MOHAMMAD RAFIQ, J. - (1.) THIS appeal seeks to challenge the order dated 15/11/2007 by which, the application of the appellant -workman under Section 17B of the industrial Disputes Act, 1947 (for short, 'the Act') was dismissed. Said writ petition was filed by the respondent -RSRTC Jaipur challenging the order dated 31/8/2004 whereby, application of the RSRTC seeking approval of removal of the appellant -workman as required by provisions of Section 33(2)(b) of the Act was rejected. Learned Single Judge held that the application under Section 17B of the said Act filed in a writ petition arising out of proceedings under Section 33(2)(b) thereof as not maintainable and therefore rejected the same.
(2.) SHRI Babulal Gupta, learned Counsel for the appellant has argued that application under Section 17B of the Act would be maintainable in a writ proceeding in which order passed under Section 33(2) (b) refusing approval is under challenge at the instance of the respondent -management. it was contended that effect of non -approval would be that removal of the appellant would be rendered illegal entitling him to reinstatement with consequential benefits. In support of his argument, learned Counsel for the appellant has placed reliance on the judgments of Supreme Court in T.N. State Transport Corporation v. Neethivilangan, Kumbakonam : (2001)ILLJ1706SC and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. : (2002)ILLJ834SC . Such an order is therefore similar to the award declaring removal illegal in a reference proceeding. When the order rejecting application under Section 33 (2)(b) was challenged by the management, it is permissible for the appellant to claim last drawn wages in terms of Section 17B supra. In order to butteress his submission, learned Counsel for the, appellant relied on Full Bench judgment of Delhi High Court in Delhi Transport Corporation v. Jagdish Chander 2006(1) SLR 610, Division Bench judgment of Calcutta High Court In Bata India Limited v. Seventh Industrial Tribunal West Bengal and Ors. 1994(1) SLR 155 and judgments of this Court in RSRTC v. Kumaresh Gautam and Anr. Hotel Mansingh v. Judge, Industrial Tribunal, Jaipur and Anr. 2000(4) WLC (Raj.) 184 and Division Bench judgment of Andhra Pradesh High Court in V. John v. Chief General Manager, Singareni Collieries Co. Ltd. and Anr. 1995(8) SLR 304 -2. Shri Vinod Kumar Sharma, learned Counsel for respondent -RSRTC opposed the appeal and argued that Section 17B in terms applies only to a proceeding where challenge is made to the award passed by labour court or Industrial tribunal directing reinstatement of a workman by the employer in High Court or Supreme Court. When Section 17B of the Act has not been provided for an eventuality like the present one, which has arisen consequent upon refusal of approval, same cannot be read into therein because scope of a particular provision of the statute cannot be extended by mere process of reasoning. An extended meaning cannot be given to the word 'award directs reinstatement' appearing in Section 17B as that would tantamount to treating an order refusing to grant approval or removal of a workman as an award. It is therefore contended that the learned Single Judge was justified in rejecting the application under Section 17B of the Act as not maintainable. Special appeal be therefore dismissed.
(3.) HAVING considered the rival submissions of the parties and perused the material forming part of the record, we find that different Benches of other High Courts have taken the view in Delhi Transport Corporation, Bata India Limited, Kumaresh Gautam, Hotel Mansingh and V. John supra that rejection of application for approval of termination of a workman results in making such termination as void ab initio. and non -est. In fact, Division Bench of Calcutta High Court in Bata India Limited supra relying on its earlier Division Bench judgment in Sheikh Shamser Ali v. Kesoram Industrial Cotton Mills Ltd. 1987(2) CHC 39 took that view. Calcutta High Court held that decision of the industrial tribunal under Section 33(2)(b) of the Act approving or refusing to approve, the order of dismissal, is certainly a matter relating to employment or non -employment of the workman and is certainly a determination by the Tribunal in respect thereto. Such decision is certainly a determination to the effect that dismissal in question is invalid and therefore cannot be approved of. It was further held that 'there is no reason therefore, as to why giving a liberal interpretation to the provision of Section 17B of the said Act, such a decision of the Industrial Tribunal under Section 33(2)(b) of the said Act cannot be termed as an award within the meaning of Section 17B of the said Act.';