M/S. B.P.L. LTD. AND ORS.versusR. SUDHAKAR AND ORS.

A                         M'S. B.P.L. LTD. ANO ORS.
                                         v
                           R. SUDHAKAR AND ORS.

                                  MAY 6. 2004
B
         (SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.)

         Industrial Disputtts Act, 1947 :

C       S. 3J{]J(b), proviso and s. 33-A--lndustrial dispute referred to
  Industrial Tribunal-Operation of 0rder of reference stayed by High
  Court-Dismissal of wo'*men during stay of operation of order of
  reference-Complaint uls. 33-A-Preliminary objection by Management to
  maintainability of complaint-Held, once operation ryf order of reference
D is stayed there is no dispute pending bi'ji1rc the Trihrma/ so /nng as stay
  order remains in operation-Since by virtue of the interim order granted
  by High Court, proceedings were nor pending on the date of dismissal of
  workmen, preliminary objection raised by Companies as to very
  maintainability of complaint uls. 33A is valid and sustainable.

E        Interim ordL'1"--£Jf«ct of-·Di1cus.wd

         Certain disputes between the appellant-rompan~ and its workmen
    were referred to the lndustri:ll Tribunal. The Union of the workmen
    not satisfied with the order of reference, filed a \I rit petition before the
F   High Court stekrng a mandamus to the State Go\ crnnwnt for n·fr rring
    some more dbputes rai>ed In them. The Single Judge of the High
    C.ourt while is,.uing notice for admission of the writ petition, by an
    interim order, stayed operation of the order of reference and the said
    interim order continued till the writ petition was finally disposed of.
    During the pcndency of the writ petitio11 the respondent-workmen
    wl'rc dismissed from service on the ground of serious misconduct. The
    respondents tiled a complaint under s-33-A of the Industrial Disputes
    Act, 1947 stating that their dismissal was in contravention of s.33(2)
    of the Act and, therefore, they were entitled to be reinstated. The
H   preliminary objection raised by the management that when the dismissal
                                        414
                      B.P.L. LTD. v. R. SUDHAKAR                       415

 orders were passed no proceedings were pending before the Tribunal A
 as operation of the very order of reference had been stayed by the High
 Court, was rejected by the Tribunal. The writ petitions and the writ
 appeals filed by the companies were dismissed, Aggrieved, the
 Companies filed the present appeals.
                                                                             B
      On the question : whether a dispute is said to be pending before
 an Industrial Tribunal for the purpose of proviso to s.33(2)(b) of the
 Industrial Disputes Act, 1947 during the period when operation of the
 order of reference of dispute itself remained stayed,

      Allowing the appeals, the Court                                        c
        HELD : 1.1. Once operation of the order of reference is stayed,
·-there is no question of dispute pending before the Tribunal so long as the
  said order remains in operation because reference precedes dispute.
  Looking to the terms of the interim order granted by the High Court D
  staying the very operation of order of reference it could not be said that
  dispute was pending before the Tribunal on the relevant date, viz., the
  date on which the workmen were dismissed from service. It was not a
  case where the dispute was pending and only further proceedings were
  stayed. When the order of reference itself was stayed the Tribunal did E
  not have jurisdiction to pass any further order. As such the question of
  either management making an application under the proviso to Section
  33(2)(b) of the In.dustrial Disputes Act, 1947 or the Tribunal passi.1g an
  order on such application would not arise. In case any tribunal proceeds
  to pass an order in spite of stay of the operation of the order ofreference F
  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 wait 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. [425-A-D, G]
                                                                             G
       Ravi S. Naik v. Union of India and Ors., [1994] Supp. 2 SCC 641,
 relied on.

       Baradakanta Mishra, Ex-Commissioner of Endowments v. Bhimsen,
 Dixit, [1973] 2 SCR 495, referred to.                                       H
    -116               SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A       Shree Clwmundi Mopeds Ltd. v. Church of South India Trust Assn.,
    tSJ Cmod S..:..:retartut, ;\4adras, [19921 2 SCR 999, distinguished.

         Kunoria Chemicals and Industries Ltd. and Others v. UP. State
    Electridty Board and Others .. [1997) 5 SCC 772, held inapplicable.
B
           1.2. Both sub-sections (1) and (2) of Section 33 of the Act employ
  the language "during the pendency of any proceeding" which clearly
  convey that obligation on the part of the employer under the said
  Section of seeking "express permission" for the purpose of sub-section
  (I) or "approval" for the purpose of sub-section (2) arises only when
C there are proceedings pending on industrial dispute before the Tribunal
  or other specified statutory adjudicatory authorities under the Act. For
  the purpo>e of instant case, pendency of the proceedings before the
  Tribunal was pre-requisite condition for making an application under
  the proviso to s.33(2)(b) of the Act and as on the date of dismissal of
D workmen from senice the interim order staying the operation of the
  order of reference was operative which worked as a threshold bar for
  proceeding with the dispute, it could not be said that the dispute was
  pending. In this view, the appellant companies did not contravene the
  provisions of Section 33(2)(b) of the Act, and the preliminary objection
E raised by them as to the very maintainability of complaint under
  Section 33A is valid and sustainable. [426-C-G; 430-F-Gl

           Style (Dress land) v. Union Territory, Chandigarh and Anr.. [1997)
    1   sec 89.
F       2. The High Court while observing that grant of interim order did
  not wipe out the existence of order of reference, did not focus its
  attention to the actual terms of the stay order and their effect in
  deciding the question as to pendency of proceedings before the Tribunal.
  What an interim order means or what is its effect and or consequences
G 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
  instant case, the interim order is plain in its terms, viz., the operation
H of the order of reference was itself stayed. The effect of this interim
                B.P.L. LTD. v. R. SUDHAKAR [PATIL, J.]               417

order was that no proceedings could commence or were pending before A
the Tribunal at the material and relevant time. (426-H; 427-A-CJ
                -->-
     3. One more factor to be kept in mind is that it is not that the
workmen do not have remedy to challenge the order of dismissal. They
can raise dispute challenging the said order of dismissal by initiating B
separate proceedings. (428-E; 431-A)

     CIVIL APPELLATE JURISDICTION: Civil appeal Nos. 2999-3011
of 2004.

     From the Judgment and Order dated 14.3.2002 of the Karnataka High C
Court in W.A. Nos. 7205 to 7217 of2001.

     R.F. Nariman, P. Venugopal and P.S. Sudheer for the Appellants.

    S.R. Bhat, Naveen R. Nath, Ms. Hetu Arora for Ms. Anitha Shenoy
and Mrs. K. Sarada Devi for the Respondents.                        D
     The Judgment of the Court was delivered by

     SHIVARAJ V. PATIL, J.: Leave granted.

      The short and straight question, which arises for consideration is E
"whether a dispute is said to be pending before an industrial Tribunal for
the purpose of proviso to Section 33(2)(b) of the Industrial Disputes Act,
1947 (for short 'the Act') during the period when operation of the order
of reference of dispute itself remained stayed".

      In each one of these appeals appellant No. I is a company and
                                                                           F
appellant No. 2 is one of its shareholders. The BPL Group of Companies
Karmikara Sangha (Union) had raised certain disputes on behalf of the
workmen of the appellant companies. On failure of conciliation the
disputes came to be referred by the G_overnment for adjudication to the
Industrial Tribunal, Bangalore (for short 'the Tribunal'), by order dated G
26.2.1999. The aforesaid union, 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 H
    418               SUPREME COURT REPORTS (2004) SUPP. 2 S.C.R.

A order in the following tenns : -
            "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
B           11.3.1999."

         During the course of hearing the learned counsel for the parties
  submitted that th:s interim order, having been continued, was in operation
  till the writ petition was finally disposed of on 12.4.1999. During the
C 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(2) of the
  Act and, therefore, they were entitled to be reinstated. The Management
D of the appellant companies resisted the complaint raising a preliminary
  objection to the effect that the orders of dismissal were passed during the
   period when the order of stay passed by the learned single Judge in the
  aforesaid writ petition No. 7355/99 was in operation and as such there was
   no violation of Section 33(2)(b) of the Act. It was urged that when the
E appellant companies took action in accordance with law no proceeding5
   were pending before the Tribunal as the operation of the very order of
   reference had been stayed by the High Court. The Tribunal, by its order
   dated 19.5.2000, rejected the preliminary objections. The appellant
   companies tiled writ petition Nos. 28377-28378, 28446-28450, 28452 and
F 28454-28458 of 2001 challenging the correctness and validity of the
   aforementioned order of the Tribunal rejecting the preliminary objection.
   The learned single Judge of the High Court dismissed the writ petitions
   upholding the view taken by the Tribunal. Aggrieved by and not satisfied
   with the order of the learned single Judge of the High Court the appellant
G companies filed writ appeals before the Division Bench of the High Court.
   The Division Bench of the High Court, fully concurring with the conclusion
   arrived at by the learned single Judge, dismissed the writ appeals by the
   common order under challenge in these appeals.

          Mr. R.F. Nariman, learned senior counsel in support of the appeals,
H urged that the High Court proceeded on a wrong footing that staying the
                B.P.L. LTD. v. R. SUDHAKAR (PATIL, J.]                419

operation of the order of reference made by the Government did not wipe A
out the proceedings instead of considering whether on the relevant date
proceedings were pending before the Tribunal or not on account of the stay
order; the learned single Judge as well as the Division Bench of the High
Court did not appreciate that the Tribunal being a creature of statute derived
its jurisdiction only upon an order of reference being made by the B
Government under Section l 0 of the Act; such being the legal position the
proceedings could not be deemed to have been pending as· on 31.3.1999
when the workmen were dismissed from service during the period when
the operation of the order of reference itself remained stayed by the High
Com1; the High Court has failed to distinguish the difference between stay C
of further proceedings and stay of reference itself; stay of operation of the
order ofreference 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. CSTCinod Secretariat, Madras', to D
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 E
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 Others2 and Tukaram G. Gaokar v. R.N. Shukla and Others3. 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 F
wiped out.                                                •

     On 'facts there is no dispute or debate between the parties.

     Section 33 of the Act, to the extent it is relevant, reads :-          G
        "33. Conditions of service, etc., to remain unchanged under
        certain circumstances during pendency of proceedings. - (I)
I. [1992) 2 SCR 999.
2. [1997] s sec 112.
3. AIR (1968) SC 1050                                                       H
    420             SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A         During the pendency of any conciliation proceedings before a
          conciliation officer or a Barad or of any proceeding before an
          arbitrator or a Labour Court or Tribunal or National Tribunal in
          respect of an industrial dispute, no employer shall -

B         (a)    in regard to any matter connected with the dispute, alter, to
                the prejudice of the workmen concerned in such dispute, the
                conditions of service applicable to them immediately before
                the commencement of such proceeding; or

          (b)   for any misconduct connected with the dispute, discharge or
c               punish, whether by dismissal or otherwise, any workman
                concerned in such dispute,

          save with the express permission in writing of the authority before
          which the proceeding is pending.
D
          (2) During the pendency of any such proceeding in respect of an
          industrial dispute, the employer may, in accordance with standing
          orders applicable to a workman concerned in such dispute or,
          where there are no such standing order, in accordance with the
E         terms of the contract, whether express or implied, between him
          and the workman -

          (a)   alter, in regard to any matter not connected with the dispute,
                the conditions of service applicable to that workman
                immediately before the commencement of such proceeding;
F               or

          (b)   for any misconduct not connected with the dispute,
                discharge or punish, whether by dismissal or otherwise, that
                workman:
G
               Provided that no such workman shall be discharged or
          dismissed, unless he has been paid wages for one month and an
          application has bt!en made by the employer to the authority before
          which the proceeding is pending for approval of the action taken
H         by the employer."
                B.P.L. LTD. v. R. SUDHAKAR [PATIL, J.]                 421

      It is to be stated here itself that in writ petition No. 7534 of 1999, A
filed by the union on behalf of the workmen interim order was sought by
themselves to stay the operation of the order of reference. It is at the
instance of the union that interim order was passed by the learned single
Judge, which is already extracted above.
                                                                             B
      Under sub-section (2) of the Section 33 of the Act during pendency
of proceeding in respect of an industrial dispute, the employer may, in
accordance with standing orders applicable to a workman 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 C
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 D
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 E
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 F
order of reference by the Government. The said view was upheld by the
learned single Judge of the High Court following the decision of this Court
in Shree Chamundi Mopeds Ltd. case (supra). In the impugned order the
Division Bench of the High Court observed that the learned single Judge
rightly relied on the said decision and dismissed the writ appeals. Hence
it is necessary to have a closer look at the facts of Shri Chamundi Mopeds G
and the ratio. The appellant in that case was a public limited company. It
had taken on rent the premises belonging to the respondent - Church of
South Indian Trust Association. The appellant company committed default
in payment of rent. The respondent issued the legal notice dated 1.4.1987
calling upon the appellant company to pay the said amount. While H
    42:?               SUPREME COURT RFPORTS l2004] SUPP. 2 S.C.R.
A admining the liability to pay th, ''·;~:cilant company stated that it was
  .xpecting certain sums of money tnwards d.:n:lopmental loan from the
  Government of Karnataka and as soon as the same was received it would
  pay the outstanding amount. Since the amount was not paid respondent
  issued a notice under Section 434 of the Companies Act and, thereafter,
B a petition was filed in the High Court under Section 433(e) of the
  Companies Act for winding up of the appellant company. During the
  pendency of that petition the appellant company claiming that it had
  become a sick industrial company, filed a reference under Section 15( I)
  of the Sick Industrial Companies (Special Provision) Act, 1985 (for short
C 'the SICA'), before the Board of industrial and Financial Reconstruction.
  After publication of general notice in newspapers and on intimation to the
  concerned parties the Board concluded that the appellant company should
  be wound up. The appeal filed by the appellant company against the order
  of the Board to the Appellate Authority for lndusttial and Financial
   Reconstruction was dismissed on 7.1.1991. The appellant company filed
D writ petition in the High Court of Delhi challenging the order passed by
  the appellate authority. The High Court on 21.2.1991 issued notice in the
   writ petition returnable on 10.5.1991. On the stay petition filed in the writ
   petition notice was issued for 10.5.1991 and in the meanwhile operation
   of the order of the appellate authority dated 7.1.1991 was stayed. After
E dismissal of the appeal of the appellant company by the appellate authority,
  the winding up petition was taken up for 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 Kamataka High Court took the
   view that the pendency of the writ petition in the High Court of Delhi and
F stay of the operation of the orde1 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 Kamataka 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 2 i ( I )
G 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
H a sick industrial company. The said application was rejected by the Small
                    B.P.L. LID. v. R. SUDHAKAR [PATIL, J.]                 4_
                                                                            ')'_,

    Causes Court by order dated 14.9.1989 taking the view that Section 22 of A
    the SICA had no application inasmuch as proceedi~gs instituted by the
    landlord for recovery of possession of the premises of which a sick
    industrial company is a tenant is not included among the proceedings which
    are required to be suspended under Section 22(1) of the SICA. Thereafter,
    eviction petition was allowed by order dated 30.9.1989. the appellant B
    company filed a writ petition challenging the order of eviction, which was
    later converted into revision petition under Section 50 of the Karnataka
    Rent Control Act. The said revision petition was dismissed rejecting claim
    for exemption from the applicability of Section 29(1) of the Karnataka Rent
    Control Act stating that no inquiry under Section 16 was pending nor any C
    scheme referred under Section 16 was pend,ing nor any scheme referred
    under Section 17 of SICA was under preparation or consideration. It was
    held that the stay order passed by the Delhi High Court in the writ petition
    did not entitled the appellant company to invoke the protectio!l -0f Section
    22 of the SICA, as if appeal was pending. On these facts following two
    questions arose for consideration before this Court :·                       D
             "(I) What is the effect of the order passed by Delhi High Court
                  dated February 21, 1991 staying the operation of the order
                  dated January 7, 1991 passed by the Appellate Authority?
                  0-0es it mean that after the passing of the said order by the
                  High Court, the proceedings under the Act s!IQuld be treated E
                  as pending and, if so, before which authority?

             (2)   Are the proceedings instituted by landlord for eviction of a
                   tenant who is a sick company frolfl the premises let out to
                   it, required to be suspended un4trSection42(1) of the Act?"      F
                                             ,.
          We are concerned only with question number one. The proceedings
    before the Board under Sections 15 and 16 of the SICA had been
    terminated oil 26.4. I 990. The appeal tiled by the appellant company before
    the appellate authority had been dismissed on 7.1.1991. As a result of these
    orders no proceeding under the Act was pending either before the Board G
    or before the appellate authority on 21.2.1991 when the Delhi High Court
    passed the interim order staying the operation of the order of appellate
    authority dated 7 .1.1991. This Court held that the said stay order could not
    have the effect of revi\'ing the proceedings, which had been disposed of
1
I
    by the appellate authority by its order dated 7.1.199! observing that ''While H
    424                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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 Qn the date of passing of the order which has
  been quashed. The stay of operation of an order does not, however, lead
B 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
C 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 that the
D appeal, which has been disposed of by the said order has not been disposed
  of and is still pending." In that view this Court held that it cannot be said
  that any proceedings under the Act were pending before the Board or the
  appellate authority on the date of passing the order dated 14.8.1991 by the
  learned single Judge of the Karnataka High Court for winding up of the
E company or on 6.1.1991 when the Division Bench passed the order
  dismissing OSA No. 16 of 1991 filed by the company and, therefore, there
   was no impediment in the High Court dealing with the winding up petition
   filed by the respondents.

F       Jn the case on hand the situation is entirely different. The Tribunal
  gets jurisdiction only on reference made by the Government. When the
  operation of the very order of reference was stayed the question of dispute
  pending before the Tribunal did not arise inasmuch as the reference order
  itself stood suspended. So long as stay order was operating it could not be
  said that the dispute was pending before the Tribunal. Admittedly, when
G workmen were dismissed from service stay order was operating. Learned
  single Judge as well as the Division Bench of the High Court have
  proceeded on vll"ong footing relying upon the decision of this Court in Shri
  Chamundi Mopeds Ltd. (supra), that the order of reference was not wiped
  out by virtue of staying of the operation oforder of reference. It is not the
H question as to whether the order of reference is wiped out but the question
                  B.P.L. LTD. v. R. SUDHAKAR [PATIL, J.]                   425

is what is the effect of the staying of the operation of order of reference A
itself. Once the operation oforder ofreference is stayed there is no question
of dispute pending before the Tribunal so long as the said order remains
in operation because reference precedes dispute. To put it differently,
dispute could come up for adjudication by the Tribunal pursuant to the
order of reference only. If in a pending proceeding operation of order is B
stayed pending disposal of the main matter such as an appeal or revision,
obviously the impugned order does not get quashed or wiped out. It only
remains suspended. But the position is different in this case, as already
stated above. It was not a case where the dispute was pending and only
further proceedings were stayed. When the order of reference itself was
stayed the Tribunal did not have the jurisdiction to pass any further order. C
As such the question of either management making an application under
the proviso to Section 33(2)(b) or the Tribunal passing an order of such
application would not arise. In case any tribunal proceeds to pass an order
in spite of stay of the operation of the order ofreference by the High Court
it may amount to contempt of the order of the High Court. In case of some D
grave misconduct the management cannot afford to sit idle or simply wait
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 E
did not amount to revival of appeal or proceeding.

      In Ravi S. Naikv. Union ofIndia and Others•, 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 F
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, looking to the terms of the interim
order and its effect on the disqualification of the members on the relevant
date, held, it is settled law that an order, even though interim in nature,
is binding till it is set aside by a competent court''. Similarly, in the present G
case also looking to the terms of the interim order granted by the High
Court staying the very operation of order of reference it could not be said
that dispute was pending before the Tribunal on the relevant date, viz., the
date on which the workmen were dismissed from service.
4.   (1994] Supp. 2 SCR 641.                                                     H
    426                SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.

A       In the case of Kanoria Chemicals (supra), the notification of the Uttar
  Pradesh Electricity Board enhancing the electricity rates was under challenge.
  The High Court had granted interim order staying the operation of the said
  notification. Dealing with the contention that since the notification had
  been stayed the petitioners could not be compelled to pay the enhanced
B electricity rates after the dismissal of the writ petition, this Court, in view
  of what is stated in Shree Chamundi Mopeds, took the view that the stay
  of operation of the notification only meant that it would not be operative
  from the date of passing such order and it did not mean that the notification
  itself had been wiped out from the existence. Obviously after the dismissal
C of the writ petition the notification, which stood suspended during period
  of stay, became operative. The Court held that by virtue of the stay order
  even after dismissal of the writ petition the petitioners could not be relieved
  of their obligation to pay late payment surcharge/interest on the amount
  withheld by them. Again, Style (Dress Land) v. Union Territory, Chandigarh
  and Another, was also a case where the High Court granted stay order in
D writ petitions filed challenging the increase in the rent of lease in
  commercial premises. Those writ petitions were ultimately dismissed
  directing the petitioners to pay the interest @ 18% per annum for the period
  during which the payment of rent at the new rates remained stayed by the
  High Court. Dealing with the contention that during the period when the
E stay was operative the petitioners could not be directed to pay interest, the
   Court held that mere passing of an order of stay could not be presumed
  to be a conferment ofan additional right upon the litigating party. Referring
   to Shree Chamundi Mopeds the Court stated that the stay only meant that
   it would not be operative from the date of its passing till the writ petitions
F 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
G 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 ,srant 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
H s. [I999J 1 sec 89.
                B.P.L. LID. v. R. SUDHAKAR [PATIL, J.]               427
disciplinary action so long as the order of reference remained stayed by A
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 result of the B
order of the stay of the operation of reference by the High Court on
11.3.1999, no reference was pending for adjudication before the Tribunal.
The provisions of Section 33 of the Act are attracted only when an
industrial dispute is pending for adjudication and not merely when an order
of reference is made by the Government. In the present case, proceedings
were not pending before the Tribunal because of the stay of the order of C
reference itself. Both sub-section ( l) and sub-section (2) of section 33
employ the language "during the pendency of any proceeding" which
clearly convey that obligation on the part of the employer under the said
Section of seeking "express permission" for the purpose of sub-section (1)
or "approval" for the purpose of sub-section (2) arises only when there are D
proceedings pending on industrial dispute before the Tribunal or other
specified statutory adjudicatory authorities under the Act.

      In the present case as on date of dismissal of workmen from service
the interim order staying the operation of the order of reference was
operative. Hence the question of dispute being pending on that day did not E
arise. As already stated above, in order to make an application under
proviso to Section 33(2) (b) of the Act, pendency of the proceeding was
essential. In this view the appellant companies did not contravene the
provisions of Section 33(2)(b) of the Act.
                                                                           F
      Under proviso to Section 33(2)(b) one of the essential conditio;:is for
making an application for approval of action is pendency of an industrial
dispute. It is true that, as held in Shree Chamundi Mopeds case (supra),
a distinction has to be drawn between the stay of an order and quashing
of an order. In the instant case when the High Court stayed the operation
of the order of reference itself either pendency of dispute or proceeding G
to adjudicate the dispute did not arise. In other words, the interim order
of stay worked as a threshold bar for proceeding with the dispute. So long
as interim order of stay continued, it could not be said that the dispute was
pending. The High Court relied on the decision of this Court in Shree
Chamundi Mopeds and emphasised that grant of interim order did not wipe H
    428                SUPREMb COURT REPORTS [2004) SUPP. 2 S.C.R.

A out the existence of order of reference. But it did not focus its attention
  to the actual terms of the stay order and their effect in deciding the question
  as to pendency of proceedings 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
B 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
C 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
D 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 final order results in adjudication of
   a dispute finally. May be in some cases final order may be passed in terms
   of the interim order, but then interim order merges in final order ·and it gets
   elevated to the status of final order. One more factor to be kept in mind
E is that it is not that the workmen do not have remedy to challenge the order
   of dismissal. They can raise dispute challenging the ,said order of dismissal
   by initiating separate proceedings. Even if an application was to be made
    under proviso to Section 33(2)(b), the Tribunal could not have proceeded
    to pass any order because of the interim order passed by the High Court
F staying the operation of the order of reference. If the Tribunal were to
    proceed to pass any order there would have been a possibility of it
    committing contempt of the order passed by the High Court. This Court
    in Baradakanta Mishra, Ex-commissioner of Endowments v. Bhimsen
    Dixit", dealing with the case that where the authority did not follow a
    binding precedent of the High Court and tried to justify not following it
G on some grounds, observed thus :-

                   "Contempt of Court is disobedience to the court, by acting
              in opposition to the authority, justice and dignity thereof. It
              signifies a willful disregard or disobedience of the court's order,
H 6. [1973) 2 SCR 495.
               B.P.L. LTD. v. R. SUDHAKAR (PATIL, J.]                  429

        it also signifies such conduct as tends to bring the authority of the A
        court and the administration of law into disrepute. (Vide 17
        Corpus Juris Secundum pages 5 and 6; Contempt by Edward N.
        Dangel (1939 Edn.) page 14. Oswald's Contempt of Court (1910
        Edn.) pages 5 and 6).

              It is a commonplace that where the superior court's order B
        staying proceedings is disobeyed by the inferior court to whom
        it is addressed, the latter court commits contempt of court for it
        acts in disobedience to the authority of the former court. The act
        of disobedience is calculated to undermine public respect for the
        superior court and jeopardize the preservations of the law and C
        order. The appellant's case is to be examined in the light of the
        foregoing principles and analogy."

That was a case where binding precedent of High Court was not followed,
but in the present case the Tribunal, if was to proceed with an application D
under Section 33(2)(b) of the Act, it would have been direct disobedience
of the interim order of stay passed by the High Court.

     A situation may arise where workman 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 E
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 t0 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 F
        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 G
        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 Patiy had no other option other than to dispense with the H
    430               SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.

A           services of the First Party in order to ensure that the services of
            the other employees were protected and that further acts of
            violence, if contemplated upon, could be curbed. Considering the
            gravity of the situation and in view of the apprehension expressed
            by the witnesses of their safety and security, the Second Party felt
            that holding an enquiry was neither possible nor was it just and
B
            expedient. Hence, the services of the First Party was terminated
            for indulging in serious acts of violence and this was strictly in
            accordance with the standing order. The Second Party will lead
            evidence on the acts of misconduct for which the First party was
            dismissed from service and will justify its order of dismissal
c           before this Hon'ble Court in the event of this Hon'ble court
            holding the complaint as maintainable."

    No doubt, the object of Section 33 of the Act is to protect the workman
    concerned during pendency of the proceedings in a dispute against
D   victimization by the employer for having raised industrial dispute or his
    continuing the pending proceedings. Further it is to ensure that the
    proceedings in connection with the industrial disputes already pending
    should be concluded in a peaceful atmosphere and to say that no employer
    should, during pendency of the proceedings, take action of any kind
E   mentioned in the said Section, giving rise to fresh disputes leading to
    straining the relations between the employer and the workman. But, then,
    the requirements of the said Section are to be satisfied in order to invoke
    the jurisdiction of the Tribunal under the said provision. For the purpose
    of the present case pendency of the proceedings before the Tribunal was
F   pre-requisite condition for making an application under the proviso to
    Section 33(2)(b) of the Act. Since the proceedings were not pending at the
    relevant time, i.e., on the date of dismissal of the workmen by virtue of
    the interim order granted by the High Court, the preliminary objection
    raised by the appellant Companies as to the very maintainability of
    complaint under Section 33A is valid and sustainable.
G
        The question set out above in the beginning of this judgment is
    answered in the negative.

         Thus, viewed from any angle in our considered opinion the impugned
H   order cannot be sustained. The preliminary objection raised by the
                   B.P.L. LTD. v. R. SUDHAKAR [PATIL, J.]           431

appellant companies is upheld and consequently the complaint made by the A
respondent-workmen is dismissed as not maintainable. We must, however,
make it clear that this order does not prejudice or preclude the respondent
workmen from questioning the validity and correctness of the order of their
dismissal from service by raising appropriate dispute in accordance with
law.
                                                                           B
       The appeals are accordingly allowed.

       No costs.

R.P.                                                    Appeals allowed.