Section 33(2)(b) approval cannot substitute express permission required under Section 33(1)(b).

The petitioner had been employed as a Sub-editor with the first respondent from 1 October 2000. She was transferred from the Kottayam Desk to the Kannur Desk and challenged the transfer before the District Labour Officer, Kottayam, alleging victimisation. While those proceedings were pending, disciplinary action was initiated against her principally for failing to report for duty at Kannur, culminating in an order of dismissal dated 19 February 2015

On the same date, the employer filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947, before the Labour Court, Ernakulam, seeking approval of the dismissal in view of certain pending proceedings—C.P. Nos. 29 of 2013, 10 of 2014 and 30 of 2014—which were allegedly unconnected with the misconduct leading to the dismissal

The District Labour Officer had recorded failure of conciliation on 3 February 2015, but communicated the failure report to the Government only on 20 May 2015. The dismissal order was passed in the intervening period, on 19 February 2015

Whether conciliation proceedings concerning the petitioner’s transfer remained pending before the District Labour Officer until the failure report was received by the appropriate Government, thereby requiring the employer to obtain express permission under Section 33(1)(b) of the Industrial Disputes Act before dismissing the petitioner.

Whether the Labour Court’s approval under Section 33(2)(b), obtained in respect of unconnected pending proceedings, could be treated as compliance with the requirement of express permission under Section 33(1)(b).

What remedy was available to the petitioner for the alleged contravention of Section 33(1)(b), and whether the employer could still justify the dismissal on merits.

Section 33(1)(b) of the Industrial Disputes Act, 1947 prohibits an employer, during the pendency of relevant proceedings, from dismissing a workman for misconduct connected with the dispute without the express written permission of the authority before which the proceeding is pending.

Section 33(2)(b) applies where the misconduct is unconnected with the pending dispute and permits dismissal subject to payment of one month’s wages and an application for ex post facto approval.

The Court relied on Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, (1999) 6 SCC 275, holding that conciliation proceedings do not conclude merely upon closure of investigation; under Sections 12(4) and 20(2)(b), they continue until the failure report is received by the appropriate Government.

It also relied on M/s. Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand, (1978) 2 SCC 144, holding that a complaint under Section 33-A involves both determination of the breach of Section 33 and, if breach is established, consideration of whether the dismissal is justified on merits; mere breach does not automatically require reinstatement.

The disciplinary proceedings and dismissal were directly connected with the petitioner’s failure to join duty at Kannur, which arose from the disputed transfer. Since the District Labour Officer’s failure report was communicated to the Government only on 20 May 2015, the conciliation proceedings were legally pending on 19 February 2015 when the dismissal was ordered, notwithstanding the earlier closure of investigation on 3 February 2015.

Consequently, the employer was required to obtain express permission under Section 33(1)(b) from the District Labour Officer before passing the dismissal order. At the same time, the proceedings pending before the Labour Court concerned unconnected disputes; therefore, the employer was also required to obtain approval under Section 33(2)(b) in respect of those proceedings.

The Labour Court’s order under Section 33(2)(b) could not operate as the express permission mandated by Section 33(1)(b), because the two provisions serve distinct purposes and relate to connected and unconnected disputes respectively.

However, the failure to obtain Section 33(1)(b) permission did not, by itself, finally determine the validity of the dismissal on merits; the petitioner could pursue the remedy under Section 33-A, where the employer would be entitled to justify the dismissal.

The writ petition was accordingly disposed of by clarifying that the Labour Court’s order, Ext.P8, shall not be treated as compliance with Section 33(1)(b). The petitioner was left free to initiate appropriate proceedings on the basis of non-compliance with Section 33(1)(b), while the employer was permitted to justify the dismissal on merits in accordance with Punjab Beverages.