D.K. Seth, J. - (1.) Mr. Bikash Ranjan Bhattacharyya, learned Counsel for the petitioner, raised a very interesting question relying upon the decision in M.D. Tamil Nadu State Transport Corporation v. Neethivilangan Kumbakonam, reported in 2001 Lab. I.C. 1801. He contends that in the said decision no distinction has since been made with regard to the employer and the Principal or their ratio laid down therein applies to all such situation irrespective of the character of the employer. The reason for his contention is that the moment the permission under Section 33(2)(b) of the Industrial Disputes Act is refused and the workman is deemed to be in employment his entitlement for salary for the period between the date of termination and the date of refusal of approval or till he resumes duty is a result of a statutory order passed by the authority casting a statutory liability on the employer to treat the employee as in service and pay all dues to him. Therefore, it is open to a person to enforce such right through Writ Jurisdiction and such writ petition cannot be turned out on the ground that the employer is a private employer and not a "State". In support of this contention he has relied on the decision in Arjed Ali Gazi v. State of West Bengal, reported in 1990 (2) C.H.N. 284 to contend that even a private employer if saddled with certain statutory liability, as in the case of Co-operative Society, in that event, such statutory liability can be enforced through Writ Jurisdiction. He also relied on the decision in the case of M/s. Sanghi Technologies Pvt. Limited v. Union of India & Ors., reported in AIR 1996 Delhi 74 for the same proposition. He further relied on the decision in Gouranga Dhar & Ors. v. State of West Bengal & Ors., reported in 1996 Lab. I.C. 371 in order to contend that it is not the character that is important. It is only the liability that is relevant. If it is a statutory liability, in that event, it can be enforced through Writ Jurisdiction.
(2.) The learned Counsel for the respondent/employer, on the other hand, contends that the petitioner having resorted to Section 33(c)(2), it is no more open to move this Writ Court and proceed with a parallel proceedings. According to him, the computation under Section 33(c)(2) is already made after the evidence by the parties are closed, only the final order is awaiting. In view of the absence of Presiding Officer the order has not been passed. Otherwise, it would have been passed by now. He then contends that Section 33(2)(b) does not provide any consequence and thereby does not cast any liability on the employer. It only prohibits termination of employment in respect of cases where the employee is connected with a pending proceedings. In case permission is withheld, in the eye of law, there was no termination. The termination, according to him, was a fiction in law. When the approval is refused by reason of refusal of approval, there remains no termination. Therefore, the relationship, continues and the liability of the employer is that of general liability, not a statutory liability. He then contends that the decision in M.D. Tamil Nadu State Transport Corporation v. Neethiveelangan Kumbakonam also does not give any directions for payment and such payment can be made only after computation which cannot be done in exercise of Writ Jurisdiction. That apart the said decision was given in a case where there was no dispute with regard to the character of employer which was admittedly a 'state' and as such the Court was not called upon to decide whether such enforcement could be made through Writ Petition even in a case of a private employment. According to him, every judgment has to be read in the context in which it is delivered.
(3.) Mr. Manick Chandra Das, learned Counsel for the Respondent/State, on the other hand, supports the contention of Mr. Bhattacharyya and submits that in such case the writ Court can exercise such jurisdiction whenever it becomes a question of computation in that event, in all fairness it should have left with the Tribunal or Labour Court to compute the amount but such jurisdiction could be exercised where the amount is not in dispute.;