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2019 DIGILAW 1338 (JHR)

Auto Feed v. Basudeo Mahato

2019-07-24

RAJESH KUMAR

body2019
ORDER : 1. Heard counsels for the parties. 2. The employer has invoked the writ jurisdiction of this Court against the order dated 20.04.2012 passed in Misc. Case No. 02 of 2004 by the learned Presiding Officer, Industrial Tribunal, Ranchi, whereby the application of the employer under Section 33 (2)(b) of the Industrial Disputes Act, 1947 has been rejected on the ground of non-payment of one month salary, as per proviso, which is mandatory. 3. From pleading and argument, it appears that the respondent-workman was a permanent employee under the respondent on the post of Helper in Air Tank Department. He has joined the said post on 01.04.1997. There was a dispute regarding the wage revision and for which the Industrial Dispute has been raised, ultimately referred as Reference Case No. 03 of 2000 for wage revision. 4. During pendency of above reference, the respondent-workman has been charged vide memo of charge dated 25.06.2003. On the basis of said charge, workman has been ultimately dismissed from the service after recording guilt in domestic enquiry by the enquiry officer. The order of the dismissal was w.e.f. 27.02.2004. As required under the law, the employer has moved an application dated 03.03.2004 under Section 33 (2) (b) of the Industrial Disputes Act, 1947, for approval of order of dismissal. Both the parties had filed written statement and after considering the entire material available on record, the concerned Tribunal held domestic enquiry as fair and proper. 5. On recording of such finding, the order of dismissal has not been interfered on merit but the order of dismissal has been set aside on the ground of non-payment of one month salary which is mandatory as per proviso of Section 33 (2) (b) of the Industrial Disputes Act, 1947. Section 33 (2) (b) is, quoted, herein-below:- “33(2)(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.” 6. From mere perusal of the above Section, it is evident that it is mandatory for the employer to pay one month salary along with the order of dismissal otherwise the order of dismissal will be ineffective. Reference may be made to the Paragraphs 14, 15 and 16 of the Judgment reported in Jaipur Zila Sanskari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma and Others, (2002) 0 Supreme (SC) 76 is quoted herein-below:- “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 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 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. 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. 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. 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. 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 practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment. 16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33-A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33-A. There is nothing in Sections 31, 33 and 33-A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes.” (Emphasis supplied) 7. By above judicial pronouncement, the issue has been settled that the payment of one month salary is mandatory and further non-payment renders the order of dismissal ineffective. Thus payment of one month salary has been declared mandatory. 8. These sections are intended to serve different purposes.” (Emphasis supplied) 7. By above judicial pronouncement, the issue has been settled that the payment of one month salary is mandatory and further non-payment renders the order of dismissal ineffective. Thus payment of one month salary has been declared mandatory. 8. In the present case, the Tribunal after considering the evidence on record, recorded the finding that although there is a stipulation in the letter that cheque has been issued amounting to Rs. 1680/- and sent along with the letter, but no evidence has been adduced before the Tribunal. Due to lack of such evidence, finding has been recorded that mandatory requirement of the Section 33(2) (b) has not been complied and as such permission has been refused. 9. Counsel for the petitioner has argued that the letter has been exhibited wherein the stipulation is there that the cheque of Rs. amounting to Rs. 1680/- is being tendered and this was the sufficient proof. 10. From mere perusal of the record, it appears that even cheque has not been produced before the Tribunal. Further it is a cheque not a draft. Mere stipulation in letter is not sufficient rather evidence has to be produced regarding the posting of the cheque or tendering to the concerned employee. In the present case no such evidence has been brought on record by the employer, in spite of opportunity given by the Tribunal. 11. In view of above discussion and judicial pronouncement, this Court finds no merit in the present writ petition. Accordingly, stands dismissed.