M.M. Dutt J.
1. This is an application under Article 227 of the Constitution of India filed at the instance of one Sunil Kumar Dey, and it is directed against the order dated 29th April, 1981 of the learned Chief Judge, Small Cause Court, Calcutta dismissing the appeal preferred by the petitioner against the order of the Authority under the Payment of Wages Act disallowing the claim of the petitioner as not maintainable.
2. The petitioner was employed under the opposite party M/s. Naihati Electric Supply Co. Ltd. The opposite party suspended the petitioner with effect from 11th April, 1968. Thereafter, the petitioner was dismissed by the opposite party. The opposite party filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 before the First Labour Court for approval of the order of dismissal. The Labour Court rejected the prayer of the opposite party for approval of the order of dismissal.
3. Being aggrieved by the order of the Labour Court the opposite party moved this Court under Article 226 of the Constitution. This Court upheld the order of the Labour Court. The petitioner approached the opposite party for his reinstatement and also claimed arrears of wages. The opposite party, however, turned down the claim of the petitioner. Thereafter, the petitioner filed an application before the Authority under the Payment of Wages Act praying for directing payment to him by the opposite party of his arrears of wages amounting to Rs. 8,535.38. The Authority dismissed the claim of the petitioner on the ground that it was not maintainable. On appeal by the petitioner to the Learned Chief Judge, Small Cause Court, Calcutta who is the appellate Authority under the Payment of Wages Act, the Learned Chief Judge upheld the order of the Authority under the Payment of Wages Act and dismissed the appeal. Hence this application under Article 227 of the Constitution.
4. Both the Authority and the Appellate Authority under the Payment of Wages Act have placed reliance upon the decision of the Supreme Court in M/s. Punjab Beverages Pvt. Ltd. v. Suresh Chand 1978-II L.L.J. 1 In that case, it has been laid down by the Supreme Court that the contravention of Section 33 does not render the order of discharge of dismissal void and inoperative. Further, it has been held that the only remedy available to the workman for challenging the order of discharge or dismissal is that provided under Section 33A, apart of course from the remedy under Section 10 of the Industrial Disputes Act. It has also been ruled by the Supreme Court that the workman concerned cannot maintain an application under Section 33C(2) for determination of any payment of wages on the basis that he continues to be in service. The observation of the Supreme Court has been made relating to a case where an application for permission under Section 33C(2) is not made or is made and withdrawn. But where an application under Section 33C(2) is made and rejected, the position would be quite different. It has been observed by the Supreme Court that if the permission or approval is refused by the Tribunal, the employer would be precluded from discharging or punishing the workman by way of dismissal and the action of discharge or dismissal already taken would be void. Thus there is a distinction between the two cases viz. where an application for permission under Section 33 is made and dismissed and the case where an application is not made or an application is made and withdrawn. In the latter case it has also been observed by the Supreme Court that the withdrawal of the application for approval stands on the same footing as if no application under Section 33(2)(b) of the Industrial Disputes Act has been made at all, and in such cases it cannot be said that the approval has been refused by the Tribunal. So, where an application is made and dismissed, the order of dismissal or discharge would become void. In such a case, it cannot be said that the employer has contravened the provision of Section 33, but the contravention will be made by the employer where he does not make any application for permission under Section 33 or after making an application he withdraws the same.
5. In the instant case, as the application of the opposite party under Section 33(2)(b) was dismissed and the dismissal of the petitioner was not approved, the order of dismissal of the petitioner from service must be considered void and he should be considered as in continuous employment.
6. In our opinion, in the facts of the present case, an application of the petitioner for payment of arrears of wages was maintainable before the Authority under the Payment of Wages Act.
7. In the result, the impugned order of the Appellate Authority and that of the Authority under the Payment of Wages Act are set aside and the case is sent back to the Authority under the Payment of Wages Act with the direction to dispose of the application of the petitioner for payment of arrears of wages on merits after giving the parties an opportunity of being heard.
The Rules are made absolute.
There will, however, be no order as to costs.