Non-compliance with Section 33(2)(b) mandates back wages, but Labour Courts can still examine misconduct, Karnataka High Court rules

The petitioner, a Conductor employed by KSRTC, was dismissed on 27 January 2007 after a disciplinary enquiry concerning alleged misconduct.

During the pendency of an industrial dispute, KSRTC neither sought approval under the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947, nor obtained such approval before giving effect to the dismissal.

In a reference under Section 10, the Labour Court held the domestic enquiry fair and the charges proved, but set aside the dismissal for non-compliance with Section 33(2)(b), directed reinstatement, denied back wages, and withheld four annual increments with cumulative effect.

KSRTC implemented the reinstatement order.

The petitioner challenged the denial of back wages and the withholding of increments.

Whether the Labour Court could deny back wages for the period between dismissal and reinstatement when the dismissal was set aside for non-compliance with Section 33(2)(b) of the Industrial Disputes Act, 1947.

Whether the Labour Court or Tribunal, in a proceeding under Section 10 or Section 33A, could adjudicate the merits of the alleged misconduct despite non-compliance with Section 33(2)(b).

Whether Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma held that a domestic enquiry conducted before the Section 33(2)(b) stage was non est.

Whether, where the misconduct and dismissal are subsequently upheld, the dismissal could relate back to the employer’s original order despite violation of Section 33(2)(b).

The Court applied Section 33(2)(b) of the Industrial Disputes Act, 1947, which prohibits dismissal of a workman during the pendency of a connected industrial proceeding unless one month’s wages are paid and an application seeking approval is made to the authority before which the proceeding is pending.

Under the Constitution Bench decision in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, non-filing, withdrawal, or rejection of the approval application renders the dismissal void or inoperative from the date of dismissal, and the workman is deemed to have continued in service.

However, Jaipur Zila does not invalidate the preceding domestic enquiry or remove the employer’s right to establish the misconduct in proceedings under Sections 10 or 33A.

The Court also relied on Workmen of Motipur Sugar Factory v. Motipur Sugar Factory and Firestone Tyre & Rubber Co. v. Management for the proposition that the Tribunal may adjudicate the misconduct on evidence even where the domestic enquiry is defective or absent.

The doctrine that dismissal may relate back under P.H. Kalyani v. Air France was held inapplicable where Section 33(2)(b) was violated; in such a case, the dismissal operates only from the date on which the Tribunal confirms it.

The Labour Court’s power to modify punishment under Section 11A was also recognised.

The Court distinguished the limited scope of a Section 33(2)(b) approval proceeding from the broader adjudication undertaken under Sections 10 or 33A.

Non-compliance with Section 33(2)(b) affected the legal effectiveness of the dismissal, but did not erase the domestic enquiry or prevent the Labour Court from determining whether the misconduct was proved.

Since the Labour Court had found the charges proved, it was competent to impose a lesser penalty under Section 11A; the finding of misconduct was therefore not jurisdictionally invalid.

Nevertheless, because KSRTC had not complied with the mandatory approval requirement, the dismissal could not retrospectively operate from 27 January 2007.

The petitioner was deemed to have remained in service during the intervening period and was consequently entitled to full consequential benefits, notwithstanding the proof of misconduct.

The withholding of four increments with cumulative effect was not shockingly disproportionate and did not warrant interference under Articles 226 and 227.

The Labour Court’s denial of back wages was set aside, and the petitioner was held entitled to full consequential benefits from the date of dismissal until reinstatement as though he had remained in service.

The Labour Court’s penalty of withholding four annual increments with cumulative effect was confirmed.

KSRTC was granted three months to comply, failing which the amount due would carry interest at 6% per annum from the date of the Labour Court’s reinstatement order.

The Court answered the framed questions by holding that non-compliance with Section 33(2)(b) mandates restoration of back wages for the relevant period, does not bar adjudication of misconduct under Sections 10 or 33A, does not render the domestic enquiry non est, and prevents the dismissal from relating back to the original dismissal date.