JUDGMENT
D.K. Seth, J.
1. This appeal is preferred against the order dated May 15, 2003 of the learned single Judge dismissing the Writ Petition No. W.P.No. 7818 (W) of 2000 preferred against an award by the learned Labour Court disapproving the application under Section 33(2)(b) of the Industrial Disputes Act. The learned counsel for the appellant submits that it was only because one month’s pay in full was not tendered. The amount was short of the full amount. Therefore, it is only on a technical ground the approval having been refused, the employer is not liable to pay full back wages as has been held by the learned single Judge. He relied on certain decisions to which we shall refer at appropriate stage.
2. Mr. Dasan, on the other hand, contends that until approval under Section 33(2)(b) is accorded, the order of termination remains inchoate and the relation between employer and employee continues and is not ceased. He also relied on certain decisions to support his contention to which we shall be referring to at an appropriate stage.
3. After having heard the learned counsel for the parties, the only question that falls for our decisions is as to whether the disapproval accorded on account of payment of one month’s wages being little short of the amount, will attract the principles of Section 33(2)(b) which led the Apex Court to hold that the relationship continues and the employee is entitled to all his service benefits.
4. Section 33(2)(b) imposes certain conditions for the purpose of altering the service condition of concerned workmen unconnected with the dispute. If the workmen appear to be concerned and if he is dismissed on account of a dispute unconnected with the dispute, the question of disapproval may crop up. At the same time such termination can be effected only upon tendering one month’s wages. If it is short of the amount in that event, it is also non-compliance of one of the conditions of Section 33(2)(b) due to which the relation continues. There cannot be any severance of the relationship where disapproval is granted on the ground of non-compliance of one or the other condition thereof, even though it might appear to be too technical. The question is either to grant approval or to refuse approval. If the approval is granted, the relationship ceases; if the approval on whatsoever ground is refused, the relationship continues. Admittedly, an order of termination subjects to Section 33(2)(b) remains inchoate; it becomes operative only the approval. A disapproval makes the order of termination effective. There cannot be a distinction on the basis of the ground resulting in the refusal of approval. If the relationship continues, in that event, workman would be entitled to all the benefits of employment.
5. This was so held in Tata Iron and Steel Co. Ltd. v. S.N. Modak and Strawboard Manufacturing Co. v. Gobind . Following this decision, the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and Ors. had held that an order of discharge being incomplete and inchoate until approval is obtained, cannot effectively terminate the relationship of the employer and employee and if approval is not accorded by the Tribunal, the employer would be bound to treat the employee as its employee and pay his full wages for the period even though the employer proceeds to terminate the service of the employee. This view has been reiterated in M. D. Tamil Nadu State Transport v. Neethivilangan, Kumbakonam . This decision following the decisions in Tata Iron and Steel Co. Ltd. (supra) and Strawboard Manufacturing Co. (supra) took the same view. In the said decision it was held 2001-I-LLJ-1706 at p. 1710:
“75. From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains orders of approval from the Tribunal. By passing the order of discharge, or dismissal de facto relationship of employer and employee may be ended but not the de jure relationship for that would happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under Section 33(2)(b) of the Act on merit the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employee the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal’s rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in Section 33(1) irrelevant. In the present case, as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish prima facie case for dismissal/discharge of the workman and therefore, dismissed the application filed by the employer on merit. The inevitable consequence of this would be that the employer was duty bound to treat the employee as continuing in service and pay him his wages for the period, even though he may be subsequently placed under suspension and an enquiry initiated against him.”
6. This was further reiterated in Indian Telephone Industries Ltd. and Anr. v. Prabhakar H. Manjare and Anr. . In the said decision, it was held that if the Tribunal refuses to grant approval, sought for under Section 33(2)(b), the effect of it shall be that the order of discharge or dismissal had never been passed and consequently the employee would be deemed to have been continuing in service entitling him to deliver the benefit available. Thus, it appears that the principle is clear and well settled.
7. The learned counsel for the appellant, on the other hand sought to distinguish the decision in Jaipur Zila Sahakari Bhoomi Vikas Bank (supra) relying on paragraphs 3 and 4 of the said decision to contend that in every case it is not a rule that full back wages shall be awarded by the Tribunal. To support his contention he had relied on Hindustan Motors Limited v. Tapan Kumar Bhattacharya and Anr. . He placed reliance on paragraphs 11 and 16 of the said decision. But the said decision does not seem to help him since it was not a decision in connection with refusal of approval under Section 33(2)(b) where on account of refusal of the approval the relationship of employer and employee did not cease. He also relied on the decision in M. P. State Electricity Board v. Jarina Bee (Smt.) . This decision will also not help him since it was not related to a case of refusal of approval under Section 33(2)(b).
8. Having regard to the facts and circumstances of the case, we are unable to make any distinction with regard to the refusal of approval on the ground that the lesser pay was tendered. Section 33(2)(b) does not permit any distinction to be made on the basis of the ground on which the approval was refused.
9. In the circumstances, we are unable to persuade ourselves to agree with the contention of the learned counsel for the appellant. The appeal, therefore, fails and is accordingly dismissed. There will be no order as to costs. The employer shall pay the balance amount without interest within three months; in default, the employee shall be entitled to recover the same under Section 33-C(2) with interest.
Rajendra Nath Sinha, J.
10. I agree.