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2008 (2) GCD 1282 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Ahmedabad Municipal Transport Service
Versus
Budhabhai Atmaram
Special Civil Application No. 21974 of 2007—Decided on 04/04/2008
Approval application — Requirements to comply — Non-compliance — Rejection of application — Sustainability — Finding as to.
Point in Issue :
Whether in the facts rejection of approval application by Tribunal was justified?
Head Note :
Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Section 33(2)(b) — Approval application — Requirements to comply — Non-compliance — Rejection of application — Sustainability — Finding as to — Provisions for acceptance of approval application are mandatory in nature and require three actions simultaneously to be complied with — One is the dismissal order second is the approval application and third is payment of one month wages to the workman — These three conditions must be the part of one transaction i.e. the date of approval application, date of dismissal and date of payment of one month notice pay should be simultaneous as one transaction — Breach of any one of these conditions is enough to reject the approval application in the present case the petitioner Transport Service has failed to satisfy that these aforesaid conditions were complied simultaneously — Monthly wages paid were not complete amount and thus there was violation of mandatory requirement — The departmental enquiry was also not properly conducted — Same violated basic principles of natural justice Court held that in the facts and circumstances Tribunal has rightly rejected approval action filed by petitioner and same does not require any interference of this Court in exercise of the extra-ordinary powers — The petitioner has also raised question of financial burden of back wages but in view of violation of mandatory requirement in the case the question like heavy financial burden is irrelevant and need no consideration.
Held :
Provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 are mandatory in nature. Said provisions require three actions simultaneously. Industrial Tribunal has jurisdiction to consider the application for approval of the action under Section 33(2)(b) of the Industrial Disputes Act, 1947 while keeping in mind three conditions and then to consider as to whether these three conditions are satisfied or not. One is the dismissal order. Second is the approval application and third is payment of one month wages to the workman. These three conditions must be the part of one transaction, meaning thereby, that the date of approval application, date of dismissal and date of payment of one month notice pay/wages should be simultaneous as one transaction. Breach of any one of these conditions is enough for the Industrial Tribunal to reject the approval application under Section 33(2)(b) of the Industrial Disputes Act, 1947. [Para 8]
In the present case, the petitioner Transport Service has failed to satisfy the Industrial Tribunal that it has made compliance of the aforesaid three conditions simultaneously. Monthly wages which were paid were not complete amount and, therefore, mandatory provision of Section 33(2)(b) of the Industrial Disputes Act was violated by the petitioner. Departmental inquiry was also not properly conducted by the petitioner. On 05.09.1994, Inquiry Officer Mr. Brahmbhatt had examined the workman and after asking certain questions to the workman that the inquiry comes to an end, workman was taken back in service and at that time, it was not kept open to hold fresh inquiry on the same charge and yet, after one year period, another Inquiry Officer Mr. Shah initiated inquiry against the workman in connection with the same charge and the amount paid by the petitioner as one month notice pay by money order was belatedly paid which is also clear from the record and, therefore, there was non compliance of mandatory provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947. It was also violative of the basic principles of natural justice. Inquiry by two separate inquiry officers in respect of one and the same charge is also violative of the basic principles of natural justice, therefore, Tribunal has rightly rejected the approval application because date of dismissal is 23.04.1997 whereas the amount of one month notice pay was sent by the petitioner to the workman on 30.04.1997 and that too was short and not complete amount as held by the Tribunal. From the record itself, it is becoming clear that after dismissing the workman on 23.04.1997, one month notice pay was sent to him by money order on 30.04.1997. Therefore, Tribunal has rightly rejected approval action filed by the petitioner and same does not require any interference of this Court in exercise of the powers under Article 227 of the Constitution of India. [Para 10]
As regards the submission of learned Advocate Mr. Munshaw that the payment of ten years back wages to the workman would create unnecessary financial burden upon the petitioner Transport Service, and, therefore, some clarification in that regard should be made. If the petitioner transport service has violated mandatory provisions of Section 33(2)(b) of the Industrial Disputes Act, then, question of heavy financial burden of back wages on the petitioner is totally irrelevant for the Court because the Court cannot pass any order in violation of the mandatory provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947. [Para 11]
Law Laid Down :
Provisions with regard approval of application are mandatory in nature.
Case Law Analysis :
Lalla Ram vs. Management of DCM Chemical Works Ltd. & Anr., AIR 1978 SC 1004 [Para 9];; Jaipur Jilla Sahakari Bhoomi Vikas Bank Ltd., 2002 (2) SCC 244 = 2002 SCC (L & S) 279 [Para 11];; United Bank of India vs. Siddharth Chakraborty, 2007 (7) SCC 670. [Para 12].—Relied on
H.K. Rathod, J.—Heard learned Advocate Mr. H.S. Munshaw for the petitioner and Mr. B.A. Vaishnav, learned Advocate for the respondent.
2. This Court has, by order dated 18.03.2008, suggested to the Transport Service to pay the retirement benefits to the respondent workman considering the workman on duty during the interim period. Transport Service is prepared to accept the suggestion made by this Court but not prepared to pay the back wages for the interim period of about ten years. Learned Advocate Mr. B.A. Vaishnav for the workman is not agreeing to this suggestion because workman has not given consent to forego the back wages for interim period. In view of that, the matter has been taken up for hearing by this Court on merits.
3. Through this petition under Article 227 of the Constitution of India, the petitioner AMTS has challenged the order of the Industrial Tribunal in Approval Application No. 185 of 1997 in Reference (IT) No. 433 of 1992 dated 05.04.2007 wherein the Tribunal has rejected the application for approval filed by the petitioner under Section 33(2)(b) of the Industrial Disputes Act, 1947.
4. Learned Advocate Mr. H.S. Munshaw appearing for the petitioner submitted that the respondent was remaining absent from duty with effect from 16.04.1994 and, therefore, respondent was served with charge sheet and after completion of the departmental inquiry against him, he was dismissed from service on 23.04.1997. He submitted that one month notice pay was given by the Transport Service and industrial dispute was pending before the Industrial Tribunal wherein the workman is concerned and, therefore, approval application was filed by the petitioner under Section 33(2)(b) of the Industrial Disputes Act, 1947 before the Tribunal and as the Tribunal refused to approve the action and rejected the application for approval, present petition has been filed by the petitioner before this Court.
5. He submitted that the Tribunal has committed gross error in rejecting the approval application because the workman was reinstated during the pendency of inquiry on 05.09.1994 and, thereafter, departmental inquiry was completed by another inquiry officer and that does not vitiate the departmental inquiry. He further submits that the residential address of the workman was not available with the petitioner and, therefore, there was six days delay in sending the money order of one month wages to the workman and that cannot become a ground for rejection of the approval application because he was residing in a small village. He further submitted that the Tribunal has not come to proper conclusion as to how much amount is less towards monthly wages which was given by the petitioner to the workman and even the workman has also not pointed out how much less amount has been paid by the petitioner to the workman. He also submitted that the reasoning given by the Tribunal is incorrect from record and transport service has complied with the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 and yet on wrong ground, the Tribunal has rejected the application for approval. He submitted that in view of the rejection of the approval application, respondent workman has to be considered to be in service for all purposes looking to the legal provisions and, therefore, transport service has to pay full back wages of 10 years to the workman which amounts to heavy financial burden upon the transport service and, therefore, the tribunal ought not to have rejected the approval application. Except these submissions, no other submission was made by learned Advocate Mr. Munshaw for the petitioner and no decision was cited by him in support of the aforesaid submission.
6. On the other hand, learned Advocate Mr. B.A. Vaishnav appearing for the respondent workman has submitted that the workman has reached the age of superannuation on 01.06.2007. He submitted that the Tribunal has rightly come to the conclusion that during the pendency of inquiry, work
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