Dipak Misra, C.J.@mdashIn this intra-Court appeal, the warrantableness of the order dated 14.9.2004 passed by the learned Single Judge in CW No. 1998/2004 is called in question.
2. Filtering the unnecessary details, the facts which are essential to be stated are that the Appellant, Delhi Transport Corporation (for short "the DTC"), filed an application u/s 33(2)(b) of the Industrial Disputes Act, 1947 (for brevity "the Act") before the Industrial Tribunal-II in O.P. No. 389/93 seeking approval of the action of removal of the Respondent - workman from service. The tribunal framed a preliminary issue on 2.9.1996 to the effect whether a legal and valid enquiry had been held against the workman and, by order dated 7.8.2002, decided the issue against the DTC. Thereafter, the tribunal framed three issues and eventually came to hold that the absence of the Respondent - workman did not amount to misconduct and, therefore, declined to grant approval to the management DTC u/s 33(2)(b) of the Act vide order dated 26.2.2003.
3. Being dissatisfied with the aforesaid order, the DTC invoked the jurisdiction of this Court and the learned Single Judge, placing reliance on the decision rendered in
15. In the present case there is no dispute that the Respondent workman did not obtain any proper sanction for his leave. The mere submission of a leave application or a medical certificate is of no consequence unless the leave is duly approved or sanctioned.
16. In view of the decision of the Supreme Court referred to above, since the learned Tribunal has refused to grant approval only on the ground that the period of absence was treated as leave without pay which did not amount to misconduct, the absence being undisputed, there is no option but to set aside the order passed and to accord approval to the application filed by the Petitioner u/s 33(2)(b) of the Act.
4. After so holding, the learned Single Judge posed the question what relief should be granted to the DTC. To adjudicate the said facet, the learned Single Judge dwelled upon the issue relating to the status enjoyed by the Respondent - workman during the intervening period. The writ court referred to the decision in
5. After taking note of the said decisions, the learned Single Judge adverted to the facts of the case at hand. He has noted that the order of dismissal was passed on 28.5.1993. In terms of the decision rendered by the Apex Court in Ram Gopal Sharma and Ors. (supra), the order of dismissal was incomplete or inchoate until the tribunal rendered a decision on the approval application. On 26.2.2003, the tribunal declined to grant approval to the action of the DTC and, therefore, the workman is deemed to have been continuing in service as on 26.2.2003 as if the order of dismissal was never passed. The learned Single Judge further held that the Respondent - workman continued in service with such a status at least until 13.2.2004, when the order dated 26.2.2003 was stayed by this Court. Thereafter, the learned Single Judge held thus:
27. Since I have now held that approval u/s 33(2)(b) of the Act was wrongly declined, the Respondent workman would stand dismissed with effect from 28th May, 1993 (the date of the dismissal order). This would be in accordance with the law laid down by the Supreme Court in Ram Gopal Sharma. However, if the law is applied literally and strictly, it will mean that the Respondent workman was wrongly paid his wages for this period (assuming he was so paid) and he should, therefore, refund the amounts received by him from the date of his dismissal. I think this is too harsh and the Supreme Court could not have intended such a result.
28. It has been held on several occasions that the Act is a beneficial legislation and its provisions have to be construed liberally because it is a legislation enacted for the welfare of workers [See for example
6. On the basis of the aforesaid, the learned Single Judge proceeded to issue the directions as follows:
1. The impugned order dated 26th February, 2003 is set aside. However, the Petitioner will pay to the Respondent workman, all wages and other benefits due to him until 13th February, 2004, that is, the date on which this Court stayed the impugned order. The payments should be made to the Respondent workman within six weeks from today.
2. When any industrial adjudicator declines to grant approval to an order of dismissal or discharge passed u/s 33(2)(b) of the Act, it is obliged to treat the workman as being on duty as per the law laid down by the Constitution Bench of the Supreme Court. Therefore, it must direct the employer to pay to the workman all wages and other benefits due to him until the date of the refusal order and it must also direct payment to be made within a specified and reasonable period of time.
3. When a writ petition is filed challenging an order passed by an industrial adjudicator declining approval u/s 33(2)(b) of the Act, the writ Court also is obliged to treat the Respondent workman as being on duty as per the law laid down by the Constitution Bench of the Supreme Court. Consequently, the Respondent workman is entitled to wages and all other benefits as a result of the refusal by the industrial adjudicator to grant approval u/s 33(2)(b) of the Act until the order of refusal is stayed by the writ Court. Therefore, the writ Court should insist, as a rule, that the employer should pay to the workman his dues until such time as the impugned order continues to operate.
4. When a writ Court sets aside the order passed by an industrial adjudicator declining approval u/s 33(2)(b) of the Act, it will take effect from the date the employer passed the initial order of dismissal or discharge. However, keeping in view that the Act is a beneficial legislation, it must not direct the Respondent workman to refund the amount received by him towards wages and other benefits.
7. Assailing the legal sustainability of the order, it is submitted by Mr. Khan that once the order of non-approval is quashed and a conclusion is arrived at by the learned Single Judge that the order of dismissal would be valid with effect from 28th May, 1993, there was no justification to issue a direction for grant of all wages and benefits from 26th February, 2003 till 13th February, 2004, the date the writ Court stayed the impugned order, in the absence of a statutory command or stipulation in the Act. It is his further submission that the order of approval has to date back to the date of dismissal and the learned Single Judge having so held could not have invoked the concept of beneficent legislation. Mr. Khan has also urged that the decisions relied upon by the learned Single Judge with regard to the action and attitude of the DTC would not empower or clothe the writ court with jurisdiction to issue a direction for payment for the interregnum period which has no sanction of law.
8. Mr. Mahabir Singh, learned senior counsel, per contra, canvassed that the order passed by the learned Single Judge is absolutely impeccable because the workman continues to be in service till the order of dismissal is approved and as in the present case, since the order of non-approval was challenged almost after a year, the direction for payment of wage is justified. It is urged by him that when a discretionary relief is granted by the writ court, the same should not be dislodged in an intra-court appeal.
9. At the very outset, we may fruitfully refer to the decision in Ram Gopal Sharma and Ors. (supra), where the Constitution Bench was addressing the following proposition:
If the approval is not granted u/s 33(2)(b) of the Industrial Disputes Act, 1947, whether the order of dismissal becomes ineffective from the date it was passed or from the date of non-approval of the order of dismissal and whether failure to make application u/s 33(2)(b) would not render the order of dismissal inoperative?
10. Thereafter, their Lordships referred to the decisions in
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 u/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 another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed u/s 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 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 u/s 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 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 u/s 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 u/s 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside u/s 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.
Thereafter, their Lordships proceeded to state as follows:
18. In view of what is stated above, we respectfully agree with and endorse the view taken in the case of Strawboard (supra) and Tata Iron & Steel Co. (supra) and further state that the view expressed in
11. It is worth noting that in Tata Iron & Steel Co. Ltd. (supra), their Lordships have opined thus:
It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law.
X X X X
...the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the Appellant and the Respondent; and so, 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 his full wages for the period even though the Appellant may subsequently proceed to terminate the Respondent''s services.
[Emphasis supplied]
12. In
The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the labour court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the labour court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the labour court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made.
After placing reliance on the said observations, their Lordships held thus:
These observations directly cover the case before us because though the labour court, in the instant case, found that the inquiry was defective as it infringed the principles of natural justice, it came to the conclusion after considering the evidence adduced before it, that the dismissal was justified. The award of the labour court must therefore relate back to the date when the order of dismissal was passed on the termination of the domestic inquiry.
13. At this juncture, it is useful to refer to certain authorities pertaining to the applicability of the doctrine of relation back. In
Even if it be assumed that the telegram and the letter terminating the services of the Appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16.12.1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorized to terminate the services of the Appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the Appellant were validly terminated on 17.12.1953.
14. In
15. In
7. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently "rectified" by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely "a subsequent ratification of an act is equivalent to a prior authority to perform such act". Therefore ratification assumes an invalid act which is retrospectively validated.
16. In
5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench.
17. In
18. On a perusal of the aforesaid enunciation of law, we have no hesitation in mind that the doctrine of relation back would get squarely attracted. In fact, in Ram Gopal Sharma and Ors. (supra), their Lordships approved what has been stated in Tata Iron & Steel Co. Ltd. (supra) wherein it has been laid down that if approval is granted, it takes effect from the date of the order passed by the employer for which the approval was sought. The writ court has clearly and correctly held that approval u/s 33(2)(b) was wrongly declined and, hence, the Respondent - workman would stand dismissed w.e.f. 28.5.1993. The said view has also been expressed in the case of Ram Kishan (supra) wherein this Court has held as follows:
(g) An order of discharge or dismissal passed u/s 33(2)(b) is incomplete and inchoate until approval is granted by the Tribunal in terms of Section 33(2)(b) . The relationship of employer and employee is not effectively terminated by passing the order of discharge or dismissal until approval thereto is accorded by the Tribunal in terms of Section 33(2)(b) . By passing the order of discharge or dismissal, de facto relationship of employer and employee is ended but not de jure.
(h) If approval is granted by the Tribunal it takes effect from the date of the order passed by the employer for which approval was sought.
19. The learned Single Judge, after expressing the opinion as aforesaid, has held that when a writ petition is filed challenging an order passed by an industrial adjudicator declining approval u/s 33(2)(b) of the Act, the writ Court also is obliged to treat the Respondent-workman as being on duty as per the law laid down by the Constitution Bench of the Supreme Court. Consequently, the Respondent-workman would be entitled to wages and all other benefits as a result of the refusal by the industrial adjudicator to grant approval u/s 33(2)(b) of the Act until the order of refusal is stayed by the writ Court and, therefore, the writ Court should insist, as a rule, that the employer should pay to the workman his dues until such time as the impugned order continues to operate. It was further held that when a writ court sets aside the order passed by an industrial adjudicator declining approval u/s 33(2)(b) of the Act, it will take effect from the date the employer passed the initial order of dismissal or discharge. However, keeping in view that the Act is a beneficial legislation, it must not direct the Respondent workman to refund the amount received by him towards wages and other benefits.
20. To arrive at the said conclusion, he has referred to the attitude of the DTC in forcing employees to file writ petitions under Article 226 of the Constitution, as the DTC did not reinstate the employees despite non-grant of approval. Needless to emphasize, a writ petition can be filed for getting the benefit as has been held in
16. From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental enquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains order of approval from the Tribunal. By passing the order of discharge or dismissal de facto relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed u/s 33(2)(b) of the Act on merits the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employee the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal''s rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in Section 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish a prima facie case for dismissal/discharge of the workman, and therefore, dismissed the application filed by the employer on merits. The inevitable consequence of this would be that the employer was duty-bound to treat the employee as continuing in service and pay him his wages for the period, even though he may be subsequently place under suspension and an enquiry initiated against him.
17. In the facts and circumstances of the case it is our view that the High Court committed no illegality in issuing a direction to the Appellant for reinstating the Respondent and paying him the back wages.
21. The core issue that emerges for consideration is whether the learned Single Judge is justified in issuing the direction for grant of wages from the date of the order, i.e., 26.2.2003 to 13.2.2004, i.e., till the order of stay was passed by this Court. He has so directed on the basis that the employer cannot be entitled to recover the wages regard being had to the beneficial nature of the legislation. He has also held that the workman is entitled to wages and all other benefits as a result of the refusal by the industrial adjudicator to grant approval u/s 33(2)(b) of the Act until the order of refusal is stayed by the writ court and, therefore, the writ Court should insist, as a rule, that the employer should pay to the workman his dues until such time as the impugned order continues to operate. On a careful scrutiny of the order passed by the learned Single Judge, we are of the considered opinion that the directions given or views expressed are, in fact, not supported by any statutory mandate. How a writ court would pass an interim order or what conditions can be stipulated at that time cannot be laid down in a strait jacket formula unless there is a statutory command. The learned Single judge, as we perceive, has held that unless there is an order of stay, the workman is entitled to get the wages but there can be no recovery. If a workman has been paid by the employer, possibly there may not be a direction for refund or recovery regard being had to several aspects including the beneficent nature of the legislation. But to hold and opine that the workman will be entitled to the wages as a matter of legal right despite quashing the order declining to approve the order of dismissal by the High Court is not acceptable. It is a command to do something which the law does not warrant because the order of non-approval becomes extinct when the writ court finds that the same has been unjustifiably denied. The doctrine of relation back gets squarely attracted. It operates in full force and applies to the fullest extent.
22. It is seemly to state here that the non-realization of the amount paid to the workman is in the sphere of equity but the issue of a mandatory direction or a command is realization or fructification of a right. It is well settled in law that fair play and equity must yield to the provisions of the statute. In this context we may profitably reproduce a passage from
12. ...It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law....
23. In this context, we may fruitfully refer to a three-Judge Bench decision in
29. ...
Certainly when law speaks in positive terms, equity may not be invoked against it; but while applying the law the Court can and must ameliorate unwitting rigours inflicted by legalisms, where there is room for play, by the use of equity....
24. In
4. It is the obligation of the High Court to decide the matters before it in accordance with law. If the law was, as the High Court observes in the passage quoted above, in favour of the Appellant before it, it was obliged to make an order in favour of the Appellant. Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law.
25. In
13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law....
26. In
29. ...it is well settled that when there is a conflict between law and equity, it is the law which has to prevail, in accordance with the Latin maxim "dura lex sed lex", which means "the law is hard, but it is the law". Equity can only supplement the law, but it cannot supplant or override it.
27. In
13. ...No doubt, equity may be in favour of the Respondents because they were selected earlier, but as observed earlier, if there is a conflict between equity and the law, it is the law which must prevail....
28. In view of the aforesaid enunciation of law, the equity cannot weigh in favour of a workman when the order refusing to grant approval passed by the industrial adjudicator is set aside in exercise of inherent jurisdiction by the writ court. While exercising the equitable jurisdiction, that amount paid to the workman may not be recovered or he should not be compelled to refund the same, but issuing of a direction to pay him the wages inspite of the order of disapproval being axed by the High Court, which is a command and the said direction is in the realm of law, as a result of which the equitable consideration would come in conflict with law. Thus, such a direction, not being sanctioned by the authority of law, cannot be issued.
29. The direction issued by the learned Single Judge can be viewed from another angle. On a proper appreciation of the directions issued by the learned Single Judge in his conclusion in paragraph 3, the same, in our opinion, is in the nature of an introduction of a legislative mandate. We are disposed to think so as there is no provision in the Act to cover such a situation. In this context, we may refer with profit to the decision in
30. In
27. It is so well settled and needs no restatement at our hands that the legislature is supreme in its own sphere under the Constitution subject to the limitations provided for in the Constitution itself. It is for the legislature to decide as to when and in what respect and of what subject-matter the laws are to be made. It is for the legislature to decide as to the nature of operation of the statutes.
31. In view of our aforesaid analysis, we are unable to concur with the view expressed by the learned Single Judge that there should be payment of amount from 26th February, 2003 to 13th February, 2004 and further, with due respect, we are also not in agreement with the conclusion No. 3 arrived at by the learned Single Judge and, accordingly, both are set aside.
32. Consequently, keeping in view the restricted and limited prayer made by the Appellant - DTC, the appeal is allowed. There shall be no order as to costs.
