J.C. Verma, J. - (1.) Banwari Lal, workman of Rajasthan Road Transport Corporation, Ajmer was removed from service vide order dated 31.3.1992 with effect from 5.12.1991 on the ground that he had been absent from 5.12.1991. Because, of the pendency of certain cases before the Industrial Tribunal, Jaipur in regard to certain demands of the workman, where certain disputes were pending, the management in its wisdom had moved an application u/ Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short 'the I.D. Act') for approval of the action of termination of service. After notice to the workman, the tribunal had come to a prima facie finding that because of the non availability of the workman, a domestic enquiry officer was competent to order an ex parte enquiry against the workman. It was further found by the tribunal that the pre-requisites for making an application under section 33(2)(b) of the I.D. Act have also been complied with. Section 33(2)(b) of the I.D. Act postulates that during the pendency of any proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, the workman provided that no such workman is to 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. It is settled law that while considering such approval as envisaged under section 33(2)(b) of the I.D. Act, and the proviso attached to the above said section, the tribunal has come to a prima facie conclusion that the enquiry has been held in accordance with law. It is the duty of the tribunal to see that the enquiry was not only held in accordance with law and standing orders and in accordance with the I.D. Act, but also the conditions mentioned in the proviso to Section 33(2)(b) should also be complied with. Section 33(2)(b) reads as under- "33(2)(b) 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 (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.) The Tribunal had given a positive finding that for purposes of granting the approval, all the formalities had been complied with but some how, because of the reason that the order of termination dated 21.3.1992 had been made retrospective, i.e. w.e.f. 5.12.1991, therefore, the tribunal observed that the order of termination itself is bad.
(3.) Learned counsel appearing for petitioner Corporation, placed reliance on Calcutta Transport Corporation v. Mohd. Noor Alam , Supreme Court Labour Judgments 53-83 (8) 680. It was held in this decision that three things are required to be done while applying for approval u / s. 33(2)(b) of the I.D. Act i.e. the order of discharge or dismissal, one months' notice pay and moving of the application simultaneously and it is the conduct of the employer that has to be considered by the Tribunal to find out whether discharge or dismissal or payment of wages and making of application form part of the same transaction.;