The compulsory retirement without obtaining approval under Section 33(2)(b) during a pending industrial dispute was non-est and entitled the petitioner to reinstatement and back wages.

S.N.AGGARWAL, J (ORAL)

The petitioner in this writ petition has prayed for issuance of a writ of mandamus or any other appropriate writ or directions against the respondent and to declare the order of his compulsory retirement passed by the respondent on 16.09.2004 as non-est and inoperative as no approval was taken by the respondent from the Industrial Tribunal-III under Section 33(2)(b) of the the Industrial Disputes Act, 1947 in a pending industrial dispute in I.D. No. 63/2004. The petitioner has also prayed for consequential directions against the respondent directing it to reinstate him in service with full back wages and other benefits w.e.f. 16.09.2004.

2.Briefly stated the facts of the case relevant for the disposal of this writ petition are that the petitioner was appointed as a Museum Assistant in the National Gandhi Museum of the respondent on 02.01.1997. On 14.06.2002, the Director of the respondent had abolished the option for the employees of the respondent for compensatory leave for duties on National and Gazetted Holidays against the wishes of the employees of the Gallery Section. The employees of the Gallery Section of the respondent were agitated against the abolition of the option and they registered their protest against the same. On 28.06.2003, the employees of the Gallery Section of the respondent passed a Resolution to raise an industrial dispute under the Industrial Disputes Act, 1947 for restoration of the option of compensatory leave and authorised the petitioner to pursue the dispute and represent them before the labour authorities. On 02.01.2004, the respondent issued a charge-sheet to the petitioner and proposed the punishment of compulsory retirement in the charge-sheet alleging that he had assaulted the Assistant Director of the respondent in the office.

. Aggrieved therefrom, the petitioner had filed a writ petition being W.P.(C.) No. 478/2004 in this Court and had challenged the charge-sheet and the proposed punishment of compulsory retirement as it was proposed without holding any inquiry. In that writ petition, the respondent gave a statement to the Court that it will hold a fair inquiry against the petitioner and in view of the said statement made on behalf of the respondent, the above-mentioned writ petition filed by the petitioner was disposed of by this Court vide its order dated 12.07.2004 reserving liberty for the petitioner to challenge the outcome of the inquiry and the punishment, if awarded to him.

4. In the meanwhile, the appropriate Government referred the dispute of compensatory leave between the parties on 27.05.2004 for adjudication to the Industrial Tribunal-III. During pendency of the said industrial dispute before the Industrial Adjudicator, the respondent passed an order of compulsory retirement against the petitioner on 16.09.2004 as he was found guilty of the charges by the Inquiry Officer. On 23.09.2004, the respondent had filed an approval application for approval of compulsory retirement of the petitioner w.e.f. 16.09.2004 under Section 33(2)(b) of the Industrial Disputes Act, 1947. The petitioner had filed his reply to the said approval application. However, the approval application under Section 33(2)(b) was withdrawn by the respondent on 08.12.2004 as it was of the view that no approval under Section 33(2)(b) was required for compulsory retirement of the petitioner.

5. After application under Section 33(2)(b) was withdrawn by the management, the petitioner approached the Chairman of the respondent on 08.12.2004 and also personally met other members of the Executive Committee of the respondent society from time to time and requested them to take him back on duty with back wages but the respondent refused to pay any heed to his said request and hence he has filed the present writ petition for directions to the respondent to take him back on duty and give him back wages w.e.f. the date of his compulsory retirement, i.e., 16.09.2004 as no approval under Section