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CASE NO.:

Appeal (civil) 87-88 of 1986

PETITIONER:

JAIPUR ZILA SAH. BHOOMI VIKAS BANK LTD.

Vs.

RESPONDENT:

SHRI RAM GOPAL SHARMA & ORS.

DATE OF JUDGMENT: 17/01/2002

BENCH:

CJI, Syed Shah Mohammed Quadri, N. Santosh Hegde, S.N. Variava & Shivaraj V. Patil

JUDGMENT:

Shivaraj V. Patil J.

From the Order of Reference made in Jaipur

Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal

Sharma and another [(1994) 6 SCC 522], the

question that arises for consideration is:

"If the approval is not granted

under Section 33(2)(b) of the

Industrial Disputes Act, 1947,

whether the order of dismissal

becomes ineffective from the date

it was passed or from the date of

non-approval of the order of

dismissal and whether failure to

make application under Section

33(2)(b) would not render the order

of dismissal inoperative?"

Finding conflict of views expressed by

Benches of three learned Judges of this court on

the question, the Reference is made.

The two Benches consisting of three learned

Judges in (1) Strawboard Manufacturing Co. vs.

Gobind [1962 Supp. (3) SCR 618] and (2) Tata Iron

& Steel Co. Ltd. vs. S.N. Modak [1965 (3) SCR 411]

have taken the view that if the approval is not

granted under Section 33(2)(b) of the Industrial

Disputes Act, 1947 (for short 'the Act'), the

order of dismissal becomes ineffective from the

date it was passed and, therefore, the employee

becomes entitled to wages from the date of

dismissal to the date of disapproval of the

application. Another Bench of three learned

Judges in Punjab Beverages Pvt. Ltd., Chandirarh

vs. Suresh Chand & Anr. [1978 (3) SCR 370] has

expressed the contrary view that non-approval of

the order of dismissal or failure to make

application under Section 33(2)(b) would not

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render the order of dismissal inoperative; 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 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 may be stated here itself

that there was no reference in this decision to

the two earlier decisions aforementioned.

A Bench of two learned Judge in S.Ganapathi &

Ors. vs. Air India & Anr. [JT 1993 (4) SC 10] has

followed the view taken in Strawboard (supra) and

Tata Iron & Steel Co. (supra) and has held that

the order of dismissal passed without the approval

under Section 33(2)(b) remains in inchoate

condition but this decision has not noticed the

decision in Punjab Beverages (supra).

Rival submissions were made on behalf of the

parties in support of the respective contentions

in the light of aforementioned decisions and

referring to and relying on the provisions

contained in Sections 31, 33 and 33A of the Act.

Answer to the question on which conflicting

decisions are rendered, as noticed above, depends

on a fair reading and proper interpretation of

Section 33(2)(b) of the Act. Prior to the

amendment of 1956, provision contained in Section

33 corresponded to the present Section 33(1) only.

The object behind enacting Section 33, as it stood

before it was amended in 1956, was to allow

continuance of industrial proceedings pending

before any authority/court/tribunal prescribed by

the Act in a peaceful atmosphere undisturbed by

any other industrial dispute. In course of time,

it was felt that unamended Section 33 was too

stringent for it placed a total ban on the right

of the employer to make any alteration in

conditions of service or to make any order of

discharge or dismissal even in cases where such

alteration in conditions of service or passing of

an order of dismissal or discharge, was not in any

manner connected with the dispute pending before

an industrial authority. It appears, therefore,

that Section 33 was amended in 1956 permitting the

employer to make changes in conditions of service

or to discharge or dismiss an employee in relation

to matters not connected with the pending

industrial dispute. At the same time, it seems to

have been felt that there was need to provide some

safeguards for a workman who may be discharged or

dismissed during the pendency of a dispute on

account of some matter unconnected with the

dispute. This position is clear by reading re-

drafted expanded Section 33 in 1956 containing

five sub-sections. For the present purpose, we

are concerned with the proviso to Section

33(2)(b). The material and relevant portion of

Section 33 reads:-

"Conditions of service, etc. to

remain unchanged under certain

circumstances during pendency of

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proceedings. -- (1)..............

(2) During the pendency of any

such proceeding in respect of an

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 the

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 by the

employer."

The proviso expressly and specifically states

that no 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 by the employer.

It is clear from the proviso to Section 33(2)(b)

that the employer may pass an order of dismissal

or discharge and at the same time make an

application for approval of the action taken by

him. In the Strawboard case (supra) dealing with

the contention that if the employer dismisses or

discharges a workman and then applies for approval

of the action taken and the tribunal refuses to

approve the action, the workman would be left with

no remedy as there is no provision for

reinstatement in Section 33(2), it is held that

"if the tribunal does not approve of 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".

A Constitution Bench of this Court in the

case of P.H. Kalyani vs. M/s. Air France Calcutta

[1964 (2) SCR 104] referring to Strawboard has

observed thus:-

"The main point which was raised

in this appeal is now concluded by

the decision of this Court in the

Straw Board Manufacturing Co.

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Limited, Saharanpur vs. Govind.

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. It

was further held that "the

employer's conduct should show that

the three things contemplated under

the proviso, are parts of the same

transaction; and the question

whether the application was made as

part of the same transaction or at

the same time when the action was

taken would be a question of fact

and will depend upon the

circumstances of each case."

In the case of Tata Iron and Steel Co. (supra)

it is reiterated and stated thus:-

"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 the

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

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law."

In the same judgment, it is also stated that

"order of dismissal or discharge being incomplete

and inchoate until the approval is obtained,

cannot effectively terminate the relationship of

the employer and 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".

Per contra, in Punjab Beverages (supra), it

is held that an order dismissing the workman

contravening Section 33(2)(b) shall not be void

and inoperative and hence the workman was not

entitled to maintain the application for

determination and payment of wages under Section

33(C)(2); a workman can proceed under Section

33(C)(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; rejecting a

contention that the workman would be left without

any remedy on the interpretation that

contravention of Section 33 does not invalidate an

order of discharge or dismissal, it is stated that

if the employer contravenes Section 33, he would

be liable to punishment under Section 31(1) and

moreover the aggrieved workman can act under

Section 10 or he can make a complaint to the

tribunal under Section 33A; it was held that the

withdrawal of the application made under Section

33(2)(b) stands on the same footing as if no

application thereunder has been made; if there was

no decision on merit of the said application, it

cannot be said that the approval has been refused

by the Tribunal.

The facts of the said case are: the workman

was dismissed from service holding him guilty

after inquiry by an order dated 23rd December,

1974. Since an industrial dispute was pending at

that time, in view of the provisions contained in

Section 33(2)(b), the employer approached the

Industrial Tribunal at Chandigarh before which the

industrial dispute was pending for approval of the

action taken. However, that application was

dismissed as withdrawn on 4th September, 1976.

Then the workman demanded full wages from the

employer from the date of his suspension till the

date of demand contending that the action of the

employer dismissing him from service was not

approved by the Tribunal; he continued to be in

service and was entitled to all the emoluments.

Since the employer did not respond, he made an

application to the Labour Court under Section

33(C)(2) for determination and payment of the

amount of wages due to him. The employer resisted

the said application inter alia on the ground that

the application under Section 33(2)(b) having been

withdrawn, the effect of which was as if no

application had been made at all; even though

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there was contravention of Section 33(2)(b) in not

making an application seeking approval, it did not

render the order of dismissal void ab initio and

it was merely illegal and unless it is set aside

in an appropriate proceeding taken by the employee

under Section 33A or in a reference under Section

10, the Labour Court had no jurisdiction under

Section 33 (C)(2) to direct payment of wages to

the first respondent on the basis as if he

continued in service. The Labour Court rejected

this contention and allowed the application of the

workman filed under Section 33(C)(2). This Court,

allowing the appeals by special leave, held that

the employer contravened Section 33(2)(b) in

dismissing the workman but such contravention 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 under Section 33(C)(2). However, the

amounts ordered to be paid by the Labour Court

were treated as compensation instead of wages to

meet the demands of social justice. The reasons

recorded in taking such a view are: (i) Section 33

in both its limbs undoubtedly uses mandatory

language and Section 31(1) makes it penal for the

employer to commit a breach of the provisions of

Section 33 and, therefore, if Section 33 stood

alone, it might lend itself to the construction

that any action by way of discharge or dismissal

taken against workman would be void if it is in

contravention of Section 33. But Section 33

cannot be read in isolation, for the intention of

the Legislature has to be gathered not from the

one provision but from the whole of the statute.

If Sections 33 and 33A are read together, it is

clear that legislative intent shall not invalidate

an order of discharge or dismissal passed in

contravention of Section 33 despite the mandatory

language implied in the Section and the penal

provision enacted in Section 31(1). (ii) The

mere contravention of Section 33 by the employer

will not entitle the workman to an order of

reinstatement because inquiry under Section 33A is

not confined only to the determination as to the

contravention of Section 33, but even if such

contravention is proved, the Tribunal has to go

further and deal also with the merits of the order

of discharge or dismissal. (iii) If the

contravention of Section 33 were construed as

having invalidating effect of the order of

discharge or dismissal, Section 33A would be

rendered meaningless and futile, because in that

event the workman would invariably prefer to make

an application straightaway under Section 33(C)(2)

even before adjudication whether the order of

discharge or dismissal is void and inoperative.

(iv) The contention of the workman that in the

absence of approval for action taken under Section

33(2)(b), the order of dismissal was inoperative,

was rejected on the ground that withdrawal of the

application made for approval stood on the same

footing as if no application under Section

33(2)(b) has been made at all; since there was no

application made under Section 33(2)(b), the

Tribunal had no occasion to apply its mind to

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consider whether the dismissal of workman amounted

to victimization or unfair labour practice.

Hence, it was difficult to say that the approval

has been refused by the Tribunal.

The proviso to Section 33(2)(b), as can be

seen from its very unambiguous and clear language,

is mandatory. This apart, from the object of

Section 33 and in the context of the proviso to

Section 33(2)(b), it is obvious that the

conditions contained in the said proviso are to be

essentially complied with. Further any employer

who contravenes the provisions of Section 33

invites a punishment under S.31(1) with

imprisonment for a term which may extend to six

months or with fine which may extend to Rs.1000/-

or with both. This penal provision is again a

pointer of the mandatory nature of the proviso to

comply with the conditions stated therein. To put

it in other way, the said conditions being

mandatory, are to be satisfied if an order of

discharge or dismissal passed under Section

33(2)(b) is to be operative. If an employer

desires to take benefit of the said provision for

passing an order of discharge or dismissal of an

employee, he has also to take the burden of

discharging the statutory obligation placed on him

in the said proviso. Taking a contrary view that

an order of discharge or dismissal passed by an

employer in contravention of the mandatory

conditions contained in the proviso does not

render such an order inoperative or void, defeats

the very purpose of the proviso and it becomes

meaningless. It is well-settled rule of

interpretation that no part of statute shall be

construed as unnecessary or superfluous. The

proviso cannot be diluted or disobeyed by an

employer. He cannot disobey the mandatory

provision and then say that the order of discharge

or dismissal made in contravention of Section

33(2)(b) is not void or inoperative. He cannot be

permitted to take advantage of his own wrong. The

interpretation of statute must be such that it

should advance the legislative intent and serve

the purpose for which it is made rather than to

frustrate it. The proviso to Section 33(2)(b)

affords protection to a workman to safeguard his

interest and it is a shield against victimization

and unfair labour practice by the employer during

the pendency of industrial dispute when the

relationship between them are already strained.

An employer cannot be permitted to use the

provision of Section 33(2)(b) to ease out a

workman without complying with the conditions

contained in the said proviso for any alleged

misconduct said to be unconnected with the already

pending industrial dispute. The protection

afforded to a workman under the said provision

cannot be taken away. If it is to be held that an

order of discharge or dismissal passed by the

employer without complying with the requirements

of the said proviso is not void or inoperative,

the employer may with impunity discharge or

dismiss a workman.

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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 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 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 33A challenging the order granting

approval on any of the grounds available to him.

Section 33A is available only to an employee and

is intended to save his time and trouble inasmuch

as he can straightaway 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 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 Section 33A and that the order of dismissal

or discharge becomes invalid or void only when it

is set aside under Section 33A and that till such

time he should suffer misery of unemployment in

spite of 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 33A 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.

The view that when no application is made or

the one made is withdrawn, there is no order of

refusal of such application on merit and as such

the order of dismissal or discharge does not

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become void or inoperative unless such an order is

set aside under Section 33A, cannot be accepted.

In our view, not making an application under

Section 33(2)(b) seeking approval or withdrawing

an application once made before any order is made

thereon, is a clear case of contravention of the

proviso to Section 33(2)(b). An employer who does

not make an application under Section 33(2)(b) or

withdraws the one made, cannot be rewarded by

relieving him of the statutory obligation created

on him to make such an application. If it is so

done, he will be happier or more comfortable than

an employer who obeys the command of law and makes

an application inviting scrutiny of the authority

in the matter of granting approval of the action

taken by him. Adherence to and obedience of law

should be obvious and necessary in a system

governed by rule of law. An employer by design

can avoid to make an application after dismissing

or discharging an employee or file it and withdraw

before any order is passed on it, on its merits,

to take a position that such order is not

inoperative or void till it is set aside under

Section 33A notwithstanding the contravention of

Section 33(2)(b) proviso, driving the employee to

have recourse to one or more proceeding by making

a complaint under Section 33A or to raise another

industrial dispute or to make a complaint under

Section 31(1). Such an approach destroys the

protection specifically and expressly given to an

employee under the said proviso as against

possible victimization, unfair labour practice or

harassment because of pendency of industrial

dispute so that an employee can be saved from

hardship of unemployment.

Section 31 speaks of penalty in respect of

the offences stated therein. This provision is

not intended to give any remedy to an aggrieved

employee. It is only to punish the offender. The

argument that Section 31 provides a remedy to an

employee for contravention of Section 33 is

unacceptable. Merely because penal provision is

available or a workman has a further remedy under

Section 33A to challenge the approval granted, it

cannot be said that the order of discharge or

dismissal does not become inoperative or invalid

unless set aside under Section 33A. There is

nothing in Sections 31, 33 and 33A to suggest

otherwise even reading them together in the

context. These Sections are intended to serve

different purposes.

As already noticed above, the Constitution

Bench of this Court in P.H. Kalyani vs. M/s. Air

France Calcutta has referred to Strawboard

Manufacturing Co. vs. Gobind and approved the view

taken in the said decision as regards the

requirements of the proviso to Section 33(2)(b).

Unfortunately in Punjab Beverages Pvt. Ltd. vs.

Suresh Chand, the earlier two cases of Strabboard

and Tata Iron & Steel Co. were not noticed

touching the question. It is true that in

S.Ganapathi & others vs. Air India and another,

there is no reference to Punjab Beverages. But

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the view taken in two earlier decisions of

Strabboard and Tata Iron & Steel Co. is followed

on the question and rightly so in our opinion.

In view of what is stated above, we

respectfully agree with and endorse the view taken

in the case of Strabboard and Tata Iron & Steel

Co. and further state that the view expressed in

Punjab Beverages on the question is not the

correct view. The question raised in the

beginning of this judgment is answered

accordingly.

In these appeals, respondent No. 1 was

employed as Clerk-cum-Cashier with the appellant.

He was dismissed from service. As certain

proceedings were pending before the Industrial

Tribunal, Jaipur, an application seeking approval

of the Tribunal for the said dismissal was

submitted by the appellant before the Tribunal

under Section 33(2)(b). The said application was

contested on various grounds by the respondent

including that the appellant-Bank had failed to

comply with the provisions of Section 33(2)(b) as

salary for one month was not paid. The Tribunal,

on facts, found that the appellant failed to

comply with the provisions of Section 33(2)(b) and

in that view dismissed the application. The

appellant challenged the order of the Tribunal

before the High Court in writ petition No. 666 of

1980. The same was dismissed concurring with the

order passed by the Tribunal.

In the view we have taken, the contentions

raised in these appeals do not help the appellant.

We find no merit in these appeals. Consequently,

these are dismissed. No costs.

...........................CJI

............................J.

[SYED SHAH MOHAMMED QUADRI]

............................J.

[N.SANTOSH HEGDE]

............................J.

[S.N.VARIAVA]

............................J.

[SHIVARAJ V. PATIL]

January 17, 2002.