IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3880 of 2012 a/w CWP No. 3433 of 2012 Decided on: 03.03.2025 CWP No. 3880 of 2012 Federal Mogul Bearing India Ltd. .…Petitioner. Versus Naresh Kumar …Respondent. CWP No. 3433 of 2012 Naresh Kumar .…Petitioner. Versus M/s Federal Mogal Bearing India Ltd. …Respondent. Coram The Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 CWP No. 3880 of 2012 For the petitioner: Mr. Rahul Mahajan, Advocate. For the respondent: Mr. Nishant Khidtta, Advocate. CWP No. 3433 of 2012 For the petitioner: Mr. Nishant Khidtta, Advocate. For the respondent: Mr. Rahul Mahajan, Advocate. Ajay Mohan Goel, Judge (Oral): Both these writ petitions have been filed against order dated 31.03.2012, passed by the learned Industrial Tribunal-Cum-Labour Court, Shimla in Application No. 37 of 2009, titled as M/s Federal Mogul Bearing India Ltd. Vs. Naresh Kumar, in terms whereof, the application filed under Section 33(2) of the Industrial Disputes Act, 1947 read with Rule 64(2) of the Himachal Pradesh Industrial Disputes Rules, 1974, has been dismissed and 1 Whether reporters of the local papers may be allowed to see the judgment? 2 the workman has been ordered to be reinstated in service alongwith back wages @25%. 2. Brief facts necessary for the adjudication of these petitions are that the employer-Company (hereinafter referred to as ‘the employer’) had engaged Sh. Naresh Kumar-workman (hereinafter referred to as ‘the workman’) as an Operator. The workman was sitting idle after 07.07.2008 due to paucity of orders and recession. The employer decided to provide alternate work and directed the workman vide order dated 21.05.2009 to attend the job of rejection, rework, material and chip handling and report to Mr. Deep Ram, Assistant Manager, Plant-1. The workman protested the same and refused to perform the said alternative work. On the basis of complaints filed against him by the Line Incharge, he was charge-sheeted for negligence of duties and disobedience. An enquiry was held against him and the allegation of misconduct was substantiated. Thereafter, the workman was dismissed from service. In the light of the fact that there was a Reference pending before the learned Labour Court against the dismissal of three workers for false medi claims and about strike/lockout, an application was filed by the employer under Section 33(2) of the Industrial Disputes Act seeking approval of the dismissal of services of the workman from the learned Labour Court. Said application stands rejected by the learned Labour Court in terms of the impugned order. 3. Learned Labour Court allowed the application by holding that the termination of services of the employer by way of dismissal without permission of the Labour-Cum-Conciliation Officer was void and the 3 workman was entitled to be reinstated. Learned Labour Court held that the termination order was passed on 07.10.2009 and the application under Section 33(2) of the Industrial Disputes Act was instituted on 08.10.2009. It held that the Union has raised a demand notice in respect of the alternative work given to the workmen on 08.06.2009 by addressing a letter to the employer-Company and Labour-Cum-Conciliation Officer. Pursuant to the demand notice, Labour-Cum-Conciliation Officer issued a letter on 19.06.2009 to the employer to attend the conciliating meeting on 04.07.2009. Demand notice ultimately culminated in making a Reference in the month of March, 2010 qua the dispute raised in the demand notice of grant of alternative employment to S/Shri Chaman Lal, Prit Pal, Ram Chander Krishan Chand, Dilbara Singh, Baldev Singh and Mehar Chand. Learned Labour Court thus held that in the light of the fact that as on the date of termination of the workman, the conciliation proceedings were pending before the Labour-Cum-Conciliation Officer, therefore, the employer ought to have approached the Labour-Cum-Conciliation Officer before terminating the services of the workman. This is the reasoning on which the application filed by the employer was rejected. 4. During the course of hearing of these writ petitions and on the basis of perusal of the record, this Court found, as was urged by the learned counsel for the employer that the learned Labour Court erred in not appreciating that demand notice dated 08.06.2009, conciliation proceedings qua which were pending with the Labour-Cum-Conciliation Officer, was not pertaining to the respondent here, namely, Shri Naresh Kumar. The demand 4 notice, as is evident even from Para-9 of the impugned order was qua S/Sh. Chaman Lal, Prit Pal, Ram Chander Krishan Chand, Dilbara Singh, Baldev Singh and Mehar Chand. Therefore, as the present respondent was not one of the persons whose grievance stood raised by the Union by way of demand notice, the findings returned by the learned Labour Court that the employer-Company ought to have filed an application before terminating the services of the workman before the Labour-Cum-Conciliation Officer are per se bad, in the light of the fact that as on the date of termination of services of the workman, no conciliation proceedings were pending before the Labour- Cum-Conciliation Officer. On the other hand, as there was a Reference pending before the learned Labour Court, therefore, the employer rightly filed an application under Section 33 (2) of the Industrial Disputes Act before the said Court. 5. Accordingly, these writ petitions are disposed of by setting aside order dated 31.03.2012, passed by the learned Industrial Tribunal-Cum- Labour Court, Shimla in Application No. 37 of 2009, titled as M/s Federal Mogul Bearing India Ltd. Vs. Naresh Kumar, by holding that the order is perverse, as it is based on reasoning which is not sustainable in the eyes of law. 6. As agreed, the matter is forthwith remanded back to the learned Labour Court with direction to decide the application filed by the employer afresh on the basis of pleadings already on record, as expeditiously as possible and in all eventualities, before 31st August, 2025. Notice be issued to the parties through learned counsel by the learned Labour Court for their 5 presence in the Court and no independent notice need be sent to the parties. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge March 03, 2025 (bhupender)