Madras High Court
C. Ramanujam vs The Presiding Officer, Industrial ... on 23 July, 2003
Equivalent citations: (2004)ILLJ294MAD
ORDER K.P. Sivasubramaniam, J.
1. Petitioner prays for a writ of Certiorarified mandamus to call for the records relating to the award dated 31.7.1995 in complaint No. 5 of 90 on the file of the Presiding Officer, Industrial Tribunal, Madras and quash that portion of the Award depriving the petitioner entire back wages and direct the second respondent management to pay to the petitioner entire back wages and attendant benefits.
2. In view of the nature of the disposal of the writ petition, it is not necessary to go into the details of the charges against the petitioner which ended in the removal from service. On the complaint filed by the petitioner under Section 33-A of the Industrial Disputes Act, 1947, the Industrial Tribunal held that the worker was bound to opt for either of the two options viz., he should either get reinstatement with no back wages or only back wages without reinstatement. The award was passed directing the management to reinstate the complainant with continuity of service, without back wages and attendant benefits. Aggrieved by the same, the petitioner has come forward with the present writ petition.
3. I am inclined to hold that the petitioner is entitled to succeed on one particular issue, namely management did not obtain approval from the competent authority as required under Section 33(2)(b) of the Industrial Disputes Act, 1947. In this case, admittedly a dispute is pending between the management and the worker inclusive of the petitioner herein. It is also admitted that the management did not obtain approval as required under the provisions of the Industrial Disputes Act, 1947.
4. In the above background the learned counsel for the petitioner relies on the judgment of Constitution Bench the Supreme Court in JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD vs. RAM GOPAL SHARMA AND OTHERS ({2002} 2 Supreme Court Cases 244). In that case, the Supreme Court has considered the said issue in detail and overruled the earlier judgment in PUNJAB BEVERAGES (P)LIMITED., case and the Constitution Bench held as follows:
"The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an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 security 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 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 complainant 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."
5. Therefore the law as declared by the Supreme Court as on date, is that there can be no valid order of dismissal for discharging an employee from service if there was no approval as required under Section 33(2)(b) of the Industrial Disputes Act, 1947.
6. The learned counsel for the management contended that the declaration of law as laid down by the Supreme Court by the Constitution Bench was delivered only on 17.1.2002 and the order of dismissal in the present case having been made much earlier, law laid down by the Supreme Court in Punjab Beverages (P) Limited case alone will apply. The judgment of the Constitution Bench will apply only as prospectively. In support of the said contention, the learned counsel relies on the following decisions:
(i) (Union of India & Others vs. C.L. Verma)
(ii) (Baburam vs. C.C. Jacob & Others)
(iii)AIR 2001 Supreme Court 238 ( M/s. Raymond Ltd., vs. Madhya Padesh Electricity Board & Others)
7. I have considered the submissions of the learned counsel for the petitioner as well as the management. It is settled proposition of law that the Supreme Court while interpreting law, it is open to the Supreme Court to declare the law prospectively under Article 141 of the Constitution of India. However, if the Supreme Court does not specifically lay down in the judgment itself that it will have only prospective effect, it is not open to any party to contend that the judgment cannot apply to a case, which arose for consideration prior to the declaration of law by the Supreme court. Unless and otherwise the Supreme Court declares it positively in the judgment itself that it will apply only prospectively, it is not possible to infer that the judgment of the Supreme Court cannot be applied to a case, which arose for consideration before the said judgment. In BABURAM vs. C.C.JACOB AND OTHERS , the Supreme Court observed that the purpose of prospective declaration is to avoid reopening of settled issues and to prevent multiplicity of proceedings. Therefore in the absence of a specific declaration to give effect to the judgment only prospectively, the judgment is bound to apply to pending cases also. In JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. VS. RAM GOPAL SHARMA AND OTHERS there is no such specific declaration by the Supreme Court that the said judgment will operate only prospectively. Therefore I am unable to sustain the contention of the learned counsel for the management.
8. With the result, the judgment is applicable to the facts of the present case. Therefore the dismissal order of the management without approval is not valid in law and the petitioner is entitled to succeed. Accordingly, part of the award of the Industrial Tribunal, Tamil Nadu dated 31.7.1995 made in Complaint No. 5 of 1990 depriving back wages is set aside and the writ petition is allowed. No costs.