PUNJAB BEVERAGES PVT LIMITED CHANDIGARH MANAGEMENT OF HINDUSTAN COPPER LIMITED Vs. SURESH CHAND:N K SAXENA

JUDGEMENT

(1.) These two appeals by special leave raise a short but interesting question of law relating to the interpretation of Ss. 33 (2) (b) and 33C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The facts giving rise to the two appeals are almost identical and it would, therefore, be sufficient if we set out the facts of only one of the two appeals, namely Civil Appeal No. 1375 of 1977.

(2.) The first respondent was a workman employed as an operator in the undertaking of the appellant from 1st March 1970 and he was in receipt of Rs. 100/- per month as salary which would have been raised to Rs. 115/- per month from 1st August, 1972 if he had continued in service with the appellant. But on 21st December, 1971 the 1st respondent was suspended by the appellant and a charge-sheet was served upon him and before any inquiry on the basis of this charge-sheet could be held another charge-sheet was given to him on 17th April, 1973. This was followed by a regular inquiry and ultimately the appellant, finding the 1st respondent guilty, dismissed him from service by an order dated 23rd December, 1974. Now, at the time when the 1st respondent was dismissed from service, an industrial dispute was pending before the Industrial Tribunal at Chandigarh, and, therefore, in view of the provisions contained in S. 33 (2) (b) of the Act, the appellant immediately approached the Industrial Tribunal, before which the industrial dispute was pending, for approval of the action taken by it. The application was resisted by the 1st respondent, but before it came up for hearing, the appellant applied to the Industrial Tribunal for withdrawing the application and the Industrial Tribunal thereupon made an order on 4th September, 1976 dismissing the application as withdrawn. The 1st respondent then demanded from the appellant full wages from the date of his suspension till the date of demand contending that as the action of the appellant dismissing the 1st respondent was not approved by the Industrial Tribunal the 1st respondent continued to be in service and was entitled to all the emoluments. The appellant did not respond to this demand of the 1st respondent, whereupon the 1st respondent made an application to the Labour Court under S. 33-C (2) for determination and payment of the amount of wages due to the 1st respondent from the date of suspension, on the ground that the appellant not having obtained the approval of the Industrial Tribunal to the dismissal of the 1st respondent under Section 33 (2) (b), the order of dismissal was void and the 1st respondent continued to be in service and was entitled to receive his wages from the appellant. The appellant resisted this application under S. 33-C (2) inter alia on the ground that the application under S. 33 (2) (b) having been withdrawn the position was as if no application had been made at all with the result that there was contravention of S. 33 (2) (b), but such contravention did not render the order of dismissal void ab initio and it was merely illegal and unless it was set aside in an appropriate proceeding taken by the 1st respondent under S. 33-A or in a reference under S. 10, the Labour Court had no jurisdiction under S. 33-C (2) to direct payment of wages to the 1st respondent on the basis that he continued in service and the application made by the 1st respondent was accordingly incompetent.

(3.) The Labour Court rejected the contention of the appellant and held that since a reference in regard to an industrial dispute between the appellant and its workmen was pending before the Industrial Tribunal, it was not competent to the appellant to pass an order of dismissal against the 1st respondent unless the action so taken was approved by the Industrial Tribunal under S. 33 (2) (b), and consequently, the appellant having withdrawn the application for approval under Section 33 (2) (b) and the approval of the Industrial Tribunal to the order of dismissal not having been obtained, the order of dismissal was ineffective and the Labour Court had jurisdiction to entertain the application of the 1st respondent under S. 33-C (2) and to direct the appellant to pay the arrears of wages to the 1st respondent. The Labour Court accordingly allowed the application of the 1st respondent and directed the appellant to pay an aggregate sum of Rs. 6485.48 to the 1st respondent on account of arrears of wages up to 30th September, 1976. Similarly and on identical facts, the Labour Court also allowed the application of another workman and directed the appellant to pay to him a sum of Rupees 6262.80 in respect of arrears of wages up to the same date. The appellant thereupon preferred Civil Appeals Nos. 1375 and 1384 of 1977 after obtaining special leave from this Court.