Amidst the aforesaid developments & Anr. v. Ram Gopal Sharma) and 2005 (3) GLT 432 (United Bank of India

Amidst the aforesaid developments, the Govt. of Assam exercising its pow 4. er under Section 10 of the Industrial Dispute Act, 1947 referred for adjudicatio n the industrial dispute raised by the Union with regard to the promotion of the employees junior to the petitioner vide notification dated 07.08.2007. Accordin gly, a case being Reference Case No. 13/2007 was registered in the learned Labou r Court at Guwahati. The terms of reference are as follows: (cid:28)(i) Whether the management of the Industrial Co-operative Bank Ldt. S.S. Road, Lakhtokia, Guwahati-1 are justified in promotion Smt. Renu Lahkar, Shri Raben Ka lita and Shri Dinesh Ch. Deka by superseding many seniors ? (ii) If not, what relief the union is entitled to ? (cid:29) In reference case also the Management of the respondent Bank contested t 5. he proceeding by filing written statement stating inter alia that the petitioner although was senior to the promotee, Smt. Renu Lahkar, but was not considered for such promotion as he was facing departmental enquiry on account of misconduc t and gross negligence. During the pendency of the proceeding, the Management fi led an application being Petition No. 154/2008 stating therein that the General Secretary of the Union had expired on 07.11.2007 and the President of the Union took voluntary retirement from the service on 01.12.2007 and another original me mber had also resigned from the Union and joined another Trade Union and as a re sult, total membership of the Union reduced to only four. It was also stated in the said petition that the Management had preferred an application before the Re gistrar, Trade Union on 23.11.2007 for cancellation of the said Union and the Re gistrar after due enquiry cancelled the registration by his order dated 11.04.20 08.

#6. Consequent upon such developments, the learned Presiding Officer of Labo ur court held that the Reference Case No. 13/2007 was not maintainable in view o f cancellation of the registration of the employees’ Union to which the petition er was a member and was represented by him in the Reference Case.

#7. The award was passed on 29.09.2009. During the pendency of the Reference Case No. 13/2007, the petitioner had approached the Labour Court at Guwahati by filing an application under Section 33A of the Act alleging illegal dismissal f rom service by the Management during pendency of conciliation proceeding without complying with the provision of Section 33 (ii)(b) of the Act. The said applica tion was registered as Misc. Case No. 10/2007 and two questions had been framed for determination vide order dated 24.04.2008. They are (1) whether the petition er is workman in Reference Case No. 13/2007 and (2) whether the process of dismi ssing him from service was accomplished during pendency of the industrial disput e before the concerned authority and the court. It was at that stage, the Manage ment of the respondent Bank approached this Court challenging maintainability of the case and the order dated 24.04.2008. The writ petition filed in this regard was registered and numbered as W.P.(C) No. 2338/2008. The writ petition was dis posed of by order dated 19.06.2008 holding that the conciliation proceeding prim a facie involving the workman/petitioner was pending on the date of his dismiss al from service and hence it was obligatory on the part of the Management to obt ain prior approval of the authority before whom the conciliation proceeding was pending and as such declined to interfere with the proceeding of the case. After the aforesaid disposal of the writ petition, the Bank Management s 8. ubmitted its written statement in the proceeding under Section 33A of the Act wh erein it was, inter alia, contended that the charge sheet dated 16/17.02.2006 wa s served upon the petitioner for committing gross misconduct and dereliction of duty in processing loan proposals against deposits relating to 22 numbers of loa n cases for which the case of the petitioner was not considered for promotion wh ile promoting his juniors. It was contended that since the subject matter of the Reference was no way connected with the grievance of the petitioner ventilated in Misc. Case No. 10/2007 and therefore, the provision of Section 33 of the Indu strial Dispute Act was not attracted. It was admitted by the Management that the Union filed a compliant before the ALC, Guwahati on 11.04.2006 and the proceedi ng before the ALC was pending till 02.04.2007. It was further contended that as the petitioner had filed another application under Section 33A before the ALC, G uwahati, the petition before the Labour Court was not maintainable.

#9. Both the sides adduced evidence in the case. The Bank Management examine d its Managing Director. He in his examination in chief in the form of an affida vit admitted the fact that the petitioner was dismissed from service w.e.f. 04.1 0.2006 vide order dated 03.10.2006 during the pendency of the conciliation proce eding before the ALC, Guwahati. It was also admitted that the Management did not file any application before the conciliation Officer for approval of the dismis sal order passed against the petitioner.

#10. The learned Presiding Officer, Labour Court having passed the impugned a ward dated 27.07.2007 dismissing the application filed by the petitioner, the pe titioner has filed the instant writ petition.

#11. I have heard Mr. S. Chokraborty, learned counsel for the petitioner and so also Mr. B. Chokraborty, learned counsel for the respondent Bank. My findings and conclusions are as follows.

#12. Admittedly the petitioner was dismissed from service during the pendency of the conciliation proceeding, a fact which has been admitted by the learned P residing Officer, Labour Court, Guwahati in his impugned award dated 27.07.2010 passed in Misc. Case No. 10/2007. In this connection, the following findings rec orded by the Labour Court are worth mentioning. (cid:28)7. Both sides another admitted fact is that during pendency of the conciliation proceeding before Assistant Labour Commissioner (Conciliation Officer) from 11. 04.2006 to 02.04.2007, the management of the bank dismissed this applicant from service w.e.f. 04.10.2006 vide its order dated 03.10.2006 and the management had not filed any application before the conciliation officer under Section 33 for praying for approval of said dismissal order, and reversely, this applicant also did not file any application before him under Section 33A of the Industrial Dis pute Act, 1947, but he filed the petition under Section 33A of the Act before th is Court only on 14.12.2007,i.e. after 3 moths 20 days of sending the reference notification by the Government, but during pendency of Reference Case No. 13/200 7 before this Court. Another admitted fact of both sides’ is that while Smt. Renu Lahkar, Shr 8. i Raben Kalita and Shri Dinesh Chandra Deka were promoted by the management of t he Bank, the present applicant was working as Jr. Officer Gr.II in the said bank , and all three promotees were juniors to this applicant. It is also both sides admitted fact that the Employees’ Union of the Bank raised the industrial disput e and was also representing all the employees of the bank in this court in the s aid reference case, and the main grievances of all employees is that Smt. Renu L ahkar, Shri Raben Kalita and Shri Dihesh Chandra Deka hae been promoted illegall y by the management superseding many seniors including this applicant Shri Ashok Bhattacharjee. Thus, it is clear that Shri Ashok Bhattacharjee is also a victim of said alleged illegal promotion, and so, if the said promotion order would ha d been declared by this Court illegal, then, this applicant would have been enti tled to be promoted from Jr. Officer Gr. II to Jr. Officer Gr. I. Hence, it is e stablished that, this applicant was also a connected workman of the reference ca se which was pending before this Court and so, he was also concerned workman of the reference Case No. 13/2007. Therefore, the plea of the opposite party side t hat his applicant is not connected of that reference case is not sustainable. Ac cordingly, I hold that the present petitioner was concerned workman of Ref. Case No. 13/2007.

#9. It is already found that his applicant was also a concerned workman of the Re fernce Case No. 13/2007, which was pending before this Court, so, he must be dee med as a concerned workman of the industrial dispute that was raised by the Empl oyees’ Union before the Assistant Labour Commissioner, vide their complaint date d 11.04.2006. It is already found that before the Assistant Labour Commissioner (Conciliation officer), that proceeding was pending from 11.04.2006 to 02.04.200 7, but the management had not filed any petition before the Assistant Labour com missioner, Guwahati under Section 33 (2)(b) of Industrial Dispute Act, 1947 seek ing approval of the said dismissal order although they had dismissed the applica nt during the pendency of the proceeding before him. It is also found that the m anagement has also not filed similar type of petition before this Court although connecting to that industrial dispute, Reference Case No. 13/2007 has been pend ing before this Court. Thus, apparently, it is seen that the opposite party (man agement) of the said bank had dismissed the applicant without taking permission either form Assistant Labour Commissioner, Guwahati or from this Court, nor they had taken approval of the dismissal order either from Assistant Labour Commissi oner, Guwahati or from this Court.

#10. The charge framed against the petitioner is that he fraudulently, dishon estly and deliberately furnished wrong information as regards the deposits under daily deposit accounts and processed and forwarded loan proposals with an inten tion to provide wrongful gain to such persons and defraud the bank, and thereby committed gross negligence 3 and dereliction of duties which attracts penalties under Rule 35 and 36 of the Staff Services Rules of the Bank. Whereas, the dispu te in Reference Case No. 13/2007 is whether the management is justified in promo tion Smt. Renu Lahkar, Shri Raben Kalita and Shri Dinesh Ch. Deka superseding ma ny seniors. Thus, it is clear that the ground of dismissing the present petition er from service is not connected with the dispute of Reference Case No. 13/2007. Hence, the present case will be governed by Section 33(2)(b) of Industrial Disp ute Act, 1947. So as per that provision, the employer is required to file applic ation for approval of dismissal order before the Court where the reference case is pending, which means that on the very day of termination, the employer is to pay one month’s wage to the workman and to forward an application to the author ity before which the main case is pending, for approval of that order. It is fou nd that the management, in the instant case, neither applied for approval of dis missal order nor paid one month’s wage to the workman. Thus, apparently, it is s een that the management/opposite party did not comply with the provision of Sect ion 33(2)(b) of Industrial Dispute Act, 1947 & (cid:29)

#13. Inspite of the aforesaid finding recorded by the learned Presiding Offic er, Labour Court, it has been held that since the Reference Case No. 13/2007 ha d already been disposed of by holding the same to be not maintainable, the provi sion of section 33-A of the Act cannot be invoked and consequently the petitione r was not entitled to any relief. This finding has been recorded by the learned Labour Court being oblivious of the fact that the order of dismissal was passed during the pendency of the conciliation proceeding. If the order was bad at the very inception because of non-compliance of the provisions of Section 33(2)(b) o f the Industrial Dispute Act, 1947, any subsequent development in the Reference case could not have altered the said position. As per the requirement of Section 33(2)(b), during the pendency of any proceeding in respect of an industrial dis pute, the employer may, in accordance with the standing orders applicable to wor kman concerned in such dispute or where there are no such standing orders, in ac cordance with the terms of the contract, whether expressed or implied between hi m and the workman for any misconduct not connected with dispute, discharge or pu nish, whether by dismissal or otherwise, that workman; provided that no such wo rkman shall be discharged/dismissed unless he has been paid wage of one month an d 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.

#15. In the instant case, the petitioner was dismissed from service, admitte dly without payment of one month’s wage and also without filing an application t o the authority for approval of the action taken by the employer, the fact which has been admitted by the Bank Management with the seal of approval of the learn ed Labour Court. In spite of the said position, the learned Labour Court has pas sed the impugned award dismissing the plea of the petitioner that the impugned o rder of dismissal was void ab initio on the ground that the very entity of the U nion which had raised the dispute ceased to exist due to certain developments th at took place after initiation of the proceeding unmindful of the fact that at t he time of passing the impugned order of dismissal the Union was in existence re quiring compliance of the provision of Section 33 (2)(b) of the Industrial Dispu te Act.

#16. Mr. S. Chokraborty, learned counsel for the petitioner placing reliance on the two decisions reported in (2002) 2 SCC 244 (Jaipur Zila Sahakari Bhoomi B ikash Bank Ltd. Vs. Ram Gopal Sharma) and 2005 (3) GLT 432 (United Bank of India vs. Sidhartha Chakraborty), submitted that the aforesaid provision being mandat ory was applicable to the pending proceeding irrespective of the subsequent deve lopments attributed to the reference. In Ram Gopal Sharma (supra), the constitut ion Bench of the Apex Court held that not making an application under Section 33 (2)(b) seeking approval, is a clear case of contravention of the proviso of Sect In this connection, paragraph-15 of the judgment is reproduced below: ion 33(2)(b). It has further been held that an employer who does not make an app lication under Section 33(2)(b) or withdraws the one made, cannot be rewarded o f relieving him of the statutory obligation crated on him to make such an appli cation. 17. (cid:28)15. The view that when no application is made or the one made is withdrawn, the re 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 applicatio n once made before any order is made thereon, is a clear case of contravention o f the provision to Section 33(2)(b). An employer who does not make an applicat ion under Section 33 (2)(b) or withdraws the one made, cannot be rewarded by rel ieving him of the statutory obligation created on him to make such an applicatio n. 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 auth ority in the matter of granting approval of the action taken by him. Adherence t o and obedience of law should be obvious and necessary in a system governed by r ule of law. An employer by design can avoid to make an application after dismiss ing or discharging an employee or file it and withdraw before any order is passe d 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 mo re proceedings by making a complaint under Section 33-A or to raise another indu strial dispute or to make a complaint under Section 31(1). Such an approach dest roys the protection specifically and expressly given to an employee under the sa id proviso as against possible victimization, unfair labour practice or harassme nt because of pendency of industrial dispute so that an employee can be saved ha rdship or unemployment. (cid:29)

#18. Learned counsel for the respondent Bank argued that irrespective of whet her any application was made under Section 33 (2)(b) of the Act or not, the only conclusion that would follow is the penalty as envisaged under Section 31 of th e Act. This submission has no merit inasmuch as merely because the provision is available, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33A of the Act. Th is aspect of the matter has also been answered by the Apex Court in Ram Gopal Sh arma (supra) holding that the said provision is intended to serve different purp ose.

#19. In Sidhartha Chakraborty (supra), the Division Bench of this Court placi ng reliance on Ram Gopal Sharma (supra) upheld the judgment of the learned Singl e Judge interfering with the dismissal from service without complying with the provision of Section 33 (2)(b) of the Industrial Dispute Act, 1947. As discussed above, if the impugned order of dismissal was invalid, ille 20. gal and or void ab initio at the very inception, any subsequent development rela ting to reference in question cannot alter the said position. In the instant cas e when the petitioner was dismissed from service the conciliation proceeding was very much pending requiring approval of the authority as per the provision of S ection 33(2)(b) of the Act. No such approval was sought for. That being the posi tion, the impugned order of dismissal is void ab initio. In such a situation, ir respective of dropping of the particular reference due to non maintainability be cause of certain subsequent developments cannot relate back to the date on which the petitioner was dismissed from service.

#21. For all the aforesaid reasons, I am inclined to accept the case of the p etitioner. Accordingly the writ petition is allowed by setting and quashing the impugned award dated 27.07.2010 passed by the learned Presiding Officer, Labour Court in Misc. case No. 10/2007. Consequently the impugned orders dated 03.10.20 06 dismissing the petitioner from service and the order dated 03.09.2007 passed by the learned appellate authority upholding the said order of dismissal also st and interfered with. However, having regard to the nature of the allegation made against the petitioner involving financial irregularities and also the fact tha t it is only on technical ground the impugned orders have been set aside, it is hereby provided that the petitioner upon reinstatement in service forthwith purs uant to setting aside and quashing of the impugned orders shall not be entitled to any back wages. However, his continuity in service shall be maintained. It wi ll also be open for the Bank Management to take action in the matter in accordan ce with law. 22. ever, any order as to costs. The writ petition is allowed to the extent indicated above, without, how