RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHERversusSATYA PRAKASH

                  [2013] 2 S.C.R. 939


RAJASTHAN STATE ROAD lRANSPORT CORPORATION                          A
                AND ANOTHER
                               V.
                      SATYA PRAKASH
              (Civil Appeal No. 4560 of 2008)
                                                                    B
                        APRIL 9, 2013
       [H.L. GOKHALE AND RANJAN GOGOi, JJ]

    INDUSTRIAL DISPUTES ACT, 1947:
                                                                    c
     s. 33-A read with s.33 - Complaint by a daily wager- bus
conductor who had been dismissed from service after an
inquiry - Industrial Tribunal holding the charge proved, but
directing reinstatement of workman without back wages - Held:
When respondent had indulged into a misconduct within a             0
very short span of service which had been duly proved,
there was no occasion to pass the award of reinstatetnent
with continuity in service - Single Judge as well as the Division
Bench of High Court have fallen in the same error in
upholding the order of Tribunal - The complaint ought to have       E
been dismissed - Judgments of High Court as also award of
Tribunal, except as mentioned in the judgment, are set aside
- Consequently the complaint shall stand dismissed.

     ss. 33 and 33-A - Nature and scope of Explained - Held:
Once the Complaint i.J/s 33A is decided, there is no question       F
of granting any liberty to apply uls 33 of the Act.

    The respondent, working as a bus conductor on
daily wages, was found to have collected fare from
passengers but had not. issued tickets to some of them.             G
A departmental inquiry was conducted against him
wherein he did not participate. The charge was found
proved and the respondent was dismissed from service.
He filed a civil suit. The trial court recorded a finding
                              939                                   H
    940      SUPREME COURT REPORTS            (2013] 2 S.C.R.


A against him but dismissed the suit for want of territorial
  jurisdiction. Thereafter, the respondent filed a complaint
  before the Industrial Tribunal u/s s.33-A of the Industrial
  Disputes Act, 1947. The Tribunal also found the charge
  to have been proved, but held that provisions of
B s.33(2)(b) of the Act had not been complied with and
  directed reinstatement of the respondent, without back
  wages but with continuity of service. The single Judge
  of the High Court in writ petition as also the Division
  Bench in writ appeal declined to interfere.
c         Allowing the appeal, the Court

      HELD: 1.1 Section 33A of the Industrial Disputes Act,
  1947 was enacted to make a special provision for
  adjudication as to whether s.33 has been contravened.
D This section enables an employee aggrieved by such
  contravention to make a complaint in writing in the
  prescribed manner to the tribunal. Sub-s. (b) of s.33A
  clearly lays down that when such a complaint is made,
  the Tribunal shall adjudicate upon the complaint as if it
E were a dispute referred to it, in accordance with the
  provisions of the Act and shall submit the award to the
  appropriate Government, and the provisions of this Act
  shall apply accordingly. Thus, by this section the
  aggrieved employee is given a right to move the tribunal
F and to prove his case on merits, without having to take
  recourse to s.10 of the Act. [para 15-16] [952-G; 953-C-D]
      1.2 In the instant case, the Tribunal while deciding the
  complaint has gone into the merits of the case as in a
  Reference, given full opportunity to the parties, and then
G held that the charge against the respondent was proved.
  This finding is not disturbed by the High Court. The civil
  court has also given the same finding which was not
  challenged by the respondent. Both these proceedings
  were initiated by the respondent/workman and resulted
H
RAJASTHAN STATE ROAD TRANSPORT CORPORATION 941
              v. SAlYA PRAKASH
into a decision against him on merits. The decision of A
the civil court was however not placed before the
Industrial Tribunal either by the respondent or by the
appellant.The respondent worked only for 5 months as
a daily wager. The Tribunal accepted that during this
very short span of service as a daily wager, the B
resp·ondent had committed the misconduct which had
been duly proved. Having held so, the Tribunal was
expected to dismiss the complaint filed by the
respondent. It could not have passed. the order of
reinstatement with continuity in service in favour of the c
respondent on the basis that initially the appellant had
committed a breach of s.33 (2) (b) of the Act. The Single
Judge as well as the Division Bench of the High Court
have fallen in the same error in upholding the order of the
Tribunal. It is made clear that once the complaint uls 33A D
is decided, there is no question of granting any liberty to
apply u/s 33 of the Act. [para 10, 19 and 20] [949-G-H; 950-
A-B; 954-G-H; 955-A-B, D-E]
     Punjab National Bank Ltd. vs. All India Punjab National
Bank Employees Federation & Anr. AIR 1960 SC 160 ; Delhi E
Cloth and General Mills Co. Ltd. vs. Rameshwar Dayal 1961
SCR 590 = AIR 1961 SC 689; P.H. Kalyani vs. Mis. Air
France Calcutta AIR 1964 SCR 104 =1963 SC 1756; and
Lalla Ram vs. D.C.M. Chemicals Works Ltd. 1978 (3) SCR
82 = 978 (3) sec 1 - relied on.                           F

     Karimbhai 1977(2) SCR 932= 1977 (2) SCC 350;
United Bank of India vs. Sidhartha Chakraborty 2007 (9) SCR
498 = 2007 (7) SCC 670; Jaipur Zita Sah. Bhoomi Vikas Bank
Ltd. VS. Ram Gopa/ Sharma & Ors. 2002 (1) SCR 284 = G
2002(2) SCC 244; Bhavnagar Municipality vs. Alibhai
Karimbhai 1977(2) SCR 932; 1977 (2) SCC 350; United
Bank of India vs. Sidhartha Chakraborty 2007 (9) SCR 498
= 2007 (7) SCC 670; Straw Board Mfgc co. Ltd. Saharanpur
vs. Govind 1962 (3) Suppl. SCR 618 = 1962 AIR 1500; Tata H
    942      SUPREME COURT REPORTS               [2013) 2 S.C.R.


A   Iron & Steel Co. Ltd. Tisco vs S.N. Modak 1965 (3) SCR
    411= 1966 AIR 380; Punjab Beverages Pvt. Ltd. Chandigarh
    . Vs. Suresh Chand 1978 (3) SCR 370 = 1978 (2) SCC 144 -
    referred to.

         1.3 It is true that the appellant had not applied for the
8
    necessary approval as required u/s 33. That is. why
    complaint was filed by the respondent u/s 33A o~ the Act,
    which was adjudicated like a reference, as required by the
    statute, and the misconduct having been held to have
    been proved, thereafter there is no question to hold that
C   the termination shall still continue to be void and
    inoperative. The de jure relationship of emptoyer and
    employee would come to an end with effect from the date
    of the order of dismissal passed by the appellant. [para
    19) [955-A-C]
D
       1.4 In the instant case, the respondent was employed
  as a daily rated employee for a period of three months,
  and thereafter was continued for a few months more.
  There was no question of his being in service even for
E one continuous year, since he had obviously not
  completed 240 days of service. During this short span
  of service there were various allegations against him.
  The appellants could have discontinued him from service
  as it is, since he was a daily wager. However, since there
F was an allegation of misconduct, they afforded him an
  opportunity to explain, but he did not attend the inquiry.
  This led to his dismissal from service. When the
  respondent filed the complaint u/s 33A, the Industrial
  Tribunal also returned the finding that the appellant had
G proved the misconduct. This being the position, this
  finding will relate back and the employer employee
  relationship between the parties will be deemed to have
  ended from the date of dismissal order passed by the
  appellant. [para 21] (955-G-H; 956-A-B & C-D)

H         1.5 The judgments of the High Court as also the
RAJASTHAN STATE ROAD TRANSPORT CORPORATION 943
              v. SATYA PRAKASH
. judgment of the Industrial Tribunal, except as mentioned A
  in the instant judgment, are set aside. Consequently, the
  complaint shall stand dismissed. [para 22] [956-E-F]

                     Case Law Reference:
     2002 (1) SCR 284            referred to       para 7       B

     1977(2) SCR 932             referred to       para 8
     2007 (9) SCR 498            referred to       para 8
     1962 (3) Suppl. SCR 618 referred to           para 11      c
     1965 (3) SCR 411            referred to       para 11

     1978 (3) SCR 370           . referred to      para 11
     AIR 1960 SC 160             relied on         para 15
                                                                D
     1961 SCR 590                relied on         para 17
     1964 SCR 104                relied on         para 17
     1978 (3) SCR 82             relied on         para 18
                                                                E
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
 4560 of 2008.

      From the Judgment and Order dated 21.10.2005 of the
 High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur
 in D.B. Special Appeal (Writ) No. 1093 of 2005.                F

     Puneet Jain, Anurag Gohil, Sushil Kumar Jain for the
 Appellants.

     Shovan Mishra, Mukul Kumar for the Respondent.
                                                                G
     The Judgment of the Court was delivered by

    H.L. GOKHALE J. 1. This appeal seeks to challenge the
judgment and order dated 21.10.2005 rendered by a Division
 Bench of the Rajasthan High Court in D.B. Special Appeal       H
    944      SUPREME COURT REPORTS                 [2013) 2 S.C.R.


A   (Writ) No.1093 of 2005, dismissing the appeal filed by the
    appellants against the judgment and order dated 19th July,-
    2005, rendered by a learned Single Judge of that High Court
    in Civil Writ Petition No.3933 of 2009, by which judgment the
    award dated 3.12.2002 rendered by the Industrial Tribunal,
B   Jaipur in Case No. l.T. No.41 of 1994 was upheld.

          2. Mr. Puneet Jain, learned counsel has appeared in
    support of this appeal and Mr. Shovan Mishra, learned counsel
    for the respondent.

C   The facts leading to this appeal are as follows:~

         3. The respondent was working as a bus conductor on
    daily wages under the appellant-Rajasthan State Road
    Transport Corporation ("S.T. Corporation" for short) from 8th
D   May, 1987 with a daily wage of Rs.20/- per day. His
    appointment was for a period of three months only though it
    appears that it was continued for a little while more. It was
    alleged that during this short period also there were instances
    of his misbehaviour with the staff, of using abusive language,
E   and coming to office in drunken state. An F.l.R. was also lodged
    against him. It so transpired that when he was on duty on 10th
    October, 1987, on the route from Sirohi to Jodhpur, his bus was
    checked by a flying squad led by the Judicial Magistrate,
    Transport. It was found that there were 20 passengers traveling
    in that bus. The respondent had collected the fare from all of
F   them. However, three and half tickets were found to have been
    issued less. In view thereof a Departmental enquiry was
    conducted against him. The respondent did not appear therein
    despite notices. Appellant led the necessary evidence, and the
    inquiry officer held that the charge was proved. The respondent
G   was, therefore, directed to be dismissed from service by the
    order passed by the Divisional Manager, Jodhpur with effect
    from 20th November, 1987.

        4. The respondent felt aggrieved by his dismissal and filed
H   a Civil Suit before. the Additional Civil Judge, Junior Division,
RAJASTHAN STATE ROAD TRANSPORT CORPORATION 945
       v. SATYA PRAKASH [H.L. GOKHALE, J.]
Jaipur City being Civil Suit No.1572 of 1989. The first issue          A
raised in that suit was whether the termination of the respondent
was liable to be set aside for being bad in law for being and
against the principles of natural justice. The Court noted that
the respondent was issued notices to remain present in inquiry,
first on 27.10.1987, and on 6.11.1987, but he chose not to             B
remain present. The Court, therefore, held that it becomes clear
that the respondent was given sufficient opportunity of being
heard, but he himself did not remain present before the
competent authority, and the inquiry officer had no other option
except to proceed ex-parte. The Civil Court also noted that the        c
respondent had accepted the fact in his statement that when
the bus was checked on 10.10.1987, the flying squad had
made necessary remark on the way-bill but he had refused to
sign it. The Court observed that this conduct of the respondent
proved that he did not want the truth of the incident to be brought
                                                                       0
on record. The Civil Court, therefore, decided the first issue in
favour of the appellants. The second issue raised was with
respect to the jurisdiction of the Civil Court. The appellant had
contended in their written statement that Since the concerned
dispute was an industrial dispute, the Civil Suit was not              E
maintainable. The issue was however not decided on that count.
It was decided in favour of the appellants on another basis viz.
that the Civil Court in Jaipur did not have the jurisdiction for the
reason that the cause of action had arisen in Jodhpur since the
order of the Divisional Manager was passed in Jodhpur. The
suit, therefore, came to be dismissed by its judgment and order        F
dated 24.11.1994.

     5. At that time, another industrial dispute concerning the
workmen of the appellant-S.T. Corporation was pending
determination before the Labour Court/Tribunal being l.T. No.92        G
of 1986 concerning the demands of the workman. The
respondent, therefore, filed a Complaint before the Industrial
Tribunal of Rajasthan at Jaipur under Section 33A of the
Industrial Disputes Act, 1947 ("l.D. Act" for short) which was
numbered as case No. l.T. No.41 of 1994. The respondent                H
    946      SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A however did not disclose that he had filed a civil suit earlier
  which had come to be dismissed. The respondent took the
  plea that the appellant was expected to apply for approval of
  its action to the Tribunal/Labour Court concerned under Section
  33 (2) (b) of the 1.0. Act. The appellant had not done that, and
B therefore the termination of his services was bad in law.

         6. (i) The learned Tribunal, which heard the Complaint, held
    that the S.T. Corporation had not held a departmental inquiry
    as contemplated under the standing orders. This was despite
C   the evidence of the appellant in the Tribunal that the respondent
    did not remain present in the inquiry althetlgfl notices of
    personal hearing were served on him. The Appellant was
    however given the opportunity to prove the misconduct in the
    Tribunal. The appellant filed the affidavit of the officers
    concerned and they were cross-examined. The respondent also
D   produced his affidavit and was cross-examined. The Tribunal
    examined the material on record. It noted that the corporation
    witness Purshottam Das Purohit, a member of the checking
    squad stated that there were 20 passengers in the bus out of
    whom 3Y2 passengers were found to be without tickets. The
E   respondent had already collected the amount of fare for all of
    them. Accordingly, Mr. Purohit had recorded his remarks on
    the way-bill. Signatures of two witnesses and also of the bus
    driver were taken thereon. He further stated that the respondent
    had refused to sign on the way-bill. The statement of one of the
F   passengers without ticket viz. one Bhanwar Lal Goyal was
    recorded and his signature was taken. The statements of the
    3Y2 passengers were also recorded at the site.

       (ii) In paragraph 9 the Tribunal referred to the affidavit of
G the respondent. He accepted that he had no enmity with the
  inspecting team. He accepted that inspection of the bus had
  been done on that date. He however, denied that 3Y2 tickets
  were not issued. The Tribunal however, noted that he did not
  produce any specific evidence to prove his statement.
  Therefore, at the end of paragraph 9 of the award the Tribunal
H concluded in the following words:-
  RAJASTHAN STATE ROAD TRANSPORT CORPORATION 94 7
         v. SATYA PRAKASH [H.L. GOKHALE, J.]
             "Therefore from the evidence of the Corporation the       A
       charge of carrying 3 % passengers without ticket by the
       Applicant during the course of the inspection is certainly
       proved and from whom he had already recovered the fare
       amount."
                                                                       B
         7. Thus t;!S seen from above, the Tribunal in terms held in
    paragraph 9 of its judgment that the charge of not issuing three
    and a half tickets, despite receiving the fare, was certainly
    proved. The Tribunal however held that the fact remained that
 .. at the same time the provisions of Section 33 (2) (b) of the Act
. . had not been complied with, which had led to the filing of the
                                                                       c ~t
    Complaint. Therefore, by its award dated 3.12.2012, it directed
    reinstatement of the respondent though without backwages but
    with continuity of service. This was after referring to the law
    laid down by a Constitution Bench of this Court in Jaipur Zila
· Sahkari Bhoomi Vikas Bank Ltd. vs. Ram Gopa/ Sharma                  D
  reported in 2002 (2) sec 244, that non compliance with
  Section 33 (2) (b) will make the termination inoperative. This
  order has been left undist1,1rbed by a learned Single Judge of
  the High Court, as well as by the Division Bench. Hence, this
  appeal. At this stage, we may note that neither in the Tribunal      E
  nor before the High Court did the appellant raise any submission
  based on the earlier decision ·of the Civil Court.

  Submissions of the rival parties and their consideration:-

       8. (i) The appellant is aggrieved by the relief granted to F
  the respondent on account of the breach of Section 33 (2) (b)
  of the l.D. Act, since the Tribunal had otherwise held that the
  misconduct had been proved. Learned counsel for the appellant
  Mr. Puneet Jain, drew our attention to the judgment of this Court
  in the case of The Bhavnagar Municipality vs. Alibhai G
  Karimbhai and Ors., reported in 1977 (2) SCC 350, wherein
  this Court has held in paragraph 15 that when a Complaint
  under Section 33A is filed, after finding out whether there is a
  breach of the provision of Section 33, the Labour Court or ·
  Tribunal is supposed to treat the Complaint under Section 33A H
    948      SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A in the same manner as in the case of a Reference under Section
  10 of the Act. In the present matter also both the parties were
  allowed to lead evidence on the merits of the controversy
  before the Tribunal, and then the finding was arrived at as in a
  Reference. The submission is that thereafter the workman
B cannot be allowed to raise the plea of the initial breach of
  Section 33 (2) (b) of the Act.

       (ii) Alternatively, it is submitted that it is essentially a case
  of technical breach of Section 33, and in another judgment in
C the case of United Bank of India vs.· Sidhartha Chakraborty,
  reported in 2007 (7) SCC 670, this Court has granted liberty
  to the employer in the event of such a breach to take action in
  terms of Section 33 (2) (b) of the Act. Therefore, it is submitted
  that if the initial failure to apply for approval is yet to be held
  against the appellant, such a liberty be granted to the appellant
D in the present case also.

       9. Learned counsel for the respondent Mr. Mishra, on the
  other hand submits that the fact remains that in the instant case
  the appellant had not complied with Section 33 (2) (b) of the
E Act and, therefore, the consequence has to follow, and that is
  the view taken by the Industrial Tribunal, which has been
  confirmed by the learned Single Judge as well as the Division
  Bench of the High Court, and that this Court should not interfere
  therewith. He submits that in case if any liberty is given to the
F appellant to apply under Section 33 (2) (b) at this stage, the
  respondent be also given opportunity to defend.
        10. We have noted the submissions of both the counsel.
  In the instant case, the Tribunal while deciding the Complaint
  has gone into the merits of the case as in a Reference, given
G full opportunity to the parties, and then held in paragraphs 8 and
  9 of its award dated 3.12.2002 that the charge of not issuing
  three and a half tickets, despite collecting the fare, was proved.
  This finding is not disturbed by the High Court. The Civil Court
  has also given the same finding by its earlier judgment and order
H dated 24.11.1994, which is not challenged by the respondent.
RAJASTHAN STATE ROAD TRANSPORT CORPORATION 949
       v. SATYA PRAKASH [H.L. GOKHALE, J.]
Both these proceedings were initiated by the respondenU             A
workman and resulted into a decision against him on merit. The
decision of the Civil Court was however not placed before the
Industrial Tribunal either by the respondent or by the appellant.
The question which arises for our consideration on this
background is as to whether the Tribunal was right in awarding      B
reinstatement with continuity of service in the proceeding under
Section 33A of the Act which arose out of the initial breach of
Section 33 (2) (b) of the Act by the respondent.
                                    ,        '
     11. In this behalf, we must note that in Jaipur Zila Sahkari
Bhoomi Vikas Bank Ltd. (supra), the Constitution Bench was          C
concerned with the interpretation of Section 33 (2) (b) of the
Act in the context of a Reference arising out of conflicting
judgments thereon. Two Benches of this Court consisting of
three learned Judges in (1) Strawboard mfg. Co. vs. Govind
(reported in AIR 1962 SC 1500) and (2) Tata Iron & Steel Co.        D
Ltd. vs. S.N. Modak (reported in AIR 1966 SC 380) had taken
the view that if the approval is not granted under Section 33
(2) (b) of the Act, the order of dismissal becomes ineffective
from the date it was passed. Another Bench of three learned
Judges in Punjab Beverages (P) Ltd. vs. Suresh Chand                E
[reported in 1978 (2) sec 144) had expressed a contrary view.
The question referred for consideration of the Constitution
Bench was as follows:-
          "lf the approval is not granted under Section 33 (2)(b)
    of the Industrial disputes Act, 1947, whether the order of      F
    dismissal becomes ineffective from the date it was passed
    or from the date of non-approval of 1he order of dismissal
    and whether failure to make application under Section 33
    (2)(b) would not render the order of dismissal
    inoperative.?"                                                  G
     12. While considering the issue, the Court noted in
paragraph 6 of the judgment that the object behind enacting
Section 33 as it stood prior to its amendment in 1956, was to
allow continuance of industrial proceedings pending before any
authority/court/tribunal prescribed by the Act in a peaceful        H
    950      SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A atmosphere undisturbed by any other industrial dispute. In·
  course of time, it was felt that the un-amended Section 33 was
  too stringent, for it placed a total ban on the right of the employer
  to make any alteration in conditions of service or to make any
  order of discharge or dismissal even in cases where such
8 alteration in conditions of service or passing of an order of
  dismissal or discharge, was not in any manner connected with
  the dispute pending before an industrial authority. Section 33
  was, therefore, amended in 1956 to permit the employer to
  make changes in conditions of service, or to discharge or
  dismiss employees in relation to matters not connected with the
C pending industrial dispute. At the same time, it was also felt
  necessary that some safeguards must be simultaneously
  provided for the workmen, and therefore a provision was made
  that the employer must make an application for prior
  permission if the proposed change in the service conditions,
D or the proposed dismissal/discharge is in connection with a
  pending dispute. In other cases where there is no such
  connection, and where the workman is to be discharged or
  dismissed, (i) firstly there has to be an order of discharge or
  dismissal, and then it was laid down in the proviso to Section
E 33 (2) (b) that, (ii) the concerned workman has to be paid
  wages for one month, and (iii) an application is to be made to
  the authority concerned before which the earlier proceeding is
  pending, for approval of the action taken by the employer.
       13. In paragraph 13 of the judgment this Court noted that
F the contravention of Section 33 invites a punishment under
  Section 31 (1) of the Act. Hence, the proviso to Section 33 (2)
  (b) cannot be diluted or disobeyed by an employer. It is a
  mandatory provision made to afford a protection to the
  workmen to safeguard their interest, and it is a shield against
G victimization and unfair labour practice by an employer during
  the pendency of an industrial dispute. Therefore, the order
  made without complying with the said proviso is void and
  inoperative.
          14. Having noted this, what is observed by this Court in
H
 RAJASTHAN STATE ROAD TRANSPORT CORPORATION 951
        v. SATYA PRAKASH [H.L. GOKHALE, J.]
· paragraph 14 of the judgment is relevant for our purpose. The A ·
  relevant part of this para reads as follows:-
            "14. Where an application is made under Section 33
     (2) (b) proviso, the authority before which the proceeding
     is pending for approval of the action taken by the employer
     has to examine whether the order of dismissal or discharge       8
     is bona fide; whether it was by way of victimization or unfair
     labour practice; whether the conditions contained in the
     proviso were complied with or not etc. If the authority
     refuses to gntnt approval obviously it follows that the
     employee continues to be in service as if the order of           C
     discharge or dismissal never had been passed. The
     order of dismissal or discharge passed invoking
     Section 33 (2) (b) dismissing or discharging an
     employee brings an end of relationship of the
     employer and employee from the date of his                       D
     dismissal or discharge but that order remains
     incomplete and remains inchoate as it is subject to
     approval of the authority under the said provision. In
     other words, this relationship comes to an end de
     jure only when the authority grants approval ........"           E
                                            (emphasis supplied)
        15. The same paragraph lays down that if a workman is
 aggrieved by the approval, his remedy is to file a Complaint
  under Section 33A of the Act. This section has a definite F
 purpose to serve viz. to provide a direct access to the Tribunal
 and thereby a speedy relief, instead of seeking the time
 consuming procedure of seeking a Reference under Section
  10 of the Act. In that complaint, however, the employee will
 succeed only if he establishes that the misconduct is not proved G
 and not otherwise, and if he does succeed in so establishing,
 it will relate back to the date on which the dismissal order was
 passed by the employer as if it was inoperative. This remedy
 is independent of the penal consequences which the employer
 may have to face under Section 31 (1) of the Act if prosecuted
                                                                  H
    952       SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A   for the breach of Section 33.       This Section 33A reads as
    follows:-
                "33A. Special provision for adjudication as to
          whether conditions of service, etc., changed during
          pendency of proceeding.- Where an employer
B         contravenes the provisions of section 33 during the
          pendency of proceedings [before a conciliation officer,
          Board, an arbitrator, Labour Court, Tribunal or National
          Tribunal] any employee aggrieved by such contravention,
          may make a complaint in writing, ['in the prescribed
c         manner,-
                (a) to such conciliation officer or Board, and the
          conciliation officer or Board shall take such compliant into
          account in mediating in, and promoting the settlement of,
          such industrial dispute; and
D
                (b) to such arbitrator, Labour Court, Tribunal or
          National Tribunal and on receipt of such complaint, the
          arbitrator, Labour Court, Tribunal or National
          Tribunal, as the case may be, shall adjudicate upon
E         the complaint as if it were a dispute referred to or
          pending before it, in accordance with the provisions
          of this Act and shall submit his or its award to the
          appropriate Government and the provisions of this
          Act shall apply accordingly."
F                                               (emphasis supplied)
  As can be seen, sub-section (b) of Section 33A clearly lays
  down that when such a Complaint is made, the Tribunal shall
  adjudicate upon the Complaint as if it were a dispute referred
  to it. and shall submit his or its award to the appropriate
G Government, and the provisions of this Act shall apply
  accordingly. Thus, in that complaint, the employee will have to
  prove his case on merits.
        16. The purpose behind enacting Section 33A and the
H   scope thereof was succinctly explained by Gajendrakar J (as
 RAJASTHAN STATE ROAD TRANSPORT CORPORATION 953
        v. SAlYA PRAKASH [H.L. GOKHALE, J.]
  he then was), in a judgment by a bench of three judges in             A
  Punjab National Bank Ltd. vs. All India Punjab National Bank
  Employees Federation & Anr. reported in AIR 1960 SC 160.
  In paragraph 31 thereof the Court noted that the Trade Union
  movement in the country had complained that the remedy for
  asking for a reference under Section 10 involved delay, and left      B
  the redress of the grievance of the employees entirely in the
  discretion of the appropriate Government; because even in
  cases of contravention of Section 33 the appropriate
  Government was not bound to refer the dispute under Section
  10. That is why Section 33A was enacted to make a special             c
  provision for adjudication as to whether Section 33 has been
  contravened. This section enables an employee aggrieved by
  such contravention to make a complaint in writing in the
  prescribed manner to the tribunal and it adds that on receipt
  of such complaint the tribunal shall adjudicate upon it as if it is
                                                                        0
  a dispute referred to it in accordance with the provisions of the
· Act. Thus by this section the aggrieved employee is given a
  right to move the tribunal without having to take recourse to
  Section 10 of the Act.
     17. Thereafter while dealing with the scope of the Section         E
 33A, the court surveyed the judgments then holding the field,
 and held at the end of paragraph 33 in the following words:-
            "33 ...... Thus there can be no doubt that in an
      enquiry under S. 33A the employee would not
      succeed in obtaining an order of reinstatement                    F
      merely by proving contravention of S. 33 by the
      employer. After such contravention is proved it would still
      be open to the employer to justify the impugned dismissal
      on the merits. That is a part of the dispute which the
      ttibunal has to consider because the complaint made by            G
      the employee is treated as an industrial dispute and all the
      relevant aspects of the said dispute fall to be considered
      under S. 33A. Therefore, we cannot accede to the
      argument that the enquiry under S. 33A is confined
      oniy to the determination of the question as to                   H
    954      SUPREME COURT REPORTS                [2013) 2 S.C.R.


A         whether the alleged contravention by the employer
          of the provisions of S. 33 has been proved or not."
                                              (emphasis supplied)
  This judgment has been referred to, and the proposition has
B been once again reiterated by a bench of three Judges in para
  7 of Delhi Cloth and General Mills Co. Ltd. vs. Rameshwar
  Dayal reported in AIR 1961 SC 689.
       18. This legal position has been reiterated in the judgment
  of the Constitution Bench in P.H. Kalyani vs. Mis Air France
c Calcutta reported in AIR 1963 SC 1756 which has been quoted
  with approval in paragraph 17 of Jaipur Zila Sahkari Bhoomi
  Vikas Bank Ltd. (supra). In that matter, the respondent
  employer had applied under Section 33 (2) (b), but the
  workman had also filed a Compliant under Section 33A which
  was heard like a Reference. Evidence was led therein by the
D parties, and on its own appraisal of the evidence the Labour
  Court had held that the dismissal was justified. This Court
  accepted that finding, and it was held that the approval when
  granted will relate back to the date when the order of dismissal
  was passed. On the other hand, if the employer fails to prove
E the misconduct, the order of dismissal will become ineffective
  from the date when the dismissal order was passed by the
  employee. This legal position has been reiterated from time
  to time [see for instance Lalla Ram vs. D.C.M. Chemicals
  Works Ltd. reported in 1978 (3) SCC 1). In Jaipur Zila
F Sahakari Bhoomi Vikas Bank (supra) the Constitution Bench
  endorsed the view taken in Strawboard (supra) and Tata Iron
  & Steel Co. (supra) and held that the view expressed in Punjab
  Beverages (supra) was not correct.
        19. In the present case, the Tribunal accepted that during
G this very short span of service as a daily wager the respondent
  had committed the misconduct which had been duly proved.
  Having held so, the Tribunal was expected to dismiss the
  Complaint filed by the respondent. It could not have passed the .
  order of reinstatement with continuity in service in favour of the ·
H respondent on the basis that initially the appellant ~ad
RAJASTHAN STATE ROAD TRANSPORT CORPORATION 955
       v. SATYA PRAKASH [H.L. GOKHALE, J.]
· committed a breach of Section 33 (2) (b) of the Act. It is true A
  that the appellant had not applied for the necessary approval
  as required under that section. That is why the Complaint was
  filed by the respondent under Section 33A of the Act. That
  Complaint having been filed, it was adjudicated like a reference
  as required by the statute. The same having been done, and B
  the misconduct having been held to have been proved, now
  there is no question to hold that the termination shall still continue
  to be void and inoperative. The de jure relationship of employer
  and employee would come to an end with effect from the date
  of the order of dismissal passed by the appellant. In the facts     c
  of the present case, when the respondent had indulged into a
  misconduct within a very short span of service which had been
  duly proved, there was no occasion to pass the award of
  reinstatement with continuity in service. The learned Single
  Judge of the High Court as well as the Division Bench have D
  fallen in the same error in upholding the order of the Tribunal.
      20. Since the Complaint was decided like a reference, and
 since we are holding that it ought to have been dismissed, we
 are not required to go into the alternative submission that the
 appellant be given further liberty, to de novo apply under Section   E
 33 (2) (b) on the lines of the judgment in United Bank of India
 (supra). However, we make it clear that once the Complaint
 under Section 33A is decided, there is no question of granting
 any such liberty. Besides, we would like to observe that such
 liberty was given in the case of United Bank of India (supra)        F
 "considering the background facts of the case" as stated in
 paragraph 11 of the said judgment.
       21. In the instant case, the respondent was employed as
 a daily rated employee for a period of three months, and
 thereafter was continued for a few months more. There was no G
 question of his being in service even for one continuous year,
 sincie he had obviously not completed 240 days of service.
 During this short span of service there were various allegations
 against him. The appellants could have discontinued him from
 service as it is, since he was a daily wager. However, since H
     956      SUPREME COURT REPORTS                    [2013) 2 S.C.R.


A    there was an allegation of misconduct, they afforded him an
     opportunity to explain. At the time of the incident of checking
     of the bus, the respondent did not sign the way-bill, nor did he
     attend the inquiry, wherein, he was called to explain his conduct.
     This led to his dismissal from service. He chose to file a Civil
B    Suit in a wrong Court at Jaipur. The Civil Court which heard
     the suit held that the misconduct had been proved, and the
     termination could not be faulted. However, the very Court held
     that it did not have the territorial jurisdiction to decide the suit.
     Therefore one may keep aside the finding of that Court
c    concerning the misconduct. However, when the respondent filed
     the Complaint under Section 33A, the Industrial Tribunal also
     returned the same finding in paragraphs 8 and 9 of its award
     that the appellant had proved the misconduct. This being the
     position, this finding will relate back and the employer
     employee relationship between the parties will be deemed to
0
     have ended from the date of the dismissal order passed by the
     appellant.
        22. For the reasons stated above, this Civil Appeal is
  allowed. We hereby set-aside the judgment and order rendered ·
E by the Division Bench of the Rajasthan High Court in D.B.
  Special Appeal (Writ) No.1093 of 2005, dismissing the appeal
  filed by the appellants against the judgment and order dated
  19th July, 2005, rendered by a learned Single Judge of that High
  Court in Civil Writ Petition No. 3933 of 2009, confirming the
  award dated 3.12.2002 rendered by the Industrial Tribunal,
F Jaipur in Case No. l.T. No.41of1994. All the three judgments,
  except the finding in paragraph 8 and 9 of the Industrial Tribunal,
  Jaipur in Case No. l.T. No.41 of 1994 are hereby set-aside.
  Consequently, the said Complaint being case No. l.T. No.41
  of 1994 shall stand dismissed requiring no order on the Civil
G Writ Petition No.3933 of 2009 and D.B. Special Appeal (Writ)
  No.1093 of 2005. Both of them will stand disposed of. In the
  facts of the present case however, we do not make any order
  as to costs.
·H   RP.                                               Appeal allowed.·