Non-compliance with the mandatory provisions of Section 33(2)(b) of the Industrial Disputes Act renders an order of dismissal inoperative, and the employee can seek relief under Section 33-A without the need for separate adjudication on the merits of the dismissal.

Badar Durrez Ahmed, J.

1. These two appeals raise identical issues and involve virtually similar facts and are, therefore, being disposed of together. The appeals arises out of WP(C) No.6228/2011 and WP(C) No.6236/2011 in respect of which orders were passed by the learned Single Judge on 26th August, 2011 dismissing both the writ petitions filed on behalf of the appellant herein. For the sake of convenience, we shall refer only to the facts of LPA No.1044/2011which arises out of WP(C) No.6228/2011 (Tops Security Limited v. Subhash Chander Jha).

2. The point in issue is whether the non-compliance of the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the said Act”) would ipso facto mean that an order of dismissal passed by the employer would be ineffective? The additional question is whether the employee, in such a circumstance, would be required to file an application under Section 33-A of the said Act for having the said order of dismissal being declared as void ab initio?

3. The facts of LPA No.1044/2011are that an industrial dispute namely ID No.43/2008 was pending before the Industrial Tribunal and had arisen out of reference order of F.24(1154)/06/Lab./2547-51 dated 28.02.2008 between the said workman and the management of Tops Security Limited. During the pendency of the said industrial dispute, the services of the workman were terminated w.e.f. 26th November, 2008. It is an admitted position that the provisions of Section 33(2)(b) of the said Act had not been complied with by the employer. This is so because the wages for one month which were required to be paid had not been paid at the time of discharge/dismissal but were only tendered much later. Apart from this, the employer had also not made an application to the Industrial Tribunal before which the said industrial dispute was pending for approval of the action of termination taken by the employer. Thus, on both counts, that is, on the ground of non-payment of one month’s wages at the time of alleged termination and, secondly, because of the fact that no approval was sought from the Industrial Tribunal by the employer, the provisions of Section 33(2)(b) of the said Act had, admittedly, been contravened.

4. Since the mandatory provisions of Section 33(2)(b) of the said Act had been violated, the workman through his counsel, sent a demand notice dated 10th December, 2008 seeking reinstatement with full back wages. However, the management did not reply to the notice nor did it accept the demand made by the workman. It is in these circumstances that the workman, left with no other alternative, filed the complaint under Section 33-A read with Section 33(2)(b) of the said Act before the Industrial Tribunal Number 1, Karkardooma Courts, Delhi where its earlier industrial dispute was pending. We may point out that although the workman had taken the point that his dismissal from service was itself in violation of the various principles such as non-issue of charge-sheet, not holding of any domestic enquiry etc, the workman had, alternatively, taken the plea that the management had not complied with the provisions of Section 33(2)(b) of the said Act and therefore, the termination had become void ab initio or, in other words, the termination has not at all taken effect. Before the said Industrial Tribunal, the workman had taken support from the decision of the Supreme Court in the case of Jaipur Z.S.B.Bank Ltd. v. Shri Ram Gopal Sharma and Anr : AIR 2002 Supreme Court 643.

5. Thereafter, the Industrial Tribunal considered the complaint filed under Section 33-A of the said Act and came to the conclusion that the management had, indeed, contravened the provisions of Section 33 (2)(b) of the said Act and, as a consequence, without going into the merits of the termination of service itself, on account of the fact of contravention of the mandatory provisions of Section 33(2)(b) of the said Act, directed that the workman be reinst