Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4560 OF 2008

Rajasthan State Road Transport Corporation

and Another ... Appellant (s)

Versus

Satya Prakash ... Respondent

(s)

J U D G M E N T

H.L. Gokhale J.

This appeal seeks to challenge the judgment and

order dated 21.10.2005 rendered by a Division Bench of the

Rajasthan High Court in D.B. Special Appeal (Writ) No.1093 of

2005, dismissing the appeal filed by the appellants against

the judgment and order dated 19

th

July, 2005, rendered by a

learned Single Judge of that High Court in Civil Writ Petition

No.3933 of 2009, by which judgment the award dated

Page 2 3.12.2002 rendered by the Industrial Tribunal, Jaipur in Case

No. I.T. No.41 of 1994 was upheld.

2. Mr. Puneet Jain, learned counsel has appeared in

support of this appeal and Mr. Shovan Mishra, learned counsel

for the respondent.

The facts leading to this appeal are as follows:-

3. The respondent was working as a bus conductor on

daily wages under the appellant-Rajasthan State Road

Transport Corporation (“S.T. Corporation” for short) from 8

th

May, 1987 with a daily wage of Rs.20/- per day. His

appointment was for a period of three months only though it

appears that it was continued for a little while more. It was

alleged that during this short period also there were instances

of his misbehaviour with the staff, of using abusive language,

and coming to office in drunken state. An F.I.R. was also

lodged against him. It so transpired that when he was on

duty on 10

th

October, 1987, on the route from Sirohi to

Jodhpur, his bus was checked by a flying squad led by the

Judicial Magistrate, Transport. It was found that there were

20 passengers traveling in that bus. The respondent had

2

Page 3 collected the fare from all of them. However, three and half

tickets were found to have been issued less. In view thereof a

Departmental enquiry was conducted against him. The

respondent did not appear therein despite notices. Appellant

led the necessary evidence, and the inquiry officer held that

the charge was proved. The respondent was, therefore,

directed to be dismissed from service by the order passed by

the Divisional Manager, Jodhpur with effect from 20

th

November, 1987.

4. The respondent felt aggrieved by his dismissal and

filed a Civil Suit before the Additional Civil Judge, Junior

Division, Jaipur City being Civil Suit No.1572 of 1989. The first

issue raised in that suit was whether the termination of the

respondent was liable to be set aside for being bad in law for

being and against the principles of natural justice. The Court

noted that the respondent was issued notices to remain

present in inquiry, first on 27.10.1987, and on 6.11.1987, but

he chose not to remain present. The Court, therefore, held

that it becomes clear that the respondent was given sufficient

opportunity of being heard, but he himself did not remain

3

Page 4 present before the competent authority, and the inquiry

officer had no other option except to proceed ex-parte. The

Civil Court also noted that the respondent had accepted the

fact in his statement that when the bus was checked on

10.10.1987, the flying squad had made necessary remark on

the way-bill but he had refused to sign it. The Court observed

that this conduct of the respondent proved that he did not

want the truth of the incident to be brought on record. The

Civil Court, therefore, decided the first issue in favour of the

appellants. The second issue raised was with respect to the

jurisdiction of the Civil Court. The appellant had contended in

their written statement that since the concerned dispute was

an industrial dispute, the Civil Suit was not maintainable. The

issue was however not decided on that count. It was decided

in favour of the appellants on another basis viz. that the Civil

Court in Jaipur did not have the jurisdiction for the reason that

the cause of action had arisen in Jodhpur since the order of

the Divisional Manager was passed in Jodhpur. The suit,

therefore, came to be dismissed by its judgment and order

dated 24.11.1994.

4

Page 5 5. At that time, another industrial dispute concerning

the workmen of the appellant-S.T. Corporation was pending

determination before the Labour Court/Tribunal being I.T.

No.92 of 1986 concerning the demands of the workman. The

respondent, therefore, filed a Complaint before the Industrial

Tribunal of Rajasthan at Jaipur under Section 33A of the

Industrial Disputes Act, 1947 (“I.D. Act” for short) which was

numbered as case No. I.T. No.41 of 1994. The respondent

however did not disclose that he had filed a civil suit earlier

which had come to be dismissed. The respondent took the

plea that the appellant was expected to apply for approval of

its action to the Tribunal/Labour Court concerned under

Section 33 (2) (b) of the I.D. Act. The appellant had not done

that, and therefore the termination of his services was bad in

law.

6.(i)The learned Tribunal, which heard the Complaint,

held that the S.T. Corporation had not held a departmental

inquiry as contemplated under the standing orders. This was

despite the evidence of the appellant in the Tribunal that the

respondent did not remain present in the inquiry although

5

Page 6 notices of personal hearing were served on him. The

Appellant was however given the opportunity to prove the

misconduct in the Tribunal. The appellant filed the affidavit of

the officers concerned and they were cross-examined. The

respondent also produced his affidavit and was cross-

examined. The Tribunal examined the material on record. It

noted that the corporation witness Purshottam Das Purohit, a

member of the checking squad stated that there were 20

passengers in the bus out of whom 3½ passengers were

found to be without tickets. The respondent had already

collected the amount of fare for all of them. Accordingly, Mr.

Purohit had recorded his remarks on the way-bill. Signatures

of two witnesses and also of the bus driver were taken

thereon. He further stated that the respondent had refused to

sign on the way-bill. The statement of one of the passengers

without ticket viz. one Bhanwar Lal Goyal was recorded and

his signature was taken. The statements of the 3½

passengers were also recorded at the site.

(ii)In paragraph 9 the Tribunal referred to the affidavit of

the respondent. He accepted that he had no enmity with the

6

Page 7 inspecting team. He accepted that inspection of the bus had

been done on that date. He however, denied that 3½ tickets

were not issued. The Tribunal however, noted that he did not

produce any specific evidence to prove his statement.

Therefore, at the end of paragraph 9 of the award the Tribunal

concluded in the following words:-

“Therefore from the evidence of the

Corporation the charge of carrying 3 ½

passengers without ticket by the Applicant during

the course of the inspection is certainly proved

and from whom he had already recovered the fare

amount.”

7. Thus as seen from above, the Tribunal in terms

held in paragraph 9 of its judgment that the charge of not

issuing three and a half tickets, despite receiving the fare,

was certainly proved. The Tribunal however held that the fact

remained that at the same time the provisions of Section 33

(2) (b) of the Act had not been complied with, which had led

to the filing of the Complaint. Therefore, by its award dated

3.12.2012, it directed reinstatement of the respondent though

without backwages but with continuity of service. This was

after referring to the law laid down by a Constitution Bench of

this Court in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd.

7

Page 8 vs. Ram Gopal Sharma reported in 2002 (2) SCC 244, that

non compliance with Section 33 (2) (b) will make the

termination inoperative. This order has been left undisturbed

by a learned Single Judge of the High Court, as well as by the

Division Bench. Hence, this appeal. At this stage, we may

note that neither in the Tribunal nor before the High Court did

the appellant raise any submission based on the earlier

decision of the Civil Court.

Submissions of the rival parties and their

consideration:-

8.(i)The appellant is aggrieved by the relief granted to

the respondent on account of the breach of Section 33 (2) (b)

of the I.D. Act, since the Tribunal had otherwise held that the

misconduct had been proved. Learned counsel for the

appellant Mr. Puneet Jain, drew our attention to the judgment

of this Court in the case of The Bhavnagar Municipality vs.

Alibhai Karimbhai and Ors., reported in 1977 (2) SCC

350, wherein this Court has held in paragraph 15 that when a

Complaint under Section 33A is filed, after finding out whether

there is a breach of the provision of Section 33, the Labour

8

Page 9 Court or Tribunal is supposed to treat the Complaint under

Section 33A in the same manner as in the case of a Reference

under Section 10 of the Act. In the present matter also both

the parties were allowed to lead evidence on the merits of the

controversy before the Tribunal, and then the finding was

arrived at as in a Reference. The submission is that

thereafter the workman cannot be allowed to raise the plea of

the initial breach of Section 33 (2) (b) of the Act.

(ii) Alternatively, it is submitted that it is essentially a case

of technical breach of Section 33, and in another judgment in

the case of United Bank of India vs. Sidhartha

Chakraborty, reported in 2007 (7) SCC 670, this Court has

granted liberty to the employer in the event of such a breach

to take action in terms of Section 33 (2) (b) of the Act.

Therefore, it is submitted that if the initial failure to apply for

approval is yet to be held against the appellant, such a liberty

be granted to the appellant in the present case also.

9. Learned counsel for the respondent Mr. Mishra, on

the other hand submits that the fact remains that in the

instant case the appellant had not complied with Section 33

9

Page 10 (2) (b) of the Act and, therefore, the consequence has to

follow, and that is the view taken by the Industrial Tribunal,

which has been confirmed by the learned Single Judge as well

as the Division Bench of the High Court, and that this Court

should not interfere therewith. He submits that in case if any

liberty is given to the appellant to apply under Section 33 (2)

(b) at this stage, the respondent be also given opportunity to

defend.

10. We have noted the submissions of both the counsel.

In the instant case, the Tribunal while deciding the Complaint

has gone into the merits of the case as in a Reference, given

full opportunity to the parties, and then held in paragraphs 8

and 9 of its award dated 3.12.2002 that the charge of not

issuing three and a half tickets, despite collecting the fare,

was proved. This finding is not disturbed by the High Court.

The Civil Court has also given the same finding by its earlier

judgment and order dated 24.11.1994, which is not

challenged by the respondent. Both these proceedings were

initiated by the respondent/workman and resulted into a

decision against him on merit. The decision of the Civil Court

1

Page 11 was however not placed before the Industrial Tribunal either

by the respondent or by the appellant. The question which

arises for our consideration on this background is as to

whether the Tribunal was right in awarding reinstatement with

continuity of service in the proceeding under Section 33A of

the Act which arose out of the initial breach of Section 33 (2)

(b) of the Act by the respondent.

11. In this behalf, we must note that in Jaipur Zila

Sahkari Bhoomi Vikas Bank Ltd. (supra), the Constitution

Bench was concerned with the interpretation of Section 33 (2)

(b) of the Act in the context of a Reference arising out of

conflicting judgments thereon. Two Benches of this Court

consisting of three learned Judges in (1) Strawboard mfg.

Co. vs. Govind (reported in AIR 1962 SC 1500) and (2)

Tata Iron & Steel Co. Ltd. vs. S.N. Modak ( reported in

AIR 1966 SC 380) had taken the view that if the approval is

not granted under Section 33 (2) (b) of the Act, the order of

dismissal becomes ineffective from the date it was passed.

Another Bench of three learned Judges in Punjab Beverages

(P) Ltd. vs. Suresh Chand [reported in 1978 (2) SCC 144]

1

Page 12 had expressed a contrary view. The question referred for

consideration of the Constitution Bench was as follows:-

“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.?”

12. While considering the issue, the Court noted in

paragraph 6 of the judgment that the object behind enacting

Section 33 as it stood prior to its amendment 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 the un-amended

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

1

Page 13 authority. Section 33 was, therefore, amended in 1956 to

permit the employer to make changes in conditions of service,

or to discharge or dismiss employees in relation to matters

not connected with the pending industrial dispute. At the

same time, it was also felt necessary that some safeguards

must be simultaneously provided for the workmen, and

therefore a provision was made that the employer must make

an application for prior permission if the proposed change in

the service conditions, or the proposed dismissal/discharge is

in connection with a pending dispute. In other cases where

there is no such connection, and where the workman is to be

discharged or dismissed, (i) firstly there has to be an order of

discharge or dismissal, and then it was laid down in the

proviso to Section 33 (2) (b) that, (ii) the concerned workman

has to be paid wages for one month, and (iii) an application is

to be made to the authority concerned before which the

earlier proceeding is pending, for approval of the action taken

by the employer.

13. In paragraph 13 of the judgment this Court noted

that the contravention of Section 33 invites a punishment

1

Page 14 under Section 31 (1) of the Act. Hence, the proviso to Section

33 (2) (b) cannot be diluted or disobeyed by an employer. It

is a mandatory provision made to afford a protection to the

workmen to safeguard their interest, and it is a shield against

victimization and unfair labour practice by an employer during

the pendency of an industrial dispute. Therefore, the order

made without complying with the said proviso is void and

inoperative.

14. Having noted this, what is observed by this Court in

paragraph 14 of the judgment is relevant for our purpose.

The relevant part of this para reads as follows:-

“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

1

Page 15 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……..”

(emphasis

supplied)

15. The same paragraph lays down that if a workman is

aggrieved by the approval, his remedy is to file a Complaint

under Section 33A of the Act. This section has a definite

purpose to serve viz. to provide a direct access to the Tribunal

and thereby a speedy relief, instead of seeking the time

consuming procedure of seeking a Reference under Section

10 of the Act. In that complaint, however, the employee will

succeed only if he establishes that the misconduct is not

proved and not otherwise, and if he does succeed in so

establishing, it will relate back to the date on which the

dismissal order was passed by the employer as if it was

inoperative. This remedy is independent of the penal

consequences which the employer may have to face under

Section 31 (1) of the Act if prosecuted for the breach of

Section 33. This Section 33A reads as follows:-

1

Page 16 “33A. Special provision for adjudication

as to whether conditions of service, etc.,

changed during pendency of proceeding. -

Where an employer contravenes the provisions of

section 33 during the pendency of proceedings

[before a conciliation officer, Board, an arbitrator,

Labour Court, Tribunal or National Tribunal] any

employee aggrieved by such contravention, may

make a complaint in writing, [ in the prescribed

manner,-

(a) to such conciliation officer or Board,

and the conciliation officer or Board shall take

such compliant into account in mediating in,

and promoting the settlement of, such

industrial dispute; and

(b) to such arbitrator, Labour Court,

Tribunal or National Tribunal and on receipt of

such complaint, the arbitrator, Labour Court,

Tribunal or National Tribunal, as the case

may be, shall adjudicate upon the

complaint as if it were a dispute referred

to or pending before it, in accordance with

the provisions of this Act and shall submit

his or its award to the appropriate

Government and the provisions of this Act

shall apply accordingly.”

(emphasis

supplied)

As can be seen, sub-section (b) of Section 33A clearly lays

down that when such a Complaint is made, the Tribunal shall

adjudicate upon the Complaint as if it were a dispute referred

to it, and shall submit his or its award to the appropriate

Government, and the provisions of this Act shall apply

1

Page 17 accordingly. Thus, in that complaint, the employee will have

to prove his case on merits.

16. The purpose behind enacting Section 33A and the

scope thereof was succinctly explained by Gajendrakar J (as

he then was), in a judgment by a bench of three judges in

Punjab National Bank Ltd. vs. All India Punjab National

Bank Employees Federation & Anr . reported in AIR 1960

SC 160. In paragraph 31 thereof the Court noted that the

Trade Union movement in the country had complained that

the remedy for asking for a reference under Section 10

involved delay, and left the redress of the grievance of the

employees entirely in the discretion of the appropriate

Government; because even in cases of contravention of

Section 33 the appropriate Government was not bound to

refer the dispute under Section 10. That is why Section 33A

was enacted to make a special provision for adjudication as to

whether Section 33 has been contravened. This section

enables an employee aggrieved by such contravention to

make a complaint in writing in the prescribed manner to the

tribunal and it adds that on receipt of such complaint the

1

Page 18 tribunal shall adjudicate upon it as if it is a dispute referred to

it in accordance with the provisions of the Act. Thus by this

section the aggrieved employee is given a right to move the

tribunal without having to take recourse to Section 10 of the

Act.

17. Thereafter while dealing with the scope of the

Section 33A, the court surveyed the judgments then holding

the field, and held at the end of paragraph 33 in the following

words:-

“33…… Thus there can be no doubt that

in an enquiry under S. 33A the employee

would not succeed in obtaining an order of

reinstatement merely by proving

contravention of S. 33 by the employer. After

such contravention is proved it would still be open

to the employer to justify the impugned dismissal

on the merits. That is a part of the dispute which

the tribunal has to consider because the complaint

made by the employee is treated as an industrial

dispute and all the relevant aspects of the said

dispute fall to be considered under S. 33A.

Therefore, we cannot accede to the

argument that the enquiry under S. 33A is

confined only to the determination of the

question as to whether the alleged

contravention by the employer of the

provisions of S. 33 has been proved or not. ”

(emphasis

supplied)

1

Page 19 This judgment has been referred to, and the proposition has

been once again reiterated by a bench of three Judges in para

7 of Delhi Cloth and General Mills Co. Ltd. vs.

Rameshwar Dayal reported in AIR 1961 SC 689.

18. This legal position has been reiterated in the

judgment of the Constitution Bench in P.H. Kalyani vs. M/s

Air France Calcutta reported in AIR 1963 SC 1756 which

has been quoted with approval in paragraph 17 of Jaipur Zila

Sahkari Bhoomi Vikas Bank Ltd. (supra). In that matter, the

respondent employer had applied under Section 33 (2) (b),

but the workman had also filed a Compliant under Section

33A which was heard like a Reference. Evidence was led

therein by the parties, and on its own appraisal of the

evidence the Labour Court had held that the dismissal was

justified. This Court accepted that finding, and it was held

that the approval when granted will relate back to the date

when the order of dismissal was passed. On the other hand, if

the employer fails to prove the misconduct, the order of

dismissal will become ineffective from the date when the

dismissal order was passed by the employee. This legal

1

Page 20 position has been reiterated from time to time [see for

instance Lalla Ram vs. D.C.M. Chemicals Works Ltd.

reported in 1978 (3) SCC 1]. In Jaipur Zila Sahakari Bhoomi

Vikas Bank (supra) the Constitution Bench endorsed the view

taken in Strawboard (supra) and Tata Iron & Steel Co. (supra)

and held that the view expressed in Punjab Beverages (supra)

was not correct.

19. In the present case, the Tribunal accepted that

during this very short span of service as a daily wager the

respondent had committed the misconduct which had been

duly proved. Having held so, the Tribunal was expected to

dismiss the Complaint filed by the respondent. It could not

have passed the order of reinstatement with continuity in

service in favour of the respondent on the basis that initially

the appellant had committed a breach of Section 33 (2) (b) of

the Act. It is true that the appellant had not applied for the

necessary approval as required under that section. That is

why the Complaint was filed by the respondent under Section

33A of the Act. That Complaint having been filed, it was

adjudicated like a reference as required by the statute. The

2

Page 21 same having been done, and the misconduct having been

held to have been proved, now there is no question to hold

that the termination shall still continue to be void and

inoperative. The de jure relationship of employer and

employee would come to an end with effect from the date of

the order of dismissal passed by the appellant. In the facts of

the present case, when the respondent had indulged into a

misconduct within a very short span of service which had

been duly proved, there was no occasion to pass the award of

reinstatement with continuity in service. The learned Single

Judge of the High Court as well as the Division Bench have

fallen in the same error in upholding the order of the Tribunal.

20. Since the Complaint was decided like a reference,

and since we are holding that it ought to have been

dismissed, we are not required to go into the alternative

submission that the appellant be given further liberty, to de

novo apply under Section 33 (2) (b) on the lines of the

judgment in United Bank of India (supra). However, we make

it clear that once the Complaint under Section 33A is decided,

there is no question of granting any such liberty. Besides, we

2

Page 22 would like to observe that such liberty was given in the case

of United Bank of India (supra) “considering the background

facts of the case” as stated in paragraph 11 of the said

judgment.

21. In the instant case, the respondent was employed

as a daily rated employee for a period of three months, and

thereafter was continued for a few months more. There was

no question of his being in service even for one continuous

year, since he had obviously not completed 240 days of

service. During this short span of service there were various

allegations against him. The appellants could have

discontinued him from service as it is, since he was a daily

wager. However, since there was an allegation of

misconduct, they afforded him an opportunity to explain. At

the time of the incident of checking of the bus, the

respondent did not sign the way-bill, nor did he attend the

inquiry, wherein, he was called to explain his conduct. This

led to his dismissal from service. He chose to file a Civil Suit

in a wrong Court at Jaipur. The Civil Court which heard the

suit held that the misconduct had been proved, and the

2

Page 23 termination could not be faulted. However, the very Court

held that it did not have the territorial jurisdiction to decide

the suit. Therefore one may keep aside the finding of that

Court concerning the misconduct. However, when the

respondent filed the Complaint under Section 33A, the

Industrial Tribunal also returned the same finding in

paragraphs 8 and 9 of its award that the appellant had proved

the misconduct. This being the position, this finding will relate

back and the employer employee relationship between the

parties will be deemed to have ended from the date of the

dismissal order passed by the appellant.

22. For the reasons stated above, this Civil Appeal is

allowed. We hereby set-aside the judgment and order

rendered by the Division Bench of the Rajasthan High Court in

D.B. Special Appeal (Writ) No.1093 of 2005, dismissing the

appeal filed by the appellants against the judgment and order

dated 19

th

July, 2005, rendered by a learned Single Judge of

that High Court in Civil Writ Petition No. 3933 of 2009,

confirming the award dated 3.12.2002 rendered by the

Industrial Tribunal, Jaipur in Case No. I.T. No.41 of 1994. All

2

Page 24 the three judgments, except the finding in paragraph 8 and 9

of the Industrial Tribunal, Jaipur in Case No. I.T. No.41 of 1994

are hereby set-aside. Consequently, the said Complaint being

case No. I.T. No.41 of 1994 shall stand dismissed requiring no

order on the Civil Writ Petition No.3933 of 2009 and D.B.

Special Appeal (Writ) No.1093 of 2005. Both of them will

stand disposed of. In the facts of the present case however,

we do not make any order as to costs.

………………………………………….J.

[ H.L. GOKHALE ]

………………………………………….J.

[RANJAN GOGOI]

New Delhi

Dated: April 9, 2013

2