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Gujarat High Court · body

2016 DIGILAW 2075 (GUJ)

DIVISIONAL CONTROLLER v. PRAKASH NAMDEV SINDE

2016-09-30

C.L.SONI

body2016
JUDGMENT C.L. SONI, J. 1. The matter is heard for final disposal with the consent of the learned advocates for both the sides. 2. By the present petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 10.9.2014 passed below Exh. 12 by the Industrial Tribunal, Vadodara in Application (I.T.) No.38 of 2009 whereby the Tribunal allowed the application Exh. 12 raising preliminary issue and rejected the approval application at Exh. 1 of the petitioner filed under section 33(2)(b) of the Industrial Disputes Act, 1947 (“the Act). 3. As per the facts stated in the petition, the respondent No.1 was dismissed from service on31.8.2009 following the departmental inquiry held against him. However, since the Reference (I.T.) No. 39 of 2003 was pending, the petitioner filed application to approve action of dismissal of the respondent No.1. The respondent No.1 raised preliminary issue by filing application Exh. 12 stating that the petitioner has not paid full amount of wages as per section 33(2)(b) of the Act and therefore whether the petitioner has complied with the provisions of section 33(2)(b) or not is required to be decided as a preliminary issue. 4. The Tribunal observed that the petitioner filed application on the day when the respondent no.1 was dismissed from service on 31.8.2009. However, the respondent No.1 was paid only notice pay but has not been paid the wages for the month of August, 2009. The Tribunal thus came to the conclusion that the petitioner has not complied with the provisions of section 33(2)9b) of the Act. 5. Learned Advocate Mr. Joshi submitted that section 33(2)(b) of the Act requires payment of one month wages and filing of the approval application. Mr. Joshi submitted that the petitioner complied with both the requirements to get approval to the order of dismissal passed against the respondent no.1. Mr. Joshi submitted that to decide on the issue called as preliminary issue, the facts of the main application were required to be considered. Such issue could have been considered when the main application was to be decided but the main application should not have been rejected while considering the application Exh. 12. Mr. Joshi submitted that it is nowhere provided in section 33(2)(b) of the Act that unpaid wages must be paid with one month’s wages while approval application is made. Mr. Such issue could have been considered when the main application was to be decided but the main application should not have been rejected while considering the application Exh. 12. Mr. Joshi submitted that it is nowhere provided in section 33(2)(b) of the Act that unpaid wages must be paid with one month’s wages while approval application is made. Mr. Joshi submitted that since unpaid wages for the month of August, 2009 were paid pending the approval application, the Tribunal committed serious error in accepting the application Exh. 12 and in rejecting the approval application of the petitioner. 6. Learned Advocate Mr. Brahmbhatt appearing for the respondent No.1 submitted that the Tribunal committed no error in rejecting the approval application on the preliminary issue raised by respondent no.1 as regards non-compliance of section 33(2)(b) of the Act. Mr. Brahmbhatt submitted that the legislature in its wisdom has made provision for payment of one month’s wages to safeguard the interests of the workman who will be immediately rendered jobless on being relieved from service and if such is the purpose behind making the provisions of payment of one month’s wages at the time of dismissal of a workman, it cannot be said that the employer is permitted to withhold or retain the wages for the services rendered by the workman and could get approval just on the payment of one month’s notice pay. Mr. Brahmbhatt submitted that the provisions of section 33(2)(b) of the Act could not be allowed to be frustrated on its narrow interpretation and is to be liberally construed so as to render the real protection or safeguard to the workman against whom employer has taken action which requires approval. 7. Having heard the learned advocates for both the sides, it appears that to get approval to the action of removal of respondent no.1 from service following the departmental inquiry held against him, the petitioner filed application being Approval Application No. 38 of 2009 under section 33(2)(b) of the Act in pending Reference (I.T.) No. 39 of 2003. In the proceedings of such application, the respondent No.1 preferred an application dated 6.4.2013 stating that since he was not paid full amount of wages payable as per the provisions of section 33(2)(b) of the Act, the Court may decide the preliminary issue as to whether the petitioner has complied with the provisions of section 33(2)(b) of the Act or not. The Tribunal while dealing with such preliminary issue, recorded in the impugned order that there is no dispute that the day on which the order for removal of respondent no.1 was passed, the petitioner paid one month’s notice pay to the respondent No.1 and also filed approval application but the respondent No.1 was not paid the salary for the month of August, 2009 at the time of his removal. The Tribunal has recorded that the amount of wages due for the month of August, 2009 was paid to respondent no.1 in the month of September, 2009. The Tribunal therefore came to the conclusion that there was noncompliance of the provisions of section 33(2)(b) of the Act and rejected approval application on preliminary issue by accepting the application at Exh. 12. 8. Section 33(2) of the Act reads as under: “(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with 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, or 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.” 9. As required by the proviso to section 33(2)(b) of the Act, pending the proceedings of any industrial dispute, no workman concerned in such dispute 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 proceedings are pending for approval of the action taken by the employer. 10. Learned Advocate Mr. 10. Learned Advocate Mr. Brahmbhatt submitted that the payment of one month’s wages as contemplated in the proviso would include unpaid wages prior to the date of discharge or dismissal and, therefore, while making application for approval, an employer is required not only to pay one month’s wages which is notice pay after the date of discharge or dismissal but also the wages due till the order of discharge or dismissal of the workman is made. 11. In the case of The Straw Board Manufacturing Co. Ltd. Versus Govind, reported in AIR 1962 SC 1500 , the Hon’ble Supreme Court, while dealing with the question of interpretation of section 6E(b)(b) of the U.P. Industrial Disputes Act (Act No. XXVIII of 1947) which was exactly in the same terms as section 33(2)(b) of the Act, has held and observed in para 2 to 8 as under: “2. The question thus raised depends upon the interpretation of the terms of Section 6E(2) which as we have said already correspond word for word with the provisions of S. 33 (2) of the Act. We shall therefore set out the provisions of S. 33(2) which reads as below:- "(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- (a).... ........ ......... ...... (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 the authority before which the proceeding is pending for approval of the action taken by the employer." We are concerned in the present appeal with the interpretation of the proviso to cl. (b) which says that no such workman shall 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. (b) which says that no such workman shall 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. It is unnecessary to consider in the present case whether applications have to be made, where more than one dispute is pending before more than one tribunal, to all the tribunals where the disputes are pending or whether an application to only one of them would be enough. In the present case disputes were pending before two authorities and applications were made to both of them though curiously the result has been rather unfortunate for the appellant, for one tribunal has approved of the action while the other has not. 3. Before however we turn to the interpretation of the proviso we may refer to the circumstances in which S. 33(2) came to be enacted. Originally there was no such provision like S. 33 (2) in the Act and the only provision to be found therein corresponded to the present S. 33(1). The object behind enacting S. 33 as it was before the amendment of 1956 was to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial disputed. The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that S. 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an industrial tribunal. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an industrial tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently Sec. 33 was redrafted in 1956 and considerably expanded. It is now in five sub-sections while before 1956 it consisted practically of what is now sub-sec. (1). 4. The present scheme therefore of Sec.33 is as follows:- Sub-section (1) refers to matters connected with a dispute which might be pending and forbids any alteration to the prejudice of the workmen concerned in such dispute, in the conditions of service applicable to them immediately before the commencement of the industrial proceedings resulting from such dispute and also forbids the employer from discharging or punishing any workman whether by dismissal or otherwise in connection with and matter connected with the dispute; and the employer, if he wants to make any alteration in the conditions of service or to punish any workman or discharge him, must get the express permission of the authority before which the proceeding relating to the dispute might be pending. Thus sub-sec. (1) lays down that if an employer proposes to alter any conditions of service or proposes to punish or discharge a workman in relation to a matter connected with the dispute which might be pending before a tribunal the employer must put such proposal before the tribunal and obtain its express permission in writing before carrying out the proposal whether it be for alteration of any conditions of service or for punishment or discharge of a workman by dismissal or otherwise. 5. Sub-section (2)(a) on the other hand gives power to the employer to alter any conditions of service not connected with the dispute and this the employer can do without approaching at all the tribunal where the dispute may be pending. 5. Sub-section (2)(a) on the other hand gives power to the employer to alter any conditions of service not connected with the dispute and this the employer can do without approaching at all the tribunal where the dispute may be pending. It further permits the employer to discharge or punish, whether by dismissal or otherwise, any workman where this may be on account of any matters unconnected with the dispute pending before the tribunal; but such discharge or dismissal is subject to the proviso, which imposes certain conditions on it. The intention behind enacting sub-sec. (2) obviously was to free the employer from the fetter which was put on him under Sec. 33 as it was before the amendment in 1956 with respect to action for matters not connected with a dispute pending before a tribunal, so far as conditions of service were concerned, if they were unconnected with matters in dispute the employer was given complete freedom to change them; but so far as discharge or dismissal of workmen was concerned, though the employer was given freedom, it was not complete dud he could only exercise the power of discharge or dismissal subject to the conditions laid down in the proviso. Even so, these conditions in the proviso cannot be so interpreted, unless of course the words are absolutely clear, as to require that the employer must first obtain approval of the tribunal where a dispute may be pending before passing the order of discharge or dismissal of a workman, for on this interpretation there will be no difference between S. 33(1)(b) and S. 33(2)(b) and the purpose of the amendment of 1956 may be lost. 6. Then we come to sub-s. (3) which provides that notwithstanding anything contained in sub-s. (2) certain workmen who are called protected workmen shall not be dealt with except with the express permission in writing of the authority before which the proceeding is pending. Thus the freedom which was given to the employer under sub-s. (2) with respect to conditions of service unconnected with the dispute or with respect to discharge or punishment of workmen on the ground of matters unconnected with the dispute was cut down by sub-s. (3) with respect to a small class of workmen, even though the action of the employer may be unconnected with any matter in dispute before the tribunal. The explanation to sub-s. (3) defines who is a protected workman and sub-s. (4) makes consequential provisions with respect to him. 7. Lastly we come to sub-s. (5) which lays own that where an employer makes an application under the proviso to sub-s. (2) for approval of the action taken by him, the authority concerned shall without delay hear such application and pass as expeditiously as possible such order in relation thereto as it deems fit. 8. Let us now turn to the words of the proviso in the background of what we have said above. The proviso lays down that no 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. It will be clear that two kinds of punishment are subject to the conditions of the proviso, namely, discharge or dismissal. Any other kind of punishment is not within the proviso. Further the proviso lays down two conditions, namely, (i) payment of wages for one month and (ii) making of an application by the employer to the authority before which the proceeding is pending, for approval of the action taken. It is not disputed before us that when the proviso lays down the conditions as to payment of the month's wages, all that the employer is required to do in order to carry out that condition is to tender the wages to the employee. But if the employee chooses not to accept the wages, he cannot come forward and say that there has been no payment of wages to him by the employer. Therefore, though S. 18 speaks of payment of one month's wages it can only mean that the employer has tendered the wages and that would amount to payment for otherwise a workman could always make the section unworkable by refusing to take the wages so far as the second condition about the making of the application is concerned the proviso requires that the application should be made for approval of the action taken by the employer. It has been urged on behalf of the respondent that the words "action liken" in this part of the proviso mean the action proposed to be taken and therefore all that the employer can do is to make an application to the tribunal asking it to approve the action proposed to be taken by it and it is only after the approval that the employer can proceed to dismiss or discharge the workman. We are however of opinion that on this interpretation there would really be no difference between subs. (2) and sub-s. (1) of S. 33 and the intention of the legislature in making the amendment in 1956 would be rendered nugatory. Moreover, it is against the rules of interpretation to add words to a provision, when the provision, as it stands, is capable of a reasonable meaning which will give effect to the intention of the legislature even on the words as they stand. On the plain meaning of the proviso, it is clear that it gives the employer the power to discharge or dismiss the employee before obtaining the approval of the tribunal concerned; but at the same time the protection afforded to the employee by the proviso has to remain effective, it seems to us therefore that when the proviso speaks of an application for approval of the action taken, the action taken there is the order of actual discharge or dismissal made by the employer and it is for the approval of this order that the application is to be made. This is borne out by Form 'K' under R. 60 of the Rules framed under the Act which corresponds to Form XV under F. 31 of the U. P. Rules. Further the use of the word "approval" in the proviso also suggests that something has been done by the employer who seeks, approval of that from the tribunal. If the intention was that in view of the proviso the employer could not pass the order of dismissal or discharge without first obtaining the approval of the tribunal, we see no reason why the words in the proviso should not have been similar to those in sub-ss. (1) and (3), namely that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. (1) and (3), namely that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. The change therefore in the language used in the proviso to sub-s. (2)(b) clearly shows in our opinion that the legislature intended that employer would have the right to pass an order of discharge or dismissal subject to two conditions, namely, (i) payment of wages for one month and (ii) making of an application to the authority concerned for approval of the action taken. The use of the word "approval" also suggests that what has to be approved has already taken place, though sometimes approval may also be bought of a proposed action. But it seems to us in the context that the approval here is of something done, as otherwise it would have been quite easy for the legislature to use the words "for approval of the action proposed to be taken" in the proviso. Further sub-s. (5) also suggests when it uses the words "approval of the action taken" that some action has been taken and it is that action which the employer wants to be approved by his application. The difference between sub-s. (1) and sub-s. (2) is therefore that under sub-s. (1) the employer proposes what he intends to do and asks or the express permission of the authority concerned to do it; in sub-s. (2) the employer takes the action and merely asks for the approval of the action taken from the authority concerned by his application. There can therefore be no doubt that sub-s. 2(b) read together with the proviso contemplates 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. It is however urged on behalf of the respondent that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the tribunal refuses to approve of the action the workman would be left with no remedy as there is no provision for reinstatement in S. 33(2). We however see no difficulty on this score. We however see no difficulty on this score. 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 of the action of the employer, the dismiss 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 or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under S. 33(2). 12. In the case of Syndicate Bank Ltd. v. K. Ramanath V. Bhat, reported in AIR 1968 SC 232, the Hon’ble Supreme Court has observed in para 17 as under: “17. It has been laid down, by this Court in Strawboard Manufacturing Co. v. Gobind, 1962 Supp 3 SCR 618 at p. 630 = ( AIR 1962 SC 1500 a p. 1505), in construing the proviso to Section 33 (2) (b) of the Act, that the three things contemplated viz., dismissal or discharge, payment of the wages and making of the application, should be part of the same transaction. Therefore, in our view, there must be a fixed and certain point of time which will be applicable to all management and workmen, when construing the provisions of Section 33 of the Act. The management must definitely know, as to when they have to take the necessary action under the proviso to Section 33 (2) (b), and the workman also should, likewise, know the definite time when the management should have complied with the requirements of the proviso to Sec. 33(2)(b) so that he could approach the Industrial Tribunal, by way of a complaint, under Section 33-A, of the Act. A reading of the material provisions of Section 33 shows that the expressions used are 'discharge or punish, whether by dismissal or otherwise' and they clearly indicate, in our opinion, the point of time, when the order of discharge or dismissal is passed, by the authority concerned. A reading of the material provisions of Section 33 shows that the expressions used are 'discharge or punish, whether by dismissal or otherwise' and they clearly indicate, in our opinion, the point of time, when the order of discharge or dismissal is passed, by the authority concerned. An order of discharge or dismissal in our opinion, can be passed only once; and, in this case, the order of dismissal is the one passed, by the Managing Director, on November 12, 1963. No doubt, either by virtue of the Standing Orders, or by virtue of a contract, of service, a right of appeal may be given to a workman concerned, to challenge an order of dismissal. But the appellate authority only considers whether the order of dismissal has to be sustained or whether it requires modification. Therefore, there is no question of the appellate authority passing, again, an order of dismissal. We are not concerned, in construing the provisions of Section 33 as to the finality of the orders passed, by the authority concerned, in the first instance, in passing of dismissal or discharge. Further, the proviso to Section 33 (2) (b), when it refers to payment of wages far one month, also indicates that it relates to an order of discharge or dismissal, which comes into effect immediately, which in this case, is the order passed, on November 12, l963. The payment of one month's salary or wages, is to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal, has been passed. If the management has to wait for the minimum period prescribed for filing an appeal, and also await the termination of the appeal when one is filed, considerable time would have lapsed from the date of the original order, during which period the workman would not have received any salary. It will be anomalous to hold that even after the lapse of such a long time, the payment of one month's salary would satisfy the requirements of the Section.” 13. In the case of Bharat Electronics Limited versus Industrial Tribunal, Karnataka, reported in (1990) 2 SCC 314 , relied on by learned advocate Mr. It will be anomalous to hold that even after the lapse of such a long time, the payment of one month's salary would satisfy the requirements of the Section.” 13. In the case of Bharat Electronics Limited versus Industrial Tribunal, Karnataka, reported in (1990) 2 SCC 314 , relied on by learned advocate Mr. Joshi, the Hon’ble Supreme Court, while examining the issue whether “shift allowance” forms part of the “wages” in the context of section 33(2)(b) of the Act, has held and observed in para 10 and 17 as under: “10. The definition of the word "wages", as given in Cl.(rr) of S.2 is comprehensive enough to include (vide inclusion 1) such of the allowances as the workman is for the time being entitled. Yet, despite such comprehension, the inclusive meaning is subject to a meaningful change if there is anything repugnant in the subject or context. The proviso to S. 33(2)(b) mandates that unless the workman is paid wages for one month and an application as contemplated is made by the employer for approval of his action, no such workman can be discharged or dismissed. The intention of the legislature in providing for such a contingency is not far to seek and as was pointed out by this Court in the case of Syndicate Bank Limited v. Ram Nath Bhat, was "too soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal has been passed." One month's wages as thought and provided to be given are conceptually for the month to follow the month of unemployment and in the context wages for the month following the date of dismissal and not a repetitive wage of the month previous to the date of dismissal. If the converse is read in the context of the proviso to S. 32(b), it inevitably would have to be read as double the wages as earned in the month previous to the date of dismissal and that would, in our view be, reading in the provision something which is not there ., either expressly or impliedly. We have thus to blend the contextual interpretation with the conceptual interpretation to come to the view that night shift allowance could never be part of wages, and those would be due only in the event of working. We have thus to blend the contextual interpretation with the conceptual interpretation to come to the view that night shift allowance could never be part of wages, and those would be due only in the event of working. This Court in Podar Mills Ltd. v. Bhagwan Singh, ruled that the date of dismissal under S. 33(2)(b) is the date when the approval application is filed after dismissal. With effect from that date, the occasion to earn night shift allowance cannot, and will not, arise. 17. Before concluding the judgment the observations in Syndicate Bank's case, aforequoted, are again to be borne in mind. In the facts and circumstances of this case the management paid to the workman a sum of Rs. 607.90 as a month's salary "to soften the rigour of unemployment that will face the workman". How could a short payment of Rs. 12/- be said to have lessened the softening of such rigour is thought stirring. Viewed in the context, there could genuinely be a dispute, as in the present case, as to whether a particular sum was due as wages. It is, of course, risky for the management to raise it as to pay even a paisa less than the month's wages due under S. 33(2)(b), would be fatal to its permission sought. But at the same time it needs to be clarified that it is for the management to establish, when questioned, that the sum paid to the workman under S. 33(2)(b) represented full wages of the month following the date of discharge or dismissal, as conceived of in the provision and as interpreted by us in entwining the ratios in Bennett Colemans case and Dilbagh Rai Jarry's case and adding something ourselves thereto.” 14. In the case of S. Ganapathy and others versus AIR India and another reported in (1993) 3 SCC 429 , while considering the question whether while computing the amount of one month’s wages to be paid under section 33(2)(b) of the Act, employer is justified in reducing the amount by statutory tax deduction, the Hon’ble Supreme Court has held and observed in para 7,8 and 12 as under: “7. It was canvassed on behalf of the appellants that one month's wage statutorily required to be paid in terms of S. 33(2)(b) is a payment which does not partake the character of salary or wage, as the appellants were not salary or wage earners while getting that one month's wage. Sequelly it was canvassed that not being salary or wage earners in that month, orders of dismissal or termination of service having been passed against them, they were not in employment and hence not liable to pay tax. It was asserted that the very basis of tax stood displaced and hence the deduction of tax at the snapped source rendered the payment or deposit of one month's wage deficient, contravening the mandatory provisions of S. 33(2)(b) of the Act. On the other hand, it was contended inter alia on behalf of the respondent that the statutory deduction of tax payable under the Tax Act inhered in the payment of one month's wage, and in any case the difference had been tendered before the Tribunal for payment to the workmen, on objection raised, during the pendency of the approval proceedings. These are the contours of the dispute. 8. The proviso to section 33(2)(b) mandates two steps, that unless the workman is paid wages for one month and an application as contemplated is made by the employer to the Tribunal for approval of his action, no such workman can be discharged or dismissed. The intention of the legislature in providing for such a contingency is not far to seek and as was pointed out by this Court in the case of Syndicate Bank Limited v. Ram Nath Bhat was "to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal has been passed." 12. In this extreme situation, the employee, in one sense, gets unemployed as he stands deprived of work with effect from the date of the application for approval, on which date his discharge or dismissal is factually effective. He stands paid his month's wage from such date and this is a wage conceptually for the month following, not double the wage for the month previous to the date of the application. This is the dicta of Bharat Electronics case. He stands paid his month's wage from such date and this is a wage conceptually for the month following, not double the wage for the month previous to the date of the application. This is the dicta of Bharat Electronics case. In the other sense the order of discharge or dismissal is incomplete and inchoate, unless approved by the Tribunal and till approval is granted there is no effective break of the employer and employee relationship. This is the dictum of Tata Iron and Steel Company's case. So, if these two features are grasped, appreciated and blended, it would lead us to the understanding that by passing the order of discharge or dismissal de facto relationship of employer and employee is ended, but not de jure, for that could happen when the Tribunal accords its approval. The employee thus gets factually unemployed from the date of the approval application in the sense that he is not called to work and is paid only a month's wage representing the succeeding month of his unemployment. The relationship of employer and employee is legally not terminated till approval of discharge or dismissal is given by the Tribunal. And this state of affairs was required to be ended within a period of three months from the date of receipt of such application in terms of sub-sec. (5) of S. 33, though the lapse of such period would not end the proceeding and such time was extendible by the Tribunal for reasons to be recorded in writing. Now in this fluid state of affairs, the legal character of the month's wage would undergo a change depending on the result of the approval application. If the Tribunal were to refuse the approval, the inchoate and incomplete order of discharge or dismissal would end and the legal character of one month's wages would transform to be the same as before, from which statutory tax deduction could legitimately be made by the employer. In the event of approval of the application by the Tribunal, the legal character of one month's wage would on the other hand be a wage without employment. In the given situation, if the Tribunal were to refuse approval solely on the ground that statutory tax deduction stands in its way to the grant of approval, it could legitimately make its order conditional on making good such payment. In the given situation, if the Tribunal were to refuse approval solely on the ground that statutory tax deduction stands in its way to the grant of approval, it could legitimately make its order conditional on making good such payment. This is a field in which the interest of both parties has to be kept in view, for the situation would be precarious for the employer if he were not to deduct tax under S. 4 of the Tax Act and exposing him to the dangers of penalties and prosecution. If approval was to be rejected on merit and otherwise to be rejected for not making complete payment of one month wage, it would thus be just and proper to let the employer deduct the statutory tax deduction from that one month wage, since the relationship of employer and an employee has effectively not been terminated, to meet the eventuality, lest the approval application be dismissed on merit. On the other hand it would be just and proper either for the employer on his own or on the asking of the Tribunal to let the sum representing statutory tax deduction be deposited in the Tribunal for payment to the workman in the event of the approval application being allowed. If these two situations can be saved in this manner there would, in no event, be a dismissal of the approval application for payment of wage subjected to statutory tax deduction. Taken in this light one is to view the deduction and the subsequent offer of the respondent to pay the tax deducted, and later deposited before the Tribunal, for payment to the workman. This payment was offered and deposited before the decision of the approval application at a time when the relationship of employer and employee had effectively not been terminated. Here distinction would have to be drawn between statutory deductions like tax deductions and other deductions which the employer considers he can make. In either event, he takes the risk when making a deduction. In the case of statutory tax deductions, his justificatory burden is less, for he has the shelter of the tax law. The case of the other deductions would obviously be on different footing for he may not have any thrust of law. Those may purely be contractual. Those deductions may not be compulsive under any law. In the case of statutory tax deductions, his justificatory burden is less, for he has the shelter of the tax law. The case of the other deductions would obviously be on different footing for he may not have any thrust of law. Those may purely be contractual. Those deductions may not be compulsive under any law. The employer makes the deduction in such cases at his peril. But here, in the present situation, there definitely arose a genuine claim to make the tax deduction and doing so the employer projected its case before the Tribunal in that angle. Not a paisa otherwise was kept back. Thus in the facts and circumstances it appears to us that the respondent was able to establish that its deliberate deduction representing the tax from one month's wage was not to shorten the wage and cause infraction of S. 33(2)(b) but a compulsive deduction to fulfill a statutory obligation by the thrust of the Tax Act.” 15. Learned Advocate Mr. Brahmbhatt relied on the decision of the Karnataka High Court in the case of Prabhakar H. Manjare & another And Indian Telephone Industries Ltd. & another, reported in 1999 (2) LLJ 643 wherein the Karnataka High Court held and observed in para 10 to 12 as under: “10. Once it is held that the proviso to sub-section (2)(b) of Section 33 was mandatory, it cannot be held that its non-compliance was a technical defect. The proviso itself mandates that no application shall be entertained and approval granted without the prior or simultaneous payment of the wages specified therein. The Tribunal was therefore not justified in allowing the second application by ignoring the dismissal of the earlier application of the Management for non-compliance of the mandatory provisions of law, which we have held to be dismissal of the earlier application on merits. We are further of the opinion that one month’s wages referred to in the relevant provision are not restricted for the month following the date of the application only but would include all prior wages plus the wages of the next month which under the normal service jurisprudence are known as wages in lieu of notice. We are further of the opinion that one month’s wages referred to in the relevant provision are not restricted for the month following the date of the application only but would include all prior wages plus the wages of the next month which under the normal service jurisprudence are known as wages in lieu of notice. Insisting for payment of wages for one month only would defeat the very purpose of the industrial law, as any clever employer may deprive a workman of his wages for years together and terminate his service under section 33 only by paying one month’s salary. Such a plea, if accepted, will not only make the mandate of law infructuous, but would also be against the public policy and jeopardise the concept of service jurisprudence the concept of service jurisprudence. In the instant case also the employer was obliged to pay one month’s salary in case of termination of service under the Standing Orders applicable in the case besides being obliged to pay such w ages under the proviso to sub-section (2)(b) of Section 33 of the Act. It is not disputed that wages for the period from the date of the first dismissal order till the date of second dismissal order were not paid before or at the time of the passing of the second dismissal order as also noticed by the Tribunal in para No.13 of its order. T he Tribunal was, therefore, not justified in holding that the nonpayment of the arrears of wages did not render the dismissal order void and inoperative or that the Appellants could be directed to avail of the remedies provided under Section 33-A or Section 10 of the Act. The finding of the Tribunal that “more over proviso to Section 33(2)(b) does not contemplate that such payment must form part of the same transaction” is contrary to the law laid down by the Apex Court from time to time. The Tribunal was also not justified to hold that: “As the rejection of the application for approval on the ground that proviso to Section 33(2)(b) was not complied with did not have the effect of rendering the dismissal order void and inoperative there was no question of allowing the workman to join duties immediately after the earlier application was dismissed. The Tribunal was also not justified to hold that: “As the rejection of the application for approval on the ground that proviso to Section 33(2)(b) was not complied with did not have the effect of rendering the dismissal order void and inoperative there was no question of allowing the workman to join duties immediately after the earlier application was dismissed. The refusal of the Management to take him back after the earlier application was dismissed did not amount to fresh dismissal with effect from September 3, 1987 the date on which the earlier application was dismissed. It was therefore not necessary to file an application for approval on September 3, 1987. As mentioned above, the order setting aside the first dismissal order and the order dismissing the workman from service were passed simultaneously on October 9, 1987. As the application for approval was forwarded to the Tribunal on the same day, it cannot be said that it was not filed simultaneously with the dismissal order and deserved to be rejected as not maintainable.” Such finding is contrary to laid down by the Bombay High Court in G.K. Sengupta’s case (supra), with which we fully concur. The whole of the conduct of the first Respondent- Management is a clear reflection of its vindictive attitude resulting in untold miseries and sufferings thrust upon the Appellants spread over a period of about 12 years. For no fault of appellants they have been subjected to uncalled for litigation culminating in this judgment. We are of the opinion that the learned single Judge was not justified in approving the order of the Tribunal by ignoring the mandate of law and various pronouncements of the constitutional Courts. There was no justification for forcing the Appellants herein to have resort to further litigation by raising a dispute under section 10 or section 33-A of the Act. The litigation was required tobe put an end to in the light of the settled position of law. 12. Under the circumstances, the Appeals are allowed and the orders impugned herein passed by the learned Single Judge dated August 30, 1996 and that of the Tribunal dated September 1, 1987 are set aside. The Applications of the 1st Respondent-Management filed under Section 33(2)(b) of the Act shall stand rejected. The appellants shall be deemed to be in continuous service of the first Respondent Management and entitled to all consequential benefits. The Applications of the 1st Respondent-Management filed under Section 33(2)(b) of the Act shall stand rejected. The appellants shall be deemed to be in continuous service of the first Respondent Management and entitled to all consequential benefits. The costs of litigation are quantified at Rs.5000/- (Rupees Five Thousand only) to be paid by the 1st Respondent Management.” 16. The facts before the Karnataka High Court were that the appellants therein were dismissed by respondent No.1 vide order dated January 21, 1986 and the respondent no.1 – employer preferred application under section 33(2)(b) of the Act. Such application was rejected by the Tribunal vide order dated 1st September, 1987 on the ground that one month’s wages had not been tendered by the Management as mandated under the provisions of the Act. After the rejection of the application, the appellants requested to take them back to duties which was declined and they were told that effective orders would be passed and sent to them. Then, another application seeking approval under section 33(2)(b) of the Act was filed for approval. The Tribunal allowed such application and accorded approval to the action of the Management of dismissing the appellants from service. Against the said order of the Tribunal, the appellants preferred writ petition before the Karnataka High Court. The learned Single Judge dismissed the writ petition against which the appellants preferred appeal and the appeals were allowed and the orders made by the learned Single Judge as also by the Tribunal were set aside and the applications of the Management for approval under section 33(2)(b) of the Act were declared as rejected. The appellants were held deemed to be in continuous service of the respondents with all consequential benefits. 17. The Management carried the matter before the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Indian Telephone Industries Ltd. and another versus Prabhakar H. Manjuare and another reported in (2003) 1 SCC 330, has held and observed in paragraph no. 5 to 9 as under: “5. A Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., has ruled that the conditions contained in the proviso to Section 33(2)(b) are mandatory in nature and their noncompliance would render the order of discharge or dismissal void or inoperative. 5 to 9 as under: “5. A Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., has ruled that the conditions contained in the proviso to Section 33(2)(b) are mandatory in nature and their noncompliance would render the order of discharge or dismissal void or inoperative. It is further held that if the Tribunal refuses to grant approval sought for under Section 33(2)(b), the effect of it shall be that the order of discharge or dismissal had never been passed and consequently the employee would be deemed to have continued in service entitling him to all the benefits available. It is also made clear that not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). While approving the cases of Straw Board Tata Iron and Steel Co., the case of Punjab Beverages is overruled. 6. It is admitted position that the petitioners did not reinstate the respondents after the Tribunal passed order on 1-9-1987 refusing to approve the first order of dismissal dated 21-1-1986; they were also not paid their wages between the first order of dismissal dated 21-1-1986 and the second order of dismissal dated 9-10-1987; the judgment of the Tribunal dated 1-9-1987 had attained finality inasmuch as it was not challenged any further before the High Court or this Court. It appears the second order of dismissal was passed on the assumption that non-compliance with the requirements of the proviso to Section 33(2)(b) was only a technical breach and, therefore, by paying one month's wages, second order of dismissal could be passed. The approach of the Tribunal as can be seen from its judgment is on the same lines. It appears the second order of dismissal was passed on the assumption that non-compliance with the requirements of the proviso to Section 33(2)(b) was only a technical breach and, therefore, by paying one month's wages, second order of dismissal could be passed. The approach of the Tribunal as can be seen from its judgment is on the same lines. Referring to the judgment in Punjab Beverages, in para 9 of the order of the Tribunal, it is stated that if an application for approval is rejected on the ground that one month's wages were not paid simultaneously with the dismissal order, it would not have the effect of invalidating the order of dismissal; an application for approval which is rejected on the ground that Section 33(2)(b) is not complied with, cannot be considered to be refusal of approval; it is only when the question is considered by the Tribunal on merits and approval is refused, such refusal would have the effect of invalidating the dismissal order. Again in para 11, the Tribunal based on the observations made in Punjab Beverages has held that rejection of the earlier application as not maintainable on the ground that one month's wages were not fully paid along with the dismissal order did not invalidate it and it would not bar a fresh application for approval. In para 12, it is further stated thus : "As the earlier dismissal order was not null and void, there was no question of allowing the workman to resume duty or to pass a formal order of reinstatement. As a matter of fact, it was not even necessary to pass a second order of dismissal, because, as held by the Supreme Court in Punjab Beverages case, contravention of Section 33(2)(b) while dismissing the workman, does not have the effect of rendering the order of dismissal void or inoperative. But, when an application for approval is rejected, before filing a fresh application for approval, the management will have to withdraw the earlier dismissal order and pass a fresh dismissal order, not because the earlier dismissal order had become void ab initio, but because filing of an application under Section 33(2)(b) has to be simultaneous with the passing of the dismissal order. The present application for approval is therefore perfectly legal and maintainable." 7. The present application for approval is therefore perfectly legal and maintainable." 7. As already noticed above, the Punjab Beverages case on these points is overruled by the Constitution Bench judgment. 8. The judgment dated 1-9-1987 given by the Tribunal had reached the finality inasmuch as it was not challenged by the petitioners any further. The respondents were not reinstated in service even thereafter. In the light of the Constitution Bench judgment aforementioned, the order refusing to give approval for dismissal on the ground of noncompliance with the proviso to Section 33(2)(b) rendered it void and inoperative and the respondent was deemed to have continued in service as if no order of dismissal was passed. Admittedly, no wages were paid to the respondent for the period between the first and second order of dismissal. The main question that came up for consideration in Tata Iron and Steel Co. was whether the proceeding validly commenced under Section 33(2)(b) would automatically come to an end merely because the main industrial dispute had meanwhile been finally determined. In the said case, it is held thus : (AIR p. 384, para 11) ".... even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay him his full wages for the period even though the appellant may subsequently proceed to terminate the respondent's services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted." 9. Having not challenged the earlier order dated 1-9-1987, it was not open to the petitioners to make a second application seeking approval for the order of dismissal of the respondent, that too without paying full wages. The Division Bench of the High Court has found that the second order of dismissal amounted to unfair labour practice and victimization. The Tribunal was not justified in allowing the second application seeking approval by ignoring the dismissal of the earlier application made by the management for non-compliance of the mandatory provisions of law. The Division Bench of the High Court has found that the second order of dismissal amounted to unfair labour practice and victimization. The Tribunal was not justified in allowing the second application seeking approval by ignoring the dismissal of the earlier application made by the management for non-compliance of the mandatory provisions of law. The Tribunal proceeded on the ground that the earlier application was not decided on merits and held that it was open to the petitioners to file a second application. This is clearly contrary to decision of the Constitution Bench. It appears to us that the petitioners designed to defeat the claim of the respondents by making a second application when the order suffered by them on the first application had become final. Even as stated in the decision of Tata Iron and Steel Co., the petitioners failed to pay full wages to the respondents between the period of two dismissal orders. The case of Tata Iron and Steel Co. on facts of the present case does not help the petitioners. The question that was dealt in that case was altogether different. 18. Mr. Brahmbhatt would, rely on the order dated 26.6.2009 passed by learned Single Judge of by this Court in Special Civil Application No. 1635 of 2009. The learned Single Judge has observed in para 5 as under: “5. This Court is unable to accept the submission of Ms. Mandavia, learned advocate for the petitioner. The facts remains to be noted that the provisions of Section 33(2)(b) of the I.D. Act is absolutely clear and now there cannot be any dispute with regard to proposition of law that all the dues have to be cleared and apart therefrom, one month wages in lieu of the notice is required to be paid. In the instant case, as it has come out from the record, last month's wages, in which the workman has actually worked, had not been paid and one month notice pay is paid, this in itself is in clear violation of mandatory provision of the I.D. Act and therefore, the order of the Labour Court is sustained on this ground alone and the Court is not examining the other contention with regard to Inquiry Officer acting as Presiding Officer. It is to be noted that the impugned award and order of the Industrial Court is well reasoned and it does not call for any interference under Article 227 of the Constitution of India. The petition is bereft of any merit, deserves rejection and is rejected accordingly. However, there shall be no order as to costs.” The order of the learned Single Judge is not interfered with by the Hon’ble Division Bench of this Court in Letters Patent Appeal No. 1978 of 2009. In the said case, it was not disputed that till the approval application was decided, the workman was not paid wages for the month in which he had lastly worked. It is not held that the workman should have been paid unpaid wages for the period he lastly worked with one month’s wages as required by section 33(2)(b) of the Act while making the approval application. 19. As per section 33(2)(b) of the Act, what is mandatorily required is simultaneous payment of the wages for one month while making an application for approval of the action taken by the employer either of discharge or of dismissal when any proceeding, in respect of industrial dispute with which the workman sought to be discharged or dismissed is concerned, is pending. As held by the Hon’ble Supreme Court in Syndicate Bank (supra), the intention of the legislature in providing for such a contingency is to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal has been passed. While reiterating the above intention of the legislature in the case of Bharat Electronics (supra), the Hon’ble Supreme Court has observed that one month's wages as thought and provided to be given are conceptually for the month to follow the month of unemployment and in the context wages for the month following the date of dismissal and not a repetitive wage of the month previous to the date of dismissal. The phrase “wages for one month” used in proviso of section 33(2)(b) of the Act gives plain meaning that the proviso mandates payment of one month’s wages when application for approval of the action of discharge or dismissal of the workman is made. 20. The phrase “wages for one month” used in proviso of section 33(2)(b) of the Act gives plain meaning that the proviso mandates payment of one month’s wages when application for approval of the action of discharge or dismissal of the workman is made. 20. In the case of Prabhakar H. Manjuare (supra) before the Hon’ble Supreme Court, it was found that once the first order of dismissal was invalidated for not granting approval application, the workman became entitled to be in service. However, without paying any wages, second dismissal order was passed. The Hon’ble Supreme Court, therefore, found that the Management designed to defeat the claim of the workmen by making a second application when the order suffered by them on the first application had become final. It was held that having not challenged the earlier order in the approval application, it was not open to the Management to make second application seeking approval for the order of dismissal of the workmen that too without paying full wages. In such facts situation, the order made by the Tribunal granting second application was set aside. It thus appears that though it is not mandatorily required to clear the dues of unpaid wages for the period prior to the order of discharge or dismissal while paying one month’s wages when the approval application is made, however, as held by Hon’ble Supreme Court in Syndicate Bank (supra) and Bharat Electronics (supra), when the payment of one month’s wages for the month following the date of dismissal is intended to soften the rigour of unemployment that will face the workman, such intention will have its logical end if the employer is made to clear the unpaid wages of the workman before grant of approval or grant of approval is made conditional for clearing unpaid dues of workman. It is not in dispute that the respondent no.1 was paid his unpaid salary after permissible deduction for the month of August, 2009 in the month of September, 2009. Even if there is any shortfall in making the payment of salary or wages for the month of August, 2009 to respondent No.1, such could be considered at the time when the final order on the approval application is to be made. Even if there is any shortfall in making the payment of salary or wages for the month of August, 2009 to respondent No.1, such could be considered at the time when the final order on the approval application is to be made. The Court therefore finds that the Tribunal committed serious error in rejecting the approval application finally while deciding the preliminary issue as regards non-compliance of the provisions of section 33(2)(b) of the Act though undisputably the petitioner has paid one month’s wages and filed approval application on the date of dismissal of the respondent no.1. 21. For the reasons stated above, the impugned order dated 10.9.2014 passed below Exh. 12 by the Tribunal, Vadodara in Approval Application (I.T.) No.38 of 2009 is hereby quashed and set aside. The Tribunal shall now decide the main application being Application (I.T.) No.38 of 2009 for approval on its own merits and in light of the present order. The petition is finally disposed of accordingly at the notice stage.