Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 15054-15055 of 1998
PETITIONER:
Indian Telephone Industries & Anr.
RESPONDENT:
Prabhakar H. Manjuare & Anr.
DATE OF JUDGMENT: 30/10/2002
BENCH:
DORAISWAMY RAJU & SHIVARAJ V. PATIL.
JUDGMENT:
J U D G M E N T
SHIVARAJ V. PATIL J.
The judgment and order dated 15.6.1998 of the Division Bench
of the Karnataka High Court passed in Writ Appeal Nos. 8826/96 and
265/97 are under challenge in these appeals. In the written
submissions filed on behalf of the petitioners, it is stated that
Mr. T.Pionnagiri left the service of the petitioner-company and
hence the SLP and the reliefs may be confined to Mr. Prabhakar H.
Manjare. Hence the special leave petition is confined to him
only. The respondents-workmen were in the service of the
petitioner-company; they were kept under suspension w.e.f.
4.5.1984; since an industrial dispute was already pending, the
company moved an application seeking approval of the order of
dismissal dated 21.1.1986 of the respondents under Section
32(2)(b) of the Industrial Disputes Act, 1947 (for short ‘the
Act’). The National industrial Tribunal by two separate orders,
both dated 1.9.1987 held that the orders of dismissal were invalid
for non-compliance of the provisions of Section 33(2)(b) of the
Act in that wages for one month were not paid; these orders of the
Tribunal remained unchallenged and reached finality. The
petitioners, treating the non-compliance of Section 33(2)(b) as
mere technical breach, passed orders of dismissal for the second
time on 9.10.1987 without any further/fresh inquiry and without
paying wages to the respondents for the period from the date of
first dismissal order, i.e., 21.1.1986 to 9.10.1987, i.e., date of
second dismissal order; the company again moved applications
seeking approval of the orders of dismissal before the National
Industrial tribunal; this time the Tribunal granted approval on
2.3.1989 relying on the judgment of this Court in M/s.Punjab
Beverages Pvt. Ltd., Chandigarh vs. Suresh Chand & Anr. [(1978) 2
SCC 144). In the writ petition filed by the respondents, the
learned Single Judge of the High Court upheld the order of the
Tribunal; the respondents filed writ appeals challenging the order
of the Tribunal as affirmed by the learned Single Judge; the
Division Bench of the High Court by the impugned order allowed the
appeals and set aside the order of the learned Single Judge
affirming the order of the Tribunal and held that the respondents
shall be deemed in continuous service of the petitioners and were
entitled to all consequential benefits. Aggrieved by the same, the
petitioners have filed special leave petitions in this Court
raising the questions similar to the questions raised in Civil
Appeal Nos. 87-88 of 1986 (Jaipur Zila Sahakari Bhoomi Vikas Bank
Ltd. Vs. Ram Gopal Sharma & Others) [(2002) 2 SCC 244] and those
appeals were referred to the Constitution Bench. In the special
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leave petitions, the petitioners stated that they may also be
heard with the said appeals. This Court on 9.8.2001 ordered that
the special leave petitions filed by the company be also heard
alongwith Civil Appeal Nos. 87-88 of 1986. The Constitution Bench
decided the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.
(supra) holding Punjab Beverages vs. Suresh Chand [(1978) 2 SCC
144) is no more a good law and approved the judgment in Straw
Board Manufacturing Co. vs. Govind [1962) Supp. 3 SCR 618] and
Tata Iron and Steel Co. Ltd. Vs. S.N. Modak [(1965) 3 SCR 411].
The questions raised in the special leave petitions filed by the
petitioners are covered by the Constitution Bench judgment
delivered on 17.1.2002 in Jaipur Zila Sahakari Bhoomi Vikas Bank
Ltd. (supra). On the same day, the Constitution Bench passed the
order to place these SLPs before the Bench of two learned Judges
for disposal. Thus, these SLPs came up for hearing before this
Bench.
Mr. K.N. Rawal, learned Addl. Solicitor General, being
conscious of the fact that the questions raised in SLPs. are
covered against the petitioners by the Constitution Bench judgment
aforementioned, urged that the Company was not precluded from
passing a second order of dismissal after payment of one month’s
wages to the respondents complying with the requirements of the
proviso to Section 33(2)(b) of the Act and seeking approval for
the same by the Tribunal. According to him, the Tribunal was
right in granting approval to the second order of dismissal which
the learned Single Judge of the High Court affirmed; the Division
Bench of the High Court committed an error in taking a contrary
view in the impugned judgment. In support of his submission, he
strongly relied on Tata Iron & Steel Co. (supra) drawing our
attention to the observation in the said judgment that if the
approval is not accorded by the Tribunal, the employer would be
bound to treat the respondent as its employee and pay his full
backwages for the period even though the appellant may
subsequently proceed to terminate the respondent’s services.
On the other hand, learned counsel for the respondent made
submissions supporting the impugned judgment and reiterated the
submissions that were made before the Division Bench of the High
Court. The learned counsel added that the case of Tata Iron &
Steel Co. (supra) does not help the petitioners on facts of the
present case.
We have carefully considered the submissions made by the
learned counsel for the parties.
A Constitution Bench of this Court in Jaipur Zila Sahakari
Bhoomi Vikas Bank Ltd., has ruled that the conditions contained in
the proviso to Section 33(2)(b) are mandatory in nature and their
non-compliance would render the order of discharge or dismissal
void or inoperative. It is further held that if the Tribunal
refuses to grant approval sought for under Section 33(2)(b), the
effect of it shall be that the order of discharge or dismissal had
never been passed and consequently the employee would be deemed to
have continued in service entitling him to all the benefits
available. It is also made clear that not making an application
under Section 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). While
approving the cases of Straw Board (supra) and Tata Iron & Steel
Co. (supra), the case of Punjab Beverages (supra) is overruled.
It is admitted position that the petitioners did not
reinstate the respondents after the Tribunal passed order on
1.9.1987 refusing to approve the first order of dismissal dated
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21.1.1986; they were also not paid their wages between the first
order of dismissal dated 21.1.1986 and the second order of
dismissal dated 9.10.1987; the judgment of the Tribunal dated
1.9.1987 had attained finality inasmuch as it was not challenged
any further before the High Court or this Court. It appears the
second order of dismissal was passed on the assumption that non-
compliance with the requirements of the proviso to Section
33(2)(b) was only a technical breach and, therefore, by paying one
month’s wages, second order of dismissal could be passed. The
approach of the Tribunal as can be seen from its judgment is on
the same lines. Referring to the judgment in Punjab Beverages
(supra), in para 9 of the order of the Tribunal, it is stated that
if an application for approval is rejected on the ground that one
month’s wages were not paid simultaneously with the dismissal
order, it would not have the effect of invalidating the order of
dismissal; an application for approval which is rejected on the
ground that Section 33(2)(b) is not complied with, cannot be
considered to be refusal of approval; it is only when the question
is considered by the Tribunal on merits and approval is refused,
such refusal would have the effect of invalidating the dismissal
order. Again in para 11, the Tribunal based on the observations
made in Punjab Beverages (supra) has held that rejection of the
earlier application as not maintainable on the ground that one
month’s wages were not fully paid along with the dismissal order
did not invalidate it and it would not bar a fresh application for
approval. In para 12, it is further stated thus:-
"As the earlier dismissal order was not null and
void, there was no question of allowing the workman
to resume duty or to pass a formal order of
reinstatement. As a matter of fact, it was not even
necessary to pass a second order of dismissal,
because, as held by the Supreme Court in Punjab
Beverages case (supra), contravention of Section
33(2)(b) while dismissing the workman, does not have
the effect of rendering the order of dismissal void
or inoperative. But, when an application for
approval is rejected, before filing a fresh
application for approval, the management will have
to withdraw the earlier dismissal order and pass a
fresh dismissal order, not because the earlier
dismissal order had become void ab initio, but
because filing of an application under Section
33(2)(b) has to be simultaneous with the passing of
the dismissal order. The present application for
approval is therefore perfectly legal and
maintainable."
As already noticed above, the Punjab Beverages case
(supra) on these points is overruled by the Constitution Bench
judgment (supra).
The judgment dated 1.9.1987 given by the Tribunal had
reached the finality inasmuch as it was not challenged by the
petitioners any further. The respondents were not reinstated in
service even thereafter. In the light of the Constitution Bench
judgment aforementioned, the order refusing to give approval for
dismissal on the ground of non-compliance with the proviso to
Section 33(2)(b) rendered it void and inoperative and the
respondent was deemed to have continued in service as if no order
of dismissal was passed. Admittedly, no wages were paid to the
respondent for the period between the first and second order of
dismissal. The main question that came up for consideration in
Tata Iron and Steel Co. (supra) was whether the proceeding validly
commenced under Section 33(2)(b) would automatically come to an
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end merely because the main industrial dispute had meanwhile been
finally determined. In the said case, it is held thus:-
"...even if the main industrial dispute is finally
decided, the question about the validity of the order
would still have to be tried and if the approval is
not accorded by the Tribunal, the employer would be
bound to treat the respondent as its employee and pay
him his full wages for the period even though the
appellant may subsequently proceed to terminate the
respondent’s services. Therefore, the argument that
the proceedings if continued beyond the date of the
final decision of the main industrial dispute would
become futile and meaningless, cannot be accepted."
Having not challenged the earlier order dated 1.9.1987, it
was not open to the petitioners to make a second application
seeking approval for the order of dismissal of the respondent,
that too without paying full wages. The Division Bench of the High
Court has found that the second order of dismissal amounted to
unfair labour practice and victimization. The Tribunal was not
justified in allowing the second application seeking approval by
ignoring the dismissal of the earlier application made by the
management for non-compliance of the mandatory provisions of law.
The Tribunal proceeded on the ground that the earlier application
was not decided on merits and held that it was open to the
petitioners to file a second application. This is clearly
contrary to decision of the Constitution Bench. It appears to us
that the petitioners designed to defeat the claim of the
respondents by making a second application when the order suffered
by them on the first application had become final. Even as stated
in the decision of Tata Iron & Steel Co. (supra) the petitioners
failed to pay full wages to the respondents between the period of
two dismissal orders. The case of Tata Iron & Steel Co. (supra)
on facts of the present case does not help the petitioners. The
question that was dealt in that case was altogether different.
Thus, having regard to all aspects of the matter, we are not
inclined to interfere with the impugned judgment exercising our
jurisdiction under Article 136 of the Constitution of India.
Accordingly, these special leave petitions are dismissed. No
costs.