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Issues: Whether an industrial dispute can be said to be pending before the Industrial Tribunal for the purpose of the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 when the operation of the order of reference itself has been stayed by the High Court.
Analysis: The statutory obligation under Section 33(2)(b) arises only during the pendency of a proceeding in respect of an industrial dispute. A stay of the operation of the order of reference does not merely suspend further steps in an already pending matter; it prevents the reference from becoming operative so that the Tribunal cannot enter upon the dispute at all during the currency of the stay. On the date of dismissal of the workmen, the stay order was in force and, therefore, no proceeding was pending before the Tribunal. In such a situation, the employer could not have sought approval under the proviso, and a complaint under Section 33A premised on alleged contravention of Section 33(2)(b) was not maintainable.
Conclusion: The dispute was not pending before the Tribunal during the subsistence of the stay of the reference, and the employer did not violate Section 33(2)(b); the complaint under Section 33A failed.
Ratio Decidendi: The proviso to Section 33(2)(b) is attracted only when an industrial dispute is actually pending for adjudication; if the operation of the order of reference itself is stayed, pendency does not arise until the stay is lifted.
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