Case Note & Summary
The petitioner, Rajendra Dwarkanath Bakre, was appointed as a clerk in the Bank of India on 20.01.1984. His services were terminated on 12.02.1991, which he challenged before the Central Government Industrial Tribunal. The Tribunal set aside the termination on 07.11.2012, ordering reinstatement with continuity of service and all consequential benefits. The petitioner was reinstated on 02.12.2013. Subsequently, the Bank initiated disciplinary proceedings against the petitioner for unauthorized absence, insubordination, and making false complaints. During the pendency of conciliation proceedings before the Assistant Labour Commissioner (Central), Nagpur, initiated on 10.12.2014, the Bank issued a punishment order on 01.10.2015 dismissing the petitioner from service. The petitioner immediately approached the Assistant Labour Commissioner with an addendum under Section 33A of the Industrial Disputes Act, 1947, but the Commissioner refused to take cognizance on the ground that the representation was not filed through a Registered Trade Union. The petitioner challenged this refusal in Writ Petition No. 695 of 2016. In the present writ petition, the petitioner sought a declaration that the dismissal order dated 01.10.2015 is void ab initio for being passed in breach of Section 33(1)(b) of the Act, and that he be treated as in continuous service. The court framed the issue of whether the dismissal order passed during pendency of conciliation proceedings without prior permission under Section 33(1)(b) is void. The petitioner argued in person that the Bank violated the statutory prohibition by dismissing him without obtaining permission from the conciliation officer. The respondent Bank, represented by Shri A.T. Purohit, contended that the petitioner had an alternative remedy under Section 33A and that the writ petition was not maintainable. The court analyzed Section 33(1)(b) and held that the provision imposes an absolute prohibition on altering service conditions or punishing a workman during pendency of proceedings before a conciliation officer, arbitrator, or tribunal without express written permission. The court noted that the conciliation proceedings were pending from 10.12.2014, and the dismissal order was passed on 01.10.2015 without any such permission. The court rejected the Bank's argument regarding alternative remedy, holding that an order passed in contravention of a statutory prohibition is void ab initio and can be challenged directly. The court relied on the principle that a void order is a nullity and its validity can be questioned in any proceedings. The court declared the dismissal order dated 01.10.2015 as void ab initio and directed that the petitioner be treated as in continuous service with all consequential benefits, including back wages and continuity of service. The writ petition was allowed with no order as to costs.
Headnote
A) Industrial Disputes Act, 1947 - Section 33(1)(b) - Prohibition during pendency of proceedings - Void ab initio - The employer dismissed the petitioner during pendency of conciliation proceedings without obtaining prior written permission from the conciliation officer. The court held that such an order is in direct contravention of the statutory prohibition and is void ab initio. The petitioner is entitled to be treated as in continuous service and to all consequential benefits. (Paras 1-10) B) Industrial Disputes Act, 1947 - Section 33A - Remedy for contravention - Not a bar to direct challenge - The court held that the availability of a remedy under Section 33A does not preclude the workman from directly challenging the order of dismissal as void ab initio. The order passed in violation of Section 33(1)(b) is a nullity and can be challenged independently. (Paras 5-10) C) Industrial Disputes Act, 1947 - Section 33(1)(b) - Requirement of prior permission - Mandatory - The court emphasized that the prohibition under Section 33(1)(b) is absolute and the employer must obtain express permission in writing before altering service conditions or punishing a workman during pendency of proceedings. Failure to do so renders the action void. (Paras 5-10)
Issue of Consideration
Whether the order of dismissal dated 01.10.2015 passed by the Bank of India during the pendency of conciliation proceedings before the Assistant Labour Commissioner, without obtaining prior permission under Section 33(1)(b) of the Industrial Disputes Act, 1947, is void ab initio and whether the petitioner is entitled to be treated as in continuous service.
Final Decision
The court allowed the writ petition, declaring the order of dismissal dated 01.10.2015 as void ab initio for being passed in breach of Section 33(1)(b) of the Industrial Disputes Act, 1947. The court directed that the petitioner be treated as in continuous service with all consequential benefits, including back wages and continuity of service. No order as to costs.
Law Points
- Section 33(1)(b) of the Industrial Disputes Act
- 1947 imposes a prohibition on altering service conditions or punishing a workman during pendency of conciliation proceedings without express permission in writing from the authority before which the proceeding is pending
- Violation of Section 33(1)(b) renders the order of dismissal void ab initio
- The remedy under Section 33A is not a bar to a direct challenge to the order of dismissal on the ground of nullity
- The principle of 'void ab initio' applies to orders passed in contravention of statutory prohibitions
