:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3970 OF 2007 Hindustan Lever Ltd. ..Petitioner Vs. Ramkrishna Bhikha Dushane ..Respondent Mr. C.U. Singh, Senior Advocate with Mr. R.N. Shah and Mr. Mahesh Londhe i/by M/s. Sanjay Udeshi and Co. for Petitioner. Mr. Kiran Bapat with Mr. B. D’Costa for respondent. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Reserved Reserved Reserved on on on : January 8, 2008. January 8, 2008. January 8, 2008. Pronounced Pronounced Pronounced on on on : January 25, 2008. January 25, 2008. January 25, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard Mr. C.U. Singh, the learned Senior Counsel with Mr. Shah and Mr. Londhe i/by M/s. Sanjay Udeshi and Co. for petitioner and Mr. Bapat with Mr. D’Costa the learned counsel for the respondent. 2. Rule. Respondent waives service. 3. By the consent of the parties, the petition is taken up for final hearing forthwith. 4. The petition impugns an interlocutory order :2: passed by the Labour Court at Daman in C.M.A. No. 109 of 2004. The said application was filed by the petitioner-company under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short the Act) seeking the approval to the order of dismissal dated 16/8/2004 passed against the respondent on conclusion of departmental enquiry into the charges levelled against him vide the charge-sheet dated 8/11/2003. The said application was presented on 16/8/2004 i.e. on the day the order of dismissal was passed. While the application was pending, the Deputy Secretary (Labour and Employment), Administration of Daman and Diu, passed an order on 16/11/2004 at the behest of the respondent and referred the following demands for adjudication under Section 10(1) of the Act to the Labour Court of Daman and Diu: (a) Whether the employer is competent to direct the suspended employee to mark his attendance regularly for the purpose of subsistence allowance. (b) Discharge or dismissal of workmen including reinstatement of or grant or relief :3: workmen wrongfully dismissed. . The said reference came to be registered as Reference (IDR) No. 12 of 2004, whereas in the earlier reference registered as Reference (IDR) No. 7 of 2004, the dispute pertaining to the charter of demand/settlement of benefits was referred for adjudication at the instance of Hindustan Lever Employees Union and on behalf of the workmen of M/s. Hindustan Lever Ltd., Daman Detergent Factory located on Survey No. 34, Bhimpore Village in the Union Territory of Daman and Diu and the said reference was made as per the order dated 23/2/2004. Hence when the order of dismissal dated 16/8/2004 was passed, Reference (IDR) No. 7 of 2004 was pending before the Labour Court in the matters of charter of demands/settlements of benefits and the respondent being the workman concerned with the said pending reference, an application under Section 33(2)(b) of the Act was submitted for approval to the dismissal order which was issued by way of punishment in the acts of misconduct which had taken place on 18/10/2003 when the respondent-workman was present in the "G" shift duty from 8.30 a.m. to 5 p.m. The respondent :4: was charged of wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior and riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline, which were acts of misconduct in terms of Clauses 14(3)(a) and 14(3)(h) respectively of the Model Standing Orders applicable to the said respondent. 5. In the said pending approval application the respondent filed an interlocutory application at Exh.4 praying for interim relief seeking directions against the Company to pay 75% of the wages, subsistence allowance with all other allowances and consequential benefits with all necessary increase till the final disposal of the approval application on a monthly basis and continue to pay the same. This application was presented on or about 2/2/2005 and it was opposed by the Company by its reply filed on or about 4/6/2005. The respondent had claimed in the said interlocutory application that on a demand raised by him, conciliation proceedings were pending and, therefore, the Company was prevented from taking any action against him without permission of the :5: Conciliation Officer as per Section 33(1)(b) of the At and thus, prima facie, the dismissal order was in breach of the said provisions and unless the Company had obtained express permission in writing from the Conciliation Officer, the order of dismissal dated 16/8/2004 could not have been passed. On the other hand, the Company on its part while opposing the said application submitted that the application was misconceived and was not maintainable. It pointed out that the dismissal order dated 16/8/2004 was based on the acts of gross and grave misconduct and the demand raised before the Conciliation Officer had no connection with the charges proved against the workman. It further pointed out that the protection under Section 33(1)(b) or Section 33(2)(b) of the Act would be available only when a reference was pending at the time the charge-sheet was issued and the reference pending before the Court for adjudication or conciliation proceedings instituted after the charge-sheet was issued cannot prevent the employer from proceeding to issue the dismissal order. It was further submitted that after the charge-sheet was issued on 8/11/2003, a departmental enquiry was conducted in keeping with the principles of natural :6: justice and the issue as to whether the enquiry held against the workman was fair or was conducted in keeping with the principles of natural justice was yet to be adjudicated and decided by the Labour Court and, therefore, no interim order could be passed on the application filed by the workman. By placing reliance on the decision of this court (DB) in the case of Air India Limited vs. Libio Fancisco Colaco and anr. [2004 (2) Mh.L.J. 130], it was submitted that unless the domestic enquiry was set aside on the ground of being defective or there was only facade of enquiry or there was no enquiry at all and a de novo enquiry is ordered, the management could not be asked to pay subsistence allowance. It was further submitted that the stage of decision on the issue as to whether the disciplinary proceedings held against the opponent are legal, fair and proper, could not be by-passed by entertaining the application for interim relief. Reliance was also placed on the Constitution Bench decision in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and ors. [(2002) 2 SCC 244] and another decision of this court in the case of MRF Ltd. vs. Goa MRF Union, Goa [2003 (III) CLR 985]. It was further pointed out that even :7: otherwise if it was the case of the workman that there was breach of the protection under Section 33(1)(b) of the Act, the only remedy available to the workman was by filing an application under Section 33A of the said Act and, therefore, the application at Exh.4 was not maintainable and was required to be dismissed even on merits. 6. The learned Judge of the Labour Court noted that C.M.A. No. 109 of 2004 was filed on 16/8/2004 seeking approval for the dismissal order of the same date issued against the workman after conducting an enquiry. At the same time, on 27/12/2004 the Labour Court had received a reference dated 26/11/2004 from the Deputy Secretary (Labour and Employment) in respect of the industrial dispute existing between the Company and the workmen on the two points referred to hereinabove in para 4. It further noted that after the approval application was filed by the Company and the reference was received on 27/12/2004, both proceedings came to be consolidated pursuant to the joint application dated 13/10/2006. The Labour Court held that considering the aforesaid circumstances and the fact that dismissal of the workman is one of the :8: matters referred for adjudication before it, it could not agree that the interim application was not maintainable. In para 10 of the impugned order dated 8/1/2007, the Labour Court recorded the following reasons for holding a prima facie case to allow the application for interim relief filed by the workman: "The opponent has produced in the file of the reference, the copy of the demand notice dt. 28/5/2004, a copy of the intervention letter to the Conciliation Officer dt. 1/6/04, a copy of the justification dt. 1/6/04 and the copies of the notices of conciliation dt. 14/6/04, 30/6/04 and 18-19/8/04. A perusal of these documents brings out that the dispute letter dt. 1/6/04 was in respect of the charge-sheet and order of suspension of the opponent, and that conciliation proceedings were pending before the Conciliation Officer as on 16/8/2004. It thus prima facie appears that the order of termination was contrary to the provisions of Section 33(1)(a)(b) of the Industrial Disputes Act, as the same was in regard to the matter conducted with the :9: dispute which was pending before the Conciliation Officer." 7. There is nothing on record to show that the respondent workman had raised any demand before the Conciliation Officer and as per Mr. Bapat, the learned counsel for the respondent-workman, it was the Union, namely, Hindustan Lever Employees Union which had raised the demand which reads as under:- "That the Company shall withdraw the charge-sheet and order of suspension, since the order to mark attendance for the purpose of subsistence allowance dated 18/10/2003 given to Mr.R.B. Dushane which are not bonafide/legal actions of the Company and allow Mr. R.B. Dushane to report to work with full back wages." . Obviously, the demand alleged to have been raised by the Union has not been referred for adjudication in Reference (IDR) No.12 of 2004. The letters dated 10/6/04, 14/6/04 and 30/6/04 allegedly addressed to the Company read as under:- :10: "I am directed to inform you that a Conciliation Proceeding has been fixed in the Chamber of Conciliation Officer/ Deputy Collector on _________ at 4 p.m. You are, therefore, requested to attend the conciliation proceeding with all the relevant records and evidence on the above said date and time without fail." . A copy of the said letters was not marked to the Union and instead it was marked to the workman at the address of the factory at Bhimpore, Daman and through the Union at Mumbai. From none of the these letters it can be concluded that the above stated demand of the Union was pending before the Conciliation Officer on 16/8/2004 when the dismissal order was issued against the respondent - workman and in any case the protection under Section 33 of the I.D. Act would be application to an action of punishment or altering the service conditions when a reference for adjudication is pending and not a reference which is received by the Labour Court / :11: Industrial Tribunal after such an action of punishment or altering the service conditions adversely has been taken. Section 33 to the extent relevant is reproduced hereunder, 8. Sub-section (1) of Section 33 protects the workmen against the employer’s action of altering to their prejudice, the conditions of service applicable to them immediately before the commencement of such proceedings, in regard to any matter connected with the dispute, or the employer shall not, for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. . As per sub-Section (2), during the pendency of any proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of :12: such proceeding, or for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman, . Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. . Sub-Section (3) grants protection to any protected workman concerned in such dispute on the lines of sub-Section (2) of Section 33. 9. Mr.Bapat, the learned counsel for the respondent submitted that demands pending for adjudication before the Labour Court in Reference (IDR) No.12 of 2004 were connected with the issue of the legality of the charge-sheet and consequent dismissal from service of the workman and, therefore, the Labour Court was justified in passing the impugned interim order more so when the proceedings in Reference (IDR) No.12 of 2004 and the approval :13: application proceedings i.e. CMA No.109/2004 were consolidated by the Labour Court as per the joint application dated 13/10/2006 made by the parties. These submissions, if accepted in the instant case, would render the application filed for approval under Section 33(2)(b) of the Act by the petitioner-company infructuous. At the same time as is the well settled position in law for the last more than fifty years or so, that the protection granted under Section 33 is in connection with a dispute already pending and it cannot be construed by any stretch of imagination that the said protection is available even when the dispute is subsequently referred for adjudication. Such an interpretation is against the language of Section 33 of the Act and such interpretation, if accepted, would take away the employer’s right to punish the employee under the standing orders because as soon as the charge-sheet is issued or second show cause notice is issued, the employee can approach the Conciliation Officer by raising a demand that either the charge-sheet was illegal or the domestic enquiry was vitiated or the findings recorded by the Enquiry Officer are perverse and get the said demand referred for adjudication or prior to that date get the demand :14: admitted in conciliation. The disciplinary action instituted by the employer would be frustrated and practically the employer’s right to take an action as per the standing orders will be rendered otiose. In the case of L.D. Sugar Mills Vs. Pt. Ram Sarup [AIR [AIR [AIR 1957 1957 1957 SC SC SC 82] 82] 82], a four-Judge Bench after referring to its earlier decisions in the case of Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union [AIR 1953 SC 241] AIR 1953 SC 241] AIR 1953 SC 241] and Automobile Products of India Ltd. v. Rukmaji Bala & ors. [AIR 1955 SC 258] [AIR 1955 SC 258] [AIR 1955 SC 258] observed as under: "The Tribunal before whom an application is made under that Section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment, whether by dismissal or otherwise, during the pendency of the proceedings therein refereed to should be lifted." (Emphasis supplied) . In the case of Blue Star Employees’ Union v. :15: Ex. Off. Principal Secy. to Government and anr. [AIR [AIR [AIR 2000 SC 3110] 2000 SC 3110] 2000 SC 3110] the Apex Court analysed the scheme of Section 33 and Section 33A of the Act as under "4. A complaint can be made to the Tribunal under Section 33-A of the Act if there has been violation or contravention of the provisions of Section 33 of the Act and if it is found that there has, in fact,been such a contravention the Tribunal can proceed to adjudicate the dispute contained in a complaint on its merits. Thus violation or contravention of the provisions of Section 33 of the Act would be the basic question that arises for consideration and before giving any relief to an aggrieved employee under this section, the Tribunal has to find out whether the employer’s action falls within one of the following prohibitions contained in Section 33 of the Act: (i) If the dispute pendin adjudication has nothing to do with :16: the alteration in conditions of service of a workman in contravention of Section 33(1)(a) of the Act or alteration of conditions of service of a ‘protected workman’ within Section 33(1) of the Act; (ii) Discharges or punishes a workman by dismissal or otherwise for a misconduct connected with the pending dispute, without obtaining prior express permission in writing of the appropriate authority as required by Section 33(1)(b) of the Act; (iii) Discharges or punishes a ‘protected workman’ by dismissal or otherwise for a misconduct not connected with the pending dispute, without obtaining prior express permission in writing of the appropriate authority as required by Section 33(1)(b) of the Act; or :17: (iv) Discharges or punishes a workman by dismissal or otherwise for a misconduct not connected with the pending dispute, without complying with the provisions of proviso to Section 33(2)(b) of the Act. 5. Thus, the contravention provisions of Section 33 of the Act is the foundation for exercise of the power under Section 33-A of the Act. If this issue is answered against the employee, nothing further survives for consideration or action by the Tribunal under Section 33 of the Act. In other words an application under Section 33-A of the Act without proof of contravention of Section 33 of the Act would be incompetent..." . The Constitution Bench in the case of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. (Supra) held that, no part of the statute shall be construed as unnecessary or superfluous. The interpretation of the statute must be such that it should advance the legislative intent and serve the purpose for which it :18: is made rather than to frustrate it and on these principles while dealing with the interpretations of Section 33 and Section 33A of the Act, Their Lordships stated as under: The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimisation 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.... Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the :19: action taken by the employer has to examine whether the order of discharge or dismissal is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. ... 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. Section 33-A is available only to an employee and is intended to save his time and trouble in asmuchas he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication..." :20: . In the case of M/s. B.P.L. and ors. vs. R. Sudhakar and ors. [2004 AIR SCW 3507] [2004 AIR SCW 3507] [2004 AIR SCW 3507] the Supreme Court stated in para 9 as under:- "9. Under sub-section (2) of the Section 33 of the Act during pendency of proceedings in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied between him and the workman for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman, provided no such workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. From this provision it is clear that for seeking an approval for discharge or dismissal of a workman from service by the employer :21: essentially proceedings in respect of an industrial dispute must be pending." 10. In the instant case the petitioner filed the approval application on 16/8/2004 as a statutory compliance in respect of the pending proceedings in Reference (IDR) No.7 of 2004 and at that time the dispute pending before the Conciliation Officer had no connection with the said pending proceedings before the Labour Court. The order of dismissal had its origin in the charge-sheet dated 8/11/2003. The demands made by the workman and which were pending for adjudication in Reference (IDR) No.12 of 2004 originated allegedly on the purported action of the petitioner - company in forcing the respondent to report for duty during the period of suspension, if he was to be eligible for the payment of subsistence allowance under the standing orders and the pendency of these demands before the Conciliation Officer as on 16/8/2004 did not by any stretch of imagination, oblige or mandate the employer to submit an application before the Conciliation officer for permission. If Mr.Bapat’s reliance on Section :22: 33(1)(b) is to be accepted, then it would have been necessary for the petitioner to make an application before the Conciliation Officer seeking express permission in writing to issue the dismissal order and not the Labour Court in any case. Therefore, the reliance of the workman on the provisions of Section 33(1)(b) of the Act is totally misconstrued and far-fetched. The Labour Court apparently failed to appreciate the protection granted under Section 33(1) and (2) of the Act and consequently committed a grave error in law in passing the impugned order on the basis of the proceedings pending in Reference (IDR) No.12 of 2004 as well as the approval proceedings i.e. CMA No.109 of 2004. The approval proceedings formed part of Reference (IDR) No.7 of 2004 and just because a joint application was filed for consolidation by the parties, it was not permissible for the Labour Court to pass such an order of consolidation dehors the specific language of Section 33 of the Act. Sub-section 1(b) of Section 33 speaks of permission for the intended action against an erring workman whereas sub-section 2(b) of the said Section provides for approval of the action already taken or proposed to be taken. There is a distinction between approval :23: and permission. The power of granting interim relief in the proceedings instituted by the employer seeking approval to an order of punishment and to be filed under Section 33(2)(b) of the Act can be entertained only when either the enquiry conducted is found to be defective or the findings of the enquiry officer are perverse or where there was no enquiry conducted before the order of dismissal was issued or the Labour Court is persuaded to hold that the order of dismissal was by way of victimisation. The learned Judge of the Labour Court in the instant case appears to have totally disregarded the pendency of Reference (IDR) No.7 of 2004 and proceeded to misconstrue the subsequent Reference (IDR) No.12 of 2004 to have been referred on the issues connected with the punishment of dismissal initiated on the basis of the charge-sheet dated 8/11/2003. The impugned order has not