Case: Indian Telephone Inds. Ltd.&amp;Anr Vs. Prabhakar H. Manjare

n were in the service of the; they were kept under suspension w.e.f. 4.5.1984: since an industrial dispute was already pending, the company moved an application seeking approval of the order of dismissal dated 21.1.1986 of the respondents under Section 32(2)(b) of the Industrial Disputes Act, 1947 (for short the Act). The National industrial Tribunal by two separate orders, both dated 1.9.1987 held that the orders of dismissal were invalid fore of the provisions of Section 33(2)(b) of the Act in that wages for one month were not paid; these orders of the Tribunal remained unchallenged and reached finality. The petitioners, treating thee of Section 33(2)(b) as mere technical breach, passed orders of dismissal for the second time on 9.10.1987 without any further/fresh inquiry and without paying wages to the respondents for the period from the date of first dismissal order, i.e., 21.1.1986 to 9.10.1987, i.e., date of second dismissal order; the company again moved applications seeking approval of the orders of dismissal before the National Industrial tribunal; this time the Tribunal granted approval on 2.3.1989 relying on the judgment of this Court in M/s. Punjab Beverages Pvt. Ltd., Chandigarh vs. Suresh Chand & Anr. [(1978) 2 SCC 144) . In the writ petition filed by the respondents, the learned Single Judge of the High Court upheld the order of the Tribunal; the respondents filed writ appeals challenging the order of the Tribunal as affirmed by the learned Single Judge: the Division Bench of the High Court by the impugned order allowed the appeals and set aside the order of the learned Single Judge affirming the order of the Tribunal and held that the respondents shall be deemed in continuous service of the petitioners and were entitled to all consequential benefits. Aggrieved by the same, the petitioners have filed special leave petitions in this Court raising the questions similar to the questions raised in Civil Appeal Nos.8 of 1986 Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma & Others) [(2002) 2 SCC 244] and those appeals were referred to the Constitution Bench. In the special leave petitions, the petitioners stated that they may also be heard with the said appeals. This Court on 9.8.2001 ordered that the special leave petitions filed by the company be also heard alongwith Civil Appeal Nos.8 of 1986. The Constitution Bench decided the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) holding Punjab Beverages vs. Suresh Chand [(1978) 2 SCC 144) is no more a good law and approved the judgment in Straw Board Manufacturing Co. vs. Govind [(1962) Supp. 3 SCR 618] and Tata Iron and Steel Co. Ltd. vs. S.N. Modak [(1965) 3 SCR 411] . The questions raised in the special leave petitions filed by the petitioners are covered by the Constitution Bench judgment delivered on 17.1.2002 in Jaipur Zila Sahakari Bhoomi Vikar Bank Ltd. (supra). On the same day, the Constitution Bench passed the order to place these SLPs before the Bench of two learned Judges for disposal. Thus, these SLPs came up for hearing before this Bench.

Reasoning:
6. It is admitted position that the petitioners did not reinstate the respondents after the Tribunal passed order on 1.9.1987 refusing to approve the first order of dismissal dated 21.1.1986; they were also not paid their wages between the first order of dismissal dated 21.1.1986 and the second order of dismissal dated 9.10.1987; the judgment of the Tribunal dated 1.9.1987 had attained finality inasmuch as it was not challenged any further before the High Court or this Court. It appears the second order of dismissal was passed on the assumption thate with the requirements of the proviso to Section 33(2)(b) was only a technical breach and, therefore, by paying one months wages, second order of dismissal could be passed8. The judgment dated 1.9.1987 given by the Tribunal had reached the finality inasmuch as it was not challenged by the petitioners any further. The respondents were not reinstated in service even thereafter. In the light of the Constitution Bench judgment aforementioned, the order refusing to give approval for dismissal on the ground ofe with the proviso to Section 33(2)(b) rendered it void and inoperative and the respondent was deemed to have continued in service as if no order of dismissal was passed. Admittedly, no wages were paid to the respondent for the period between the first and second order of dismissal. The main question that came up for consideration in Tata Iron and Steel Co. (supra) was whether the proceeding validly commenced under Section 33(2) (b) would automatically come to an and merely because the main industrial dispute had meanwhile been finally determined9. Having not challenged the earlier order dated 1.9.1987, it was not open to the petitioners to make a second application seeking approval for the order of dismissal of the respondent, that too without paying full wages. The Division Bench of the High Court has found that the second order of dismissal amounted to unfair labour practice and victimization. The Tribunal was not justified in allowing the second application seeking approval by ignoring the dismissal of the earlier application made by the management fore of the mandatory provisions of law. The Tribunal proceeded on the ground that the earlier application was not decided on merits and held that it was open to the petitioners to file a second application. This is clearly contrary to decision of the Constitution Bench. It appears to us that the petitioners designed to defeat the claim of the respondents by making a second application when the order suffered by them on the first application had become final. Even as stated in the decision of Tata Iron & Steel Co. (supra) the petitioners failed to pay full wages to the respondents between the period of two dismissal orders. The case of Tata Iron & Steel Co. (supra) on facts of the present case does not held the petitioners. The question that was dealt in that case was altogether different.