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Judgment
M.M. Sundresh, J.—The petitioner herein is an employee of the respondents Corporation. In pursuance of the enquiry conducted, he was dismissed from service for misappropriation of certain amounts. As the dispute was raised by a union, in which the petitioner is a member, the respondent No. 2 has sought for approval u/s 33(2)(b) of the Industrial Disputes Act, 1947, [hereinafter referred to as "the Act"]. The said approval was rejected on the ground that the payment of one month wages was not complied with. However, the petitioner has not been reinstated in service. Therefore, the petitioner has come forward to file the present Writ Petition alleging that in spite of approval petition having been dismissed, the petitioner has not been reinstated in service and paid the consequential benefits. The learned counsel appearing for the petitioner has submitted that the issue raised in this Writ Petition has already been decided by this Court in W.P. (MD) No. 9763 of 2013, dated 03.01.2013, wherein this Court has allowed the said Writ Petition.
Per contra, the learned Standing Counsel appearing for the respondents has submitted that while deciding the application u/s 33(2)(b) of the Act, all the factual findings have been given in favour of the respondents. But, the approval petition was rejected only on the ground of non-compliance of payment of one month wages to the petitioner. The learned Standing Counsel has also submitted that in the event of this Court coming to a conclusion in allowing the Writ Petition, liberty may be given to the respondents to challenge the order of rejection passed by the appropriate authority, regarding the approval petition filed by the respondent No. 2.
Admittedly, as-on-today, the order of rejection passed u/s 33(2)(b) of the Act stands. Therefore, the petitioner is entitled for the relief as prayed for by him. Considering the very same issue, this Court in W.P. (MD) No. 9763 of 2013, dated 03.01.2013, after making reference to the decision of the Hon''ble Apex Court in M.D., Tamil Nadu State Transport Corporation Vs. Neethivilangan Kumbakonam, , was pleased to hold as follows:-
The facts are not in dispute. Admittedly, the approval sought for by the respondent No. 2, u/s 33(2)(b) of the Act, was rejected. The said decision of the authority, constituted under the Act, has become final. As a consequence, the respondent Nos. 1 and 2 cannot be give effect to the order passed by them against the petitioner. In other words, the petitioner continues to be an employee of the respondents corporation. The Hon''ble Apex Court in M.D., Tamil Nadu State Transport Corporation Vs. Neethivilangan Kumbakonam, , after considering the similar issue, was pleased to hold as follows:-
From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains order of approval from the Tribunal. By passing the order of discharge or dismissal de facto the relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed u/s 33(2)(b) of the Act on merits the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employee the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal''s rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in Section 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish a prima facie case for dismissal/discharge of the workman, and therefore, dismissed the application filed by the employer on merits. The inevitable consequence of this would be that the employer was duty-bound to treat the employee as continuing in service and pay him his wages for the period, even though he may be subsequently placed under suspension and an inquiry initiated against him.
In the light of the pronouncement of the Hon''ble Apex Court, there is no bar in law to entertain the Writ Petition. What the petitioner seeks is not a relief under the Act. On the contrary, what he seeks is his right to continue as an employee of the respondents corporation. Therefore, the objection raised by the respondents corporation cannot be sustained.
Considering the above, the Writ Petition is allowed as prayed for and the respondent Nos. 1 and 2 are directed to reinstate the petitioner in service with continuity of service and the other consequential benefits, within a period of eight weeks from the date of receipt of a copy of this order. No costs.
Similarly, the Hon''ble Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, , was pleased to hold as follows:-
The proviso expressly and specifically states that no 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. It is clear from the proviso to Section 33(2)(b) that the employer may pass an order of dismissal or discharge and at the same time make an application for approval of the action taken by him. In Strawboard case dealing with the contention that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the Tribunal refuses to approve the action, the workman would be left with no remedy as there is no provision for reinstatement in Section 33(2), it is held that: (AIR pp. 1504-05, para 8)
If the Tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer.
A Constitution Bench of this Court in the case of P.H. Kalyani v. Air France, Calcutta referring to Strawboard has observed thus: (AIR p. 1758, para 4)
The main point which was raised in this appeal is now concluded by the decision of this Court in Straw Board Mfg. Co. Ltd. v. Govind. This Court has held in that case that ''the proviso to Section 33(2)(b) contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages, and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction so that the employer when he takes the action u/s 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time''. It was further held that the employer''s conduct should show that the three things contemplated under the proviso, are parts of the same transaction; and the question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case.
In the case of Tata Iron and Steel Co. it is reiterated and stated thus: (AIR p. 382, para 5)
It is now well settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. 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.
In the same judgment, it is also stated that order of dismissal or discharge being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee and that if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and paying his full wages for the period even though the employer may subsequently proceed to terminate the services of the respondent. (AIR p. 384, para 11)
The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside u/s 33A, cannot be accepted. In our view, not making an application u/s 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application u/s 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside u/s 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint u/s 33A or to raise another industrial dispute or to make a complaint u/s 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.
In the light of the decisions referred to supra, this Court is of the view that the petitioner is entitled to succeed. Accordingly, the Writ Petition is allowed and the respondents are directed to reinstate the petitioner in service with continuity of service and the other consequential benefits, in the light of the order passed by the appropriate authority u/s 33(2)(b) of the Act, within a period of eight weeks from the date of receipt of a copy of this order. However, it is made clear that this order shall not stand in the way of the respondents in taking appropriate action against the order passed u/s 33(2)(b) of the Act by the appropriate authority. No costs. Consequently, connected Miscellaneous Petition is closed.