Failure to seek approval under Section 33(2)(b) of the Industrial Disputes Act renders dismissal void and inoperative, as established by the Supreme Court in Jaipur Zila case.

JUDGMENT :

M.S. RAMESH, J.

Prayer: Writ Appeal filed under Clause 15 of the Letters Patent Act, to set aside the order dated 09.11.2011 made in W.P. No. 17664 of 2001.

Prayer: Writ Appeal filed under Clause 15 of the Letters Patent Act, to set aside the order of the learned Judge made in W.P. No. 16139 of 2000 dated 09.11.2011.

1. Since the issue involved in both these Writ Appeals are inter-connected, they are heard together and disposed of through this common judgment.

2. The brief and relevant facts involved in the two appeals are as follows:

2.1. On 02.09.1997, when eight workers of M/s. Gem Granites (hereinafter referred to as ‘the Management’) were transferred to a branch factory in Karnataka from Chennai, they had raised Industrial Disputes before the Conciliation Officers, which ultimately ended in a failure and through G.O.Ms. No. 472, Labour and Employment Department, dated 02.07.1998, the State Government had referred the dispute for adjudication by the Industrial Tribunal at Chennai (hereinafter referred to as ‘the Tribunal’).

2.2. The order of reference made to the Tribunal was “whether the action of the Management in transferring eight workers from Chennai to the branch factory at Karnataka was justified and if not, to what relief they are entitled to.” The said reference was taken by the Tribunal on file as Industrial Dispute in I.D. No. 100 of 1998.

2.3. Thereafter, when the Management intended to dismiss these eight workmen, who had disregarded the transfer order, they had filed petitions under Section 33(1)(b) of Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) on 06.11.1998, seeking permission to dismiss the eight workmen. These petitions were taken on file as A.P. Nos. 61 of 1998 to 68 of 1998.

2.4. On 04.04.2000, the Management had, however, withdrawn all the eight approval petitions, in view of the then prevailing law set forth by a Three Judge Bench of the Hon’ble Supreme Court in the case of M/s. Punjab Beverages Pvt. Ltd. Chandigarh Vs. Suresh Chand and Another, 1978 (2) SCC 144 (hereinafter referred to as ‘Punjab Beverages case’) holding that non-approval of the order of dismissal or failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative and failure to apply for approval under Section 33(2)(b) would only render the employer liable to punishment under Section 31 of the Act and the remedy of the employee is either by way of a complaint under Section 33-A or by way of a reference under Section 10(1)(d) of the Act.

2.5. After such withdrawal, the Management had dismissed these workmen, through orders dated 28.11.1998. Challenging the order of dismissal, the Trade Union representing the eight workmen filed Complaint No. 1 of 2000 on 08.04.2000 before the Tribunal under Section 33-A of the Act.

2.6. On 26.05.2000, an award came to be passed in I.D. No. 100 of 1998, holding that the transfer orders were justified. Challenging this award, the Union had preferred W.P. No. 16139 of 2000 before a learned Single Judge of this Court.

2.7. Thereafter, the Tribunal had passed another award in Complaint No. 1 of 2000 dated 26.06.2001, setting aside the order of dismissal, and by directing for reinstatement of these eight workmen with backwages, by holding that the domestic inquiry conducted by the Management was not fair and proper.

2.8. This award dated 26.06.2001 was put under challenge in a Writ Petition in W.P. No. 17664 of 2001. On 09.11.2011, the learned Single Judge of this Court had placed reliance on the decision of the Five Judge Constitutional Bench of the Hon’ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Vs. Ram Gopal Sharma and Others (hereinafter referred to as ‘Jaipur Zila case’) 2002 (2) SCC 244 and held that since the workmen were dismissed by the Management without seeking for express permission by the Tribunal, before which the Industrial Dispute relating to the dispute regarding transfer was still pending, their order