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

3. According to the appellant, the only issue in these proceedings was regarding the validity of termination of the service of theIt is the case of the appellant that the approval of the subsequent dismissal was not at all before the Single Judge in the proceedings in question. The learned Single Judge in its judgment dated 20.3.1993 had observed asthe 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 he continues in service and the subsequent order of termination of his services would not be deemed to be operative.The appellant, being aggrieved, filed appeals before the Division Bench. As per case set out in these appeals, the Division Bench has also approved the above observations of the learned Single Judge. The appellant filed review applications which have been dismissed by the impugned order in Civil Appeal Nos.... of 2005 @ SLP(C) Nos.of 2004. The appellant has sought to setting aside of the above quoted observations made by the Single Judge which have been affirmed by the Division Bench. That the Division Bench has erred in dismissing the review applications although there was a mistake apparent on the face of the record.6. As the present litigation has acquired chequered history with several proceedings pending, it would be necessary to set out the few relevant facts which are necessary to adjudicate upon the controversy raised in these appeals.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 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.

Reasoning:
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.