Calcutta High Court
B. Yallappa vs Presiding Officer, Eighth Industrial ... on 21 August, 1997
Equivalent citations: (1997)IILLJ1047CAL
JUDGMENT Samaresh Banerjee, J.
1. In the instant writ application, the petitioner has challegned Order No. 33 dated February 4, 1997 in Case No. 5/94 under Section 33(2) of the Industrial Dispute Act passed by the learned Judge, Eighth Industrial Tribunal, West Bengal.
2. The petitioner, a workman of the company, was dismissed from service on October 31, 1994 after holding a disciplinary proceeding.
3. Admittedly thereafter the company has applied before the Tribunal under Section 33(2) of the Industrial Disputes Act for approval of such order.
4. It is the contention of the petitioner that such application made by the Company is not maintainable, as proviso of the said Section was not complied with. It is the contention of the petitioner that he was not paid for one month before dismissal, but an amount was sought to be paid to him making a deduction therefrom.
5. Before the Tribunal, the petitioner prayed that the question as to whether such application made by the petitioner is maintainable should be heard out first. Whereas, the company had applied before the Tribunal for hearing of the question as to whether the domestic enquiry was fair an proper as a preliminary point, By the impugned order, the learned Judge has rejected the prayer of the petitioner. The learned Counsel for the petitioner has contended, inter alia, that since under Section 33(2) of the said Act, unless an approval is granted, the order of dismissal cannot take effect and in view of the specific point raised by the petitioner that the proviso of the said Section was not complied with the Tribunal ought to have taken such matter first inasmuch as without the approval from the Tribunal under the aforesaid provisions of the Act, the question of considering the fairness or proper-ness of the enquiry cannot arise. He has relied on a number of decisions of the Supreme Court as also of this Hon'ble Court. The learned Counsel for the company on the other hand, has contended, inter alia, that the Tribunal has rightly held that issue as to the maintainability of the application under Section 33(2) of the Act is inexplicably inter linked with the validity of the domestic enquiry and these are all matters of evidence and accordingly, the validity of the domestic enquiry should be taken up as a preliminary issue.
6. Since the question which came up for consideration before this Court is a pure question of law, both the parties agreed that the matter can be disposed of even at the admission stage without filing any affidavits and accordingly both the parties have addressed the Court in full.
7. Having heard the learned Advocate appearing on behalf of the parties and considering the application. I am of the view that there is substance in the contention which has been raised by the petitioner.
8. It is now well-settled by judicial precedence, beyond any doubt, that when an application under Section 33(2) of the said Act is made, unless and until approval of under the aforesaid Section is granted by the Tribunal, the order of dismissal cannot take any effect. In the case of Tata Iron & Steel Company v. Modak (SN) reported in (1965-II-LLJ-128) the Supreme Court held, interalia, that even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not granted by the Labour Court or the Industrial Tribunal under Section 33(2) of the Act, the employer would be bound to treat the concerned workman as its employee and pay him full wages. It has been held further by the Supreme Court in the said case that the proviso of the Section 33(2)(b) shows that where action is intended to be taken by an employer against any of his employees, which falls within the scope of Clause (b), he can do so subject to the requirements of the proviso; if the employee is intended to be discharged or dismissed, an order can be passed against the employer against him provided he has paid such employee the wages for one month and he has made an application to the authority before which the proceeding is pending for approval of the action taken by him. If approval is not granted, the order of dimissal or discharge passed by the employer is wholly invalid or inoperative, and the employee of the employer notwithstanding the order passed by him dismissing or discharging the employee.
9. A Division Bench of this Hon'ble Court in case of MA Mining & Allied Machinery Corporation v. State of West Bengal reported in 1981 Labour & Industrial Cases page 1525 has also held, inter alia, following the Supreme Court decision while considering the scope of Section 33(2)(b) of the said Act, that under the said provision the Tribunal is to determine on materials before it whether prima facie case has been made out by the applicant for the termination of the workman's service; that prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidenes which are led in support of the same were to be believed. It was further held that the scope of enquiry under the said provision is of prima facie nature and for action taken the approval should be granted or should be rejected and the finding therein could not amount to res-judicate in any subsequent proceedings under Section 10 of the said Act. It has also been held by the Supreme Court in the case of M/s. Poddar Mills reported in (1973-II-LLM33) that in abseance of any satisfactory proof as to payment of one month's wages to the dismissed employee approval cannot be accorded under Section 33(2) of the said Act.
10. Keeping the above position of law in mind if we now examine the order passed by the Tribunal it appears to this Court that the prayer made by the petitioner has been wrongly rejected by the Tribunal. Admittedly, the company has made an application under Section 33(2) of the Act for approval of the order of dismissal passed againt the petitioner, but for such approval no effect can be given to such order of dismissal. It is, therefore, incumbent upon the Tribunal to consider the said application and after considering all aspects of the matter either to grant such approval or to reject the application.
11. Since a point has been raised that the provisio to such Section was not complied with inasmuch as, one month's salary was not paid to the petitioner, the Tribunal is certainly required to decide the question whether such application which has been made by the company was at all maintainable and proviso in respect of the said Section was complied with or not, Before going into such question, the question of examining the validity of the domestic enquiry, therefore cannot arise. I am not oblivious of the position that whether the domestic enquiry is valid or not is also to be examined prima facie for the purpose of granting or refusing (sic.) approval under Section 33(2) of the said Act and to that extent it may be said that such issue is also linked up with the previous question raised by the petitioner. But the learned Judge has erred in holding that the question as to the validity of the domestic enquiry must be decided first, inasmuch as, such a specific question haying been raised by the petitioner that the proviso to the said Section was not complied which pertains to the very maintainability of the application, unless such question is first decided, the question of examining the validity of the enquiry for the purpose of granting or refusing such approval does not arise. If the very application is not maintainable for non-compliance of the proviso, such application is bound to fail as such provisions have been held to be mandatory by the Supreme Court as indicated above.
12. The writ application, therefore, succeeds. The order No. 33 dated February 4, 1997 passed by the learned Judge, 5th Industrial Tribunal in Case No. 5 of 1994 under Section 33(2)(b) of the Industrial Disputes Act ishereby set aside.
13. The application made by the petitioner before the Tribunal for deciding the question as to the compliance with the proviso of Section 33(2)(b) of the Indsutrial Disputes Act and the maintainability of the said application as preliminary issue is hereby allowed.
14. The Tribunal is directed to consider the aforesaid question first as preliminary issue and to deal with the other questions subsequent to the same in the event the Tribunal finds that there has been compliance of the proviso to such application. It is further directed that the same should be done by the Tribunal as expeditiously as possible perferably within three months from the date of communication of this order.
15. The application is, thus, disposed of without any order as to costs.
All parties concerned are to act on a signed copy of the operative portion of this judgment and order on the usual undertaking.