G. Chandrashekar and Others vs The Management of Sunrise Industries

Subhash B. Adi, J.—This Writ Petition is directed against the common award dated 19.11.2002 in A.I.D. Nos. 33, 37, 38, 39. 40 and 41/2001 and an order dated 15th September 2001 passed in the said disputes.

Petitioners raised a dispute u/s 10(4-A) of the Industrial Disputes Act (hereinafter referred to as ''the Act'') against the order of dismissal dated 11.2.1988.

Case of the petitioners is that, the respondent - Management served an order of suspension dated 23.7.1986 and thereafter, issued show cause notice dated 12.8.1986 and an enquiry was conducted on the basis of complaint made on 23.7.1986 by co-employee namely, one Yogananda without complying with the procedure prescribed and without giving an opportunity. The Enquiry Officer submitted a report and based on the same, Management passed an order of dismissal. The Management failed to take into consideration the application filed by it, seeking permission u/s 33 Sub-section (2) Clause (b) of the Act pending before the Additional Industrial Tribunal in I.D. No. 19/1987 and alleged that the entire proceedings culminated in issue of order of dismissal is vitiated.

The said claim petition was opposed by the Management interalia, alleging that, the domestic enquiry was held in accordance with law by giving an opportunity to the employees. The Management admitted that, a petition was filed u/s 33(2)(b) of the Act, seeking approval of the action of dismissal. It is alleged that, since the workmen had raised a dispute, the said application was closed.

The Industrial Tribunal on consideration of the evidence held that, the enquiry conducted by the Management is fair and proper and also held that the order of dismissal is justified.

SriNarayana Swamy, learned Counsel appearing for the petitioners submitted that, the entire proceedings on the file of the Industrial Tribunal culminated in passing of the award is vitiated, as the order of dismissal being void in view of the fact that, admittedly, the Management had filed an application u/s 33(2)(b) of the Act, seeking permission of approval of the order of dismissal and the said application has been dismissed as withdrawn, there being no order of approval granted by the Tribunal, the order of dismissal becomes void and inoperative, He further submitted that the Industrial Tribunal was not justified in confirming the order of dismissal without considering the question, as to whether there exists an order of dismissal. In this regard, he relied on a decision of the Constitutional Bench reported in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, and submitted that, the compliance with the provisions of Section 33(2)(b) of the Act is mandatory and if the approval is not sanctioned or if an application made seeking approval of the order of dismissal is withdrawn, the order of dismissal becomes void and inoperative. In this regard, he relied on para-13 of the said judgment He further submitted that, merely because a dispute is raised by the workman, there cannot be a deemed approval of the dismissal order. He submitted that, the view taken by the Constitutional Bench in Jaipur Zila''s case (supra) is followed by the Apex Court in subsequent judgments. In this regard, he relied on a judgment reported in 2007 LLR 1134 in the matter of United Bank of India v. Sidhartha Chakraborty and submitted that the Apex Court following Jaipur Zila''s case has held that, compliance with the provisions of Section 33(2)(b) is mandatory and if the said provision is not complied, then the order of dismissal becomes void. In this regard, he further submitted that the decision of the Constitutional Bench is consistently followed by the Apex Court in subsequent judgments. He further submitted that, the learned Single Judge of this Court in a decision reported in The Management of Hindustan Lever Ltd. Vs. Sri Dood Badshah Bani, following the decision of the Jaipur Zila''s case has observed that, a heavy burden is imposed on the Management u/s 33(2)(b) of the Act to obey the mandatory provisions and even if the workman raises a dispute, it does not entitle the Management to withdraw or abandon the application, which was filed u/s 33(2)(b) for approval and further has observed that, abandonment of application u/s 33(2)(b) would amount to non-approval of the order of dismissal and if there is no order of approval, the order of dismissal becomes void. It is also observed that, two proceedings, both u/s 33(2)(b) as well as Section 10 of the Act can proceed simultaneously, however, the Court shall pronounce separate order for the two proceedings since the consideration of grant of relief or otherwise in Section 10 proceedings would depend on the grant of approval or not u/s 33(2)(b) proceedings and in such event, the appropriate course would be to get the application u/s 33(2)(b) to the Tribunal or the Court wherein the application u/s 10 is pending. By relying on these judgments, he further submitted that, the Tribunal having noticed the specific plea raised as regards to non-approval of the order of dismissal and the withdrawal of the said application and also having noticed the admission made by the Management that, such an application was filed in I.D. No. 19/1987 and was withdrawn, however, has not considered the effect of withdrawal of the application and in rum, the Tribunal has proceeded to hold that the Management was justified in passing the order of dismissal.

Sri Kasturi, learned Senior Counsel appearing for the respondent - Management submitted that, application seeking permission u/s 33(2)(b) of the Act was withdrawn by filing a memo and he further submitted that, in the memo, the Management has specifically mentioned that the application for approval was withdrawn in view of the dispute raised by the workmen u/s 10(4-A) of the Act. He further submitted that, the Industrial Tribunal considering the said memo, closed the dispute, without prejudice to the rights of the parties. In this regard, he submitted that, once the dispute is raised by the workmen u/s 10(4-A) of the Act, it is deemed that the order of dismissal has come into force. In this regard, he also referred to Section 10(4-A) of the Act and submitted that, an application in which an industrial dispute is raised in terms of Section 2-A of the Act, the Industrial Tribunal has to conclude the proceedings in accordance with the procedure prescribed in the Act. He also submitted that, whether an application is filed u/s 10(4-A) of the Act raising dispute or a reference is made u/s 10(1) of the Act, it presupposes the existence of the industrial dispute and if an industrial dispute exists against the order of dismissal, it cannot be held that the application u/s 33(2)(b) of the Act requires adjudication. He further submitted that, consideration of application filed u/s 10(4-A) of the Act involves the adjudication of the dispute as against the order of dismissal. In view of the dispute having been raised by the petitioners, application u/s 33(2)(b) of the Act becomes redundant and the Industrial Tribunal was justified in dismissing the dispute by upholding the order of dismissal. In this regard, he relied on a decision of the Apex Court reported in Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, and submitted that, the Apex Court considering the application under the provisions of Section 33(2)(b) has held that, where the Tribunal entertains the application for approval u/s 33(2)(b) on merit, it applies its mind and considers whether the dismissal of the workman amounts to victimization or unfair labour practice, whether prima facie case has been made out by the employer for dismissal of the workman. If the Tribunal finds that, either no prima facie case has been made out or there is victimization or unfair labour practice, it could refuse to grant approval and reject the application on merit. In such circumstances, the order of dismissal of workman would become void and inoperative. When the application is withdrawn by the employer, it cannot be held that there is a decision on merit and it would be difficult to see as to why approval is not granted. The Tribunal has no occasion to consider the application on merit and it does not amount to refusal of approval and the order of dismissal, in such circumstances, cannot be said to be void and inoperative.

He also submitted that, when a dispute is raised u/s 10(4-A) of the Act, it presupposes that, there exists a dispute against the order of dismissal and if there is an order of dismissal and if the dispute is pending as against the same, there is no need for considering the application u/s 33(2)(b) of the Act, as otherwise it amounts to allowing two parallel proceedings to continue on the same cause of action and there would be mutual conflicting orders, one, granting approval, another, rejecting the dispute, holding that the order of dismissal is justified. In this regard, he relied on a judgment of the learned Single Judge of this Court in the matter of Hindustan Lever Limited (supra) and submitted that, the learned Single Judge though has referred to the decision of the Division Bench reported in I.T.C. Limited Vs. Government of Karnataka and Others, however, has not considered the scope of the application u/s 10(4-A) and 33(2)(b) of the Act. The Division Bench in ITC''s case, has held that, the power of the authorities in the proceedings u/s 10 of the Act is void, more so, after Section 11-A of the Act introduced. The pendency of proceedings u/s 33(2)(b) of the Act is no bar for exercise of power u/s 10 of the Act. He also submitted that, it is desirable and proper that, both the proceedings u/s 33(2)(b) and Section 10 of the Act should not be continued simultaneously and necessarily the proceedings u/s 33(2)(b) should stand concluded immediately on reference being made u/s 10 of the Act. By referring to the said decision, he further submitted that, Jaipur Zila''s case and the decision of the Apex Court in United Bank of India''s case stand on a different footing. In both the cases, there was no application pending u/s 10 of the Act. In such circumstances, the Apex Court has observed that, withdrawal of application u/s 33(2)(b) would make the dismissal order as void and inoperative. However, in this case, the petitioners having raised a dispute, accepting the order of dismissal, it cannot be held that the order of dismissal has become inoperative or void.

In reply, Sri. Narayana Swamy, learned Counsel relied on a decision of the Apex Court reported in Indian Telephone Industries Ltd. and Another Vs. Prabhakar H. Manjare and Another, and submitted that, the Apex Court in the said decision has considered the noncompliance with the requirement of proviso to Section 33(2)(b) and has observed that, it is not just a technical breach, the compliance with the provisions of Section 33(2)(b) is mandatory and if approval is not granted or it is not complied, then the order of dismissal would never take the effect.

The only point that arises for consideration in this writ petition is,

as to whether raising a dispute u/s 10(4-A) of the Act, questioning the order of dismissal would automatically terminate the proceedings u/s 33(2)(b) of the Act?

Facts, which are not in dispute, are:

The petitioners were dismissed from service and the Management filed an application u/s 33(2)(b) in I.D. No. 19/1987, during the pendency of the said dispute, petitioners raised a dispute u/s 10(4-A) of the Act. The Management filed a memo interalia, seeking withdrawal of the dispute in I.D. No. 19/1987 on the ground that the petitioners have raised a dispute against the order of dismissal. The Tribunal closed the proceedings u/s 33(2)(b) of the Act without prejudice to the rights of the parties.

Before the Tribunal, a plea was raised by the petitioners as regards to the pendency of the application in I.D. No. 19/1987 and the same was not disputed by the Management The Industrial Tribunal without going into the question as to, whether the approval of the dismissal order passed by the Management is necessary or not, has dismissed the dispute raised by the petitioners, holding that the order of dismissal is justified and also held that the enquiry was fair and proper. The law is now well settled by the decision of the Constitutional Bench of the Apex Court in Jaipur Zila''s case wherein the Apex Court at para-13 of the judgment has held as under:

The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 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 Section 33 invites a punishment u/s 31(1) with imprisonment for a term which may extend to Rs. 1000/- or with both. This penal provision is again a pointer of the mandatory nature of 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 u/s 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 Section 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 Section 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 Section 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.

and further the Apex Court has not accepted the argument of the Management that, workmen can make a complaint u/s 31 of the Act and in this regard, has observed that, the said provision is not intended to give any remedy to an aggrieved employee, it is only to punish the offender and further observed that compliance of the provisions of Section 33(2)(b) is mandatory. This decision is followed subsequently by the Apex Court in ITC''s case (supra). The Apex Court considering the earlier decisions has reiterated that the approval u/s 33(2)(b) is mandatory and without which the order of dismissal becomes void and inoperative. The Apex Court even in case of United Bank of India''s case (supra) has not only followed the decision of the Constitutional Bench in Jaipur Zila''s case, but has held that the proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is in the nature of a shield against victimization and unfair labour practice by the employer during pendency of an industrial dispute. The learned Single Judge of this Court in the matter of Management of Hindustan Lever Limited (supra) has also followed the decision in Jaipur Zila''s case and also the subsequent decisions and has held that, both proceedings u/s 10 as well as Section 33(2)(b) can go on simultaneously and further observed that, it is proper to withdraw the case u/s 33(2)(b) and place before the same Tribunal dealing with the dispute u/s 10 of the Act.

From the decisions of the Apex Court as well as this Court, it is clear that, compliance with the provisions of Section 33(2)(b) is mandatory and approval is a must No doubt, in this case, the petitioners have raised a dispute against the order of dismissal during the pendency of the application u/s 33(2)(b). In Jaipur Zila''s case, the Apex Court has observed that, withdrawal of the application filed u/s 33(2)(b) has the same effect as non-filing of application or non-approval of order of dismissal. Though there is no direct decision as regards to the raising of the dispute u/s 10 during the pendency of an application u/s 33(2)(b), however, if approval is mandatory, the order of dismissal does not get validated, merely because the workman has raised a dispute u/s 10, no doubt a dispute u/s 10 necessarily means the existence of an industrial dispute u/s 2-A of the Act, but it cannot have any effect of approving the order of dismissal, A statutory approval is necessary u/s 33(2)(b) and it cannot be inferred on the basis of the conduct of workmen nor it can be held that the order of dismissal becomes valid. If there is no approval as required u/s 33(2)(b) of the Act, then the order of dismissal becomes void and inoperative and it cannot become operative on the filing of the application u/s 10(4-A) of the Act by the workman. If an order of dismissal becomes inoperative for want of approval, then there cannot be a dispute existed u/s 10(4-A) of the Act. As in law there is no order of dismissal, what is required to be done under the statute cannot be inferred on the basis of the dispute raised by the workman.

No doubt, the Apex Court in the matter of Punjab Beverages Pvt. Ltd (supra) has observed that, withdrawal of the application filed u/s 33(2)(b) does not amount to adjudication on merit and it did not have the effect of rendering the order of dismissal void and inoperative. The case of Punjab Beverages Pvt. Ltd. was considered by the Constitutional Bench of the Apex Court and the said decision is not approved. The Apex Court subsequently in United Bank of India''s case also has reiterated the mandatory requirement of compliance with the provisions of Section 33(2)(b) of the Act. In the light of the decision of the Apex Court, this Court in the matter of Management of Hindustan Lever Limited has observed that, merely because the dispute is pending, that does not vitiate the proceedings u/s 33(2)(b) and filing of dispute will not entitle the Management to withdraw or abandon the application seeking permission.

In this case, the Management filed a memo seeking withdrawal of the application filed u/s 33(2)(b) in view of the dispute raised by the petitioners u/s 10(4-A) of the Act and the Management did this only because the dispute was raised by the petitioners. The mistake appears to be bonafide, the Management should not have sought for withdrawal of the application. However, the Industrial Tribunal has closed the said application only on the ground of raising of dispute by the workmen. The Tribunal has not decided the application on merit. The order u/s 33(2)(b) as well as the award u/s 10(4-A) are passed by the same Tribunal. The Tribunal ought to have considered both the matters simultaneously and deferred the passing of the order u/s 10(4-A) till the adjudication of an application u/s 33(2)(b) of the Act. The order passed by the Tribunal on an application u/s 33(2)(b) reads as under:

In view of the memo filed, without prejudice to rights of the parties, applicant is permitted to withdraw the petition Accordingly, the petition is closed.

From the reading of the order passed by the Tribunal, it is clear that the Tribunal has accepted the memo in view of the pendency of the dispute and has closed the case and has not gone into the merits of the application. Having regard to the award passed by the Tribunal and having regard to the closure of the application, I feel it appropriate to permit the respondent - Management to seek recalling of the order in I.D. No. 19/1987 and permit the Tribunal to consider both the disputes on merit. Since the order of dismissal is not preceded by the approval u/s 33(2)(b) of the Act, the said order becomes inoperative, subject to the result of dispute in I.D. No. 19/1987.

In the light of the above discussion, I pass the following order:

The Writ Petition is allowed. The common award dated 19.11.2002 in A.I.D. Nos. 33, 37, 38, 39, 40 and 41/2001 and an order dated 15th September 2001 produced at Annexure-A and B respectively are quashed. The matter is remitted to the Additional Industrial Tribunal, Bangalore. The respondent -Management is permitted to seek recalling of the order of closure of an application filed u/s 33(2)(b) of the Act in I.D. No. 19/1987 within six weeks from the date of receipt of this order. The Tribunal to consider the same and pass appropriate order on its merit. In case the order of closure is recalled, the Tribunal to consider the application u/s 33(2)(b) of the Act on merit. The Tribunal to defer passing of the award till the application u/s 33(2)(b) is decided. If the approval is not granted, the proceedings u/s 10(4-A) becomes infructuous. If the approval is granted, the proceedings to continue u/s 10(4-A) of the Act.