Amitava Lala, J. - (1.) In this writ petition the order of the Third Industrial Tribunal is impugned hereunder. The Tribunal allowed to withdraw the application of the West Bengal State Electricity Board, the management hereunder under Section 33(2)(b) of the Industrial Disputes Act on the basis of their prayer. Such Section applies for approval of the management from the Industrial Court required to take any action against any workman not connected with the pending dispute before it. The contention of the Board is that the application under Section 33(2)(b) was made with an abundant precaution to avoid confusion about pendency of reference under Section 10 of the Industrial Disputes Act before the Tribunal and when found that no dispute is pending before it on the date of dismissal of the workman, an application was made for withdrawal of the earlier application. Subsequent application was filed in the month of January, 2003 when the earlier application was filed on 7th February, 2002 by the Board on the basis of the two references of dispute being O.O. No. 5282/IRI/III-60/69 dated 17.07.1970 and O.O. Mp-5283- IR/IR/11I-60/69 dated 17.7.1970. However, in the paragraph II of the original application, a specific plea was taken by the Board about pendency of proceeding, which was strongly objected by the Union. Only after the objection being filed the Board took out the latter application for withdrawal. Therefore, it is to be understood by the Industrial Court whether making of such application and withdrawal is innocent approach or clever ploy on the part of the management to defraud the workman or to gain time. Prima facie, it is unbelievable that the management is unaware of pendency of any proceedings where they are the parties. Therefore why adequate compensation at par with the last drawn salary will not be given to the workman from the date of filing such application till its withdrawal of the same? These are the relevant questions for determination. I find from the cause title that reference of earlier proceedings is available there. It is not known to this Court whether the Tribunal verified the record or not. It appears that the Tribunal independently came to a conclusion that if any application for withdrawal is made, nobody can stop the Tribunal from passing any order in favour of the person, who are seeking for withdrawal. The Tribunal was forgetful that invocation of jurisdiction of the Court or Tribunal is the right of a litigant but withdrawal is not matter of right but subject to the leave to be granted by the Tribunal upon judicial scrutiny for any reason including element of fraud or abuse of process of law or not.
(2.) The learned Counsel appearing for the petitioner cited various judgments in support of his case. In AIR 1963 SC 1756 (P. II Kalyani v. M/s. Air France Calcutta) , the Supreme Court held that under this section, three things are to be considered, namely, (i) dismissal or discharge; (ii) payment of wages and (iii) making of an application for approval. In AIR 1966 SC 380 (Tata Iron & Steel Co. Ltd. v. N. Modak) , it was held by the Supreme Court that where as a result of the pendency of an industrial dispute between an employer and his employees, the employer is required to apply for approval of the dismissal of an employee under such Section, an application survives even after the main industrial disputes is meanwhile finally decided and an award was pronounced on it. The application is a separate proceeding and as an independent proceeding will be governed by such Section. Therefore, by disposal of the original proceeding, it will not automatically be ceased to take effect. An argument is made that assuming the industrial dispute, which was initiated in the year, 1970 is withdrawn or disposed of, it is of no effect in respect of the independent application under Section 33(2)(b) of the Act. On the other hand, non-availability of the proceeding initiated originally in 1970, even if disposed of, cannot take away the right of the Court in disposing the application under such Section independently.
(3.) Therefore, mere grant of leave to withdraw on the ground of non-availability of the original proceeding without awaiting all such questions is an erroneous finding. He further cited 1978 (2) SCC 144 (M/s. Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand & Anr. ) to establish that jural relationship between employer and employees awaits till approval of dismissal by the Tribunal. It was held in 1993 (3) SCC 429: [1993(4) SLR 338 (SC)] (S. Ganapathy & Ors. v. Air India & Anr. ) that by passing an order of discharge or dismissal de facto relationship of employer and employee is ended, but, not dejure, for that could happen when the Tribunal accords its approval. The approval gives final end of service. The application is to be ended within a period of three months from the date of receipt of such application. Time can be extended with recorded reasons. It is to be noted hereunder that the application awaited for disposal without reason for about one year. The very important judgment in this arena is 2002 (2) SCC 244 = 2002 (1) CLR 789: [2002(1) SLR 775 (SC)] (Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma & Anr.) where under five Judges' Bench of the Supreme Court resolved the question on the reference made by a two Judges' Bench under 1994 (6) SC 522. The Supreme Court categorically held that when no application is made or made and thereafter withdrawn, there 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. Therefore, non-making of an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is passed 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 once 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 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 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 33-A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33-A 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 victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.;