IMPORTANT POINT
The right of the workman after the application filed by employer for approval of the order for his dismissal/discharge from service is refused by the Tribunal on merit is to continue in service and get the consequential benefits. If the employer refuses to grant the benefits to the employee the later is entitled to have his right enforced by filing a petition under Article 226 of the Constitution and in such a case High Court can issue a direction to the employer for reinstating the employee and pay him back wages.

Headnote:Industrial Disputes Act, 1947-Section 33(2)(b)-Appellant dismissing respondent after domestic enquiry-Application moved under Section 33(2)(b) ID Act for approval-Rejected by Industrial Tribunal-Upheld by High Court and Supreme Court-Appellant neither reinstated nor paid wages to respondent-Respondent remained unemployed though he was ready and willing to render services in the establishment of appellant-Respondent filed writ petition-High Court issued direction to appellant for reinstating the appellant and to pay him the back wages-Appeal against to Supreme Court-Whether High Court was right? (Yes)-Appeal dismissed with costs-Case law discussed.
Held : From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains order of approval from the Tribunal. By passing the order of discharge or dismissal de facto relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under section 33(2)(b) of the Act on merit the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employer (sic) (employee) the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal s rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in section 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish a prima facie case for dismissal/discharge of the workman, and therefore, dismissed the application filed by the employer on merit. The inevitable consequence of this would be that the employer was duty bound to treat the employee as continuing in service and pay him his wages for the period, even though he may be subsequently placed under suspension and an enquiry initiated against him. In the facts and circumstances of the case it is our view that the High Court committed no illegality in issuing a direction to the appellant for reinstating the respondent and pay him the back wages. The appeal, being devoid of merit, is dismissed with costs, which is assessed at Rs. 10,000/-. (Paras 16, 17 and 18)

JUDGMENT

D.P. Mohapatra, J.-Leave granted.

2. The core question that arises for determination in this case is what is the right of a workman after the application filed by the employer for approval of the order for his dismissal/discharge from service is refused by the Tribunal and what is the remedy open to the workman in such a situation?

3. The facts of the case may be shortly stated thus : the appellant, Tamil Nadu State Transport Corporation, (Kumbakonam Division -I) Ltd., Kumbakonam initiated a departmental inquiry against the respondent Neethivilangan who was a Junior Superintendent in the Head Office at Kumbakonam. The charges having been established in the departmental inquiry an order for dismissing the respondent from service was passed on 5th March, 1984. Thereafter an application was made by the appellant for accord of approval under Section 33(2)(b) of the Industrial Disputes Act, 1947, (for short the Act ) before the Tribunal. The Tribunal rejected the prayer for approval on merit vide the order dated 30.7.1984. The appellant filed Writ Petition No. 8849/84 challenging the order passed by the Tribunal which was dismissed by the High Court by the judgment dated 18.12.1987. Writ Appeal No. 321/88 filed against the said judgment was dismissed. The appellant filed special leave petition No. 12350/88 in this Court which was also dismissed. Even after it failed to obtain approval of the Tribunal for the order of removal of the respondent the appellant neither reinstated him in service nor paid him wages. The resultant position was that the respondent remained without work and without wages though he was ready and willing to render service in the establishment.

4. Under the impelling circumstances as noted above the respondent filed the Writ Petition No. 1498/99 for reinstatement in service, for payment of wages and other consequential benefits. A single Judge of the High Court by the judgment dated 4.11.1999 allowed the writ petition on the following terms :

"In the result, all the points (A) to (D) are answered in favour of the petitioner and against the respondent. This Court further holds that the petitioner is deemed to have been in service continuously since 5.3.1984 onwards and deemed to be discharging his functions as an employee of the respondent and he is entitled to all arrears of salary with annual increments and all attendant and concomitant benefits for the said period and till date of reinstatement. There will be a direction directing the respondent to work out the money value of the same and pay the arrears within 12 weeks from today.

In the circumstances, there will be a further direction directing the respondent to forthwith reinstate the petitioner in service with all attendant and consequential benefits. However, at the same time as criminal prosecution is pending against the writ petitioner, liberty is given to the respondent to place the petitioner under suspension subject to payment of full salary at the present rate of scales payable.

Further liberty is given to the writ petitioners to institute appropriate proceedings before a competent court or forums or file a writ petition for damages after termination of the pending criminal prosecution and work out his remedies.

The writ petition is allowed with costs of Rs. 3,500/-. Consequently, W.M.P. No.2118 of 1999 is closed."

5. The writ appeal No. 157/2000 filed by the appellant against the said judgment was dismissed by the Division Bench by the judgment dated 9.2.2000.

6. Hence this appeal by the employer by special leave.

7. The main thrust of the contentions raised by Shri S. Sivasubramaniam learned senior counsel for the appellant is that the respondent is not entitled as of right to claim reinstatement on the ground that the application for approval under Section 33(2)(b) of the Act filed by the management has been rejected by the Tribunal. It is his submission that the respondent has to approach the Tribunal for enforcement of his right and is

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2001 Supreme(SC) 865

Cases Referred (3)