Tamil Nadu State Transport Corporation Vs. Neethivilangan, Kumbakonam  Insc
273 (4 May 2001)
Mohapatra & Shivaraj V. Patil D.P.Mohapatra,J.
core question that arises for determination in this case is what is the right
of a workman after the application filed by the employer for approval of the
order for his dismissal/discharge from service is refused by the Tribunal and
what is the remedy open to the workman in such a situation? The facts of the
case may be shortly stated thus : the appellant, Tamil Nadu State Transport
Corporation, (Kumbakonam Division I) Ltd., Kumbakonam initiated a departmental
inquiry against the respondent Neethivilangan who was a Junior Superintendent
in the Head Office at Kumbakonam. The charges having been established in the
departmental inquiry an order for dismissing the respondent from service was
passed on 5th March,
1984. Thereafter an
application was made by the appellant for accord of approval under section 33(2)(b)
of the Industrial Disputes Act, 1947, (for short the Act) before the Tribunal.
The Tribunal rejected the prayer for approval on merit vide the order dated
30.7.1984. The appellant filed Writ Petition No.8849/84 challenging the order
passed by the Tribunal which was dismissed by the High Court by the judgment
dated18.12.1987. Writ Appeal No.321/88 filed against the said judgment was
dismissed. The appellant filed special leave petition No.12350/88 in this Court
which was also dismissed. Even after it failed to obtain approval of the
Tribunal for the order of removal 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 the impelling
circumstances as noted above the respondent filed the Writ Petition No.1498/99
for reinstatement in service, for payment of wages and other consequential
benefits. A single Judge of the High Court by the judgment dated 4.11.1999
allowed the writ petition on the following terms : In the result, all the
points (A) to (D) are answered in favour of the petitioner and against the
respondent. This Court further holds that the petitioner is deemed to have been
in service continuously since 5.3.1984 onwards and deemed to be discharging his
functions as an employee of the respondent and he 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. There will be a direction
directing the respondent to work out the money value of the same and pay the
arrears within 12 weeks from today.
circumstances, there will be a further direction directing the respondent to
forthwith reinstate the petitioner in service with all attendant and
consequential benefits. However, at the same time as criminal prosecution is
pending against the writ petitioner, liberty is given to the respondent to
place the petitioner under suspension subject to payment of full salary at the
present rate of scales payable.
liberty is given to the writ petitioners to institute appropriate proceedings
before a competent court or forums or file a writ petition for damages after
termination of the pending criminal prosecution and work out his remedies.
writ petition is allowed with costs of Rs.3,500/-.
W.M.P. No.2118 of 1999 is closed.
writ appeal No.157/2000 filed by the appellant against the said judgment was
dismissed by the Division Bench by the judgment dated 9.2.2000.
appeal by the employer by special leave.
main thrust of the contentions raised by Shri S. Sivasubramaniam learned senior
counsel for the appellant is that the respondent is not entitled as of right to
claim reinstatement on the ground that the application for approval under
section 33(2) (b) of the Act filed by the management has been rejected by the
Tribunal. It is his submission that the respondent has to approach the Tribunal
for enforcement of his right and is entitled to such relief as the Tribunal
contra Shri K.V.Vishwanathan learned counsel appearing for the respondent
supported the judgment of the single Judge which was confirmed by the Division
Bench of the High Court. It is his submission that on rejection of the employers
prayer for approval of the order of removal of the workman the punishment order
becomes void and unenforceable; indeed it is non est in the eye of the law.
the High Court rightly directed reinstatement of the respondent with
back-wages. On the rival contentions raised by the counsel for the parties the
question formulated earlier arises for consideration.
33 of the Act makes provision for insuring that the conditions of service
remain unchanged during pendency of certain proceedings. In sub-section(1) is
incorporated the bar that no employer shall during pendency of any conciliation
proceeding before a conciliation officer or a Board or any proceeding before an
arbitrator or labour court or Tribunal in respect of an industrial dispute, in
regard to any matter connected with the dispute, alter to the prejudice of the
workman concerned with such dispute, conditions of service applicable to them
immediately before commencement of the proceedings; or for any misconduct
connected with the dispute, discharge or punish, whether by dismissal or
otherwise any workman concerned with such dispute, save with the express
permission in writing of the authority before which the proceeding is pending.
purpose of the prohibitions contained in Section 33 is two-fold. On the one
hand, they are designed to protect the workmen concerned during the course of
industrial conciliation, arbitration and adjudication, against employers
harassment and victimisation, on account of their having raised the industrial
dispute or their continuing the pending proceedings, on the other they seek to
maintain status quo by prescribing management conduct which may give rise to
"fresh disputes which further exacerbate the already strained relations
between the employer and the workmen.
the section recognises the right of the employer to take necessary action like
the discharge or dismissal on justified grounds. To achieve this object, a ban
has been imposed upon the employer exercising his common law, statutory or
contractual right to terminate the services of his employees according to the
contract or the provisions of law governing such service. The ordinary right of
the employer to alter the terms of his employees services to their prejudice or
to terminate their services under the general law governing the contract of
employment has been banned subject to certain conditions.
(2) deals with alteration in the conditions of service or the discharge or
punishment by dismissal or otherwise of the workman concerned in the pending
dispute but in regard to any matter not connected with such pending dispute.
Though this provision also places a ban in regard to matters not connected with
the pending dispute, it leaves the employer free to discharge or dismiss a
workman by paying wages for one month and making an application to the
authority dealing with the pending proceedings for its approval of the action
taken. There is a distinction between matters connected with the industrial
dispute and those unconnected with it. Thus, a balance between the interests of
the workmen and the employer is sought to be maintained in the provisions of
Section 33. The action taken under Section 33(2) will become effective only if
approval is granted. If the approval is refused, the order of dismissal will be
invalid and inoperative in law.
other words, the order of dismissal has to be treated as non est and the
workman will be taken never to have been dismissed.
the scheme of section 33 this Court, in the (Suppl.) 3 SCR 618), observed :
sub-s.(1) lays down that if an employer proposes to discharge a workman in
relation to a matter connected with the dispute which might be pending before a
tribunal the employer must put such proposal before the tribunal and obtain its
express permission in writing before carrying out the proposal whether it be
for alteration of any conditions of service or for punishment or discharge of a
workman by dismissal or otherwise.
on the other hand gives power to the employer to alter any conditions of
service not connected with the dispute and this the employer can do without
approaching at all the tribunal where the dispute may be pending. It further
permits the employer to discharge or punish, whether by dismissal or otherwise,
any workman where this may be on account of any matters unconnected with the
dispute pending before the tribunal; but such discharge or dismissal is subject
to the proviso, which imposes certain conditions on it. The intention behind
enacting sub-s.(2) obviously was to free the employer from the fetter which was
put on him under s.33 as it was before the amendment in 1956 with respect to
action for matters not connected with a dispute pending before a tribunal. So
far as conditions of service were concerned, if they were unconnected with
matters in dispute the employer was given complete freedom to change them, but
so far as discharge or dismissal of workmen was concerned, though the employer
was given freedom, it was not complete and he could only exercise the power of
discharge or dismissal subject to the conditions laid down in the proviso. Even
so, these conditions in the proviso cannot be so interpreted, unless of course
the words are absolutely clear, as to require that the employer must first
obtain approval of the tribunal where a dispute may be pending before passing
the order of discharge or dismissal of a workman, for on this interpretation
there will be no difference between s. 33(1) (b) and s.33(2)(b) and the purpose
of the amendment of 1956 may be lost.
supplied) A Bench of three learned Judges of this Court, in the case of Punjab
Beverages Pvt. Ltd. Chandigarh vs. Suresh Chand and anr. (1978 (3) SCR 370)
held, inter alia, that the object of the legislature in enacting section 33
clearly appears to be to protect the workman concerned in the dispute which
forms the subject matter of pending conciliation or adjudication proceedings
against victimisation by the employer. But at the same time it recognises that
occasions may arise when the employer may be justified in discharging or
punishing by dismissal his employee and so it allows the employer to take such
action, subject to the condition that in the one case before doing so, he must
obtain the express permission in writing of the Tribunal before which the
proceeding is pending and in the other, he must immediately apply to the
Tribunal for approval of the action taken by him. Thereunder this Court further
held that the only scope of the inquiry before the Tribunal exercising
jurisdiction under section 33 is to decide whether the ban imposed on the
employer by this section should be lifted or maintained by granting or refusing
the 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 punishing the workman by way of dismissal and the action of
discharge or dismissal already taken would be void.
supplied) This Court also observed that section 33 in both its limbs
undoubtedly uses language which is mandatory in terms.
this connection this Court specifically observed : (at p.385) Where the
Tribunal entertains an application for approval under section 33(2) (b) on
merits, it applies its mind and considers whether the dismissal of the workman
amounts to victimisation or unfair labour practice and whether a prima facie
case has been made out by the employer for the dismissal of the workman. If the
Tribunal finds that either no prima facie case has been made out or there is victimisation
or unfair labour practice, it would refuse to grant approval and reject the
application on merits.
of course the dismissal of the workman would be void and inoperative, but that
would be because the Tribunal having held that no prima facie case has been
made out by the employer or there is victimisation or unfair labour practice,
it has refused to lift the ban.
supplied) In the case of Tata Iron and Steel Co. Ltd. vs. S.N. Modak (1965(3)
SCR 411, a Bench of three learned Judges of this Court, considered the effect
of an order of the Tribunal refusing to accord approval to the order of
dismissal or discharge of the workman and held : (at p.418) But it cannot be
overlooked that for the period between the date on which the appellant passed
its order in question against the respondent, and the date when the ban was
lifted by the final determination of the main dispute, the order cannot be said
to be valid unless it receives the approval of the Tribunal. In other words,
the order being incomplete and inchoate until the approval is obtained, cannot
effectively terminate the relationship of the employer and the employee between
the appellant and the respondent; and so, even if the main industrial dispute
is finally decided, the question about the validity of the order would still
have to be tried and if the approval is not accorded by the Tribunal, the
employer would be bound to treat the respondent as its employee and pay him his
full wages for the period even though the appellant may subsequently proceed to
terminate the respondents service. Therefore, the argument that the proceedings
if continued beyond the date of the final decision of the main industrial
dispute would become futile and meaningless, cannot be accepted.
the conspectus of the views taken in the decisions referred to above the
position is manifest that while the employer has the discretion to 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 order
of approval from the Tribunal. By passing the order of discharge or dismissal
de facto relationship of employer and employee may be ended but not the de jure
relationship for that 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 under section 33 (2)(b) of the Act on merit the
employer is bound to treat the employee as continuing in service and give him
all the consequential benefits. If the employer refuses to grant the benefits
to the employer the latter is entitled to have his right enforced by filing a
petition under Article 226 of the Constitution. There is no rational basis for
holding that even after the order of dismissal or discharge has been rendered
invalid on the Tribunals 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.
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.
appeal, being devoid of merit, is dismissed with costs, which is assessed at