1. Employer seeks approval for employee discharge under Section 33(2)(b) of the Industrial Disputes Act, 1947, during the pendency of other industrial disputes. (Para 1 )
Back
Next 
1965 Supreme(SC) 88
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO AND V. RAMASWAMI, JJ.
Tata Iron and Steel Co. Ltd., Appellant
Versus
S. N. Modak, Respondent.
Civil Appeal No. 422 of 1964.
Advocates appeared
Mr. S. V. Gupte, Solicitor General of India (Mr. I. N. Shroff, Advocate, with him), for Appellant; M/s. Jitendra Sharma and Janardan Sharma, Advocates, for Respondent.
Advocates:
I.M.SHROFF, JANARDAN SHARMA, JITENDRA SHARMA, S.V.Gupta
I.M.SHROFF, JANARDAN SHARMA, JITENDRA SHARMA, S.V.Gupta
An application for approval of an employee's discharge under Section 33(2)(b) of the Industrial Disputes Act, 1947, is an independent proceeding that survives the final decision of the main industrial dispute, as the discharge order remains inchoate until approval is granted.
Headnote:(A) Industrial Disputes Act, 1947 - Sections 33(1), 33(2)(b), 33(5), 33-A - Discharge of employee during pendency of industrial dispute - Application for approval of discharge - Whether such application survives the final decision of the main industrial dispute - An application made under Section 33(2)(b) is a separate proceeding and not merely an interlocutory one; it does not automatically terminate upon the decision of the main dispute (Paras 9, 10).
(B) Industrial Disputes Act, 1947 - Section 33(2)(b) - Nature of discharge order - An order of discharge passed by an employer under the proviso to Section 33(2) is incomplete and inchoate until approval is obtained from the specified authority. In the absence of approval, the order is invalid and inoperative in law (Paras 5, 11).
(C) Industrial Disputes Act, 1947 - Section 33-A - If an application for approval under Section 33(2)(b) were to terminate automatically upon the decision of the main dispute, the rights of employees to seek protection under Section 33-A would be rendered nugatory (Para 13).
Facts of the case:
An employer discharged an employee for misconduct while several industrial disputes were pending. The employer applied to the Tribunal for approval of the discharge under Section 33(2)(b) of the Act. During the pendency of this application, the main industrial disputes were decided and awards were published. The employer contended that the application for approval no longer survived. The Tribunal held that the application survived and, upon examining the merits, found the departmental enquiry to be biased and mala fide, subsequently refusing approval.
Findings of Court:
The Tribunal was correct in holding that the application for approval under Section 33(2)(b) did not cease to be a valid proceeding despite the final decision of the main industrial disputes.
Issues: Whether an application for approval of the dismissal of an employee under Section 33(2)(b) of the Industrial Disputes Act, 1947, survives if the main industrial dispute is finally decided and an award is pronounced before the application is disposed of.
Ratio Decidendi: The court reasoned that while the pendency of a dispute is a condition precedent for Section 33 to apply, a validly commenced proceeding under Section 33(2)(b) is an independent proceeding and not a mere interlocutory application. The legislature's failure to provide for automatic termination in Section 33(5) indicates that such applications must run their course. Furthermore, since the discharge order is inchoate until approved, the employee's status must be determined to prevent rendering Section 33-A nugatory.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether an application for approval under Section 33(2)(b) survives the final decision of the main industrial dispute that necessitated the application. (Para 3 , 8 )
3. The application is a separate proceeding, not merely interlocutory; automatic termination would render Section 33-A nugatory and deny employees relief for wrongful termination. (Para 9 , 10 , 11 , 12 , 13 )
4. A proceeding validly commenced under Section 33(2)(b) of the Industrial Disputes Act, 1947, does not automatically terminate upon the final determination of the main industrial dispute. (Para 14 )
5. Appeal dismissed; order refusing approval of discharge upheld. (Para 17 )
6. Does an application for approval of dismissal under Section 33(2)(b) survive the decision of the main industrial dispute?
Yes. A proceeding validly commenced under Section 33(2)(b) is a separate proceeding and does not automatically come to an end merely because the main industrial dispute has been finally determined. (Para 9 , 10 , 14 )
7. What is the legal status of a dismissal order passed under Section 33(2)(b) before approval is granted?
The order is considered incomplete and inchoate until approval is obtained. Without approval, the order is invalid and inoperative, and the employee may claim continued employment and full wages for the interim period. (Para 5 , 11 )
8. How does Section 33-A impact the survival of Section 33(2)(b) applications?
Section 33-A allows employees to complain about contraventions of Section 33. If applications under Section 33(2)(b) terminated automatically, Section 33-A would be rendered nugatory, denying employees relief for wrongful termination during the pendency of the main dispute. (Para 12 , 13 )
Judgment
GAJENDRAGADKAR, C.J.I. : The short question of law which arises in this appeal relates to the scope and effect of the provisions contained in S. 33(2) of the Industrial Disputes Act, 1947 (No. 14 of 1947) (hereinafter called the Act ). The appellant, the Tata Iron and Steel Co. Ltd., Jamadoba, applied before the chairman, Central Government Industrial Tribunal, Dhanbad (hereafter called "the Tribunal"), under S. 33(2) (b) of the Act for approval of the order passed by it discharging the respondent, its employee S. N. Modak, from its services. In its application, the appellant alleged that the respondent had been appointed as a Grade II Clerk in the Chief Mining Engineer s Office at Jamandoba. One of the duties assigned to the respondent was to check arithmetical calculations according to sanctioned rate of the bills coming from the Heads of Department. He was required to bring to the notice of the Deputy Chief Mining Engineer cases of discrepancies or irregularities, and also cases where additions or alterations in the bills had been made, but not initialled. On re-checking of the bills which had been passed by the respondent, it was discovered that several additions and alterations made in the bills were not noticed by him and were not reported. This failure constituted misconduct under the Standing orders of the appellant. For this misconduct, the respondent was charge-sheeted (No. 51 dated 1/5-10-1960); that led to a departmental enquiry, and as a result of the report made by the Enquiry Officer, the appellant passed an order on December 17, 1960, terminating the services of the respondent as from December 24, 1960. The present application was drafted on the 17th December and it reached the Tribunal on the 23rd December, 1960. It appears that this application was made by the appellant under S. 33(2) (b), because four industrial disputes were pending between the appellant and its employees at that time in Reference Nos. 27, 34, 40 and 49 of 1960.
2. After this application was filed, the respondent challenged the propriety of the order passed by the appellant for which approval was sought by it, and several contentions were raised by him in support of his case that the enquiry held against him was invalid and improper and the order of dismissal passed against him was the result of mala fide. Evidence was led by the parties in support of their respective pleas.
3. When the matter came to be argued before the Tribunal, it was urged by the appellant that the application made by it no longer survived, because all the industrial disputes which were pending between the appellant and its employees and as a result of the pendency of which it had made the application under S. 33(2) (b) of the Act, had been decided by the Tribunal; Awards had been made in all the said References and they had been published in the Gazette. It does appear that the four Reference which we have already mentioned, ended in Awards made on 31st October, 1960, 8th November 1960, 14th April 1961, and 22nd September 1961 respectively. The award on the present application was made on 29th September 1962, and it is common ground that at the time when the appellant urged its contention that the application made by it did not survive any longer, all the four References had, in fact, been disposed of. The plea thus raised by the appellant naturally raised the question as to what would be the effect of the awards pronounced by the Tribunal on industrial disputes pending before it at the time when the appellant moved the Tribunal under S. 33(2) (b) ? If, as a result of the pendency of an industrial dispute between an employer and his employees, the employer is required to apply for approval of the dismissal of his employee under S. 33(2) (b), does such an application survive if the main industrial dispute is meanwhile finally decided and an award pronounced on it ? That is the question which this appeal raises for our decision, and the answer to this question wou
