IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9542 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE R.BALIA ======================================================= 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 1&2 YES : 2 to 5 : NO --------------------------------------------------------- AHMEDBHAI LALBHAI MALEK Versus MANAGING DIRECTOR GSRTC --------------------------------------------------------- Appearance: MR JS BRAHMBHATT for Petitioner MR PRANAV G DESAI for Respondent No. 1 MR DA BAMBHANIA for Respondent No. 4 --------------------------------------------------------- CORAM : MR.JUSTICE R.BALIA. Date of decision: 05/12/97 ORAL JUDGEMENT Petitioner has approached this Court in exercise of its extra-ordinary jurisdiction, in the circumstances noticed hereafter. Petitioner joined the respondent - Gujarat State Road Transport Corporation {hereinafter referred to as "the Corporation"} as Conductor in 1970. On 2-4-1994, while he was on duty en-route from Jagadia to Ankleshwar, there was a Checking and as per the allegations of the respondent Corporation, petitioner was found carrying some passengers without ticket and, some passengers, to whom after charging amount of tickets were not issued. After holding inquiry, services of petitioner were terminated by order dated 29th October, 1994. At the time when order of dismissal was made, some proceedings were pending in respect of industrial dispute before the Conciliation Officer. The misconduct for which respondents sought to dismiss the petitioner was not connected with that dispute. After making dismissal order, the Corporation applied for approval of the action taken by it stating that they have paid the wages for one month. The payment of wages for one month and application for approving the action taken by the Corporation dismissing the workman, made in accordance with law, makes the order accord with proviso to Section 33 (2)(b) of the Industrial Dispute Act, 1947. The workman on receiving the notice of application under Section 33 (2)(b), filed a reply thereto on 21st November, 1994. The petitioner alleged in his reply that the departmental inquiry against him was not in accordance with the fair procedure and as required under the relevant service rules and he also raised objection that the employer has not paid one month wages as required to be paid under Section 33 (2)(b). He also furnished in his reply details of short payment alleged to have been made to him of the one month wages required to be made. After receiving the reply and hearing the parties, the impugned order approving the action taken by respondent-Corporation came to be made by the Assistant Labour Commissioner, Bharuch. It would be appropriate for appreciating the controversy raised in this petition to reproduce the order in full, which is short one :- xJkfD xDwbZkBD/xZZD/xYbnH/315xRm16/1995. xZSSUmg xZJnb xDZmgwUbUm xDHrbm, xZuJZVnb xVudmi xHuDm xikZr, xDiD, xYbnH- 392 002. xQk.2/2/'95. xgwbm. xVm.xDr.xfikfNk, xiZkTkU xCTlDkbm, xYbnH xiZDwh, xClUwNiwLwbmad xNmiwVnL xCrDwL,1947 xUm xDdZ 33(2)xUm xCrVwbnfd. xVwbQlgwbm, xflYkFma xUlakZDgwbm, xCri.xLm. xYudkf, xYbnH. xCbJSkb xflYkFma xUlaZDgwbm, xCri.xLm.xYudkf, xYbnHCr xQk.29/10/'94 xUk xbuJ xgwbm xCrjZSYkCl xdkdYkCl xZdrDUr xQrZPr xDbrdk xFrbfQsxPnBD xXkXQ xQrZUr xXbQbW xDbfk xZkLrUm xZrUrJZrUwLUk xUlPsxaUm xXjkdm xCkVfk xZkLr xCk xDHrbm xiZDwh xCvSwauFmD xflfkS xCTlUlaZ 1947 xUm xDdZ 33(2) xUmHr xCbJm xDbrdm. xCk xiBiwRkUk xDkZSkb xQrUm xZkBFPm xCUr xiZkTkU xCUr xiZkTkUUm xDkasxfkjmZkB xHkdn xjufkRm xQr xSbZwakU xgwbm xCrjZSYkCl xdkdYkCl xZdrDUr xUuDbmZkBRm xXbQbW xDbfkUnB xVFdnB xZrUrJZrUwL xCk xCrVwbnfd xCbJm xgwbm xCrjZSYkCl xdkdYkCl xZdrDUr xQk.15/9/'94xUk xbuJ xguDuK xUuLmi xCkVm xZrUrJZrUwL xQrZUm xikZr xUmHr xVwbZkPr xCkDwhrVu xZnDrdk... xLmDmLZkB xFrbbmQm xCkHbP xDbfk. xCnVbuDwQ xCkDwhrVu xCBFr xgwbm xCrjZSYkCl xdkdYkCl xZdrD xikZr xQVki xjkR xTbfkZkB xCkfm xjQm. xgwbm xCrjZSYkCl xdkdYkCl xZdrDUr xXHkfUm xQD xCkVfkZkB xCkfm xjQm. xCnVbuDwQ xCbJmZkB xVDwhDkbuUr xQk.23/1/'95 xUk xbuJ xikBYefk xZkLr xXudkfwak xjQkB. xgwbm xCrjZSYkCl xdkdYkCl xZdrDUr xQrZUnB xUlfrSU xbJn xDbfkUnB xJPkfwanB xjQnB. xQrZPr xQrZUk xanUlaU xZkbWQr xdrEmQ xflFQu xTwakUZkB xdrQkB xZrUrJZrUwLr xQrZUk xgwbm xCrjZSYkCl xdkdYkCl xZdrDUr xXbQbW xDbfk xXkXQZkB xdrfk xTkbrdk xUlPsxaUr xCkRm xCvSwauFlD xflfkS xCnViwRlQ xDbfkUm xjDwDUr xXkT xU xCkfr xQr xgbQr xXjkdm xCkVfkZkB xCkfr xIr. (xijm) (xCfkHwa) xUDd xbfkUk xgwbm xCrjZSYkCl xdkdYkCl xZdrD., xQbikdm, xZn.xVu.xYkduS, xQk.xKFNmak. xJl. xYbnH. Learned counsel for petitioner urges that the impugned order approving the action taken by Corporation by the Assistant Labour Commissioner suffers from patent breach of principles of natural justice. The order neither takes notice of contentions raised by petitioner in his written reply to the show-cause notice against prayer of approval to the dismissal order made by the respondent Corporation nor does it give any reasons for granting the approval. As the proceedings for according approval is required to be completed, after affording an opportunity of hearing, as the proceedings are quasi-judicial in nature and as the final order made on application vitally affects the rights of petitioner adversely, the order was required to be made in consonance with the principles of natural justice. Such orders are required to be speaking order as the natural concomitent of fair procedure required of authority to adhere to principles of natural justice in deciding the rights of parties. The order falls short of this requirement and is void. The learned counsel for respondent urges that the order of termination, discharge or dismissal does not become inoperative or ineffective merely because approval is not granted or is withdrawn or application is not made. He contended that there is a vital difference between the scheme of sub-Section (1) and sub-Section (2) of Section 33. While under sub-Section (1) of Section 33, seeking approval of the Competent Officer is a pre-condition before an order of dismissal or discharge or termination can be made, under sub-Section (2), application for approval is to be made only after the order has been made. In other words, the requirement of making an application itself under sub-Section 2 (b) of Section 33 is not a condition precedent of making the order but is requirement subsequent to making an order. The order of termination, discharge or dismissal, in the latter case, becomes operative as soon as it is made, and refusal or grant of approval does not affect the operation of order. The remedy of aggrieved party is to approach Industrial Tribunal under Section 33A of the I.D Act or under Section 10 of the Act against the wrongful order of granting or refusing approval. He drew support for this contention from the provision of Section 33 and 33-A as well as from the decision of the Supreme Court in M/s. Punjab Beverages Private Limited, Chandigarh v. Suresh Chand AIR 1978 SC 995. It will be appropriate to reproduce Section 33 for considering the controversy. 33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings - (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceedings before "an arbitrator" (a) or Labour Court or a Tribunal or National Tribunal in respect of an industrial dispute, no employer shall, - (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings, or (b) 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. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the 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", (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings; or (b) 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." The aforesaid provision is in contrast with the provision of sub-Section (1) of Section 33 which requires that during the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before an Arbitrator, Labour Court or Tribunal in respect of an industrial dispute, the employer shall not discharge or punish, by way of dismissal or otherwise, any workman for any misconduct connected with the dispute, save with the express permission in writing of the authority before which the proceeding is pending. Sub-Section (2) on the other hand provide that during the pendency of any such proceeding; as has been referred to above, the employer may, in accordance with the Standing Orders applicable to the workman concerned in such dispute or in accordance with the terms of contract, where no such standing orders are applicable, discharge or punish, whether by dismissal or otherwise, that workman for any misconduct not connected with the dispute, 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. Thus, while in the former case, there is a prohibition against making an order of discharge or of punishment of the workman concerned in the dispute, if he is sought to be dismissed or discharged or punished, for the misconduct connected with the dispute, unless prior permission of the authority before whom such proceeding is pending, is obtained. In the latter case, it is statutorily permissible for an employer to take action for dismissing or otherwise imposing any other punishment on the workman where the misconduct for which action is to be taken, is not connected with the dispute. However, the condition subject to which an order can be made in such cases is that such a workman must have been paid wages for one month before action is taken and an application has been made by the employer to the authority before whom the proceeding is pending for approval of the action taken by the employer. There is a statutory requirement to make an order on such application after hearing the concerned parties which makes adherence to principles of natural justice in deciding such application a statutory mandate. One thing further is clear that while payment of one month's wage is a condition precedent for such an order to come into being further requirement is only to make an application for approval, but the permission on that is not a condition of making an effective order. Thus, act of dismissal or punishment is envisaged to come in existence in the case governed by Sec. 33 (2) without there being an approval. There is no indication that it contemplates only a sterile order to come in existence. When the law envisages certain acts to be permissible at the hands of one party ordinarily it envisages effective acts and not still-born. In these circumstances, the order of discharge or punishment by way of dismissal or otherwise cannot be deemed to remain in abeyance untill application is decided. While there is no dispute or debate about the validity of such order coming into operation in case application for approval is granted, the serious issue is joined on the question where the application has not been granted. It has been the case of learned counsel for petitioner that if application for approval is not granted, the order of discharge or dismissal or punishment in any other manner becomes inoperative on rejection of such an application or in absence of such application. He places reliance on The Straw Board Manufacturing Company Limited vs. Govind, 1962 SC 1500 and on S. Ganapathy & Ors. v. Air India & Anr., 1993 SC 2430. The learned counsel for respondent Mr. Desai on the other hand contended to the contrary and placed reliance on Punjab Beverages' case. (Supra). The matter came up for consideration before a three Judge's Bench of the Hon'ble Supreme Court in The Straw Board Manufacturing Co. Ltd Saharanpur vs Govind AIR 1962 SC 1500. The circumstances in which the question about the interpretation of section 33 (2) (b) came up before the Court were that the appellant had dismissed the respondent on February 1,1960 for alleged wilful in-subordination. As, two disputes were pending between the appellant and its workmen, one before the Industrial Tribunal at Allahabad and the other before the Labour Court at Meerut, the appellant sent separate applications by post on the same day to the two authorities for approval the action taken. While the Tribunal at Allahabad approved of the action on March 22,1960, the Labour Court at Meerut on April 29,1960 refused to approve the action taken, though the order passed by the Tribunal at Allahabad already was brought to its notice. Moreover, the Labour Court pointed out `that though ordinarily an application of the appellant therein should have been granted in these circumstances', it refused to approve the action of employer on the ground that application for approval has been made after the respondent had already been dismissed, and therefore, it held that application was not bona fide inspite of a finding in favour of the employer that there was no victimisation or unfair labour practice the part of the employer. The principal question before Their Lordships of the Supreme Court was whether the application for approval is required to be moved prior to issuing the dismissal or discharge order. This question was answered by the Apex Court as under :- "In this connection our attention was drawn to sec.33-A of the Act which gives a right to the employee to apply for redress in case an employer contravenes the provision of S.33 and there is no doubt that the proviso to S.33(2)(b) should be so interpreted as not to whittle down the protection provided by S.33-A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein namely,(i) dismissal or discharge, (ii) payment of wages and; (iii) making of an application for approval, to be simultaneous and to be part of the same transection, so that the employer when he takes action under S.33 (2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. When however, we say that the employer must take action simultaneously or immediately we do not mean that literally, for when two things are to be done, they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer's conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, (iii) making of an application are part of the same transaction. If that is done, there will be no occassion to fear that the employee's right under S.33-A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken, should be a question of fact and will depend upon the circumstances of each case." Before concluding, and while considering the question whether a prior application and securing a prior permission, as is required by Sec. 33 (1), is also to be read as part of requirement under Sec. 33 (2) (b), the Court opined: "If the intention was that in view of the proviso the employer could not pass the order of dismissal or discharge without first obtaining the approval of the tribunal, we see no reason why the word in the proviso should not have been similar to those in sub-ss.(1) & (3), namely, that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. The change therefore in the language used in the proviso to sub-s.(2)(b) clearly shows, in our opinion, that the legislature intended that the employer would have the right to pass an order of discharge or dismissal subject to two conditions, namely, (i) payment of wages for one month and (ii) making of an application to the authority concerned for approval of the action taken. The use of the word " approval " also suggests that what has to be approved has already taken place , though some times approval may also be sought of a proposed action. But it seems to us in the context of the approval here is of something done, as otherwise, it would have been twice easy for the legislature to use the words "for approval of the action proposed to be taken" in the proviso. Further, sub-s.(5) also suggests when it uses the words "approval of the action taken" that some action has been taken and it is that action which the employer wants to be approved by his application. The difference between sub-sec.(1) and sub-sec.(2) is therefore that under sub-sec.(1) the employer proposes what he intends to do and asks for the express permission of the authority concerned to do it; in sub-sec. (2) the employer takes the action and merely asks for approval of the action taken from the authority concerned by his appalication. There can, therefore, be no doubt that sub-sec.(2)(b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time, make an application for approval of the action taken by him......" At this stage, an apprehension was raised on the part of the workmen that if the tribunal refuses to approve the action already taken, then, the workmen may be left without any remedy. This apprehension was allayed by the Court by stating; "xxx If the Tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in service of the employer. In such a case, no specific provision as to reinstatement is necessary and by thevery fact of the tribunal not approving the action of the employer, the dismissal or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was l any dismissal or discharge by the employer. In that sense, the order of discharge or dismissal passed by the employer does not become final and conclusive until it is appraoved by the tribunal underS. 33(2)." The Court did not lay down that the operation of order shall remain in abeyance. The very fact that the Court opined that in case approval is not accorded, the consequences will be that action will fall by deeming as if workman was never dismissed and deeming him to continue in service, suggests that Court envisaged that though order would become operative, it will attain finality only on order of approval. The decision does not support the contention that order does not become operative. Thereafter, the matter again came up before another three Judges' Bench of the Hon'ble Supreme Court in Punjab Beverages v/s Suresh Chand, AIR 1978 SC 995. The question arose in the circumstances that the workman was dismissed on 23rd December 1974 after holding a regular inquiry by the employer. Since an industrial dispute was pending before the Industrial Tribunal, at Chandigarh, in view of the provisions contained in Sec. 33 (2)(b) of the Act, the employer immediately moved the Industrial Tribunal, for approval of the action taken by it. But, before final order could be made, the employer made an application for withdrawing the application and the application was dismissed as withdrawn. The workman on treating the order of dismissal as inoperative, made an application to the labour court under sec. 33-C(2) for determination and payment of the amount of wages due to him from the date of suspension treating the order of dismissal to be void and treating himself to be continuing in service. The employer resisted the application under sec. 33-C(2), inter alia, on the ground that the application under Sec.33 (2)(b) having been withdrawn, the position was as if no application had been made at all with the result that though there was contravention of Sec. 33(2)(b), but such contravention did not render the order of dismissal void ab-intio and it was merely illegal and unless it was set aside in an appropriate proceedings under sec.33-A or in a reference under sec.10 of the I.D.Act, the labour court has no jurisdiction under S.33-C(2) to direct payment of wages to the workman. Directly the question that arose before Hon'ble Supreme Court was as to what is the effect of contravention of Section 33 (2)(b) on an order of dismissal passed by an employer in breach of it. Does it render the order of dismissal void and inoperative so that aggrieved workman can say that he continues to be in service and is entitled to receive wages from the employer ? Court examined the issue in light of the scheme of various provisions contained in the Chapter VII of the I.D. Act providing for the requirement of the approval in cases of discharge or dismissal or other adverse orders during the pendency of the industrial disputes between the employer and the employees and the consequences flowing from contravention of such provisions, if any. The Court stated that :- "It is well-settled rule of construction that no one section of a Statute should be read in isolation, but it should be construed with reference to the context and other provisions of the Statute, so as, as far as possible, to make a consistant enactment of the whole Statute.... The object of the legislature in enacting this section 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 on account of his having raised the industrial dispute or his continuing the pending proceedings and to ensure that the pending proceedings are brought to an expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause pending to further exacerbate the already strained relations between the employer and the workmen. But at the same time, it recognises that the occassions may arise then the employer may be justified in discharging or punishing by dismissal his employee and though 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. On what principles, however, is the Tribunal to act in granting or refusing permission or approval and what is the scope of inquiry before it when it is moved under this section ?" Thereafter the Court, after referring to the earlier decisions of the Court in Atheston West & Company Limited v. Suti Mill Mazdoor Union, AIR 1953 Sc 241 : Lakshmi Devi Sugar Mills Limited v. Pt. Ram Sarup, AIR 1957 SC 82 and the Punjab National Bank Limited v. Its Workmen, AIR 1960 SC 160 stated :- "6.. It will be seen that the only scope of the inquiry before the Tribunal exercising jurisdiction under S.33 is to decide whether the ban imposed on the