PRANAB KUMAR CHATTOPADHYAY,J. - (1.) The respondents herein filed an application before the learned Tribunal under section 33(2)(b) of the Industrial Disputes Act, 1947 for approving the order of dismissal of the appellant herein from service. The appellant, however, filed a written statement before the learned Tribunal in connection with the said application stating therein that no proceeding was pending before the learned Tribunal at the material point of time. In terms of section 33(2)(b) of the Industrial Disputes Act, 1947, during the pendency of any proceeding in respect of an industrial dispute, the employer may for any misconduct not connected with the pending dispute, discharge or punish the workman. The aforesaid provision of section 33(2)(b) of the Industrial Disputes Act, 1947 is set out hereunder: "33(2)(b) : for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman : 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".
(2.) In the instant case, no proceeding was pending before the learned Tribunal in relation whereof an application could be filed under section 33(2)(b) of the Industrial Disputes Act, 1947 by the employer. The employer, namely, the respondent No.1 herein under misconception filed the aforesaid application under section 33(2)(b) of the Industrial Disputes Act, 1947 for the purpose of obtaining approval of the order of dismissal of the appellant without realising that there was no pending industrial dispute before the said learned Tribunal. However, subsequently,the said employer, namely, the respondent No.1 herein filed an application before the learned Tribunal for withdrawal of the previous application filed under section 33(2)(b) of the Industrial Disputes Act, 1947. The learned Tribunal allowed the aforesaid prayer of the appellant for withdrawal of the application upon appreciating the facts that no industrial dispute was pending before the learned Tribunal, but unfortunately, imposed costs. The said order of the learned Tribunal was thereafter challenged before this Court by the respondent No.1 by filing a writ petition which was finally disposed of by the learned Single Judge by the impugned judgment and order under appeal whereby the said learned Single Judge quashed the order regarding the payment of costs by the respondent No.1 herein.
(3.) We find no error and/or infirmity in the aforesaid decision of the learned Single Judge as we are satisfied that the application filed by the respondent no.1 herein under section 33(2)(b) of the Industrial Disputes Act, 1947 was not maintainable in view of the admitted position that no proceeding was pending before the learned Tribunal which is a pre-condition for entertaining an application under section 33(2)(b) of the Industrial Disputes Act, 1947.;