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Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others*
Needs Review
by T.S. Gopalan**
Cite as : (2002) 5 SCC (Jour) 15
Amendments to Section 33 of the ID Act in the year 1956 were made at a time when no remedy under the Industrial Disputes Act was available to the individual workman to challenge the termination of his employment. At that time, the dismissal of an individual workman could form the subject-matter of an industrial dispute only if it was espoused by the fellow workmen. In those days, dismissal of workmen who actively participated in raising an industrial dispute were not uncommon. In order to obviate this contingency, Section 33 imposed an obligation on the employer to seek approval or permission for the dismissal of any workman to be effected during the pendency of an industrial dispute. Apart from imposing an obligation on the employer to file such an application, in order to protect the workman against any termination which might be made without seeking approval or permission, Section 33-A was enacted creating a right in favour of the aggrieved workman to file a complaint which will be dealt with like adjudication of an industrial dispute. In other words, a right which was not available to the individual workman to approach the Labour Court or Tribunal for adjudication of a dispute relating to his dismissal was conferred by Section 33-A.
The Supreme Court in the case under review has ruled that failure to apply for approval by the employer would make the order of dismissal inoperative and that the workman may get wages and other benefits. It was also held that even if the application for approval is granted by the authority, still the aggrieved could make a complaint under Section 33-A challenging the approval. It is to be considered whether an interpretation can be placed on Section 33 to the effect that even without a judicial declaration about the validity of the order of dismissal, as a result of the failure to seek approval or permission, the workman could straightaway proceed on the footing that the dismissal is invalid and inoperative and work out his rights for recovery of wages and other benefits. The case-law placed before the Supreme Court does not support the present ruling.
In Strawboard Mfg. Co. v. Govind1 the application for approval was rejected by the Tribunal. Dealing with the consequence of such rejection, the Supreme Court held: (AIR pp. 1504-05, para 8)
"If the Tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fail and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the Tribunal not approving the action of the employer, the dismissal or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer."
In the decision of the Constitution Bench under review, reference is made to Strawboard Mfg. Co. v. Govind1, P.H. Kalyani v. Air France2 and Tata Iron and Steel Co. Ltd. v. S.N. Modak3 In all the three cases, approval applications were filed and they were disposed of on merits by the Tribunal. While the approval was granted in P.H. Kalyani case2, approval was refused in the other two cases.
None of the decisions can be said to be an authority for the proposition that even in the absence of an adjudication about the validity of an order of dismissal, by a quasi-judicial authority, the workman could straightaway proceed on the footing that the order of dismissal would be invalid or inoperative merely by reason of violation of Section 33.
On the contrary, the Supreme Court in Punjab Beverages (P) Ltd. v. Suresh Chand4 categorically held that mere contravention of Section 33 would not render the order of discharge or dismissal void. It emphasized that unless there is judicial declaration that the order of dismissal is not valid, a workman who is aggrieved by an order of dismissal cannot straightaway approach the Labour Court claiming arrears of wages on the ground that the dismissal was made during the pendency of an industrial dispute in violation of Section 33 by reason of the employer not having preferred an application under Section 33. In this case, after making application for approval, in the midway, for reasons best known to him, the employer withdrew the application. On the basis that the application for approval was dismissed as withdrawn, the workman approached the Labour Court under Section 33-C(2) claiming wages and other benefits on the footing that the order of dismissal was made in contravention of Section 33. The claim was countenanced by the Labour Court and the matter was taken to the Supreme Court.
With great respect to the Hon'ble Judges who referred the issues to the Constitution Bench, it may be stated that there was no conflict between the decision in Punjab Beverages44 and the decisions rendered in Tata Iron and Steel Co. Ltd. v. S.N. Modak3, P.H. Kalyani v. Air France2 and Strawboard Mfg. Co. Ltd. v. Govind1.
It is also to be remembered that in a number of cases arising out of complaints under Section 33-A of the Industrial Disputes Act, the courts have consistently taken the view that while dealing with such complaints the Tribunal should in the first instance go into the question whether there was contravention of Section 33 as a precondition to provide a cause of action to invoke Section 33-A and even if the answer is in the affirmative that would not entitle the workman to the relief of reinstatement. It is only after recording a finding that there was contravention of Section 33, the Labour Court or Tribunal could go into the merits of the case and only if it comes to a conclusion that the termination is not justified it can grant relief. Having thus held that in a complaint filed under Section 33-A of the Industrial Disputes Act, mere contravention of Section 33 would not empower the Tribunal or the Labour Court to order reinstatement even if there is violation of Section 33, the Tribunal should further go into the merits of the dismissal, it is not understood as to how the Supreme Court ruled that an order of dismissal would become invalid and inoperative by mere reason of failure to seek permission or approval and thereby entitle the workman to the relief of reinstatement.
In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma+ the Supreme Court has held that when no application is made or one made is withdrawn, there would be a contravention of Section 33 which would make the order of dismissal void and inoperative. This reasoning of the Supreme Court, with great respect, requires an early suo motu review by a Constitution Bench.
In this case it was also held that even if approval is granted by the authority under Section 33 and the employee is aggrieved by such approval he is entitled to make a complaint under Section 33-A challenging this approval order on any of the grounds available to him. This view also appears to be per incuriam. When once an application for approval is made under Section 33 and approval or permission is granted for the dismissal, there is full compliance with the provisions of Section 33. In such an eventuality there is no scope for contravention of Section 33. When there is no contravention of Section 33 a complaint under Section 33-A would not lie. Unfortunately, this aspect was not highlighted before the Constitution Bench.
Lastly the Constitution Bench has also held that "the view expressed in Punjab Beverages case4 on the question is not the correct view". This statement is likely to create wrong impression about the law. In Punjab Beverages case4 the dismissed workman straightaway approached the Labour Court under Section 33-C(2) claiming wages and other benefits for the period from the date of his dismissal on the ground that the dismissal was effected in contravention of Section 33. It was in this situation that the Supreme Court negatived the claim that the abovementioned observation may give the impression that a workman who is dismissed during the pendency of an industrial dispute before the Labour Court or Industrial Tribunal without seeking approval or permission can directly approach the Labour Court under Section 33-C(2) and claim wages and other benefits from the date of dismissal on the ground that he was dismissed in contravention of Section 33 of the Industrial Disputes Act.
In order to dispel any doubt in the minds of the litigants and the lower courts, it may be clarified that no dismissed workman can claim the relief of reinstatement without a declaration by a competent court that the order of termination is not valid and no punitive order of termination be interfered with on any technical grounds if such an order is otherwise justified on merits.
It is time that the Supreme Court straightens the law by reviewing this decision under comment.
- AIR 1962 SC 1500
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- AIR 1963 SC 1756
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- AIR 1966 SC 380
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- (1978) 2 SCC 144
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