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CASE NO.: Appeal (civil) 3593  of  2001

PETITIONER: M.D., TAMIL NADU STATE TRANSPORT CORPORATION

       Vs.

RESPONDENT: NEETHIVILANGAN, KUMBAKONAM

DATE OF JUDGMENT:       04/05/2001

BENCH: D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

D.P.MOHAPATRA,J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  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

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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.

   In  the 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.

   Further  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.

   The  writ petition is allowed with costs of  Rs.3,500/-. Consequently, W.M.P.  No.2118 of 1999 is closed.

   The  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.

   Hence this appeal by the employer by special leave.

   The  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 decides.

   Per   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. Therefore,  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.

   Section  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

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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.

   The  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. However, 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.

   Sub-section  (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. In  other words, the order of dismissal has to be treated as non  est  and the workman will be taken never to  have  been dismissed.

   Considering  the scheme of section 33 this Court, in the case  of  Strawboard  Manufacturing Co.  Vs.   Gobind  (1962 (Suppl.) 3 SCR 618), observed :

   Thus  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.

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   Sub-section(2)(a)  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.

                              (emphasis 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.

    (emphasis supplied)

   This  Court  also observed that section 33 in  both  its limbs undoubtedly uses language which is mandatory in terms. In  this connection this Court specifically observed :   (at p.385)

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   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. Then  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.

                           (emphasis 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.

   From  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

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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.

   In  the  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.

   The  appeal,  being devoid of merit, is  dismissed  with costs, which is assessed at Rs.10,000/-.