Delhi High Court
Ram Kishan vs Lt. Governor, National Capital ... on 14 September, 2001
Equivalent citations: 96(2002)DLT145
Author: Cyriac Joseph
Bench: Cyriac Joseph
JUDGMENT Cyriac Joseph, J.
(1) According to the petitioner, he was employed in Delhi Transport Corporation (Respondent No.2) as a conduction. He was removed from service by respondent No. 2 on 16th May, 1991. On 16th May, 1991 itself, respondent No. 2 filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 before the Industrial Tribunal No.II, Delhi, for approval of the respondent's action of removing the petitioner from service. The said application was considered on merits and was dismissed by the Industrial Tribunal on 15th July, 1995 refusing to grant approval to the removal of the petitioner from service. The Industrial Tribunal held that the management failed to prove that the workman was guilty of any mis-conduct. It was also held that the employer had not even complied with the mandatory requirement of sending one month's wages to the workman at the time of filing the application for approval. Through a representation dated 4th October, 1995, the petitioner requested respondent No.2 to allow him to join duty and also to pay him wages from 16th May, 1991. The petitioner also submitted an application to respondent No,1 (Lt. Governor, NCT of Delhi) for initiating prosecution proceedings against respondent No.2 for contravening the provisions of Section 33 of the Industrial Disputes Act. However, respondent No,1 did not initiate any proceedings and respondent No.2 did not reinstate the petitioner in service or pay his wages. Hence, the petitioner prays for issuing a writ of mandamus to respondent No.1 directing him to initiate prosecution of respondent No,2 under Section 34 of the Industrial Disputes Act for contravention of Section 33 of the said Act. It is also prayed that the respondent be directed to pay wages t the petitioner from 16th May, 1991.
(2) Respondent have not filed any reply or counter affidavit. The facts stated in the petition were not disputed by the learned counsel for the respondents at the time of hearing and hence they remain uncontroverter. Admittedly respondent No.2 did not challenge the order passed by the Industrial Tribunal on 15th July, 1995 dismissing the application under Section 33(2)(b) of the Industrial Disputes Act. for approval of the petitioner's removal from service. Hence the said order dated 15th July, 1995 has become final and binding on respondent NO.2.
(3) The main question arising for consideration in this writ petition relates to the consequences of the rejection of an application filed by an employer for approval of discharge or dismissal of a workman under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act).
For convenience Section 33(2)(b) of the Act is extracted below:-
"(33) (1).....
(2) During the pendency of any such proceeding in respect of any industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing order, in accordance with the terms of the contract, whether express or implied, between him and workman-
(a) .....
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken the employer."
As per the proviso to clause (b) of sub-section 2 of Section 33, during the pendency of any proceeding in respect of an industrial dispute no workman concerned in such dispute shall be discharged or dismissed even for any misconduct not connected with the dispute, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending, for approval of the action taken by the employer, The proviso lays down two conditions: (1) payment of wages for one month and (2) making of an application by the employer to the authority before which the proceeding is pending for approval of the action taken. Only two kinds of punishment are subject to the above conditions and they are discharge and dismissal. Any other kind of punishment is not within the purview of the proviso.
(4) In Strawboard Manufacturing Co. vs. Gobind, [1962] Supp. 3 S.C.R. page 618, a Bench of three learned Judges of the Supreme Court held that, with regard to payment of one month's wages all that the employer is required to do is to tender the wages to the employee and that if the employee chooses not to accept the wages, he cannot come forwarded and say that there has been no payment of wages to him by the employer. Hence, though the proviso to Section 33(2)(b) speaks of payment of one month's wages it can only mean that the employer has tendered the wages. Otherwise a workman can always make the statutory provision unworkable by refusing to take the wages. The Supreme Court rejected the contention that the employer is bound to make an application to the Tribunal asking it to approve the action proposed to be taken by it and that the employer can proceed to dismiss or discharge the workman only after approval is given by the Tribunal. The Court held that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him. The Court upheld the actio of the employer in making the application to the Tribunal simultaneously and without delay on his passing the order of dismisal. The Court further held that if the authority does not approve the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer.
(5) In Tata Iron and Steel Co. Limited vs. S.N. Modak another Bench of three learned Judges of the Supreme Court had occasion to consider the question whether an application filed by the employer for approval of the dismissal of his employee under Section 33(2)(b) of the Act will survive if the main industrial dispute is meanwhile finally decided and an award pronounced on it. The Court held that with the final determination of the main dispute between the parties, the employer's right to terminate the service of the workman according to the terms of service would revive and the ban imposed on the exercise of the said power would be lifted, but, for the period between the date on which the employer passed the order terminating the services of the workman and the date on which the ban was lifted by the final determination of the main dispute, the order of termination could not be said to be valid unless it received the approval of the Tribunal. The Court further held that the order of termination being incomplete and inchoate until the approval was obtained, could not effectively terminate the relationship of the employer and the employee and so even if the main industrial dispute was finally decided, the question about the validity of the order would still have to be tried and if the approval was not accorded by the Tribunal, the employer would be bound to treat the workman as its employee and pay him his full wages for the period even though the employer might subsequently proceed to terminated the services of the workman.
(6) In M/s Punjab Beverages Pvt. Limited, Chandigarh vs. Suresh Chand & Anr. , another Bench of three learned Judges of the Supreme Court considered the effect of contravention of Section 33(2)(b) of the Act on the order of discharge or dismissal of the workman. It was a case in which the application filed by the employer for approval of the action taken under Section 33(2)(b) of the Act was dismissed by the Industrial Tribunal as withdrawn and the workman applied to the Labour Court under Section 33C(2) of the Act for determination and payment of the amount of wages due to him on the ground that his dismissal was void as there was no approval under Section 33(2)(b) of the Act. The Labour Court allowed the application of the workman and directed the employer to pay a certain sum to the workman. Thereupon, the employer filed appeal before the Supreme Court. The Supreme Court held that the withdrawal of the application for approval stood on the same footing as if no application under Section 33(2)(b) was made at all. The Court also held that the contravention of Section 32(b) of the Act did not have the effect of rendering the order of dismissal void or inoperative and hence the workman was not entitled to maintain the application for determination and payment of wages under Section 33C(2) of the Act. According to the Supreme Court. the only scope of the enquiry before the Tribunal exercising jurisdiction under Section 33(b) is to decide whether the ban imposed on the employer by the said Section should be lifted or maintained by granting or refusing permission or approval asked for by the employer. If the permission or approval is refused by the Tribunal, the employer would be precluded from discharging or dismissing the workman and the action of discharge or dismissal already taken would be void. Even if the permission or approval is granted, that would not validate the action of discharge or dismissal taken by the employer. The permission or approval would merely remove the ban so as to enable the employer to make an order of discharge or dismissal and thus avoid incurring penalty under Section 31(1) of the Act. But the validity of the order of discharge or dismissal would still be liable to be tested in a reference at the instance of the workman under Section 10 of the Act which the workman would be entitled to raise. In such a reference, the Tribunal would be entitled to interfere with the order of discharge or dismissal. It was further held by the Supreme Court that Section 33 read along with Section 33A of the Act made it clear that the legislative intent was not to invalidate an order of discharge or dismissal passed in contravention of Section 33(2)(b) despite the mandatary language employed in that Section and the penal provision enacted in Section 31(1). The Court observed that before Section 33A was introduced, the only remedy available to the workman against the breach of Section 33 was to act under Section 10. Since that remedy involved delay Section 33A was enacted for making a special provision for adjudication as to whether Section 33 has been contravened. The Tribunal shall adjudicate as if it is a dispute referred to it in accordance with the provisions of the Act. However, if the contravention is established, the next question would be whether the order of discharge or dismissal is justified on merits. If the order of discharge or dismissal is justified on merits, the Tribunal would sustain the order treating the breach of Section 33 as mere technical breach. In such a case the order of discharge or dismissal would stand justified and it would not be open to the Tribunal, unless there are compelling circumstances, to make any substantial order of compensation in favor of the workman. The Tribunal would have to consider all the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the circumstances of the case. But the mere contravention of Section 33 by the employer would not entitle the workman to an order of re-instatement because the enquiry under Section 33A is not confined to the determination of the question of contravention. Even when there was contravention, the Tribunal has to go further and deal with the merits of the order of discharge or dismissal. The Supreme Court rejected the contention that the workman would be left without any remedy if contravention of Section 33 did not invalidate the order of discharge or dismissal. According to the Supreme Court, if the employer contravened Section 33, he will be liable to punishment under Section 31(1) which may extend even to imprisonment and, moreover; the aggrieved workman can act under Section 10 or can make a complaint to the Tribunal under Section 33A.) (7) In S. Ganapathy and others vs. Air India and another , the Supreme Court was called upon to consider the question whether, in computing the amount of one month's wages to be paid under Section 33(2)(b) of the Act, the employer was justified in reducing the amount by statutory tax deductions. While considering the said question, a Bench of two learned Judges held that by passing the order of discharge or dismissal de facto relationship of employer and employee was ended but not de jure, for that could happen when the Tribunal accorded its approval. According to the Supreme Court, the employee gets factually unemployed from the date of the application for approval in the sense that he is not called to work and is paid only one month's wages representing the succeeding month of his unemployment. The relationship of employer and employee is legally not terminated till the approval of discharge or dismissal is given by the Tribunal. The legal character of the wages would undergo a change depending on the result of the approval application. If the Tribunal were to refuse approval, the inchoate and incomplete order of discharge would end and the legal character of one month's wages would transform to be the same as before from which statutory tax deduction could legitimately be made by the employer. In the event of approval of the application by the Tribunal, the legal character of one month's wages would on the other hand be wages without employment.) (8) In Jaipur Zila Sahakari Bhoomi Vika Bank Limited vs. Ram Gopal Sharma and another, , Bench of two learned Judges of the Supreme Court noted that in Straw Board Manufacturing Co. vs. Gobind and in Tata Iron and Steel Co. Limited vs. S.N. Modak, two Benches consisting of three learned Judges of the Supreme Court took the view that if the approval was not granted under Section 33(2)(b) of the Act the order of dismissal would become ineffective from the date it was passed and, therefore, the employee would become entitled to wages from the date of dismissal to the date of disapproval of the application. It was also noted that in Punjab Beverages Pvt. Limited, Chandigarh vs. Suresh Chand and another, a Bench of three learned Judges took the view that non-approval of the order of dismissal or failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative and that the failure to apply for approval under Section 33(2)(b) would only render the employer liable to punishment under Section 31 of the Act and that the remedy of the employee is either by way of a complaint under Section 33A or by way of a reference under Section 10(1)(d) of the Act. It was further noted that is S.Ganpathy vs. Air India and Anr., Bench of two learned Judges followed the view taken in Straw Board Manufacturing Co. case and Tata Iron and Steel Co. Limited case but did not notice the decision in Punjab Beverages Pvt. Limited Case. Hence the questions raised in the case were referred to a Bench of five Judges and the case is still pending before the Supreme Court.) (9) In the meanwhile,the consequences of the rejection of an application for approval of dismissal/discharge of a workman under Section 33(2)(b) of the Act were explained by a Bench of two learned Judges of the Supreme Court in M.D., Tamil Nadu State Transport Corporation vs. Neethivilangan Kumbakonam, 2001 LAB.I.C. 1801. In that case, the appellant Tamil Nadu State Transport (Kumbakonam Div-I) Limited initiated a departmental enquiry against the respondent Neethivilangan Kumbakonam who was a Junior Superintendent in the Head Office at Kumbakonam. The Charges having been established in the departmental enquiry an order for dismissing the respondent from service was passed on 5th March, 1984. Thereafter an application was made by the appellant for approval under Section 33(2)(b) of the Act before the Tribunal. The Tribunal rejected the prayer for approval on merit as per an order dated 30th July, 1984. The appellant filed a writ petition in the High Court challenging the other passed by the Tribunal. The said writ petition was dismissed by the High Court on 18th December, 1987. Though a writ appeal was filed by the appellant, the writ appeal also was dismissed. Thereupon the appellant filed a Special Leave Petition in the Supreme Court but that also was dismissed. Even after the appellant failed to obtain approval of the Tribunal for the order of dismissal of the respondent, the appellant neither reinstated him in service nor paid him wages. The resultant position was that the respondent remained without work and without wages though he was ready and willing to render service in the establishment. Under such circumstances, the respondent filed Writ Petition No. 1498/1999 in the High Court for reinstatement in service and payment of wages and other consequential benefits. As per judgment dated 4th November, 1999, the writ petition was allowed by a Single Bench of the High Court holding that the petitioner is deemed to have been in service continuously since 5th March; 1984 on wards and is deemed to be discharging his functions as an employee of the respondent and that the petitioner is entitled to all arrears of salary with annual increments and all attendant and concomitant benefits for the said period and till date of reinstatement. The employer was directed to work out the money value of the same and to pay the arrears within 12 weeks from the date of judgment. There was also a further direction to the employer to forthwith reinstate the petitioner in service with attendant and consequential benefits. Against the said judgment of the Single Bench, the employer filed a writ appeal but the same was dismissed by the Division Bench. Thereupon the employer filed the appeal in the Supreme Court by special leave. After considering the earlier judgments of the Supreme Court in 'Strawboard Manufacturing Co. vs.Gobind', 'Punjab Beverages Limited Chandigarh vs. Suresh Chand and another' and 'Tata Iron and Steel Limited vs. S.N. Modak', the Supreme Court held as follows:-
"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 ti 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 obtains orders of approval from the Tribunal. By passing the order of discharge or dismissal to facto relationship of employer and employee may be ended but not the de jure relationship for the 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 petition filed employer and rejects the petition filed under Section 33(2)(b) of the Act on merit the employer is bound to treat the employee as continuing tin service and give him all the consequential benefits. If the employer reuses to grant the benefits to the employee the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis of 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 Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in Section 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideration 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 merit. 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 enquiry initiated against him.
17. In the facts and circumstances of the case it is our view that the High Court committed no illegality in issuing a direction to the appellant for reinstating the respondent and pay him the back wages.
18. The appeal, being devoid of merit, is dismissed with costs, which is assessed at Rs.10,000."
(10) From the above mentioned decisions of the Supreme Court it can be seen that in the case of refusal of approval to the action taken by the employer under Section 33(2)(b) of the Act, the Supreme Court has consistently held that the dismissal or discharge of the workman would be of no effect: that the workmen would be deemed never to have been dismissed or discharged; that the workman would continue to be in service as if there never was any dismissal or discharge by the employer; and that the employer would be bound to consider the workman as his employee and pay him full wages for the period. It is significant that even in M/s Punjab Reverages Pvt. Ltd. case the Supreme Court has held that if permission or approval is refused by the Tribunal, the employer would be precluded from discharging or dismissing the workman and the action of discharge or dismissal already taken would be void. But in the said case the Supreme Court has further held that mere contravention of Section 33(2)(b) of the Act (i.e. the failure to make an application for approval) did not have the effect of rendering the order of dismissal void or inoperative and that it would not entitle the workman to an order of reinstatement. It has to be noted that in Strawboard Manufacturing Vs. Gobind the Supreme Court was not called upon to consider the consequences of the failure of the employer to make an application for approval of his action under Section 33(2)(b) of the Act and hence the Supreme Court did not consider that aspect. In Tata Iron & Steel Company Vs S.N. Modak also the Supreme Court was not considering a case of failure of the employer to make an application for approval of his action under Section 33(2)(b) of the Act. Butin M/s Punjab Beverages Pvt. Ltd. a Bench of three learned Judges was considering a case in which the application for approval of the action taken by the employer under Section 33(2)(b) of the Act was dismissed as withdrawn and thereupon the workman filed an application before the Labour Court under Section 33(c)(2) of the Act for determination and payment of the amount of wages on the ground that in the absence of approval of the Industrial Tribunal the order of dismissal was void and the workman continued to be in service and was entitled to receive his wages. The principal question considered by the Court in that case was: "What is the effect of contravention of Section 33(2)(b) on an order of dismissal passed by an employer in breach of it?" The Court specifically considered whether contravention of Section 33(2)(b) would render the order of dismissal void and in-operative so that the aggrieved workman could say that he continued to be in service and was entitled to receive wages from the employer. The Court held that the mere contravention of Section 33 by the employer would not entitle the workman to an order of reinstatement. The court also held that withdrawal of the application for approval stood on the same footing as if no application under Section 33(2)(b) had been made at all. The Court further held that contravention of Section 33(2)(b) did not have the effect of rendering the order of dismissal void and in-operative and hence the workman was not entitled to maintain the application for determination and payment of wages under Section 33(c)(2).
(11) The legal position emerging from the above mentioned judgments of the Supreme Court may be summarised as follows:-
(a) During the pendency of any proceeding in respect of an industrial dispute, the employer may discharge or punish, whether by dismissal or otherwise, a workman concerned in such dispute, for any misconduct not connected with the dispute.
(b) Such discharge or punishment shall be in accordance with the Statutory Orders applicable to the workman or, where there are no such standing orders, in accordance with the terms of the contract, whether expressed or implied, between him and the workman.
(c) No workman shall be so discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending, for approval of the action taken by the employer.
(d) The condition as to payment of one month's wages is fulfillled when the employer tenders the wages to the workman. If the workman chooses not to accept the wages, he cannot later complain that there was no payment of wages to him by the employer.
(e) The application to be made by the employer under the proviso to Section 33(2)(b) is for approval of the order of discharge or dismissal passed by him and not for prior permission to discharge or dismiss the workman.
(f) The dismissal or discharge, the payment of wages and the making of an application for approval should be simultaneous and part of the same transaction. In other words, when an employer takes action under Section 33(2)(b) by discharging or dismissing a workmen, he should immediately pay the workman or offer to pay the workman wages for one month and also make an application to the Tribunal for approval at the same time.
(g) An order of discharge or dismissal passed under Section 33(2)(b) is incomplete and inchoate until approval is granted by the Tribunal in terms of Section 33(2)(b). The relationship of employer and employee is not effectively terminated by passing the order of discharge or dismissal until approval thereto is accorded by the Tribunal in terms of Section 33(2)(b). By passing the order of discharge or dismissal, de facto relationship of employer and employee is ended but not de jure.
(h) If approval is granted by the Tribunal it takes effect from the date of the order passed by the employer for which approval was sought.
(i) If the Tribunal does not approve the action taken by the employer, the workman would be deemed never to have been dismissed or discharged and would remain in service of the employer. In other words, if the Tribunal does not approve the action of the employer, the dismissal or discharge of the workman would be of no effect and the workman would continue to be in service as if there never was any dismissal or discharge by the employer and the employer will be bound to treat the workman as his employee and pay him full wages for the period.
(j) An application under the proviso to Section 33(2)(b) is a separate and independent proceeding. It is not an interlocutory proceeding in the pending industrial dispute. In spite of the final determination of the main industrial dispute, the application for approval under Section 33(2)(b) will survive and the question about the validity of the order of discharge or dismissal will still have to be tried.
(k) If approval is refused by the Tribunal, the action of discharge or dismissal already taken by the employer would be void.
(l) Even if approval is granted by the Tribunal that would not validate the action of discharge or dismissal. The approval granted by the Tribunal would merely remove the ban under Section 33(2) against the discharge and dismissal of the workman against the discharge and dismissal of the workman and the validity of the order of discharge or dismissal would still be liable to be tested in a reference at the instance of the workman under Section 10 which the workman would be entitled to raise.
(m) Even if the order of discharge or dismissal has been passed in contravention of Section 33 such contravention will not invalidate the order though it will invite penalty under Section 31(1)
(n) Against an order of discharge or dismissal passed in contravention of Section 33, the workman has remedy both under Section 10 and under Section 33A. The order of discharge or dismissal is not rendered void and inoperative by the contravention of Section 33.
(o) The mere contravention of Section 33 by the employer would not entitle the workman to an order of reinstatement, because, the enquiry under Section 33A is not confined to the determination of the question of contravention but even when there was contravention, the Tribunal has to go further and deal with the merits of the order of discharge or dismissal.
(p) A workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. A proceeding under Section 33(c)(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from its employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money proceeds to compute the benefit in terms of money. It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of the Industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act.
(q) The withdrawal of the application under Section 33(2)(b) stands on the same footing as if no application under Section 33(2)(b) has been made at all.
(r) If the employer refuses to reinstate the workman and pay his wages even after the rejection of the application for approval by the Tribunal, the workman is entitled to have his right enforced by filing a petition under Article 226 of the Constitution of India.
(4) In the present case the application filed by respondent No. 2 under Section 33(2)(b) of the Act for approval of the action taken against the petitioner was considered on merits and was dismissed by the Industrial Tribunal refusing to grant approval. The Tribunal held that the applicant-management failed to prove that the workman was guilty of any mis-conduct. The order of the Tribunal refusing to grant approval was not challenged by respondent No. 2 at any time and consequently the said order became final and binding on respondent No. 2. After the dismissal of the application under Section 33(2)(b) of the Act, the petitioner requested respondent No. 2 to reinstate him in service and to pay the back-wages for the period he was kept out of service. However, respondent No. 2 did not reinstate the petitioner in service or pay his wages. In the above circumstances, applying the legal principles stated earlier, the petitioner is entitled to be reinstated in service with full back-wages. However, having regard to the facts and circumstances of this case, I am not inclined to issue any writ of mandamus to respondent No. 1 directing him to initiate prosecution proceedings against respondent No. 2. Hence the writ petition is allowed with the following directions:
(a) Respondent No. 2 shall reinstate the petitioner in service forthwith and shall pay to the petitioner full back-wages for the period he was kept out of service i.e. from 16th May, 1991.
(b) Since the petitioner has been kept out of service for a very long period, respondent No. 2 shall pay to the petitioner 25% of the back-wages within six weeks from today and the balance amount of back-wages shall be paid within a period of six months from today.
(c) Consequent on his reinstatement in service, the petitioner shall be given all benefits as if he continued in service without any break.
The writ petition stand disposed of in the above terms. There will be no order as to costs.
Let copy of this order be given dusty to the learned counsel for the parties.