Workers can claim back wages if dismissed without statutory approval under Section 33 of the Industrial Disputes Act, as such dismissals are deemed void.

JUDGMENT :

A.D. MARIA CLETE, J.

Heard.

2. Two stalwarts of the Labour Bar have appeared before this Court and addressed the matter with thoroughness and distinction, leaving no aspect unexplored. However, the controversy lies within a narrow compass. The issue for consideration is whether the respondent workmen can maintain a claim for back wages under Section 33 C(2) of the Industrial Disputes Act, 1947, solely on the ground that their dismissal was effected without the prior approval mandated under Section 33 (2)(b) of the Act—when the legality of such dismissal has not yet been adjudicated by a competent forum.

3. It is pertinent to note that the issue at hand is no longer res integra. A Constitution Bench of the Supreme Court, in its authoritative Judgment in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma & Others, reported in (2002) 2 SCC 244 , has conclusively settled the legal position. At paragraphs 14 to 19 of the judgment, the Court held as follows:-

“14. Where an application is made under Section 33 (2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33 (2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33 A challenging the order granting approval on any of the grounds available to him. Section 33 A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section