Dismissal of employee subject to approval of tribunal: SC

New Delhi, May 17: During the pendency of a dispute between an employee and employer before the industrial tribunal, the employer can dismiss the employee from the service only with the permission of the tribunal if the dismissal is linked to the same dispute, the Supreme Court has ruled.

An employer has the discretion to initiate departmental inquiry and pass an order of dismissal or discharge against the workman, but “the order remains in an inchoate state till the employer obtains order of approval from the tribunal,” a bench comprising Justice DP Mohapatra and Justice Sihivraj V Patil said in a recent judgment.

“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 could happen only when the tribunal accords its approval,” Justice Mohapatra, writing the judgment for the bench, said.

The relationship of employer and employee is not legally terminated till approval of discharge or dismissal by the tribunal, he said. Tamil Nadu State Transport Corporation dismissed one Neethivilangan from service and sought approval of the dismissal from the industrial tribunal. The tribunal rejected the application by the corporation and its appeals against the order was also rejected by the high court and the Apex court.

However, the corporation, despite losing the case, neither reinstated Neethivilangan in service nor paid him wages. He then approached the Supreme Court for payment of wages and other benefits.

The question that arose for consideration of the Apex court was - what is the right of a workman after the application filed by the employer for approval of the order of his dismissal/discharge from service is refused by the tribunal and what is the remedy open to the workman in such a situation?

The Supreme Court said in a case where the tribunal refused to accord approval to the action taken by the employer and rejected the petition filed under Section 33(2)(B) of the Industrial Disputes Act on merit, the employer was 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,” Justice Mohapatra said.

He said there was no rational basis for holding that after the order of dismissal or discharge had 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 was decided by the tribunal in an industrial dispute. (PTI)