PARIHAR, J. - (1.) PETITIONER has challenged the order dated 17. 4. 2003 passed by the Industrial Tribunal, Jaipur, by which while rejecting the application filed by the petitioner under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (hereinafter to be referred as the Act) the Tribunal has refused to approve the termination order dated 23. 2. 1993 so far as it relates to respondent No. 1, the concerned workman.
(2.) THE Brief facts of the case are that the services of the concerned workman were terminated vide order dated 23. 2. 1993. Since an industrial dispute in regard to general demands was pending before the Industrial Tribunal, Jaipur, the petitioner, as per provisions of Section 33 (2) (b) of the Act submitted an application for approval before the Industrial Tribunal after due compliance of the provisions. Though there is no finding in regard to non-compliance of mandatory provisions of Section 33 (2) (b) of the Act, however, the Tribunal held that the departmental inquiry in the present matter was not fair and proper vide order dated 24. 6. 1997. On permission been sought, the petitioner was allowed to lead fresh evidence to prove the charges against the concerned workman before the Tribunal itself. During the pendency of further proceedings, on an application been filed by the concerned workman, the Tribunal directed the petitioner to pay 50% of the wages as interim relief to the concerned workman vide order dated 1. 9. 1999. THE final arguments were heard and order was reserved on 24. 9. 2002. Thereafter it appears that the case was again listed for arguments on 17. 10. 2002. It was only on 4. 12. 2002 that an application was filed by the concerned workman that interim relief, as granted by the Tribunal, has not been paid to the concerned workman. Necessary directions for making payment were given on the same date, i. e. 4. 12. 2002. An application was filed by the petitioner on 13. 12. 2002 to review the order dated 4. 12. 2002. However, the application filed by the petitioner was dismissed vide order dated 20. 3. 2003. Yet another application was filed by the concerned workman on 28. 3. 2003 that since the interim relief, as granted by the Tribunal, has not been paid to him, the defence of the petitioner may be struck off. In reply to the application, it was submitted on behalf of the petitioner that after completion of evidence by both the parties, the final arguments were heard by the Tribunal on 24. 9. 2002 and order was reserved. Since the interim relief had already been paid to the concerned workman till the above date, the Corporation was not liable to pay interim relief for the period after the above date i. e. 24. 9. 2002 when the order was reserved after completion of evidence and arguments. After hearing learned counsel for the parties, the Tribunal, while striking off the defence of the petitioner in so far as not reading the fresh evidence led before the Tribunal to prove the charges against the concerned workman, rejected the application filed by the petitioner under Section 33 (2) (b) of the Act by the impugned order dated 17. 4. 2003. Before going into the merits of the case, it will be appropriate to first refer the scheme of the Act so far as dismissal and discharge are concerned. Section 10 of the Act provides for reference of dispute to Boards, Courts or Tribunal. When such reference is made under Section 10, the award is passed by the court concerned under Section 16 and thereafter the same is published by the appropriate government under Section 17 of the Act. So far as the present case is concerned, the relevant provisions are Section 33 of the Act. The provisions of Section 33 (2), relevant for the present purpose, are reproduced here as under: " 33 (2)During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman.- (a ). alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (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. "
(3.) IN case of contravention of Section 33, the concerned employee has been given a liberty to file a complaint in writing before the Board, Court or Tribunal concerned under Section 33-A of the Act. Apart from filing an application under Section 33-A, proceeding of prosecution of the persons contravening Section 33 has been provided under Section 31 of the Act. A bare reading of Section 33-A would further show that on receipt of such complaint, the court concerned shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit the award to the appropriate government and the provisions of the Act shall apply accordingly. Section 33-C (2) further gives a liberty to the concerned workman to file an application before the Labour Court for computation of money due in case he is entitled to receive the same from the employer. Section 33-C (2) is also reproduced here as under: " 33-C (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months. " In view of catena of judgments of Supreme Court as well as various High Courts, it is a settled proposition of law that in an application under Section 33 (2) (b), the Court or the Tribunal has a very limited jurisdiction. It has to see as to whether mandatory requirement has been fulfilled and further any prima facie case is made out against the concerned workman. While doing so, the Court or the Tribunal concerned can only either accept the application or reject the same. In case of acceptance of the application under Section 33 (2) (b), the order of dismissal shall relate back to the date on which it was passed by the employer. However, under such circumstances, the concerned workman has yet another opportunity of raising an industrial dispute before the Conciliation Officer in regard to termination of his services and the State Government has to refer the dispute to a Court or the Tribunal for adjudication accordingly under Section 10. In case of rejection of the application, the concerned workman shall be treated to be in service as if no order of dismissal has been passed by the employer and shall be entitled for all consequential benefits. It has further been held by the Supreme Court and various High Courts time and again that when a dismissal order is passed on the basis of misconduct, the Tribunal has to first decide the fairness of inquiry if any held against the concerned workman and in case the inquiry has been held not to be fair and proper, the permission, if sought, has to be granted by the Court or the Tribunal concerned to the employer to lead evidence afresh before the court concerned. Under Section 33 (2) (b), the Court or the Tribunal, after holding fresh inquiry, has again to see whether any prima facie case is made out against the concerned workman so as to accept or reject the application under Section 33 (2) (b ). However, the Court or the Tribunal cannot reduce the penalty so imposed. On the other side in case of a reference under Section 10, which may be even after acceptance of application under Section 33 (2) (b), the Labour Court or the Tribunal concerned has also power under Section 11-A to consider the gravity of misconduct and reduce or substitute the penalty of dismissal into any other lesser penalty. The same powers are not available to the Court or the Tribunal under Section 33 (2) (b ). ;