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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, AT NAGPUR.
ANIL L. PANSARE, J.
Vijay Krushnarao Pawar, C/o Lokmat Shramik Sanghatana – Appellant
Versus
Lokmat Media Private Limited –Respondent
Writ Petition No. 5023 of 2023
Decided on : 30-08-2024
Industrial Disputes - Dismissal Approval - Section 33(2)(b), 33A - The court emphasized the mandatory nature of Section 33(2)(b) and the implications of its contravention, establishing that dismissal without approval is inoperative, and the employee is deemed to continue in service.
Fact of the Case:
The petitioners, comprising journalists and non-journalists, were dismissed without charge-sheet during pending industrial disputes. The employer sought approval for dismissal under Section 33(2)(b) of the Industrial Disputes Act, which was later withdrawn and revived, leading to legal challenges by the petitioners.
Finding of the Court:
The court found that the Industrial Court's approval of the dismissal was valid, as the petitioners failed to demonstrate any prejudice from the revival of the application. The court upheld the mandatory nature of Section 33(2)(b) and the implications of its contravention.
Issues: Whether the revival of the application for dismissal approval under Section 33(2)(b) was valid and if the petitioners were entitled to reinstatement or wages during the intervening period.
Ratio Decidendi: The court held that the approval under Section 33(2)(b) is mandatory, and if not granted, the dismissal is inoperative. The revival of the application does not automatically reinstate the employee unless the approval is granted.
Result: The petitions were dismissed, allowing the petitioners to pursue their complaints under Section 33A of the Industrial Disputes Act.
JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with consent of learned counsel appearing for the parties.
2. The petitioners (7 journalists and 17 non- journalists), who were working on the establishment of the respondent were on 21-11-2013 dismissed from service without charge-sheet and enquiry. At the relevant time, the industrial disputes were pending between the parties before the Industrial Tribunal at Nagpur and, therefore, the respondent – employer moved application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’). The respondent examined 118 witnesses to substantiate order of dismissal against petitioners (24 in numbers). The petitioners had examined themselves in support of their objection to grant approval for dismissal.
3. On 7-4-2017, the respondent moved an application for permission to withdraw the application filed by it under Section 33(2)(b) of the Act of 1947. The petitioners opposed the application. On 17-4-2017, the Industrial Tribunal permitted respondent to withdraw the application. This was followed by petitioners filing complaint under Section 33A of the Act of 1947, the Industrial Court granting reinstatement and in alternative payment of 75% monthly wages, challenge to this order by both the petitioners and respondent, request made by the respondent for revival/restoration application filed under Section 33(2)(b), rejection by Industrial Court of the request so made by the respondent etc.
4. The above issues travelled to this Court which was pleased to set aside the order passed by the Industrial Court directing reinstatement of the petitioners and in the alternative 75% monthly wages with further direction to decide the complaints under Section 33A of the Act of 1947 in accordance with law. So far as application seeking revival/restoration is concerned, this Court vide judgment dated 30-11-2018 in Writ Petition Nos. 4962/2018, 4971 to 4990 of 2018, set aside the order passed by the Industrial Court rejecting the request and thus, allowed the revival/restoration of the application, subject to costs of Rs. 25,000/- to be paid to each employee.
5. The petitioners challenged the said order before the Hon’ble Supreme Court but in vain. The petitioners then filed review application which came to be rejected on 5-5-2023. The Industrial Court thereafter dismissed the complaints filed under Section 33A by the petitioners on the ground that after revival/restoration of application under Section 33(2)(b) of the Act of 1947, the complaints under Section 33A cannot be entertained.
6. The Industrial Court, thereafter, vide order dated 6-5-2023 allowed the applications filed by the respondent under Section 33(2)(b) of the Act of 1947 seeking approval of dismissal orders dated 21-11-2013. This order has been challenged by the petitioners.
7. Learned counsel for the petitioners submits that the judgment dated 30-11-2018 passed by this Court in Writ Petition No. 4962/2018 with connected petitions permitting the respondent to revive/restore application under Section 33(2)(b) for approval does not properly appreciate the law laid down by the Hon’ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others [(2002) 2 SCC 244]. That being so, according to learned counsel for the petitioners, the Industrial Court could not have given effect to the said judgment and, therefore, revival/ restoration of application is illegal. He then submits that even otherwise, the Industrial Court failed to consider the aspect of prejudice caused to the petitioners by revival/restoration of the said application, as directed by this Court in the above judgment.
8. Mr. M. G. Bhangde learned Senior Counsel has countered and rightly so, that the judgment dated 30-11-2018 passed by this Court is not open for any criticism in as much as the judgment has now attained finality. The attempt of petitioners to challenge the same before the Hon’ble Supreme
The court affirmed that dismissal without approval under Section 33(2)(b) is inoperative, and the employee is deemed to continue in service until approval is granted.
Non-compliance with the mandatory provision of Section 33(2)(b) of the Industrial Disputes Act, 1947 renders the dismissal order void and inoperative, and the employer is bound to treat the employee ....
Dismissal during pendency of industrial proceedings without Section 33(2)(b) approval renders it inoperative; workman deemed continuing in service with automatic reinstatement and adjusted back wages....
Failure to seek approval under Section 33(2)(b) of the Industrial Disputes Act renders dismissal void and inoperative, as established by the Supreme Court in Jaipur Zila case.
Failure to seek approval under Section 33(2)(b) of the Industrial Disputes Act renders dismissal orders void ab initio, overriding subsequent interpretations from Smaller Benches.
The main legal point established in the judgment is the independence of the proceedings under Section 10, 10(4-A), and 33(2)(b) of the Industrial Disputes Act, and the inapplicability of the principl....
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