Point of Law: If the Tribunal rejects the approval application filed by the employer, the right to file recovery application is available to the workman concerned who has been discharged or dismissed from the services. As observed herein, it is well settled that if the Tribunal refused to grant approval sought for under Section 33(2) (b) of the I.D. Act, the effect of it would be that the order of discharge and dismissal had never been passed and consequently, the workman would be deemed to have continued in service entitling him to all benefits available to him.

JUDGMENT :

1. Special Civil Application No.8535 of 2012 has been preferred by the petitioner – Gujarat State Road Transport Corporation against the order dated 18.05.2011 passed by the Industrial Tribunal, Ahmedabad (hereinafter be referred to as the “Tribunal”) in Approval Application No.140 of 2003 [Reference (I.T.) No.37 of 2000], whereas, Special Civil Application No.11241 of 2012 has been preferred by the petitioner – Corporation against the order dated 05.05.2012 passed by the Labour Court, Ahmedabad in Recovery Application No.47 of 2011.

2. The petitions have been preferred by the petitioner – Corporation contending that the respondent – workman was working as a driver in Godhra Division and he remained absent from 21.11.2001 to 04.01.2002 and, therefore, he was called upon to face departmental inquiry and he was directed to remain present, however, he did not remained absent and charge-sheet No.12 of 2002 was served to the workman and after following principles of natural justice and several opportunities were given to the respondent, but he did not remain present in the departmental inquiry nor he resumed duty upto the date of examination of the reporter i.e. 26.07.2002. It is also contended that the second show-cause notice issued on 23.08.2002 which was replied by the respondent on 29.08.2002. Thereafter, the service of the workman came to be terminated on 10.04.2003 and an amount of Rs.5,000/- as well as Rs.3,673/-, by different receipts bearing No.9331 and 9332 respectively, paid by way of money order on the same day i.e. on 10.04.2003 to the workman, which came to be received by the workman on 12.04.2003. It is also contended that therefore, the Corporation has filed an approval application before the concerned Tribunal wherein the workman has falsely contended that he has not received one month salary and on that ground, the Industrial Tribunal has rejected the approval application. It is further contended that in the approval application, the Corporation has also stated that if the Tribunal came to the conclusion that the departmental inquiry is illegal then the Corporation may be permitted to produce necessary evidence thereof. However, no such opportunity has been afforded to the Corporation and ultimately, the impugned award / order was passed against the Corporation.

2.1 It is contended by the Corporation that on that basis, the workman has filed recovery application which also came to be allowed by the Tribunal though there was a stand taken by the Corporation that necessary correspondence was being in progress with the higher authority.

3. The workman has filed affidavit-in-reply in Special Civil Application No.8535 of 2012 wherein he has denied all the facts narrated by the Corporation and has reiterated that no opportunity of hearing was given to the workman in the departmental inquiry and the workman has not received one month salary. He has stated that the order passed by the Tribunal is in consonance with the principles of law and, therefore, the petition deserves to be dismissed.

4. Heard Mr.Hardik Rawal, learned counsel for the petitioner and Mr.P. J. Brahmbhatt, learned counsel for the respondent – workman at length through video conferencing.

5. At the outset, it is pertinent to note that during the pendency of these petitions, original workman has died and, therefore, his heirs were brought on record.

6. Mr.Rawal, learned counsel for the petitioner has vehemently submitted the same facts which are narrated hereinabove. While inviting the attention of the Court to the various documents, he has submitted that after due inquiry and considering the past history of the deceased workman, the order of dismissal was passed and he was already paid one month salary by way of two money orders. He has submitted that since the Corporation has not received the receipts of money orders by the workman, the Corporation has got necessary information from the postal department with regard to receiving thereof. He has sub