The effect of non-grant of approval under Section 33(2)(b) of the Industrial Disputes Act results in the employee being deemed in service and entitled to back wages. Refusal to reinstate the employee may attract the writ jurisdiction of the court.

( 1 ) THIS Letters Patent Appeal arises out of an order dated 23rd may 2000 passed by a learned Single Judge of this court whereby and thereunder the writ petition filed by the appellant herein was dismissed summarily on the ground that he had an alternative remedy under the industrial Disputes Act, 1947 thereinafter called "the Act" for short ).

( 2 ) THE admitted fact of the matter is as under: the appellant was served with a charge-sheet on 15th december 1992. A departmental enquiry was held thereinto leading to his termination from service an application under Section 33 (2) (b) of the Act was filed by the respondent which was marked as OP No. 135/93 and by an order dated 27th May 1999, the learned tribunal dismissed the said application holding:

"i have heard Sh. I. S. Mehra, AR of dtc and Sh. M. S. Kapoor AR of the workman/respondent. Although the Enquiry officer conducted the enquiry and the respondent participated in it but the finding is perverse. As AW1 admitted in the cross examination that the entire period of absence of the respondent as mentioned in the charge-sheet has been treated by the management as Leave Without Pay. On the one hand the management/petitioner has treated the period of absence of the respondent as Leave Without Pay but on the other hand it seeks approval of the termination of his service on the basis of the above said period of absence from duty. Both the stands are contradictory. Once the management has treated the period of absence as Leave Without Pay then it amounts that management itself has absolved the respondent/his employee from the alleged misconduct, the basis of his termination of service. Consequently, the enquiry report is perverse and it has not helped the petitioner. The issue is decided against the petitioner. Since the period of absence of the respondent has been treated by the management as Leave Without Pay, therefore, its AR does not press for opportunity to the petitioner to establish the misconduct of the respondent before the tribunal. In view of the circumstance, the petition has got no merit and the same is dismissed. "

( 3 ) IT stands admitted that despite the said order the appellant was not reinstated in service nor was he paid his back wages. He thereafter filed the afore-mentioned writ petition. In the said writ petition, a contention was raised on behalf of the respondent that the appellant had a remedy by filing a complaint petition under Section 33 (a) of the Act.

( 4 ) MS. Rasmeet K. Charya, the learned counsel appearing on behalf of the appellant would submit that the effect of non-grant of approval by the Tribunal under Section 33 (2) (b) would be that the order of dismissal is void ab initio and as such, he should be treated in service for all intent and purport and thus would also be entitled to the salary during the intervening period.

( 5 ) MR. Vinjay Sabharwal, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that although the appellant, having regard to the afbre-mentioned order of the learned tribunal, would be deemed to be in service, he has to take recourse to the proceedings under the Industrial Disputes Act, 1947 inasmuch as during the said period, he might have been serving somewhere else. Furthermore, the learned counsel would contend that by non-grant of approval, the entire departmental proceedings cannot be said to have become non-est and as such, it is open to an employer to start a departmental enquiry afresh.

( 6 ) SECTION 33 (2) (b) of the Industrial Disputes Act reads thus:

"33. Conditions of service, etc. , to remain unchanged under certain circumstances during pendency of proceedings. (1 ). . . . . . . . . (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, or where there are no such standing orders, in accordance with the terms of the contract, w