Gujarat High Court
Birla Ngk Pvt.Ltd vs State Of Gujarat & 2 on 12 June, 2006
Author: H.K. Rathod
Bench: H.K.Rathod
SCA/11401/2006 1/50 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 11401 of 2006
with
SPECIAL CIVIL APPLICATION NO 11402 OF 2006
to
SPECIAL CIVIL APPLICATION NO 11419 OF 2006
For Approval and Signature:
HONOURABLE MR.JUSTICE H.K.RATHOD
=========================================================
Whether Reporters of Local Papers may be allowed
1 to see the judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy
3 of the judgment ?
Whether this case involves a substantial question
of law as to the interpretation of the
4 constitution of India, 1950 or any order made
thereunder ?
Whether it is to be circulated to the civil judge
5 ?
=========================================================
BIRLA NGK PVT.LTD. - Petitioner(s)
Versus
STATE OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
NANAVATI ASSOCIATES for Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1,
MR RD RAVAL for Respondent(s) : 2,
None for Respondent(s) : 3,
=========================================================
CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD
Date : 12/06/2006
ORAL JUDGMENT
1. Heard the learned Senior Advocate Mr. K.S. Nanavati appearing on behalf of the petitioner, SCA/11401/2006 2/50 JUDGMENT learned A.G.P. Mr. Dabhi appearing on behalf of respondent No.1 and learned advocate Mr. R.D. Raval appearing on behalf of the respondent workmen on caveat. I have considered the detailed submissions made by the learned advocates for parties on the subject matter in this group of petitions. The question requires detail examination in respect to legal aspect. Hence, Rule, returnable on 19/07/2006. Meanwhile, impugned order challenged in the group of petition is stayed on condition that petitioner shall have to comply with the provisions of Section 17-B of the Industrial Disputes Act, 1947. (See : Full Bench judgment of Delhi High Court in the case of Delhi Transport Corporation Vs. Jagdish Chandra reported in 2005 (III) LLJ LLJ 390.
3. Therefore, it is directed to the petitioner to pay last drawn wages to each respondent of group of petition from the date of order passed by the conciliation officer rejecting the approval application till the group of petition is finally decided by this Court. It is directed to each respondent workmen in a group of petition to file affidavit as required under Section 17-B of the Industrial Disputes Act, 1947 that from the date of order passed by the Conciliation SCA/11401/2006 3/50 JUDGMENT Officer that they are unemployed and have not been gainfully employed in any establishment or gainfully employed from the date of order passed by the Conciliation Officer till the date of affidavit within a period of ten days from the date of receiving the copy of the said order. It is further directed to each respondent to group of petition to supply a copy of such affidavit to the petitioner and to place on record before this Court. However, it is open for the petitioner if petitioner is having any material to justify that any of the respondent in group of petition is employed in any establishment or gainfully employed, then it is open for the petitioner to file necessary application before this Court for modification of interim order passed by this Court.
4. Leanred A.G.P. Mr. Dabhi waives service of notice of rule on behalf of respondent No.1 and learned advocate Mr. R.D. Raval waives service of notice of rule on behalf of each respondent in group of petition.
[H.K. RATHOD, J.]
#Dave
SCA/11401/2006 4/50 JUDGMENT
Aforesaid order was passed by this Court in open Court. At that time, reasons were not invited by the concerned advocates though it was made clear by this court that if they want, then, this court can assign reasons for the order. However, reasons were not invited. However, subsequently, concerned advocates invited reasons for passing the aforesaid interim order. Such request was made by concerned advocates before the order could be signed by this Court.
In view of this, I am giving reasons for passing aforesaid interim order, as under:
1. In this group of petitions, petitioner company passed discharge order under the provisions of the Model Standing Orders on 21.4.2006 wherein following allegations have been made by the petitioner company against workmen concerned, which being relevant, are reproduced as under:
SCA/11401/2006 5/50 JUDGMENT "This is to inform you that due to your deliberate, unjustified and illegal acts of inciting and instigating other workmen to indulge in Go Slow from 20 March 2006 and to indulge in illegal strike, commencing with the Pug Mills in the Slip House department, from 21 March, 2006 and dispatch section from 23rd March 2006, the working of the Plant has been severely disrupted and progressively almost the entire operations have come to a virtual halt. Normalcy could not be resorted in spite of your being repeatedly advised to do so in several meetings, Notices, letters as well as meetings with the Assistant Commissioner of Labour and other authorities. You continued the illegal strike with the full knowledge and intention of crippling operations and causing grave losses to the Company."
2. On the same day 21st April, 2006, because of the pendency of the industrial dispute before the concerned conciliation officer, approval application under section 33-2-b was filed by the SCA/11401/2006 6/50 JUDGMENT petitioner Co. before the conciliation officer at Godhra, being Approval Application No. 1219 of 2006. Along with the approval application, one month notice pay was paid to concerned workmen by cheque. In para 5 of the approval application, following averments have been made :
Item No.5 Page-1
"That after taking into consideration
gravity of the situation and in the
prevailing circumstances of the
continuing strike, whereby an equity is
not possible to be conducted. Management has discharged the said workman with immediate effect as per the Standing orders by payment of one months wages in lieu of notice. Management reserves its right to lead evidence to prove the charges later before the appropriate authority."
3. In view of the aforesaid averments made in paragraph 5, petitioner Co. filed application before the conciliation officer at Godhra on May 15, 2006. In the said application, prayer was SCA/11401/2006 7/50 JUDGMENT made that the petitioner company may be given opportunity to prove serious misconduct by leading oral as well as producing documentary evidence. Said prayer was rejected by the conciliation officer on the same day May 15, 2006. Said application was rejected on the ground that the conciliation officer has no wide jurisdiction similar to or at par with the labour court and/or industrial tribunal and, therefore, that prayer was rejected by the conciliation officer. Thereafter, conciliation officer passed final order on the same day i.e. 15.5.2006 and rejected approval application of the petitioner company on the ground that the workmen are discharged in respect of serious misconduct without giving any reasonable opportunity to the workmen concerned. Thus, approval application was rejected by the conciliation officer having found prima facie that the action of the petitioner company was violative of the principles of natural justice in discharging the concerned SCA/11401/2006 8/50 JUDGMENT workmen. Therefore, present group of petitions have been filed by the petitioner company for prayer to quash and set aside the order of the conciliation officer rejecting approval application dated 15.5.2006. Meanwhile, prayer for interim relief is made in paragraph 27(B).
Respondent workmen have objected approval application and filed reply reply before the conciliation officer. Petitioner Co. is not having certified Standing Orders but Model Standing Orders are applicable to petitioner Co. As per the contention raised by the learned Senior Advocate Mr. K.S. Nanavati, according to the Model Standing Orders, petitioner CO. has exercised powers under clause 23 of the Model Standing Orders . Clause 24 thereof enumerated acts and omissions on the part of the workman amounting to misconduct. Relevant misconduct narrated in discharge order are as under:
"24. The following acts and omissions on the part of a workman shall amount to misconduct:
SCA/11401/2006 9/50 JUDGMENT
(a) willful insubordination or
disobedience, whether or not in
combination with another of any lawful and reasonable order of a superior;
(b) going on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof;
© willful slowing down in performance of work, or abetment or instigation thereof;
(d) to (k) xxxx
(l) commission of any act subversive of discipline or good behavior on the premises of the establishment;
(m) xxx
(n) habitual breach of any rules or instructions for the maintenance and running of any department, or the maintenance of the cleanliness of any portion of the establishment;
(o) & (p) xxx
(q) willful damage to work in process or to any property of the establishment. "
4. Petitioner CO. has not held any departmental inquiry before passing the discharge SCA/11401/2006 10/50 JUDGMENT order, on the basis of the alleged misconduct under Clause 25 of the Model Standing Orders. Petitioner Co. has not served any charge sheet or has not served any notice prior to passing the order of discharge. Petitioner Co. straightway filed approval application under section 33-2-b of the ID Act, 1947 before the Conciliation Officer on the same day on which the discharge order was passed. Request was made by the petitioner Co. before the conciliation officer to permit petitioner company to prove the charge against concerned workmen by leading proper evidence before the conciliation officer. Said request was rejected by the conciliation officer. Therefore, in light of these undisputed facts, question required to be examined by this Court is, whether such course is open for the petitioner Co. in approval application or not and whether the conciliation officer is having jurisdiction or discretionary power to reject such application or not and whether the SCA/11401/2006 11/50 JUDGMENT conciliation officer has power and jurisdiction to adjudicate the issue raised in approval application while exercising jurisdiction under section 33-2-b of the ID Act, 1947. These are the legal questions arising for consideration of this Court. Hence, I have ordered to issue Rule returnable on 19th July, 2006.
5. I have heard the learned advocates for the parties on the question of interim relief. What would be the legal effect of rejection of approval application? That aspect has also been considered by me while examining the question of interim relief. Legal effect of rejection of approval application is that unless and until the order of discharge/dismissal is approved by the concerned authority, while granting approval application, such dismissal/discharge cannot be given effect to. So long as the approval application is decided, relationship of employee and employer between the parties remains in SCA/11401/2006 12/50 JUDGMENT existence until the approval application is granted. In the event of rejection of approval application, order of discharge becomes null, void and inoperative. Therefore, workman concerned is deemed to be in service for all purposes. This being the legal effect of rejection of approval application, it also includes reinstatement, impliedly. In such event, workman is deemed to be in service, therefore, it amounts to an order of reinstatement with all consequential benefits. In such eventuality, workmen are remaining in service as if the discharge order has not been passed against them. Therefore, in view of this, another question arising for consideration of this court while passing interim order is to the effect that the respondents are entitled for the benefit of section 17-B of the ID Act, 1947 or not.
6. Learned advocate Mr. R.D. Raval appearing SCA/11401/2006 13/50 JUDGMENT for the respondent workmen in these petitions has submitted that from the date of order of discharge and from the date of rejection of approval application, all the respondent workmen have remained without job, unemployed and have not been gainfully employed during this period. Therefore, according to Mr. Raval, rejection of approval application impliedly amounts to order of reinstatement, therefore, if such order is required to be stayed by this court, then, respondent workmen are entitled for the benefit of section 17-B of the ID Act, 1947 since staying of such order amounts to staying the order of reinstatement.
7. On the other hand, learned Senior Advocate Mr. K.S. Nanavati has, while opposing the submission made by Mr. Raval, submitted that the rejection of approval application is not an a ward. It is not an order of reinstatement passed by the labour court/industrial tribunal. SCA/11401/2006 14/50 JUDGMENT Therefore, respondent workmen are not entitled for the benefit of section 17-B of the ID Act, 1947. In support of his submissions, he has placed reliance upon the following two decisions :
(i) M/s. Brakes India Ltd. And Asstt.
Commissioner of Labour (Conciliation) II and Anr. 1995-I-LLJ page 1232. This decision is not relating to, whether, in case of rejection of an approval application, section 17-B will apply or not but it is relating to the aspect, whether the management is entitled to have an opportunity to lead evidence to prove charges before the conciliation officer or not.
(ii) In GSRTC And Jarnal Sinh R. Ramgadhia reported in 1997- I - LLJ 774, this Court (Coram : H.L. Gokhale,J.) has made the following observations :
"If the Legislature has confined the beneficial provisions under section 17-B to the awards of the Labour Court, Tribunal and National Tribunal, while SCA/11401/2006 15/50 JUDGMENT interpreting the said section, one cannot enlarge the same to cover orders passed by the authorities other than those mentioned in section 17-B of the Act. To say that the orders passed by the Labour Court, Tribunal and National Tribunal under section 33(2)(b) will have the benefit of section 17-B of the Act is one thing and to say that the orders passed by other authorities under that Section will also attract the benefit under Section 17B is another. The Labour Court, Tribunal or National Tribunal are judicial authorities whereas the other authorities under section 33 are authorities for conciliation. The legislature has restricted the scope of the beneficial provision under section 17B to the awards of these judicial authorities. It is possible to extend the same benefit to the orders of these authorities under Section 33(2)(b) of the Act as has been done by a Single Judge of this Court in the case of Mafatlal Apparels (supra) or by the Calcutta High Court. However, the same logic cannot be extended further to SCA/11401/2006 16/50 JUDGMENT the determination of the conciliation authorities under section 33(2)(b) of the Act in the absence of specific provision in that behalf under section 17B of the Act.
Hence, the prayer to extend to the
workman herein the benefit under
section 17B of the Act cannot be
entertained."
Learned advocate Mr. R.D. Raval has relied upon certain decisions in support of his submissions that when the order of discharge becomes inoperative, deeming fiction of implied reinstatement has to be considered and, therefore, staying of such an order of rejection of approval application amounts to staying award of reinstatement and, therefore, in such eventuality, workmen are entitled for the benefit of section 17-B of the ID Act, 1947.
In light of the aforesaid submissions made by the learned advocates for the parties, question is whether section 17B of the ID Act, 1947 will SCA/11401/2006 17/50 JUDGMENT apply in case wherein order of rejection of approval application is challenged and the Court is considering the question of staying such an order of rejection of approval application or not.
In case of Samser Ali (Sk) and Kesoram Industries and Cotton Mills Ltd. And another, reported in 1988 I LLJ page 1, Division Bench of Calcutta High Court has made following observations :
In this case the enforceability of an order made under Section 33(2) (b) of the Industrial Disputes Act in an application under Section 17B of the aforesaid Act has been considered. Held, that an order made under Section 33(2)(b) of Industrial Disputes Act can be enforced in an application under Section 17B of the said Act, having regard to the definition of 'Award' and the definition of "Industrial Dispute". Section 17B not only applies in respect of Awards granting reinstatement but also in cases where an order has been made under Section 33(2)(b) rejecting the SCA/11401/2006 18/50 JUDGMENT application for approval.
Section 17B is a piece of social welfare and beneficial legislation enacted with a view to do away with a hardship caused to the employees who are deprived of the benefits of the order of reinstatement when stay of operation of orders of reinstatement is granted by the High Court or Supreme Court. The Section cast an obligation on the employer to pay to the employee full back wages on the basis of the last pay drawn including any admissible allowance for maintenance under any rules. An application under Section 17B will not be maintainable if during the pendency of the proceedings in a High Court or Supreme Court, the employee is employed in any establishment or elsewhere. The Section further requires an affidavit from the workman concerned to the effect that he was not employed in any establishment during the pendency of the proceedings before the High Court or Supreme Court."
In case of Delhi Transport Corporation versus Presiding Officer, Industrial Tribunal, SCA/11401/2006 19/50 JUDGMENT reported in 2001-I-III CLR page 700, it has been observed in para 11 at page 705 as under :
"11. In my considered view, there is no need to travel beyond Section 17B itself. As has been repeatedly observed, the Management's order of dismissal effects de facto termination of services and this is transformed into de jure character only once the approval is granted. If approval is declined, the immediate consequence is that even the de facto status is reversed and obliterated. The workman continues in service and it should be open to him to recover his wages and entitlement by pursing the most convenient and expeditious legal recourse available to him. This was the view of the two separate Division Benches of the High Court of Calcutta in the case of Samser Ali and Bata India (Supra). Observations in the last case call for extraction herein, and read as follows :
'in our view, it a liberal interpretation is given to Section 17B for the purpose of giving effect to the beneficial object which it seeks to achieve, there will be no difficulty in extending the benefit of the said section even in such a case where SCA/11401/2006 20/50 JUDGMENT the employer challenges an order passed by the Tribunal disproving an order of dismissal under Section 33(2)(b) of the Industrial Disputes Act in the High Court and the Supreme Court.
Although in case of such disapproval by the Tribunal under Section 33(2)(b) of the Industrial Disputes Act, Tribunal does not actually direct reinstatement in service, the real effect of such order is, in our view, amounts to reinstatement. "Reinstatement" means as per 'WORDS AND PHREASES", Permanent Edition Volume 36A, "To "To restore to a former state, authority or station". "To return to a former status", To restore to a state from which one has been reserved". As per BLACK'S LAW DICTIONARY 6th Edition, Reinstatement' means "To reinstall' to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed."
Under such circumstances, legal effect of disapproval under Section 33(2)(b) of the said Act by the Tribunal although may make the order of dismissal void ab initio, as held by the Supreme Court in the case of SCA/11401/2006 21/50 JUDGMENT P.D.Sharma v. State Bank of India and the workman concerned deems to continue in service, the same is really by a fiction of law. Factually and effectively, however, the workman concerned is restored back to the position which he held before the order of dismissal only after the order of such disapproval is passed by the Tribunal under aforesaid Section 33(2)(b) of the said Act and consequently as a matter of right is entitled not only to all arrear wages and other benefits, but also is entitled to his salary month by month.
In that view of the matter we are unable to accept the submission of Mr.Ginwala that provision of 17B would not be applicable as there was no award directing reinstatement. The definition of Award and Industrial Disputes as it would appear from Section 2(b) and Section 2(k) of the said Act themselves, are of the widest amplitude. Award has been defined under Section 2(b) of the Act as an interim of final determination of any industrial disputes or of any question relating thereto of any Labour Court or Industrial Tribunal or National Industrial Tribunal SCA/11401/2006 22/50 JUDGMENT and Industrial Disputes has been defined under Section 2(k) of the said Act as any disputes between the employers and employees or between the employees and workman and between the workman and employers which is concerned with the employment or non-employment or with the terms of employment or with the conditions of labour of any persons. The decision of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act disapproving the order of dismissal is certainly a matter relating to employment or non-employment of the workman and is certainly a determination by the Tribunal in respect thereto. Such decision is certainly a determination that the decision in question is invalid and therefore cannot be approved. There is no reason therefore, as to why, giving a liberal interpretation to the provision of Section 17B of the said Act, such a decision of the industrial Tribunal under Section 33(2)(b) of the said Act cannot be termed as an award within the meaning of Section 17B of the said Act."
In Indian Telephone Industries Ltd., and Another versus Prabhakar H. Manjure reported in SCA/11401/2006 23/50 JUDGMENT 2003-I-SCC 320, it has been observed as under in para 5 at page 323 and in para 9 at page 325:
"5. Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. has ruled that the conditions contained in the proviso to Section 33(2)
(b) are mandatory in nature and their non-
compliance would render the order of discharge or dismissal void or inoperative. It is further held that if the Tribunal refuses to grant the approval sought for under Section 33(2)(b), the effect of it shall be that the order of discharge or dismissal had never been passed and consequently the employee would be deemed to have continued in service entitling him to all the benefits available. It is also made clear that not making an application under Section 33(2)
(b) seeking approval or withdrawing an application once made before any order is SCA/11401/2006 24/50 JUDGMENT made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). While approving the cases of Straw Board and Tata Iron & Steel Co. the case of Punjab Beverages is overruled.
9. Having not challenged the earlier order dated 1.9.1987, it was not open to the petitioners to make a second application seeking approval for the order of dismissal of the respondent, that too without paying full back wages. The Division Bench of the High Court has fond that the second order of dismissal amounted to unfair labour practice and victimization. The Tribunal was not justified in allowing the second application seeking approval by ignoring the dismissal of the earlier application made by the management for non-compliance with the mandatory provisions of law. The Tribunal proceeded on the ground that the earlier application was not decided on merits and held that it was open tot he petitioners to SCA/11401/2006 25/50 JUDGMENT file a second application. This is clearly contrary to the decision of the Constitution Bench. It appears to us that the petitioners designed to defeat the claim of the respondents by making a second application when the order suffered by them on the first application had become final. Even as stated in the decision of Tata Iron & Steel Co. the petitioners failed to pay full wages to the respondents between the period of two dismissal orders. The case of Tata Iron & Steel Co. on facts of the present case does not help the petitioners. The question that was dealt with that case was altogether different."
In case of Anil R. Joshi versus Air India Ltd. Reported in 2003-I-CLR page 131, Division Bench of Bombay High Court has observed in para 8 and 9 at page 133:
"Para 8 : The law laid down in the aforesaid two judgments has been further reiterated in the recent judgment of the SCA/11401/2006 26/50 JUDGMENT Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma & Ors. & Ors. 2002 (2) SCC 244. The Constitution Bench of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., in para 14 of the report held thus:
"14. Where an application is made under S. 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service asa if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking S.33(2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and SCA/11401/2006 27/50 JUDGMENT remains inchoate as it is subject to approval, of the authority under the said provisions in other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position, there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given, by the authority and if the employee is aggrieved by such a approval, he is entitled to make a complaint under S.33-A challenging the order granting approval on any of the grounds available to him. S. 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging SCA/11401/2006 28/50 JUDGMENT the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under s. 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under S.33-A and that till such time, he should suffer misery of unemployment inspite of the statutory protection given to him by the proviso to S. 33(2) (b. It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to S.33(2)(b), S.33-1 would be meaningless and futile. The said section has a definite purpose to serve as already stated above,enabling an employee to make a complaint if aggrieved by the order of the approval granted.
Para 9: It would thus seen that the SCA/11401/2006 29/50 JUDGMENT order of dismissal passed invoking S.33(2)(b) dismissing an employee fefacto brings an end of relationship of the employer and employee from the date of his dismissal but this relationship comes to an end de jure only when approval is granted. If approval is not given, nothing more is required to be done by the employee as it will have to be deemed that the order of discharge had never been passed."
In case of Rane Brake Linings Ltd. Chennai versus Presiding Officer, Industrial Tribunal, 2004 II CLR 855, it has been observed as under in para 16 by the Madras High Court, at page 862 and 863:
Para 6.3.4(16) : 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 contains order of approval from the Tribunal. By passing the order SCA/11401/2006 30/50 JUDGMENT of discharge or dismissal defacto the 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 petitions filed under sec. 33(2) (b) of the Act on merits 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 Art.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 Tribunal's rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the SCA/11401/2006 31/50 JUDGMENT Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in sec. 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideraiton 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 merits.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 inquiry initiated against him."
In case of Delhi Transport Corporation v/s. Jagdish Chander reported in 2005-III-LLJ page 390, Full Bench of the Delhi High Court has observed as under at page 390.
"Respondent, who was a Conductor in petitioner - Delhi Transport Corporation, was removed from service on charges of irregularity and irresponsibility in the performance of his duties, amounting to misconduct in terms of paras 4 and 19(f) SCA/11401/2006 32/50 JUDGMENT among others of the Standing Orders. The Corporation sought approval of the removal under Section 33(2)(b) of the Industrial Disputes Act, 1947 before the Industrial Tribunal. The Tribunal declined to grant the approval. The Corporation challenged the Tribunal's order in the present petition. Respondent filed an application seeking relief under Section 17-B of the Act. A reference was made upon this application to the present Full Bench, the issue being whether Section 17-B would be applicable to writ proceedings challenging an order of the Tribunal under Section 33(2)(b) declining approval. The Full Bench answered the reference in the affirmative.
HELD: Referring to decisions on the point, the Full Bench observed the emphasis of the Legislature (in Section 17-B) was on the expression 'reinstatement' rather than on 'award'.
(Pare 10) The cumulative effect of Sections 2(b) and 2(k) defining 'award' and 'industrial SCA/11401/2006 33/50 JUDGMENT dispute' demonstrated that the expressions had been widely worded to take within their ambit duties relatable to any person who satisfied the conditions stated therein.
(Pare 16) Section 17-B as well as the judgements of the Supreme Court interpreting it discernibly predicated the principle that a workman was entitled to relief under Section 17-B where the Labour Court found that action of employer in dismissing the workman was illegal or unjustified and directed his reinstatement under Section 17-B. (Pare 21) The language of Section 17-B could not be stated to be unambiguous but the rule of liberal construction would have to be applied to achieve the social goal underlining this provision.
(Pare 24) Merely because the scope of jurisdiction by Court or Tribunal had some noticeable difference, it should not be treated as paramount consideration for giving narrower interpretation to a Section.
(Para 34)"
In para 33 and 35 of the same decision, it SCA/11401/2006 34/50 JUDGMENT has been further observed as under at page 405 and 406:
"33. In the case of Bharat Singh Vs. Management of New Delhi Tuberculosis Center, New Delhi and Ors., AIR 1986 (2) SCC 614 : 1986-II-LLJ-217 while determining the retrospective effect of the newly introduced provisions of Section 17-B of the Act, the Supreme Court held that there are no words in the Section to compel the Court to hold that it cannot operate retrospectively and in such a situation Court should give a purposive interpretation to the Section. While looking into the objects and reasons which according to the judgements provide an insight into the back ground why the Section was introduced and also the fact that Court would necessarily not take a rigid view in relation to interpretation of the provisions where the object of enactment is to provide benefit to the persons in whose favour the provision was enacted. Though the views expressed SCA/11401/2006 35/50 JUDGMENT by different Courts to some extent are divergent, but thre is by and large unanimity in all the referred decisions that the provisions of the Act need liberal interpretation and it is undoubtedly a beneficial legislation enacted for protection of the workman against exploitation, resulting from prolonged litigation which normally is stretched as a result of the affluent employer preferring proceedings before the higher Court against every order. It also cannot be disputed that the order of dismissal affects de facto determination of services and this attains de jure character only after the action of the employer is approved by the Industrial Tribunal in exercise of its powers. There is complete and comprehensive determination by the Industrial Tribunal while deciding such an application. It is in compliance of a strict sense. The principle of exclusion can be applied where it is explicitly stated in the statute.
Unanimity of judicial view in all the SCA/11401/2006 36/50 JUDGMENT above referred judgements clearly shows that the courts have uniformly applied the rule of liberal and purposive interpretation while treating the Objects and Reasons of the Act as an incite to the necessity for legislation. No doubt, in terms of the provisions of section 33(2)(b) of the Act, and as stated by the Supreme Court in the case of Lord Krishna Textile Mills Vs. Its Workmen, AIR 1961 SC 860: 1961-I-LLJ-
311. The Tribunal exercised its limited jurisdiction but it is a complete and final determination, quite analogous to the conclusions of the proceedings upon a reference to the labout Court under section 10 of the Industrial Disputes Act. The jurisdiction under the two provisions may not be identical in absolute terms but still it is a comprehensive and complete adjudication leading to the determination by a labour court or tribunal of an industrial dispute or any question relating thereto. It will also include the matters of employment or non employment or SCA/11401/2006 37/50 JUDGMENT variation in terms of the employment.
The action of the employer in
terminating the services of the
petitioner, subject to statutory
compliance indicated in section 33(2)
(b) is a question relating to employment or non employment. The determination may not be an award in stricto senso having not been required to be published in terms of section 17-A and its manner of execution may be somewhat at variance, but still the order under section 33(2)(b) has all the ingredients of a complete and final determination by the labour Court and the industrial tribunal entitling the workman with relief of reinstatement in law. Quando lex est specialis ratio qutem generalis generaliter lex est intelligenda. The Industrial law is a special law but its reasons are general and thus must be generally understood."
35. Thus, our answer to the following formulated question as to whether the SCA/11401/2006 38/50 JUDGMENT provisions of section 17-B of the Industrial Disputes Act will be applicable in a case where the management in writ petition has challenged the order of the labour court/industrial tribunal whereby its application under section 33(2)(b) of the Act seeking approval of the order of dismissal was dismissed by such Court or Tribunal is as under:
'The provisions of section 17B of the Industrial Disputes Act will be applicable to a case where the management in the writ petition has challenged the order of Labour Court/Industrial Tribunal whereby its application under section 33(2)(b) of the Act seeking approval of the order of dismissal was dismissed by such court or tribunal, subject to conditions stated in Section 17-B itself.' In case of Delhi Transport Corporation versus Bal Kishan and another, reported in 2006 Lab IC page 1229, Division Bench of Delhi High Court has observed as under in para 15 and 16 :
"15. However, in the mean time, a Full Bench of this Court in Delhi Transport Corporation v. Jagdish Chander, SCA/11401/2006 39/50 JUDGMENT 2005 V AD (Delhi) 217 has taken the view after relying on MD Tamil Nadu State Transport Corporation v. Neethivilangah Kumbakonam 2001 LIC 1801 and Jaipur Zila Sehkari Bhoomi Bank Ltd. Vikas v. Ram Gopal Sharma, JT 2002 (1) SC 182 : (2002 Lab IC 513) that once an application filed by an employer under section 33(2) (b) of the Act is rejected, the order of removal against the workman is non est and inoperative in law. The consequence of this is that for all inents and purposes, the workman continues to be in employment and is entitled to all benefits. Consequently, the employer is bound to treat the employee as continuing in service and to give him all consequential benefits.
16. As a result of the decision of the Full Bench, it must be held that the Respondent workman was in employment at least till Appellant's writ petition was dismissed. Since the Respondent/workman must be deemed to be continuing in service throughout this period, he is entitled to the wages that are due to him in accordance with law, at least until 20th January, 2003, when appellant's writ SCA/11401/2006 40/50 JUDGMENT petition was dismissed and its request for approval held bad."
In case of Amit Kumar and Indian Airlines Ltd. [2006 (109) FLR 387], Division Bench of Bombay High Court observed as under at page 387 and 388:
"The occasion to award the wages under section 17-B arises only when a petition to challenge the award granted by the labour court or the Tribunal is admitted by High Court or the Supreme Court and the stay thereof is granted leading a workman to point out to the Court as to what are his difficulties and to apply for his last drawn wages. In the present case, an interim stay was granted by the Apex Court and subsequently, it has permitted the respondent to file a petition before the High Court and, therefore, the SLP was withdrawn. The petition to challenge the Award of the Tribunal came to be admitted by the Single Judge of this Court only on 6th May, 2005 when he granted stay pending the disposal of the petition. It is at that stage that the appellant herein could have moved to apply for the last SCA/11401/2006 41/50 JUDGMENT drawn wages under section 17-B. This was applied by taking out the motion. Therefore, in absence of any specific observation by the Apex Court while granting the interim stay cannot take away the right of the appellant to move for his wages under section 17-B of the Industrial Disputes Act."
In view of the aforesaid decisions and the observations made by various High Courts as well as the Hon'ble Supreme Court, it is clear that in the event of rejection of an application for approval, order of discharge/dismissal becomes non-est and inoperative and in such eventuality, workman is deemed to be in service for all purposes, for wages and other consequential benefits and, therefore, it impliedly includes reinstatement. Order of such rejection of approval application is challenged by employer before this Court with a prayer to stay the order of rejection of approval application which impliedly includes SCA/11401/2006 42/50 JUDGMENT reinstatement of workmen concerned. Therefore, granting of such prayer of stay against such order of rejection of approval application amounts to staying operation of award of reinstatement. In view of that, workmen are entitled for the last drawn wages from the date of the order of rejection application till the matter is finally heard and decided by this court.
Looking to the facts of this case, only on the basis of allegations of serious misconduct and without affording any opportunity whatsoever, all the concerned workmen have been straightway discharged without issuing any charge sheet, departmental inquiry. These facts have been prima facie considered by the conciliation officer while considering approval application that such kind of order is violative of the basic principles of natural justice and based upon such prima facie considerations, approval application SCA/11401/2006 43/50 JUDGMENT has been rejected by the conciliation officer. Order of discharge is based on alleged misconduct of breach of the provisions of Model Standing Orders. In view of the rejection of approval application, order of discharge becomes non-est and void, ab-initio. Question is, whether the employer is entitled for the opportunity before the conciliation officer to prove misconduct by leading proper evidence or not. That question has to be examined by this court at the time of final hearing of this case for which rule has been made returnable on 19th July, 2006. However, it has to be seen prima facie that it is not a statutory right of an employer but it is a procedural law declared by the Hon'ble Apex Court. Then, discretion remains with the authority to grant or not to grant such leave and that aspect has to be examined by this court at the time of final hearing of this matter. (See Karnataka State Road Transport Corporation Versus Laxmi Devamma (Smt.) and Another reported in 2001 SCA/11401/2006 44/50 JUDGMENT (5) SCC 433, decision of larger Bench of the Hon'ble Apex Court). When the law on this point is settled that in the event of rejection of approval application, order of dismissal/discharge becomes non est and inoperative, then, while considering the question of interim relief against such order of rejection of approval application in a petition challenging the order of rejection of approval application, workmen are entitled to last drawn wages as required under section 17-B of the ID Act, 1947, being a subsistence allowance to litigate proceedings before the higher forum and maintain family during the pendency of petition. Otherwise, during the pendency of proceedings, without compliance of the provisions of section 17-B of the ID Act, 1947, workmen would become helpless, their families will be ruined and will be put to starvation. That is how, to protecting interest in legal fight between two unequals, provisions of section 17-B have been incorporated SCA/11401/2006 45/50 JUDGMENT by the legislature in the Statute. Any other interpretation will go contrary to the Object, Purposes and Reasons of enacting section 17B in the Statute Book. In such a situation, in Babulal Nagar verus Shree Synthetics Ltd., and others, reported in AIR 1984 SC 1164, it has been observed by the Hon'ble Apex Court (Coram : DA Desai, O. Chinappa Reddy and A. Varadrajan,JJ.), as under:
"Desai,J.:- Nothing appears more well settled than that the extraordinary jurisdiction under Article 226 conferred on the High Court was a weapon forged to overreach injustice and secure and advance justice. When therefore, this extra ordinary power is used to defeat justice and to promote technicality not only its raison d'etre is violated but it becomes a handy instrument for those to whom litigation cost is a luxury enjoyed at the cost of others and employed to exhaust and harass an unequal opponent. Sad as it may appear SCA/11401/2006 46/50 JUDGMENT that unfortunate situation emerges in this appeal."
Therefore, considering the entire facts and circumstances of the case, while granting interim relief against the operation of the order of rejection of approval application, direction to the employer to comply with the provisions of section 17B and to pay last drawn wages would also safe guard interest of the petitioner also. It will also be open for the petitioner to justify before this court that each concerned respondent workmen are employed in any establishment and are receiving remuneration, if it has any material to that effect. Such liberty has been given by this court to the petitioner to file necessary application for modification of this interim order. Since such liberty has been given to the petitioner co., interest of both sides would be protected and the workmen concerned would not be able to get double benefit.
SCA/11401/2006 47/50 JUDGMENT Further, There is no provision in the Model Standing Orders relied upon by the petitioner which give power to the petitioner Co. to discharge any permanent employee for the alleged misconduct while dispensing with the departmental inquiry. Admittedly, all these respondents were the permanent workmen of the petitioner co.
As regards the decision cited by Mr. K.S. Nanavati on behalf of the petitioner co. in case of GSRTC and Jarnal Singh D. Ramgadia reported in 1997-I-LLJ page 774, which is a decision of this Court (Coram : H.L.Gokhale,J.), same is not helpful to the petitioner on the ground that subsequent to the said decision, Larger Bench of the Hon'ble Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and Ors., AIR 2002 SC 643 : 2002 (2) SCC 244 :
2002-I-LLJ-834, has decided legal position that in case of rejection of approval application, SCA/11401/2006 48/50 JUDGMENT effect would be that the order of discharge/dismissal becomes null and void and workman is deemed to be in service, entitled for full wages while over rulling earlier decision of apex court in case of Punjab Beverages Pvt. Ltd.
Chandigarh v. Suresh Chand and Anr., reported in AIR 1978 SC 995 : 1978 (2) SCC 144 : 1978 II LLJ 1 and it has been held by the larger bench of the apex court that the law as stated in case of Punjab Beverages Pvt. Ltd.,Chandigarh is not a correct disposition of law. Therefore, legal position was not clear in respect of rejection of approval application when the decision in GSRTC v. Jarnal Singh (Supra) was given by this Court.
Now, the Larger Bench of the Hon'ble Apex Court has, in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and Ors., AIR 2002 SC 643, clarified legal position by over rulling the decision in earlier decision of apex court in case of Punjab Beverages Pvt. Ltd. Chandigarh v. Suresh Chand and Anr., reported in SCA/11401/2006 49/50 JUDGMENT AIR 1978 SC 995. Therefore, in view of the above, decision in GSRTC v. Jarnal Singh (supra) is not helpful to petitioner.
Before parting, it would be just and proper to clarify that the aforesaid reasons are based on prima facie consideration of the matter of the law on the subject and that this Court has not expressed any final opinion on the merits of the matter and the questions raised in this petition will be examined by this court strictly in accordance with law, without being influenced in any manner whatsoever by the observations based on prima facie consideration of the matter. It is also made clear that the final hearing of this group of petitions will be done by this Court without being influenced by the above reasons and the same are based only on prima facie consideration.
For the reasons recorded herein above, this Court has passed the aforesaid interim order. SCA/11401/2006 50/50 JUDGMENT (H.K. Rathod,J.) Vyas