ORDER : 1. This is a petition preferred by the petitioner with the following prayers:- “(A) That your Lordships be pleased to issue an order, direction and/or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned Award dated 20.07.2017 passed by the learned Member of the Industrial Tribunal, in so far as the same denies entire back wages in favour of the petitioner and be pleased to direct the respondent to pay the full back wages from the date of termination till the actual date of reinstatement; (B) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to direct the respondent to immediately comply with the order dated 20.07.2017 and reinstate the petitioner as per the Award; (C) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice.” 2. It appears that the petitioner is a registered Trade Union which has filed the complaint on behalf of the workman, Shri Mahesh Bhikhabhai Gosai whose services came to be terminated by the management during the pendency of Reference (IT) No. 59 of 1999. Therefore, the petitioner – Union has filed a complaint under Section 33(A) of the Industrial Disputes Act (hereinafter referred to as the ID Act), where the Court while allowing the reinstatement did not grant any back wages but, it held the act of respondent authority dated 21.02.2001 is in breach of Section 33(A) of the ID Act. According to the petitioner, since the approval is not granted and the workman is terminated during the pendency of the reference, there is a breach of mandatory provisions of Section 33(A) of the ID Act and the consequential order shall be of reinstatement with back wages and continuity both. 3. Reliance is placed on two decisions of the Apex Court rendered in the case of (I) Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and others, reported in 2002 SCC (L&S) 279 and (II) Dipali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and others, reported in (2013) 10 SCC 324 . 4. This Court has heard learned advocate Mr. Nilesh R. Koyani for Mr. 4. This Court has heard learned advocate Mr. Nilesh R. Koyani for Mr. Premal Joshi appearing for the respondent who has urged this Court that the impugned judgment and award was challenged before this Court by preferring Special Civil Application No. 19168 of 2018 which this Court (Coram: Mr. C.L. Soni, J.) had dismissed on 18.12.2018. The municipality had also preferred F/Letters Patent Appeal No. 15881 of 2019. At the stage condonation of delay, the LPA Bench has rejected the same. He, therefore, has urged that the Division Bench also has examined the award and no change can be made in the same. 5. Having heard both the sides, the questions which require consideration is as to whether the order of the Court below ought to have come with back wages since the Court has already granted reinstatement with continuity of service and another issue which is firstly required to be answered is as to whether the challenge since has reached to the Division Bench from Special Civil Application No. 19168 of 2018, whether in this petition, the prayer of the petitioner of back wages can be considered. 6. It is the matter of record that the Special Civil Application No. 19168 of 2018 had been preferred by the respondent challenging the impugned award dated 20.07.2017 passed by the Industrial Tribunal in Complaint (IT) No. 03 of 2004. Letters Patent Appeal also came to be preferred being Filing No. 15881 of 2019 where, of course, the application for condonation of delay is not entertained. 7. This Court notices that the LPA Bench has chosen not to entertain the LPA by holding thus:- “10. The Court has heard learned counsel for the appellant. The present appeal is arising out of Special Civil Application no.19168 of 2018 filed by the present appellant challenging the order and judgment dated 20th July 2017 by way of Complaint (I.T.) No.3 of 2004 in Reference I.T. No.59 of 1999 holding that the action of present appellant – original petitioner and opponent in the reference relieving the respondent workman from service on 21st February 2001 was in breach of Section-33A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for the sake of brevity). 11. The workman was part of the reference being Reference I.T. No.59 of 1999 as recorded by the tribunal. 11. The workman was part of the reference being Reference I.T. No.59 of 1999 as recorded by the tribunal. During the pendency of the said reference, the workman services came to be terminated on 11th February 1991 with a view to see to it that he may not get the benefit of permanency. The said termination was brought about without following due procedure of law nor the workman was paid notice pay in lieu of notice, retrenchment compensation etc. 12. It was further the case of the workman before the tribunal that the employer, despite the fact that the reference was ongoing, no notice of change under Section 9A was served upon the workman for effecting change in his service from 15th February 2000 and he was made to work under the contract from 1st April 2000 to 31st May 2000 and thereafter on 31st May 2000 there was no compliance with the provision of law and ultimately on 21st February 2001, his services came to be abruptly terminated. The elaborate evidences were laid by the workman in support of his case. The workman produced documentary evidence also like identity card, office order Exh.13, the Muster for the years 1991-92, 1995-96 and 1998-99 and examined himself at Exh.12 supporting his documents. The witness of the employer said that the complainant's documents at Exhs.19 and 13 are documents of the employer Municipality, but at present the said record is not available with Municipality. Thus, the documents produced by the workman were admitted. The said documents were signed by the Chief Officer. There was no signature of the contractor. 13. In light of the aforesaid evidence and documents, the tribunal while partly allowing the complaint, ordered reinstatement of the workman as it was found contrary to the provision of Section-33A of the Act, but no back wages are granted. In this recording of the findings of the learned Single Judge, we found no fault and concurred therewith and question arise as to whether the appellant is justified in seeking quashment of both these award and order. The answer is in emphatic 'No'. The learned Single Judge has appreciated the findings of the tribunal and when the concurrent findings are recorded, this Court in LPA need no interference therewith in absence of any cogent evidence or any error apparent on record. 14. The answer is in emphatic 'No'. The learned Single Judge has appreciated the findings of the tribunal and when the concurrent findings are recorded, this Court in LPA need no interference therewith in absence of any cogent evidence or any error apparent on record. 14. In view of the aforesaid discussion, the appeal fails and is hereby dismissed. However, there shall be no order as to costs.” 8. It appears that the learned Single Judge without issuance of notice to the other side has decided the matter and findings of the learned Single Judge had been challenged in the LPA which had not been in any manner disturbed by the Appellate Bench. 9. This Court notices that at the time the LPA Bench has decided the matter of the petitioner on 16.09.2019, whereas in the order dated 06.08.2019 in the present petition, there is a reference of LPA 15881 of 2019. There is a specific query raised by this Court to the learned advocate Mr. Koyani as to whether the pendency of this petition being SCA 21188 of 2017 has been disclosed to the learned Single Judge or to the LPA Bench? The Answer to which is in negation. Thus, both the matters when decided before the learned Single Judge and before the Appellate Court, the Court was not aware of the pendency of this petition where the petitioner is independently invoking his rights to get the back wages. Being aggrieved by the judgment and award of the Industrial Tribunal, his rights being independent cannot be curtail merely because the other side has chosen to approach the Court and the Court without issuance of notice, in limine, dismissed those matters. Although, it had an occasion to examine it from the view point of the respondent, it never had an occasion to consider from the angle which has been proposed by the petitioner before this Court. Moreover, at the stage of rejection, merit has not been touched upon. Resultantly, on this issue, the request of respondent is unsustainable. 10. It brings this Court to the merit of the matter and examination of the judgments which are sought to be relied upon. Moreover, at the stage of rejection, merit has not been touched upon. Resultantly, on this issue, the request of respondent is unsustainable. 10. It brings this Court to the merit of the matter and examination of the judgments which are sought to be relied upon. The first being Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra), where the Court has held that failure to make an application for approval of order of discharge or dismissal or withdrawal of such application when is being made, would render the order of discharge or dismissal void and inoperative. The Court also has examined the proviso to Section 33(2)(B) and held and observed as to what are the duties of the authority while disposing of such application, if the application for approval or the order of discharge or dismissal comes before it. “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 S.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 other 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. 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 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 victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the 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 victimization or unfair labour practice; 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 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 employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains 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 33A challenging the order granting approval on any of the grounds available to him. Section 33A 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 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of 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 33A 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 33A, 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 33A, 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 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A 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 practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.” 10.1. In the instant case, the Court has held that the order of non-getting the approval during the pendency of the reference was illegal, therefore, as per the decision of the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) effect and fall out of such order is as if the order of discharge or dismissal was never passed. 10.2. 10.2. This Court finds no error, much less patent illegality in the judgment and award passed by the Trial Court. 11. This brings this Court to the next issue of back wages, the Apex Court in the case of Dipali Gundu Surwase (supra) has been categorical that in case of wrongful termination of service, reinstatement with continuity of service and back wages is ordinarily to be granted, of course, while deciding the issue of back wages, the adjudicating authority or the Court shall need to take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found against the employee/workman, the financial condition of the employer and such other factors. Ordinarily, an employee or workman whose service is terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court on first instance that he/she was not gainfully employed or was employed on lesser wages. Considering the pleading and proof as may be adduced and such proof if resisted by the other side, shall need to be considered. 12. The petitioner has already stated that he was not gainfully employed, at the time of recording of oral evidence by way of an affidavit. He has also been cross examined on this aspect where he was categorical that though he made all endeavors, he could not find any job. His employment card also was issued by the employment exchange, but, he had not been successful in getting the job. Other side has not brought anything which would belie this aspect. Having thus already proved and succeeded in showing that the order of dismissal was without any basis and has been held to be illegal, with clear averment and proof of not having any employment, the consequential order of back wages ought to have been passed. Even if, the person has been able to perform sundry work, his entitlement for majority share should not go away. 13. This Court notices that his request for permanency has been already withdrawn by him which has no relevance. This will not deprive him of back wages when the act of the respondent authority was apparently contrary to the law. Even if, the person has been able to perform sundry work, his entitlement for majority share should not go away. 13. This Court notices that his request for permanency has been already withdrawn by him which has no relevance. This will not deprive him of back wages when the act of the respondent authority was apparently contrary to the law. The Court, therefore, holds that Dhoraji Municipality shall need to pay 75% back wages on the basis of last pay drawn by him, within a period of eight weeks from the date of receipt of copy of the order. 14. The petition succeeds in above terms and disposed of accordingly.