TOPS SECURITY LTD Vs. SUBHASH CHANDER JHA

JUDGEMENT

(1.) These two appeals raise identical issues and involve virtually similar facts and are, therefore, being disposed of together. The appeals arises out of WP(C) No.6228/2011 and WP(C) No.6236/2011 in respect of which orders were passed by the learned Single Judge on 26 th August, 2011 dismissing both the writ petitions filed on behalf of the appellant herein. For the sake of convenience, we shall refer only to the facts of LPA No.1044/2011which arises out of WP(C) No.6228/2011 (Tops Security Limited v. Subhash Chander Jha).

(2.) The point in issue is whether the non-compliance of the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the said Act') would ipso facto mean that an order of dismissal passed by the employer would be ineffective' The additional question is whether the employee, in such a circumstance, would be required to file an application under Section 33A of the said Act for having the said order of dismissal being declared as void ab initio'

(3.) The facts of LPA No.1044/2011are that an industrial dispute namely ID No.43/2008 was pending before the Industrial Tribunal and had arisen out of reference order of F.24(1154)/06/Lab./2547-51 dated 28.02.2008 between the said workman and the management of Tops Security Limited. During the pendency of the said industrial dispute, the services of the workman were terminated w.e.f. 26 th November, 2008. It is an admitted position that the provisions of Section 33(2)(b) of the said Act had not been complied with by the employer. This is so because the wages for one month which were required to be paid had not been paid at the time of discharge/dismissal but were only tendered much later. Apart from this, the employer had also not made an application to the Industrial Tribunal before which the said industrial dispute was pending for approval of the action of termination taken by the employer. Thus, on both counts, that is, on the ground of non-payment of one month's wages at the time of alleged termination and, secondly, because of the fact that no approval was sought from the Industrial Tribunal by the employer, the provisions of Section 33(2)(b) of the said Act had, admittedly, been contravened.