JUDGMENT D.K. Seth, J. 1. Mr. Bikash Ranjan Bhattacharyya, learned Counsel for the petitioner, raised a very interesting question relying upon the decision in M.D. Tamilnadu State Transport Corporation Vs. Neethivilangan Kumbakonam, reported in 2001 Lab. I.C. 1801. Re contends that in the said decision no distinction has since been made with regard to the employer and the principal or the ratio laid down therein applies to all such situation irrespective of the character of the employer. The reason for his contention is that the moment the permission under section 33(2)(b) of the Industrial Disputes Act is refused and the workman is deemed to be in employment his entitlement for salary for the period between the date of termination and the date of refusal of approved or till he resumes duty is a result of a statutory order passed by the authority casting a statutory liability on the employer to treat the employee as in service and pay all dues to him. Therefore, it is open to a person to enforce such right through writ jurisdiction and such writ petition cannot be turned out on the ground that the employer is a private employer and not a "State". 2. In support of this contention he has relied on the decision in Arjed Ali Gazi Vs. State of West Bengal, reported in 1990(2) CHN 284 , to contend that even a private employer if saddled with certain statutory liability, as in the case of Co-operative Society, in that event, such statutory liability can be enforced through writ jurisdiction. He also relied on the decision in the case of M/s. Sanghi Technologies Pvt. Ltd. vs. Union of India & Ors., reported in AIR 1996 Delhi 74, for the same proposition. He further relied on the decision in Gouranga Dhar & Ors. Vs. State of West Bengal & Ors., reported in 1996 Lab.I.C. 371, in order to contend that it is not the character that is important. It is only the liability that is relevant. If it is a statutory liability, in that event, it can be enforced through writ jurisdiction. 3. The learned Counsel for the respondent/employer, on the other hand, contends that the petitioner having resorted to section 33(c)(2), it is no more open to move this writ court and proceed with a parallel proceedings. It is only the liability that is relevant. If it is a statutory liability, in that event, it can be enforced through writ jurisdiction. 3. The learned Counsel for the respondent/employer, on the other hand, contends that the petitioner having resorted to section 33(c)(2), it is no more open to move this writ court and proceed with a parallel proceedings. According to him, the computation under section 33(c)(2) is already made after the evidence by the parties are closed, only the final order is awaiting. In view of the absence of Presiding Officer the order has been passed. Otherwise, it would have been passed by now. He then contends that section 33(2)(b) does not provide any consequence and thereby does not cast any liability on the employer. It only prohibits termination of employer in respect of cases where the employee is connected with a pending proceedings, In case permission is withheld, in the eye of law, there was no termination. The termination, according to him, was a fiction in law. When the approval is refused, passed by reason of refusal of approval, there remains no termination. Therefore, the relationship, continues and the liability of the employer is that of general liability, not a statutory liability. He then contends that the decision in M.D. Tamilnadu State Transport Corporation Vs. Neethivilangan Kumbakonam also does not give any direction for payment and such payment can be made only after computation which cannot be done in exercise of writ jurisdiction. That apart the said decision was given in a case where there was no dispute with regard to the character of employer which was admittedly a ‘State’ and as such the Court was not called upon to decide whether such enforcement could be made through writ petition even in a case of a private employment. According to him, every judgment has to be read in the context in which it is delivered. 4. Mr. Manick Chandra Das, learned Counsel for the respondent/State on the other hand, supports the contention of Mr. Bhattacharyya and submits, that in such case the writ Court can exercise such jurisdiction whenever it becomes a question of computation in that event, in all fairness it should have left with the Tribunal or Labour Court to compute the amount but such jurisdiction could be exercised where the amount is not in dispute. 5. Bhattacharyya and submits, that in such case the writ Court can exercise such jurisdiction whenever it becomes a question of computation in that event, in all fairness it should have left with the Tribunal or Labour Court to compute the amount but such jurisdiction could be exercised where the amount is not in dispute. 5. I have heard the respective submissions of the learned Counsel appearing for the partioners at length. 6. Admittedly, section 33(2)(b) is a prohibition or restriction cast on the right of the employer with regard to the termination of employment under certain contingencies as contemplated under sub-section(2) of section 33. However in such contingencies if the workman is not connected with the pending dispute, in that event, termination can be effected but with the permission of the authority before which such dispute is pending. At the same time, it may be noted that sub-section (2) includes all authorities under the Industrial Disputes Act. This provision applies even in case of a proceeding pending before the Conciliation Officer who does not have any jurisdiction to reinstate. Therefore, this question has to be read in the context of the said provision for the purpose of finding out whether the character of the employer is relevant or not. The section does not provide for any consequence of refusal. But from the scheme of the section it appears that approval is to be obtained after the termination of service. If the approval is refused, in that event, there is no termination at all. In M.D. Tamilnadu State Transport Corporation (supra), cited by Mr. Bhattacharyya, it was so held referring to the decision in the Straw Board Manufacturing Co. Ltd., Saharanpur Vs. Govind, reported in AIR 1962 SC 1500 and M/s. Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Anr., reported in AIR 1978 S.C. 995 and Tata Iron & Steel Co. Ltd. Vs. S.N. Modak, reported in AIR 1966 SC 380 . That in view of section 33(2)(b) if approval is refused, in that event there was no termination and the work is deemed to be in service and is entitled to all consequential benefits. So far as this proposition is concerned, there is no doubt about it. Ltd. Vs. S.N. Modak, reported in AIR 1966 SC 380 . That in view of section 33(2)(b) if approval is refused, in that event there was no termination and the work is deemed to be in service and is entitled to all consequential benefits. So far as this proposition is concerned, there is no doubt about it. But at the same time, section 33(2)(b) having not provided any consequence there is no scope for giving any direction for payment or reinstatement since it is the same contract of employment between the parties which continues. At the same time, as it appears from paragraph 16 of the said decision in M.D. Tamilnadu State Transport Corporation (supra) that there was no such direction for reinstatement or payment. It was only an observation that the employer was duly bound to treat the employee continuing in service and pay him his wages for the period. Thus, it was a declaration that was issued. 7. Therefore, this ratio is to be read in the context of the facts involved in the dispute. The invocation of writ jurisdiction was a consequence of involvement of the State as a party to the proceeding. This question with regard to the character of the employer was never raised since it was not germane to the issue and the Court was not called upon to decide the same. The liability which has been decided may flow from a Statute. But that liability cannot be held to be a statutory liability for the employer, until it is shown that the employer has statutory liability to reinstate and pay by reason of section 33(2)(b). If by reason of refusal or otherwise, the clock has been set back and the workman is restored to his original contract of employment, in that event, it cannot be said to be a statutory liability. Inasmuch as the workman continues in service. For example, if we take an instance that there was no termination of the workman and the payment was not made by the private employer in such event, could the writ jurisdiction be invoked? The answer is simple. "No." It was not a statutory liability but a contractual liability. The workman might have been entitled to payment of wages under the Payment of Wages Act or otherwise. It can be enforced through the normal procedure of law. 8. The answer is simple. "No." It was not a statutory liability but a contractual liability. The workman might have been entitled to payment of wages under the Payment of Wages Act or otherwise. It can be enforced through the normal procedure of law. 8. In order to achieve the object of section 33 to resolve the dispute in a peaceful atmosphere without victimising the workers creating further bitterness giving rise to fresh dispute exacerbating further the already strained relation, a ban has been imposed on the employer in relation to its exercise of contractual right to terminate the service of the employer, according to the contract governing the service; Tata Iron & Steel Co. Ltd. vs. S.N. Modak, 1965(II) LLJ 128 (SC) and Automobile Products of India Ltd. vs. Rukmaji Bala, 1955(I) LLJ 346 (SC). In other words the right of the employer to terminate the contract of employment has been banned on certain conditions; Air India Corporation vs. V.A. Rebellow, 1972(I) LLJ 501 (SC). 9. In Straw Board Manufacturing Co. Vs. Gobind, 1962 (I) LLJ 420 (SC), the law was stated thus: "If the tribunal does not approve 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 service of the employer. In such a case no specific provision as 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 has been any dismissal or discharge by the employer. In that sense, the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under section 33(2)." 10. Similar observation was made while dealing with another point in Tata Iron & Steel Co. Ltd. vs. S.N. Modak, 1965 (II) LLJ 128 (SC), though as obiter: "..... If the approval is not granted the order of discharge or dismissal passed by the employer is wholly invalid or inoperative and the employer can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. Ltd. vs. S.N. Modak, 1965 (II) LLJ 128 (SC), though as obiter: "..... If the approval is not granted the order of discharge or dismissal passed by the employer is wholly invalid or inoperative and the employer can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law." 11. The effect of these observations is that without approval, the discharge or dismissal remains inchoate and becomes effective only on grant of approval. The refusal to grant approval under section 33(2) does not effect the contract of employment which remains effective as it is. But the grant of approval affects the contract and brings an end to it on the date the action was taken. 12. In other words on account of refusal of approval under section 33(2)(b) the contract of employment is restored. The consequence of continuation of service and entitlement to payment of wages flows from the contract of employment. The contract of employment, which was underlying the termination, by fiction of law, had never deemed to have been terminated. Thus the right accrues and the liability arises out of such underlying contract which deems to be continuing. Therefore, it is a contractual liability, pure and simple. Refusal of approval of termination under section 33(2)(b) does not have the effect of transforming a contractual liability into a statutory liability. 13. Section 33(2)(b) governs cases unconnected with pending dispute. In such cases, if unconnected with pending dispute, the approval is granted. If found connected permission is refused. It is because the case then comes under section 33(1). It is a safe guard against misuse of section 33(2) in a case covered under section 33(1). What is prohibited under section 33(1) is attempted to be passed out under section 33(2). Thus the refusal amounts to a declaration that the contract of employment continues on account of being protected under section 33(1). Revival of a contractual liability by reason of a safety valve provided in statute confirmed the contractual liability. It does not create any fresh or new liability. Thus to treat such liability as statutory liability is wholly out of place and unfounded in law. 14. Revival of a contractual liability by reason of a safety valve provided in statute confirmed the contractual liability. It does not create any fresh or new liability. Thus to treat such liability as statutory liability is wholly out of place and unfounded in law. 14. In Punjab Beverages (P) Ltd. vs. Suresh Chand, 1978 Lab IC 693 (SC), the Apex Court had held that refusal of approval renders the dismissal void and inoperative or in other words it is a refusal to lift the ban against termination. The effect of this decisions that the ban against termination in cases connected with pending dispute if not lifted the employment continues and the underlying contract continued to remain valid and subsisting under the protection provided in section 33(1), since examined and decided under section 33(2). 15. Be that as it may, it is a question of computation which is to be undertaken by the Labour Court. In exercise of Writ Jurisdiction, This Court cannot undertake such an exercise of computation. Though the said decision cannot be applied in a case where the employer is a private employer for directing payment etc. 16. The language used in Article 226 of the Constitution of India does not debar the High Court from exercising with the jurisdiction even in respect of a person who may not be a "State" because the expression used is a "person" has not been qualified. But it is in the wisdom of the Courts that the application of Article 226 of the Constitution of India has been restricted. Had it not been so restricted, the Court would have been flooded with cases. A system of procedure has to be kept alive and be effective. In order to make it effective, court may put certain restrictions. It is self-imposed restriction of the Court itself that prohibits exercising jurisdiction in every and any cases. If the scope is so widened, in that event, the consequence may be disastrous. It would flood the jurisdiction of this court, if such a proposition is adopted. However, the Apex Court has observed that this is not a consideration for such purpose in appropriate case. But still then the Court cannot be oblivious of such a situation and only in appropriate case has to exercise the same sparingly. 17. It would flood the jurisdiction of this court, if such a proposition is adopted. However, the Apex Court has observed that this is not a consideration for such purpose in appropriate case. But still then the Court cannot be oblivious of such a situation and only in appropriate case has to exercise the same sparingly. 17. Be that as it may, section 33C(2) has not cast any statutory liability as was the case in the Co-Operative Societies Act which was dealt with in the decision reported in Arjed Ali Gazi (supra) in respect of its employees. Under the Rules of the Co-operative Societies, certain statutory liabilities are cast upon the Co-Operative Societies which is factually different. It is not in dispute that Co-operative Society is not a "State" within the meaning of Article 12 of the Constitution of India. But when it, discharges its statutory liability cast upon it by reason of the Rules relating to employment, then, writ lies against it. despite its being not a "State" within the meaning of Article 12 of the Constitution. When it discharges its statutory liability cast upon it, by reason of the Rules relating to employment are concerned, Writ Jurisdiction can be invoked against it. Therefore, the ratio decided in Arjed Ali Gazi (supra) does not help us in the present facts and circumstances of the case. Similarly, the decision in Gouranga Dhar (supra) also does not help us until and unless this liability is cast upon the employer by statute and while discharging such liability the employer is in fact an instrumentality of the State. Therefore, for the same reason, the decision of M/s. Sanghi Technologies Pvt. Ltd. (supra) also does not help us until and unless the employer is cast with certain statutory liabilities, it does not become an instrumentality of the "State" in relation to such discharge of liability. In the present case, therefore, writ does not lie. 18. Then again, the petitioner had already resorted to section 33C(2) of the Industrial Disputes Act. He can not maintain parallel proceedings. But he can maintain a writ petition for the purpose of giving direction to respondents under section 33C(2) to dispose of the proceeding or in the absence of Presiding Officer, it can also pray for appointment of Presiding Officer, so as to conclude the proceeding at the earliest. 19. He can not maintain parallel proceedings. But he can maintain a writ petition for the purpose of giving direction to respondents under section 33C(2) to dispose of the proceeding or in the absence of Presiding Officer, it can also pray for appointment of Presiding Officer, so as to conclude the proceeding at the earliest. 19. In the circumstances, though I am not inclined to interfere with the matter on merits, so far as this writ petition is concerned, but in view of the situation that the workman has retired in the meantime and had been suffering for a long time, though he cannot deem to be in service, it is expected that the authority under section 33C(2) of the aforesaid Act shall dispose of such proceeding as early as possible, preferably within a period of one month from the date of communication of this order or from the date when the presiding officer is appointed or joins, whichever is latter. 20. The State Government is hereby directed to ensure joining of the Presiding Officer who has already been appointed as early as possible preferably within a period of one month from the date of communication of this order on the State. With the aforesaid observations, this writ application is disposed of. There will be no order as to costs. The allegations made in the petition are not deemed to have been admitted. 21. It is pointed out that the gratuity has already been paid. However, this Court expects that the employer shall pay the amount which is admitted by it to be due to the workman as early as possible, preferably within a period of two months without prejudice to the rights and contentions of both the parties in the pending proceeding under, section 33C(2) of the aforesaid Act. 22. The operative part of this order may also be communicated to the Presiding Officer appointed, as is apparent from the order dated 12th July, 2001 produced before this Court, by the learned Registrar General within a fortnight. Let the file be placed before the learned Registrar General for taking steps in terms of this order within a fortnight. Urgent xerox certified copy of this order, if applied for, the office is directed to deliver the same within seven days from the date of deposit of the requisite stamps and folios. Writ application disposed of