important point
Provisions of Section 33(2)(b) of he I.D. Act are mandatory.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Challenge in this appeal is to the judgment of a Division Bench of the Guwahati High Court dismissing the Writ Appeal filed by the appellant. By the said Writ Appeal the appellant-Bank had questioned correctness of the judgment rendered by a learned Single Judge who held that the order of dismissal was void for omission on the part of the appellant to file application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short the ‘Act’).

2.Background facts sans unnecessary details are as follows :

“The respondent-Sidhartha Chakra-borty was working as a Cash Clerk in the commercial wing of the appellant-bank at Ulubari branch at Guwahati. A disciplinary proceeding was initiated against him for commission of irregularities and accordingly, charge sheet was served on him on different counts relatable to fictitious debit entries in some saving-bank accounts resulting in misappropriation. On conclusion of the departmental proceedings, accepting the findings of the enquiry, the respondent was dismissed from service by an order dated 20.12.1985. It was indicated in the dismissal order that in view of the pendency of an industrial dispute before the Assistant Labour Commissioner, Central Kolkatta, an application under Section 33(2)(b) of the Act was being filed for approval of the action taken by the appellant Bank. The respondent raised an industrial dispute before the Regional Labour Commissioner (Central), Guwahati for his reinstatement with full back wages challenging the legality and validity of the order of dismissal. Eventually, on failure of the re-conciliation proceedings, the Government of India in the Ministry of Labour, in exercise of the powers conferred under Section 10 of the Act referred the matter to the Industrial Tribunal at Guwahati. The reference was on the question of legality and validity of the order of dismissal pending the proceedings in the Labour Court for non compliance of the provisions of Section 33(2)(b) of the Act. The Learned Tribunal on conclusion of the proceedings held that the enquiry was in full compliance of the prescribed procedures and the principles of natural justice and, therefore, the imposition of the punishment of dismissal in view of the series of misappropriate and irregularities is justified. Aggrieved, the respondent filed Writ Petition No.635 of 2001 controverting the award passed by the Presiding Officer, Industrial Tribunal, Guwahati in Reference case No.12 (C) of 1997 passed on 20.1.2000.

3.Before the learned Single Judge the only question raised was that the appellant-Bank had in fact filed application under Section 33(2)(b) of the Act for approval of the action taken by it in dismissing the respondent. The appellant-Bank took the stand that it was not necessary because the provisions of Section 33(2)(b) of the Act were not mandatory and it relied on a decision of this Court in M/s Punjab Beverages Pvt. Ltd. Chandigarh v. Suresh Chand and Anr.,1 (1978 (2) SCC 144). Learned Single Judge relying on a subsequent decision of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma,2 (2002 (2) SCC 244) held that the decision in Punjab Beverages’s case (supra) cannot have any application having been over-ruled in Jaipur Zila’s case (supra).

4.Stand of the appellant was that the principles of doctrine of prospective over-ruling would be applicable as the decision in Punjab Beverages’s case (supra) was holding the field “at the time the action was taken”. This plea was negatived by learned Single Judge who allowed the writ application filed by the respondent. The Division Bench held that the learned Single Judge was justified in allowing the Writ Petition. There was no indication in Jaipur Zila’s case (supra) that the doctrine of prospective over-ruling was applied. The learned Single Judge’s order that the respondent would be entitled to re-instatement with full back wages was upheld.

5.Learned counsel for the appellant-bank