Case: M/S. Kec International Ltd Vs. Shankar Lal Sharma

law.As the matter stands now, I am of the considered view that the petitioner should be deemed to be in continuous service. On the question of the subsequent termination of his service, no formal approval having been taken within the meaning of Sec. 33(2)(b) of the Act, the net effect is that the continues in service and the subsequent order of termination of his services would not be deemed to be operative. While the final decision is to be arrived at by the Labour Court again on these two specified questions. I would make it clear that the petitioner Shanker Lal would be deemed to be in continuous service and it would not be construed that the Award as made by the Labour Court as regards directing reinstatement of the workman Shankar Lal Sharma has in any manner been set aside or recalled." (Emphasis supplied) 13. Since both the writ petitions were disposed of by the aforesaid common judgment, the appellant filed two special appeals against the aforesaid judgment. The Special Appeal No. 589 of 1997 was filed by the appellant against the decision of the Single Judge in S.B. Civil Writ Petition No. 4127 of 1994 on the ground that the learned Single Judge had examined the factual aspect of the matter was if it was a court of appeal and the conclusion arrived at with regard to the number of days the workman had worked with the appellant company during 12 months immediately preceding his termination on 8.8.1981 was factually incorrect. It was prayed that the order of the Single Judge be set aside and the writ petition be allowed and the relief be granted in terms of the prayers made in the writ petition. 14. Special Appeal No. 591 of 1997 was filed by the appellant against the decision of the Single Judge in S.B. Civil Writ Petition No. 2860 of 1997 on the ground that the learned Single Judge had exceeded in the exercise of its jurisdiction in holding that the order of termination of the respondents services would be inoperative as formal approval under Section 33(2)(b) of the Act for subsequent dismissal had not been obtained. 15. The Division Bench dismissed the Special Appeal No. 589 of 1997 by observing that the Single Judge could examine the factual aspect of the matter n the basis of the evidence available and upheld the order of remand passed by the Single Judge to ascertain as to whether the workman had completed 240 days of service or not. The learned counsel for the appellant does not challenge this finding of the Division Bench.16. The Division Bench dismissed the Special Appeal No. 591 of 1997 as well as rejected the contention advanced on behalf of the appellant that the Single Judge had exceeded in the exercise of his jurisdiction that the subsequent dismissal of the respondent on 8.4.1992 will be inoperative because of the lack of formal approval under Section 33(2)(b) of the Act for the subsequent dismissal.17. The appellant has filed the present appeals for setting aside the observations made by the Single Judge, reproduced in para 5 of this judgment, and its affirmation by the Division Bench. The counsel appearing for the respondent-workman fairly concedes that the aforesaid observations made by the Single Judge as affirmed by the Division Bench did not arise in the present proceedings and therefore, unwarranted and uncalled for being obiter. He has no objection to the setting aside the above quoted observations made by the Single Judge as affirmed by the Division Bench. Accordingly, the above quoted observations made by the Single Judge in its order which have been later on affirmed by the Division Bench are set aside.18. Learned counsel for the appellant prayed that in view of the setting aside of these observations, the tribunal be directed to decide the application filed by the appellant for approval of the subsequent proceeding with regard to the subsequent dismissal afresh, we do not agree with this contention.19. The appellant filed an application before the tribunal on 8.1.1999 for fixing the date in application under Section 33(2)(b) of the Act pursuant to the tribunals order dated 7.4.1993 on the ground that the order of Single Judge had been stayed by the Division Bench. Tribunal dismissed the application filed by the appellant on the ground that the appellant was indirectly seeking review of its order dated 7.4.1997.20. Appellant, being aggrieved, by the aforesaid order of the tribunal filed CWP No. 4618 of 1997. This writ petition was dismissed by the Single Judge on 19.8.2002. Aggrieved against the order passed by the Single Judge in CWP No. 4618 of 1997, the appellant has filed DBSAW No. 1006 of 2002 which is still pending. The appellant would be at liberty to urge the point regarding the approval under Section 33(2)(b) of the Act to the subsequent dismissal of the respondent-workman in DBSAW No. 1006 of 2002. We agree in substance with the contention raised by the learned counsel for the appellant that the appellant is entitled to get a decision on merits on the application filed by it under Section 33(2)(b) of the Act seeking approval on the subsequent action taken but for that we cannot send the case back to the industrial tribunal as the tribunal has already decided the said application and the matter is now pending for adjudication before the High Court in DBSAW No. 1006 of 2002. Remittance of the case to the tribunal would amount to deciding the matter pending before the High Court in DBSAW No. 1006 of 2002 which we refrain ourselves from doing.21. The Division Bench shall decide DBSAW No. 1006 of 2002 without being influenced by any of the observations made by the Single Judge, the Division Bench or by us regarding the approval of the application filed by the appellant under Section 33(2)(b) of the Act with regard to the subsequent dismissal of the respondent-workman. All contentions are left open to the parties in this regard.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. Learned counsel for the appellant prayed that in view of the setting aside of these observations, the tribunal be directed to decide the application filed by the appellant for approval of the subsequent proceeding with regard to the subsequent dismissal afresh,we do not agree with this contention.19.The appellant filed an application before the tribunal on 8.1.1999 for fixing the date in application under Section 33(2)(b) of the Act pursuant to the tribunals order dated 7.4.1993 on the ground that the order of Single Judge had been stayed by the Division Bench. Tribunal dismissed the application filed by the appellant on the ground that the appellant was indirectly seeking review of its order dated 7.4.1997.20. Appellant, being aggrieved, by the aforesaid order of the tribunal filed CWP No. 4618 of 1997. This writ petition was dismissed by the Single Judge on 19.8.2002. Aggrieved against the order passed by the Single Judge in CWP No. 4618 of 1997, the appellant has filed DBSAW No. 1006 of 2002 which is still pending.The appellant would be at liberty to urge the point regarding the approval under Section 33(2)(b) of the Act to the subsequent dismissal of thein DBSAW No. 1006 of 2002. We agree in substance with the contention raised by the learned counsel for the appellant that the appellant is entitled to get a decision on merits on the application filed by it under Section 33(2)(b) of the Act seeking approval on the subsequent action taken but for that we cannot send the case back to the industrial tribunal as the tribunal has already decided the said application and the matter is now pending for adjudication before the High Court in DBSAW No. 1006 of 2002. Remittance of the case to the tribunal would amount to deciding the matter pending before the High Court in DBSAW No. 1006 of 2002 which we refrain ourselves from doing.21. The Division Bench shall decide DBSAW No. 1006 of 2002 without being influenced by any of the observations made by the Single Judge, the Division Bench or by us regarding the approval of the application filed by the appellant under Section 33(2)(b) of the Act with regard to the subsequent dismissal of theAll contentions are left open to the parties in this regard.