Bank of India Vs. Sidhartha Chakraborty  Insc
875 (27 August 2007)
Arijit Pasayat & D.K. Jain
APPEAL NO. 2001 OF 2006 Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of a Division Bench of the Guwahati
High Court dismissing the Writ Appeal filed by the appellant. By the said Writ
Appeal the appellant- Bank had questioned correctness of the judgment rendered
by a learned Single Judge who held that the order of dismissal was void for
omission on the part of the appellant to file application under Section
33(2)(b) of the Industrial Disputes Act, 1947 (in short the 'Act').
Background facts sans unnecessary details are as follows:
respondent-Sidhartha Chakraborty was working as a Cash Clerk in the commercial
wing of the appellant-bank at Ulubari branch at Guwahati. A disciplinary
proceeding was initiated against him for commission of irregularities and
accordingly, charge sheet was served on him on different counts relatable to
fictitious debit entries in some saving-bank accounts resulting in
misappropriation. On conclusion of the departmental proceedings, accepting the
findings of the enquiry, the respondent was dismissed from service by an order
dated 20.12.1985. It was indicated in the dismissal order that in view of the pendency
of an industrial dispute before the Assistant Labour Commissioner, Central Kolkatta, an application under Section 33(2)(b)
of the Act was being filed for approval of the action taken by the appellant
Bank. The respondent raised an industrial dispute before the Regional Labour
Commissioner (Central), Guwahati for his reinstatement with full back wages
challenging the legality and validity of the order of dismissal. Eventually, on
failure of the re-conciliation proceedings, the Government of India in the
Ministry of Labour, in exercise of the powers conferred under Section 10 of the
Act referred the matter to the Industrial Tribunal at Guwahati. The reference
was on the question of legality and validity of the order of dismissal pending
the proceedings in the Labour
Court for non
compliance of the provisions of Section 33(2)(b) of the Act. The Learned
Tribunal on conclusion of the proceedings held that the enquiry was in full
compliance of the prescribed procedures and the principles of natural justice
and, therefore, the imposition of the punishment of dismissal in view of the
series of misappropriate and irregularities is justified. Aggrieved, the
respondent filed Writ Petition No.635 of 2001 controverting the award passed by
the Presiding Officer, Industrial Tribunal, Guwahati in Reference case No.12
(C) of 1997 passed on 20.1.2000.
Before the learned Single Judge the only question raised was that the
appellant-Bank had in fact filed application under Section 33(2)(b) of the Act
for approval of the action taken by it in dismissing the respondent. The
appellant-Bank took the stand that it was not necessary because the provisions
of Section 33(2)(b) of the Act were not mandatory and it relied on a decision
of this Court in M/s Punjab Beverages Pvt. Ltd. Chandigarh v. Suresh Chand and Anr. (1978 (2) SCC 144). Learned Single
Judge relying on a subsequent decision of this Court in Jaipur Zila Sahakari Bhoomi
Vikas Bank Ltd. v. Ram Gopal Sharma (2002 (2) SCC 244) held that the decision
in Punjab Beverages's case (supra) cannot have any application having been
over-ruled in Jaipur Zila's case (supra).
Stand of the appellant was that the principles of doctrine of prospective
over-ruling would be applicable as the decision in Punjab Beverages's case
(supra) was holding the field "at the time the action was taken".
This plea was negatived by learned Single Judge who allowed the writ
application filed by the respondent. The Division Bench held that the learned
Single Judge was justified in allowing the Writ Petition. There was no
indication in Jaipur Zila's case (supra) that the doctrine of prospective
over-ruling was applied. The learned Single Judge's order that the respondent
would be entitled to re-instatement with full back wages was upheld.
Learned counsel for the appellant-bank re-iterated the stand taken before the
learned Single Judge and the Division Bench. There is no appearance of the
respondent in spite of service of notice.
6. In Jaipur
Zila's case (supra) it was inter-alia observed as follows:
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 Section 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.
penal provision is again a pointer of the mandatory nature of the proviso to
comply with the conditions stated therein. To put it in another 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 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.
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 is 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
has been noted in the said judgment, the proviso to Section 33(2)(b) of the Act
affords protection to a workman to safeguard his interest and it is in the
nature of a shield against victimization and unfair labour practice by the
employer during pendency of an industrial dispute. That being so, the judgment
of the learned Single Judge as affirmed by the Division Bench does not suffer
from any infirmity.
alternative plea was raised by learned counsel for the appellant who stated
that the learned Single Judge and the Division Bench were not justified in
directing payment of full back wages. This plea needs consideration.
P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (JT 2001 (1)
SC 336), this Court found fault with the High Court in setting aside the award
of the Labour Court which restricted the back wages to 60% and directed payment
of full back wages. It was observed thus:
Labour Court being the final Court of facts came
to a conclusion that payment of 60% wages would comply with the requirement of
law. The finding of perversity or being erroneous or not in accordance with law
shall have to be recorded with reasons in order to assail the finding of the
Tribunal or the Labour
Court. It is not for
the High Court to go into the factual aspects of the matter and there is an
existing limitation on the High Court to that effect."
Again at paragraph 12, this Court observed:
of back wages having a discretionary element involved in it has to be dealt
with, in the facts and circumstances of each case and no straitjacket formula
can be evolved, though, however, there is statutory sanction to direct payment
of back wages in its entirety."
The position was reiterated in Hindustan Motors Ltd. v. Tapan Kumar
Bhattacharya and another (2002 (6) SCC 41), Indian Railway Construction Co.
Ltd. v. Ajay Kumar (2003 (4) SCC 579), M.P. State Electricity Board v. Jarina
Bee (Smt.) (2003 (6) SCC 141) and Kendriya Vidyalaya Sangathan and Anr. v. S.C.
Sharma (2005 (2) SCC 363).
Considering the peculiar facts of the case and the background in which the
disciplinary action was taken against the respondent, and the position in law
as stood at the relevant time the order of dismissal was passed, the quantum of
back wages is restricted to Rupees two lakhs to be paid within a period of four
weeks from today. If any amount has already been paid, the same shall be
deducted from the amount directed to be paid.
Learned counsel for the appellant also submitted that liberty may be granted to
the bank to take action in terms of Section 33(2)(b) of the Act. Neither the
learned Single Judge nor the Division Bench has dealt with desirability to give
such liberty. Considering the background facts as noted above, we feel this is
a fit case where such liberty can be granted. In other words, the appellant, if
so advised, may take action in terms of Section 33(2)(b) of the Act.
The appeal is allowed to the aforesaid extent with no order as to costs.