Termination Order Cannot Be Challenged U/S 33C(2) Of Industrial Disputes Act: Jammu & Kashmir High Court

The Jammu and Kashmir High Court has recently ruled that the validity of a dismissal order cannot be addressed within the confines of a proceeding under Section 33C(2) of the Industrial Disputes Act as the issue relating to validity of a dismissal order can by no stretch of imagination be termed as incidental to the proceedings under Section 33C(2) of the Act.Justice Sanjay Dhar observed “…Unless there is a reference of a dispute regarding validity of a dismissal order before the Labour Court, it cannot adjudicate upon the said issue in a proceeding under Section 33C(2) of the Act. The issue relating to validity of a dismissal order can by no stretch of imagination be termed as incidental to the proceedings under Section 33C(2) of the Act.”Section 33C(2) of the Industrial Disputes Act pertains to a legal provision that empowers a labor court or tribunal to calculate and order the recovery of monetary dues owed to a workman by an employer. This provision is primarily concerned with the execution of existing rights regarding payments, benefits, or privileges that a workman is entitled to receive under the terms of their employment or any applicable law.The Court was hearing a plea where the petitioner company was contesting an order from the J&K Industrial Tribunal-cum-Labour Court dated September 22, 2021, which suspended a dismissal order issued by the petitioner on January 30, 2019, against respondent No.2.Respondent No.2, a former Area Manager in the Sales and Marketing Department of the petitioner's company, had earlier filed a petition with respondent No.1/Tribunal and sought orders for overdue salary, benefits, and emoluments, along with interest. He also requests protection against changes in employment conditions and deprivation of entitled perks, allowances, and privileges. An interim application was filed by respondent No.2 before the Tribunal for the quashing of the January 30, 2019 dismissal order, which led to the suspended order.The main contention of the petitioner was that the proceedings initiated by respondent No.2 were under Section 33C(2) of the Industrial Disputes Act, which solely deals with the recovery of money due to a worker from the employer. Thus, the Tribunal's jurisdiction did not extend to passing interim orders regarding dismissal, it argued.After thorough deliberation on the arguments presented by both parties, the court dissected the nature of proceedings under Section 33C(2) of the Act and underscored that such proceedings were akin to execution proceedings where the Labour Court calculates the amount due to a worker and orders its recovery. The legality of a dismissal, being a distinct issue, cannot be considered "incidental" to this process, it underscored.It added,“The principal issue which is pending adjudication before the Tribunal in the instant case is as regards the computation of alleged dues which respondent No.2 claims against the petitioner company. The justification or otherwise of dismissal of respondent No.2 cannot be termed as an issue incidental to the computation of dues. The legality and validity of dismissal order of respondent No.2 is in fact the principal issue which has to be decided by the Tribunal in a separate reference and it is not an issue incidental to the computation of dues”.Citing English Electric Company of India vs. V. Manohara Rao and others, (2001) the court reiterated that unless a dispute about the validity of a dismissal is specifically referred to the Labour Court, it lacks the jurisdiction to adjudicate on that matter in proceedings under Section 33C(2) and emphasized that such jurisdiction can only be invoked in instances where the issue pertains to the calculation and recovery of existing dues.Dismissing the respondent's argument that a writ petition cannot be used to contest an interim order issued by the Labour Court, the bench countered that as the Labour Court lacked the authority to overturn the termination of respondent No.2 within the framework of a proceeding under Section 33C(2) of the Act, the validity of the interim order in question could be questioned. The bench further stated that it is permissible to consider a writ petition against a jurisdictionally deficient order issued by a quasi-judicial authority.As a result, the court ruled in favor of the petitioner company and set aside the order of the Labour Court.Case Title: M/S CADILA HEALTH CARE LTD. Vs PRESIDING OFFICER & ANR.Citation: 2023 LiveLaw (JKL) 233Counsel For Petitioner: Mr. Anurag Lakhotia, Advocate, with Mr. Saqib Shabir, Advocate.Counsel For Respondent: Mr. Adil Asmi, Advocate.Click Here To Read/Download Judgment

Termination Order Cannot Be Challenged U/S 33C(2) Of Industrial Disputes Act: Jammu & Kashmir High Court

Basit Amin Makhdoomi

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