What can be the fate of non-compliance of a mandatory condition prescribed in the statute was the question that arose before Supreme Court for consideration
What can be the fate of non-compliance of a mandatory condition prescribed in the statute was the question that arose before Supreme Court for consideration. The matter pertains to compliance of mandatory condition prescribed under Section 33(2)(b)/33(3) of the Industrial Dispute Act, 1947 (Act).
The Division Bench of the Delhi High Court was seized of a matter wherein the services of a workman were terminated following a disciplinary enquiry against him; at the time of dismissal, an Industrial dispute was pending between the employer and employee. It is also relevant to point out that permission as envisaged in Section 33 (2) of the Industrial Dispute Act, 1947 (hereinafter referred to as Act) was not taken by the employer before terminating the services of the workman.
Section 33 of the Act categorically states that during the pendency of any proceedings before an Authority, (which includes proceedings before a conciliation officer, a board, an arbitrator, labour court, tribunal and/or National Tribunal) a workman would not be discharged or dismissed unless an application has been made by the employer to the Authority before which the proceedings is pending for approval of the action by the employer.
The Delhi High Court relying on a judgement of the Supreme Court held that failure to make an application under Section 33(2)(b) of the Act would amount to non-compliance with the mandatory provisions of the Act and would thus render the order of punishment inoperative. It further held that order of dismissal or discharge by the employer remains incomplete as it is subject to approval of the authority under the said provision. It other words the relationship of employer and employee comes to an end de jure only when the Authority grants approval.
If the Authority upon making of the application does not give an approval, it will be deemed that the order of discharge or dismissal had never been passed. However where no application is made or the one made is withdrawn it is a clear case of contravention of the proviso to Section 33 (2)(b) of the Act.
Once the Tribunal comes to the conclusion that the mandatory provisions of Section 33 have been contravened, the only thing that needs to be done by the tribunal is to direct that the employee be given appropriate relief by way of reinstatement and by making an order with regard to back wages. The tribunal is not required to go into the question of as to whether the dismissal was good or bad on merits.
I.S. Rana vs. M/s. Centaur Hotel
(08.08.2013, Delhi HC)