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Judgment
The questions which fall for consideration in the present appeals are as follows:
What is the status of the order of dismissal and therefore of the dismissed employee between the date of the order of dismissal and the approval of dismissal u/s 33(2)(b) of the Industrial Disputes Act, 1947? Does the employee become entitled to being treated as never to have been dismissed from service if the application filed by the employer u/s 33(2)(b) is not approved?
Is the requirement of the approval u/s 33(2)(b) a mere technicality the non-compliance of which does not vitiate the order or is it a condition precedent to the order being rendered valid?
Does the order of dismissal remain inchoate and is not effective till it is approved u/s 33(2)(b)?
We have heard learned Counsel on both sides at considerable length. Various decisions were cited before us and we find that two Benches consisting of three learned Judges have taken the view that if the approval is not granted u/s 33(2)(b), the order of dismissal becomes ineffective from the date it was passed and, therefore, the employee becomes entitled to wages from the date of dismissal to the date of disapproval of the application. The decisions in which this view has been taken are Strawboard Manufacturing Co. Vs. Gobind, and Tata Iron and Steel Co. Ltd. Vs. S.N. Modak, .
As against this, another Bench of three learned Judges in Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, has taken the view that the non-approval of the order of dismissal or failure to make application u/s 33(2)(b) would not render the order of dismissal inoperative. The failure to apply for approval u/s 33(2)(b) would only render the employer liable to punishment u/s 31 of the Act and the remedy of the employee is either by way of a complaint u/s 33A or by way of a reference u/s 10(1)(d) of the Act. There is no reference in this decision to the earlier two decisions of the Court cited above.
Recently, a Bench of two Judges, in a decision in S. Ganapathy and others Vs. Air India and another, has followed the view taken by this Court in Strawboard Manufacturing Co.'s case (Supra) and Tata Iron & Steel Co. Ltd.'s case (Supra) and has held that the order of dismissal passed without the approval u/s 33(2)(b) remains in inchoate condition. This decision, has in turn not noticed the decision in Punjab Beverage Pvt. Ltd's case [Supra]. The point arises in a number of cases and in view of the conflicting decisions presents difficulty to all the courts. It is therefore, necessary that the law on the subject is settled for future. We are, therefore, constrained to direct the Registry to place this matter before Hon'ble the Chief Justice for referring the same to a Bench of five Judges since the decisions in which the conflict arises, are all pronounced by a Bench of three learned Judges. The order of the dismissal in the present case is of 1974. At the request of the parties, we give liberty to them to approach the Hon'ble the Chief Justice to constitute the Bench at his early convenience.