Commissioner, Bhavnagar Municipal Corporation vs Devabhai Zalabhai

R.P. Dholaria, J.—By way of the present petition under Art. 227 of the Constitution of India, the petitioner has challenged the award dated 29-4-2006 passed by the Industrial Tribunal, Bhavnagar, in Approval Application No. 8 of 1995 (Reference I.T. No. 8 of 1991) wherein the present petitioner had submitted an application under Sec. 33(2)(b) of the Industrial Disputes Act, 1947, seeking approval of the Industrial Tribunal for dismissal of the present respondent. The Industrial Tribunal, after completion of hearing, dismissed the aforesaid application for non-compliance of provisions of Sec. 33(2)(b) of the Industrial Disputes Act as the salary for one month had not been paid. The aforesaid order of non-approval for the dismissal of the respondent is under challenge before this Court. The brief facts of the case are that the respondent workman was working as daily wager-Beldar in the Water Works Department of the petitioner Corporation. He was found to be in indulging in corrupt practice. He was suspended from service and a charge-sheet was given on 6-9-1992. Inquiry was conducted against the respondent. After full-fledged inquiry and hearing to the respondent workman, as he was found guilty of corrupt practice, he was terminated from service on 19-9-1995. The said order of termination was subject-matter of Approval Application No. 8 of 1995. However, the Tribunal considering the fact that the respondent-workman was not paid full month''s salary as notice pay, dismissed the Approval Application of the petitioner.

This Court has heard learned Advocate Mr. Munshaw for the petitioner and learned Advocate Mr. Yogen Pandya for the respondent workman. This Court has also gone through the impugned order and the material available on record. Learned Advocate Mr. Munshaw has argued that the respondent-workman was found indulging in corrupt practice and due to which a preliminary inquiry was carried out, and thereafter, full-fledged departmental inquiry was set up and in the departmental inquiry, an opportunity of hearing was provided to the respondent, and ultimately, he was found guilty of misconduct. Therefore, the petitioner was compelled to seek approval for his dismissal from service as he involved in a grave misconduct in the nature of adopting corrupt practice while discharging his duties. He has further argued that the petitioner has complied with the provisions of Sec. 33(2)(b) of the Industrial Disputes Act and at the time of seeking approval, the petitioner has submitted approval application along with necessary documents showing payment of one month''s salary as well as arrears of pay to the respondent workman which is sufficient compliance so far as the provision of law is concerned. He has therefore submitted that the Tribunal has committed error in not appreciating properly the facts and circumstances of the case and wrongly dismissed the application for approval. Therefore, the award of the Industrial Tribunal is required to be interfered with.

As against the aforesaid arguments, learned Advocate Mr. Yogen Pandya appearing for the respondent workman has submitted that the Industrial Tribunal has gone into the details of evidence adduced by the rival party, and even though ample opportunity was provided to the employer to furnish evidence with regard to payment of one month''s salary, neither any documentary evidence nor any oral evidence has been furnished by the employer showing the figure of one month''s salary paid to the respondent. Not only that, the employer has failed to produce the documentary evidence with regard to payment of arrears while seeking approval for dismissal of the respondent-workman. Therefore, the Industrial Tribunal has rightly observed that the employer has failed to comply with the mandatory provisions of Sec. 33(2)(b) of the Industrial Disputes Act and this Court may not disturb the findings of the Industrial Tribunal. He has placed reliance on Sec. 33(2)(b) of the I.D. Act. The material and relevant portion of Sec. 33 reads:

"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceeding:-

(1) *** *** ***

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the 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 the workman-

(a) *** *** ***

(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 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."

He has, relying on the decision of Hon''ble Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, , submitted that Hon''ble Supreme Court has settled the law that provision of Sec. 33(2)(b) is mandatory. Relevant observations made at Paragraph Nos. 12, 13, and 14 of the said judgment are reproduced hereinbelow:

"12. The facts of the said case are: the workman was dismissed from service holding him guilty after inquiry by an order dated 23-12-1974. Since, an industrial dispute was pending at that time, in view of the provision contained in Sec. 33(2)(b) , the employer approached the Industrial Tribunal at Chandigarh before which the industrial dispute was pending for approval of the action taken. However, that application was dismissed as withdrawn on 4-9-1976. Then, the workman demanded full wages from the employer from the date of his suspension till the date of demand contending that the action of the employer dismissing him from service was not approved by the Tribunal; he continued to be in service and was entitled to all the emoluments. Since, the employer did not respond, he made an application to the Labour Court under Sec. 33C(2) for determination and payment of the amount of wages due to him. The employer resisted the said application inter alia on the ground that the application under Sec. 33(2)(b) having been withdrawn, the effect of which was as if no application had been made at all; even though, there was contravention of Sec. 33(2)(b) in not making an application seeking approval, it did not render the order of dismissal void ab initio, and it was merely illegal and unless is set aside in an appropriate proceeding taken by the employee under Sec. 33A or in a reference under Sec. 10 , the Labour Court had no jurisdiction under Sec. 33C(2) to direct payment of wages to the first respondent on the basis as if he continued in service. The Labour Court rejected this contention and allowed the application of the workman filed under Sec. 33C(2) . This Court, allowing the appeals by special leave, held that the employer contravened Sec. 33(2)(b) in dismissing the workman, but such contravention did not have the effect of rendering the order of dismissal void or inoperative and hence the workman was not entitled to maintain the application under Sec. 33C(2) . However, the amounts ordered to be paid by the Labour Court were treated as compensation instead of wages to meet the demands of social justice. The reasons recorded in taking such a view are:

(i) Section 33 in both its limbs undoubtedly uses mandatory language and Sec. 31(1) makes it penal for the employer to commit a breach of the provisions of Sec. 33 , and therefore, if Sec. 33 stood alone, it might lend itself to the construction that any action by way of discharge or dismissal taken against the workman would be void if it is in contravention of Sec. 33 . But Sec. 33 cannot be read in isolation, for the intention of the legislature has to be gathered not from one provision but from the whole of the statute. If Secs. 33 and 33A are read together, it is clear that legislative intent shall not invalidate an order of discharge or dismissal passed in contravention of Sec. 33 despite the mandatory language implied in the Section and the penal provision enacted in Sec. 31(1) .

(ii) The mere contravention of Sec. 33 by the employer will not entitled the workman to an order of reinstatement because inquiry under Sec. 33A is not confined only to the determination as to the contravention of Sec. 33 , but even if such contravention is proved, the Tribunal has to go further and deal also with the merits of the order of discharge or dismissal.

(iii) If the contravention of Sec. 33 were construed as having invalidating effect of the order of discharge or dismissal, Sec. 33A would be rendered meaningless and futile, because in that event the workman would invariably prefer to make an application straightaway under Sec. 33(C)(2) even before adjudication whether the order of discharge or dismissal is void and inoperative.

(iv) The contention of the workman that in the absence of approval for action taken under Sec. 33(2)(b) , the order of dismissal was inoperative, was rejected on the ground that withdrawal of the application made for approval stood on the same footing as if no application under Sec. 33(2)(b) has been made at all; since there was no application made under Sec. 33(2)(b) , the Tribunal had no occasion to apply its mind to consider whether the dismissal of workman amounted to victimization or unfair labour practice. Hence, it was difficult to say that the approval has been refused by the Tribunal.

The proviso to Sec. 33(2)(b) , as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Sec. 33 and in the context of the proviso to Sec. 33(2)(b) , it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further any employer who contravenes the provisions of Sec. 33 invites a punishment under Sec. 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1,000/- or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Sec. 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Sec. 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Sec. 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Sec. 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman.

Where an application is made under Sec. 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Sec. 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge, but that order remains incomplete and remains inchoate, as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence, of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Sec. 33A challenging the order granting approval on any of the grounds available to him. Sec. 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference, and thereafter, adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Sec. 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Sec. 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Sec. 33(2)(b) . It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Sec. 33(2)(b) , Sec. 33A would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted."

In view of the aforesaid provisions of law as well as the law laid down by Hon''ble Apex Court in the aforesaid judgment, this Court is of the opinion that provisions of Sec. 33(2)(b) are required to be complied with before seeking any approval for dismissal.

In the present case, if this Court appreciates the material evidence, it clearly reveals that the witness on behalf of the employer who has been examined, has clearly and categorically deposed that while the employee was dismissed what he was entitled to and what wage he was drawing, he could say only after seeing the record. Thereafter, opportunities were given to produce on record last pay-slip as well as the account in respect of full and final arrears paid to the workman. Neither through oral evidence nor through documentary evidence, the employer has proved the payment of last month salary as well as arrears of salary before seeking approval for dismissal.

In view of the aforesaid nature of evidence available on the record, the Industrial Tribunal has rightly refused to approve the dismissal of the workman. For the reasons recorded above, the petition is devoid of any merit and is accordingly dismissed. Rule is discharged. No order as to costs.