The proviso to Section 33 (2) (b) of the Industrial Disputes Act is mandatory and must be complied with before an application for approval of an order of dismissal can be made.

SAMARESH BANERJEE, J.

( 1 ) IN the instant writ application, the petitioner has challegned Order No. 33 dated February 4, 1997 in Case No. 5/94 under Section 33 (2) of the Industrial Dispute Act passed by the learned Judge, Eighth Industrial Tribunal, West Bengal.

( 2 ) THE petitioner, a workman of the company, was dismissed from service on October 31, 1994 after holding a disciplinary proceeding.

( 3 ) ADMITTEDLY thereafter the company has applied before the Tribunal under Section 33 (2) of the Industrial Disputes Act for approval of such order.

( 4 ) IT is the contention of the petitioner that such application made by the Company is not maintainable, as proviso of the said Section was not complied with. It is the contention of the petitioner that he was not paid for one month before dismissal, but an amount was sought to be paid to him making a deduction therefrom.

( 5 ) BEFORE the Tribunal, the petitioner prayed that the question as to whether such application made by the petitioner is maintainable should be heard out first. Whereas, the company had applied before the Tribunal for hearing of the question as to whether the domestic enquiry was fair an proper as a preliminary point, By the impugned order, the learned Judge has rejected the prayer of the petitioner. The learned Counsel for the petitioner has contended, inter alia, that since under Section 33 (2) of the said Act, unless an approval is granted, the order of dismissal cannot take effect and in view of the specific point raised by the petitioner that the proviso of the said Section was not complied with the Tribunal ought to have taken such matter first inasmuch as without the approval from the Tribunal under the aforesaid provisions of the Act, the question of considering the fairness or proper-ness of the enquiry cannot arise. He has relied on a number of decisions of the Supreme Court as also of this Hon'ble Court. The learned Counsel for the company on the other hand, has contended, inter alia, that the Tribunal has rightly held that issue as to the maintainability of the application under Section 33 (2) of the Act is inexplicably inter linked with the validity of the domestic enquiry and these are all matters of evidence and accordingly, the validity of the domestic enquiry should be taken up as a preliminary issue.

( 6 ) SINCE the question which came up for consideration before this Court is a pure question of law, both the parties agreed that the matter can be disposed of even at the admission stage without filing any affidavits and accordingly both the parties have addressed the Court in full.

( 7 ) HAVING heard the learned Advocate appearing on behalf of the parties and considering the application. I am of the view that there is substance in the contention which has been raised by the petitioner.

( 8 ) IT is now well-settled by judicial precedence, beyond any doubt, that when an application under Section 33 (2) of the said Act is made, unless and until approval of under the aforesaid Section is granted by the Tribunal, the order of dismissal cannot take any effect. In the case of Tata Iron and Steel Company v. Modak (SN) reported in (1965-II-LLJ-128) the Supreme Court held, interalia, that even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not granted by the Labour Court or the Industrial Tribunal under Section 33 (2) of the Act, the employer would be bound to treat the concerned workman as its employee and pay him full wages. It has been held further by the Supreme Court in the said case that the proviso of the Section 33 (2) (b) shows that where action is intended to be taken by an employer against any of his employees, which falls within the scope of Clause (b), he can do so subject to the requirements of the proviso; if the employee is intended to be discharged or dismissed, an order can be passed against the employer against him provided he has

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