VERY IMPORTANT POINT
If the approval is not granted u/s. 33(2)(b) of the Industrial Disputes Act, 1947, the order of dismissal becomes ineffective from the date it was passed and failure to make application u/s. 33(2)(b) (or the one made is withdrawn) would render the order of dismissal inoperative.

Headnote:(i) Industrial Disputes Act, 1947-Section 33(2)(b)-If the approval is not granted u/s. 33(2)(b) of the Act whether the order of dismissal becomes ineffective from the date it was passed or from the date of non-approval of the order of dismissal (The order of dismissal becomes ineffective from the date it was passed)-Whether failure to make application u/s. 33(2)(b) would render the order of dismissal inoperative? (Yes) -Conflict of views in Strawboard and Tata Iron & Steel Co. with Punjab Beverages-Held: Former Two are correct and the Third is incorrect-Case Law Reviewed.
       Held : In the two Benches consisting of three learned Judges in (1) Strawboard Manufacturing Co. vs. Gobind (1962 Supp. (3) SCR 618 and (2) Tata Iron & Steel Co. Ltd. vs. S.N. Modak [1965(3) SCR 411] have taken the view that if the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short the Act ), the order of dismissal becomes ineffective from the date it was passed and, therefore, the employee becomes entitled to wages from the date of dismissal to the date of disapproval of the application. Another Bench of three learned Judges in Punjab Beverages Pvt. Ltd. Chandigarh vs. Suresh Chand & Anr. [1978(3) SCR 370] has expressed the contrary view that non-approval of the order of dismissal or failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative; failure to apply for approval under Section 33(2)(b) would only render the employer liable to punishment under Section 31 of the Act and the remedy of the employee is either by way of a complaint under Section 33A or by way of a reference under Section 10(1)(d) of the Act. It may be stated here itself that there was no reference in this decision to the two earlier decisions aforementioned . (Para 3)
       The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33A. There is nothing in Sections 31, 33 and 33A to suggest otherwise even reading them together in the context. These Sections are intended to serve different purposes. (Paras 15 & 16)
       In view of what is stated above, we respectfully agree with and endorse the view taken in the case of Strawboard and Tata Iron & Steel Co. and further state that the view expressed in Punjab Beverages on the question is not the correct view. The question raised in the beginning of this judgment is answered accordingly. (Para 18)
       (ii) Industrial Disputes Act, 1947-Section 33(2)(b)-Respondent 1, employee dismissed from service-Employer Bank made application u/s. 33(2)(b) for approval-Appellant Bank failing to comply with the provisions of Section 33(2)(b) as salary for one month was not paid-Tribunal dismissed the application-Upheld by High Court-Appeal to Supreme Court- Whether there is any merit in these appeals? (No).
       Held : In the view we have taken, the contentions raised in these appeals do not help the appellant. We find no merit in these appeals. Consequently, these are dismissed. No costs. (Para 20)

JUDGMENT

Shivaraj V. Patil, J.-From the Order of Reference made in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and another [(1994) 6 SCC 522], the question that arises for consideration is:

"If the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947, whether the order of dismissal becomes ineffective from the date it was passed or from the date of non-approval of the order of dismissal and whether failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative?"

2. Finding conflict of views expressed by Benches of three learned Judges of this court on the question, the Reference is made.

3. The two Benches consisting of three learned Judges in (1) Strawboard Manufacturing Co. vs. Gobind (1962 Supp. (3) SCR 618 and (2) Tata Iron & Steel Co. Ltd. vs. S.N. Modak [1965(3) SCR 411] have taken the view that if the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short the Act ), the order of dismissal becomes ineffective from the date it was passed and, therefore, the employee becomes entitled to wages from the date of dismissal to the date of disapproval of the application. Another Bench of three learned Judges in Punjab Beverages Pvt. Ltd. Chandigarh vs. Suresh Chand & Anr. [1978(3) SCR 370] has expressed the contrary view that non-approval of the order of dismissal or failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative; failure to apply for approval under Section 33(2)(b) would only render the employer liable to punishment under Section 31 of the Act and the remedy of the employee is either by way of a complaint under Section 33A or by way of a reference under Section 10(1)(d) of the Act. It may be stated here itself that there was no reference in this decision to the two earlier decisions aforementioned.

4. A Bench of two learned Judge in S. Ganapathi & Ors. vs. Air India & Anr. [JT 1993(4) SC 10) has followed the view taken in Strawboard (supra) and Tata Iron & Steel Co. (supra) and has held that the order of dismissal passed without the approval under Section 33(2)(b) remains in inchoate condition but this decision has not noticed the decision in Punjab Beverages (supra).

5. Rival submissions were made on behalf of the parties in support of the respective contentions in the light of aforementioned decisions and referring to and relying on the provisions contained in Sections 31, 33 and 33A of the Act.

6. Answer to the question on which conflicting decisions are rendered, as noticed above, depends on a fair reading and proper interpretation of Section 33(2)(b) of the Act. Prior to the amendment of 1956, provision contained in Section 33 corresponded to the present Section 33(1) only. The object behind enacting Section 33, as it stood before it was amended in 1956, was to allow continuance of industrial proceedings pending before any authority/court/tribunal prescribed by the Act in a peaceful atmosphere undisturbed by any other industrial dispute. In course of time, it was felt that unamended Section 33 was too stringent for it placed a total ban on the right of the employer to make any alteration in conditions of service or to make any order of discharge or dismissal even in cases where such alteration in conditions of service or passing of an order of dismissal or discharge, was not in any manner connected with the dispute pending before an industrial authority. It appears, therefore, that Section 33 was amended in 1956 permitting the employer to make changes in conditions of service or to discharge or dismiss an employee in relation to matters not connected with the pending industrial dispute. At the same time, it seems to have been felt that there was need to provide some safeguards for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. This positi

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2002 Supreme(SC) 76

VERY IMPORTANT POINTIf the approval is not granted u/s. 33(2)(b) of the Industrial Disputes Act, 1947, the order of dismissal becomes ineffective from the date it was passed and failure to make application u/s. 33(2)(b) (or the one made is withdrawn) would render the order of dismissal inoperative.

Cases Referred (5)