1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.176 of 2008 NO.176 of 2008 NO.176 of 2008 in in in WRIT WRIT WRIT PETITION (L) NO.1011 OF 2007 PETITION (L) NO.1011 OF 2007 PETITION (L) NO.1011 OF 2007 National Aviation Company of India Limited (Transferee Company following the Scheme of Amalgamation of Air India Ltd and Indian Airlines and sanctioned by the Joint Secretary tothe Government of Inia) and having its R.O: Airlines House, 113,Gurudwara Rakabganj Rd,New Delhi-110 001 and Mumbai Office at Air India Bldg,Nariman Point, Mumbai-400 021. .. Appellant Vs. 1. Mr.Maruti J.Kurade Bldg No.16,Room No.1,Air India Staff Housing Colony (Old) Kalina, Santacruz (E) Mumbai-400 029 2. Mr.A.A.Lad Presiding Officer, Central Government Industrial Tribunal No.2 at Mumbai, 1st Floor, Sharma Raksha Bhavan, Shivshrushti Rd, Sion, Mumbai - 400 022. .. Respondents Mr.S.K.Talsania, Sr.Advocate with Mr.D.S.Dhanure for Appellant Ms Tanu Mehta with Ms.Ranjana Todankar i.b.Tiwari & Co for Respondent CORAM CORAM CORAM : Sri.R.M.S.Khandeparkar and : Sri.R.M.S.Khandeparkar and : Sri.R.M.S.Khandeparkar and Sri.A.V.Nirgude, Sri.A.V.Nirgude, Sri.A.V.Nirgude, JJ JJ JJ DATE DATE DATE : 23rd April, 2008 : 23rd April, 2008 : 23rd April, 2008 ORAL ORAL ORAL JUDGMENT (Per R.M.S.Khandeparkar, J) JUDGMENT (Per R.M.S.Khandeparkar, J) JUDGMENT (Per R.M.S.Khandeparkar, J) 1. Heard. 2. This appeal arises from the order and Judgment dated 31st July, 2007 passed by the learned Single 2 Judge in Writ Petition (Lodging No.1011 of 2007.) By the impugned judgment, the writ petition filed by the appellant against the judgment and order dated 6th October, 2006 of the Industrial Tribunal has been dismissed. By the said order of the Industrial Tribunal, the appellant was directed not to disturb the respondent from his staff quarters and also from availing of the medical facilities as well as to give him suspension allowance from the date of the said order till the approval application under section 33 (2) (b) of the Industrial Disputes Act, 1947 is disposed of by the said Tribunal. 3. The facts which are not in dispute are that the respondent had been in the employment of the appellant since 1979. The respondent remained absent without permission and without leave from duty for 113 days during the period from October 2003 to May 2004 and therefore, proceedings for misconduct on the part of the respondent in terms of clause 19.2 (i) (b) of the Certified Standing Orders were sought to be initiated by issuing a letter dated 11th June, 2004. It was followed by service of a charge sheet and an inquiry which concluded on 5th October, 2004. The respondent 3 participated in person in all the proceedings except on 31st August, 2004. He also appeared in the proceedings on 5th October, 2004 along with his defence counsel. He voluntarily admitted to the charges levelled against him and stated that his absence was not intentional but, due to his sickness and his ill health and pleaded that a lenient view be taken by the management. In the course of the inquiry, the respondent did not produce any defence witness though four witnesses were examined by the management. The competent authority of the appellant on perusal of the inquiry report and after giving necessary opportunity of being heard to the respondent, proposed the punishment of removal from service under letter dated 6th December, 2004 which was further informed by an order passed on 1st January, 2005 whereby the punishment of removal was sought to be made effective subject to approval thereof in terms of the provisions of section 33 (2) of the Industrial Disputes Act, 1947. 4. During the pendency of the proceedings for approval the respondent filed an application for certain interim reliefs in favour of the 4 respondent and after hearing the parties by the order dated 6th October, 2006 the Industrial Tribunal directed the appellant not to disturb the respondent from his staff quarters and also allow him to avail medical facilities and to give him suspension allowances from the date of the said order. The challenge to the said order by way of the Writ Petition proved futile and hence, the present appeal. 5. The learned Single Judge by the impugned order after referring to the decision of the Division Bench in Air India Ltd vs Libio Francisco Colaco Air India Ltd vs Libio Francisco Colaco Air India Ltd vs Libio Francisco Colaco and and and anr in Appeal No.351 of 2003 anr in Appeal No.351 of 2003 anr in Appeal No.351 of 2003 arising out of Writ Petition No. 813 of 2003 delivered on 30th June 2003 observed that the Division Bench has held that during the pendency of the proceedings for approval under section 33 (2) (b) of the Industrial Disputes Act the subsistence allowance can be allowed to be directed to be paid to the workman, and that taking into consideration all the facts and circumstances of the case, there was no ground of interference of the order of the tribunal. 6. The challenge to the impugned order is on the 5 ground that a direction issued for payment of the subsistence allowance and for that matter for the grant of interim relief during the pendency of the proceedings for approval of the dismissal of the respondent in terms of section 33 (2) (b) of the said Act are contrary to the mandate of the said provisions of law and would defeat the very object of the said statutory provisions enacted by the legislature. Besides it is contrary to what has been held by the Division Bench in Libio Francisco Colaco ’s case supra. 7. The learned senior counsel appearing for the appellant drawing our attention to section 33 of the said Act submitted that the requirement of sanction for dismissal under sub section 1 and 3 is a pre-requisite to put to an end to the relationship of employer and employee. However, the situation under sub section thereof is slightly different. Further referring to the decision of the Apex Court in Jaipur Zilla Jaipur Zilla Jaipur Zilla Sahakari Sahakari Sahakari Bhoomi Vikas Bank Ltd vs Ram Gopal Sharma Bhoomi Vikas Bank Ltd vs Ram Gopal Sharma Bhoomi Vikas Bank Ltd vs Ram Gopal Sharma & ors reported in (2002) 2 Supreme Court Cases 244 ors reported in (2002) 2 Supreme Court Cases 244 ors reported in (2002) 2 Supreme Court Cases 244 and submitted that the Apex Court in clear terms has held that the relationship of employer and employee comes to an end from the date of the 6 order of dismissal or discharge and merely dejure relationship continues till such an order is approved by the competent authority. Taking into consideration the consequences which would follow either in case of its approval of the order of dismissal or in case of discharge being substantially spelt out by the Apex Court in Jaipur Zilla’s case, according to the learned senior counsel, there is no room for provision to grant any interim relief as such during the pendency of the approval proceedings under section 33 (2) (b) of the said Act. 8. Learned counsel appearing for the respondent on the other hand submitted that the Division Bench in Libio Colaco’s case has in clear terms held that the power of the tribunal, while dealing with the application for approval of the order of dismissal or discharge, to grant interim relief in favour of the workman is not curtailed. The Division Bench undoubtedly has cautioned not to be lavish in granting such a relief and each case to be decided on the facts of that case. She further submitted that taking into consideration the facts of the case in hand, the number of years in service put by the respondent, the health 7 condition of the respondent and he being a handicapped person, the tribunal having exercised its discretion in favour of the respondent and the learned Single Judge having refused to interfere in the discretionery relief granted in favour of the respondent, it would not be appropriate for the appellate Court to take a different view in the matter. 9. Section 33 of the Industrial Tribunal Act deals with : " Conditions of service etc to remain unchanged under certain circumstances during pendency of the proceedings." We are quite aware that the sub-titles to the section would not control the provisions of law under a particular section. It only gives indication about the subject matter which is dealt with by the provision of law under a particular section. Nevertheless, in the case in hand, the sub-title of section 33 gives a clear indication that it pertains to service conditions to be observed between the parties during the pendency of the proceedings which are enumerated under the said section and one of the eventualities covered pertains to a situation where the services of an employee is terminated on account of misconduct 8 and that is covered under sub section 2 (b). As rightly submitted by the learned senior counsel for the appellant, the procedure which is required to be followed for the purpose of obtaining approval for an order of dismissal or discharge in terms of sub-section 2 is definitely different from the one under sub section 1 and 3 and major difference being that for the purpose of an order of dismissal to take effect in terms of sub section 1 and 3 prior approval of the competent authority is necessary. This is not a case in relation to approval which is required to be obtained under sub section 2. It clearly speaks of post facto approval. 10. The Apex Court in Jaipur Zilla Sahakari Bank’s case setting at rest the conflicting views prevelant at the relevant time on the aspect of the effect of order of dismissal or discharge passed by the management during the pendency of the proceedings for approval of such an order held that: " Where an application is made under section 33 (2) (b) proviso, the authority before which the proceeding is pending for 9 approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bonafide; whether it was by way of victimization or unfair labour practice ; whether conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. " 11. The order of dismissal or discharge to which the provisions of section 33 (2) (b) apply, also brings an end of relationship of employer and employee from the date of the dismissal or discharge though that order remains incomplete till its approval by the authority under the said provision. In other words, the said relationship can come to an end dejure only when an authority grants its approval. Having held so, the Apex Court has further proceeded to explain the effect of grant of approval or refusal for such order and it has been held that: 10 " If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But, on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under section 33-A challenging the order granting approval on any of the grounds available to him." 12. The Apex Court, therefore has clearly explained the consequences which would follow in case of approval being granted as well as approval being rejected for the order of dismissal or discharge in terms of provisions of section 33 (2) (b) of the said Act. The consequences of grant of refusal of approval as described by the Apex Court would obviously disclose that the parties are not without remedy. In either of the cases, the 11 remedy is specifically provided for under the statutory provisions. The consequences as described by the Apex Court do not speak of availability of any interim relief pending disposal of the application for approval to the order of dismissal or discharge. However, at the same time, one has to also take into consideration the decision of the Apex Court in Management of Management of Management of Hotel Hotel Hotel Imperial, New Delhi vs. Hotel Workers’ Imperial, New Delhi vs. Hotel Workers’ Imperial, New Delhi vs. Hotel Workers’ Union Union Union reported in 1959-I LLJ 544 reported in 1959-I LLJ 544 reported in 1959-I LLJ 544 wherein the implied power of the Court or the tribunal to grant interim relief in an appropriate case, depending upon the facts and circumstances of the case, and to meet the ends of justice has been duly upheld. It was clearly observed in the said decision that such a power to grant interim relief where the fact situation demands, the same is not denied by the statutory provisions of the said Act. 13. Taking into consideration the view taken by the Division Bench in Libio Colaco’s case read with the decision of the Apex Court in Hotel Imperial case (supra), it cannot be said that under no circumstances the workman would be entitled for any interim relief during the 12 pendency of the proceedings for grant of approval to the order of dismissal or discharge under section 33 (2) (b) of the said Act. Undoubtedly, the learned senior counsel for the appellant is fully justified in contending that such an exercise if any by the tribunal cannot be undertaken ignoring the law laid down by the Apex Court in Jaipur Sahakari Bank’s case wherein the Apex Court in no uncertain terms has held that the effect of such an order of dismissal or discharge of an employee brings an end to the relationship of employer and employee from the date of such an order and only thing which remains to be completed is giving sanction to the termination of such relationship that is to say to termination dejure relationship. 14. Whenever an employee approaches the tribunal for interim relief during the pendency of the proceedings relating to approval to the order of dismissal or discharge, the tribunal would not be justfied in granting such a relief as a matter of course. It would be solely on the basis of the facts to be established before the tribunal which could justify the exercise of discretion by the tribunal in favour of the employee, and not 13 otherwise. The order to be passed by the tribunal in that case should ex-facie disclose that the discretion in that regard has been judiciously exercised and the materials placed on record justify such an exercise of discretion in favour of the employee. 15. The law on the subject and the powers of the tribunal being clear as above, if one peruses the order passed by the Industrial Tribunal on 6th August, 2006 in the case in hand, nowhere it discloses any material on record as such having been referred to which could reveal that the tribunal has exercised its discretion judiciously. Mere reference to the reported decisions of this Court or of the Supreme Court or submissions made on behalf of the parties would not amount to consideration of the case for the purpose of exercise of the discretion in the matter. The order has necessarily to disclose the analysis of the materials on record and proper adjudication of the issue sought to be raised with reference to whatever materials placed on record to justify grant or refusal of any interim relief to the employee during the pendency of the application for approval of the order of dismissal or 14 discharge. Apparently, the impugned order of the tribunal totally fails to satisfy this test. Perusal of the impugned order by the learned Single Judge also nowhere discloses these aspects having been taken into consideration while rejecting the petition. The impugned order merely refers to the decision of the Division Bench in Libio Colaco’s case and the submissions made on behalf of the parties. 16. In the circumstances, therefore in our considered opinion neither the order passed by the Industrial Tribunal nor by the learned Single Judge can be sustained and both are liable to be set aside and the matter remanded to the Industrial Tribunal to consider the application filed by the respondent on the basis of the materials already placed on record and taking into consideration all the aspects of the matter and bearing in mind the observations made hereinabove and to dispose of the same within six weeks from the date of receipt of the order of this Court after hearing the parties. 17. In the circumstances, the appeal succeeds and is allowed in above terms. The impugned order as 15 well as the order passed by the Industrial Tribunal are hereby set aside. The matter is remanded as stated above. However, there shall be no order as to costs. (A.V.Nirgude, (A.V.Nirgude, (A.V.Nirgude, J) J) J) (R.M.S.Khandeparkar, (R.M.S.Khandeparkar, (R.M.S.Khandeparkar, J) J) J)