ORDER
A.S. Bopanna, J.
1. The brief facts leading to this petition are that, in order to comply with the requirement of the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') the petitioner filed necessary serial application in SA No. 1/1999 before the Labour Court, Hubli seeking approval of the dismissal of the respondent by order dated 12.1.1999. During the pendency of the same, the respondent chose to raise a dispute regarding dismissal by filing a petition under Section 10(4-A) of the Act in KID No. 52/1989 before the same Court Both the matters were proceeding simultaneously until the petitioner filed an application under Section 11 of the Act in SA No. 1/1999 indicating that in view of the workman challenging the order of dismissal by raising a dispute, the application under Section 33(2)(b) of the Act has become infructuous. The petitioner filed objections to the same. The Labour Court after considering the matter by its order dated 29.12.2003 disposed of the serial application as infructuous.
2. When the matter stood thus, the respondent herein filed an application under Section 11 of the Act in the dispute viz., KID No. 52/1999 contending that in view of the disposal of SA No. 1/1999 there is no approval granted in respect of the dismissal of the respondent and therefore the dismissal is void and ineffective and as such seeking necessary ordeRs. The Labour Court by its award dated 16.4.2004 allowed the application and set aside the dismissal order as having become void and ineffective and further directed the second party to restore the first party with further reliefs which in effect is an award of reinstatement with back wages and all consequential benefits. Therefore, the petitioner is before this Court in this petition.
3. The above narration would indicate that, three proceedings have emanated between the parties and in each of these proceedings, the parties have been ranked differently. However, for the sake of convenience and clarity, the petitioner herein is referred to as the 'management' and the respondent herein would be referred to as the 'workman' during the course of this order.
4. Sri K. Kasturi, teamed senior counsel appearing for the petitioner while assailing the impugned award dated 16.4.2004 would refer to the sequence of events that followed from the date of dismissal and the filing of the respective proceedings. Learned senior counsel would contend that the issue for consideration presently is as to whether the proceedings under Section 33(2)(b) of the Act would still continue when the workman himself has questioned the order of dismissal by raising a dispute. In this regard, the learned senior counsel would refer to the order passed by the learned Single Judge of this Court in the case of ITC Limited v. The Presiding Officer, Labour Court W.P. Nos. 4554 to 4627 of 1984 disposed of on 13.7.1984 and the decision of a Division Bench of this Court in the case of ITC Limited v. Government of Karnataka 1985(2) LLJ 430 to contend that the said decisions provide sufficient indication that the application under Section 33(2)(b) would conclude immediately on the workman raising an Dispute with regard to his dismissal since the scope of enquiry in a dispute raised by the workman would be much wider including the relief to be granted by the Labour Court. The scope of Section 33 as compared to Section 10 is also clarified by the Hon'ble Supreme Court in the case of G. Mckenzie & Co. Ltd v. Its Workmen and Ors. 1959(I) LLJ 285. It is therefore contended that it was unnecessary for the Labour Court to proceed with the serial application under Section 33(2)(b) of the Act which would yield to the dispute and therefore, the same would become infructuous. It is in this back ground, the application had been filed by the management. After considering the contention and the decision relied upon by the workman, the Court concluded that the petition had become infructuous and the management bonafide accepted the decision of the Court and continued to proceed with the dispute in KID No. 52/1999. Though the same Court had earlier held the serial application as infructuous has wrongly proceeded to pass the impugned award as if the management had withdrawn the serial application by placing reliance on the decision of the Hon'ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ramgopal Sharma and Ors. 2002(I) LLJ 834, even though the facts arising in the said decision was not with regard to parallel proceedings under Section 10 and Section 33 of the Act. Even otherwise, the award in the nature it is passed by granting reinstatement, backwages and consequential benefits could not have been passed. Even if the Court had come to the conclusion that the dismissal order had not taken effect for non-grant of approval, the only course open would have been to dispose of the 10(4-A) application also as infructuous. Instead the Labour Court after shutting out the right of the management has proceeded to pass the positive award and therefore the same is not sustainable.
5. On the contrary Sri M.C. Narasimhan, learned senior counsel appearing for the workman would contend that the law is well settled that Section 33(2)(b) application and reference under Section 10(1)(c) or a dispute raised under Section 10(4-A) (Karnataka Amendment) are independent of each other which is clearly stated in the very same decision of ITC Limited referred to by the learned senior counsel for the petitioner. It is further contended that in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd, the Hon'ble Supreme Court has re-emphasized the fact that until the approval is granted under Section 33(2)(b) of the Act, the order of dismissal passed by the management does not take effect and therefore the question of the workman challenging the same does not arise. If the matter is looked at from this view, the Labour Court was justified in applying the said decision and passing the award when in the present case, the dismissal order had not been approved. The learned senior counsel would contend that it is the management who Bled an application stating that the serial application had become infructuous and as such, it is the same as withdrawing the application. The stand of the management that the proceedings under Section 33(2)(b) of the Act need not proceed once the dispute is raised by the workman since the scope under Section 10 is wider cannot be accepted. The legal position that the said two proceedings are independent of each other is clear from the case of S. Ganapathy and Ors. v. AIR India and Anr. : (1993)IILLJ731SC , which makes it clear that the jural relationship continues till the approval is granted by the competent Court. Further in the case of ITI Ltd. v. Prabhakar H. Manjuare (2003) 1 SCC 320 the Hon'ble Supreme Court has clearly laid down that an approval under Section 33(2)(b) is not just a technical requirement but is a mandatory requirement under law and if such approval is not granted, the workman is deemed to have been continued in service as if no dismissal order was passed. It is therefore contended that in view of this, the management could not have stopped without proceeding further with the application under Section 33(2)(b) to its logical conclusion and therefore the award passed by the Labour Court does not call for interference.
6. Though in the present case, the short question would be as to whether the act of the management filing an application to treat the serial application as having become infructuous would conclude the dispute under Section 10(4-A) without affording opportunity to the management to justify its action, the larger question with regard to the scope of the proceedings under Section 33(2)(b) and under Section 10(4-A) or Section 10(1)(c) as the case may be would have to be considered and restated keeping in view the decisions cited by the respective learned senior counsel and also the emphasis and the new dimension given to the proceedings under Section 33(2)(b) by the Hon'ble Supreme Court. As such the said issue requires to be considered before adverting to the facts of this case.
7. In that view, the following questions arise for consideration:
i) Whether the approval proceedings under Section 33(2)(b) of the Act would conclude automatically or by implication when a dispute is raised in respect of the very same dismissal under Section 10(4-A) or 10(1)(c) of the Industrial Disputes Act?
ii) What would be the resultant effect of the above to the facts and circumstances of this case and the relief if any to be granted ?
Question (i) Regarding Section 33(2)(B) and Section 10 proceedings:
The primary question as noticed above would be with regard to the nature of the proceedings under Section 33(2)(b) and under Section 10 of the Act and the effect of the latter on the former. In this regard, no doubt a learned Single Judge of this Court had an occasion to examine this aspect in W.P.Nos. 4554-4624/1984 and the learned Single Judge was of the view that the proceedings under Section 10(1) of the Act overbears the proceedings under Section 33(2)(b) of the Act. Therefore the proceedings under Section 33(2)(b) of the Act cease and consequently the authority before whom the proceedings are pending has no jurisdiction to proceed with the matter. This decision was arrived at by the learned Judge after holding that even though there is no such provision in the Act, the omission should be supplied to give effect to the real intention. This order was made on 13.07.1984. But a Hon'ble Division Bench in a some what similar circumstance, by its judgment dated 19.4.1985 (1985 II LLJ 430) has upheld an earlier view dated 22.6.1984 of same learned single Judge reported in 1985 I LLJ 227 and as such I am of the view that the judgment dated 13.7.1984 in W.P.Nos. 4554-4624/1984 would get eclipsed by the later judgment by the Division Bench and therefore the Division Bench decision would have to be looked into and applied.
8. The Division Bench of this Court in the case of ITC Ltd. v. Government of Karnataka 1985 II LLJ 430 examined the power of the Government to make a reference under Section 10 of the Act during the pendency of the application under Section 33(2)(b) of the Act. In that proceedings, it was contended by the management that the Government ought to have applied its mind to this aspect of the pendency of Section 33(2)(b) application and the reference ought not to have been made. In that proceedings the Division Bench of this Court held as follows:
The scope and object of proceedings under Section 10 of the Act and Section 33(2)(b) of the Act are different. Whether the proceedings before the authorities are under Sections 10 or 33(2)(b) of the Act, if the enquiry is defective or if no enquiry is held, the entire case would be open before the authority concerned and the employer would have to justify or satisfy the Tribunal by producing evidence that the order of discharge or dismissal was proper. In proceedings under Section 33(2)(b) of the Act the ban imposed on the employer can only be removed or maintained no other order can be made or relief given by the authorities in these proceedings. Even if the ban is lifted, the dispute is not finally settled and the employee can request for reference under Section 10 of the Act. The power of the authorities in proceedings under Section 10 of the Act are wide and more so after Section 11A of the Act was introduced and the other is enforceable. The pendency of the proceedings under Section 33(2)(b) of the Act is no bar for the exercise of the power under Section 10 of the Act. In these circumstances it is desirable and proper that both the proceedings under Sections 33(2)(b) and 10 of the Act should not continue simultaneously. Necessarily the proceedings under Section 33(2)(b) of the Act should stand concluded immediately on a reference being made under Section 10 of the Act. We may point out that legislature has already provided in Section 10(6) of the Act that proceedings before the Labour Court or the Tribunal stands quashed on the Central Government making a reference of the same dispute under Section 10A of the Act and Section 20(2)(a) of the Act provides that the conciliation proceedings stand concluded as the State Government referring the same dispute for adjudication under Section 10(1) of the Act. It is better if a similar provision is made for automatic termination of proceedings under Section 33(2)(b) of the Act on a reference of the same dispute being made under Section 10 of the Act.
(emphasis supplied by me)
The said decision would indicate that this Court was of the view that the scope and object of the proceedings under Section 10 and 33(2)(b) of the Act are different and it would be open for the Government to refer the dispute even during pendency of application under Section 33(2)(b). No doubt, while considering the same, the Hon'ble Division Bench was of the view that it is desirable and proper that both the proceedings under Section 33(2)(b) of the Act should not continue simultaneously and the proceedings under Section 33(2)(b) of the Act should stand concluded on the reference being made. The further observation of the Hon'ble Division Bench that it is better that a provision be made for automatic termination of the proceedings under Section 33(2)(b) of the Act on a reference of the same dispute being made under Section 10 of the Act would indicate that the Division Bench had not stated as a declaration of Law that in all cases the proceedings under Section 33(2)(b) of the Act would automatically conclude, but had only expressed the desire that it should stand concluded and recommendation was made that such provision be incorporated. The head note in reporting the decision has also added to the confusion since the word 'cannot' instead of 'should not' is used which has changed the context. But the fact remains that not only the view of the learned Single Judge in the earlier decision is impliedly diluted by the Division Bench in a different case relating to the same management, but is also only a recommendation to incorporate such a provision for automatic termination. The Hon'ble Division Bench was of that view by taking note of the fact that even though proceedings under Section 10 and 33(2)(b) are different, the power to be exercised in a proceedings under Section 10 is of wider jurisdiction which includes the power to alter the punishment whereas in a proceedings under Section 33(2)(b) it is only with regard to grant or refusal of the approval sought for. Further, the view expressed by the Hon'ble Supreme Court in the case of G. Mckenzie & Co. v. Its workmen would indicate not only the proceedings under Section 33(2)(b) and 10 are two different proceedings but the conclusion of the proceedings under Section 33(2)(b) by grant of approval does not act as a res judicata for the subsequent proceedings under Section 10 of the Act. Hence that cannot be understood to say that on reference being made, the ban automatically gets lifted.
9. While on this question one other aspect which requires to be noticed is that the nature of these two proceedings was being examined keeping in view the position of law as enunciated at an earlier point of time when the scope under Section 33(2)(b) was considered to be much narrower than the scope and jurisdiction exercisable under Section 10 of the Act. However, the pronouncement of the Constitution Bench of the Hon'ble Supreme Court in the case of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Ramgopal Sharma and Ors. after referring to the earlier decisions of the Supreme Court would emphasise the fact that the proviso to Section 33(2)(b) is mandatory Rom its unambiguous and clear language. No doubt in the said decision, the question of parallel proceedings did not arise. But the heavy burden which is imposed by Section 33(2)(b) on the management is restated by holding that the management cannot disobey the mandatory provision and then contend that the order of discharge made in contravention of Section 33(2)(b) is not void or inoperative. It is in that context the Hon'ble Supreme Court was of the view that if the authority refuses to grant approval, obviously it follows that the employee continues to be in service as if the order of discharge or dismissal had never been passed. The Hon'ble Supreme Court further held that non-making of an application seeking approval or withdrawing an application once made before any order is made therein is a clear case of contravention to Section 33(2)(b). This was stated after disapproving the earlier view in Punjab Beverages Pvt. Ltd. v. Suresh Chand : (1978)IILLJ1SC . It therefore means that the requirement of Section 33(2)(b) of the Act is for the management to comply with and to pursue it till the same is allowed and approval is granted by the competent Court and if this is kept in view, even if a workman raises a dispute, it does not entitle the management to withdraw or abandon the application which was filed since it would amount to the approval not being granted in such case.
10. Further the Hon'ble Supreme Court in the case of S. Ganapahy and Ors. v. AIR India and Anr. though while considering the statutory deductions to be made from one month wages which is payable under Section 33(2)(b) has held that for the dismissal order to be effective, an approval from the competent Court is a must and the passing of the dismissed order is only bringing to an end the defacto relationship of employer and employee but not the the jurisdiction relationship. Further the order would be incomplete and incohate until the approval is obtained. If the approval is not accorded, the employer would be bound to treat the workman concerned as its employee and pay him all the wages for the period and even though the employer subsequently could proceed to terminate the employee's services.
11. In the subsequent and more recent decision of the Hon'ble Supreme Court in the case of ITI v. Prabhakar Manjuare a new dimension has been added to the right available to a workman under Section 33(2)(b) itself which is almost similar to the relief which would be available under Section 10 of the Act. The Hon'ble Supreme Court in the cited decision has held that the non-compliance with the requirements of proviso to Section 33(2)(b) is not just a technical breach and a second dismissal order cannot be passed by rectifying the mistake. This dimension which is now stated by the Hon'ble Supreme Court would indicate that the Tribunal exercising the jurisdiction to look into the compliance of the provisions of Section 33(2)(b) of the Act would not just examine whether the same has been complied with and would not approve the second order passed after compliance. If the Tribunal comes to the conclusion that there is non-compliance and if the approval is not granted the dismissal order never takes effect and it is as if the workman had continued to remain in service and therefore the said relief is no less than the relief of granting reinstatement under Section 10 proceedings when the dismissal is defective.
12. No doubt there is one other additional factor in a proceedings under Section 10 even after a valid order of dismissal is made, where the Labour Court could exercise, the discretion available under Section 11A of the Act but the same alone does not reduce the rigour of Section 33(2)(b). While on this aspect, the recent pronouncements of the Hon'ble Supreme Court relating to Industrial adjudication cannot also be lost sight of wherein, the Hon'ble Supreme Court has in several decisions considered the scope of discretion available under Section 11A of the Act and has held that such discretion is not unfettered. Further several guidelines have been laid as to under what circumstances the said power could be exercised and as such the discretion which is available to Labour Court or Industrial Tribunal has been considerably narrowed down. That apart even grant of backwages does not automatically follow every reinstatement. Under such circumstance there is a possibility that if approval is refused due to non-compliance, the workman is likely to get a larger relief under Section 33(2)(b) itself. Hence the same yardstick applied more than two decades cannot be applied in the changed scenario.
13. In fact the Hon'ble Supreme Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat : AIR2006SC212 while considering the principle of 'stare decisis' has held as follows:
State decisis is not a dogmatic rule allergic to logic and reason: it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, State Policy and judicial conscience. The doctrine of stare decisis is generally to be adhered to because well settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet the demands of the changed facts and circumstances dictated by forceful factors supported by logic, amply justify the need for a fresh look.
CONCLUSION REGARDING QUESTION (i)
Therefore, from the examination of the relevant provisions and the decisions rendered from time to time which have been discussed above, the position which emerge would be as follows:
a) The proceedings under Section 33(2)(b) and the proceedings under Section 10(4-A) or reference made under Section 10(1)(c) are independent of each other and them is no bar under the Act for both the proceedings to continue simultaneously and the mere raising of the dispute either under Section 10(4-A) or 10(1)(c) of the Act does not automatically or by implication conclude the proceedings under Section 33(2)(b) which has been previously instituted.
b) Since Section 33(2)(b) is an injunction or ban on the employer against terminating or dismissing a workman during the pendency of a main dispute without the compliance of proviso to Section 33(2)(b) and seeking approval of the competent Court, the proceedings initiated by the management under Section 33(2)(b) cannot be stopped/withdrawn/abandoned or be treated as infructuous at the instance of the management without the same reaching its logical conclusion.
c) However, if a dispute is raised either in the form of 10(4-A) or 10(1)(c) by the workman and if the workman at his option elects the remedy of proceeding further only with the dispute raised by him, it would be open to such workman to file appropriate application or memo in serial application of Section 33(2)(b) proceedings either conceding approval or to treat the same as infructuous and in such event the approval would be treated as a foregone conclusion and shall not affect the right of the management since the injunction or ban on the management gets lifted by the concession of the workman, deeming that the dismissal order is in accordance with law.
PRACTICE AND PROCEDURE:
14. Having come to the above conclusion, one cannot ignore that in the circumstance explained therein, the Division Bench in the case of ITC Ltd had recommended the amendment. Though two decades have elapsed, the legislature in their wisdom have not yet found the need to do so. As such the two proceedings will have to proceed simultaneously. That being so, I deem it proper to spell out the following practice and procedure within the existing frame work of law so as to minimise the conflict, even while maintaining the two proceedings:
i) Considering that except for the right of exercising power of discretion available under Section 11A of the Act in Section 10 proceedings and the compliance of the payment of one month's wages and the immediate filing of the application under Section 33(2)(b) proceedings the other larger scope of enquiry being the same in both the proceedings such as the validity or otherwise of the domestic enquiry and the victimisation and unfair Labour practice aspects and further keeping in view the constraint for judicial time being spent on proceedings of similar nature between the same parties, it would be open either for the Court suo-motu or on an application by either of the parties (management or workman) to club the proceedings and record common evidence and hear common arguments on both the aspects of the matter since the findings with regard to the domestic enquiry and victimisation would be common to both the proceedings.
ii) Since Section 33(2)(b) application is to be filed to the authority before whom the main dispute is pending, in so far as the Courts/Tribunals are concerned, if the main dispute and Section 33(2)(b) application are pending in One Court/Tribunal including National Tribunal and if the dispute raised by the workman under Section 10 is pending in another Court/Tribunal, the appropriate course would be to seek and secure transfer of Section 33(2)(b) proceedings to the Court/Tribunal wherein the dispute under Section 10 is pending.
iii) Though common proceedings would be held till the stage of arguments, the Labour Court/Tribunal shall however pronounce separate order/award for the two proceedings since the consideration of grant of relief or otherwise in Section 10 proceedings would depend on the grant of approval or not in 33(2)(b) proceedings, apart from the fact that the same would be convenient for the purpose of publication as contemplated under Section 17 of the Act.
PROSPECTIVE APPLICATION:
15. The discussion and conclusion reached above with reference to the decisions of this Court and the Hon'ble Supreme Court would indicate that the aspect as to whether the proceedings under Section 33(2)(b) would impliedly come to an end appears to have been in a fluid state which had created uncertainty. However, since this Court in this decision after referring to the subsequent decisions of the Hon'ble Supreme Court has come to the conclusion that the said two proceedings are independent of each other and the same could proceed simultaneously except under the circumstances stated above. This decision shall therefore remain prospective and shall not affect the cases where Section 33(2)(b) proceedings have been brought to an end in any other manner and the parties having accepted and the same having reached its finality of both proceedings or in so far as Section 33(2)(b) and even if Section 10 proceedings only is pending.
QUESTION (ii) REGARDING FACTS OF THIS CASE
16. The above conclusion would answer the first question raised above and as such it is necessary to advert to the second question relating to the fact situation in the present case. As already noticed above, the decisions rendered by this Court was being understood as if Section 33(2)(b) proceedings cannot proceed when dispute under Section 10 is raised. In many such cases the 33(2)(b) proceedings is likely to have yielded itself and the parties have accepted the decision. But the present case is a peculiar situation where acting on such fluid state of affairs, an application was filed by the management indicating that the same has become infructuous. No doubt the workman objected to the same and therefore the Labour Court had to adjudicate and pass an order dated 29.12.2003. While passing the order, the Labour Court had applied its mind to the position as to whether the same has become infructuous or not. Though a decision reported in Hindustan Aeronautics Ltd v. S. Alfred Slim ILR 1995(3) Kar 2656 has been referred to, the said decision appears to be cited by the workman to contend that the filing of an application under Section 10(4-A) of the Act was only to avoid the limitation period fixed for filing such application if he does not file it within time. The perusal of the same indicates that the said decision infact states that a workman can file an application under Section 10(4-A) after disposal of the proceedings under Section 33(2)(b) by computing the period of limitation from the date the serial application is disposed of. Therefore, the said decision was not apt to the situation. Be that as it may, the Labour Court however after considering the contentions of both the sides has pronounced its orders holding that in view of the workman challenging the dismissal order before the very same Court, the application is disposed of as infructuous. Therefore, in the said circumstances, the Court also has applied its mind to find out whether the application has become infructuous and probably being guided by the understanding of law at that point of time has disposed of the matter as infructuous. It is not a simple disposal as infructuous at the risk of the management. This aspect of the matter also requires to be borne in mind before examining the impugned award passed in the present case.
17. When the matter stood thus, the workman filed an application in the dispute, which he had filed under Section 10(4-A) seeking for necessary orders since Section 33(2)(b) application was disposed. The perusal of the award would indicate that the Labour Court after referring to the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd's case on the proposition that the non-grant of approval would make the order of dismissal ineffective has proceeded to pass the award. This has been done by deeming as if the management has withdrawn the petition filed under Section 33(2)(b) of the Act. What is intriguing is that both the orders passed are by the same Court and by the same Presiding Officer.
18. As already noticed by me there was certain uncertainty with regard to the legal position and further the Court also had understood this in a broad manner and disposed of the application as having become infructuous. No doubt the process for the same had been initiated by the management but when there was objection to the same and the same was being considered by the Court in detail, it would have been open for the Court to explain the position of law and state that the same has not become infructuous if the Court had thought the legal position was otherwise. In this background, I am of the view that this is one of the cases where the maxim 'actus curiae reminem gravabit' viz., the act of Court should do no harm to the litigant has to be applied.
19. In a decision rendered by the Hon'ble Supreme Court in the case of Jang Singh v. Brij Lal and Ors. : [1964]2SCR145 in a slightly different situation but where certain act of the Court was also involved, the Hon'ble Supreme held that there is no higher principle for the guidance of the Court than the one that no act of Court should harm the litigant and it is the bounden duty of the Courts to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake. By saying so, the Hon'ble Supreme Court stated that it is aptly summed up in the maxim 'actus curiae reminem gravabit' though in that case also the Hon'ble Supreme Court had noticed that there was some fault on the part of the petitioner also. In my view, the case on hand is one such case where the Court also had understood a particular position and allowed the management to act in a particular manner. Further in the course of this decision after explaining the position of law, this Court has also come to the conclusion that the position explained would prospectively apply and as such this Court is of the view that the management in the present case who had filed an application with the bonafide belief that the proceedings under Section 33(2)(b) of the Act had become infructuous cannot be shut off from all legal remedies. As enunciated by the Hon'ble Supreme Court, in a situation like this, the parties should be restored to the position they would have occupied but for the said mistake. At the same time, this Court cannot also be oblivious to the fact that the management themselves also contributed to this state of affairs and this has prejudiced the workman due to the time lapse and has also forced him to defend one more litigation. As such he requires to be duly compensated if the management is to be put back to the same position to pursue their legal remedy.
20. Having said this, there is yet another reason to hold that the impugned award dated 16.4.2004 is not sustainable i.e. if in fact the workman did not wish to pursue the dispute filed under Section 10(4-A) on the understanding that the dismissal order had not become elective, the bonafide course should have been to withdraw the application and pursue the remedy under Section 33-A or 33(c)(2) of Act. Atleast the Labour Court should have passed such an order. Instead the reasoning adapted by the Labour Court in passing the award is to indicate that in view of the non-approval of the order of termination, the order itself has not taken effect, but ultimately proceeds to set aside the order dated 12.1.1999 which is not in existence and reinstate the workman with backwages and consequential benefits in Section 10(4-A) proceedings which run contrary to one another and does not stand to reason and is therefore perverse.
21 In the result, the following: