M K MOHAMMED ISMAIL vs THE DIVISIONAL CONTROLLER
- Court
- Karnataka High Court
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WP No. 12014 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
rd
DATED THIS THE 03 DAY OF AUGUST, 2026
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO.12014 OF 2013 (L-KSRTC)
BETWEEN:
M.K. MOHAMMED ISMAIL
S/O. LATE M.ABDUL KHALEEL,
AGED ABOUT 57 YEARS,
TH
R/AT NO.145, 9 CROSS, SIDDIQUE NAGAR,
BANNIMANTAPA, B-LAYOUT, MYSORE.
…PETITIONER
(BY SRI. V.R. DOTAR, ADVOCATE FOR
SRI. L. SHEKAR, ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER,
K.S.R.T.C., KOLAR DIVISION, KOLAR.
…RESPONDENT
(BY SMT. H.R. RENUKA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A)
ISSUE A WRIT IN THE NATURE OF WRIT OF CERTIORARI
QUASHING THE IMPUGNED AWARD DATED 13.11.2012
ND
PASSED IN REF NO.43/2010 BY THE 2 ADDITIONAL LABOUR
COURT, VIDE ANNEXURE-A TO THE WRIT PETITION IN SO FAR
AS IT RELATES TO DENIAL OF BACK WAGES & DENIAL OF
FOUR ANNUAL INCREMENTS WITH CUMULATIVE EFFECT. B)
ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING
THIS RESPONDENT CORPORATION TO REINSTATE THE
PETITIONER WITH CONTINUITY OF SERVICE, CONSEQUENTIAL
BENEFITS AND FULL BACKWAGES FROM THE DATE OF
DISMISSAL TILL THE DATE OF REINSTATEMENT UNDER THE
FACTS & CIRCUMSTANCES OF THE CASE AND ETC.,.
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
DHARWAD
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 29.07.2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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WP No. 12014 of 2013
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CAV ORDER
The petitioner who was working as a Conductor in KSRTC
has questioned the part of the award passed by the Labour
Court, denying wages from the date of dismissal till the date of
reinstatement, and withholding 4 annual increments with
cumulative effect, despite non-compliance of Section 33(2)(b)
1
of the Industrial Disputes Act, 1947 .
2. The Labour Court has set aside the penalty of
dismissal on the ground that the respondent did not seek
approval before dismissing the workman, as required under
Section 33(2)(b) of the Act, 1947.
3. The Labour Court has held that the order of
dismissal is non est in the eye of law and directed
reinstatement. However, the Labour Court denied back wages
for the period between the date of dismissal and reinstatement
on the premise that the charges on misconduct are proved.
4. The respondent-employer has implemented the
award by reinstating the petitioner.
1
the Act, 1947.
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WP No. 12014 of 2013
5. The petitioner contends that the award is in the
teeth of the judgment of the Constitution Bench of the Apex
Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs.
2
Ram Gopal Sharma and Others .
6. The petitioner has also raised a contention that in
view of the judgment in Jaipur Zila, supra , the Tribunal could
not have adjudicated upon the merits of the misconduct
alleged.
7. In the context of the contentions raised, the
following questions arise for consideration.
(i) Whether the Labour Court can deny the back wages
to a workman, from the date of penalty of dismissal
from employment till the date of reinstatement, if
the penalty of dismissal is set aside for non-
compliance of requirement of Section 33(2)(b) of
the Act, 1947?
(ii) Whether the Labour Court or Tribunal under the
Industrial Disputes Act, 1947 has the jurisdiction to
adjudicate on the merits of the misconduct alleged
in a dispute raised under Section 10 of the Act,
2
(2002) 2 SCC 244
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WP No. 12014 of 2013
1947, despite violation of Section 33(2)(b) of the
Act, 1947?
(iii) Whether the Apex Court in Jaipur Zila, has held
that the domestic enquiry held prior to the
application under Section 33(2)(b) of the Act,
1947, is non est in the eye of law.
(iv) If the Labour Court or the Tribunal confirms the
charges on misconduct and penalty of dismissal,
despite dismissal of the application under Section
33(2)(b) of the Act, 1947, in a proceeding under
Section 10 or 33A, whether the penalty of dismissal
relates back to the date of original penalty of
dismissal imposed by the employer?”
8. Facts in brief:
8.1 Petitioner was subjected to disciplinary
enquiry alleging certain misconduct and the disciplinary
authority dismissed the petitioner vide order dated
27.01.2007. The petitioner raised industrial dispute and
the appropriate Government referred the matter to the
Labour Court for the adjudication.
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WP No. 12014 of 2013
8.2 The Labour Court held that the domestic
enquiry was fair and proper and permitted the parties to
lead evidence regarding victimisation.
8.3 As noticed, the Labour Court held that the
charges are proved, yet set aside the order of dismissal as
approval for the order of dismissal was not obtained as
required under Section 33(2)(b) of the Act, 1947.
However, the Labour Court denied the back wages and
also held that the charges of misconduct are proved and
withheld 4 increments with cumulative effect.
9. Heard the learned Counsel Sri L.Shekar for the
petitioner, and as the question raised is of seminal importance
the Court also heard Sri.V.S. Naik, Sri.V.R.Datar and
Sri.Narayan Swamy who supported Sri L. Shekar. On behalf of
the respondent learned counsel Sri B.K.Prashanth represented
Smt. Renuka.
The petitioner’s contention.
10. The employer has not filed an application seeking
approval for the order of dismissal and violated Section
33(2)(b) of the Act, 1947 and the denial of back wages from
the date of dismissal till the date of reinstatement is
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WP No. 12014 of 2013
impermissible in view of the judgment of the Apex Court in
Jaipur Zila, supra .
11. For non-compliance of Section 33(2)(b) of the Act,
1947 the entire proceeding is void or non est and the Labour
Court does not have jurisdiction to get into the merits of the
misconduct alleged.
12. The respondent-employer having not questioned
the award directing reinstatement, cannot contend that the
order of dismissal relates to the date of the original order. The
employer cannot urge to deny the back wages on the premise
that the charges are proved when the Court did not have the
jurisdiction to get into the merits of the misconduct alleged.
13. Even otherwise, the finding regarding proof of the
charges is erroneous and assuming that the charges are
proved, the penalty of withholding 4 increments with
cumulative effect is disproportionate to the misconduct alleged.
14. Learned counsel for the petitioner has placed
reliance on the following judgments. For easy reference the
summary of the ratio laid down in the judgments, applicable to
the present case are also culled out in the chart below.
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WP No. 12014 of 2013
Sl.
Judgment Coram Ratio
No.
1 Jaipur Zila
Sahakari
Bhoomi Vikas
Bank Ltd. v.
Ram Gopal
Sharma & Ors.,
(2002) 2 SCC
244
5 If approval under S.33 (2)(b) is not
obtained (not sought, or sought
and refused), the penalty of
dismissal is void ab initio from the
date it was passed, not merely
from the date of refusal; the
workman is deemed never to have
been dismissed.
2 Straw Board
Manufacturing
Co. Ltd. v.
Gobind, AIR
1962 SC 1500
3 Payment of wages and the
application for approval need not
necessarily precede dismissal — can
be part of the same transaction; if
approval is refused, the dismissal
falls and the workman is deemed as
never dismissed.
3 Punjab
Beverages Pvt.
Ltd.,
Chandigarh v.
Suresh Chand
& Anr., (1978)
2 SCC 144
3 Dismissal in contravention of
S.33(2)(b) was only voidable , not
void ab initio; Employee's S.33A
complaint (if earlier in time) must
be heard along with the employer's
approval application.
4 Engineering
Laghu Udyog
Employees'
Union v. Judge,
Labour Court &
Industrial
Tribunal & Anr.,
(2003) 12
SCC 1
3 Applying the ratio in Jaipur Zila ,
drew the jurisprudential distinction
between a void order (which needs
fresh resuscitation) and one that is
merely defective and cured by
subsequent approval.
5 Tata Iron &
Steel Co. Ltd.
v. S.N. Modak,
AIR 1966 SC
380
3 The application seeking approval
under Section 33(2)(b) does not
become infructuous if the disputes
pending before the Tribunal, which
compelled the employer to file
application seeking approval, are
adjudicated on merits.
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WP No. 12014 of 2013
Respondent’s contention.
15. The Labour court will continue to have the
jurisdiction to try the industrial dispute relating to disciplinary
enquiry and the penalty imposed, even if Section 33(2)(b)
application is rejected. Merely because the application under
Section 33(2)(b) of the Act, 1947 is not filed, the jurisdiction to
adjudicate the industrial dispute emanating from disciplinary
enquiry is not taken away.
16. The charges of misconduct are proved in a
proceeding under Section 10 of the Act, 1947. Thus, the Labour
Court has imposed the appropriate penalty.
17. The judgment of the five-judge Bench of the Apex
Court in Jaipur Zila is per incuriam contrary to the earlier five-
judge Bench judgment in P.H. Kalyani v. M/s. Air France,
3
Calcutta, in so far as the answer to the second part of the
reference - “ whether the failure to make application under
Section 33(2)(b) of the Act would not render the order of
dismissal inoperative?” The said judgment is not a binding
precedent.
18. Scope of enquiry under Section 33(2)(b) of the Act,
1947 is limited to ascertain as to whether the requirements
3
AIR 1963 SC 1756
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WP No. 12014 of 2013
under Section 33(2)(b) of the Act, 1947 are not complied or
not. Said provision does not deal with the merits of the
misconduct alleged. The adjudication on the merits of the
disciplinary enquiry and the penalty imposed has to be
adjudicated in a dispute under Sections 10 or 33A of the Act,
1947.
19. Even in a situation where there is defective enquiry
or no enquiry before imposing penalty of dismissal, the
employer can establish the misconduct by leading evidence on
the charges, thus the Labour Court will have the jurisdiction to
adjudicate the industrial dispute.
20. Learned counsel for the respondent has placed
reliance on the following judgments:
Sl.
No
Judgment Coram Ratio
1 Automobile
Products of
India Ltd. v.
Rukmaji Bala &
Ors., AIR 1955
SC 258
3 The Tribunal's jurisdiction in a
S.33-A complaint is not confined to
a bare finding of contravention.
Tribunal has the jurisdiction to go
into the merits/justification of the
dismissal.
2 Punjab National
Bank Ltd. v. Its
Workmen, AIR
1960 SC 160
3 Compliance with S.33 does not
validate the order of termination
and the domestic enquiry valid. It
only removes the ban on dismissal
and the original order of
termination if disputed has to be
adjudicated on merits. The
authority under Section 33A can
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WP No. 12014 of 2013
also adjudicate on the merits of the
order of dismissal.
3 Deals with the scope of Section
33(2)(b) jurisdiction: on compliance
of Section 33(2)(b) requirements/
victimisation/unfair labour practice
without weighing evidence deeply.
Tata Iron and
3
Steel Co. Ltd. v.
D.R. Singh
AIR 1966 SC
288
2 Not seeking approval under Section
33(2)(b) will not prevent the
employer from justifying the order
of dismissal on merits. The Apex
Court also held that observations in
Paragraph No.14 of the judgment in
Jaipur Zila had no application to
the case.
4 Management of
Karur Vysya
Bank Ltd. v. S.
Balakrishnan,
(2016) 12 SCC
221
2 The Apex Court held that the
employer’s right to defend the
charges on merits is not taken away
in the event of non compliance of
Section 33(2)(b). The Apex Court in
paragraph No.11 held that the
Jaipur Zila judgment is explained
in that way in Rajasthan SRTC v.
Satyaprakash.
5
J.H. Patel v.
Nuboard
Manufacturing
Co. Ltd. (2014)
11 SCC 371
3 The Apex Court followed the
interpretation in Rajasthan SRTC
and Karur Vysya Bank to take a
view that despite non compliance of
Section 33(2)(b), the employer’s
right to prove the charges of
misconduct on merits is not taken
away.
6 Managing
Director,
NEKRTC
(Karnataka) v.
Shivasharanapp
a, (2017) 16
SCC 540
3 If a domestic enquiry is defective
and the charges are proved later
before the Tribunal, the order of
termination takes effect from the
date of the Tribunal's
award/approval — not from the
7 Gujarat Steel
Tubes Ltd. v.
Gujarat Steel
Tubes Mazdoor
Sabha, (1980)
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WP No. 12014 of 2013
2 SCC 593 date of the original dismissal order
5 Even if the domestic enquiry is
defective the Labour Court can
adjudicate the controversy on
merits. If the Labour Court uphold
the penalty of dismissal, the order
of dismissal relates back to the date
of the original dismissal order
passed by the employer.
8 P.H. Kalyani v.
M/s. Air France,
Calcutta, AIR
1963 SC 1756
4 Even where no domestic enquiry
was held before discharging
workmen the Tribunal, in a
reference under S.10, can
adjudicate on the merits of the
decision and the merits of the
allegations against the workman.
9 Workmen of
Motipur Sugar
Factory (P) Ltd.
v. Motipur
Sugar Factory,
AIR 1965 SC
1803
21. Learned counsel appearing for the petitioner by way
of reply would submit the language employed in Section 33A
does not permit the view that all disputes including validity of
the domestic enquiry can be looked into. Referring to the
expression “shall adjudicate upon the complaint as if it were a
dispute referred to or pending before it” cannot be expanded to
say that all disputes relating to the domestic enquiry and
finding on charges can be adjudicated in a proceeding under
Section 33A. The enquiry under Section 33A is only confined to
compliance of Section 33A of the Act, 1947.
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22. The Court has considered the contentions and
perused the records and noted the ratio laid down in the
aforementioned judgments.
Analysis.
23. The consequence of non-compliance of Section
33(2)(b) of the Act, 1947, is settled in terms of the five-judge
Bench judgment by the Apex Court in Jaipur Zila, supra .
24. The said judgment by the five-judge Bench of the
Apex Court was rendered in the context of divergent views
expressed by the Apex Court in Punjab Beverages, supra
which disagreed with the views expressed by the Apex Court in
Straw Board and Tata Iron and Steel Company supra.
25. The question of law framed in Jaipur Zila supra
reads as under:
“ If the approval is not granted under Section
33(2)(b) of the Industrial Disputes Act, 1947, whether the
order of dismissal becomes ineffective from the date it was
passed or from the date of non approval of the order of
dismissal and whether failure to make application under
Section 33(2)(b) would not render the order of dismissal
inoperative?”
26. Before considering the ratio of the judgment in
Jaipur Zila it is also necessary to refer to the views taken in
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Straw Board, Tata Iron and Steel Company, and Punjab
Beverages supra.
27. In Straw Board the Apex Court was considering
the interpretation of Section 6-E(2)(b) of United Provinces
Industrial Disputes Act, UP Act, 1947 which is pari materia
with Section 33(2)(b) of the Act, 1947. The contention was the
workman was dismissed without complying with the
requirement of Section 6-E (2)(b) though an application was
filed seeking approval. It was urged that the “approval” for
dismissal should have been taken before imposing the penalty
of dismissal. The Apex Court held that application seeking
approval need not be filed before imposing the penalty of
dismissal. The Apex Court held that the application seeking
approval for penalty of dismissal should simultaneously follow
or as part of the same transaction after imposing the penalty of
dismissal and the application seeking approval should be the
part of the same transaction. The Court did not answer the
question as to whether the Tribunal can look into the merits of
the allegation of the misconduct, as such a question did not
arise.
28. In Tata Iron and Steel Company, the question
that fell for consideration was the consequence of withdrawal of
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the application under Section 33(2)(b) of the Act, 1947. When
the application filed by the employer seeking approval for
dismissal post domestic enquiry came up for hearing, the
employer urged that the application has become infructuous as
the industrial dispute between the employer and the workman
is already been decided on merits and award is passed.
29. In the aforementioned factual background in Tata
Iron and Steel Company the Apex Court dealt with the
question which reads as under:
“ If, as a result of the pendency of an industrial
dispute between an employer and his employees, the
employer is required to apply for approval of the
dismissal of his employee under Section 33(2)(b), does
such an application survive if the main industrial
dispute is meanwhile finally decided and an award
pronounced on it? That is the question which this
appeal raises for our decision and the answer to this
question would depend upon a fair determination of the
true scope and effect of the provisions of Section
33(2)(b) of the Act.”
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WP No. 12014 of 2013
30. The Apex Court after having considered the
legislative history behind Section 33 of the Act, 1947,
considered its scope and answered as under:
“We are therefore satisfied that the Tribunal was
right in overruling the contention raised by the
appellant that the application made by it for approval
under Section 33(2)(b) cease to constitute a valid
proceeding by reason of the fact that the main
industrial disputes, the pendency of which had made
the application necessary, had been finally decided. “
31. It is relevant to note that the Tribunal had held that
the application under Section 33(2)(b) of the Act, 1947 does
not become infructuous because of the disposal of the
‘main industrial dispute’ which led to situation to file an
application under Section 33(2)(b) of the Act, 1947 seeking
approval for dismissal of the employee. It is to be noticed that
the ‘ pending industrial dispute’ is distinct from the ‘ domestic
enquiry’ in which the order of dismissal is passed.
32. Thus in Tata Iron and Steel Company supra , the
question whether the Tribunal or the Labour Court has the
jurisdiction to adjudicate the merits of the charges or the
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WP No. 12014 of 2013
validity of the domestic enquiry, when the application under
Section 33(2)(b) of the Act, 1947 is rejected, has not arisen
and not answered.
33. The Apex Court in Punjab Beverages supra, dealt
with the interpretations of Sections 33(2)(b) and 33C(2) of the
Act, 1947. The workman in the said case was dismissed
pursuant to a domestic enquiry. Since an industrial dispute was
pending, the employer moved an application before the
Tribunal seeking approval for dismissal. The workman opposed
the application. Before the application was heard on merits,
employer withdrew the application as not pressed. The
workman demanded full wages from the date of suspension till
the date of demand on the ground that approval for dismissal is
not granted. Thereafter, the workman applied under Section
33C(2) seeking wages on the premise the dismissal order is
void for want of approval under Section 33(2)(b) of the Act,
1947.
34. The employer opposed the petition on the ground
that the order of dismissal has not been set aside and will be
enforced unless it is set aside in a proceeding under Section
33A or under Section 10 of the Act, 1947.
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WP No. 12014 of 2013
35. The Apex Court in the said case has framed the
question in the following manner:
“The principal question which arises for consideration
in these appeals is as to what is the effect of
contravention of Section 33(2)(b) of the Act, 1947 of
an order of dismissal passed by an employer in breach
of it. Then does it render the order of dismissal void
and inoperative so that the aggrieved workman can say
that he continues to be in service and is entitled to
receive wages from the employer.”
36. While answering the said question the Apex Court
has held as under:
“16. We accordingly hold that the appellant
contravened Section 33(2)(b) of the Act, 1947 in
dismissing the workmen in both the appeals but such
contravention did not have effect of rendering the
orders of dismissal void and inoperative and hence the
workmen were not entitled to maintain the applications
for determination and payment of wages under Section
33C(2).”
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37. The Apex Court in Punjab Beverages supra, did
not expressly deal with the question as to whether the Tribunal
or the Labour Court will have the jurisdiction to decide the
controversy relating to the merits of the charges against the
workman leading to the dismissal of the workman. The Apex
Court stopped by holding that the dismissal order does not
become void or inoperative and consequently held that the
workman is not entitled to make an application for payment of
wages.
38. The ratio in Punjab Beverages supra, was to the
effect that non compliance of Section 33(2)(b) of the Act, 1947
does not render the dismissal order void and inoperative.
39. At this juncture, it is necessary to refer to
paragraphs No.14 and 15 of the judgment in Jaipur Zila,
which is relied on by both sides.
“14. Where an application is made under Section
33(2)(b) proviso, the authority before which the proceeding
is pending for approval of the action taken by the employer
has to examine whether the order of dismissal or discharge
is bona fide; whether it was by way of victimisation or
unfair labour practice; whether the conditions contained in
the proviso were complied with or not etc. If the authority
refuses to grant approval obviously it follows that the
employee continues to be in service as if the order of
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discharge or dismissal never had been passed. The order of
of
dismissal or discharge passed invoking Section 33(2)(b)
the Act, 1947
dismissing or discharging an employee brings
an end of relationship of the employer and employee from
the date of his dismissal or discharge but that order
remains incomplete and remains inchoate as it is subject to
approval of the authority under the said provision. In other
words, this relationship comes to an end de jure only when
the authority grants approval. If approval is not given,
nothing more is required to be done by the employee, as it
will have to be deemed that the order of discharge or
dismissal had never been passed. Consequence of it is that
the employee is deemed to have continued in service
entitling him to all the benefits available. This being the
position there is no need of a separate or specific order for
his reinstatement. But on the other hand, if approval is
given by the authority and if the employee is aggrieved by
such an approval, he is entitled to make a complaint under
Section 33-A challenging the order granting approval on
any of the grounds available to him. Section 33-A is
available only to an employee and is intended to save his
time and trouble inasmuch as he can straightaway make a
complaint before the very authority where the industrial
dispute is already pending between the parties challenging
the order of approval instead of making efforts to raise an
industrial dispute, get a reference and thereafter
adjudication. In this view, it is not correct to say that even
though where the order of discharge or dismissal is
inoperative for contravention of the mandatory conditions
contained in the proviso or where the approval is refused, a
workman should still make a complaint under Section 33-A
and that the order of dismissal or discharge becomes
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invalid or void only when it is set aside under Section 33-A
and that till such time he should suffer misery of
unemployment in spite of the statutory protection given to
him by the proviso to Section 33(2)(b). It is not correct to
say that where the order of discharge or dismissal becomes
inoperative because of contravention of proviso to Section
of the Act, 1947
33(2)(b) , Section 33-A would be
meaningless and futile. The said section has a definite
purpose to serve, as already stated above, enabling an
employee to make a complaint, if aggrieved by the order of
the approval granted.”
15. 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 under Section 33-A, cannot be
accepted. In our view, 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). An employer who does not make an application
under Section 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
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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 under
Section 33-A notwithstanding the contravention of Section
33(2)(b) proviso, driving the employee to have recourse to
one or more proceedings by making a complaint under
Section 33-A or to raise another industrial dispute or to
make a complaint under Section 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.
(emphasis supplied)
40. In paragraph No.14 the Apex Court has held that
the contention that order of dismissal remains in force till it is
set aside under Section 33A is not acceptable. In other words,
the Apex Court has held that the rejection of application under
Section 33(2)(b) of the Act, 1947 results in deemed
employment from the date of original order of dismissal post
domestic enquiry or without an enquiry once application under
Section 33(2)(b) of the Act, 1947 is rejected.
41. The Apex Court in paragraph No.15 of the said
judgment held that even the withdrawal of the application has
the same consequence of rendering the order of dismissal
ineffective from the date of dismissal of employee.
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42. In paragraph No.18 in Jaipur Zila, the Apex Court
has expressly held that the view expressed in Punjab
Beverages on the question is not the correct view.
43. However, the question raised in this petition, as to
whether the Tribunal or the Labour Court gets the jurisdiction
to adjudicate on the merits of the charges framed, post
dismissal of the application under Section 33(2)(b) the Act,
1947 is not raised and answered in Jaipur Zila supra.
44. In the aforementioned context the learned counsel
for the respondent urged the contention that the Labour Court
had the jurisdiction to adjudicate on the merits of the charges
in a pending proceeding under Section 10 of the Act, 1947. In
addition it is urged that as the charges are proved, the order of
dismissal would relate back to the original order of dismissal
passed by the employer pursuant to the domestic enquiry and
in that view of the matter, the petitioner is not entitled to back
wages during the period in which he was dismissed from
service.
45. The learned counsel for the petitioner urged that in
view of the law laid down by the Apex Court in Jaipur Zila,
supra , there cannot be any further adjudication on the merits
of the charges.
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46. That leads to the questions (ii) and (iii) framed
above in paragraph No. 7.
47. To answer the questions (ii) and (iii) framed above
in paragraph No. 7, the Court has to refer to Section 33(2)(b)
of the Act, 1947.
48. Section 33(2)(b) of the Act, 1947 reads as under:
“ 33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings .—
(1)xxxxx
(2) During the pendency of any such proceeding in respect of an
industrial dispute, the employer may, in accordance with the
standing orders applicable to a workman concerned in such
dispute or, where there are no such standing orders, in
accordance with the terms of the contract, whether express
or implied, between him and the workman,—
(a) alter, in regard to any matter not connected with
the dispute, the conditions of service applicable to that
workman immediately before the commencement of
such proceeding; or
(b) for any misconduct not connected with the dispute,
or discharge or punish, whether by dismissal or
otherwise, that workman:
Provided that no such 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.”
49. On a reading of Section 33(2)(b) of the Act, 1947 it
is evident that when an application is filed under the said
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provision seeking approval for dismissal the Labour Court or
the Tribunal has to consider whether requirement under
Section 33(2)(b) of the Act, 1947 are complied with or not.
50. It is settled position reiterated in various
pronouncements, including paragraph No.14 in Jaipur Zila,
supra that in a proceeding under Section 33(2)(b), the
Court/Tribunal will only examine whether conditions prescribed
under Section 33(2)(b) of the Act, 1947 are complied with or
not, and whether the order of dismissal is a case of
victimisation or unfair labour practice.
51. It is also a well-settled position that the enquiry
under Section 33(2)(b) is a summary enquiry as held by the
Apex Court in M/s. G. Mckenzie and Co. Ltd., Vs. Its
4
Workmen and others .
52. Thus, from the ambit and scope of Section 33(2)(b)
the Act, 1947 and the scope of enquiry in an application
seeking approval, it is evident that the Labour Court or the
Tribunal can reject the application without getting into the
merits of the misconduct alleged. In such situation it is not
possible to conclude that charges are obliterated or the charges
are not proved or that entire disciplinary proceeding is vitiated.
4
AIR 1959 SC 389
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WP No. 12014 of 2013
53. Section 33(2)(b) of the Act, 1947 does not say that
non-compliance of Section 33(2)(b) the Act, 1947 renders the
domestic enquiry on the charges invalid. At the same time
there is nothing in the Section 33(2)(b) the Act, 1947 to take a
view that jurisdiction of the Labour Court or the Industrial
Tribunal is taken away to adjudicate the dispute on the merits
on the charges and validity of the domestic enquiry under
Sections 10 and 33A of Act, 1947 in case of non-compliance of
Section 33(2)(b) the Act, 1947.
54. The above said view is evident from the object
behind the provision. Section 33(2)(b) of Act, 1947 is
incorporated to ensure that the workman is not victimized
because of pendency of another industrial dispute between the
workman and the employer. The said provision aims at
protecting the workman from victimisation/unfair labour
practice because of pendency of another industrial dispute. It
has a limited purpose to serve. However, the provision cannot
be interpreted and its ambit cannot be expanded beyond what
emerges from the plain reading of the provision.
55. There is one more reason to take the view
expressed in the preceding paragraph. The employer’s right to
hold domestic enquiry is a right created under the contract of
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WP No. 12014 of 2013
employment. Section 33(2)(b) the Act, 1947 regulates the
procedure when it comes to imposing penalty of dismissal
pursuant to a domestic enquiry, where an industrial dispute is
pending consideration between the workman and the employer.
56. The most significant aspect that needs attention is
that Section 33(2)(b) of the Act, 1947 does not mandate the
approval before holding enquiry in case an industrial dispute is
pending between the workman and the employer. The approval
is to be taken post order of dismissal under Section 33(2)(b)
the Act, 1947. Till that stage, there is no question of seeking
any approval.
57. Thus, the Court or the Tribunal dealing with the
controversy relating to compliance or non-compliance of
requirement of Section 33(2)(b) of the Act, 1947 will only look
into the question relating to the compliance of mandatory
requirements under Section 33(2)(b) of the Act, 1947 namely;
(a).Payment of one month’s wage, (b).The simultaneous
application/ or an application forming the same transaction, for
approval for the order of dismissal, (c).Victimisation and
(d).Unfair labour practice; Since the provision does not
contemplate permission or approval for holding the enquiry, the
non-compliance cannot invalidate the initiation of enquiry which
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has commenced prior to the stage where the application has to
be filed for approval. Thus, the question as to whether initiation
of enquiry is valid or not and charges are proved or not will not
fall for consideration in a proceeding under Section 33(2)(b) of
the Act, 1947 seeking approval.
58. However, if the decision granting approval or
rejecting approval is questioned either under Section 33A of
the Act, 1947 or under Section 10 of the Act, 1947 all questions
including the decision rejecting or granting approval and the
question on the merits of the allegation have to be adjudicated
by the respective Labour Court or the Tribunal.
59. Thus, the order of dismissal passed without
seeking approval, though void or inoperative as held in Jaipur
Zila, the expression “void or inoperative” used in the said
judgment must be understood in the context of the question
raised. If done so, it is only the order of dismissal which
becomes void and inoperative from the date of the original
order till the date of rejection of application under Section
33(2)(b) of the Act, 1947 and not the disciplinary proceeding if
any held before imposing the penalty of dismissal.
60. At this juncture, it is necessary to refer to the
judgments of the Apex Court in Workmen of Motipur Sugar
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5
Factory (P) Ltd. V. Motipur Sugar Factory , and The
Workmen of M/s. Firestone Tyre & Rubber Co. of India
6
(Pvt.) Ltd. v. The Management & Others which have held
that in case the domestic enquiry conducted by the employer is
found to be defective in a proceeding before the Labour Court
or Tribunal, or in a situation where the dismissal order is
preceded by no enquiry, and when such dismissal order is
questioned before the Labour Court or Tribunal, the employer is
entitled to lead evidence on the merits of the misconduct and
the workman is entitled to contest the charges by leading
evidence. This position of law is holding the field till today.
61. This being the position, the inevitable logical
conclusion would be that the Tribunal or the Labour Court will
have the jurisdiction to look into the merits of the misconduct
alleged. If both the parties lead evidence on the charges and if
the Tribunal and the Labour Court come to the conclusion that
the charges are proved and if the penalty of dismissal imposed
by the employer is confirmed, then there is nothing in the Act,
1947 that would prevent the Labour Court or the Tribunal from
upholding the penalty of dismissal.
5
AIR 1965 SC 1803
6
(1973) 1 SCC 813
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62. The inevitable legal proposition that emerges on
considering the three judgments referred to above namely
Jaipur Zila , Workmen of Motipur Sugar Factory (P) Ltd.
and Firestone Tyre & Rubber Co ., supra , is that there is no
provision in the Act, 1947 which takes away the right of the
employer to establish the charges levelled against the
workman. However, because of the mandate of Section
33(2)(b) of the Act, 1947, the employer has to face the
consequence of non-compliance of the said provision. One of
the consequences is penal action provided in Section 31 of the
Act, 1947. Another consequence is the reinstatement of the
workman as if he was employed from the date of dismissal till
the date of reinstatement as held in Jaipur Zila supra.
63. The Apex Court in Jaipur Zila, supra, has not held
that the charges against the workman are wiped out and the
disciplinary enquiry is non est because of non-compliance of
Section 33(2)(b) of Act, 1947. The Apex Court has only held
that for non-compliance of Section 33(2)(b) of Act, 1947 the
employer cannot be permitted to justify his action of dismissal
without an order of reinstatement for the period commencing
from the date of original order of dismissal by the employer till
the date of rejection of the application under Section 33(2)(b)
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the Act, 1947. There is no further prohibition to adjudicate on
the merits of the domestic enquiry in Jaipur Zila supra.
64. Section 33(2)(b) of the Act, 1947 does not take
away the employer's right to justify the action by proving the
misconduct. However, the provision regulates the procedure for
imposing the penalty of dismissal, after the conclusion of
domestic enquiry.
65. In terms of the law laid down by the Apex Court in
Jaipur Zila , supra , the workman has to be reinstated with full
wages during the period of dismissal. However, if the question
relating to non-compliance of Section 33(2)(b) of the Act, 1947
is raised in a dispute under Section 10 of the Act, 1947 or if the
said question is raised in a proceeding under Section 33A of the
Act, 1947 (as held in Automobile Products of India , supra )
the Labour Court or a Tribunal can look into the charges of
misconduct.
66. On question No. (iv) whether the penalty of
dismissal by the Labour Court or the Tribunal in a proceeding
under Section 10 or 33-A of the Act, 1947, would relate back to
the date of original dismissal imposed by the employer?”
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67. The Apex Court in P.H. Kalyani supra, R.
7
Thiruvirkolam v. Presiding Officer and another and
Punjab Dairy Development Corporation Limited v. Kala
8
Singh , has held that once the charges are proved before the
Labour Court or the Tribunal, the penalty of dismissal would
relate back to the original date of dismissal. The view is taken
in the context of the fact that the dismissal emanated from the
misconduct that is attributed against the employee.
68. It is to be noticed that in the said judgments the
effect of non-compliance of Section 33(2)(b) of the Act, 1947 is
not considered.
69. In view of the subsequent declaration of law by the
five-judges Bench of the Apex Court in Jaipur Zila , supra,
doctrine of relation back cannot have an universal application.
The application of doctrine of relation back depends on the
question whether Section 33 requirement is complied with or
not. If it is complied, and in case dismissal is also confirmed by
the authority exercising power under Section 33, then the
dismissal order will be effective from the date of original
penalty of dismissal imposed by the employer.
7
(1997) 1 SCC 9
8
(1997) II LLJ 1041 (SC)
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WP No. 12014 of 2013
70. If the application seeking approval is rejected and
charges are proved and penalty of dismissal is confirmed in a
proceeding under Section 10 or 33-A, such penalty would
operate from the date of the award passed by the Tribunal and
not from the date of the original order of dismissal. The reason
is, the order of dismissal imposed by the employer till it is
confirmed by the Tribunal is void or inoperative for the said
period. And for non-compliance of Section 33 the employer has
to suffer the consequence of paying full wages for the said
period.
71. Conclusions on the questions of law.
i. In the event of non-compliance of Section 33(2)(b)
of the Act, 1947, the Labour Court or the Tribunal
cannot deny the back wages from the date of the
penalty of dismissal till the date of the order on
application under Section 33(2)(b) of the Act, 1947.
ii. Labour Court or the Tribunal will have the
jurisdiction to adjudicate on merits of the
misconduct alleged in a proceeding under Section
10 or Section 33A of the Act, 1947 even if the
application under Section 33(2)(b) of the Act, 1947,
is rejected.
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WP No. 12014 of 2013
iii. The Apex Court in Jaipur Zila supra, has not held
that the domestic enquiry held prior to the
application under Section 33(2)(b) of the Act, 1947
is non est in the eye of law.
iv. In a proceeding under Section 10 and Section 33A
of the Act, 1947, if the penalty of dismissal is
confirmed on proof of charges, and Section 33(2)(b)
of the Act, 1947 is found to be violated, the award
of dismissal would not relate back to the date of
original dismissal imposed by the employer in the
event of non-compliance of Section 33(2)(b) of the
Act, 1947.
72. As a corollary, the following consequences may
follow in a case where Section 33(2)(b) of the Act, 1947 is not
complied.
(a) The Labour Court or the Tribunal may take a view
that charges are proved; or
(b) that the charges are not proved;
(c) In a situation where the charges are proved, the
Labour Court or the Tribunal has the option to
confirm the order of dismissal or may impose any
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WP No. 12014 of 2013
other penalty in exercise of jurisdiction under
Section 11A of the Act, 1947.
(d) In a situation where charges are proved and
penalty of dismissal is affirmed, the order of
dismissal will be operative only from the date of
the order of the Tribunal and till then the
workman shall be deemed to be in service and
the workman is entitled to full wages from the
date of original dismissal order passed by the
employer till the date of confirmation of dismissal
by the Labour Court or the Tribunal.
(e) In case, the Court or the Tribunal directs
reinstatement and imposes lesser penalty, then in
view of the law laid down by the Apex Court in
Jaipur Zila, supra , there has to be an award for
payment of full wages from the date of dismissal
till the date of reinstatement.
(f) In case, in a situation where the charges are not
proved, then the Court or the Tribunal should
direct payment of full wages from the date of
dismissal till the date of reinstatement and will
have no option to deny the back wages as the
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order of dismissal is inoperative for non-
compliance of Section 33(2)(b) the Act, 1947.
(g) If the charges are not proved and in deserving
cases where the Court or the Tribunal instead of
reinstatement, directs payment of compensation,
the Labour Court or the Tribunal is bound to
award full wages for the period from the date of
dismissal to the date of the award as during such
period the workman is deemed to be in
employment. And this will be in addition to the
compensation for any other period which might
have been denied because of not passing the
order of reinstatement and awarding
compensation.
73. The learned counsel for the petitioner has placed
reliance on the judgment of the Apex Court in Engineering
Laghu Udyog supra . In paragraph no. 13 of the said
judgment, the Apex Court has held as under:
“13. When in terms of the proviso appended to clause
(b) of sub-section (2) of Section 33 of the Act, an
approval is sought for and is refused, the order of
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dismissal becomes void. If an approval is not obtained,
still, the order of punishment cannot be given effect to.
It is, therefore, not correct to contend that the Tribunal
in a reference under Section 10 of the Act, when it
passes an order recording a finding of misconduct,
brings life into the dead. Unfortunately, the Court did
not take notice of the binding decisions in Motipur Sugar
Factory case and Firestone case.”
74. The learned counsel for the petitioner would
contend that in view of the aforementioned finding of the Apex
Court, it is not possible to adjudicate the controversy on the
merits of the charges in a proceeding under Section 10 of the
Act, 1947.
75. In Engineering Laghu Udyo g supra, an employee
was dismissed on the charges of misconduct. Before the Labour
Court it was urged on behalf of the workman that no domestic
enquiry was held before passing the order of dismissal. The
Labour Court permitted the parties to lead evidence on merits
and demerits of the charges. The Labour Court found that the
charges are proved. High Court upheld the finding of the
Labour Court. The Division Bench also upheld the finding of the
Learned Single Judge and that of the Labour Court.
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76. Before the Supreme Court, the Union representing
the workman raised a contention that finding that the order of
termination relates back to the original order is erroneous.
77. The Apex Court held that the findings on charges by
the High Court as well as the Labour Court are correct. It is to
be noticed that the Apex Court ultimately dismissed the petition
filed by the Union espousing the cause of the workman.
78. What is relevant to notice is the Apex Court has
referred to the judgment in P.H.Kalyani and Jaipur Zila
supra . The paragraph No. 14 in Engineering Laghu Udyog
supra, reads as under:
“14. We may further notice that P.H. Kalyani case has
also recently been followed by another Constitution Bench
in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram
Gopal Sharma.”
79. It is relevant to notice that judgment in P.H.
Kalyani is by the Constitution Bench of 5 judges. In P.H.
Kalyani the Apex Court in unmistakable terms has held that
even in case of defective domestic enquiry and where the
application is allowed after considering the evidence led before
the Tribunal if the Tribunal comes to the conclusion that the
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order of dismissal imposed pursuant to a defective domestic
enquiry will also relate back to the original order of dismissal.
80. This being the position the Court has to take a view
that observations made in paragraph no. 13 of Engineering
Laghu Udyog supra , are obiter.
81. Learned Counsel for the petitioner has made
reference to Gujarat Steel Tubes Ltd supra , to urge that the
law laid down in P.H. Kalyani supra, is not valid. The Court
has to reject the said contention for the simple reason that the
judgment in Gujarat Steel Tubes Ltd supra, is rendered by a
Bench of 3 judges.
82. At this juncture it is also required to notice that the
judgment in P.H. Kalyani supra, was rendered in a situation
where the application under Section 33(2)(b) was filed seeking
approval of dismissal. However, in Jaipur Zila supra, no such
application was filed. In that view of the matter there is no
apparent conflict between the two judgments as both
judgments were rendered in a different factual scenario
attracting different provision of law.
83. In P.H. Kalyani supra, the Apex Court was
considering the question whether doctrine of relation back
would also apply in a situation where the domestic enquiry is
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WP No. 12014 of 2013
defective and valid enquiry is held before the Tribunal. As
already noticed application seeking approval was filed in the
said case and the question of non-compliance of Section
33(2)(b) the Act, 1947 did not arise for consideration.
However, in Jaipur Zila supra, the precise question was
consequence of non-compliance of Section 33(2)(b) the Act,
1947.
84. This being the position the contention of the
respondent that Jaipur Zila judgment, referring to the ratio in
9
Union of India v. Raghubir Singh (Dead) by LRs. and
State of U.P. & another v. Synthetic and Chemicals Ltd
10
and another is per incuriam or sub silentio cannot be
accepted.
85. Likewise, the contention of the petitioner that High
Court cannot go beyond the law laid down in Engineering
Laghu Udyog supra, by placing reliance on the judgment in
11
Suganthi Suresh Kumar v. Jagadeeshan cannot be
accepted as the High Court is bound by the constitution bench
judgment in P.H. Kalyani as well as Jaipur Zila supra .
9
(1989) 2 SCC 754
10
(1991) 4 SCC 139
11
(2002) 2 SCC 420
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WP No. 12014 of 2013
However, the ratio in Jaipur Zila supra, is not as wide as
urged by the counsel for the petitioner. Moreover in Suganthi
Suresh supra, the interpretation of Section 33 of the Act 1947
did not arise for consideration.
86. The Apex Court in Karur Vysya, J.H. Patel and
Shivasharanappa supra, has taken a view that the employer’s
right to defend the charges on merits is not taken away in the
event of non compliance of Section 33(2)(b) the Act, 1947. The
judgments in Karur Vysya and J.H. Patel supra, are rendered
by making reference to judgment in Rajasthan State Road
Transport Corporation and another v. Satyaprakash and
12
another . It is urged on behalf of the petitioner that the
interpretation of Jaipur Zila judgment in aforementioned three
judgments is erroneous. Even without the support of the ratio
in Rajasthan State Road Transport Corporation, Karur
Vysya, J.H. Patel and Shivasharanappa supra, and
independently considering the ratio in Jaipur Zila supra it is
not possible to accept the view that in Jaipur Zila the Apex
Court has held that the adjudication on the merits of the
misconduct is impermissible once the application under Section
33(2)(b) the Act, 1947 is rejected.
12
(2013) 9 SCC 232
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WP No. 12014 of 2013
87. The judgment in Babu Verghese and others v.
13
Bar Council of Kerala and others also does not come to
the aid of the petitioner. The ratio in the said case cannot be
made applicable to interpret non-compliance of Section
33(2)(b) the Act, 1947 as rendering domestic enquiry as
invalid.
88. The counsel for the petitioner has raised a
contention that the respondent cannot urge that the Tribunal is
justified in holding the inquiry into the merits of the charges
and recording the finding on the merits of the charges without
filing a writ petition challenging the award cannot be accepted.
89. The reason is, the Tribunal has recorded a finding in
favour of the respondent/employer-KSRTC holding that the
domestic inquiry was fair and proper and the charges are
proved. The order of dismissal is set aside only for non-
compliance of Section 33(2)(b) of Act, 1947 which directed
reinstatement. The employer-KSRTC, not being aggrieved by
the award directing reinstatement, need not question the award
to defend the view taken by the Tribunal which has held that
the charges are proved after getting into the merits of the
allegations relating to the charges. If the Tribunal had declined
13
(1999) 3 SCC 422
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WP No. 12014 of 2013
to exercise the jurisdiction to look into the merits of the
charges on the ground that Section 33(2)(b) of Act, 1947 is not
complied, then the KSRTC/employer could not have urged the
contention as to the jurisdiction of the Tribunal to adjudicate on
the merits of the charges in the absence of a challenge to the
award in the form of a writ petition.
90. Moreover, the petitioner orally has raised a
contention that the Labour Court had no jurisdiction to look into
the merits of the charges. The question being the question of
law the Court has permitted the petitioner to raise the question
and elaborate arguments have been addressed on the said
question.
91. The Apex Court in Automobile Products of India
Limited, supra , has already held that the authority or the
Labour Court under the Act, 1947 can get into the merits of the
charges even in a proceeding under Section 33A and workman
need not necessarily raise one more dispute under Section 10
of the Act of 1947. In any situation, in the present case, the
dispute is raised under Section 10 of Act, 1947. Hence, that
question also does not arise. Even if such question arises, the
answer would be as aforesaid.
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WP No. 12014 of 2013
92. As far as penalty of withholding 4 annual
increments by holding that the charges are proved, the Court is
of the view that the said lesser penalty, instead of dismissal
imposed by the employer cannot be said to be shockingly
disproportionate to the proven misconduct of not returning the
way bill, in a jurisdiction under Article 227 of the Constitution of
India.
93. Before concluding the Court acknowledges the
assistance rendered by learned counsel on both sides. Hence,
the following:
ORDER
(i) The writ petition is allowed in part.
(ii) The impugned award denying the back wages from
the date of dismissal till the date of reinstatement
on the ground that the charges are proved is set
aside.
(iii) The petitioner is entitled to full consequential
benefit from the date of dismissal till the date of
reinstatement, as if he was employed.
(iv) The penalty imposed by the Labour Court to the
extent of denying four annual increments with
cumulative effect is confirmed.
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WP No. 12014 of 2013
(v) Three months time granted to comply with the
order failing which the respondent shall pay interest
@ 6% per annum on the amount due from the date
of order passed by the Labour Court directing
reinstatement.
(vi) Questions of law framed are answered as above.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS/RHR/-