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CASE NO.: Appeal (civil)  2001 of 2006

PETITIONER: United Bank of India

RESPONDENT: Sidhartha Chakraborty

DATE OF JUDGMENT: 27/08/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 2001 OF 2006

Dr. ARIJIT PASAYAT, J.

1.      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’).  

2.      Background facts sans unnecessary details are as  follows:

The 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

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award passed by the Presiding Officer, Industrial Tribunal,  Guwahati in Reference case No.12 (C) of 1997 passed on  20.1.2000.  3.      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).   

4.      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.  

5.      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:

"13 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.  This 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

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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.  The 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 workman."                  7.      As 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.  

8.      An 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.  9.      In 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:  "The 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."

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10.     Again at paragraph 12, this Court observed:  "Payment 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."  

11.     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).

12.     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.  

13.     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.  

14.     The appeal is allowed to the aforesaid extent with no  order as to costs.