Holding

Non‑approval of a dismissal under the proviso to Section 33(2)(b) and failure to make the required application both render the dismissal order void/inoperative from the date it was passed.

Summary

The Supreme Court examined the dismissal of Ram Gopal Sharma by Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd while an industrial dispute was pending. The employer had filed an application for approval of the dismissal under the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947, but the application was rejected because the statutory conditions, including payment of one month's wages, were not complied with. The Court held that non‑approval of the dismissal order renders the order ineffective from the date it was passed, making it inoperative and deeming the employee to have continued in service with entitlement to all benefits. It further ruled that failure to make the required application, or withdrawal of such an application, also makes the dismissal order inoperative. Consequently, no separate reinstatement order is required, and the employer’s appeal was dismissed.

Issues considered

Whether non‑approval of a dismissal order under the proviso to Section 33(2)(b) makes the order ineffective from the date of dismissal or from the date of non‑approval.
Whether failure to make an application for approval under Section 33(2)(b) renders the dismissal order inoperative.

Legislation cited

Industrial Disputes Act, 1947s. 10(1)(d), s. 31(1), s. 33(2)(b), s. 33A

Subjects

Industrial disputeDismissalSection 33(2)(b)Approval of dismissalInoperative orderReinstatementStatutory interpretationLabour law

Judgment

A JAIPUR ZILA SAHAKA~I BHOOMI VIKAS BANK LTD.
v.
SHRI RAM GOPAL SHARMA AND ORS.

JANUARY 17, 2002

B (S.P. BHARUCHA, CJ., SYED SHAH MOHAMMED QUADRI,
N. SANTOSH HEGDE, S.N. VARIAVA AND
SHIVARAJ V. PATIL, JJ.]
Labour Laws

C Industrial Disputes Act, 1947 : Section 33(2)(b) and proviso thereto.

Non-approval of dismissal Order under the Proviso-Effect of-Held,
Order of dismissal becomes ineffective from the date it was passed and not
from the date of non-approval of the Order of dismissal-Employee is deemed
to have continued in service entitling him to all the benefits available-Specific
D Order for his re-instatement is not required.

Order ofdismissal-Failure to make application seeking approval under
the proviso-Effect of-Held, such failure renders Order of dismissal .. "
inoperative.

E Interpretation of Statutes.

Rule of interpretation-No part ofstatute to be construed as unnecessary
or superfluous-It should advance legislative intent and serve the purpose for
which it is enacted.

F The questions involved in these appeals are if approval is not granted
under proviso to Section 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 under the proviso to Section 33(2)(b)
G would render the order of dismissal inoperative.

Dismissing the appeals, the Court

HELD : I. The non-approval of the Order of dismissal under proviso
to section 33(2)(b) of the Industrial Disputes Act, 1947 renders, the
H dismissal order ineffective from the date it was passed and not from the
284
JAIPUR ZILA SAHA KARI BHOOMI VIKAS BANK LTD. v. R.G. SHARMA 285
date of non-approval of the Order of dismissal and failure to make A
application under proviso to section 33(2)(b) seeking approval of dismissal
would render the order of dismissal inoperative. [288-D)

Strawboard Manufacturing Co. v. Gobind, [1962) Suppl. 3 SCR 618
and Tata Iron & Steel Co. Ltd v. S.N. Modak, [1965) 3 SCR 411, relied on.
B
S. Ganapathi & Ors. v. Air India & Anr., JT (1993) 4 SC 10; P.H.
Kalyani v. Mis. Air France Calcutta, [1964) 2 SCR 104 and Jaipur Zita
Sahakari Bhoomi Vikas Bank Ltd v. Ram Gopal Sharma and Anr., [1994) 6
sec 522, referred to.
Punjab Beverages Pvt. Ltd, Chandigarh v. Suresh Chand & Anr., [1978) C
3 SCR 370, overruled.

2.1. The proviso to section 33(2)(b) from its very unambiguous and
clear languages, is mandatory. Any employer who contravenes the
provisions of section 33 invites a punishment under section 31(1). If an D
employer desires to take benefit of section (33)(2)(b) for passing an order
of discharge of dismissal of an employee, he has also to take the burden
'· of discharging the statutory obligation. placed on him under the proviso
to section 33(2)(b). 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 E
inoperative or void, defeats the very purpose of the proviso and it becomes
meaningless. [294-B-C)

2.2. It is well settled rule of interpretation that no part of statute
shall be construed as unnecessary or superfluous. The proviso to section
33(2)(b) cannot be diluted or disobeyed by an employer. Employer cannot F
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 ttie
legislative intent and serve the purpose for which it is made rather than G
to frustrate it [294-C-Df

2.3. 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 H
286 SUPREME COURT REPORTS [2002] I S.C.R.

A cannot be permitted to use the proviso 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. It is held that an order of
B discharge or dismissal passed by the employer without complying with the
requirements of the proviso is not void or inoperative, the employer may
with impunity discharge or dismiss a workman. [294-E-F]

2.4. Where an application is made under section 33(2)(b) proviso,
the authority before which the proceeding is pending for approval of the
C 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 and nothing more is
D required to be done by the employee. The order of dismissal or discharge
passed invoking section 33(2)(b) brings an end the 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. This relationship comes to an end
E de Jure only when the authority grants approval. 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 employee's reinstatement. (294-G-H; 295-A)

2.5. If approval is given by the authority and if the employee is •
F aggrieved by such an approval, he is entitled to make a comph1int under
section 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
G 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. Further 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
H under Section 33A and that the order of dismissal or discharge becomes
JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. v. R.G. SHARMA 287
invalid or void only when it is set aside under section 33A and that till A
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, B
enabling an employee to make a complaint, if aggrieved by the order of
the approval granted. (295-B-F)

2.6. 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 C
33(2)(b), driving the employee to have recourse to one or more proceeding
by making a complaint under section 33A 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 victimizanon, unfair labour
practice or harassment because of pendency of industrial dispute so that D
an employee can be saved from hardship of unemployment. Further more
.. 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 E
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. (295-H; 296-Af

2.7. Merely because penal provision is available under section 31 or F
a workman has a further remedy under section 33A 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 33A.
There is nothing in sections 31, 33 and 33A of the Act to suggest otherwisi;
even reading them together in the context. These sections are intended to
serve different purposes. (296-Ef G
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 87-88 of
1986.

From the Judgment and Order dated 1.3 .85 of the Rajasthan High Court
in L.C. Nos. 213/82 and 221 of 1980. H
288 SUPREME COURT REPORTS [2002] I S.C.R.

A Yashank Adhyaru, N.B. Shetye, (A.C.) (N.P.), Hemant Shanna, Ms.
Indu Sharma, V.J. Francis, A. Radhakrishnan, P.I. Jose, Jenis, Nikhil Nayyar,
S.S. Shamshery, Bhupender Yadav, R.C. Kohli, V.S. Desai-in-person for
Respondent No. 3, S. Sukumaran, Romesh Babu M.R., Ms. Divya Nair, P.H.
Parekh, Sanjay Parikh, Abinash K. Misra and R.R. Chandrachud for the
B appearing parties.

The Judgment of the Court was delivered by

SHIV ARAJ V. PATIL, J. From the Order of Reference made in Jaipur
Zita Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Anr.,
c [1994] 6 sec 522, the question that arises for consideration is:

"If the approval is not granted under Section 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 under
Section 33(2)(1') would not render the order of dismissal inoperative?"
D
Finding conflict of views expressed by Benches of three learned Judges
of this court on the question, the Reference is made.
.
The two Benches consisting of three learned Judges in (I) Strawboard
E Manufacturing Co. v. Gobind, [1962] Supp. 3 SCR 618 and (2) Tata Iron &
Steel Co. Ltd. v. S.N. Modak, (1965] 3 SCR 41 l have taken the view that if
the approval is not granted under Section 33(2)(b) of the Industrial Disputes
Act, 1947 (for short 'the Act'), the order of dismissal becomes ineffective
from the date it was passed and, therefore, the employee becomes entitled to
wages from the date of dismissal to the date of disapproval of the application.
F Another Bench of three learned Judges in Punjab Beverages Pvt. Ltd.,
Chandigarh v. Suresh Chand & Anr., (1978] 3 SCR 370 has expressed the
contrary view that non-approval of the order of dismissal or failure to make
application under Section 33(2)(b) would not render the order.of dismissal
inoperative; failure to apply for approval under Section 33(2)(b) would only
G render the employer liable to punishment under Section 31 of the Act and the
remedy of the employee is either by way of a complaint under Section 33A
or by way of a reference under Section I 0(1 )( d) of the Act. It may be stated
here itself that there was no reference in this decision to the two earlier
decisions aforementioned.

H A Bench of two learned Judge in S. Ganapathi & Ors. v. Air India &
JAIPURZILA SAHAKARI BHOOMI VIKAS BANK LTD. v. R.G. SHARMA [PATIL, J] 289

Anr., JT (1993) 4 SC 10 has followed the view taken in Strawboard (supra) A
and Tata Iron & Steel Co. (supra) and has held that the order of dismissal
passed without the approval under Section 33(2)(b) remains in inchoate
condition but this decision has not noticed the decision in Punjab Beverages
(supra).

Rival submissions were made on behalf of the .parties in support of the B
respective contentions in the light of aforementioned decisions and referring
to and relying on the provisions contained in Sections 31, 33 and 33A of the
Act.

Answer to the question on which conflicting decisions are rendered, as C
noticed above, depends on a fair reading and proper interpretation of Section
33(2)(b) of the Act. Prior to the amendment of 1956, provision contained in
Section 33 corresponded to the present Section 33(1) only. The object behind
enacting Section 33, as it stood before it was amended in 1956, was to allow
continuance of industrial proceedings pending before any authority/court/
tribunal prescribed by the Act in a peaceful :i.tmosphere undisturbed by any D
other industrial dispute. In course of time, it was felt that unamended Section
33 was too stringent for it placed a total ban on the right of the employer to
make any alteration in conditions of service or to make any order of discharge
or dismissal even in cases where such alteration in conditions of service or
passing of an order of dismissal or discharge, was not in any manner connected
with the dispute pending before an industrial authority. It appears, therefore, E
that Section 33 was amended in 1956 permitting the employer to make changes
in conditions of service or to discharge or dismiss an employee in relation to
matters not connected with the pending industrial dispute. At the same time,
it seems to have been felt that there was need to provide some safeguards for
a workman who may be discharged or dismissed during the pendency of a F
dispute on account of some matter unconnected with the dispute. This position
is clear by reading re-drafted expanded Section 33 in 1956 containing five
sub-sections. For the present purpose, we are concerned with the proviso to
Section 33(2)(b). The material and relevant portion of Section 33 reads:-

"Conditions of service, etc. to remain unchanged under certain G
circumstances during pendency of proceedings. - (I) ............. .

(2) During the pendency of any such proceeding in respect of an
industrial dispute, the employer may, in accordance with standing
orders applicable to a workman concerned in such dispute or, where
there are no such standing order, in accordance with the terms of the H
290 SUPREME COURT REPORTS (2002] I S.C.R.

A contract, whether express or implied, between him and the workman-

(a) ........................ ..

(b) for any misconduct not connected with the dispute, discharge or
punish, whether by dismissal or otherwise, that workman;

B 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."
c The proviso expressly and specifically states that no 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. It is
clear from the proviso to Section 33(2)(b) that the employer may pass an
D order of dismissal or discharge and at the same time make an appli~ation for
approval of the action taken by him. In the Strawboard case (supra) dealing
with the contention that if the employer dismisses or discharges a workman
and then applies for approval of the action taken and the tribunal refuses to
approve the action, the workman would be left with no remedy as there is no
provision for reinstatement in Section 33(2), it is held that "if the tribunal
E does not approve of the action taken by the employer, the result would be
that the action taken by him would fall and thereupon the workman would
be deemed never to have been dismissed or discharged and would remain in
the service of the employer".

F A Constitution Bench of this Court in the case of P.H. Kalyani v.
Mis. Air France Calcutta, [1964] 2 SCR 104 referring to Strawboard has
observed thus:-

"The main point which was raised in this appeal is now concluded by
the decision of this Court in the Straw Board Manufacturing Co.
G limited, Saharanpur v. Govind. This Court has held in that case that
"the proviso to Section 33(2)(b) contemplates the three things
mentioned therein, namely, (i) dismissal or discharge, (ii) payment of
wages, and (iii) making of an application for approval, to be
simultaneous and to be part of the same transaction so that the
employer when he takes the action under Section 33 (2) by dismissing
H or discharging an employee, should immediately pay him or offer to
JAIPURZILA SAHAKARI BHOOMI VIKAS BANK LTD.,.. R.G. SHARMA [PATIL, J.} 291

pay him wages for one month and also make an application to the A
tribunal for approval at the same time. It was further held that "the
employer's conduct should show that the three things contemplated
under the proviso, are parts of the same transaction; and the question
whether the application was made as part of the same transaction or
at the same time when the action was taken would be a question of B
fact and will depend upon the circumstances of each case."

In the case of Tata Iron and Steel Co. (supra) it is reiterated and stated
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 C
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. D
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 E
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."

In the same judgment, it is also stated that "order of dismissal or
discharge being incomplete and inchoate until the approval is obtained, cannot F
effectively terminate the relationship of the employer and employee and that
ifthe approval is not accorded by the tribunal, the employer would be bound
to treat the respondent as its employee and paying his full wages for the
period even though the employer may subsequently proceed to terminate the
services of the respondent". G
Per contra, in Punjab Beverages (supra), it is held that an order
dismissing the workman contravening Section 33(2)(b) shall not be void and
inoperative and hence the workman was not entitled to maintain the application
for determination and payment of wages under Section 33(C)(2); a workman
can proceed under Section 33(C)(2) only after the tribunal has adjudicated on H
-~
292 SUPREME COURT REPORTS [2002) I S.C.R.

A a complaint under Section 33A or on a reference under Section 10 that the
order of discharge or dismissal was not justified and has set aside that order
and reinstated the workman; rejecting a contention that the workman would
be left without any remedy on the interpretation that contravention of Section
33 does not invalidate an order of discharge or dismissal, it is stated that if
B the employer contravenes Section 33, he would be liable to punishment under
Section 31 (I) and moreover the aggrieved workman can act under Section 10
or he can make a complaint to the tribunal under Section 33A; it was held
that the withdrawal of the application made under Section 33(2)(b) stands on
the same footing as if no application thereunder has been made; if there was
no decision on merit of the said application, it cannot be said that the approval ...
C has been refused by the Tribunal.

The facts of the said case are: the workman was dismissed from service
holding him guilty after inquiry by an order dated 23rd December, 1974.
Since an industrial dispute was pending at that time, in view of the provisions
contained in Section 33(2)(b), the employer approached the Industrial Tribunal
D at Chandigarh before which the industrial dispute was pending for approval
of the action taken. However, that application was dismissed as withdrawn on
4th September, 1976. Then the workman demanded full wages from the
employer from the date of his suspension till the date of demand contending
that the action of the employer dismissing him from service was not approved
E by the Tribunal; he continued to be in service and was entitled to all the
emoluments. Since the employer did not respond, he made an application to
the Labour Court under Section 33(C)(2) for determination and payment of
the amount of wages due to him. The employer resisted the said application
inter alia on the ground that the application under Section 33(2)(b) having ..
been withdrawn, the effect of which was as if no application had been made
F at all; even though there was contravention of Section 33(2)(b) in not making
an application seeking approval, it did not render the order of dismissal void
ab initio and it was merely illegal and unless it is set aside in an appropriate
proceeding taken by the employee under Section 33A or in a reference under
Section 10, the Labour Court had no jurisdiction under Section 33 (C)(2) to
G direct payment of wages to the first respondent on the basis as ifhc continued
in service. The Labour Court rejected this contention and allowed the
application of the workman filed under Section 33(C)(2). This Court, allowing
the appeals by special leave, held that the employer contravened Section
33(2)(b) in dismissing the workman but such contravention did not have the
effect of rendering the order of dismissal void or inoperative and hence the
H workman was not entitled to maintain the application under Section 33(C)(2).
JAIPURZILA SAHAKARI BHOOMI VIKAS BANK LTD. v. R.G. SHARMA [PATIL, J] 293
However, the amounts ordered to be paid by the Labour Court were treated A
as compensation instead of wages to meet the demands of social justice. The
reasons recorded in taking such a view are: (i) Section 33 in both its limbs
undoubtedly uses mandatory language and Section 31 (I) makes it penal for
the employer to commit a breach of the provisions of Section 33 and, therefore,
if Section 33 stood alone, it might lend itself to the construction that any B
action by way of discharge or dismissal taken against workman would be
void if it is in contravention of Section 33. But Section 33 cannot be read in
isolation, for the intention of the Legislature has to be gathered not from the
one provision but from the whole of the statute. If Sections 33 and 33A are
read together, it is clear that legislative intent shall not invalidate an order of
discharge or dismissal passed in contravention of Section 33 despite the C
mandatory language implied in the Section and the penal provision enacted
in Section 31 ( 1). (ii) The mere contravention of Section 33 by the employer
will not entitle the workman to an order of reinstatement because inquiry
under Section 33A is not confined only to "the determination as to the
contravention of Section 33, but even if such contravention is proved, the
Tribunal has to go further and deal also with the merits of the order of D
discharge or dismissal. (iii) If the contravention of Section 33 were construed
#-,
as having invalidating effect of the order of discharge or dismissal, Section
33A would be rendered meaningless and futile, because in that event the
workman would invariably prefer to make an application straightaway under
Section 33(C)(2) even before adjudication whether the order of discharge or E
dismissal is void and inoperative. (iv) The contention of the workman that in
the absence of approval for action taken under Section 33(2)(b), the order of
dismissal was inoperative, was rejected on the ground that withdrawal of the
. application made for approval stood on the same footing as if no application
under Section 33(2)(b) has been made at all; since there was no application
made under Section 33(2)(b), the Tribunal had no occasion to apply its mind F
to consider whether the dismissal of workman amounted to victimization or
unfair labour practice. Hence, it was difficult to say that the approval has
been refused by the Tribunal.

The proviso to Section 33(2)(b), as can be seen from its very G
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 under S.31(1) with imprisonment for a term
which may extend to six months or with fine which may extend to Rs. 1000 H
294 SUPREME COURT REPORTS [2002] I S.C.R.

A 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 other
way, the said conditions being mandatory, are to be satisfied if an order of
..
discharge or dismissal passed under Section 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
B 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
C 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 pennitted to take advantage of his own wrong. The interpretation
of statute must be such that it should advance the legislative intent and serve
D the purpose for which it is made rather than to frustrate it. The proviso to
Section 3)(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 pennitted to use
E 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
F void or inoperative, the employer may with impunity discharge or dismiss a
workman.

Where an application is made under Section 33(2)(b) proviso, the
authority before which the proceeding is pending for approval of the action
G 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
H invoking Section 33(2)(b) dismissing or discharging an employee brings an
JAIPURZILA SAHAKARI BHOOMI VIKAS BANKLTD. v. R.G. SHARMA [PATIL, I.] 295

end of relationship of employer and employee from the date of his dismissal A
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 dismfssal
had never been passed. Consequence of it is that the employee is deemed to B
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 33A challenging the order granting approval on C
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 D
where the order of discharge or dismissal is inoperative for contravention of
the mandatory conditions contained in the proviso or where the apprnval is
refused, a workman should still make a complaint under Section 33A and
that the order of dismissal or discharge becomes invalid or void only when
it is set aside under Section 33A and that till such time he should suffer E
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 F
granted.

The view that when no application is made or the one made is withdrawn,
there is no order 0f refusal of such application on merit and as such the order
of dismissal or discharge does not become void or inoperative unless such an G
order is set aside under Section 33A, 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 H
296 SUPREME COURT REPORTS [2002) I S.C.R.

A 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
B 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 33A notwithstanding the contravention of Section
33(2)(b) proviso, driving the employee to have recourse to one or more
proceeding by making a complaint under Section 33A or to raise another
C industrial dispute or to make a complaint under Section 31 (I). 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.

D 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
E remedy under Section 33A 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 33A. There is nothing in Sections 31,
33 and 33A to suggest otherwise even reading them together in the context.
These Sections are intended to serve different purposes.

F As already noticed above, the Constitution Bench of this Court in P.H.
Kalyani v. Mis. Air France Calcutta has referred to Strawboard Manufacturing
Co. v. Gobind and approved the view taken in the said decision as regards
the requirements of the proviso to Section 33(2)(b ). Unfortunately in Punjab
Beverages Pvt. Ltd. v. Suresh Chand, the earlier two cases of Strabboard and
G Tata Iron & Steel Co. were not noticed touching the question. It is true that
in S. Ganapathi & Ors. v. Air India and Anr., there is no reference to Punjab
Beverages. But the view taken· in two earlier decisions of Strabboard and
Tata Iron & Steel Co. is followed on the question and rightly so in our
opinion.

H In view of what is stated above, we respectfully agree with and endorse
JAIPURZILA SAHAKARI BHOOMI VIKAS BANK LTD. v. R.G. SHARMA [PATIL, J.] 297

the view taken in the case of Strawboard and Tata Iron & Steel Co. and A
further state that the view expressed in Punjab Beverages on the question is
not the correct view. The question raised in the beginning of this judgment
is answered accordingly.

In these appeals, respondent No. I was employed as Clerk-cum-Cashier
with the appellant. He was dismissed from service. As certain proceedings B
were pending before the Industrial Tribunal, Jaipur, an application seeking
approval of the Tribunal for the said dismissal was submitted by the appellant
before the Tribunal under Section 33(2)(b). The said application was contested
on various grounds by the respondent including that the appellant-Bank had
failed to comply with the provisions of Section 33(2)(b) as salary for one C
month was not paid. The Tribunal, on facts, found that the appellant failed
to comply with the provisions of Section 33(2)(b) and in that view dismissed
the application. The appellant challenged the order of the Tribunal before the
High Court in writ petition No. 666 of 1980. The same was dismissed
concurring with the order passed by the Tribunal.
D
In the view we have taken, the contentions raised in these appeals do
not help the appellant. We find no merit in these appeals. Consequently,
these are dismissed. No costs.

N.J. Appeals dismissed.