Shiv Kumar Sharma, J.@mdashIn a domestic enquiry held by respondent employer the appellant workman was dismissed from service. Order of dismissal was sent for approval to the Industrial Tribunal under the proviso to Section 33(2)(b) of Industrial Disputes Act, 1947. However during the pendency of proceedings, the employer was declared as a ''Relief Undertaking'' and proceedings u/s 33(2)(b) were put in abeyance indefinitely. Since the workman was rendered remediless, he approached this Court under Article 226 of the Constitution. Learned single Judge dismissed the writ petition vide order dated September 10, 1997 observing that during the pendency of proceedings u/s 33(2)(b) the writ petition was not maintainable. Hence this appeal.
2. Contextual facts depict that the appellant (for short ''workman'') was working as ETPO Operator at Kota Project of Tilam Sangh, Rajasthan (for short the ''Employer''). The workman who was the President of the Project Karmachari Union was served with a charge sheet on July 20, 1993. The workman denied all the charges. Sanjeev Jain, advocate, was appointed as Enquiry Officer to conduct the Domestic Enquiry. Enquiry Report was submitted on June 23, 1994 and dismissal order against workman was passed on July 6, 1994. Pursuant to proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short ''ID Act'') the dismissal order was sent to Industrial Tribunal Kota for approval. However during, the pendency of proceedings under Section-33(2)(b) of the ID Act the State Government issued notification on February 13, 1995 under the provisions of the Rajasthan Relief Undertakings (Special Provisions) Act, 1961 (for short ''1961 Act'') declaring the employer to be a ''Relief Undertaking'' and exempted it from the provisions of ID Act.
3. The effect of the notification was that the proceedings u/s 33(2)(b) pending before Industrial Tribunal Kota were suspended indefinitely. Since the workman was rendered remediless, he filed writ petition, which was dismissed by the learned single Judge vide order dated September 10, 1997 with these observations:
The notification declaring the respondents as relief undertaking is not under challenge in the present writ petition. Admittedly, the matter is sub judice before the Industrial Tribunal in regard to termination of the services of the petitioner where the application for seeking approval of the dismissal order by the management is still pending before the Tribunal. In my opinion, in such circumstances, the petitioner cannot be allowed to invoke the extraordinary jurisdiction of this Court when the provisions of the Act under which petitioner is seeking relief have put in abeyance for the period during which the respondent shall remain as relief undertaking.
4. We have heard rival submissions and scanned the material on record.
5. Before proceeding further we deem it appropriate to consider 33(2)(b) Proviso of ID (Act, which reads thus:
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.
(emphasis supplied)
6. Constitution Bench of Hon''ble Supreme Court in
14. Where an application is made u/s 33(2)(b) provision 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 fay of victimization or unfair labour practice: whether the conditions confined 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. 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 u/s 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A is available to save his time and trouble inasmuch as he can straightway 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.
(emphasis supplied)
7. Coming to the scheme of 1961 Act we find that it was promulgated to make special provisions to enable certain industrial undertakings of Rajasthan to attain revival and to offer continued employment to their employees, by declaring them as Relief Undertakings and for other matters connected therewith. It is provided under Sub-section (2) of Section 3 of 1961 Act that notification issued by the State Government shall have effect for such period not exceeding two years as may be specified in the notification; but it shall be renewable by like notifications, from time to time, for further periods not exceeding twelve months at a time, so however, that the total period in the aggregate does not exceed twenty years.
(emphasis supplied)
8. Obviously the first notification which was issued on February 13, 1995 can be renewed from time-to-time upto 2015 and the proceedings u/s 33(2)(b) have to wait till then.
9. As mandate by the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma (supra) that the order of dismissal remains incomplete till it is approved u/s 33(2)(b) Proviso and if approval is not given, nothing more is required to be done by the workman, as it will have to be deemed that the order of dismissal had never been passed. Consequence of it is that the workman is deemed to have continued in service entitling him to all the benefits available.
10. In the peculiar facts and circumstances of the matter, the writ petition under Article 226 of the Constitution was maintainable. The workman cannot be rendered remediless. He is not expected to wait till 2015, for the decision of the proceedings pending u/s 33(2)(b) of the I.D. Act.
11. The relationship between Employer and the workman still exists as the dismissal order has not been approved as yet. The relationship comes to an end de jure only when the authority grants approval.
12. Considering the right to life of the workman guaranteed him under Article 21 of the Constitution and following the ratio indicated in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma (supra) we are of the view that dismissal order of workman should be declared inoperative, till the adjudication of proceedings u/s 33(2)(D) of the I.D. Act.
13. We accordingly decide the instant appeal in the following terms:
(i) Impugned order of learned single Judge 5 shall stand set aside.
(ii) Respondent Employer is directed to provisionally reinstate the appellant workman within thirty days from today.
(iii) Reinstatement of appellant workman shall be prospective and he will not be entitled to back wages.
(iv) This order shall remain in force till the 5 adjudication of the proceedings pending u/s 33(2)(b) of I.D. Act before the Industrial Tribunal, Kota.
(v) There shall be no order as to costs.
