Section 33(2)(b) Approval Not Required for Dismissal Orders Passed When No Industrial Dispute Is Pending

The respondent, a Conductor with the Ahmedabad Municipal Transport Service, was caught on September 5, 1989, collecting fares without issuing tickets

Following a departmental inquiry where charges were proved, a final show-cause notice was issued on February 14, 1991

To prevent dismissal, the respondent filed successive civil suits in the City Civil Court, obtaining interim reliefs that stayed the execution of the dismissal order dated November 14, 1991

After withdrawing his suit in 2003 and the expiration of the extended stay on July 15, 2003, the petitioner issued a communication on August 8, 2003, stating that the 1991 dismissal order would finally be implemented

The respondent filed Complaint (IT) No. 200 of 2003 before the Industrial Tribunal, alleging that the 2003 communication was a fresh dismissal and violated Section 33(2)(b) of the Industrial Disputes Act, 1947, as no prior approval was sought while a general reference (Reference (IT) No. 137 of 2001) was pending

The Tribunal allowed the complaint, directing reinstatement with backwages

1. Whether the communication dated August 8, 2003, constituted a new order of dismissal or was merely an intimation to implement the original dismissal order of November 14, 1991

2. Whether there was a contravention of Section 33(2)(b) of the Industrial Disputes Act, 1947, requiring the employer to seek approval from the Tribunal for the dismissal

The court primarily applied Section 33(2)(b) of the Industrial Disputes Act, 1947, which mandates that during the pendency of any proceeding in respect of an industrial dispute, an employer may only discharge or dismiss a workman for misconduct unconnected to the dispute if they pay one month's wages and apply to the authority for approval

The court also considered the Supreme Court precedent in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, which held that the proviso to Section 33(2)(b) is mandatory and non-compliance renders a dismissal order inoperative

The High Court found that the Industrial Tribunal misinterpreted Section 33(2)(b). The Court clarified that the actual dismissal occurred on November 14, 1991, at which time no industrial dispute was pending between the parties

The communication dated August 8, 2003, was not a fresh termination but a mere intimation that the 1991 order would now be enforced following the vacation of civil court stays

Since no proceedings were pending in 1991, the requirement to seek approval under Section 33(2)(b) never arose

The Court further noted that the respondent’s reliance on a general union reference from 2001 was irrelevant to a dismissal finalized in 1991

Additionally, the Court criticized the respondent for approaching a Civil Court which lacked jurisdiction over industrial disputes and for failing to challenge the 1991 order for over a decade, invoking principles of delay and laches

The judgment and award of the Industrial Tribunal dated November 4, 2007, directing reinstatement and backwages, was quashed and set aside, and the respondent's complaint was dismissed