D.K.Seth, J - (1.) This appeal is preferred against an order dated 23rd of May, 2003 passed by the learned Single Judge in C. R. 14596(W) of 1984 setting aside the order of the learned Tribunal and granting permission in terms of section 33(2)(b) of the Industrial Disputes Act, 1947 for removal of the employee pursuant to a finding of guilt, unconnected with the dispute pending before the learned Tribunal, with a direction for payment of subsistence allowance from the date of suspension, namely, 23rd of September, 1972, till the date preceding the date of the order of removal. Submission of the Appellant/Employer:
(2.) The learned Counsel for the appellant points out that the approval contemplated under section 33(2)(b) does not postulate any further action or direction on the part of the learned Tribunal except grant of approval on the action already taken. If the learned Tribunal cannot pass such order except granting of approval or refusing approval, in a writ proceeding against an order passed by the learned Tribunal, the High Court cannot assume jurisdiction and pass any other order if it approves the action. The question that subsistence allowance has not been paid has not been established and was not a ground agitated before the learned Tribunal, therefore, the same cannot be a fact to avail of any direction from the High Court. 2.1. The learned Counsel for the appellant also draws our attention to the order of the learned Tribunal that the learned Tribunal had refused approval on two grounds, first that there was a conciliation before the Conciliation Officer in relation to another dispute in which no application under section 33(2)(b) was made before the said Conciliation Officer and second that no order of removal was passed by the order dated 21st of May, 1973 on the ground that the order was supposed to take effect on 24th of May, 1973. On both these grounds the learned Tribunal was wrong and it was rightly held so by the learned Single Judge while setting aside the order of the learned Tribunal, except however, the direction for payment of subsistence allowance and to remove the respondent from service upon payment of subsistence allowance, which means, passing of a fresh order at a future date which cannot come within the contemplation of section 33(2)(b). Submission of the respondent/workman :
(3.) The learned Counsel for the respondent/workman, on the other hand, points out that the learned Single Judge was wrong in granting approval under section 33(2)(b) in respect of an order which is yet to take effect. According to him, no order of removal was passed on the date when the application was made and unless an order of removal is passed simultaneously with the filing of the application, the compliance of section 33(2)(b) cannot be satisfied. Therefore, there was no application of the provision contemplated under section 33(2)(b). If one of the ingredients, as has been held by the Apex Court, is not satisfied in that event, the approval would be wholly unwarranted. He also contends that absence of any application under section 33(2)(b) before the Conciliation Officer is also a valid ground for refusing approval by the learned Tribunal. He further contends that the removal was proposed to be effective from 24th of August, 1973 but this was pointed out to be a misprint in the paper book: the order of removal was to take effect from 24th of May, 1973 which is available from other papers on record in the paper book. According to him, since the approval is being accorded by the High Court at such a late stage, the workman is entitled to subsistence allowance till the order becomes effective. Absence of application under section 33(2)(b) before the Conciliation Officer : The effect:;