DBSAW No.706/2008. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R D.B. CIVIL SPECIAL APPEAL (WRIT) NO.706/2008. in S.B. CIVIL WRIT PETITION NO.3250/2006. Karan Singh Vs. Authorised Disciplinary Authority RSRTC & Anr. Date of order : December 18, 2008. HON'BLE THE CHIEF JUSTICE MR.NARAYAN ROY HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Babu Lal Gupta for the appellant. Shri Vinod Kumar Sharma on behalf of Shri Ashok Bansal for the respondents. **** Reportable BY THE COURT (Per Hon'ble Mr.Mohammad Rafiq J.) :- This appeal seeks to challenge the order dated 15/11/2007 by which, the application of the appellant-workman under Section 17B of the Industrial Disputes Act, 1947 (for short, "the Act") was dismissed. Said writ petition was filed by the respondent-RSRTC Jaipur challenging the order dated 31/8/2004 whereby, application of the RSRTC seeking approval of removal of the appellant-workman as DBSAW No.706/2008. 2 required by provisions of Section 33(2)(b) of the Act was rejected. Learned Single Judge held that the application under Section 17B of the said Act filed in a writ petition arising out of proceedings under Section 33(2)(b) thereof as not maintainable and therefore rejected the same. 2) Shri Babulal Gupta, learned counsel for the appellant has argued that application under Section 17B of the Act would be maintainable in a writ proceeding in which order passed under Section 33(2) (b) refusing approval is under challenge at the instance of the respondent-management. It was contended that effect of non-approval would be that removal of the appellant would be rendered illegal entitling him to reinstatement with consequential benefits. In support of his argument, learned counsel for the appellant has placed reliance on the judgments of Supreme Court in T.N. State Transport Corporation Vs. Neethivilangan, Kumbakonam : (2001) 9 SCC 99 and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others : 2002(2) SCC 244. Such an order is therefore similar to the award declaring removal illegal in a reference proceeding. When the order rejecting application under Section 33 (2)(b) was challenged by the management, it is permissible for the appellant to claim last drawn wages in terms of Section 17B supra. In order to butteress his submission, learned counsel for the appellant relied on Full Bench judgment of Delhi High Court in Delhi Transport Corporation Vs. Jagdish DBSAW No.706/2008. 3 Chander : 2006(1) SLR 610, Division Bench judgment of Calcutta High Court in Bata India Limited Vs. Seventh Industrial Tribunal West Bengal and others : 1994(1) SLR 155 and judgments of this Court in RSRTC Vs. Kumaresh Gautam and another : 2007(5) WLC (Raj.) 59 & Hotel Mansingh Vs. Judge, Industrial Tribunal, Jaipur & Anr. : 2000(4) WLC (Raj.) 184 and Division Bench judgment of Andhra Pradesh High Court in V.John Vs. Chief General Manager, Singareni Collieries Co.Ltd. and another : 1995(8) SLR 304. 3) Shri Vinod Kumar Sharma, learned counsel for respondent-RSRTC opposed the appeal and argued that Section 17B in terms applies only to a proceeding where challenge is made to the award passed by labour court or industrial tribunal directing reinstatement of a workman by the employer in High Court or Supreme Court. When Section 17B of the Act has not been provided for an eventuality like the present one, which has arisen consequent upon refusal of approval, same cannot be read into therein because scope of a particular provision of the statute cannot be extended by mere process of reasoning. An extended meaning cannot be given to the word "award directs reinstatement" appearing in Section 17B as that would tantamount to treating an order refusing to grant approval or removal of a workman as an award. It is therefore contended that the learned Single Judge was justified in rejecting the application under Section 17B of the Act as not maintainable. Special appeal be therefore dismissed. DBSAW No.706/2008. 4 4) Having considered the rival submissions of the parties and perused the material forming part of the record, we find that different Benches of other High Courts have taken the view in Delhi Transport Corporation, Bata India Limited, Kumaresh Gautam, Hotel Mansingh and V.John supra that rejection of application for approval of termination of a workman results in making such termination as void ab initio. and non-est. In fact, Division Bench of Calcutta High Court in Bata India Limited supra relying on its earlier Division Bench judgment in Sheikh Shamser Ali Vs. M/s.Kesoram Industrial Cotton Mills Ltd. : 1987 (2) Calcutta High Court Notes 39 took that view. Calcutta High Court held that decision of the industrial tribunal under Section 33(2)(b) of the Act approving or refusing to approve, the order of dismissal, is certainly a matter relating to employment or non-employment of the workman and is certainly a determination by the Tribunal in respect thereto. Such decision is certainly a determination to the effect that dismissal in question is invalid and therefore cannot be approved of. It was further held that "there is no reason therefore, as to why giving a liberal interpretation to the provision of Section 17B of the said Act, such a decision of the Industrial Tribunal under Section 33(2)(b) of the said Act cannot be termed as an award within the meaning of Section 17B of the said Act." 5) As to the argument that order of Tribunal rejecting application under Section 33(2)(b) cannot DBSAW No.706/2008. 5 be termed as an award, it is apposite to reproduce herein observations of the Calcutta High Court in para 11 of the said judgment, which are as under:- "In that view of the matter we are unable to accept the admission of Mr.Ginwala that provision of Section 17B would not be applicable as there was no award directing reinstatement. The defintion of award and Industrial Disputes as it would appear from Section 2(b) and Section 2(k) of the said Act themselves, are of the widest amplitude. Award has been defined under Section 2(b) of the Act as an interim or final determination of any Industruial Disputes or of any question relating thereto of any Labour Court or Industrial Tribunal or National Industrial Tribunal and Industrial Disputes has been defined under Section 2(k) of the said Act as any dispute between the employers and employees or between the employees and workman and between the workman and employers which is connected with the employment or non-employment or with the terms of the employment or with the conditions of Labour of any persons. The decision of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act disapproving the order of dismissal, is certainly a matter relating to employment or non-employment of the workman and is certainly a determination by the Tribunal in respect thereto. Such decision is certainly a determination that the dismissal in question is invalid and therefore cannot be approved. There is to reason therefore, as to why giving a liberal interpretation to the privision of Section 17B of the said Act, such a decision of the Industrial Tribunal under Section 33(2)(b) of the said Act cannot be termed as an award within the meaning of Section 17B of the said Act." 6) Reiterating this very view, Division Bench of Andhra Pradesh High court in V.John supra in para 9 of the judgment, observed, as under:- DBSAW No.706/2008. 6 "We have only echoed this view when we have held earlier that without approval of the competent authority the contract of service of the appellant-workman is not determined. The appellant continues in service and thus entitled to all the benefits of the service. Even before S.17-B was introduced in the statute, courts in their discretion awarded wages to workmen when they felt such a discretion is necessary. In case where the order imposing punishment is ab initio void, can the court say it shall leave the workman without any emoluments and at the mercy of the employer. Under the scheme of our Constitution when rights of an employee and protections extended to the conditions of service by the statutes are guarded under Art.21 of the Constitution of India, and it is seen by the court that the determination of the contract of service has not been reached in accordance with the prescribed procedure of law, it will be rather going against the Constitution of India, and it is seen by the court that the determination of the contract of service has not been reached in accordance with the prescribed procedure of law, it will be rather going against the Constitution of India if statutory protections are ignored and employee is left at the mercy of the employer." 7) Full Bench of Delhi High Court in Jagdish Chander supra also followed the same view. Earlier, there was divergence of opinion between different Division Benches of Delhi High Court as to whether the words "award directs reinstatement" in Section 17B of the Act would also cover an order rejecting application for approval of removal of a workman. A reference on this question was therefore made to the Full Bench. Full Bench in Jagdish Chander supra noticed divergent opinion expressed by different benches not only of the Delhi High Court but also in other High Courts including Calcutta High Court, Orrissa High Court, Bombay High Court and Andhra DBSAW No.706/2008. 7 Pradesh High Court. It was held by the Full Bench that "emphasis of legislature is on reinstatement rather than on an 'award'". The sole object was to purposely indicate that it intends to provide the workman protection against the long litigation and exploitation by the affluent Management. It was held that though remedy has been provided for by the statute to enforce the award specifically directing reinstatement of a removed workman "but the legislative scheme of the Act does not in terms stipulate any specific remedy or consequences in the event of denial of approval by the competent forum. This lacuna in the provisions of the Act has been supplied by the judicial pronouncements and a complete remedial bridge has been provided to fill up this gap by the judgments of Supreme Court." The court in holding so relied on the judgments of Supreme Court in Tamil Nadu State Transport Corporation supra and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. supra. 8) Supreme Court in Tamil Nadu State Transport Corporation supra held that requirement of Section 33 (2)(b) of the Act was mandatory and if apoproval is not granted, order of discharge or dismissal would be rendered void and inoperative. It was further held that rejection of approval application by the court would give rise to consequential right in favour of the workman. As such, Supreme Court held, the dismissal order would become non-est and the employer was bound to treat the workman as continuing in DBSAW No.706/2008. 8 service with all consequential benefits. It was further observed that workman concerned could get that right enforced even under Article 226 and need not raise a new industrial dispute for that purpose. Later, this very view was reiterated by a three-Judge bench of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. supra, which over-ruled an earlier judgment of the Supreme Court in M/s.Punjab Beverages (P) Ltd. Vs. Suresh Chand and another : (1978) 2 SCC 144. 9) In fact, question as to what would be the consequences of non-approval stood already answered by the Supreme Court in P.D. Sharma Vs. State Bank of India : AIR 1968 SC 985 in the following terms:- "xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx On a comparison of sub-ss.(2) and (3) (sic- Sub-ss.(3) and (2)) of S.33 it will be seen that the scope of the two provisions are wholly different. Taking the case of a worker's discharge or punishment by dismissal or otherwise in the former the previous permission of the authority before which the industrial dispute is pending is necessary but under the latter only a subsequent approval from a competent auhtority is needed. Though the application under that proviso should be made to the authority before which the industrial dispute is pending the approval to be obtained need not be from that authority. Once approval is given it goes back to the date on which the order in question was made. If the approval asked for is not accorded then the action taken by the employer becomes ab initio void and the employee will continue in service and his conditions of service will also continue without any break as if the order in question had not been made at all. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx." DBSAW No.706/2008. 9 10) This earliest judgment on the given controversy does not appear to have been noticed by the Supreme Court in either Tamil Nadu State Transport Corporation or in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. supra. This was not noticed even in M/s.Punjab Beverages (P) Ltd. supra and also not noticed in Full Bench judgment of Delhi High Court in Jagdish Chander supra. Supreme Court in P.D. Sharma supra while considering the scope of sub- Sections (2) & (3) of Section 33 of the Act held that if such approval under Section 33(2)(b) is not accorded, action taken by the employer becomes void ab initio and it is bound to treat the employee as continuing in service and give him all the consequential benefits. That being the consequence of rejection of approval application, employee would be entitled to enforce such a wider right even by himself approaching this court under Article 226 of the Constitution of India, limited right to receive last drawn wages with reference to Section 17B of the Act in a proceeding under Article 226 of the Constitution of India challenging the order of the labour court/industrial tribunal rejecting application for approval, can certainly be not denied to such a workman. 11) Words "award directs reinstatement" of any workman as appearing in Section 17B of the Act shall have to be therefore given a purposeful and contexual interpretation, object of the enactment being to ensure peace and harmony between the workmen and the DBSAW No.706/2008. 10 management so as to ensure industrial development while keeping the socio-economic standards of the workmen duly protected. Award in Section 2(b) of the Act has been defined to mean as an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award, made under Section 10-A. Industrial dispute has been defined in Section 2(k) of the Act to mean any dispute or difference between employers and employers and workmen or between workmmen and workmen, which is connected with the employment or unemployment or the terms of employment or with the conditions of labour of any person. A conjoint reading of these two provisions demonstrates that these expressions have been widely worded so as to cover within their ambit disputes relating to any person who satisfies the conditions thereof, so much so that even an interim determination of any industrial dispute or of any question related thereto by any Labour Court / Industrial Tribunal, has been defined to mean as an award. Refusal by the Labour Court / Industrial Tribunal to grant approval of the removal of a workman renders such removal void ab initio and non- est giving rise to legal fiction that workman continues in service as if the order of discharge or removal or dismissal was never passed. Such fiction by virtue of non-approval relates back to the date of discharge. This essentially therefore declares not DBSAW No.706/2008. 11 only the order of removal/retrenchment/dismissal as illegal but also entitles the workman to reinstatement. An order of refusal of removal thus has all the trappings which are attached to an award after adjudication. 12) In view of aforesaid discussion, we are unable to concur with the view taken by the learned Single Judge. Impugned-order passed by the learned Single Judge holding application under Section 17B in a writ petition arising out of proceedings under Section 33(2)(b) of the Act as not maintainable thus cannot be sustained. This appeal is therefore allowed. Consequently, the impugned order dated 15/11/2007 is set-aside and the application filed by the appellant- workman is allowed and he is held entitled to last drawn wages and is further held entitled to receive such last drawn wages throughout during pendency of the writ petition namely; from the date of filing of writ petition till its disposal in accordance with provisions of Section 17B of the Industrial Disputes Act. (MOHAMMAD RAFIQ), J. (NARAYAN ROY), CJ. anil