AIR INDIA LTD Vs. V M MHADGUT

JUDGEMENT

(1.) These proceedings arise out of an order of the presiding Officer of the National Industrial Tribunal at Mumbai rejecting an application under section 33 (2) (b) of the Industial Disputes Act, 1947.

(2.) The first respondent was employed as a Loader in the Commercial department of Air India on 27th April, 1983 arrd was confirmed in service with effect from 1st November, 1983. On 27th November, 1986 the workman was arrested by the police at Sahar International Airport on the charge that he was involved in the commission of an offence punishable under section 380 of the penal Code. The allegation against the first respondent was that he was involved in the theft of 868 integrated circuits from the Air India cargo warehouse. The first respondent was charge-sheeted for disciplinary proceedings on 20th february, 1990. The enquiry committee came to the conclusion on 7th October, 1991 that the charges levelled against the first respondent stood established on the evidence on record and that the first respondent was guilty of misconduct. The disciplinary authority by an order dated 3rd March, 1992 imposed the punishment of dismissal on the first respondent. An industrial reference was at the material time pending before the National Industrial Tribunal at Mumbai being Reference NTB-1/ BOM of 1990. On 1st June, 1992 the management moved the Industrial Tribunal for the grant of approval under section 33 (2) (b) of the Industrial Disputes Act, 1947. The application for approval was contested by the workman. On 17th December, 1996, when the application came up for hearing before the Tribunal, the management filed an application seeking permission to withdraw the application, reserving liberty to file a fresh application. The Presiding Officer of the Tribunal by his order of 17th December, 1996 directed that the application was allowed to be withdrawn reserving liberty to file a fresh application and subject to such reservations in regard to the rights and contentions of the parties which were kept open. On llth March, 1997 the management reinstated the workman in service informing him at the same time that in pursuance of the liberty which was granted by the Tribunal the management was doing so subject to the filing of a fresh application for approval. On the next day, 12th March, 1997, the workman was placed on suspension. On 27th August, 1997, the management passed am order of dismissal against the workman on the finding that the charge of dishonesty in connection with the business of the Corporation and of an act subversive of discipline stood proved under the charge-sheet dated 20th February, 1990. The management forwarded to the workman his wages for one month and thereupon moved an application for approval before the National Industrial Tribunal at Mumbai under section 33 (2) (b) since the industrial reference continued to remain pending in the meantime.

(3.) The Industrial Tribunal dismissed the application for approval under section 33 (2) (b) by its impugned order. The Tribunal held following the decision of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Shri ram Gopal Sharma, AIR 2002 SC 643 that the effect of the withdrawal of the first application was that it shall be deemed that no approval had been granted and the order of dismissal on the basis of which the application was filed had no effect in law. Consequently, the Tribunal held that the workman shall be deemed to be in service on 3rd March, 1992. The Tribunal was of the view that it was not open to the Tribunal to issue permission to the employer to file a fresh application upon the withdrawal of the earlier application. According to the tribunal, the earlier order dated 17th December, 1996 was a nullity. Finally, the tribunal held that the cause of action in respect of the first order of dismissal had merged in the judgment of the Tribunal dated 17th December, 1996. Hence, the only manner in which the management could have filed a fresh application was by conducting a fresh disciplinary enquiry. According to the Tribunal, the management was not justified in relying upon the earlier enquiry to sustain a fresh order of dismissal on the strength of which an approval application was filed on the second occasion. These are the reasons on the basis of which the approval application came to be dismissed.