ORDER

1. The Metallurgical and Engineering Consultants India Limited, Visakhapatnam (herein after referred to as 'the Management') has filed this writ petition being aggrieved by the judgment and Award of the Industrial Tribunal Cum labour Court, Visakliapatnam dated 13-4-1998 in ID No.321/1994 and MP Nos.l/95{c), 2/95(c), 3/95(c), 4/95(c), 5/95(c), 6/95(c), 7/95(c) and 8/95(c) and MP Nos.12/95, 13/95, 14/95, 15/95, 16/95 and 17/95. The learned Counsel appearing for the petitioners strenuously contended that the impugned judgment and order of the Tribunal is wholly illegal and without jurisdiction and the same is liable to be set aside. He relied upon certain judgments. On the other hand, the learned Counsel appearing for the respondents-employees strenuously supported the Award.

2. In order to appreciate the rival contentions, I think it appropriate to summarily note the findings of the Tribunal.

3. The Tribunal has held that out of 30 workmen, on whose behalf a dispute was filed, only 11 workmen are entitled to relief of reinstatement and directed the Management to reinstate them into service with back wages and continuity of service and the disputes relating to other workmen have been dismissed. From reading of the judgment, it appears that earlier workers had filed a writ petition before this Court in WP No.3349/1989, in which this Court commended for conciliation proceedings. As the Management did not comply with the directions of this Court, workers again, filed a writ petition in WP No.10472/91. In the meanwhile, Management filed a writ appeal against the orders of the learned single Judge in WP No.3349/1989. Both the writ appeal and the tatter writ petition were heared by the Division Bench and a common order was passed, directing the appropriate Government to make a reference to the Tribunal. Consequently, a reference was made by the State Government to the Tribunal, which was registered as ID No.321/ 1994. Meanwhile, some of the workers, including the 11 workers, who were respondents in this case were retrenched. In those circumstances, those 11 workers along with others filed miscellaneous petitions, complaining the violation of their service conditions in retrenching them from service, without permission of the Tribunal or other competitive authority under Section 33(1) and (2), read with Section 33(A) of the Industrial Disputes Act, 1947 (in short 'the Act'). The Tribunal considered the ID No.321/1994 along with the miscellaneous petitions filed by the workers and ultimately held that reference made by the State Government was incompetent on the ground that the Management in question is a Central Government undertaking and as such, the State Government was not competent to make a reference and consequently dismissed the ID No.321/94. By treating the miscellaneous petitions as the disputes, the Tribunal allowed those petitions of the workers, directing the Management to reinstate them. The order of dismissal of the dispute in ID No.321/ 1994 has not been challenged by any person and the same has become final. Therefore, the Counsels on both sides confined their arguments regarding the order passed on miscellaneous petitions only.

4. The learned Counsel appearing for the petitioners contended that the Tribunal has erred in holding that the Management is an "industrial establishment" or "factory" in terms of Section 2(k) and (m) of the Factories Act. He submitted that the petitioner-establishment cannot be an industrial establishment and it also cannot be a factory, therefore, the industrial dispute would not be maintainable under the Act. On the other hand, the Counsel appearing for the respondents-employees, by referring to the impugned Award, contended that the Tribunal on the basis of the pleadings and evidence on record has given a finding that the petitioner-establishment is an 'industrial establishment' and also a 'factory' and this being a finding of fact, cannot be interfered with under writ jurisdiction of this Court. Both the Counsels have invited my attention to the findings of the Tribunal in this behalf.

5. From reading of the judgment I find that the workmen pleaded as under:

"The main enterprising activities of this respondent company are in their own expression, "Major Fields of Activition" such as (i) Equipment & Systems design and supply, (ii) Comprehensive Engineering Services like consultancy & Engineering Services, Construction and Project Management. Erection and Commissioning software development and research and development; serving the industries of Iron and Steel, Petrol-Chemical, Mining and a variety of Infrastructural development for the healthy growth of Indian Core Industry.

The respondent is employing aroung 4000 man-power in both the cadre of executive and non-executive employment across the country".

Amongst the other things, the Management pleaded as under:

"MECON is a large organisation ongoing about 3800 regular employees of various categories throughout India. The work includes consultancy work, designing or drawing or engineering construction and commission of plant and equipment for Ferrous and Non-Ferrous industries in India and abroad."

Relying on the above and other pleadings of the Management, the Tribunal held that in terms of Section 2(k) of the Factories Act, the activities of me Management would be one of the activities contemplated in the manufacturing process, as defined by the said section and it is also a factory in view of the fact that more than hundred workers were employed. It observed that the engineering construction and commissioning of a plant and equipment may be reasonably classified as one involving "making an article with a view to use" and, therefore, the Management is an industrial eslablishment. It further held that even out of 3,800 regular employees, which the Management admitted having employed, the management did not produce any material to show how many of them were on regular basis and how many of them were on casual basis etc., since the burden is on the Management to prove the same with the help of material in their possession. The Tribunal further held that including the petitioners and other workers, the establishment had employed more than hundred workers, therefore, it is also a factory. It further held that more than 50% of the shares are held by the Central Government, the Management is under the control of the Central Government. These findings are based on the pleadings and evidence on record. This being finding of fact, I do not think that this Court could interfere with Ihe same. From the Award, it is clear that as many as 25 witnesses were examined by the workmen in their support and got marked 83 documenls and the Management examined one person and got marked 69 documents. The Tribunal noticed that as per Ex.M-35, the workmen engaged by the Management has been more than 100 and the Management did not produce any material like muster roll to show that how many employees were on ihe managerial side and how many ofthem are working as workmen. And in the absence of such a material, the reasonable conclusion would be that the Management had employed more than hundred workmen. The Management also has failed to maintain a comprehensive seniority list, in contradistinction to a separate seniority list showing daily wage workers. These conclusions arrived at by the Tribunal that the petitioner-establishment employed more than hundred workmen also appears to be reasonable having regard to the materials placed on record.

6. Nextly, the Counsel appearing the Management contended that even assuming that the petitioner-establishment is an industry and factory, but in view of the dismissal of main industrial dispute in ID No.321/1994 as not maintainable, the miscellaneous petitions filed by the workmen should have been dismissed as not maintainable. When the main matter stands dismissed on the ground of maintainability, the miscellaneous petitions do not survive for consideration. But from paragraph No.13 of the Award, I find that the Tribunal negatived similar contention urged before it by observing as under:

"13. Point No.2: Though the ID is not found to be maintainable on facts and law it cannot have any lethal effect upon the miscellaneous petitions. As observed in an identical case by Their Lordships of the Orissa High Court in 1996(72) FLR 310 (Orissa) at page 316 even a finding of this sort would not render the initial reference made by the State Government incompetent, though.....", no relief can be granted in terms thereof. So the miscellaneous petitions assailing the retrenchment which got the status of an industrial disputes by virtue of the provisions of Section 33(A)(b) survive the main ID. Even otherwise a Division Bench of our High Court in WP No.8395 of 1989 ruled that even workmen of Central Government industries can directly file applications under Section 2(A)(2) on the principle of lexloci without any reference. In that view of the matter, the constructive IDs, in these petitions remain competent."

From reading of the above judgment, I find that the Tribunal ultimately held that miscellaneous petitions filed under Section 33(A)(b) survives even though the main dispute is dismissed as not maintainable. This approach of the Tribunal appears to be not correct. Section 33 and Section 33(A) contemplate pendency of the proceedings before the Tribunal or other competitive authority. During such proceedings, the employer shall not dismiss, discharge or punish a workman without the approval of such Tribunal or authority. The pendency of the proceedings or conciliation proceedings before a Labour Court or Tribunal shall be in respect of an industrial dispute, on the basis of a reference made under Section 10 of the Act, by the appropriate Government. If there is no valid reference, in terms of Section 10 of the Act, there cannot be a valid industrial dispute pending before the Tribunal or such authority. If the main industrial dispute itself is dismissed as one being referred by an incompetent authority, the other proceedings relating to such industrial dispute also would consequently become without jurisdiction. The petitions filed under Section 33 read with Section 33(A)(b) of the Act are the miscellaneous petitions in the main industrial dispute. If the main industrial dispute is maintainable, the miscellaneous petitions could be treated as disputes for the purpose of further consideration in terms of Sections 33 and 33(A) of the Act. It is not possible to say that a suit is not maintainable, but the IAs filed in that suit would be maintainable. Moreover Section 33(A)(b) enables the Tribunal to adjudicate the application under Section 33(A), as if it were a dispute referred to it or pending before it, in accordance with the provisions of the Act and accordingly shall submit its award to the appropriate Government. In the instant case, it is held that the appropriate Government is only the Central Government. If the Central Government were to make a reference in terms of Section 10, the Tribunal could have submitted its Award to the Central Government in terms of Section 33(A). The Award to be submitted in terms of Section 33(A)(b) of the Act, is necessarily to the appropriate Government, on a reference being made by that Government. Therefore, from this it follows that if the main matter itself is liable to be dismissed on the ground that State Government was not the appropriale Government, treating miscellaneous petitions as disputes under Section 33(A)(b) and accordingly submitting Award to the State Government would not arise. Therefore, the miscellaneous petitions would not be maintainable at all. In fact, the judgment of the High Court of Orissa relied upon by the Tribunal reported in Steel Auth. of India Ltd. v. Bhubaneshwar, 1996(72) FLR 310, cannot support its view. In fact the Hon'ble High Court of Orissa was not considering the effect ofScctions 33 and 33(A) along with Section 10 of the Act. In that case, the Award of the Tribunal was challenged specifically contending that the Tribunal after having held that dispute itself was not maintainable on the basis of the reference by the State Government, could not have granted relief on the basis of the alleged violation of Section 25(L) and (N) of the Act. The High Court by upholding this contention, allowed the writ petition and set aside the order of the Tribunal. Therefore, the impugned order has erred in relying upon the said judgment for holding that the miscellaneous petitions are maintainable. At any rate, in a situation similar to the one on hand, the High Court of Calcutta in the decision reported in Shalimar Paints v. Third Industrial Tribunal, 1974 Labour and Industrial Cases 213, held that Section 33 would be attracted only when there is valid reference pending under Section 10 of the Act. Relevant portion of the said judgment is extracted as under:

"8. I agree with the view taken by P.K. Banerjee J. Mentioned above that by reason of the order of Basu J. the order of reference in the main dispute under Section 10(1) of the Act has ceased to exist, as it has been declared to be invalid and quashed. It is true that an order of reference was made under Section 10(1) of the Act with regard to the claim made by certain specified workmen for compensatory allowances, on the ground that the appellant had shifted its business from Calcutta to Howrah. But it is also true that this order of reference has been declared by Basu J. to be invalid and quashed, The result of the order of Basu J. is that the reference made under Section 10(1) of the Act cannot be held to be a calid reference and for all purposes the order of reference has ceased to exist. It cannot be lost sight of the Section 33(2) of the Act is attracted only when there is a valid reference pending under Section 10(1) of the Act. Sub-section (2) of Section 33 of the Act with which we are concerned in this appeal is clearly intended to give to a workman a protection to which he would not otherwise have been entitled. In a case where there is a reference pending under Section 10(1) of the Act. If there is no reference pending or if the reference made by the State Government has been declared to be invalid and quashed, it cannot in my view be said that Section 33(2) of the Act is attracted. Section 33A of the Act in its turn cart be involved only where an employer contravenes the provisions of Section 33 of the Act. The result therefore is that in a case such as this, where the main reference under Section 10(1) of the Act has been declared invalid and quashed, it can by no means be said that a proceedings is pending before the Tribunal as contemplated by Section 33(2) of the Act, and if that is the position and I have no doubt that it is so, an employee cannot invoke Section 33A of the Act in order to get relief from a Tribunal. The mere fact that a reference under Section 10(1) of the Act was pending sometimes does not by itself entitle an employee to claim relief under Section 33A of the Act, since the main reference has been declared to be invalid and the reference itself has been quashed."

From reading of the above judgment it is clear that Section 33(A) of the Act can be invoked only when there is a valid reference under Section 10 of the Act, and if there is no valid reference under Section 10, there cannot be a dispute under Section 33(A)(b). The above judgment is a judgment of the Division Bench and I am in respectful agreement with the said judgment. Therefore, I too hold that the miscellaneous petitions were not maintainable.

7. There is another aspect to be considered in this context, i.e., if the miscellaneous petitions under Section 33(A) (b) of the Act are not maintainable, whether such petitions can be treated as disputes under Section 2(A) of the Act? Section 2(A) enables an individual workman to raise a dispute in case such workman is discharged, dismissed or retrenched or otherwise terminated from service. But the considerations relating to dispute filed under Section 2(A) of the Act would be entirely different than the considerations that arise under Section 33 read with Section 33(A)(b) of the Act. Under Section 33 it is provided that no employer shall 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 proceedings. Section 33(1)(b) further provides that no employer shall discharge or punish, whether by dismissal or otherwise, any workmen for any misconduct connected with the dispute, except with the express permission of the authority before which the proceedings is pending. Therefore, in terms of Section 33(1) of the Act, if there is a valid proceedings pending in connection with the said proceedings, a workman shall not be discharged or punished, whether by dismissal or otherwise, without the permission of the authority before which the proceedings are pending. So the applicability of Section 33 depends on a valid reference, in order to constitute a valid pendency of the industrial dispute before such authority or Tribunal. From this it follows that when there is a valid reference, if a workman is dismissed or discharged without the permission of the authority, a complaint can be filed before that authority or Tribunal, which shall be registered as disputed under Section 33(A)(b) of the Act. Therefore, for the purpose of Sections 33 and 33(A) of the Act, it may be even enough if it is shown before the authority or Tribunal that such discharge or dismissal was without the permission of such authority or Tribunal. The object of Sections 33 and 33(A) of the Act is that when there is a valid reference made under Section 10, such a reference shall not be allowed to frustrate by further actions on the part of the employer to the detriment of the interest of the workman. Whereas, if a dispute is raised under Section 2(A) of the Act, it takes with it all the aspects, in order to consider whether there is a valid retrenchment, dismissal or discharge. The scope of Section 2(A) is wider than Sections 33 and 33(A) of the Act. From reading of the miscellaneous petitions and the counter, I find that there are no sufficient pleadings in order to decide whether the impugned retrenchment is valid or not. It is no doubt true as noticed by the Tribunal in paragraph No. 13, that a Division Bench of this Court in U. Chinnappa v. The Cotton Corporation of India, (in WP No. 8395/1989, vide judgment and order dated 3-8-1995) also has held that even a workman of the Central Government Industries can directly file an application under Section 2(A) of the Act. In these circumstances, the Tribunal having dismissing the main dispute as not maintainable, could have directed the workmen to raise a dispute under Section 2(A) of the Act, if they are so advised. But that is not done in this case, or the Tribunal could have treated miscellaneous petitions as dispute under Section 2(A) to consider all the aspects of the matter, by permitting the parties to raise necessary pleadings and lead additional evidence. From reading one of the miscellaneous petitions, I find that after narrating the history regarding the pendency of the writ petition in the High Court, the workman stated as under:

"4. I submit that as the situation stood thus, there did not arise any circumstance warranting termination of my employment on 3-6-1995 by the opposite party. The working conditions and establishment are functioning as usual as those were existing before raising the dispute and are continuing to function in the same manner. This retrenchment is in contravention of Section 33(1) and (3) of I.D. Act. Hence, this termination is illegal and void in the eye of law.

5. I, therefore, most respectfully pray before this Hon'ble Tribunal that this Hon'ble Tribunal may be pleased to decide the complaint set out as above and direct the opposite party to withdraw its illegal order of retrenchment and restore me to my employment as if no such illegal termination order has been made and pass such order/orders thereon as this Hon'ble Court deems fit and proper."

From the above pleading it is clear that the workmen have not stated the nature of their appointment, whether casual, contractual or regular. Whereas, in the evidence, of some of the witnesses in support of the workmen, I find that some of them were working as casual labourers. Exact" period during which they were working is not specific in their evidence. On the basis of this kind of a material, without their being any evidence, the Tribunal would not have given a finding as to the nature of their service conditions and retrenchment. In fact, it is a specific complaint of the Advocate for the Management that the Management had no opportunity to lead necessary evidence without their being any pleading in the miscellaneous petitions. This complaint appears to be justified. Having regard to these circumstances, without expressing any opinion on the merits of the case, as to whether the retrenchment is valid or not, or whether the workmen are entitled to be regularised or not, I think it appropriate to remit the matter back to the Tribunal to consider the case afresh after registering the miscellaneous petitions as disputes in terms of Section 2(A) of the Act by permitting the parties to raise necessary pleadings and also permitting them to lead additional evidence if they so desire. In view of my these conclusions, the judgments cited on either side do not arise for my consideration. Accordingly, I pass the order as under:

8. The writ petition is allowed. The impugned order is hereby set aside and the matter is remitted back to the Industrial Tribunal Cum Labour Court, Visakhapatnam with a direction to register the miscellaneous petitions as disputes under Section 2(A) of the Act and dispose of the same afresh on merits within three months from the date of receipt of a copy of this order, in the light of the above observations. All the contentions are kept open. No costs.