1. Dismissal of workmen for misconduct during pending conciliation proceedings — Application for approval under Section 33(2)(b) of the Industrial Disputes Act — Rejection by labour authority. (Para 2 , 3 , 4 )
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2021 Supreme(SC) 1110
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, VIKRAM NATH, B.V.NAGARATHNA, JJ.
Sri Dorairaj Spintex - Appellant
Versus
R Chittibabu & Ors - Respondents
Civil Appeal No 5897 of 2021(Arising out of SLP (Civil) No 30511 of 2018)
Decided on : 22-09-2021
Advocates:
Advocate Appeared:
For the Appellant : Mr. Niraj Kumar Singh, Mr. Satyajeet Kumar, AOR
For the Respondent: Mr. T. Harish Kumar, Mr. Navneet Dugar, Mr. Shubham Kothari, Adv.
Advocate Appeared:
For the Appellant : Mr. Niraj Kumar Singh, Mr. Satyajeet Kumar, AOR
For the Respondent: Mr. T. Harish Kumar, Mr. Navneet Dugar, Mr. Shubham Kothari, Adv.
The Court distinguished between Section 33(1)(b) and 33(2)(b) of the Industrial Disputes Act, ruling that prior permission is required only for misconduct connected to a pending dispute. For misconduct unconnected to the dispute, the employer may dismiss the workman following the approval procedure under Section 33(2)(b).
Headnote:
Industrial Disputes Act 1947 – Section 33(2)(b), 33 – Commenced a domestic enquiry – Appeal arises from a judgment of a Division Bench of High Court of Judicature at Madras – High Court dismissed Letters Patent Appeal filed by management against a judgment of a Single Judge – Single Judge had upheld an order of Assistant Commissioner of Labour, rejecting an application filed by management under Section 33(2)(b) of Industrial Disputes Act 1947 management is in appeal –Held, Court have come to conclusion that action of dismissal for misconduct was not connected with dispute which was pending in conciliation, provisions of Section 33(2)(b) of ID Act would stand attracted – There is no dispute about fact that there was compliance of provisions of Section 33(2)(b), nor is there a finding to contrary – In this view of matter, order of Assistant Commissioner of Labour was contrary to law and there was an error on part of Single Judge and Division Bench in affirming the order – Court accordingly allow appeal and set aside impugned judgment and order of Division Bench of the High Court of Judicature at Madras In consequence, application for approval filed by appellant under Section 33(2)(b) of ID Act would stand approved – Since appeal stands rejected against Respondent in pursuance of order of Chamber Judge – Court clarify that this order shall not affect entitlement of legal representatives of deceased – Workmen to benefits which flow in accordance with law – Application disposed of.
Legal Category Hierarchy
Table of Contents
2. Whether dismissal for misconduct during pending conciliation requires prior permission under Section 33(1)(b) or post-action approval under Section 33(2)(b) of the Industrial Disputes Act. (Para 5 , 6 )
3. The misconduct involving vandalism was unrelated to the pending disputes regarding service conditions and permanency, attracting the provisions of Section 33(2)(b) rather than Section 33(1)(b). (Para 9 , 10 , 12 , 13 )
4. Prior permission under Section 33(1)(b) is required for misconduct connected with a dispute, whereas Section 33(2)(b) applies to misconduct not connected with the dispute. (Para 9 , 10 )
5. Appeal allowed — Impugned judgment set aside — Application for approval under Section 33(2)(b) of the Industrial Disputes Act approved. (Para 14 )
6. What is the distinction between Section 33(1)(b) and Section 33(2)(b) of the Industrial Disputes Act?
Section 33(1)(b) requires express prior permission in writing for discharging or punishing a workman for misconduct connected with a pending dispute. Section 33(2)(b) applies to misconduct not connected with the dispute, requiring the employer to pay one month's wages and file an application for approval with the pending authority. (Para 8 , 9 , 10 )
7. How is the connection between misconduct and an industrial dispute determined under Section 33?
The connection is determined based on the facts of each case. If the misconduct, such as vandalism, is unrelated to the specific demands raised in the conciliation proceedings, such as salary, seniority, or permanency, the action is considered not connected with the dispute. (Para 10 , 13 )
8. What are the mandatory requirements for an employer to dismiss a workman for misconduct not connected with a pending dispute under Section 33(2)(b)?
The employer must act in accordance with applicable standing orders or the employment contract, pay the workman wages for one month, and submit an application for approval of the action to the authority before which the proceeding is pending. (Para 8 , 11 )
JUDGMENT :
Dhananjaya Y. Chandrachud, J
1. Leave granted.
2. The appeal arises from a judgment of a Division Bench of the High Court of Judicature at Madras dated 14 March 2018. The High Court dismissed the Letters Patent Appeal filed by the management against a judgment of a Single Judge. The Single Judge had upheld an order dated 31 March 2003 of the Assistant Commissioner of Labour, Dindigul, rejecting an application filed by the management under Section 33(2)(b) of the Industrial Disputes Act 19471[“ID Act”]. The management is in appeal.
3. The appellant had an establishment which was functioning in Dindigul District. An application was filed by the appellant on 16 November 2002 before the Assistant Commissioner of Labour under Section 33(2)(b) of the ID Act for the grant of approval of its action to dismiss thirty-one workmen against whom disciplinary proceedings had been initiated and concluded. The material facts which need to be summarized for the purpose of the present appeal are thus: On 4 July 2002, the workmen raised an industrial dispute under Section 2(k) of the ID Act. The dispute was taken into conciliation. While the conciliation proceedings were pending, the workers commenced a stay-in strike on 31 July 2002. On 1 August 2002, another dispute was raised by the workmen, which was taken into conciliation. The management initially suspended forty-seven workmen. A charge memo was issued to the workmen on 20 August 2002 to which there was a reply on 30 August 2002. The management commenced a domestic enquiry. After the conclusion of the enquiry, a show cause notice was issued to the workmen on 29 October 2002. On 16 November 2002, an order of dismissal was issued. Following the order of dismissal, the management filed an application for approval before the Assistant Commissioner of Labour under Section 33(2)(b).
4. The Assistant Commissioner of Labour held that since conciliation proceedings were pending with reference to a dispute which was raised by the workmen on 4 July 2002 and, subsequently, on 1 August 2002, prior approval before the termination was necessary under Section 33(1)(b) and that the action of management in taking steps in pursuance of Section 33(2)(b) was unlawful. The application for approval under Section 33(2)(b) was rejected. The order of the Assistant Commissioner of Labour was challenged in writ proceedings before the High Court. By a judgment dated 4 March 2013, the Single Judge held that since conciliation proceedings were pending before the Conciliation Officer, “even though the dismissal order is for some other reason”, yet the prior approval of the authority specified in terms of Section 33(1)(b) was necessary. The order of the Single Judge was carried in appeal before the Division Bench. The Division Bench, while affirming the judgment, directed the appellant to pay (i) 50% of the back wages for the period from the date of dismissal till the date of the closure of the appellant’s unit; (ii) closure compensation; and (iii) interest at 6% per annum calculated from the date of closure. The appellant has closed its unit from 8 July 2009.
5. Mr Niraj Kumar Singh, counsel appearing on behalf of the appellant, submits that the Assistant Commissioner of Labour failed to notice the distinction between Section 33(1)(b), which postulates a requirement of prior approval, and Section 33(2)(b), on the other hand, which requires compliance with two conditions, namely, (i) payment of one month’s salary, which is not in dispute; and (ii) the filing of an application to the authority before which the proceeding is pending for approval of the action taken by the employer. Counsel submitted that the provisions of Section 33(1)(b) are attracted when the action of the management is in respect of any misconduct connected with the dispute. On the other hand, where the action of the management is for misconduct not connected with the dispute, Section 33(2)(b) would stand attracted. On the above premises, it has bee
