Judgment 1. IN this application for appropriate writs under Article 226 of the Constitution of India, the petitioner is challenging an order passed by the respondent No. 1 herein being the Authority under the Payment of Wages Act on November 30, 1974 in P. W. Case No. 156 of 1973. The facts of this case may be shortly stated as follows: the petitioner company carries on the business of manufacturing various jute textiles products. The petitioner has jute mills at jagatdal where various workmen are employed. At all material times the respondent No. 2 was a workman employed by the petitioner as a Cash Clerk at one of its jute mills. By an order of dismissal dated September 26, 1966 the respondent No. 2 was dismissed from service on the allegation that he remained absent from July 22, 1966 for more than 10 days without leave. According to the petitioner, such absence was an act of misconduct warranting dismissal under certified Standing Orders applicable to the respondent No. 2. The admitted position is that no domestic enquiry was held prior to such order of dismissal At the time of such dismissal proceedings were pending before the Second Industrial Tribunal of West Bengal in respect of an industrial dispute between the petitioner and its workmen on the Question whether payment of bonus to workmen employed in Jute Mills for the year 1963-64 should be regulated and determined in accordance with the provisions of the Payment of bonus Act 1965. Accordingly, in view of the provisions of Section 33 (2) (b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 1947 Act) the petitioner made an application to the Tribunal for approval of its action in dismissing the respondent No. 2. By an order dated November 20, 1963 the said Tribunal refused such approval. It appears that being aggrieved by such order of the Tribunal, the petitioner preferred an appeal to the Hon'ble Supreme Court of India whereupon the Supreme Court stayed the operation of the order of the Tribunal till the disposal of the appeal. On April 26, 1973 the appeal preferred by the petitioner was dismissed by the Supreme Court. I should point out that a subsequent application for review of the said judgment was also rejected by the Supreme Court in January, 1974. On April 26, 1973 the appeal preferred by the petitioner was dismissed by the Supreme Court. I should point out that a subsequent application for review of the said judgment was also rejected by the Supreme Court in January, 1974. By a letter dated May 7,1973 the respondent No. 2 applied to the Manager of the petitioner's Mills for reinstatement. 2. ON June 8, 1975 the respondent No. 2 also caused a letter to be sent to the Manager of the petitioner's Mills by his Solicitor making a demand inter alia, for payment of salary due from August 1,1966 to may 31, 1973 including bonus. In reply thereto, Messrs. Orr Dignam and Co. Solicitors, acting on behalf of the petitioner, informed the plaintiff's Solicitors by their letter dated June 26, 1973 that they were studying the relevant papers and proposed to write to them shortly. Under these circumstances, on August 7, 1973 an application was made by the respondent No. 2 under Section 15 (2) of the Payment of Wages Act (hereinafter referred to as the said Act) before the respondent No. 1 for payment of a sum of Rs. 33,347 as arrears of wages for the period from August 1, 1966 to July 31, 1973. On September 29, 1973 a second order of dismissal was passed by the petitioner in respect of the respondent No. 2. On the very same date another application under Section 33 (2) (b) of the 1947 Act was made before the Tribunal for approval of the action of the petitioner which is still pending for disposal. Thereafter written objection was filed by the petitioner before the respondent No. 1 objecting to the jurisdiction of the respondent No. 1 to entertain such application under Section 15 (2) of the said Act. After hearing the parties, by an order dated November 30, 1974 the respondent No. 1 held that he had jurisdiction to hear and decide the claim of the respondent No. 2 as stated in his petition and fixed the matter for hearing on January 6, 1975 on the question of condonation of delay. Being aggrieved by the said order dated November 30, 1974, the petitioner has moved this Court under Article 226 of the Constitution of India and a Rule nisi was issued on January 17, 1975. Being aggrieved by the said order dated November 30, 1974, the petitioner has moved this Court under Article 226 of the Constitution of India and a Rule nisi was issued on January 17, 1975. It was further directed that upon the petitioners depositing with their Solicitors, within a week, the sum of Rs. 15,000/- to be held by them free from lien and subject to further orders of the Court there would be a stay of the operation of the impugned order till the disposal of the Rule or until further orders. Unconditional stay was granted for a period of one week. Mr. Ginwalla learned counsel appearing on behalf of the petitioner submitted that the respondent No, 2 had committed several acts of misconduct including misappropriation which has been specified in paragraph 5 of the petition. It is stated that the real reason why he absented himself from July 22, 1966 was the alleged misappropriation which was about to come to light in an audit by the petitioner's Auditors that was commenced on July 21, 1966. It is stated that criminal proceedings were commenced against the respondent no. 2 in respect of the aforesaid acts and such proceedings are still pending in the Court of the Magistrate at Barrackpore. Mr. Ginwalla submitted that an employer has got the right to terminate the services of its employee oven on a ground not known to him at that time. He also submitted that having regard to Sections 51 to 54 of the Contract Act the respondent No. 2 was not entitled to any salary or wages for the period. In any event, he submitted that the questions involved are complicated questions of fact and law and having regard to the summary jurisdiction of the respondent No. 1 he was not entitled to go into all these questions in such an application. In this context he referred to the case of Payment of Wages Inspector, ujjain v. Surajmal Mehta 1969 (18) F.L.R. 284= (1968-70) 7 S.C.L.J. 775=A.I.R. 1969 S.C. 590. Mr. Ginwalla also sought to submit that even no approval was given under Section 33 (2) (b) of the 1947 act by the Tribunal in any event the respondent No. 2 was only entitled to compensation but not wages as sought for in his application before the respondent No. 1. However, in his usual fairness, Mr. Mr. Ginwalla also sought to submit that even no approval was given under Section 33 (2) (b) of the 1947 act by the Tribunal in any event the respondent No. 2 was only entitled to compensation but not wages as sought for in his application before the respondent No. 1. However, in his usual fairness, Mr. Ginwalla submitted that having regard to the decision in the case of national Tobacco Co. of India Ltd. v. Authority appointed under the payment of Wages Act (1967) 71 Cal. W.N. 159 it was not open to him to agitate the question before this Court but reserved his right to raise such contention before appropriate Court. On behalf of respondent No. 2 each and every contention of Mr. Ginwalla was disputed and reliance was placed in this connection to the following cases Straw Board Manufacturing Co. Ltd., Saharanpur v. Govind 1962 (4) F.L.R. 403= (1950-67) 6 S.C.L.J. 3928=A.I.R. 1962 S.C. 1500., Tata Iron and Steel Company Ltd. v. Modak (S.N.)1965 (11) F.L.R. 61= (1950-67) 4 S.C.L.J. 2692= (1965) 2 I.L.J. 128 (S.C.) and National Tobacco Co. of India. Ltd. (1967) 71 Cal. W.N. 159= (1967) 2 L.L.J. 101. The scope of Section 83 (2) (b) of the 1947 Act and the effect of rejection of an application for approval under the same is now well settled and does not require a fresh consideration. It is also not necessary to refer to any other decision on the point prior to the decision of the Supreme Court in case of Straw Board Company (3). 3. IN the Straw Board Company's case it was held that sub-section (2) (b)of Section 33 of the 1947 Actwhich exactly corresponds to Section 6-E (2) (b) of the U.P. Actcontemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him. Dealing with the apprehension expressed on behalf of the employee that in such a case if the tribunal refuses to approve of the action, the workman would be left with no remedy, as there is no provision for reinstatement in section 33 (2), the Supreme Court observed that if the Tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the Tribunal not approving the action of the employer, the dismissal or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge of dismissal passed by the employer does not become final and conclusive until it is approved by the Tribunal under section 33 (2). 4. THE principles laid down in the Straw Board's case (supra)came up for consideration in various cases including the case of national Tobacco Co. (supra) where Mr. Ginwalla appeared for the petitioner and argued similarly as he has sought to argue here. In that case following the decision in the Straw Board Company's case and other cases B.C. Mitra, J. held that where the Tribunal had refused to approve of an order of dismissal, if such an employee is so entitled, he certainly would be entitled to claim the wages, if in law his employment continues under the employer. It may be that the employee concerned did not render any service to the employer to earn the wages; nevertheless the law provides that he is entitled to claim to be in employment for the entire period commencing from the date of dismissal until the date when the Labour Court or the tribunal refuses to make an order sanctioning or approving of the order of dismissal. Accordingly, it was observed that in view of the matter, it cannot be said that the employee is not entitled to the wages to which he would be entitled as an employee. Accordingly, it was observed that in view of the matter, it cannot be said that the employee is not entitled to the wages to which he would be entitled as an employee. Regarding the question of limitation in respect of an application under Section 15 (2)of the said Act, with which we are not concerned at this stage, his lordship held that the delay involved has been condoned for the entire period by the authority concerned which he was not entitled to do. I may also refer to the case of National Tobacco Co. of India ltd. v. State of West Bengal (supra) which was referred to from the bar. That was a decision of a Division Bench for disposal of a report made by Sankar Prasad Mitra, J. (as his Lordship then was)under Rule 2, Chapter 5 of the Original Side Rule. That was also an application under Article 226 of the Constitution of India directed against an order of the Payment of Wages Authority and involving the question of limitation of an application under Section 15 (2) of the said Act. In that case the judgment of B. C. Mitra, J. in National tobacco Co's case (supra) was referred to and the decision of B. C. Mitra, J. that when the Tribunal refuses to approve an order of dismissal the employee must be held to have been in service of the employer from the date of dismissal and that he would be entitled to claim wages for the entire period, but subject to the law of limitation, was approved by the Division Bench. It is further observed that as Section 33 (2) (b) required that the employer was to pay only one month's salary and not the salary for all subsequent months until the Tribunal approves or refuses to approve of the order of dismissal this indicates that during the pendency of the application under Section 33 (2) (b) of the employee is to be treated as having been lawfully dismissed although once the Tribunal has refused to approve the order of dismissal the employee must be treated as if he had never been dismissed and the salary for the entire period subsequent to his dismissal becomes payable. 5. HAVING regard to the principles so laid down let us examine the facts of this case. 5. HAVING regard to the principles so laid down let us examine the facts of this case. The position remains that the order of dismissal which was passed on September 26, 1966 has not been approved by the Tribunal and that the application of the petitioner to that effect has been dismissed by the Tribunal. The appeal against which has also been dismissed by the Supreme Court. It is also to be remembered that the subject-matter of this application before the Payment of Wages Authority is for salary for the period from August 1, 1966 to July 31, 1973. It is to be remembered that the second purported order of dismissal was passed subsequent to this period, i.e., only on September 29, 1973, approval for which has been sought for by another application under Section 33 (2) (b) of the 1947 Act. Having regard to the fact that the Tribunal has not approved the order of dismissal passed earlier on September 26, 1966 and in view of the aforesaid decision, the respondent No. 2 is certainly entitled to claim to have been in the service of the petitioner at the relevant period. In that view of the matter having regard to the fact that the second order of dismissal, even if valid, was passed on September 29, 1973 there is no reason why the petitioner would not be entitled to wages for the period from August 1, 1966 to July 31, 1973 as claimed by him. Even if the petitioner's contention regarding the validity of the second order of dismissal is correct and even if such order of dismissal is ultimately approved by the Tribunal, that does not alter the fact that the approval would take place only from the date of the subsequent order of dismissal i. e. from September 29, 1973 only and not earlier. An order of dismissal cannot be passed with retrospective effect. Accordingly the right of the petitioner to claim salary for the earlier period, cannot be, in any way, defeated by the subsequent order of dismissal dated September 29, 1973 even if approval is ultimately given by the Tribunal. The fact that there is a criminal case pending would not make any difference. Accordingly the right of the petitioner to claim salary for the earlier period, cannot be, in any way, defeated by the subsequent order of dismissal dated September 29, 1973 even if approval is ultimately given by the Tribunal. The fact that there is a criminal case pending would not make any difference. In that criminal case the respondent No. 2 might be found guilty but that has nothing to do with the claim for salary for the period prior to the passing of an order of dismissal. Sections 51 to 54 of the Contract Act relied upon by Mr. Ginwalla have no application in the facts and circumstances of this case. The question of repudiation of contract does not arise in the present case as the respondent No. 2 will be deemed to have been in the service of the petitioner through this period, whether he actually rendered any service or not, as the order of dismissal has not been approved by the Tribunal. Accordingly, the respondent No. 2 is entitled to claim the wages for the relevant period. The other contention of Mr. Ginwalla has also no force. No question or any complicated question of law or fact arises in this case. The order of dismissal passed against the respondent No. 2 has not been approved. Accordingly, the respondent No. 2 is entitled to his wages for this period. The law is well settled and the facts which are really relevant are no and cannot be disputed. 6. THE case of Payment of Wages Inspector (supra) cited in this connection by Mr. Ginwalla has no application. There the first question was whether the compensation payable under Section 25-FF was wages within the meaning of Payment of Wages Act. The Supreme Court answered such question in the affirmative. Thereafter it was observed that the jurisdiction under Section 15 of the said Act is of a limited nature. It was held that the authority has the jurisdiction to try matters which are incidental to the claim in question. It was held that while deciding whether a particular matter is incidental to the claim or not care should be taken neither to unduly expand nor curtail the jurisdiction of the Authority. It was further pointed out that the jurisdiction under Section 15 is a special jurisdiction. It was held that while deciding whether a particular matter is incidental to the claim or not care should be taken neither to unduly expand nor curtail the jurisdiction of the Authority. It was further pointed out that the jurisdiction under Section 15 is a special jurisdiction. It was further held that on the footing that compensation payable under Sections 25-FF and 25-FFF of the 1947 Act being wages within the meaning of Section 2 (vi) (d)of the said Act, a claim for it on the ground that its payment was delayed by an employer cannot be entertained under section 15 (2) of the said Act. The facts of the said case were completely different. It was held that it was not a simple case of deduction. It was further held that in view of the defence taken, the authority would inevitably have to enter into questions arising under the proviso to Section 25-FF of the 1947 Act. It was observed that such an inquiry would necessarily be a prolonged inquiry involving questions of fact and law. It was further held that the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act, nor can it fall under the category of delayed wages as envisaged by Sections 4 and 5 of the said Act. In this context it was observed that when the definition of wages was expanded to include cases of sums payable under a contract, instrument or a law, it could not have been intended that such a claim for compensation which is denied on ground which inevitably would have to be inquired into and which might entail prolonged inquiry into questions of fact as well as law was one which would be summarily determined by the Authority under Section 15. It is true that various contentions were raised by Mr. Ginwalla based on the Contract Act. However, having regard to the principles laid down by the Supreme Court and this Court, no such question can at all arise and I do not find that any complicated question of law or fact is involved in the case or any complicated enquiry is envisaged in the facts and circumstances of this case. Accordingly, there is no merit in this contention of Mr. Ginwalla. 7. Accordingly, there is no merit in this contention of Mr. Ginwalla. 7. I have already indicated that so far as the third contention of Mr. Ginwalla is concerned, Mr. Ginwalla has frankly admitted that having regard to the decision in the National Tobacco Company's case (supra) he would not be in a position to argue before me on this point. On the merits also it seems that Mr. Ginwalla's contention is not well founded. It is now well settled that if no approval is given he is entitled to the wages and salary for this entire period. Accordingly, this question does not arise. For the aforesaid reasons, all the contentions of Mr. Ginwalla are rejected. Accordingly, I dismiss this application and discharge the Rule. 8. THE amount deposited with the Solicitors for the petitioners pursuant to the order of this Court is to be retained by them free from lien and subject to further orders of this Court or the respondent No. 1 herein. Subject to above all interim orders are vacated, there will be no order as to costs. Prayer for stay of the operation of the order is rejected. The impugned order was passed on the question of jurisdiction of the respondent No. 1 to entertain the application of the respondent No. 2. After deciding the same in favour of the respondent No. 2, the matter was adjourned for hearing till January 6, 1975 and that also on the question of condonation of delay. The date fixed has long expired and a fresh date has got to be fixed by the respondent No. 1 for hearing. Moreover, the claim for salary is for the period commencing from August 12, 1966. Near about 10 years have passed. In spite of rejection of prayer for approval which was taken up to Supreme Court, the petitioner has chosen not to pay the dues of the respondent No. 2. For all these reasons, I do not think that this is a fit and proper case for grant of a stay of the operation of this order. Rule discharged.