IMPORTANT POINT
When first order of dismissal was held by Tribunal to be invalid for non-compliance of proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 and it become final, it was not open to the petitioners to seek approval of second order of dismissal of respondent, that too without paying full wages.

Headnote:Industrial Disputes Act, 1947-Section 33(2)(b) - Respondent-workman in service of petitioner Company-Kept under suspension w.e.f. 4.5.1984 -Industrial Dispute pending-Company passing an order of dismissal dated 21.1.1986 u/s 32(2)(b) of the Act-Applying to Tribunal for approval -Tribunal holding order of dismissal invalid for non-compliance of provisions of Section 33(2)(b) of the Act in that wages for one month were not paid simultaneously - No challenge made and Tribunal s order became final-Keeping the non-compliance of Section 33(2)(b) as only technical, company passed order of dismissal 2nd time and applied for approval of Tribunal-Though Tribunal allowed but High Court reversed and held that respondents shall be deemed in continuous service and entitled to all consequential benefits-S.L.P. under Article 136 of Constitution against-High Court s upheld by Constitution Bench in (2002) 2 SCC 244-SLP placed before present Bench for disposal-Whether (1965) 3 SCR 411 Tata Iron Steel Co. case (approved by Constitution Bench) Supports petitioner s case? (No)-SLP dismissed.
       Held : Having not challenged the earlier order dated 1.9.1987, it was not open to the petitioners to make a second application seeking approval for the order of dismissal of the respondent, that too without paying full wages. The Division Bench of the High Court has found that the second order of dismissal amounted to unfair labour practice and victimization. The Tribunal was not justified in allowing the second application seeking approval by ignoring the dismissal of the earlier application made by the management for non-compliance of the mandatory provisions of law. The Tribunal proceeded on the ground that the earlier application was not decided on merits and held that it was open to the petitioners to file a second application. This is clearly contrary to decision of the Constitution Bench. It appears to us that the petitioners designed to defeat the claim of the respondents by making a second application when the order suffered by them on the first application had become final. Even as stated in the decision of Tata Iron & Steel Co. (supra) the petitioners failed to pay full wages to the respondents between the period of two dismissal orders. The case of Tata Iron & Steel Co. (supra) on facts of the present case does not help the petitioners. The question that was dealt in that case was altogether different. Thus, having regard to all aspects of the matter, we are not inclined to interfere with the impugned judgment exercising our jurisdiction under Article 136 of the Constitution of India. Accordingly, these special leave petitions are dismissed. No costs.
        (Paras 9 and 10)

JUDGMENT

Shivaraj V. Patil, J.-The judgment and order dated 15.6.1998 of the Division Bench of the Karnataka High Court passed in Writ Appeal Nos. 8826/96 and 265/97 are under challenge in these appeals. In the written submissions filed on behalf of the petitioners, it is stated that Mr. T. Pionnagiri left the service of the petitioner-company and hence the SLP and the reliefs may be confined to Mr. Prabhakar H. Manjare. Hence the special leave petition is confined to him only. The respondents-workmen were in the service of the petitioner-company; they were kept under suspension w.e.f. 4.5.1984; since an industrial dispute was already pending, the company moved an application seeking approval of the order of dismissal dated 21.1.1986 of the respondents under Section 32(2)(b) of the Industrial Disputes Act, 1947 (for short the Act ). The National Industrial Tribunal by two separate orders, both dated 1.9.1987 held that the orders of dismissal were invalid for non-compliance of the provisions of Section 33(2)(b) of the Act in that wages for one month were not paid; these orders of the Tribunal remained unchallenged and reached finality. The petitioners, treating the non-compliance of Section 33(2)(b) as mere technical breach, passed orders of dismissal for the second time on 9.10.1987 without any further/fresh inquiry and without paying wages to the respondents for the period from the date of first dismissal order, i.e., 21.1.1986 to 9.10.1987, i.e., date of second dismissal order; the company again moved applications seeking approval of the orders of dismissal before the National Industrial tribunal; this time the Tribunal granted approval on 2.3.1989 relying on the judgment of this Court in M/s.Punjab Beverages Pvt. Ltd., Chandigarh vs. Suresh Chand & Anr. [(1978) 2 SCC 144). In the writ petition filed by the respondents, the learned Single Judge of the High Court upheld the order of the Tribunal; the respondents filed writ appeals challenging the order of the Tribunal as affirmed by the learned Single Judge; the Division Bench of the High Court by the impugned order allowed the appeals and set aside the order of the learned Single Judge affirming the order of the Tribunal and held that the respondents shall be deemed in continuous service of the petitioners and were entitled to all consequential benefits. Aggrieved by the same, the petitioners have filed special leave petitions in this Court raising the questions similar to the questions raised in Civil Appeal Nos. 87-88 of 1986 (Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma & Others) [(2002) 2 SCC 244] and those appeals were referred to the Constitution Bench. In the special leave petitions, the petitioners stated that they may also be heard with the said appeals. This Court on 9.8.2001 ordered that the special leave petitions filed by the company be also heard alongwith Civil Appeal Nos. 87-88 of 1986. The Constitution Bench decided the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) holding Punjab Beverages vs. Suresh Chand [(1978) 2 SCC 144) is no more a good law and approved the judgment in Straw Board Manufacturing Co. Ltd. vs. Govind [1962) Supp. 3 SCR 618] and Tata Iron and Steel Co. Ltd. vs. S.N. Modak [(1965) 3 SCR 411]. The questions raised in the special leave petitions filed by the petitioners are covered by the Constitution Bench judgment delivered on 17.1.2002 in Jaipur Zi1a Sahakari Bhoomi Vikas Bank Ltd...... (supra). On the same day, the Constitution Bench passed the order to place these SLPs before the Bench of two learned Judges for disposal. Thus, these SLPs came up for hearing before this Bench.

2. Mr. K.N. Rawal, learned Addl. Solicitor General, being conscious of the fact that the questions raised in SLPs., are covered against the petitioners by the Constitution Bench judgment aforementioned, urged that the Company was not precluded from passing a second ord

Click Here to Read the rest of this document

2002 Supreme(SC) 1175

Cases Referred (4)