Bombay High Court
Anil R. Joshi vs Air India Ltd. on 5 December, 2002
Equivalent citations: (2003)ILLJ788BOM
Bench: R.M. Lodha, D.B. Bhosale
JUDGMENT
1. Admit.
2. Mr. C.U. Singh, learned counsel, waives service for the respondent. Paper book dispensed with.
3. Appeal is heard finally at this stage.
4. The appellant, who is the original respondent in Writ Petition No. 2671 of 2002, is aggrieved by the order dated October 21, 2002 passed by the learned single Judge, to the extent the interim relief has been granted while issuing rule in writ petition filed by the present respondent.
5. Ordinarily, we would not have entertained this appeal arising out of the interim order, but taking into consideration the peculiar facts and circumstances of this case and that if the impugned order is allowed to stand as it is, it would occasion in failure of justice to the appellant.
6. The case has chequered history but we need not go into events that had taken place prior to dismissal order dated December 6, 1996. The appellant who was employed with the respondent, was dismissed from service on December 6, 1996. There is no dispute that when the appellant was dismissed from service on December 6, 1996, a reference of general demand NTB 1 of 1990 was pending adjudication before the National Industrial Tribunal, Mumbai and in view thereof, the provisions contained in Section 33(2)(b) of the Industrial Disputes Act, 1947 were attracted. The legal position is no more res integra that the proviso to Section 33(2)(b) contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages, and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction. In other words, the employer when he takes the action under Section 33(2) by dismissing or discharging an employee, he should immediately pay him or offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time. In P.H. Kalyani v. Air France, Calcutta, , the Constitution Bench of the Apex Court held thus at p.p. 681 & 682 of LLJ:
"4. The main point which was raised in this appeal is now concluded by the decision of this Court in Straw Board Mfg. Co. Ltd. v. Govind 1962-I-LLJ-420. This Court has held in that case that the proviso to Section 33(2)(b) contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages, and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction so that the employer when he takes the action under Section 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time."
7. In the case of Tata Iron and Steel Co. v. S.N. Modak , the Apex Court held thus at p. 132 of LLJ:
"...... It is now well settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law."
In paragraph 11 of Tata Iron & Steel Co., the Apex Court further stated thus at p.p. 133 & 134 of 1965-II-LLJ-128:
"......order of dismissal or discharge being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee and that if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and paying his full wages for the period even though the employer may subsequently proceed to terminate the services of the respondent."
8. The law laid down in the aforesaid two judgments has been further reiterated in the recent judgment of the Apex Court in Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. . The Constitution Bench of the Apex Court in Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. in paragraph 14 of the report held thus at p.p. 839 & 840 of LLJ:
"14. Where an application is made under Section 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 as if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 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 remains inchoate as it is subject to approval, of the authority under the said provision, 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 an approval, he is entitled to make a complaint under Section 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straight-away make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get 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 Section 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A and that till such time he should suffer misery of unemployment in spite of the statutory protection given to him by the proviso to Section 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 Section 33(2)(b), Section 33-A 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"
9. It would be thus seen that the order of dismissal passed invoking. Section 33(2)(b) dismissing an employee de facto brings an end to 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.
10. In the present case, it is not in dispute that the application for approval of the action of dismissal was made simultaneously before the concerned Tribunal on December 6, 1996. Initially the Tribunal, by its order dated May 31, 1999, granted approval. The said order dated May 31, 1999 came to be challenged by the appellant by filing Writ Petition No. 1479 of 1999 before this Court. The learned single Judge of this Court, by his order dated July 26, 2001 set aside the order dated May 31, 1999 whereby approval was granted by the Tribunal and remanded the matter back to the Tribunal to dispose of the approval application in terms of the directions contained in the judgment within the time given in the order. Aggrieved by the order of the learned single Judge passed on July 26, 2001, the present respondent (original writ petitioner) filed the appeal. The Division Bench of this Court did not interfere with the order of remand and observed that as regards compliance of the provisions of Section 33(2)(b), the learned single Judge had not expressed any opinion and matter has been remanded back for fresh decision. Accordingly, the Tribunal considered the question of compliance of Section 33(2)(b) and vide its order dated August 12, 2002 held that the employer (respondent herein original writ petitioner) was unable to prove that cheque of Rs. 16,829/- was tendered on December 6, 1996 as per his pleadings and consequently held that approval application cannot be granted and the same was dismissed. Aggrieved thereby, the present respondent preferred writ petition which is pending before the learned single Judge, as rule has been issued therein. On the face of the finding of the Tribunal contained in the order dated August 12, 2002 and the objective and scheme of Section 33(2)(b), we are of the view that even if rule was issued in the matter, case for interim relief as granted was not made out. Once the Tribunal did not grant approval under Section 33(2)(b), the position that emerged was as if no dismissal order was passed against the appellant and the relationship of the employer and employee continues between the appellant and the respondent and the employee shall be deemed to be in service entitling him to all benefits. The proceedings under Section 33(2)(b) cannot be dealt with as proceedings for final adjudication of dispute between the employer and employee and the opinion expressed by the Tribunal while considering the application under Section 33(2)(b) ordinarily must be respected unless same is grossly perverse and absolutely unsustainable. In any case, we do not intend to express any opinion finally in the matter regarding the correctness of the order passed by the National Industrial Tribunal on August 12, 2002 as the same will be considered while hearing writ petition but we are satisfied that if the interim order passed by the learned single Judge staying the order of National Industrial Tribunal is stayed in toto, it would occasion in failure of justice and cause irreparable loss to the appellant and, therefore, the interim relief granted by the learned single Judge deserves to be modified.
11. At this stage, Mr. C.U. Singh, learned counsel for the respondent submitted that this Court may consider grant of monthly wages and allowances to the petitioner in lieu of reinstatement. As regards back-wages, Mr. Singh submitted that since hearing of writ petition has already been expedited by the learned single Judge, it may not be justified to give back wages to the appellant.
12. On the other hand, Mr. Joshi, appellant who appeared in person, submitted that once approval has not been granted, order of dismissal has been rendered non est and the respondent- employer should reinstate him and pay back wages.
13. In our considered view in the light of the discussion aforesaid, following order shall meet the ends of justice:
(i) The employer - present respondent is directed to reinstate the appellant (employee) within one week from today or in lieu thereof pay him monthly wages as would be payable to him on reinstatement.
(ii) The employer-present respondent shall pay a sum of Rs. 5,00,000/- to the appellant - employee towards back wages to the appellant immediately on furnishing an undertaking that in the event of the employer (original writ petitioner) succeeding in the writ petition, he would restitute the said amount to the employer within 15 days from the said decision.
14. Liberty to the parties to apply to the learned single Judge for fixation of date of hearing in writ petition.
15. The order passed by the learned single Judge on October 21, 2002 in relation to the interim relief stands modified in the aforesaid terms.
16. Oral application made by Mr. Singh for stay of this order is rejected.
17. Appeal stands disposed of.