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N.L. Untwalia, C.J.—These four writ applications have been heard together as their facts are similar and the points involved in them are identical. They are being disposed of by a common judgment. Shri Ayodhya Ram respondent No. 2, was a minor working in Malkerah Colliery of Tata Iron and Steel Co. Ltd.; the employer is the petitioner in all the writ applications. During the pendency of Reference Case No. 132 of 1967 the service of Ayodhya Ram was terminated by the employer by order dated 25. 8. 66 passed under certain provisions of the Standing Orders. The employer applied for approval of its action of dismissal under the proviso to Clause (b) of Section 33 (2) of the Industrial Disputes Act, 19-17 hereinafter called the Act. A copy of that application dated 26.9.66 is Annexure 2. Notice of this application was received by Ayodhya Ram on 9. 9. 66. Some more workmen not connected with Reference Case No. 132 of 1967 had also been dismissed by the employer. A settlement in connection with the dismissal of those workmen including that of Ayodya Ram was arrived at between the employer and the employees on 2.8 67, a copy of which settlement is Annexure 3. They agreed to refer their disputes to the arbitration of the Regional Labour Commissioner. The arbitrator gave his award on 16.2.68 (Annexure 3/b) holding that the dismissal of Ayodhya Ram was justified. Thereupon the employer was advised to file an application for withdrawal of the application filed before the Central Government Industrial Tribunal (no. 2) u/s 33 (2) (b) of the Act. Accordingly an application dated 11.8.69 was filed on 12.8.69 (Vide Annexure 4). The Tribunal passed an order dated 12.8.69 (Vide Annexure 5) allowing the withdrawal but without adjudicating on the reasons for the withdrawal, namely, the award made by the Regional Labour Commissioner. Ayodhya Ram filed an application on 1.12.69 u/s 33 C (2) of the Act for his wages for the period 25.8.66 to 30.11.69. The management resisted this application on the ground of there being an award of the Regional Labour Commissioner as also on the ground that an application u/s 33-C(2) was not maintainable, without getting rid of the order of dismissal passed by the Management on 25.8.66. The labour court has rejected the pleas raised by the employer in its order dated 22. 8. 70 (Annexure 1), and has allowed the claim of the concerned workman. The employer has filed C. W. J. C. 2009 of 1970 to attack the order of the Labour Court dated 22.8.70 (Annexure 1).
Ayodhya Ram has filed another application u/s 33C (2) of the Act to claim his wages for the period 1.12.69 to 22.9.70. The employer has filed C. W. J. C. 232 of 1971 for a writ of prohibition to injunct the Labour Court from proceeding with the subsequent case on the grounds which are identical to those in C. W. ]. C. 2009 of 1970.
During the pendency of the same reference case, namely, Reference Case 132 of 1967, Prasadi Bhuian, another minor working in Dighwadih Colliery of Tata Iron and Steel Co. Ltd., was dismissed by an order made on 5.11.66 under Clause 19(2) of the Standing Orders. Application under the proviso to Section 33 (2) (b) of the Act (Annexure 2) was filed on 1.11.66. Notice of this application was received by the workman concerned on 13. 12. 66. As in the other case, in this case also there was a settlement to refer the dispute for arbitration by the Regional Labour Commissioner. He gave the award on 5.9.68. The application for withdrawal was filed in this case on 11.8.69 (Annexure 4). Permission to withdraw the application was granted by the Tribunal by order dated 1.9.69 (Annexure 5). Prasadi Bhuian filed an application u/s 33-C (2) of the Act on 1.12.69 to claim his wages for the period between 5.11.66 and 31.12.69. Rejecting similar contentions of the employer, the Labour Court has made an order in favour of the workmen on 22 8. 70 (Annexure 1). The employer has filed C. W. J. C 2014 of 1970 to challenge this order. Prasadi Bhuian has filed another application u/s 33-C (2) of the Act in respect of the period 1.1.70 to 22. 9. 70. The employer has filed C. W. ]. C, 231 of 1971 for a writ of prohibition to quash the second proceeding u/s 33-C (2) of the Act.
Mr. S. B. Sanyal, Learned Counsel for the petitioner, urged two points in support of these writ applications. He submitted that--
(i) The order of dismissal was effective even though approval u/s 33 (2) (b) was not obtained. The remedy of the workman concerned was to get the order set aside u/s 33A of the Act or by raising an industrial dispute for reference u/s 10 (1). The Labour Court had no power to compute the money benefit in lieu of wages and grant it u/s 33-C(2).
(ii) The settlement to refer the matter to the arbitrator and his decision were binding on the parties u/s 18 of the Act until the settlement was terminated.
It may be stated at the outset that the second point urged by the petitioner after some discussion was withdrawn and not pressed. I have, therefore, to decide the only point which has been urged on behalf of the petitioner. The point is not free from difficulty but seems to be covered by two decisions of the Supreme Court.
The marginal note of Section 33 of the Act is--
"Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.".
Sub-section (1) deals with cases of change of conditions of service or discharge or punishment, whether by dismissal or otherwise, of a workman for any misconduct connected with the dispute, while Sub-section (2) envisages taking of similar sections when it is not connected with the dispute which is pending before a conciliation officer or a Board in a conciliation proceeding or in any proceeding before an arbitrator, a Labour Court, a Tribunal or a National Tribunal. It has been pointed out by the Supreme Court in (1) the Straw Board Manufacturing Co. Ltd. V. Govind (A.I.R. 1962 Supreme Court 1500) on a consideration of the language of Sub-sections (1), (2) and (5) of Section 33 that if action is proposed to be taken under Sub-section (1) then the permission in writing of the authority concerned should be obtained for the proposed action; but in regard to the action taken under Sub-section (2) prior approval is not necessary. Approval may be asked for after passing an order of dismissal or taking any other action. In (2) Tata Iron and Steel Co. Ltd. V. S. N. Modak (A.I.R. 1966 Supreme Court 380) it has been observed on the basis of the case of (l) Strawboard Manufacturing Co. Vs. Gobind, that taking action including the action of dismissal and obtaining approval are part of the same transaction..
Section 33A of the Act reads as follows--
"Where an employer contravenes the provisions of Section 33 during the pendency of proceeding before a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court, Tribunal or National Tribunal and on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly.".
It is well settled that in regard to the action taken by the employer u/s 33(2)(b) an industrial dispute can be raised and a reference can be made u/s 10(1) of the Act or, the employee concerned has got a right to make a complaint in writing to the Labour Court, Tribunal or National Tribunal if the employer contravenes the provisions of Section 33 during the pendency of the proceeding before the court of Tribunal. In the case of (3) The Punjab National Bank Ltd. Vs. Its Workmen, it has been held that even after the approval has been accorded by the appropriate authority in accordance with the proviso to Clause (b) of Section 33(2) an industrial dispute can be raised and referred, because approval merely removes a ban and does not bar the raising of an industrial dispute. It is, however, to be pointed out that Section 33A does not cover cases of contravention by the employer of the provision of Section 33 during the pendency of a conciliation proceeding before a conciliation officer or a Board. But that apart, the question of importance which falls for decision in these cases is whether the action taken by the employer without obtaining approval of the proper authority can be said to be effective until it is set aside or annulled in a proper reference u/s 10(1) of the Act or in a proceeding initiated u/s 33A. It was argued by Mr. Tara Kumar Das on behalf of the workmen that in view of the observations of the Supreme Court in (1) Straw Board''s case at page 1505 (Column 1) to the effect that--
"In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal u/s 33(2)."
It should be held that if no approval is obtained or approval is not accorded then the order of discharge or dismissal passed by the employer is not effective. Learned Counsel also pointed out that in the case of (2)Tata Iron and Steel Co. Ltd. V. S. N Modak AIR 1965 SC 380 it has been said at page 382 (column 2)--
"In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval such an order is invalid and inoperative in law."
But reading these observations of the Supreme Court in the context of what has been said earlier in those very judgments, it would be seen that the order of dismissal is not effective when approval is asked for and not granted. These cases were not concerned with the question of effect of the order of dismissal passed by the employer, when the employer has not applied for approval at all. There the dismissal being in contravention of the provisions of Section 33 may make the employer liable to be punished u/s 31 (1) of the Act and/or the employee has got his remedy u/s 33A. Mitter, J, delivering the judgment on behalf of the court, has pointed out in the case of (4) The Hindusthan General Electrical Corporation Ltd. Vs. Bishwanath Prasad and Another, at page 2420--
"These sections do not lend themselves to the construction that as soon as the Labour Court, Tribunal, etc., finds that there has been a violation of Section 33 it should award reinstatement. It must go through the proceeding which would have to be taken u/s 10 and it would be the duty of the Labour Court etc. to examine the merits of the case in the light of the principles formulated in the Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, ."
If the view canvassed on behalf of the workmen were to be accepted as correct then there would be no question of reinstatement. Such cases possibly could be and ought to have been excepted from the purview of Section 33A on the ground that the order of dismissal passed by the employer without the approval of the authority concerned was not effective and operative. But that is not so. Rather after considering the case of (3) The Punjab National Bank Ltd. Vs. Its Workmen, , the learned Judge has said at page 2421 (column 1)--
"The conclusions on behalf of the workmen that disregard of a ban imposed by Section 33 of the Act would render the employer''s action of dismissal void and inoperative was rejected by this Court."
I may venture: to point cut that the case before the Supreme Court was regarding the passing of an order of discharge during the pendency of a conciliation proceeding. Infraction of the provisions of Section 33 in such a case, as pointed out by me above, is not covered by Section 33A. This aspect of the matter does not seem to have brought to the notice of the Supreme Court. But that apart, what is to be emphasised is that mere violation of the requirement of Section 33 in a case covered by Section 53(2) (b) does not render the employer''s action or dismissal void and inoperative. The decision of the Supreme Court in the case of (4) Hindustan General Electrical Corporation is almost direct on the point. There is, therefore, no scope left for this Court to take a different view on the basis of the observations of the Supreme court in the case of (1) Strawboard Manufacturing Co. Vs. Gobind, and that of (21 Tata Iron and Steel Co. Ltd. Vs. S.N. Modak,
Relying upon the Bench decision of the Calcutta High Court in (5) Messrs. Kumar Engineering Works (Private) Ltd. Vs. Sri Dinabandhu Koley and Others, , the Labour Court has held that the effect of the order of withdrawal contained in Annexure 5 was dismissal of the application for approval; that is to say approval was not accorded. In the opinion of the Labour Court, therefore, this is a case which is covered by the principle of law decided by the Calcutta High Court following the two Supreme Court decisions in (1) Strawboard Manufacturing Co. Vs. Gobind, and (2) Tata Iron and Steel Co. Ltd. Vs. S.N. Modak, on the footing that it was a case where approval was not granted. I am unable to subscribe to this view. When an application for approval is filed, approval may be granted--approval may not be granted. In either situation, there is no difficulty. If no application for approval is filed then, on the basis of the decision of the Supreme Court in (4) The Hindusthan General Electrical Corporation Ltd. Vs. Bishwanath Prasad and Another, , it has to be held that the action of the management is not ineffective or inoperative. The question, however, is where such an application is filed but is allowed to be withdrawn, has this the effect of dismissal of that application and not granting approval or has it the effect of not filing the application at all? On general principles, I have no doubt that the effect would be the latter one. It is difficult to accept the contention put forward by Mr. Das that the Tribunal had no power to allow withdrawal of the application. If it had the power to entertain the application, it can also allow its withdrawal. The effect of the withdrawal would be that no application was filed. In the Calcutta case the additional reason given in support of the view expressed is the wording of the order of withdrawal as extracted at page 345 (column 2). But the main ratio of the case at that very page is--
"In our view, therefore, the very fact that the application was made under the proviso to Section 33 (2) (b), and that, subsequently the application was withdrawn, would mean that the application was, in effect, dismissed."
I very respectfully strike a note of dissent from this view. The effect of withdrawal of an application simpliciter would not be dismissal; the effect would be as if no application was filed. The order of withdrawal may be couched in a language which would indicate that the order is one of dismissal in effect and substance although the word used is withdrawal. But until that is done, the withdrawal simpliciter would mean is if no application was filed. In the instant case the application was sought to be withdrawn on the ground that it had become infructuous because of the award of the Regional Labour Commissioner. The existence or the validity of the award was disputed by the workman. The Tribunal in this case did not decide the question regarding the existence of the validity of the award but allowed the withdrawal in the following terms--
"As the applicant wants to withdraw the application filed by him u/s 33 (2) (b), I accord him permission to withdraw, without giving any finding as regards the award pleaded by the applicant.
The application filed u/s 33 (2) (b) of the Industrial Dispute Act 1947 is, therefore, disposed of as withdrawn. Considering circumstances of the case no order is passed as to costs."
In my opinion, the effect of the order contained in Annexure 5 was an order of withdrawal simpliciter--in other words, allowing the employer to withdraw the application as if it had not been filed. It may well be that by taking this action the employer put itself to the risk of being punished u/s 31 (1) or gave an opportunity to the employee to initiate a proceeding u/s 33A or to raise an industrial dispute for reference u/s 10 (1). But surely the withdrawal of the application had not the effect of obliterating or wiping of the order of dismissal passed by employer. On an application filed u/s 33- C (2) the Labour Court could not go into the merits of the dismissal order and could not ignore it merely on the ground of violation of Section 33. All this was beyond the scope of the proceeding u/s 33-C (2) of the Act. That being so, there is no escape from the position that the order of the Labour Court, a copy of which is Annexure 1 in both the cases, has got to be quashed as also the other two proceedings cannot proceed. In the result, all these four writ applications are allowed, the order of the Labour Court dated 22. 8. 70, a copy of which is Annexure 1 in C. W. J. C. 2003/70 as also Annexure 1 in C. W. J. C. 2014/70 is quashed and the proceeding challenged in C. W. J. C. Nos 232 and 231 of 1971 are also quashed. In the circumstances there would be no order as to cost in any of the cases.
S. Sarwar Ali, J.
I agree.