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2011 DIGILAW 623 (GUJ)

Anvarkhan Ghafurkhan Pathan v. Transport Manager

2011-08-25

AKIL KURESHI, J.B.PARDIWALA, S.J.MUKHOPADHAYA

body2011
JUDGMENT : S.J. Mukhopadhaya, J. Writ petition, Special Civil Application No.1060 of 2009 was preferred by the management of Ahmedabad Municipal Transport Service against the order of Industrial Tribunal in Approval Application (IT) No.691 of 2004 dated 11.12.2008 whereby the application for seeking approval of action of terminating the services of the workman, the appellant herein, was not granted. The learned Single Judge admitted the petition and stayed the operation of the order of the Tribunal. The workman thereafter preferred Civil Application No.2942 of 2009 under Section 17B of the Industrial Disputes Act, 1947 praying therein to direct the management-employer to comply with the provisions of Section 17B of the Industrial Disputes Act, 1947, or, in the alternative, employer be directed to reinstate the applicant-workman, in the interest of justice. The learned Single Judge by order dated 23.4.2009 having rejected the application giving rise to the present appeal. 2. When this appeal was taken up by a Division Bench of this Court, the Division Bench noticed the fact that the learned Single Judge while rejecting the application, relied upon a Division Bench decision of this Court in Chandrashekhar I Pande v. Ahmedabad Municipal Transport Service (Letters Patent Appeal No.1076 of 2005) dated 5.8.2005 wherein in the case of rejection of approval application and its challenge, a Division Bench has taken a view that application for relief of payment in accordance with Section 17B of the Industrial Disputes Act, 1947 would not be maintainable and the workman would not be entitled for payment under Section 17B of the Industrial Disputes Act, 1947. However, having noticed other decisions rendered by one or the other High Courts and certain observations made by the Supreme Court in some of the case and a Full Bench decision of Delhi High Court in the case of Delhi Transport Corporation v. Jagdish Chander reported in 2005-III-LLJ 390, a contrary view taken by another Division Bench in Birla NGK Pvt. Ltd. v. State of Gujarat (Letters Patent Appeal No.889 of 2006) by order dated 6.7.2006, referred the matter for hearing by a Larger Bench. 3. The brief facts of the case is that during pendency of an industrial dispute between the union and the management, Reference (IT) No.137 of 2001, before the Industrial Tribunal, the services of the appellant-workman were terminated by management on 18.10.2004 for certain allegations. 3. The brief facts of the case is that during pendency of an industrial dispute between the union and the management, Reference (IT) No.137 of 2001, before the Industrial Tribunal, the services of the appellant-workman were terminated by management on 18.10.2004 for certain allegations. The management preferred approval application under the proviso to sub-section (2) of Section 33 of Industrial Disputes Act, 1947. On hearing the parties and after appreciation of evidence, approval application filed by the management was rejected by Industrial Tribunal, Ahmedabad by order dated 11.12.2008. Against the said order, the writ petition was preferred wherein interim order of stay was passed on 11.2.2009, in view of which, the workman prayed for relief under Section 17B of the Industrial Disputes Act which was rejected by the learned Single Judge. 4. The question which arises for determination is, whether a workman is entitled for interim benefit of full wages pending proceeding in the High Court or the Supreme Court ? 5. According to the appellant, he being a workman, as his services were terminated and in view of non-approval, he is entitled to the benefit of full wages pending proceeding before the High Court under Section 17B of the Industrial Disputes Act. 6. Per contra, according to the counsel for the management, in absence of any award, Section 17B is not attracted; the order of refusal to grant approval of action under proviso to sub-section (2) of Section 33, does not fall within the definition of "award" and, therefore, Section 17B is not attracted. 6.1 The further contention on behalf of the management is that in absence of any order setting aside the order of termination, the workman cannot claim reinstatement nor can claim benefit under Section 17B in absence of such order of reinstatement. 7. To determine the issue, it is necessary to notice some of the provisions of Industrial Disputes Act and the relevant admitted facts, which have not been disputed by the parties. 8. The workman was in the services of Ahmedabad Municipal Transport Service. His services were terminated by order dated 18.10.2004 on the ground of misconduct. Since then he is not in employment. The management filed approval application under proviso to subsection (2) of Section 33 of Industrial Disputes Act, which has been rejected on 11.12.2008 by Industrial Tribunal, Ahmedabad. 9. 8. The workman was in the services of Ahmedabad Municipal Transport Service. His services were terminated by order dated 18.10.2004 on the ground of misconduct. Since then he is not in employment. The management filed approval application under proviso to subsection (2) of Section 33 of Industrial Disputes Act, which has been rejected on 11.12.2008 by Industrial Tribunal, Ahmedabad. 9. "Award" is defined under Section 2(b) of the Industrial Disputes Act, 1947 as follows :- "(b)"award" means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10A." 10. From the aforesaid definition, it will be evident that apart from final determination of any industrial dispute, if interim determination is made, the interim order also comes within the meaning of "award". If any question relating to industrial dispute is determined, the same also falls within the meaning of "award" under Section 2(b). 11. The payment of full wages to workman pending proceeding in higher court is stipulated under Section 17B, which is quoted hereunder :- "17B. Payment of full wages to workman pending proceedings in higher courts. - Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court; Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be." 12. From the aforesaid provision, it will be evident that if in a particular case the Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceeding against the award in the High Court or the Supreme court, the employer shall be liable to pay, during the period of pendency of such proceeding, full wages, subject to conditions mentioned therein. Therefore, two criteria are to be complied with, namely, (i) there should be an award of Labour Court, Tribunal or National Tribunal, and (ii) there should be an order of reinstatement of workman pursuant to the order passed by the Labour Court, Tribunal or National Tribunal. 13. "The statement of objects and reasons" needed to be looked into though not by itself a necessary aid; an aid to construction is required only if necessary. To assess the intent of the Legislature in the event of there being any confusion, statement of objects and reasons may be looked into and no exception can be taken. Therefore this is not an indispensable requirement but when faced with an imperative need to appreciate the proper intent of the Legislature statement may be looked into and not otherwise. This was observed by Supreme Court in Gurudevdatta VKSSS Maryadit and Ors. v. State of Maharashtra and Ors, reported in 2001 (4) SCC 534 . 14. Taking into consideration the principle as laid down by the Supreme Court, we appreciate the provisions of Section 17B of the Industrial Disputes Act. 15. The object of the Act shows that it intends to provide certain protection to the workmen against any exploitation. The Act vests power of wide discretion in the Court so as to enable it to do complete and effective justice between the parties. The Tribunal or the Labour Court is empowered to interfere with punishment, determine the quantum of punishment as also take its independent decision and view in respect to the domestic inquiry under Section 11 of the Act. Section 17B of the Act only imposes unambiguous liability on the employer, if employer is not happy with award of reinstatement, does not want to give effect to such award of reinstatement and moves before High Court or the Supreme Court against such an award and obtains and order of stay to ensure that the workman is not reinstated in service. 16. 16. Section 17B being a beneficial provision for a workman, who is ordered to be reinstated, but if the employer does not want to implement the same with a view to move before the High Court or the Supreme Court, a strict interpretation of such provision will not meet with the ends of justice. Therefore, it is interpreted in a liberal manner to provide interim benefit to the workman in case of order of reinstatement, if reinstatement is not acted upon by employer with a view to move before the higher courts, which shows the legislative intent to make such provision. 17. A Full Bench of Delhi High Court in the case of Delhi Transport Corporation v. Jagdish Chander reported in 2005-III-LLJ 390, noticed the essential ingredients of Section 17B, and observed as follows :- "9. In the light of the above enunciated principles we would revert back to the language of Section 17B of the Act. The plain reading of this provision shows the legislative intendment to give certain protection to the workman during the pendency of the proceedings before the High Court or the Supreme Court in relation to payment of wages. The provisions further show the liability created by statute upon an employer for payment of such wages. This entitlement is subject to the proviso to the said Section. The essential ingredients of this provision appears to be : (1) By its award direct reinstatement of any workman. (2) The employer prefers any proceedings against such award in the High Court or Supreme Court. (3) The employer shall be liable to pay such workman during the pendency of such proceedings full wages drawn by the workman. The liability to pay arises if the workman had not been employed in any establishment during such period and an affidavit to that effect is filed in Court. (4) Even if the above conditions exist but it is shown to the satisfaction of the Court that workman had been employed and receiving adequate remuneration during any such period or part thereof then no back wages would be payable for that period. 10. The emphasis of Legislature is on the expression 'reinstatement' rather than on 'award'. (4) Even if the above conditions exist but it is shown to the satisfaction of the Court that workman had been employed and receiving adequate remuneration during any such period or part thereof then no back wages would be payable for that period. 10. The emphasis of Legislature is on the expression 'reinstatement' rather than on 'award'. Where the workman is reinstated and the Management prefers any proceedings before the High Court or Supreme Court, the object appears to be that the workman if he was not gainfully employed during the relevant period should not starve and should be able to contest the proceedings before the Court meaningfully and without being deprived of the wages which he was entitled to receive under the terms of the award." 18. The Full Bench of the Delhi High Court further held that the intention of the Legislature for enacting Section 17B was to provide definite protection to the workman against the long litigation and exploitation by the affluent Management. As such these welfare provisions are directly relatable to the prescribed benefit to the workman under various provisions of the statute. 19. Section 33 relates to conditions of service etc., which are to remain unchanged under certain circumstances during pendency of the proceedings. Under the said provision, during pendency of any conciliation proceeding before a conciliation officer or a Board or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, the employers are prohibited to do certain acts to the prejudice of the workman and also cannot take final decision with regard to matter relating to misconduct giving rise to punishment of dismissal or otherwise. During pendency of such conciliation proceeding before the Labour Court, Tribunal or National Tribunal etc. if an order of dismissal or discharge is passed, the workman is not only to be paid wages of one month, the employer is also required to take approval of such action as taken against the employee. The relevant portions of Section 33 are quoted hereunder :- "33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. The relevant portions of Section 33 are quoted hereunder :- "33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. - (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,- (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which is proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman - (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman; Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." 20. The Supreme Court while noticing the question, whether the relationship of employer and employee is legally tenable till approval of discharge or dismissal is given by the Tribunal under Section 33(2)(b) of the Act, in the case of M.D. Tamilnadu State Transport Corporation v. Neethivilangan Kumbakonam reported in 2001 LAB.I.C. 1801 (SC) held as follows :- "16. The Supreme Court while noticing the question, whether the relationship of employer and employee is legally tenable till approval of discharge or dismissal is given by the Tribunal under Section 33(2)(b) of the Act, in the case of M.D. Tamilnadu State Transport Corporation v. Neethivilangan Kumbakonam reported in 2001 LAB.I.C. 1801 (SC) held as follows :- "16. From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains orders of approval from the Tribunal. By passing the order of discharge or dismissal de facto relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under Section 33(2)(b) of the Act on merit the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employee, the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal's rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in Section 33(1) irrelevant." 21. In the case of ITI Ltd. v. Prabhakar H Manjare reported in 2002-III-LLJ 1134, the Supreme Court held that the effect of dismissal of an approval application under Section 33(2)(b) was that the order of discharge or dismissal had never been passed and consequently that the employee would be deemed to have continued in service with all available benefits. 22. In the case of ITI Ltd. v. Prabhakar H Manjare reported in 2002-III-LLJ 1134, the Supreme Court held that the effect of dismissal of an approval application under Section 33(2)(b) was that the order of discharge or dismissal had never been passed and consequently that the employee would be deemed to have continued in service with all available benefits. 22. A Larger Bench of the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma reported in 2002-I-LLJ-834 while dealing with Section 33(2)(b) held as follows :- "13. .. .The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimisation and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative the employer may with impunity discharge or dismiss a workman." 23. From the aforesaid Section 33(2)(b) and the decisions rendered by different Courts and the Supreme Court as referred to above, it will be evident that the proviso to Section 33(2)(b) relates to approval from competent Tribunal or Labour Court or Industrial Tribunal etc., if a person is dismissed or discharged from service, during pendency of conciliation proceeding before a conciliation officer or Board or any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute. If the order of dismissal is not approved by Labour Court, or Tribunal or National Tribunal, the order of dismissal being void, the person is deemed to be continued in service. The question of continuing in service will arise only when the order of dismissal or discharge is declared void in absence of approval, resulting in reinstatement of the workman to his original post. Without an order of deemed reinstatement, no person can claim to be continued in service. 24. The question of continuing in service will arise only when the order of dismissal or discharge is declared void in absence of approval, resulting in reinstatement of the workman to his original post. Without an order of deemed reinstatement, no person can claim to be continued in service. 24. In view of the aforesaid position of law, we hold that the moment the order of dismissal is not approved, the order of dismissal automatically becomes void; the employee stands reinstated and thereby deemed to be continued in service. Thus, non-approval of an order of dismissal, if made, during the pendency of conciliation proceeding or industrial dispute and application for approval filed under Section 33(2)(b) is not approved, the employee stands reinstated in view of the order passed by the Labour Court, Tribunal or National Tribunal etc.. 25. We have already noticed the definition of "award" which means an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10A. 26. In the present case, it is true that no interim or final determination of any industrial dispute has been made by the Labour Court, Industrial Tribunal or National Tribunal etc.. What has been decided is question of approval of a dismissal for which application is filed by employer under Section 33(2)(b) of the Act. The said application was filed as the question related to an industrial dispute, otherwise there was no question of obtaining any approval under proviso to Section 33(2)(b). Therefore, the decision taken by the Labour Court, Industrial Tribunal or National Industrial Tribunal relating to non-approval of the order of dismissal under proviso to Section 33(2)(b) amounts to determination of a question relating to an industrial dispute by the Labour Court, Industrial Tribunal or National Tribunal etc.. 27. We, therefore, hold that the order passed by the Labour Court rejecting the petition under Section 33(2)(b) filed by the management and thus refusing to grant approval to the order of dismissal consequently comes within the meaning of 'award' and, therefore, the workman can claim benefit which he is entitled under the Industrial Disputes Act. 28. 27. We, therefore, hold that the order passed by the Labour Court rejecting the petition under Section 33(2)(b) filed by the management and thus refusing to grant approval to the order of dismissal consequently comes within the meaning of 'award' and, therefore, the workman can claim benefit which he is entitled under the Industrial Disputes Act. 28. The essential ingredients for deriving advantage of Section 17B, as noticed above - (i) there should be an order of reinstatement of workman; (ii) there should be an award of Labour Court or Tribunal; (iii) the employer has preferred a proceeding against such award in the High Court or the Supreme Court and the employer either does not want to give effect to the order of reinstatement or obtain order of stay, disallowing the workman his reinstatement. 29. In the present case, we have already held that the workman stands reinstated in view of the order passed by the Labour Court refusing to approve the order of dismissal under proviso to Section 33(2)(b). There is an award in favour of the workman, the order of refusal having passed while determining the question relating to pendency of an industrial dispute, the employer has already preferred a proceeding against such award before the High Court. Therefore, all the essential ingredients of Section 17B are fulfilled in the present case. 30. The Full Bench of the Delhi High Court in the case of Delhi Transport Corporation v. Jagdish Chander reported in 2005-III-LLJ-390 took a similar view. The Delhi High Court held that though by passing the order of discharge or dismissal the relationship of employer and employee stands ended but de jure relationship continued and comes to an end when the Tribunal accords its approval. The language of Section 17B of the Act cannot be stated to be unambiguous but the rule of liberal construction would have to be applied to the interpretation of this rule so as to keep in line with the settled cannons of interpretative jurisprudence and to achieve the social goal underlining this provision. The term 'award' should be read in complete conjunction with the direction for reinstatement and an order thus passed under Section 33(2)(b) of the Act would, by necessary implication, incorporate a direction as in law the services of the workman were never terminated. The term 'award' should be read in complete conjunction with the direction for reinstatement and an order thus passed under Section 33(2)(b) of the Act would, by necessary implication, incorporate a direction as in law the services of the workman were never terminated. Furthermore, an interpretation which would help in avoiding multiplicity of litigation should be more acceptable to the one which would generate more litigations. Why the workman should be compelled to keep on litigating even after his order of termination/dismissal has been found to be ineffective and inoperative? Therefore, it would meet the legislative object as well as be in the interest of administration of justice that an order which is passed upon complete determination and after complete proceedings be treated and construed as a part of expression 'award directing reinstatement' having all attributes that of an award. The Delhi High Court held that Section 17B of the Industrial Disputes Act will be applicable in a case where the management in the writ petition has challenged the order of the Labour Court/Industrial Tribunal whereby its application under Section 33(2)(b) of the Act seeking approval of the order of dismissal was dismissed by such Court or Tribunal and answered as follows :- "The provisions of Section 17B of the Industrial Disputes Act will be applicable in a case where the management in the writ petition has challenged the order of the Labour Court/Industrial Tribunal whereby its application under Section 33(2)(b) of the Act seeking approval of the order of dismissal was dismissed by such Court or Tribunal, subject to the conditions stated in Section 17B itself." 31. The Calcutta High Court in the case of Bata India Ltd. v. Seventh Industrial Tribunal, West Bengal reported in 1995-1-LLJ-144 giving liberal interpretation of provisions of Section 17B of the Act held that the decision of Industrial Tribunal under Section 33(2)(b) of the Act can be termed as an award within the meaning of Section 17B of the said Act. 32. In the case of V. John v. Singareni Collieries Co. Ltd. reported in 1996 (1) CLR 43 a Division Bench of the Andhra Pradesh High Court held that the order made by competent authority under Section 33(2)(b) of the Act disapproving the order of dismissal of workman by the employer falls within the definition of award under Section 2(b) of the Act. 33. Ltd. reported in 1996 (1) CLR 43 a Division Bench of the Andhra Pradesh High Court held that the order made by competent authority under Section 33(2)(b) of the Act disapproving the order of dismissal of workman by the employer falls within the definition of award under Section 2(b) of the Act. 33. In the case of Karan Singh v. Authorised Disciplinary Authority, RSRTC & Anr. reported in 2009-II-CLR 672, a Division Bench of Rajasthan High Court held that the application under Section 17B in a writ petition arising out of the proceedings under Section 33(2)(b) of the Act is maintainable. The workman is entitled to last drawn wages as per Section 17B of the Industrial Disputes Act. 34. In the case of Suresh Sakharam Patil v. Mahindra & Mahindra Ltd. reported in 1987 LLN 393 a Division Bench of the Bombay High Court, having noticed that proceeding under Section 33(2)(b) was refused by the Labour Court and such refusal was challenged in a writ petition, which was admitted but order was not stayed, held that the workman is entitled to salary and other emoluments under Section 17B. 35. The Calcutta High Court in the case Samser Ali (SK) v. Kesoram Industries and Cotton Mills Ltd. & Anr. reported in 1988-I-LLJ-1 held that the application under Section 17B is maintainable not only in cases involving challenge to awards of reinstatement but also to orders of rejection of application preferred under Section 33(2)(b). 36. The Gujarat High Court in the case of Kirtiben B. Amin v. Mafatlal Apparels reported in 1995-II-LLN 1065, held that the application under Section 17B is maintainable even where the challenge is pending before the High Court against the order refusing approval to the order of dismissal as contemplated under Section 33(2)(b). 37. The Orissa High Court in the case of M/s. IDL Chemicals Ltd. v. S.R. Tamma reported in 1989 (58) FLR 28 has held that the application of provisions of Section 17B shall apply to awards and has no application to orders passed under Section 33(2)(b), but its beneficial spirit shall apply. 37. The Orissa High Court in the case of M/s. IDL Chemicals Ltd. v. S.R. Tamma reported in 1989 (58) FLR 28 has held that the application of provisions of Section 17B shall apply to awards and has no application to orders passed under Section 33(2)(b), but its beneficial spirit shall apply. The Court held that the workman in whose favour order under Section 33(2)(b) has been stayed by the High Court can make a motion for payment of wages to the High Court and the High Court can grant him wages in accordance with the principles embodied under Section 17B and thereby allowed the prayer of the workman and directed the management-employer to pay wages to the workman in accordance with the last wages drawn. 38. In the case of Chandrashekhar I Pande v. Ahmedabad Municipal Transport Service (LPA No.1076 of 2005), a Division Bench of this Court by its unreported judgment dated 5.8.2005 while considering the payment of wages under Section 17B where challenge was made to an order passed under Section 33(2)(b) having noticed the provisions, observed that the provisions of Section 17B makes it clear that a direction for payment of back wages can be passed by the High Court only in a case where the award made by a Labour Court, Tribunal or National Tribunal for reinstatement of the workman is under challenge. The provision of Section 17B is not available to the workman where the employer has not challenged the award made by the Labour Court, Tribunal or National Tribunal for reinstatement of the workman. In the said case, the issue whether an order refusing to grant approval under proviso to Section 33(2)(b) amounts to an order of reinstatement has not been decided. 39. On the other hand, another Division Bench of this Court in the case of Birla NGK Pvt. Ltd. v. State of Gujarat (LPA No.889 of 2006), by its unreported decision dated 6.7.2006 approved the view of the learned Single Judge holding that Section 17B would be applicable in such a situation. 40. In the present case, we have hold that the moment the order of dismissal is not approved, the order of dismissal automatically becomes void; the employee stands reinstated and thereby deemed to be continued in service. 40. In the present case, we have hold that the moment the order of dismissal is not approved, the order of dismissal automatically becomes void; the employee stands reinstated and thereby deemed to be continued in service. Thus, non-approval of an order of dismissal, if made, during the pendency of conciliation proceeding or industrial dispute and application for approval filed under Section 33(2)(b) is not approved, the employee stands reinstated in view of the order passed by the Labour Court, Tribunal or National Tribunal etc.. 41. We have also hold that the order non-granting approval of the order of dismissal under proviso to Section 33(2)(b) amounts to an award, having determined the question relating to an industrial dispute during pendency of the main industrial dispute between the parties. 42. In view of the provisions of law, the discussion as we have made and finding recorded above, we hold that Section 17B of the Industrial Disputes Act will be applicable in case where application seeking approval of the order of dismissal under Section 33(2)(b) of the Act preferred by the management is dismissed and the management challenges the order of Labour Court/Industrial Tribunal before the High Court or the Supreme Court. 43. The issue as raised is accordingly answered in favour of the workman and against the management, but for determination of the question as to whether on the facts and circumstances, the workman is entitled for such benefit under Section 17B, the matter is referred back to the Division Bench for determination of claim as made by the workman under Section 17B of the Industrial Disputes Act on merits.