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TMI Blog2001 (5) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... proval under section 33(2)(b) of the Industrial Disputes Act, 1947, (for short the Act) before the Tribunal. The Tribunal rejected the prayer for approval on merit vide the order dated 30.7.1984. The appellant filed Writ Petition No.8849/84 challenging the order passed by the Tribunal which was dismissed by the High Court by the judgment dated18.12.1987. Writ Appeal No.321/88 filed against the said judgment was dismissed. The appellant filed special leave petition No.12350/88 in this Court which was also dismissed. Even after it failed to obtain approval of the Tribunal for the order of removal of the respondent the appellant neither reinstated him in service nor paid him wages. The resultant position was that the respondent remained without work and without wages though he was ready and willing to render service in the establishment. Under the impelling circumstances as noted above the respondent filed the Writ Petition No.1498/99 for reinstatement in service, for payment of wages and other consequential benefits. A single Judge of the High Court by the judgment dated 4.11.1999 allowed the writ petition on the following terms : In the result, all the points (A) to (D) are answered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court rightly directed reinstatement of the respondent with back-wages. On the rival contentions raised by the counsel for the parties the question formulated earlier arises for consideration. Section 33 of the Act makes provision for insuring that the conditions of service remain unchanged during pendency of certain proceedings. In sub-section(1) is incorporated the bar that no employer shall during pendency of any conciliation proceeding before a conciliation officer or a Board or any proceeding before an arbitrator or labour court or Tribunal in respect of an industrial dispute, in regard to any matter connected with the dispute, alter to the prejudice of the workman concerned with such dispute, conditions of service applicable to them immediately before commencement of the proceedings; or for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned with such dispute, save with the express permission in writing of the authority before which the proceeding is pending. The purpose of the prohibitions contained in Section 33 is two-fold. On the one hand, they are designed to protect the workmen concerned dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnected with the dispute which might be pending before a tribunal the employer must put such proposal before the tribunal and obtain its express permission in writing before carrying out the proposal whether it be for alteration of any conditions of service or for punishment or discharge of a workman by dismissal or otherwise. Sub-section(2)(a) on the other hand gives power to the employer to alter any conditions of service not connected with the dispute and this the employer can do without approaching at all the tribunal where the dispute may be pending. It further permits the employer to discharge or punish, whether by dismissal or otherwise, any workman where this may be on account of any matters unconnected with the dispute pending before the tribunal; but such discharge or dismissal is subject to the proviso, which imposes certain conditions on it. The intention behind enacting sub-s.(2) obviously was to free the employer from the fetter which was put on him under s.33 as it was before the amendment in 1956 with respect to action for matters not connected with a dispute pending before a tribunal. So far as conditions of service were concerned, if they were unconnected with ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains an application for approval under section 33(2) (b) on merits, it applies its mind and considers whether the dismissal of the workman amounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the workman. If the Tribunal finds that either no prima facie case has been made out or there is victimisation or unfair labour practice, it would refuse to grant approval and reject the application on merits. Then of course the dismissal of the workman would be void and inoperative, but that would be because the Tribunal having held that no prima facie case has been made out by the employer or there is victimisation or unfair labour practice, it has refused to lift the ban. (emphasis supplied) In the case of Tata Iron and Steel Co. Ltd. vs. S.N. Modak (1965(3) SCR 411, a Bench of three learned Judges of this Court, considered the effect of an order of the Tribunal refusing to accord approval to the order of dismissal or discharge of the workman and held : (at p.418) But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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