The Bombay High Court has ruled that a workman whose dismissal becomes legally inoperative due to non-compliance with Section 33(2)(b) (NOW Sec 90 in IR Code) of the Industrial Disputes Act, 1947, cannot be denied reinstatement merely by awarding compensation in lieu of reinstatement.
In a judgment strengthening statutory safeguards available to workers, court held that once dismissal is found to be contrary to the mandatory requirements of Section 33(2)(b), (Sec. 90 in IR Code) the workman is deemed to have continued in service and reinstatement must ordinarily follow.
The ruling came in the case titled Santosh Chandrkant Potdar vs. Bajaj Auto Limited.
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The dispute arose after a workman challenged his dismissal during the pendency of industrial proceedings. The employer had argued that the underlying industrial dispute had already been settled and, therefore, prior approval under Section 33(2)(b) was unnecessary. However, the Court rejected this contention, observing that under Section 20(3) of the Industrial Disputes Act, proceedings legally remain pending until 30 days after publication of the award.
The Court emphasised that Section 33 is intended to preserve industrial peace and prevent employers from taking coercive action against workers during the pendency of adjudicatory proceedings. It held that compliance with Section 33(2)(b) , including payment of one month’s wages and seeking approval from the competent authority, is mandatory before dismissing a workman for misconduct unrelated to the pending dispute.
Referring to settled Supreme Court precedent, the High Court observed that a dismissal order passed without obtaining the required approval remains “inchoate” and ineffective in law. Consequently, the employee continues to remain in service as if the dismissal had never taken effect.
The Bench also set aside the Industrial Court’s refusal to grant reinstatement and clarified that compensation cannot substitute reinstatement where termination itself is rendered void due to statutory non-compliance. The Court directed reinstatement with continuity of service along with partial back wages.
