 'B' to the writ petition respectively) be and the same is hereby stayed for a period of two weeks from 11.3.1999. During the course of hearing the learned counsel for the parties submitted that this interim order, having been continued, was in operation till the writ petition was finally disposed of on 12.4.1999. During the pendency of the said writ petition the workmen were dismissed from the service on 31.3.1999 on the ground of serious misconduct. The aggrieved workmen (respondents herein) filed a complaint under Section 33A of the Act before the Tribunal complaining that they have been dismissed from service in contravention of the provisions contained in Section 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stay of reference itself; stay of operation of the order of reference being in force, the proceedings could not be deemed to have commenced as the Tribunal could not enter upon the reference itself. He urged that the Division Bench of the High Court committed a grave error in applying the decision of this Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn (1992) 2 SCR 999.. CST Cinod Secretariat, Madras, to the facts of the case and the real question that was required to be resolved. The said case has no bearing on the question to be decided. In opposition, Mr. S.R. Bhat, learned advocate for the respondents, made submissions supporting the impugned judgment. He drew our attention to Section 20(3), 23 and 33(1) of the Act in support of his submissions. He placed reliance on decisions of this Court in Kanoria Chemicals and Industries Ltd. and Others v. U.P. State Electricity Board and Others [1997] 5 SCC 772 and Tukaram G. Gaokar v. R.N. Shukla and Others AIR (1968) SC 1050. He also submitted that merely because the operation of the order of reference was stayed it could not be said that the proceedings before the Tribunal were wiped out. On facts the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied between him and the workman for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman, provided no such workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. From this provision it is clear that for seeking an approval for discharge or dismissal of a workman from service by the employer essentially proceedings in respect of an industrial dispute must be pending. In the present case the respondent-workmen were dismissed from service on account of misconduct during the period when operation of the order of reference remained stayed. Compliance of proviso to Section 33(2)(b) would be required if the dispute was pending on the date when the workmen were dismissed from service. The Tribunal held that the dispute was pending before it notwithstanding stay of the operation of the order of reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration and it was allowed by a learned single Judge of the Karnataka High Court by order dated 14.8.1991. The learned single Judge of the Karnataka High Court took the view that the pendency of the writ petition in the High Court of Delhi and stay of the operation of the order of the appellate authority did not stand in the way of the court to proceed with the matter. The appellant company's appeal filed against this order of the learned single Judge was dismissed by the Division Bench of the Karnataka High Court by order dated 6.11.1991. On 26.2.1988 the respondent filed a petition seeking eviction of the appellant company from the demised premises under Section 21(1) of the Karnataka Rent Control Act, 1961 on the ground that the appellant company was a chronic defaulter in payment of rent. In those proceedings the appellant company moved an application under Section 151 of Civil Procedure Code read with Section 22 of the SICA for stay of the said proceedings on the ground that the appellant company had been declared a sick industrial company. The said application was rejected by the Small Causes Court by order dated 14.9.1989 taking the view that Section 22 of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in restoration of the position as it stood on the date of passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the appellate authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the appellate authority would be restored and it can be said to be pending before the appellate authority after the quashing of the order of the appellate authority. The same cannot be said with regard to an order staying the operation of the order of the appellate authority because in spite of the said order, the order of the appellate authority continues to exist in law and so long as it exists it cannot be said th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of either management making an application under the proviso to Section 33(2)(b) or the Tribunal passing an order of such apptication would not arise. In case any tribunal proceeds to pass an order in spite of stay of the operation of the order of reference by the High Court it may amount to contempt of the order of the High Court. In case of some grave misconduct the management cannot afford to sit idle or simply wail to take action, particularly, when stay of the operation of the order of reference is obtained at the instance of union on behalf of the workmen, The case of Shri Chamundi Mopeds Ltd. is quite distinguishable and it is on the facts of that case. Even in that case it is stated that the order of stay did not amount to revival of appeal or proceeding. In Ravi S. Naik v. Union of India and Others [1994] Supp. 2 SCR 641, dealing with the staying of the operation of the order of disqualification, passed by the Speaker of the Assembly in regard to two members of the House, this Court held that the order of disqualification made by the Speaker dated 13.12.1990 was not operative and consequently it could not be said that they were not members of Goa Assembly. The Court, lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he stay only meant that it would not be operative from the date of its passing till the writ petitions were dismissed and it did not mean the demand had been wiped out. These two decisions, in our view, do not help respondent-workmen, having regard to the terms of the interim order and in the context of the facts of those cases. The effect of grant of stay of operation of the order of industrial reference was that the Industrial Tribunal Could not take up the reference for adjudication. Consequently, no action based on such reference could be taken by the Tribunal including grant or refusal of approval to the disciplinary action under Section 33(2) of the Act. The employer could not have, therefore, approached the Tribunal for seeking approval to its . disciplinary action so long as the order of reference remained stayed by the order of the High Court. The industrial reference stood revived only when the writ petition against the industrial reference was finally disposed of by the High Court on 12.4.1999. The Industrial reference would be said to be pending only from 12.4.1999. The action of dismissal of the services of the workmen was taken on 31.3.1999. On that date, as a resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs before the Tribunal. What an interim order means or what is its effect and/or consequences of it depend upon its own terms. In case of some ambiguity or difficulty in understanding an interim order, which rarely happens, one has to understand the interim order looking to the prayer made for interim relief, facts of a given case and the terms of the interim order. In the case on hand we should first look at the terms of the interim order in order to judge whether a dispute was pending before the Tribunal or not. The interim order is plain in its terms, viz., the operation of the order of reference was itself stayed. As already noticed above, the effect of this interim order was that no proceedings could commence or were pending before the Tribunal at the material and relevant time. In this case whether the order of reference was wiped out or not by the interim order of stay was not relevant. It is not a case of staying an impugned order in appeal or revision. But the very order of reference is itself stayed. In the very nature of things interim order and final order are distinct and they serve different purposes. Interim order operates during the pendency of the proceedings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkman commits a grave misconduct and situation does not allow any delay in taking action against such workman and the interim order staying operation of order of reference is operative and if it was to prolong for a long time, it would lead to anomalous situation. The case of the appellant-companies, as can be seen from paragraph 3 of the Counter Statement filed by them in reply to the complaint made by the workmen under Section 33A of the Act, reads :- It is submitted that the services of the First Party was terminated on 31.3.1999 for his involvement in the barbaric incident of setting fire to a bus carrying workmen resulting in the death of TWO women workers and critically injuring six others besides injuring SEVERAL OTHERS. The Second Party, in the normal course, would have held inquiries before taking any action but the fear psychosis generated in the minds of the workmen by the said act of First Party necessitated the Second Party apprehended that the situation may go out of control and the delinquents may be emboldened to indulge in further acts of violence, Therefore, the Second Party had no other option other than to dispense with the services of the First Party in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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