The High Court cannot interfere with a dismissal based solely on the lack of prior approval under Section 33(2)(b) of the Industrial Disputes Act, 1947, if an adjudication on the validity of the dismissal has already been made by the Labour Court.

ORDER :

1. Leave granted.

2. The respondent – workman was subjected to a domestic enquiry by the employer – North Eastern Karnataka Road Transport Corporation (NEKRTC) on a charge of obtaining employment by furnishing fabricated qualification documents and by making a false declaration. The finding of the domestic enquiry was adverse to the respondent – workman. Before the Labour Court an issue was raised with regard to the validity of the proceedings of the domestic enquiry to which the Management countered by making a request to lead evidence to prove the charge on merits. Accordingly, leave was granted. The Labour Court by order dated 25th May, 2011 in paragraph 34 thereof held as follows:

“34. The question arises whether the order of dismissal is proportionate the legal misconduct. It is proved from the evidence that the first party has obtained employment by producing the fabricated documents. This act on the part of the first party is grave misconduct. Such misconduct or misdeed cannot be ignored. Under such circumstances the order of dismissal is proportionate to proved charges. I do not find any circumstances to say that the order of dismissal is disproportionate to proved charges. Therefore, I answer these issues in favour of the second party respondent.”

3. The respondent – workman moved the High Court against the aforesaid order of the Labour Court. A learned single judge of the High Court by order dated 23rd July, 2013 took the view that as another proceeding under the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) was pending, prior approval under Section 33(2)(b) of the Act was required to be taken by the employer. Such prior approval was however neither sought for nor granted. The dismissal of the workman was, therefore, held to be void ab initio. The said order of the learned single judge of the High Court has been affirmed in the writ appeal. Aggrieved, the employer has instituted the present appeal under Article 136 of the Constitution of India.

4. Is the High Court correct in taking the view as noticed above? In Management of Karur Vysya Bank Ltd. Vs. S. Balakrishnan, (2016) 12 SCC 221 while dealing with a situation of absence of any approval under Section 33(2)(b) of the Act read with Section 33A thereof, this Court had taken the view that a finding on the question as to whether the employer has contravened the provisions of Section 33(2)(b) would not be conclusive of the matter and “the industrial adjudicator is required to answer the further question as to whether the dismissal or such other punishment as may have been imposed on the workman is justified in law”.

This Court also noticed a similar view taken in Rajasthan State Road Transport Corporation & Anr. Vs. Satya Prakash, (2013) 9 SCC 232. Additionally in paragraph 13 of the Report in Management of Karur Vysya Bank Ltd. (supra) this Court had an occasion to notice the perceived dichotomy between the provisions contained in Section 33(2)(b) and Section 33A of the Act and attempted resolutions thereof by the legislature. The aforesaid paragraph 13 may be noticed in detail by extracting the same:

“13. The second issue that we had occasion to deal with in the course of the debates that had taken place on the issues/questions arising in the present case is with regard to what we perceive is a 15 dichotomy between the provisions contained in Section 33(2)(b) and Section 33A of the Act. In this regard, we take notice of the fact that the employer who does not carry out his/its statutory obligation under Section 33(2)(b) and yet prevents the workman from working and earning his wages virtually gets the benefit of an adjudication that the workman has been compelled to undertake in default of the statutory obligation on the part of the employer. The jurisdiction under Section 33(2)(b) is bound to be and in fact is narrower than the reference jurisdiction under Section 33A. It is common experience that litigations including industrial references