JUDGMENT
M.S. Shah, J.
1. Gujarat State Road Transport Corporation (hereinafter referred to as the “the Corporation”) has filed this petition under Art. 227 of the Constitution for challenging the order dated 11th September 1984 passed by the Conciliation Officer, Baroda under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”).
2. Respondent No. 1, P. G. Baria, who was working as a driver with the Corporation was involved in a motor vehicle accident resulting into instantaneous death of a boy aged 14 years. After holding a regular departmental inquiry the Divisional Controller issued a second show-cause notice for dismissing the petitioner from service and immediately placed him under suspension without back wages on 121h September 1983. The Corporation also filed application under Section 33(1) of the Act before the Conciliator for permission to dismiss respondent No. 1 from service, as respondent No. 1 was a protected workman. Before the said application came up for hearing, the respondent ceased to be a protected workman and therefore, the Corporation withdrew the application under Section 33(1) of the Act and on 28th February 1984, passed an order dismissing the petitioner from service with effect from 12th September, 1983 and, also submitted an application under the provisions of Section 33(2)(b) of the Act and also simultaneously offered the respondent No. 1 wages for one month. By his order dated 6th September 1984 the Conciliation Officer rejected the said application under Section 33(2)(b) of the Act, on the ground that respondent No. 1 was purported to have been dismissed with effect from 12th September 1983, but the application for approval and the offer of one month’s wages were made on 28th February 1984 and therefore, there was delay in the application for approval.
3. Mr. Anjaria for the Corporation has submitted that there is no dispute about the fact that the dismissal order was passed on 28th February 1984 and the payment of one month’s wages was also offered on that very day and approval was also sought immediately from the Conciliation Officer. It was, therefore, submitted that even if that part of the dismissal order dated 28th February 1984 is considered to be illegal or improper, insofar as it purported to give the dismissal retrospective effect from 12th September 1983, the two parts of the order are clearly severable and that part of the order giving retrospective effect to the dismissal is required to be ignored and the main part of the order for dismissal of the workman is required to be held legal and valid and the dismissal has to be treated as prospective and not retrospective.
4. There is considerable force in the submission of Mr. Anjaria and the same clearly fortified by the law laid down by the Hon’ble Supreme Court in the case of R. Jeevaratnam v. State of Madras AIR 1966 SC 951 and followed in the case of G.M.D.C. v. P. H. Brahambhatt, AIR 1974 SC 136. The following observations made by Their Lordships in the case of R. Jeevaratnam (supra) are apposite :
“An order of dismissal with retrospective effect is in substance an order of dismissal as from the date of the order with super added direction that the order should operate retrospectively as from and anterior date. The two parts of the order are clearly severable. Assuming the second part of the order mentioning that dismissal would operate retrospectively is invalid, there is no reason why the first part of the order stating that the appellant is dismissed, should not be given the fullest effect. The Court cannot pass a new order of dismissal but surely it can give effect to the valid part of the order.”
5. In view of the aforesaid decisions, it is clear that the substantive part of the order dated 28th February 1984 has to be treated as dismissing the petitioner from service with effect from 28th February 1984, after ignoring that part of the order which purported to give retrospective effect to the dismissal order. It has, therefore, to be held that the dismissal had taken effect from 28th February 1984, i.e., the date on which the order was passed and the Conciliation Officer was required to consider the application of the Corporation on that basis for approval under Section 33(2)(b) of the Act.
6. Since the Conciliation Officer has not at all considered the other aspect for granting or refusing the approval to the action of the Corporation on merits, it is necessary to remand the matter to the Conciliation Officer to consider the application for approval on merits in view of the observations made in this judgment.
7. Before parting with this matter, it is necessary to record the assurance given by Mr. Anjaria on behalf of the petitioner Corporation that since the order of dismissal is held to be prospective, i.e., with effect from 28th February 1984, for the period of suspension from 12th September 1983 to 27th February 1984, respondent No. 1, P. G. Baria will be paid subsistence allowance, if not already paid, within one month from today, since the original order dated 12th September 1983 had placed respondent No. 1 under suspension without any wages.
8. The petition is accordingly allowed and the order dated 11th September 1984 at Annexure ‘A’ to the petition is quashed and set aside. The matter is remanded to the Conciliation Officer, Baroda-respondent No. 2 herein to decide the same according to law and in light of the observations made in this judgment. Respondent No. 2 shall decide the matter within three months from the date of receipt of writ of this Court.
9. Rule made absolute to the aforesaid extent with no order as to costs.
10. Rule made absolute.