Workman Can't Be Denied Reinstatement Once Dismissal Is Rendered Inoperative For Non-Compliance Of Section 33(2)(b) ID Act: Bombay High Court

The Court was hearing cross writ petitions arising from a common award passed by the Industrial Court, Thane. While the workman challenged the denial of reinstatement and full back wages despite the finding that his dismissal violated Section 33(2)(b) of the Industrial Disputes Act, the employer assailed the finding that termination during pendency of industrial references amounted to breach of the statutory provision.

A Bench of Justice Amit Borkar observed, “If dismissal is deemed never to have validly taken effect, then the workman must, in the normal course, be treated as a continuing employee. In that event, reinstatement is not the creation of a new right but recognition of an existing right.”

The Court further held, “Where statute itself says no separate order of reinstatement is necessary because continuity follows automatically, refusal of reinstatement must rest on strong reasons supported by evidence, such as closure of establishment or similar grounds.”

Advocate Jane Cox appeared for the petitioner, while Senior Advocate Sudhir Talsania appeared for the employer company.

Background

The workman was issued a charge sheet in October 2012, alleging misconduct under various clauses of the Certified Standing Orders applicable to the establishment. Following a domestic enquiry, the Enquiry Officer held the workman guilty, and the report was communicated to him.

During the pendency of an industrial dispute between the employer and the recognised union, a Memorandum of Understanding dated 14 August 2014 was entered into regarding disciplinary proceedings against eighteen workmen. Under the settlement, thirteen workmen were reinstated subject to conditions, while disciplinary proceedings against five workmen, including the petitioner, continued.

Thereafter, the management decided to dismiss the petitioner-workman from service on 17 October 2014. The workman challenged the dismissal before the Industrial Tribunal under Section 33A of the Industrial Disputes Act, contending that the dismissal was illegal and discriminatory.

The Industrial Tribunal eventually held that the dismissal was in contravention of Section 33(2)(b) as it had been effected during the pendency of industrial references. However, instead of directing reinstatement, the Tribunal awarded compensation of Rs. 7 lakh in lieu thereof.

Court’s Observation

The High Court examined the scheme and object of Section 33 of the Industrial Disputes Act. The Court observed that Section 33 is a statutory safeguard intended to preserve industrial peace during the pendency of industrial adjudication and to prevent victimisation of workmen by employers during such period.

The Bench held that while Section 33(1) governs matters connected with the pending dispute, Section 33(2)(b) specifically regulates discharge or dismissal for misconduct unconnected with the dispute by imposing mandatory conditions, including payment of one month's wages and obtaining approval from the adjudicatory authority before whom proceedings are pending.

The Court further relied upon Grindlays Bank Ltd. v. Central Government Industrial Tribunal (1980) to hold that industrial proceedings continue to remain pending till expiry of thirty days from publication of the award under Section 17A of the Act.

Rejecting the employer’s argument that the industrial references had effectively ended once settlement was arrived at, the Court observed that statutory pendency under Section 20(3) could not be curtailed merely because parties subjectively believed that the dispute had ended. The Bench held that once proceedings were legally pending, compliance with Section 33(2)(b) became mandatory before dismissal of the workman.

The Court then extensively relied upon the Constitution Bench decision in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma (2002), wherein it was held that dismissal during pendency of industrial proceedings remains incomplete and inchoate unless approval under Section 33(2)(b) is obtained.

Quoting the Constitution Bench, the Court noted: “If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed.”

The High Court observed that once dismissal is rendered non est in law, the workman is deemed to have continued in service and continuity follows automatically by operation of the statute itself. The Bench therefore held that the Industrial Tribunal committed an error in substituting reinstatement with lump sum compensation despite having already held that the dismissal violated Section 33(2)(b).

The Court further clarified that refusal of reinstatement in such circumstances can be justified only upon strong reasons supported by evidence, such as closure of the establishment or similar exceptional grounds. The Bench held: “Mere passage of time would not displace statutory consequence.”

On the issue of back wages, the Court observed that the workman had remained unemployed for some time after termination and subsequently commenced a grocery business, which later closed during the COVID period.

The Court directed payment of full back wages from the date of termination till commencement of the grocery business in 2016, fifty per cent back wages during the period the grocery business remained operational, and full back wages thereafter till reinstatement.

Conclusion

The High Court dismissed the employer’s writ petition and partly allowed the workman’s petition. The Court upheld the Industrial Court’s finding that termination of the workman during pendency of industrial references violated Section 33(2)(b) of the Industrial Disputes Act.

The Court quashed the award to the extent it denied reinstatement and granted compensation of Rs. 7 lakh in lieu thereof. The employer was directed to reinstate the workman to his original or equivalent post with continuity of service and consequential benefits.

The Court further directed payment of back wages in the manner specified in the judgment and ordered computation and payment of arrears within twelve weeks from reinstatement.

Cause Title: Santosh Chandrkant Potdar v. Bajaj Auto Limited (Neutral Citation: 2026:BHC-AS:20592)

Appearances

Petitioner: Advocates Jane Cox, Vinayak Suthar, and Ghanashyam R. Thombare

Respondents: Senior Advocate Sudhir Talsania; Advocates Sayali Puri

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