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2016 DIGILAW 44 (GAU)

Shyamal Kumar Lodh v. Vijaya Bank & Ors.

2016-01-21

UJJAL BHUYAN

body2016
Ujjal Bhuyan, J.:-- Subject matter of the three writ petitions being inter-related, those were heard together and are being disposed of by this common judgment. 2. However, for the sake of convenience, facts as narrated in WP(C) No.1473/2014 may be referred to. 3. At the relevant point of time petitioner was serving as Clerk in the Vijaya Bank, Tinsukia Branch. On 24.08.1994, he was placed under suspension pending initiation of disciplinary proceeding. Though petitioner was placed under suspension he did not receive due subsistence allowance. This led to filing of a petition by the petitioner before the Labour Court, Dibrugarh seeking a direction to the Vijaya Bank authorities not to deduct salary of the petitioner beyond 50% and also to release the excess deduction already made. Said application was registered as Misc. Case No.6/1995. Vijaya Bank authorities contested Misc. Case No.6/1995 by filing objection contending that Labour Court, Dibrugarh had no jurisdiction to adjudicate the issue raised in Misc. Case No.6/1995. Contention was that since the Vijaya Bank was a nationalised central bank, the appropriate Government would be the Central Government. Since the Labour Court at Dibrugarh was constituted by the State Government, therefore the said Labour Court lacked jurisdiction to decide the claim of the petitioner being an employee of a central bank. It appears that the Labour Court by order dated 19.08.1995 rejected the aforesaid contention of the Vijaya Bank authorities. This led to filing of Civil Rule No.3735/1995 by the Vijaya Bank before this Court. 4. In the meanwhile, Vijaya Bank authorities conducted departmental proceeding against the petitioner. Though it may not be relevant for the purpose of adjudicating the present lis, yet it may briefly be noted that the substance of the misconduct against the petitioner was inappropriate behaviour of the petitioner towards his superior on 12.08.1994 which related to an allegation that petitioner had accepted cash amount of Rs. 18,400/- from one customer during business hours on 12.08.1994 but returned the same after a while. As per version of the customer, when the money was returned back to him he found shortage of four currency notes of the denomination of Rs. 500, totalling Rs. 2000/-. Ultimately, following the departmental proceeding, petitioner was dismissed from service on 30.08.1996. 5. Petitioner submitted application on 18.09.1996 before the Labour Court under Section 33 A of the Industrial Disputes Act, 1947 (Act) challenging the order of dismissal. 500, totalling Rs. 2000/-. Ultimately, following the departmental proceeding, petitioner was dismissed from service on 30.08.1996. 5. Petitioner submitted application on 18.09.1996 before the Labour Court under Section 33 A of the Industrial Disputes Act, 1947 (Act) challenging the order of dismissal. Contention of the petitioner was that when a proceeding was pending before the Labour Court, his service status could not have been altered without seeking leave of the Labour Court under Section 33 (2) (b) of the Act. This application was registered as Misc. Case No.2/1996. Labour Court passed an order on 30.08.1996 staying the dismissal order. 6. Vijaya Bank filed a writ petition before this Court challenging the proceedings before the Labour Court on the ground of lack of jurisdiction. The said writ petition was registered as Civil Rule No.4960/1996. 7. Petitioner also filed Misc. Case No.9/1997 before the Labour Court seeking a direction to the Vijaya Bank authorities for release of subsistence allowance including arrears. This led the Vijaya Bank to file Civil Rule No.2771/1997 before this Court challenging the legality and validity of the proceedings in Misc. Case No.9/1997. 8. All the above three writ petitions were allowed by a Single Bench of this Court by separate orders. The order allowing Civil Rule No.3735/1995 was challenged by the petitioner in Writ Appeal No.381/2001 whereas the order allowing Civil Rule No.2771/1997 was challenged in Writ Appeal No.11/2002. However, the order by which Civil Rule No.4960/1996 was allowed could not be challenged by the petitioner as it is contended that he did not receive certified copy of the said order as well as other documents. 9. Be that as it may, both the writ appeals filed by the petitioner were allowed by the Division Bench by a common judgment and order dated 10.01.2007. The appellate Court held that the Labour Court at Dibrugarh though constituted by the State Government would have the jurisdiction to entertain a claim for subsistence allowance even in respect of employees of a nationalised bank. Accordingly, it was declared that Labour Court at Dibrugarh was competent and had jurisdiction to entertain the claim of the petitioner. Orders to the contrary passed by the Single Bench were set aside. 10. Vijaya Bank authorities preferred Special Leave Petitions (SLP) before the Hon'ble Supreme Court against the above decision of the Division Bench of this Court. Accordingly, it was declared that Labour Court at Dibrugarh was competent and had jurisdiction to entertain the claim of the petitioner. Orders to the contrary passed by the Single Bench were set aside. 10. Vijaya Bank authorities preferred Special Leave Petitions (SLP) before the Hon'ble Supreme Court against the above decision of the Division Bench of this Court. On leave being granted, Civil Appeals were registered being Civil Appeal Nos.4211/2007 and 4212/2007. By a common judgment dated 06.07.2010 the two civil appeals filed by the Vijaya Bank authorities were dismissed with cost by the Hon'ble Supreme Court. 11. In the meanwhile, the Central Government made a reference to the Central Govt. Industrial Tribunal-cum-Labour Court under Sections 10 (1)(d) and 10(2A) of the Act on the following schedule:- "Whether the action of the management of Vijaya Bank in dismissing Shri Shyamal Kumar Lodh from service w.e.f. 30.08.1996 is legal and justified? If not, what relief is Shri Lodh entitled to." 12. Following the order of the Hon'ble Supreme Court, Labour Court passed an order on 19.09.2012 directing Vijaya Bank authorities to pay subsistence allowance to the petitioner till passing of final award. Application filed by the Vijaya Bank authorities to set aside such order was rejected by the Labour Court on 20.10.2012. 13. At that stage, Vijaya Bank filed the two related writ petitions before this Court being WP(C) Nos.5306 & 5307 of 2012. In view of interim orders passed in those two cases, order of the Labour Court dated 19.09.2012 directing payment of subsistence allowance to the petitioner remained stayed. 14. In the meanwhile, in view of the reference made by the Central Government, Reference Case No.6/2007 was registered by the Central Government Industrial Tribunal-cum-Labour Court, Guwahati. Though notice was issued to the petitioner, he has stated that he could not contest the proceeding of the aforesaid reference case at Guwahati because of extreme financial hardship due to non-payment of subsistence allowance by the employer i.e., by the Vijaya Bank. It was not possible for the petitioner to come all the way from Tinsukia to attend the proceedings at Guwahati. Additionally, petitioner had filed an application before the Central Government Industrial Tribunal-cum-Labour Court on 28.04.2011 contending that Misc. Case No.6/1995 was pending before the Labour Court, Dibrugarh and without taking approval or permission of the Labour Court, Vijaya Bank authorities had dismissed the petitioner from service. Additionally, petitioner had filed an application before the Central Government Industrial Tribunal-cum-Labour Court on 28.04.2011 contending that Misc. Case No.6/1995 was pending before the Labour Court, Dibrugarh and without taking approval or permission of the Labour Court, Vijaya Bank authorities had dismissed the petitioner from service. Therefore, such dismissal was illegal for contravention of the provisions of the Act which also entailed penal consequences. It was also pointed out that petitioner had invoked Section 33 A of the Act against the dismissal order before the Labour Court following which Misc. Case No.9/1997 was registered and the dismissal order was stayed. For his financial hardship, petitioner also requested transfer of the case to the Labour Court, Dibrugarh which was already in seis-in of Misc. Case No.6/1995. 15. By the award dated 20.09.2013 the Central Government Industrial Tribunal-cum-Labour Court answered the reference in favour of the management by holding that dismissal of the petitioner from service was justified. Thereafter consequential notification was issued on 04.10.2013 by the Central Government under Section 17 of the Act publishing the award. Aggrieved, WP(C) No.1473/2014 has been filed by the petitioner assailing the legality and validity of the said award. 16. This Court by order dated 31.03.2014 stayed the award dated 20.09.2013 and the consequential notification dated 04.10.2013. 17. Respondents have filed affidavit through Smt. Sashi Prabha Saikia, Branch Manager of Tinsukia Branch. It is stated that Misc. Case No.6/1995 did not pertain to an "industrial dispute" within the meaning of Section 2 (k) of the Act and as such there was no pending proceeding before the Labour Court to attract the provisions of Section 33 or for that matter Section 33 A of the Act. Therefore, there was no requirement on the part of the Vijaya Bank authorities to seek approval of the Labour Court for taking disciplinary action against the petitioner. Petitioner had committed a misconduct for which charges were framed against him. Despite full opportunities granted to the petitioner, for the reasons best known to him, he did not cooperate with the departmental proceeding which accordingly had to be proceeded and decided ex-parte. However, all the relevant materials were considered by the enquiry officer who thereafter submitted report holding that the charges brought against the petitioner stood proved. The disciplinary authority concurred with the findings of the enquiry officer and thereafter passed order of dismissal of the petitioner from service. However, all the relevant materials were considered by the enquiry officer who thereafter submitted report holding that the charges brought against the petitioner stood proved. The disciplinary authority concurred with the findings of the enquiry officer and thereafter passed order of dismissal of the petitioner from service. On reference made by the Central Government, the Central Government Industrial Tribunal-cum-Labour Court, Guwahati duly examined the issue of dismissal of the petitioner from service and after thorough consideration of the matter, has found no infirmity in the decision of the Vijaya Bank authorities. Accordingly, the reference has been answered in favour of the Vijaya Bank. Contending that the writ petition is devoid of any merit, respondents seek dismissal of the same. 18. Heard Mr. K.N. Choudhury, learned Senior Counsel for the petitioner and Mr. S.S. Sarma, learned Senior Counsel for the Vijaya Bank i.e., the respondents. 19. Mr. K.N. Choudhury, learned Senior Counsel for the petitioner has made two fold submissions. His first submission is that in view of pendency of Misc. Case No.6/1995, it was incumbent upon the respondents to have obtained approval of the Labour Court before passing the dismissal order against the petitioner. However, Vijaya Bank authorities did not file any application before the Labour Court under Section 33 (2) (b) of the Act. Therefore, question of granting approval did not arise. Referring to the judgment of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma reported in (2002) 2 SCC 244 , he submits that when such an application is not filed the order of dismissal would be void as it would be a clear case of contravention of Section 33 (2) (b). Therefore, the dismissal order is illegal being wholly untenable and requires to be set aside. Though this aspect was brought to the notice of the Central Government Industrial Tribunal-cum-Labour Court, it was overlooked by the Tribunal leading to passing of an illegal award. Mr. Choudhury further submits that because of non-receipt of subsistence allowance, petitioner was severely prejudiced as it prevented him from contesting the reference at Guwahati. Referring to the decision of the Apex Court in Ghanshamdas Srivastava v. State of Madhya Pradesh reported in 1971 (3) SCC 802 he submits that if non-appearance of the delinquent employee is because of non-payment of subsistence allowance then the ex-parte enquiry would be vitiated. Referring to the decision of the Apex Court in Ghanshamdas Srivastava v. State of Madhya Pradesh reported in 1971 (3) SCC 802 he submits that if non-appearance of the delinquent employee is because of non-payment of subsistence allowance then the ex-parte enquiry would be vitiated. On both the counts he submits that the impugned award is wholly unsustainable and should be quashed. 20. Per contra, Mr. Sarma, learned Sr. Counsel for the respondents submits that first of all Misc. Case No.6/1995 filed by the petitioner before the Labour Court, Dibrugarh was relating to subsistence allowance. It was an application filed without reference to any provision of the Act. It is more than evident that subject matter of Misc. Case No.6/1995 could not be construed to be an "industrial dispute" within the meaning of Section 2 (k) of the Act. If that be so there was no pending proceeding at the time when the dismissal order was passed. Therefore, there was no legal requirement on the part of Vijaya Bank authorities to seek approval of the Labour Court to the dismissal order since Section 33 was not attracted. He therefore submits that in the circumstances of the case, no relief can be granted to the petitioner who in any case would have superannuated by now. Mr. Sarma has placed reliance in the case of Rajasthan State Road Transport Corporation v. Satya Prakash reported in (2013) 9 SCC 232 to contend that after the dismissal order was adjudicated upon by the Central Government Industrial Tribunal-cum-Labour Court, it may not be reversed on technical grounds. 21. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. 22. At the outset objection raised by Mr. Sarma that Misc. Case No.6/1995 pending before the Labour Court at Dibrugarh did not involve any "industrial dispute" and therefore the said proceeding cannot be termed as a pending proceeding requires to be attended to. In the affidavit it is additionally stated that in the application filed by the petitioner before the Labour Court leading to registration of Misc. Case No.6/1995 there was no mention as under which provision the said application was filed. 23. Section 2 (k) of the Act defines "industrial dispute". In the affidavit it is additionally stated that in the application filed by the petitioner before the Labour Court leading to registration of Misc. Case No.6/1995 there was no mention as under which provision the said application was filed. 23. Section 2 (k) of the Act defines "industrial dispute". "Industrial Dispute" has been defined to mean any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. It is not disputed at the Bar that Vijaya Bank, a nationalised bank is covered within the definition of "industry" within the meaning of section 2 (j) of the Act. It is also not disputed that petitioner was an employee of Vijaya Bank. The dispute between the petitioner and Vijaya Bank was regarding payment of due subsistence allowance following his suspension. A careful reading of the provisions contained in Section 2 (k) of the Act would show that any dispute between employer and workmen connected with the employment or terms of employment or with the conditions of labour of any person would come within the ambit of the expression "industrial dispute". Dispute relating to the payment of subsistence allowance or quantum of subsistence allowance to be paid to an employee following suspension pending initiation of departmental proceeding is certainly a matter which would be covered by the expression "industrial dispute". In so far non-mentioning of any provision of the Act concerned in the application filed by the petitioner leading to registration of Misc. Case No.6/1995 is concerned, it goes without saying that non-mentioning of a provision or wrong mentioning of a provision would not denude a judicial or quasi-judicial forum from exercising its jurisdiction if it is otherwise vested with such jurisdiction. As a matter of fact, this aspect was gone into by the Apex Court when the Vijaya Bank authorities filed the SLPs against the decision of the writ appellate Court in the previous round of litigation. It was held as follows:- "16. From a plain reading of the Section 10A(2) of the aforesaid Act it is evident that the Labour Court constituted under the Industrial Disputes Act, 1947 within the local limits of whose jurisdiction the establishment is situated, has jurisdiction to decide any dispute regarding subsistence allowance. It was held as follows:- "16. From a plain reading of the Section 10A(2) of the aforesaid Act it is evident that the Labour Court constituted under the Industrial Disputes Act, 1947 within the local limits of whose jurisdiction the establishment is situated, has jurisdiction to decide any dispute regarding subsistence allowance. Here in the present case undisputedly dispute pertains to subsistence allowance and the Labour Court where the workman had brought the action has been constituted under Section 7 of the Industrial Disputes Act, 1947 and further the appellant bank is situated within the local limits of its jurisdiction. The workman had, though, chosen to file application under Section 33 C(2) of the Industrial Disputes Act but that in our opinion shall not denude jurisdiction to the Labour Court, if it otherwise possesses jurisdiction. Incorrect label of the application and mentioning wrong provision neither confers jurisdiction nor denudes the Court of its jurisdiction. Relief sought for, if falls within the jurisdiction of the Court, it cannot be thrown out on the ground of its erroneous label or wrong mentioning of provision. In the present case the Labour Court, Dibrugarh satisfies all the requirements to decide the dispute raised by the employee before it. 17. As the matter is pending before Labour Court since long, it shall make endeavour to finally decide the dispute within 6 months from today. Appellant as also respondent are directed to appear before the Labour Court, within four weeks from today. 18. In the result, both the appeals are dismissed with cost, quantified at Rs. 25,000/- to be paid by the appellant to the respondent." 24. After the above finding was returned by the Apex Court directing the Labour Court to decide the dispute raised by the petitioner, it is no longer open to the Vijaya Bank to contend that the dispute raised before the Labour Court was not an "industrial dispute". Such objection raised by the respondents is therefore wholly untenable. 25. Section 33 of the Act provides that conditions of service etc. shall remain unchanged under certain conditions during the pendency of proceedings. As per Sub-Section (1), during the pendency of any conciliation proceeding or any proceeding before a Labour Court or Tribunal etc. Such objection raised by the respondents is therefore wholly untenable. 25. Section 33 of the Act provides that conditions of service etc. shall remain unchanged under certain conditions during the pendency of proceedings. As per Sub-Section (1), during the pendency of any conciliation proceeding or any proceeding before a Labour Court or Tribunal etc. in respect of an "industrial dispute", no employer shall in regard to any matter connected with the dispute alter the conditions of service of the workmen to his prejudice or for any misconduct connected with the dispute no employer shall dismiss or discharge any workmen concerned in such dispute save with the expression permission in writing of the authority before which the proceeding is pending. Sub-section (2) which is relevant is extracted hereunder:- "(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, 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." 26. A constitution Bench of the Hon'ble Supreme Court in Jaipur Zila Sahakari Bhoomi Vikash Bank Ltd. (supra) had considered the provisions contained in the proviso to Section 33 (2) (b) and held that the proviso expressly and specifically says that no workmen 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. The proviso to Section 33 (2) (b) has been held to be mandatory and non-compliance thereof would render the dismissal order void and it would be deemed that the order of dismissal had never been passed. The proviso to Section 33 (2) (b) has been held to be mandatory and non-compliance thereof would render the dismissal order void and it would be deemed that the order of dismissal had never been passed. The Apex Court further qualified that where no application has been made it would be a clear case of contravention of the proviso to Section 33 (2)(b) in which case the dismissal order would be inoperative and void. Relevant portion of the aforesaid Apex Court judgment reads as under:- 13. The proviso to Section 33 (2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33 (2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33 (2) (b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33 (2) (b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. 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 practise by the employer during the pendency of industrial dispute when the relationship between them is 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 conditions contained in the said proviso for any alleged misconduct said to be unconnected 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. 14. Where an application is made under Section 33 (2) (b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimisation or unfair labour practise; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33 (2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remain inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A and that till such time he should suffer misery of unemployment in spite of the statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33-A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. 15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33-A, cannot be accepted. 15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33-A, cannot be accepted. In our view, 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). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33-A notwithstanding the contravention of Section 33(2) (b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33-A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practise or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment." 27. In the instant case, it is the admitted position that Vijaya Bank authorities did not file any application before the Labour Court, Dibrugarh for approval of the dismissal order. This fact was brought to the notice of the Central Government Industrial Tribunal-cum-Labour Court by filing requisite application wherein it was pointed that petitioner had invoked the provisions of Section 33 A of the Act against the dismissal order pursuant to which Misc. This fact was brought to the notice of the Central Government Industrial Tribunal-cum-Labour Court by filing requisite application wherein it was pointed that petitioner had invoked the provisions of Section 33 A of the Act against the dismissal order pursuant to which Misc. Case No.9/1997 was registered and the dismissal order was stayed. However, the learned Central Government Industrial Tribunal-cum-Labour Court completely overlooked the above aspect while passing the impugned award. The award was thereafter decided on merit. The decision cited by Mr. Sarma, viz, Rajasthan State Road Transport Corporation (supra), I am afraid would not be attracted to the facts and circumstances of the present case in as much as that was a case where the employee had filed complaint under Section 33 A of the Act against the dismissal order on the ground that there was violation of Section 33 (2) (b) of the Act. The complaint was adjudicated like a reference by the Tribunal and in the course of the adjudication the misconduct of the employee was held to have been proved. In such circumstances, the Apex Court held that the de jure relationship of employer and employee had come to an end and declined relief. 28. The same is not the position in the present case. Petitioner's application under Section 33 A before the Labour Court at Dibrugarh is yet to be considered. In fact on the said application Misc. Case No.9/1997 has been registered wherein order has been passed staying the dismissal order. On the other hand, Vijaya Bank authorities had not filed any application under Section 33 (2) (b) of the Act. Therefore there was clear violation of the aforesaid mandatory provision of law which has rendered the impugned dismissal of the petitioner wholly untenable. 29. Having regard to the law laid down by the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra), and on due consideration Court is of the unhesitant view that the impugned award dated 20.09.2013, consequential notification dated 04.10.2013 and the dismissal order dated 30.08.1996 cannot be sustained and are hereby set aside and quashed. Since it is admitted at the bar that in the normal course petitioner would have superannuated from service during the pendency of the present proceeding question of reinstatement would not arise. Since it is admitted at the bar that in the normal course petitioner would have superannuated from service during the pendency of the present proceeding question of reinstatement would not arise. However, following quashing of the dismissal order as above, petitioner would be deemed to have continued in service till his date of superannuation and entitled to the consequential reliefs in accordance with law. 30. Writ petition is allowed but without any order as to cost but WP(C) Nos.5306/2012 and 5307/2012 would stand dismissed. ---------