Point of law: Enquiry contemplated under Section 33 (2)(b) of the Act was summary in nature to see prima facie if the domestic enquiry was fair and just and whether the employee was given a reasonable opportunity in compliance of the principles of natural justice.

JUDGMENT :

1. The petitioner challenges Ext. P9 order dismissing the application filed under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short “the Act”) seeking approval of the dismissal order passed against the first respondent herein.

2. The petitioner, a company having tea and rubber estates in Kerala, initiated disciplinary proceedings against the first respondent/workman. Following the finding in the enquiry report that found the workman guilty of the charges, a punishment of dismissal was imposed as per Ext. P4. The petitioner/employer made Ext. P5 application under Section 33(2)(b) of the Act in view of the pendency of the Industrial dispute raised by the 3rd respondent on the charter of demands made before the 2nd respondent. The said application was rejected by Ext. P9 stating that in view of the pending dispute raised at the instance of the Union, the application filed by the employer cannot be allowed.

3. The learned Senior Counsel for the petitioner Sri. E.K. Nandakumar submits that the 2nd respondent has not exercised the jurisdiction vested in him under the Act legally. He further submits that that even if the industrial dispute is pending, approval ought to have been granted without prejudice to the right of the Union to proceed with the dispute. The finding in Ext. P9 is ex facie illegal and the duty of the 2nd respondent was only to verify whether the enquiry stated to be conducted was fair and whether one month's wages as prescribed under the proviso to Section 33 (2) (b) was paid. He further submits that as the twin requirements were satisfied, the approval sought for ought to have been allowed.

4. Learned counsel for the respondent Sri. Thomas Abraham submitted that since the 3rd respondent Union of which the first respondent was a member had raised an industrial dispute questioning the disciplinary action initiated by the Manager, Ext. P9 order cannot be faulted. It is further submitted that the management had come up with false allegations to wreck vengeance against the first respondent and the previous litigations proved the same. Two suits filed by the management are also pending. He further argues that prior permission was required from the Conciliation Officer concerned as mandated under Section 33 (1)(b) of the Act and Ext. P5 application filed by the management was misconceived.

5. Having considered the arguments by the learned counsel on either side, I am of the firm view that Ext. P9 order cannot be sustained as the consideration mandated under Section 33 (2)(b) has not been done while rejecting the prayer for approval. As pointed out by the learned Sr. counsel, the Supreme Court in John D'Souza v. Karnataka State Road Transport Corporation [JT 2019 (12) SC 363], has held that the enquiry contemplated under Section 33 (2)(b) of the Act was summary in nature to see prima facie if the domestic enquiry was fair and just and whether the employee was given a reasonable opportunity in compliance of the principles of natural justice. The object behind such a provision is to ensure that pending adjudication of a dispute, the employer should not act with vengeance leading to further industrial dispute. Same view has been taken by a Division Bench of this Court in the decision reported in Comnico Binani Zinc Limited v. K.N. Mohanan and Anr. [ILR 1993 (3) KER 170].

6. Section 33 of the ID Act, as it stood prior to the 1956 amendment, virtually prohibited a change of service conditions to the prejudice of workman or discharge or dismissal of the workman during the pendency of any conciliation proceedings or any other proceedings before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute. The object was obviously to protect the workman concerned against victimization for having raised an industrial dispute and further to ensure adjudication of pending industrial proceedings in a peaceful atmosphere. After the amendment of Section 33 in the year 1956, there is a