ASOPA, J. - (1.) AGAINST the order dated 25. 5. 2004 of rejecting the approval application u/sec. 33 (2) (b) of the Industrial Disputes Act, 1947 (in short `the act of 1947') filed by the RSRTC before the Industrial Tribunal, RSRTC filed a writ petition wherein notice was issued and on 27. 4. 2005 operation of the order dated 25. 5. 2004 was stayed.
(2.) THE respondent-workman has filed an application under Section 17-B of the Act of 1947 in the matter of stay of the operation of order of the Industrial Tribunal, Jaipur dated 25. 5. 2004 whereby termination of respondent workman vide order dated 4. 12. 1999 was not approved u/sec. 33 (2) (b) of the Act of 1947. No reply to the application has been filed by the respondent RSRTC. Submission of Mr. Gaur is that any interim or final determination of an industrial dispute as mentioned in Section 2 (b) of the Act of 1947 covered either approving or not approving the order of termination made by the Labour Court/industrial Tribunal, Sec. 2 (b) of the Act of 1947 is as under: " 2 (b) "award" means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10a;" Further on rejecting the approval application of the management the consequence is that the respondent-workman is entitled to reinstatement as if no termination order has been passed against him. But, on account of the stay of the rejection of the approval vide order dated 27. 4. 2005 results in pendency of application u/sec. 33 (2) (b) of the Act of 1947 and dismissal order again becomes incomplete and inchoate and would result in keeping the workman out of employment. Mr. Gaur relied on a judgment of this Court reported in Hotel Mansingh vs. Judge, Industrial Tribunal, Jaipur and another reported in 2000 (2) RLR 126. Relevant portion of the said judgment as contained in para 7 to 10 is as follows: " 7. The counsel for the petitioner relies on an order passed on 17-B application in Civil Writ Petition No. 3964/1998 decided on 27. 8. 99 by me wherein without giving any reason, I had summarily dismissed the application moved under Section 17-B in the writ petition where the Labour Court had declined to approve the application under Section 33 (2) (b) of the Act. I have gone through the order, in my opinion and I must confess that the order does not contain any reasons and needs reconsideration. The order under Section 17-B passed in SB CWP No. 3964/98 needs to be recalled and for this purpose, I will direct the Registry of this Court to re-list the said case for passing an appropriate order. 8. The counsel for the writ petitioner submits that provisions of Section 17-B of the I. D. Act are made to be applicable only in the case where the matter is decided by the Labour Court/industrial Tribunal when it is referred to it as an industrial dispute under Section 2k or 2a of the Act for that purpose relies on the words `award' and `industrial Dispute' in Section 17-B itself. 9. The High Court had been giving directions in appropriate cases to pay maintenance or certain amount of pay drawn in the cases where employer challenges the award of the Labour Court when the workman is reinstated. The Legislature ultimately had come up by way of beneficial legislation by incorporating by way of amendment under Section 17-B. The Hon'ble Apex Court Court in the case of P. D. Sharma vs. State Bank of India as far back in 1969-I-LLJ-513 had categorically held that non-approval of the application by the Industrial Tribunal renders the action taken by the employer as void ab initio and the employee continues in service and his condition of service will also continue without any break as if the order in question had not been passed at all. 10. Had the order of non-approval passed by the Industrial Tribunal not been challenged, the consequence would have been that the non-petitioner workman continued to be in service as if no order has been passed as observed by the Hon'ble Supreme Court in the case of P. D. Sharma (supra ). If the argument of the learned counsel of the writ petitioner is tested when he says that Section 17-B shall only be made applicable to the cases where the Labour Court/industrial tribunal under a reference under Section 2 (K) or 2 (A) orders reinstatement of the workman in the Award and not otherwise; even though the consequent result in both the situations is the same i. e. workman of the employer continues to be in service on either of courts i. e. (i) if the application is not approved or (ii) if in the industrial dispute, award is passed of reinstatement. Can it be said that Legislation is meant to award interim maintenance/pay as provided under Section 17-B to only one category of persons, who are reinstated by award and not to others who are deemed to be in service by fiction of law itself? Obviously not. Section 17-B being beneficial legislation in my opinion, in case employer challenges the award or order passed by the Industrial tribunal or Labour Court, effect of which order is to put the workman back in service, the provisions of Section 17b shall be equally applicable and employer shall be bound to comply with the conditions of Section 17-B of the Act in case such challenge is made, subject to final result of the writ petition. " On the same very issue, there is judgment of the constitutional bench reported in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and others 2002 (2) SCC 244 = (RLW 2002 (3) SC 369 ). Relevant portion of para 14 is as follows: " 14. where an application is made under Section 33 (2) (b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33 (2) (b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33a challenging the order granting approval on any of the grounds available to him. Section 33a is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge of dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33a and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33a and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33 (2) (b ). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33 (2) (b), Section 33a would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. " Mr. J. M. Saxena, counsel for the RSRTC submits that this Court in order dated 20. 1. 2004 passed in SBCWP No. 2290/1998 RSRTC vs. Nathu Singh has held that in the matter of approval application u/sec. 33 (2) (b) of the Act of 1947, application under Section 17-B of the act of 1947 is not at all maintainable. The order dated 20. 1. 2004 is as follows: " 20. 1. 2004 In the matter of approval application u/sec. 33 (2) (b) I. D. Act, the application u/sec. 17-B I. D. Act is not maintainable at all. The same is rejected. Since service is complete, put up for hearing before regular Bench. "
(3.) THE aforesaid two judgments were not brought to the notice of the Court. I have gone through the record of the writ petition as also application u/sec. 17-B of the Act of 1947 and considered the rival submissions made by the parties. In my view, the question of applicability of Sec. 17-B of the Act of 1947 in case of rejection of the approval application is a question of law. A bare perusal of the term `award' as defined u/sec. 2 of the Act would reveal that interim or final determination of any industrial dispute is covered by the term `award'. Therefore, rejection of the approval application u/sec. 33 (2) (b) of the Act of 1947 would amount to Award. As per Sec. 17-B of the Act of 1947 if the award directs reinstatement of a workman and the employer prefers any proceedings against such Award in High Court or the Supreme Court, the employer shall be liable to pay last wages drawn. In the instant case, refusal of the approval application u/sec. 33 (2) (b) of the Act of 1947 as per the constitutional bench judgment in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) results in a situation as if no dismissal or termination order has been passed. Therefore, staying operation of the said order of refusal dated 25. 5. 2004 by this Court on 27. 4. 2005 results in denial of reinstatement and wages. The provisions of Sec. 17-B of the Act are as follows:- " 17b. Payment of full wages to workman pending proceedings in higher courts. Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof the Court shall order that now ages shall be payable under this Section for such period of part, as the case may be. " ;