Non-compliance of mandatory provisions of Sec 33(2)(b) of the ID Act, would render the dismissal order of a workman as void ab initio and the workman would be entitled for reinstatement with all consequential benefits.

In the matter of Duncan Engineering Ltd. Vs. Ajay C. Shelke W.P (ST.) No. 93088/2020 along with similar other writ petitions, decided by the Hon’ble Bombay High Court on 21.06.2021.

Facts of the case-
The Respondent-workmen were employed in one of the factories of the Petitioner and they were served with charge sheets alleging misconduct under the Industrial Employment (Standing Orders) Act. The Petitioner, not being satisfied with the explanations submitted by the workmen, initiated inquiry into the alleged misconduct and the enquiry officer recorded a finding that the workmen were guilty of misconduct hence, the Petitioner terminated their services. Aggrieved by the dismissal order, the workmen raised an industrial dispute which was referred to the Labour Court for adjudication. The workmen contended that the dismissal was passed pending the reference pertaining to the Charter of Demands raised by the Union of which they were members, without payment of one month wages and without seeking approval as per the mandate of sec 33(2)(b) of the ID Act and is therefore, illegal and void.
The Labour Court held that the findings of Enquiry officer are based on sufficient and acceptable evidence and the same are not perverse, however, the Court held that the dismissal order is void and inoperative mainly on the ground of non-compliance of the provision u/s 33(2)(b) of the ID Act and ordered reinstatement of the workmen with continuity in service, full back wages and all consequential benefits. This order of the Labour Court is under challenge in the present petitions.
Issue raised before the Court-
Whether non-compliance with the proviso to sec 33(2)(b) of the ID Act would ipso facto entitle the workmen to be reinstated with all consequential benefits?
Observation of the Court-
In regard to the provisions of Sec 33, the Court observed that ‘Sec 33 (1) deals with matters connected with the pending dispute and imposes a ban on change of service conditions or discharge or dismissal of the workman save with the express permission in writing of the authority before which the proceeding is pending. Whereas Sec 33 (2) deals with the alterations in the conditions of service as well as discharge or dismissal of workman concerned in any pending dispute where such alteration or such discharge or dismissal is in regard to a matter not connected to the pending dispute. Further, Sec 33(2)(a) recognizes the right of the employer to make an alteration in the condition of service so long as it does not relate to a matter connected to a pending dispute and Sec 33(2)(b) enables the employer to dismiss or discharge the workman for any misconduct not connected with the dispute provided the concerned employee is paid wages for one month and the employer makes an application to the authority before which the proceeding is pending for approval of the action taken.’
The Hon’ble Court cited various judgments of Hon’ble Apex Court which takes contradictory stands regarding the interpretation of provisions of Sec 33 and 33 A, however, the Court noted that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Jaipur Zila Sahakari Bhumi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Ors. (2002) 2 SCC 224 is a binding precedent and therefore relied on the said judgment to adjudicate the present matter. The clear and categorical pronouncement of the Constitution Bench in Jaipur Zila (supra) indicates that an order of dismissal or discharge remains incomplete and inchoate till the grant of approval under the mandatory provision of Section 33(2)(b). An order of dismissal, in breach of mandatory provision of sec 33(2)(b) is void ab initio and does not severe the employer-employee relationship, consequently, the employee is deemed to continue in service. Hence, contravention of the mandatory provision, either due to non-payment of one-month wages or non-fling of approval application or withdrawal or rejection of approval application, would entitle the employee for reinstatement with all consequential benefits.
The Court further noted that ‘an employee, who is dismissed in breach of Section 33(2)(b) can legitimately claim to continue to be in the employment, notwithstanding the order of dismissal or discharge. Such workman is entitled to have his right enforced by filing petition under Article 226 of the Constitution, without testing validity of the order of dismissal either in a Reference under Section 10 or in a complaint under Section 33A of the ID Act. The workman also has an option of seeking wages under Section 33C of the ID Act without a specific order of reinstatement.’
At last, the Hon’ble Court concluded that ‘the Petitioner has dismissed the Respondent-workmen during the pendency of the said Reference without complying with the mandatory provision of Section 33(2)(b) which renders the dismissal order void and non-est. The employer-employee relationship not having been legally terminated, the Petitioner is bound to treat the Respondent workmen as continuing in service and give them all consequential benefits.’