G Chandrashekar vs The Management Of Sunrise … on 30 May, 2008

  .B;xNGALo.k~E5':35o 021.

" » VB3mGAL0RE~55o 02 1.

 _ =   " P».'S"hekar
  _ .:Aged 58 years

-1.

IN THE HIGH coum 0? KARNATAKA AT BANGALQR§;:-""';,§..

 
 

DATED THIS THE ;'$o""*DAY OF MAY 
BEFQRE    %  «
THE HoN'B:,a MR.JusT:cE§1;BaAsr;=é;j;m§i  _  
WRIT pmmon :¢o.539;3%3[:;£ie3%";;.;:;;=§;;R_§ M x  . fi  . { T
BETWEEN:  "  " 2

1. Gnchaxsdrashekar
Aged 4'? years
No.4, 4*-*1 Cross, 
VI Block, Rajajinagar _T  
BANGALORE.-560 010,  V

Aged 49   "  V.   .
No.222, II"I_31£:+,(_:leee(li1i'gav..o11vEthe file of
the Industrial Tzibunal '4 of the award is
vitiated, as the o:aa- of   View of the fact
that, admitteellfi   application under
Section  of approval of tlie
order of  application has been dismissed

as  iifioimoifler of -approval gra;::1ted by the'

VTribuna;l,' "the cider' dismissal becomes void and inoperative.

 .13 the industna' 1 Tribunal was not

 the order of dismissal without consfierizug

Z  the qizestioa,'  whether there exists an order of dismissal. in

_,   'V116 relied on a decision of the Constitutional Bench

V'  2002(1) LLJ page 834 in the matter of JAIPUR ZILA

 "'-'S:_aMl--i.,3'sI{AR§ BHOOMI VIKAS BANK L§MI'}'E{) ---vs- RAM GOPAL

   EEHARMA AN D OTHERS and submitted that, the compliance with

the provisions of Section 33(2}{b} of the Act is mandatory and if



- 32.
I.D.No.19/1987 and the same: was mot disputed "by the
Management. The Industtia} Tribunal without goi;1g..jizz{o.,Vthe

question as to, whether the approval of the  

passed by the Management is necessary or 31o*£:;" 'hos  {1é$'missoti . 1 

tho disgutae raised by the pefifioueroj,   '.
dismi$sa1 is justificd and also hc{1d._j;ha£ 1116 
proper. The law is now well uxbyt  [_ éficifiifln of the
Constitutional Bench of   VA Jagouo Zflcfs case
Whorein the Apex  at..;:a§1_1fa-    V has held as

under:

"13. piozriso to Seoiion 33{:2)£f2), as can be seen from
its  urfifimbtyaous "a.*2d'  clear ianguage, is
rmmdai_o1'y;'._» '_1f'his  frmn the object of Section 33
and in' the  ofproviso to Se-ciion 33(:;')(b), if is
obv1'o1;s"!5hai {I12---o:;mtiizioné contained in the said proviso

are fo»._be.ve$:3er13id2I3;.'o' complied wiih. Furiher any
employef whoooonirarienes {he provisions of Section 33

.. «invites a "pr.;ru'shment under Section 31(1) with

- & V"o~--impfii9ohmentfof"iz term which may extend to Rs.1000/-
» V " --. or wiIh'!:)oih. This penal provision is again a pointer of
  nature of proviso to comply with {he
2 Woon(i€fions',étated therein To put it in other way, the
A $a1'ci.ooTk§Zitions being mandatory, are to be satisfied If
"cm order of dtbcharge or dismissal passed under Section
 33(2}{b) is io be operative. If an empioyer desires to
'A : taicébenefit of the said provision for passing an order of
, iiischarge or dismissal! of an employee, he has also to
 fake ihe burden of discharging the statutory obligation
placed on him in the said proviso. Taking a contrary
view that an order of discharge or dismrssal passed by

an employer in contravention of the mandatory
conditions contained in the proviso does not render such

an order inoperative or void, defeats the very purpose of

the proviso and it becomes meaningless. It is we??-
seftled' rule of interpretation that no part' of statute shall



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33(2}(b) is mandatory and without which the order _4of_id.ie::nissa}

becomes void and inoperative. The Apex C0111": 'e§:¢'n«i of

United Bank of India'.:3 case bupra) has net  :foi:1owed_: uti";eau'~--

decision of the Constitunional Bend};   

has heid thai the pmviso to Section 334:2_j(b; afiofde Vipiioteietionjio
a workxnan to safeguard his  anti   natoxe of a
shieid against vicfimizafion ialjonrvviareictice by the
employer during pendencg  'E'he learned
Single Judge      of Management of
Hindustan Liéiie}_i--1:~:fi}iii¥ér;?:  foiiowed the decision in
Jaipur 4?2':'Zciz"'S"    i;hei..ieiiIieequent decisions and has
heid thai{,'.bio.it:hV  Section 1.0 as well as Section

33(2)(b) can on sixnnlfnneieusly and further observed that, it is

 ._pmpei3'«:.toD\w'ii.hd1niré'vt.1ie*case under Section 33{2)(b) and piece

 Tribunal dealing with the dispute under Section

10 "the  -3'  V

 the decisions of the Apex Court as well as this

   is clear that, compliance with the provisions of Section
V'  is mandatory and approve} is a must. No doubt, En this

  ifcase, the petiticmers have raised a dispute against the order of

dismissa} ciuring the pendency of the application under Section

33(2)(b). In Jaipur ZiIa's case, the Apex Couri has oiaserved that,
withdrawal of the annlication filed under Section 33{%(bi has 1316

/éiz"/i



V V V i  . , be-nafide,

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application filed under Section 33(2)(b) does not  to

adjudication on merit and it did not have the elfecéfttof

the order of dismissal void and inoperative. The   

Beverages Pvt.Lid. was considered byizthe  of i

the Apex Court and the said decisinn not approiredih   L.

Court snbseqnently in United  cf  also has
reiterate-é the  with the
provisions of Section    the light of the
decision of the    in the matter of
Management 50)'  ffijniiéd has observed that,
merely   that does not vitiate the
pmceedinés   and filing of dispute will not

entitle the Mnnaigementitoi Withdraw or abandon the application

 " vseel<inJg3'«pe1fni§$sioIi."*' A  _____ .. v

     the Management filed a memo seeking

i    tlieiapplication filed under Section 33(2)(b) in View
~  oftlixe cliépnie raised by the petitioners under Section 10(4»-A) of
  Actaiand the Management did this only because the dispute

  raised by the petitioners. The mistake appears to be

the Management should not have sought for

wnihdrawal of the application. However, the Industrial Tribunal
has closed the said application only on the ground of raising of

dispute by the Worlmen. The Tribunal has not decided the



 



 V.of.tl2eit<l:isj;§'iJcte"l--and ltéismllelosed the case and has not gone into the
'or   Having regard to the award passed by
     regard to the closure of the application, I
 'feel it lepnitfiptiate to permit the respondent ---- Management to

‘reeaziéng of the order m I.D.No.19/198? and permit the

It to consider both the disputes on merit. Since the order
“”Vtlismissai is not preceded by the approval under Section

33[2)(b) of the Act, the said order becomes inopexative, subject to

…1′}’..

application on merit. The order under Section 33(2)(bj’~ as
the award under Section 10(4–A) are pa$se{1—-§ll$Hj,}4′
Tribunal. The Tribunal ought to Jlgasfe
matters simultaneously and defened l ll
under Section 10(4~«A) till the: agljuetieation
under Section 33(2){b) of the me lfsrdtéfllpaeesee by the
Tribunal on an appficatjein 33(é){i§) needs as

under:

“In view.Ql”- zviifzoni to rights of
the patties} -penieitied to withdraw the
petition. the petfitozi is closed.’

From the £t*aci’ing jiassed by the Tribunal, it is clear

that the–Tribun2t1_:l1as.vacc’epted the memo in View of the penciency

the result of dispute in I.D.No.}9/E981