D. Basu, J.
1. The Petitioner, in this Rule is the Imperial Tobacco Co. (hereinafter referred to as 'the Company'), Respondents 2-3 are its workmen. Respondent 1 is the Deputy Labour Commissioner of West Bengal and Respondent 4 is the State.
2. The Company alleges that on the 12th June, 1965, the Company filed two applications under Sections 33(3) and 33(2)(b), respectively, of the Industrial Disputes Act, 1947. (hereinafter referred to as 'the Act'), before Respondent 1, in respect of the dismissal of Respondents 2 and 3, which applications are 'still pending. The Company's case is that these two applications were filed by it under a mistake of law as to whether certain disputes between the Company and its workmen were still pending in conciliation proceedings, while, in fact, they had been concluded by settlement. Upon a dis-covery of this fact, the Company filed theapplication at Annexure C before Respondent 1 urging that he had no jurisdiction to determine the two applications under Section 33 of the Act Respondent 1, by his letter at Annexure D of 4-7-1966 has held that even after the conclusion of conciliation proceedings, he had jurisdiction to dispose of such appliactions on their merits and has proposed to proceed with the hearing of the applications in question.
3. The Rule is opposed by an affidavit of Respondent 2. who claims to represent Respondent 3 as well. Respondents 1 and 4 have filed no affidavit-in-opposition.
4. At the outset of the hearing, the learned Advocate for Respondent 2 conceded that the Rule should be made absolute so far as Respondent 2 was concerned.
5. The hearing was thus confined in regard to the case against Respondent 3, in respect of whom the application before Respondent 1 was one under Section 33(2)(b) which says-
'(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders ..... or wherethere are no such standing orders, in accordance with the terms of the contract, between him and the workman.....
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless ..... 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.'
6. The requisites for the jurisdiction of a conciliation officer to entertain an application under Section 33(2)(b) are, therefore,
(a) That a conciliation proceeding in respect of an industrial dispute between an employer and his workman is pending before the conciliation officer;
(b) The employer seeks to dismiss the employee for any misconduct not connected with the industrial dispute which is pending before the conciliation officer.
If the foregoing two conditions are satisfied, the dismissal by the employer cannot take effect unless he has made an application for the approval of the conciliation officer before whom the industrial dispute between the two parties are pending for conciliation. The Conciliation Officer cannot, therefore, assume jurisdiction under Section 33(2)(b) unless the two conditions just mentioned are present.
7. In the instant case, the second condition was obviously present, as stated in para 6 of the petition, read with para 7 of the counter-affidavit, namely, that forsome alleged misconduct on 17-5-1965, at charge-sheet was issued against Respondent 3 and, after some inquiry on those-charges, it was decided by the Company to dismiss him. It is not contended on behalf of the Respondent that this misconduct was in any way connected with the industrial dispute which, according to the Respondent, was pending in conciliation before Respondent 1.
8. The controversy at the hearing has, therefore, entered round the question-
Whether any conciliation proceeding was pending before Respondent 1 in respect to an industrial dispute between the Company and Respondent 3 at the time when the application under Section 33(2)(b) had been filed by the Company before Respondent 1
9. In paras 4-5 of the Petition, two industrial disputes are stated to have existed between the Company and its workmen represented by their Union, namely, the Imperial Tobacco Co. Indian Employees' Union, relating to-
(i) Redundancy of employees of the Company;
(ii) Bonus for the year 1964.
10. As regards (i), the case of the Company is that there had never been any conciliation proceeding and as regards (ii) its case is that there was a conciliation proceeding but that it had been concluded by the settlement of 28-4-1965, which is at annexure B to the Petition.
11. I shall take up the case relating to bonus because as regards this it is admitted by the Company that there had been a conciliation proceeding before Respondent 1 and that is also recited on the face of Annexure B which is relied upon by the Company. The only question for my determination is whether that proceeding has been concluded, at law, by the settlement recorded at Annexure B, dated 28-4-1965. This 'memorandum of settlement' recites that the Conciliation Officer having suggested terms 'for an interim settlement pending final settlement' of the dispute relating to the bonus for 1964, the parties (i.e., the Company and the Union, present at the tripartite conference held before the Conciliation Officer) agreed to accept those terms as an Interim settlement:
'(1) The Company hereby agrees to pay two months' basic wages towards payment of bonus for the year 1964.....
(3) It is hereby agreed by the parties that this interim settlement is without prejudice to the legal rights of the parties concerned and in the event no final settlement on bonus for the year 1964 is reached ..... it would be open for the partiesto exercise their respective legal rights.'
12. Patently, Ext. B of 28-4-1965 cannot be said to be a settlement of the dis-pute, so as to terminate the conciliation proceedings. According to the Petition Itself (para 11), the final settlement was arrived at only on 13-1-1966, by a memorandum of settlement, which has been produced before me. Clause 4 of this Memorandum settles the dispute relating to bonus for the year 1964, previous payments being adjusted by the terms of this clause. The averments in para 10 of the counter-affidavit are of course loose and misleading, but the legal proposition arising from Annexure B, read with the Memorandum, cannot be wiped off by euch statements.
13. In my opinion, the dispute relating to bonus was still pending on 12-6-1965, when the application under Section 33(2)(b) was presented by the Company to Respondent 1.
14. The Company, however, contends that the Conciliation Officer loses jurisdiction to determine an application under Section 33(2)(b) even if the pending dispute is concluded by a settlement arrived at any tune after the presentation of the application under Section 33(2)(b). The question, however, has been concluded, against the Petitioner, fay two Supreme Court decisions, Tata Iron & Steel Co. v. Modak, : (1965)IILLJ128SC and P. D. Sharma v. State Bank of India, : (1969)ILLJ513SC . The net result of these two decisions is that (a) a proceeding under Section 33(3) does terminate but (b) a proceeding under Section 33(2)(b) does not terminate automatically after the pending industrial dispute has been finally determined. In short, the Conciliation Officer does not cease to have jurisdiction to deal with an application, under Section 33(2)(b) merely because the dispute has been settled at any time after the presentation of the application under Section 33(2)(b).
15. It follows, therefore, that a writ of prohibition cannot issue to restrain the Conciliation Officer (Respondent 1) from determining the application. What would be his decision in view of the fact that the dispute has already been settled is no concern of this Court, in the instant proceeding.
16. The Rule shall, therefore, be discharged as against Respondent No. 3.
17. In view of the above conclusion, it is not necessary to further inquire whether there was any conciliation proceeding pending on the issue of redundancy. On this point, the contention of the Company that there was no 'conciliation' proceeding within the meaning of Section 12(1) of the Act, but only certain exploratory talks through the agency of the Conciliation Officer, is supported by a judgment of B. C. Mitra, J. inter partes, In Matter No. 346 of 1966, from which the Union did not prefer any appeal. Nothing has been shown against that to mewhich impels me to take a contrary view and refer this issue to a fuller Bench.
18. Nevertheless, in view of my previous findings, the result of this Rule will be as follows:
(a) The Rule is made absolute aa against Respondent 2 and Respondent 1 is restrained from proceeding further with the application under Section 33(3) pending before him relating to Respondent No. 2.
(b) The Rule is discharged in so far as Et relates to the application under Section 33(2)(b) of the Act in relation to Respondent No. 3.
19. All interim orders stand vacated. Parties will bear their own costs.
20. As prayed for on behalf of the Petitioner, the operation of this order will remain stayed for three weeks.