Full Judgment Text
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CASE NO.:
Appeal (civil) 3593 of 2001
PETITIONER:
M.D., TAMIL NADU STATE TRANSPORT CORPORATION
Vs.
RESPONDENT:
NEETHIVILANGAN, KUMBAKONAM
DATE OF JUDGMENT: 04/05/2001
BENCH:
D.P. Mohapatra & Shivaraj V. Patil
JUDGMENT:
D.P.MOHAPATRA,J.
Leave granted.
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The core question that arises for determination in this
case is what is the right of a workman after the application
filed by the employer for approval of the order for his
dismissal/discharge from service is refused by the Tribunal
and what is the remedy open to the workman in such a
situation?
The facts of the case may be shortly stated thus : the
appellant, Tamil Nadu State Transport Corporation,
(Kumbakonam Division I) Ltd., Kumbakonam initiated a
departmental inquiry against the respondent Neethivilangan
who was a Junior Superintendent in the Head Office at
Kumbakonam. The charges having been established in the
departmental inquiry an order for dismissing the respondent
from service was passed on 5th March, 1984. Thereafter an
application was made by the appellant for accord of approval
under section 33(2)(b) of the Industrial Disputes Act, 1947,
(for short the Act) before the Tribunal. The Tribunal
rejected the prayer for approval on merit vide the order
dated 30.7.1984. The appellant filed Writ Petition
No.8849/84 challenging the order passed by the Tribunal
which was dismissed by the High Court by the judgment
dated18.12.1987. Writ Appeal No.321/88 filed against the
said judgment was dismissed. The appellant filed special
leave petition No.12350/88 in this Court which was also
dismissed. Even after it failed to obtain approval of the
Tribunal for the order of removal of the respondent the
appellant neither reinstated him in service nor paid him
wages. The resultant position was that the respondent
remained without work and without wages though he was ready
and willing to render service in the establishment. Under
the impelling circumstances as noted above the respondent
filed the Writ Petition No.1498/99 for reinstatement in
service, for payment of wages and other consequential
benefits. A single Judge of the High Court by the judgment
dated 4.11.1999 allowed the writ petition on the following
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terms : In the result, all the points (A) to (D) are
answered in favour of the petitioner and against the
respondent. This Court further holds that the petitioner is
deemed to have been in service continuously since 5.3.1984
onwards and deemed to be discharging his functions as an
employee of the respondent and he is entitled to all arrears
of salary with annual increments and all attendant and
concomitant benefits for the said period and till date of
reinstatement. There will be a direction directing the
respondent to work out the money value of the same and pay
the arrears within 12 weeks from today.
In the circumstances, there will be a further direction
directing the respondent to forthwith reinstate the
petitioner in service with all attendant and consequential
benefits. However, at the same time as criminal prosecution
is pending against the writ petitioner, liberty is given to
the respondent to place the petitioner under suspension
subject to payment of full salary at the present rate of
scales payable.
Further liberty is given to the writ petitioners to
institute appropriate proceedings before a competent court
or forums or file a writ petition for damages after
termination of the pending criminal prosecution and work out
his remedies.
The writ petition is allowed with costs of Rs.3,500/-.
Consequently, W.M.P. No.2118 of 1999 is closed.
The writ appeal No.157/2000 filed by the appellant
against the said judgment was dismissed by the Division
Bench by the judgment dated 9.2.2000.
Hence this appeal by the employer by special leave.
The main thrust of the contentions raised by Shri S.
Sivasubramaniam learned senior counsel for the appellant is
that the respondent is not entitled as of right to claim
reinstatement on the ground that the application for
approval under section 33(2) (b) of the Act filed by the
management has been rejected by the Tribunal. It is his
submission that the respondent has to approach the Tribunal
for enforcement of his right and is entitled to such relief
as the Tribunal decides.
Per contra Shri K.V.Vishwanathan learned counsel
appearing for the respondent supported the judgment of the
single Judge which was confirmed by the Division Bench of
the High Court. It is his submission that on rejection of
the employers prayer for approval of the order of removal
of the workman the punishment order becomes void and
unenforceable; indeed it is non est in the eye of the law.
Therefore, the High Court rightly directed reinstatement of
the respondent with back-wages. On the rival contentions
raised by the counsel for the parties the question
formulated earlier arises for consideration.
Section 33 of the Act makes provision for insuring that
the conditions of service remain unchanged during pendency
of certain proceedings. In sub-section(1) is incorporated
the bar that no employer shall during pendency of any
conciliation proceeding before a conciliation officer or a
Board or any proceeding before an arbitrator or labour court
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or Tribunal in respect of an industrial dispute, in regard
to any matter connected with the dispute, alter to the
prejudice of the workman concerned with such dispute,
conditions of service applicable to them immediately before
commencement of the proceedings; or for any misconduct
connected with the dispute, discharge or punish, whether by
dismissal or otherwise any workman concerned with such
dispute, save with the express permission in writing of the
authority before which the proceeding is pending.
The purpose of the prohibitions contained in Section 33
is two-fold. On the one hand, they are designed to protect
the workmen concerned during the course of industrial
conciliation, arbitration and adjudication, against
employers harassment and victimisation, on account of their
having raised the industrial dispute or their continuing the
pending proceedings, on the other they seek to maintain
status quo by prescribing management conduct which may give
rise to "fresh disputes which further exacerbate the already
strained relations between the employer and the workmen.
However, the section recognises the right of the employer to
take necessary action like the discharge or dismissal on
justified grounds. To achieve this object, a ban has been
imposed upon the employer exercising his common law,
statutory or contractual right to terminate the services of
his employees according to the contract or the provisions of
law governing such service. The ordinary right of the
employer to alter the terms of his employees services to
their prejudice or to terminate their services under the
general law governing the contract of employment has been
banned subject to certain conditions.
Sub-section (2) deals with alteration in the conditions
of service or the discharge or punishment by dismissal or
otherwise of the workman concerned in the pending dispute
but in regard to any matter not connected with such pending
dispute. Though this provision also places a ban in regard
to matters not connected with the pending dispute, it leaves
the employer free to discharge or dismiss a workman by
paying wages for one month and making an application to the
authority dealing with the pending proceedings for its
approval of the action taken. There is a distinction
between matters connected with the industrial dispute and
those unconnected with it. Thus, a balance between the
interests of the workmen and the employer is sought to be
maintained in the provisions of Section 33. The action
taken under Section 33(2) will become effective only if
approval is granted. If the approval is refused, the
order of dismissal will be invalid and inoperative in law.
In other words, the order of dismissal has to be treated as
non est and the workman will be taken never to have been
dismissed.
Considering the scheme of section 33 this Court, in the
case of Strawboard Manufacturing Co. Vs. Gobind (1962
(Suppl.) 3 SCR 618), observed :
Thus sub-s.(1) lays down that if an employer proposes
to discharge a workman in relation to a matter connected
with the dispute which might be pending before a tribunal
the employer must put such proposal before the tribunal and
obtain its express permission in writing before carrying out
the proposal whether it be for alteration of any conditions
of service or for punishment or discharge of a workman by
dismissal or otherwise.
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Sub-section(2)(a) on the other hand gives power to the
employer to alter any conditions of service not connected
with the dispute and this the employer can do without
approaching at all the tribunal where the dispute may be
pending. It further permits the employer to discharge or
punish, whether by dismissal or otherwise, any workman where
this may be on account of any matters unconnected with the
dispute pending before the tribunal; but such discharge or
dismissal is subject to the proviso, which imposes certain
conditions on it. The intention behind enacting sub-s.(2)
obviously was to free the employer from the fetter which was
put on him under s.33 as it was before the amendment in 1956
with respect to action for matters not connected with a
dispute pending before a tribunal. So far as conditions of
service were concerned, if they were unconnected with
matters in dispute the employer was given complete freedom
to change them, but so far as discharge or dismissal of
workmen was concerned, though the employer was given
freedom, it was not complete and he could only exercise the
power of discharge or dismissal subject to the conditions
laid down in the proviso. Even so, these conditions in the
proviso cannot be so interpreted, unless of course the words
are absolutely clear, as to require that the employer must
first obtain approval of the tribunal where a dispute may be
pending before passing the order of discharge or dismissal
of a workman, for on this interpretation there will be no
difference between s. 33(1) (b) and s.33(2)(b) and the
purpose of the amendment of 1956 may be lost.
(emphasis supplied)
A Bench of three learned Judges of this Court, in the
case of Punjab Beverages Pvt. Ltd. Chandigarh vs. Suresh
Chand and anr. (1978 (3) SCR 370) held, inter alia, that
the object of the legislature in enacting section 33 clearly
appears to be to protect the workman concerned in the
dispute which forms the subject matter of pending
conciliation or adjudication proceedings against
victimisation by the employer. But at the same time it
recognises that occasions may arise when the employer may be
justified in discharging or punishing by dismissal his
employee and so it allows the employer to take such action,
subject to the condition that in the one case before doing
so, he must obtain the express permission in writing of the
Tribunal before which the proceeding is pending and in the
other, he must immediately apply to the Tribunal for
approval of the action taken by him. Thereunder this Court
further held that the only scope of the inquiry before the
Tribunal exercising jurisdiction under section 33 is to
decide whether the ban imposed on the employer by this
section should be lifted or maintained by granting or
refusing the permission or approval asked for by the
employer. If the permission or approval is refused by the
Tribunal, the employer would be precluded from discharging
or punishing the workman by way of dismissal and the action
of discharge or dismissal already taken would be void.
(emphasis supplied)
This Court also observed that section 33 in both its
limbs undoubtedly uses language which is mandatory in terms.
In this connection this Court specifically observed : (at
p.385)
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Where the Tribunal entertains an application for
approval under section 33(2) (b) on merits, it applies its
mind and considers whether the dismissal of the workman
amounts to victimisation or unfair labour practice and
whether a prima facie case has been made out by the employer
for the dismissal of the workman. If the Tribunal finds
that either no prima facie case has been made out or there
is victimisation or unfair labour practice, it would refuse
to grant approval and reject the application on merits.
Then of course the dismissal of the workman would be void
and inoperative, but that would be because the Tribunal
having held that no prima facie case has been made out by
the employer or there is victimisation or unfair labour
practice, it has refused to lift the ban.
(emphasis supplied)
In the case of Tata Iron and Steel Co. Ltd. vs. S.N.
Modak (1965(3) SCR 411, a Bench of three learned Judges of
this Court, considered the effect of an order of the
Tribunal refusing to accord approval to the order of
dismissal or discharge of the workman and held : (at p.418)
But it cannot be overlooked that for the period between
the date on which the appellant passed its order in question
against the respondent, and the date when the ban was lifted
by the final determination of the main dispute, the order
cannot be said to be valid unless it receives the approval
of the Tribunal. In other words, the order being incomplete
and inchoate until the approval is obtained, cannot
effectively terminate the relationship of the employer and
the employee between the appellant and the respondent; and
so, 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 respondents service. 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.
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
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 under
section 33 (2)(b) of the Act on merit 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 employer 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 Tribunals rejection of the
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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 merit. 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 enquiry initiated against him.
In the facts and circumstances of the case it is our
view that the High Court committed no illegality in issuing
a direction to the appellant for reinstating the respondent
and pay him the back wages.
The appeal, being devoid of merit, is dismissed with
costs, which is assessed at Rs.10,000/-.