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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4560 OF 2008

Rajasthan State Road Transport Corporation  and Another      ...    Appellant (s)

Versus  

Satya Prakash      ...    Respondent  (s)  

J   U   D   G   M   E   N   T

H.L. Gokhale J.

This  appeal  seeks to challenge the judgment and  

order dated 21.10.2005 rendered by a Division Bench of the  

Rajasthan High Court in D.B. Special Appeal (Writ) No.1093 of  

2005,  dismissing the appeal  filed by the appellants against  

the judgment and order dated 19th July, 2005, rendered by a  

learned Single Judge of that High Court in Civil Writ Petition  

No.3933  of  2009,  by  which  judgment  the  award  dated

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3.12.2002 rendered by the Industrial Tribunal, Jaipur in Case  

No. I.T. No.41 of 1994 was upheld.

2. Mr.  Puneet  Jain,  learned counsel  has appeared in  

support of this appeal and Mr. Shovan Mishra, learned counsel  

for the respondent.

The facts leading to this appeal are as follows:-

3. The respondent was working as a bus conductor on  

daily  wages  under  the  appellant-Rajasthan  State  Road  

Transport Corporation (“S.T. Corporation” for short) from 8th  

May,  1987  with  a  daily  wage  of  Rs.20/-  per  day.   His  

appointment was for a period of three months only though it  

appears that it was continued for a little while more.  It was  

alleged that during this short period also there were instances  

of his misbehaviour with the staff, of using abusive language,  

and coming to  office  in  drunken state.   An  F.I.R.  was  also  

lodged against him.  It  so transpired that when he was on  

duty  on  10th October,  1987,  on  the  route  from  Sirohi  to  

Jodhpur,  his bus was checked by a flying squad led by the  

Judicial Magistrate, Transport.  It was found that there were  

20  passengers  traveling  in  that  bus.   The  respondent  had  

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collected the fare from all of them.  However, three and half  

tickets were found to have been issued less.  In view thereof a  

Departmental  enquiry  was  conducted  against  him.   The  

respondent did not appear therein despite notices.  Appellant  

led the necessary evidence, and the inquiry officer held that  

the  charge  was  proved.   The  respondent  was,  therefore,  

directed to be dismissed from service by the order passed by  

the  Divisional  Manager,  Jodhpur  with  effect  from  20th  

November, 1987.

4. The respondent felt aggrieved by his dismissal and  

filed  a  Civil  Suit  before  the  Additional  Civil  Judge,  Junior  

Division, Jaipur City being Civil Suit No.1572 of 1989.  The first  

issue raised in that suit was whether the termination of the  

respondent was liable to be set aside for being bad in law for  

being and against the principles of natural justice.   The Court  

noted  that  the  respondent  was  issued  notices  to  remain  

present in inquiry, first on 27.10.1987, and on 6.11.1987, but  

he chose not to remain present.  The Court, therefore, held  

that it becomes clear that the respondent was given sufficient  

opportunity  of  being  heard,  but  he  himself  did  not  remain  

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present  before  the  competent  authority,  and  the  inquiry  

officer had no other option except to proceed ex-parte.  The  

Civil Court also noted that the respondent had accepted the  

fact  in  his  statement  that  when  the  bus  was  checked  on  

10.10.1987, the flying squad had made necessary remark on  

the way-bill but he had refused to sign it.  The Court observed  

that this conduct of the respondent proved that he did not  

want the truth of the incident to be brought on record. The  

Civil Court, therefore, decided the first issue in favour of the  

appellants. The second issue raised was with respect to the  

jurisdiction of the Civil Court.  The appellant had contended in  

their written statement that since the concerned dispute was  

an industrial dispute, the Civil Suit was not maintainable.  The  

issue was however not decided on that count.  It was decided  

in favour of the appellants on another basis viz. that the Civil  

Court in Jaipur did not have the jurisdiction for the reason that  

the cause of action had arisen in Jodhpur since the order of  

the  Divisional  Manager  was  passed  in  Jodhpur.  The  suit,  

therefore, came to be dismissed by its judgment and order  

dated 24.11.1994.   

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5. At that time, another industrial dispute concerning  

the workmen of the appellant-S.T.  Corporation was pending  

determination  before  the  Labour  Court/Tribunal  being  I.T.  

No.92 of 1986 concerning the demands of the workman.  The  

respondent, therefore, filed a Complaint before the Industrial  

Tribunal  of  Rajasthan  at  Jaipur  under  Section  33A  of  the  

Industrial Disputes Act, 1947 (“I.D. Act” for short) which was  

numbered as  case  No.  I.T.  No.41 of  1994.  The respondent  

however did not disclose that he had filed a civil suit earlier  

which had come to be dismissed.  The respondent took the  

plea that the appellant was expected to apply for approval of  

its  action  to  the  Tribunal/Labour  Court  concerned  under  

Section 33 (2) (b) of the I.D. Act.  The appellant had not done  

that, and therefore the termination of his services was bad in  

law.   

6. (i) The learned Tribunal,  which heard the Complaint,  

held that the S.T.  Corporation had not held a departmental  

inquiry as contemplated under the standing orders. This was  

despite the evidence of the appellant in the Tribunal that the  

respondent  did  not  remain  present  in  the  inquiry  although  

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notices  of  personal  hearing  were  served  on  him.   The  

Appellant  was  however  given  the  opportunity  to  prove the  

misconduct in the Tribunal.  The appellant filed the affidavit of  

the officers concerned and they were cross-examined.  The  

respondent  also  produced  his  affidavit  and  was  cross-

examined.  The Tribunal examined the material on record. It  

noted that the corporation witness Purshottam Das Purohit, a  

member  of  the  checking  squad  stated  that  there  were  20  

passengers  in  the  bus  out  of  whom  3½  passengers  were  

found  to  be  without  tickets.   The  respondent  had  already  

collected the amount of fare for all of them.  Accordingly, Mr.  

Purohit had recorded his remarks on the way-bill.  Signatures  

of  two  witnesses  and  also  of  the  bus  driver  were  taken  

thereon.  He further stated that the respondent had refused to  

sign on the way-bill. The statement of one of the passengers  

without ticket viz. one Bhanwar Lal Goyal was recorded and  

his  signature  was  taken.   The  statements  of  the  3½  

passengers were also recorded at the site.   

(ii) In paragraph 9 the Tribunal referred to the affidavit of  

the respondent.  He accepted that he had no enmity with the  

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inspecting team.  He accepted that inspection of the bus had  

been done on that date.  He however, denied that 3½ tickets  

were not issued.  The Tribunal however, noted that he did not  

produce  any  specific  evidence  to  prove  his  statement.  

Therefore, at the end of paragraph 9 of the award the Tribunal  

concluded in the following words:-

“Therefore  from  the  evidence  of  the  Corporation  the  charge  of  carrying  3  ½  passengers without ticket by the Applicant during   the  course  of  the  inspection  is  certainly  proved   and from whom he had already recovered the fare  amount.”

7.  Thus as seen from above,  the Tribunal  in  terms  

held in paragraph 9 of its judgment that the charge of not  

issuing three and a half  tickets,  despite receiving the fare,  

was certainly proved.  The Tribunal however held that the fact  

remained that at the same time the provisions of Section 33  

(2) (b) of the Act had not been complied with, which had led  

to the filing of the Complaint.  Therefore, by its award dated  

3.12.2012, it directed reinstatement of the respondent though  

without backwages but with continuity of service.  This was  

after referring to the law laid down by a Constitution  Bench of  

this Court in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd.  

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vs. Ram Gopal Sharma reported in 2002 (2) SCC 244, that  

non  compliance  with  Section  33  (2)  (b)  will  make  the  

termination inoperative.  This order has been left undisturbed  

by a learned Single Judge of the High Court, as well as by the  

Division Bench.  Hence, this appeal.  At this stage, we may  

note that neither in the Tribunal nor before the High Court did  

the  appellant  raise  any  submission  based  on  the  earlier  

decision of the Civil Court.  

Submissions  of  the  rival  parties  and  their  

consideration:-  

8. (i) The appellant is aggrieved by the relief granted to  

the respondent on account of the breach of Section 33 (2) (b)  

of the I.D. Act, since the Tribunal had otherwise held that the  

misconduct  had  been  proved.  Learned  counsel  for  the  

appellant Mr. Puneet Jain, drew our attention to the judgment  

of this Court in the case of The Bhavnagar Municipality vs.  

Alibhai  Karimbhai  and  Ors., reported  in  1977  (2)  SCC  

350, wherein this Court has held in paragraph 15 that when a  

Complaint under Section 33A is filed, after finding out whether  

there is a breach of the provision of Section 33, the Labour  

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Court or  Tribunal  is  supposed to treat the Complaint under  

Section 33A in the same manner as in the case of a Reference  

under Section 10 of the Act.  In the present matter also both  

the parties were allowed to lead evidence on the merits of the  

controversy  before  the  Tribunal,  and  then  the  finding  was  

arrived  at  as  in  a  Reference.   The  submission  is  that  

thereafter the workman cannot be allowed to raise the plea of  

the initial breach of Section 33 (2) (b) of the Act.     

(ii)   Alternatively, it is submitted that it is essentially a case  

of technical breach of Section 33, and in another judgment in  

the  case  of  United  Bank  of  India  vs.  Sidhartha  

Chakraborty, reported in 2007 (7) SCC 670, this Court has  

granted liberty to the employer in the event of such a breach  

to  take  action  in  terms  of  Section  33  (2)  (b)  of  the  Act.  

Therefore, it is submitted that if the initial failure to apply for  

approval is yet to be held against the appellant, such a liberty  

be granted to the appellant in the present case also.

9. Learned counsel for the respondent Mr. Mishra, on  

the  other  hand  submits  that  the  fact  remains  that  in  the  

instant case the appellant had not complied with Section 33  

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(2)  (b)  of  the  Act  and,  therefore,  the  consequence  has  to  

follow, and that is the view taken by the Industrial Tribunal,  

which has been confirmed by the learned Single Judge as well  

as the Division Bench of the High Court, and that this Court  

should not interfere therewith.  He submits that in case if any  

liberty is given to the appellant to apply under Section 33 (2)  

(b) at this stage, the respondent be also given opportunity to  

defend.

10. We have noted the submissions of both the counsel.  

In the instant case, the Tribunal while deciding the Complaint  

has gone into the merits of the case as in a Reference, given  

full opportunity to the parties, and then held in paragraphs 8  

and 9 of its  award dated 3.12.2002 that the charge of not  

issuing three and a half tickets,  despite collecting the fare,  

was proved.  This finding is not disturbed by the High Court.  

The Civil Court has also given the same finding by its earlier  

judgment  and  order  dated  24.11.1994,  which  is  not  

challenged by the respondent.  Both these proceedings were  

initiated  by  the  respondent/workman  and  resulted  into  a  

decision against him on merit.  The decision of the Civil Court  

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was however not placed before the Industrial Tribunal either  

by the respondent or by the appellant.  The question which  

arises  for  our  consideration  on  this  background  is  as  to  

whether the Tribunal was right in awarding reinstatement with  

continuity of service in the proceeding under Section 33A of  

the Act which arose out of the initial breach of Section 33 (2)  

(b) of the Act by the respondent.

11. In  this  behalf,  we  must  note  that  in  Jaipur  Zila  

Sahkari  Bhoomi  Vikas  Bank  Ltd.  (supra),  the  Constitution  

Bench was concerned with the interpretation of Section 33 (2)  

(b)  of  the Act  in  the context  of  a  Reference arising out  of  

conflicting  judgments  thereon.   Two  Benches  of  this  Court  

consisting of three learned Judges in (1)  Strawboard mfg.  

Co. vs. Govind (reported in  AIR 1962 SC 1500) and (2)  

Tata Iron & Steel Co. Ltd. vs. S.N. Modak (reported in  

AIR 1966 SC 380) had taken the view that if the approval is  

not granted under Section 33 (2) (b) of the Act, the order of  

dismissal becomes ineffective from the date it  was passed.  

Another Bench of three learned Judges in Punjab Beverages  

(P) Ltd. vs. Suresh Chand [reported in 1978 (2) SCC 144]  

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had expressed a  contrary  view.   The question  referred  for  

consideration of the Constitution Bench was as follows:-

“If the approval is not granted under Section   33  (2)(b)  of  the  Industrial  disputes  Act,  1947,   whether  the  order  of  dismissal  becomes  ineffective from the date it was passed or from the   date of non-approval of the order of dismissal and   whether failure to make application under Section   33 (2)(b) would not render the order of dismissal   inoperative.?”

12. While  considering  the  issue,  the  Court  noted  in  

paragraph 6 of the judgment that the object behind enacting  

Section 33 as it stood prior to its amendment in 1956, was to  

allow  continuance  of  industrial  proceedings  pending  before  

any  authority/court/tribunal  prescribed  by  the  Act  in  a  

peaceful  atmosphere  undisturbed  by  any  other  industrial  

dispute.  In course of time, it was felt that the un-amended  

Section 33 was too stringent, for it placed a total ban on the  

right of the employer to make any alteration in conditions of  

service or to make any order of discharge or dismissal even in  

cases where such alteration in conditions of service or passing  

of an order of dismissal or discharge, was not in any manner  

connected  with  the  dispute  pending  before  an  industrial  

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authority.   Section 33 was,  therefore,  amended in  1956 to  

permit the employer to make changes in conditions of service,  

or to discharge or dismiss employees in relation to matters  

not  connected with  the  pending  industrial  dispute.   At  the  

same time, it was also felt necessary that some safeguards  

must  be  simultaneously  provided  for  the  workmen,  and  

therefore a provision was made that the employer must make  

an application for prior permission if the proposed change in  

the service conditions, or the proposed dismissal/discharge is  

in connection with a pending dispute.  In other cases where  

there is no such connection, and where the workman is to be  

discharged or dismissed, (i) firstly there has to be an order of  

discharge  or  dismissal,  and  then  it  was  laid  down  in  the  

proviso to Section 33 (2) (b) that, (ii) the concerned workman  

has to be paid wages for one month, and (iii) an application is  

to  be  made  to  the  authority  concerned  before  which  the  

earlier proceeding is pending, for approval of the action taken  

by the employer.

13. In paragraph 13 of the judgment this Court noted  

that  the  contravention  of  Section  33  invites  a  punishment  

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under Section 31 (1) of the Act. Hence, the proviso to Section  

33 (2) (b) cannot be diluted or disobeyed by an employer.  It  

is a mandatory provision made to afford a protection to the  

workmen to safeguard their interest, and it is a shield against  

victimization and unfair labour practice by an employer during  

the pendency of an industrial dispute.  Therefore, the order  

made without  complying  with  the  said  proviso  is  void  and  

inoperative.

14. Having noted this, what is observed by this Court in  

paragraph 14 of  the  judgment  is  relevant  for  our  purpose.  

The relevant part of this para reads as follows:-

“14. Where  an  application  is  made  under   Section  33  (2)  (b)  proviso,  the  authority  before   which the proceeding is  pending for  approval  of   the action taken by the employer has to examine   whether  the  order  of  dismissal  or  discharge  is   bona fide; whether it was by way of victimization   or unfair  labour practice; whether the conditions   contained in the proviso were complied with or not   etc.   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 never had been passed.  The order of  dismissal  or  discharge  passed  invoking  Section 33 (2) (b) dismissing or discharging  an employee brings an end of relationship of   the employer and employee from the date of   his  dismissal  or  discharge  but  that  order  remains incomplete and remains inchoate as   

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it  is  subject  to  approval  of  the  authority   under  the  said  provision.   In  other  words,   this  relationship  comes  to  an  end  de  jure  only  when  the  authority  grants  approval……..”

(emphasis  

supplied)  

15. The same paragraph lays down that if a workman is  

aggrieved by the approval, his remedy is to file a Complaint  

under  Section  33A of  the  Act.   This  section  has  a  definite  

purpose to serve viz. to provide a direct access to the Tribunal  

and  thereby  a  speedy  relief,  instead  of  seeking  the  time  

consuming procedure of seeking a Reference under Section  

10 of the Act.  In that complaint, however, the employee will  

succeed  only  if  he  establishes  that  the  misconduct  is  not  

proved  and  not  otherwise,  and  if  he  does  succeed  in  so  

establishing,  it  will  relate  back  to  the  date  on  which  the  

dismissal  order  was  passed  by  the  employer  as  if  it  was  

inoperative.  This  remedy  is  independent  of  the  penal  

consequences which the employer may have to face under  

Section  31  (1)  of  the  Act  if  prosecuted  for  the  breach  of  

Section 33.   This Section 33A reads as follows:-

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“33A.  Special  provision for adjudication  as  to  whether  conditions  of  service,  etc.,   changed  during  pendency  of  proceeding.-  Where an employer contravenes the provisions of   section  33  during  the  pendency  of  proceedings   [before a conciliation officer, Board, an arbitrator,   Labour  Court,  Tribunal  or  National  Tribunal]  any   employee aggrieved by such contravention, may  make a complaint in writing,  [  in the prescribed   manner,- (a) to such conciliation officer or Board,   

and the conciliation officer or Board shall take   such  compliant  into  account  in  mediating  in,   and  promoting  the  settlement  of,  such   industrial dispute; and

(b) to  such  arbitrator,  Labour  Court,   Tribunal or National Tribunal and on receipt of   such complaint, the arbitrator, Labour Court,  Tribunal or National Tribunal, as the case  may  be, shall  adjudicate  upon  the  complaint as if it were a dispute referred  to or pending before it, in accordance with  the provisions of this Act and shall submit  his  or  its  award  to  the  appropriate  Government and the provisions of this Act  shall apply accordingly.”

                (emphasis  

supplied)

As can be seen, sub-section (b) of Section 33A clearly lays  

down that when such a Complaint is made, the Tribunal shall  

adjudicate upon the Complaint as if it were a dispute referred  

to  it,  and shall  submit  his  or  its  award  to  the  appropriate  

Government,  and  the  provisions  of  this  Act  shall  apply  

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accordingly.  Thus, in that complaint, the employee will have  

to prove his case on merits.

16. The purpose behind enacting Section 33A and the  

scope thereof was succinctly explained by Gajendrakar J (as  

he then was), in a judgment by a bench of three judges in  

Punjab National Bank Ltd. vs. All India Punjab National  

Bank Employees Federation & Anr. reported in AIR 1960  

SC 160.   In paragraph 31 thereof the Court noted that the  

Trade Union movement in the country had complained that  

the  remedy  for  asking  for  a  reference  under  Section  10  

involved delay, and left the redress of the grievance of the  

employees  entirely  in  the  discretion  of  the  appropriate  

Government;  because  even  in  cases  of  contravention  of  

Section  33  the  appropriate  Government  was  not  bound  to  

refer the dispute under Section 10.  That is why Section 33A  

was enacted to make a special provision for adjudication as to  

whether  Section  33  has  been  contravened.  This  section  

enables  an  employee  aggrieved  by  such  contravention  to  

make a complaint in writing in the prescribed manner to the  

tribunal  and it  adds  that  on  receipt  of  such  complaint  the  

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tribunal shall adjudicate upon it as if it is a dispute referred to  

it in accordance with the provisions of the Act.  Thus by this  

section the aggrieved employee is given a right to move the  

tribunal without having to take recourse to Section 10 of the  

Act.   

17. Thereafter  while  dealing  with  the  scope  of  the  

Section 33A,  the court surveyed the judgments then holding  

the field, and held at the end of paragraph 33 in the following  

words:-

“33…… Thus there can be no doubt that  in  an  enquiry  under  S.  33A  the  employee  would not succeed in obtaining an order of   reinstatement  merely  by  proving  contravention of S. 33 by the employer. After  such contravention is proved it would still be open   to the employer to justify the impugned dismissal   on the merits.  That is a part of the dispute which   the tribunal has to consider because the complaint   made by the employee is treated as an industrial   dispute and all  the relevant aspects of  the said   dispute  fall  to  be  considered  under  S.  33A.   Therefore,  we  cannot  accede  to  the  argument that the enquiry under S. 33A is   confined  only  to  the  determination  of  the  question  as  to  whether  the  alleged  contravention  by  the  employer  of  the  provisions of S. 33 has been proved or not.”

            (emphasis  supplied)

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This judgment has been referred to, and the proposition has  

been once again reiterated by a bench of three Judges in para  

7  of  Delhi  Cloth  and  General  Mills  Co.  Ltd.  vs.  

Rameshwar Dayal reported in AIR 1961 SC 689.    

18.  This  legal  position  has  been  reiterated  in  the  

judgment of the Constitution Bench in P.H. Kalyani vs. M/s  

Air France Calcutta reported in  AIR 1963 SC 1756 which  

has been quoted with approval in paragraph 17 of Jaipur Zila  

Sahkari Bhoomi Vikas Bank Ltd. (supra).  In that matter, the  

respondent employer had applied under Section 33 (2) (b),  

but  the workman had also filed a Compliant  under Section  

33A which  was  heard  like  a  Reference.   Evidence  was  led  

therein  by  the  parties,  and  on  its  own  appraisal  of  the  

evidence the Labour Court had held that the dismissal was  

justified.  This Court accepted that finding, and it  was held  

that the approval when granted will relate back to the date  

when the order of dismissal was passed.  On the other hand, if  

the  employer  fails  to  prove  the  misconduct,  the  order  of  

dismissal  will  become  ineffective  from  the  date  when  the  

dismissal  order  was  passed  by  the  employee.   This  legal  

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position  has  been  reiterated  from  time  to  time  [see  for  

instance  Lalla  Ram  vs.  D.C.M.  Chemicals  Works  Ltd.  

reported in 1978 (3) SCC 1].  In Jaipur Zila Sahakari Bhoomi  

Vikas Bank (supra) the Constitution Bench endorsed the view  

taken in Strawboard (supra) and Tata Iron & Steel Co. (supra)  

and held that the view expressed in Punjab Beverages (supra)  

was not correct.

19. In  the  present  case,  the  Tribunal  accepted  that  

during this very short span of service as a daily wager the  

respondent had committed the misconduct which had been  

duly proved.  Having held so,  the Tribunal  was expected to  

dismiss the Complaint filed by the respondent.  It  could not  

have  passed  the  order  of  reinstatement  with  continuity  in  

service in favour of the respondent on the basis that initially  

the appellant had committed a breach of Section 33 (2) (b) of  

the Act.  It is true that the appellant had not applied for the  

necessary approval as required under that section.  That is  

why the Complaint was filed by the respondent under Section  

33A  of  the  Act.   That  Complaint  having  been filed,  it  was  

adjudicated like a reference as required by the statute.  The  

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same having  been  done,  and  the  misconduct  having  been  

held to have been proved, now there is no question to hold  

that  the  termination  shall  still  continue  to  be  void  and  

inoperative.  The  de  jure  relationship  of  employer  and  

employee would come to an end with effect from the date of  

the order of dismissal passed by the appellant.  In the facts of  

the present case, when the respondent had indulged into a  

misconduct  within  a  very  short  span  of  service  which  had  

been duly proved, there was no occasion to pass the award of  

reinstatement with continuity in service. The learned Single  

Judge of the High Court as well as the Division Bench have  

fallen in the same error in upholding the order of the Tribunal.  

20. Since the Complaint was decided like a reference,  

and  since  we  are  holding  that  it  ought  to  have  been  

dismissed,  we  are  not  required  to  go  into  the  alternative  

submission that the appellant be given further liberty, to de  

novo  apply  under  Section  33  (2)  (b)  on  the  lines  of  the  

judgment in United Bank of India (supra).  However, we make  

it clear that once the Complaint under Section 33A is decided,  

there is no question of granting any such liberty.  Besides, we  

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would like to observe that such liberty was given in the case  

of United Bank of India (supra) “considering the background  

facts  of  the  case”  as  stated  in  paragraph  11  of  the  said  

judgment.   

21. In the instant case, the respondent was employed  

as a daily rated employee for a period of three months, and  

thereafter was continued for a few months more. There was  

no question of his being in service even for one continuous  

year,  since  he  had  obviously  not  completed  240  days  of  

service.  During this short span of service there were various  

allegations  against  him.   The  appellants  could  have  

discontinued him from service as it is, since he was a daily  

wager.    However,  since  there  was  an  allegation  of  

misconduct, they afforded him an opportunity to explain.   At  

the  time  of  the  incident  of  checking  of  the  bus,  the  

respondent did not sign the way-bill,  nor did he attend the  

inquiry, wherein, he was called to explain his conduct.  This  

led to his dismissal from service.  He chose to file a Civil Suit  

in a wrong Court at Jaipur.  The Civil Court which heard the  

suit  held  that  the  misconduct  had  been  proved,  and  the  

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termination could not be faulted.  However,  the very Court  

held that it did not have the territorial jurisdiction to decide  

the suit.  Therefore one may keep aside the finding of that  

Court  concerning  the  misconduct.  However,  when  the  

respondent  filed  the  Complaint  under  Section  33A,  the  

Industrial  Tribunal  also  returned  the  same  finding  in  

paragraphs 8 and 9 of its award that the appellant had proved  

the misconduct. This being the position, this finding will relate  

back and the employer  employee relationship  between the  

parties will be deemed to have ended from the date of the  

dismissal order passed by the appellant.    

22. For the reasons stated above,  this Civil  Appeal  is  

allowed.   We  hereby  set-aside  the  judgment  and  order  

rendered by the Division Bench of the Rajasthan High Court in  

D.B.  Special  Appeal  (Writ)  No.1093 of  2005,  dismissing the  

appeal filed by the appellants against the judgment and order  

dated 19th July, 2005, rendered by a learned Single Judge of  

that  High  Court  in  Civil  Writ  Petition  No.  3933  of  2009,  

confirming  the  award  dated  3.12.2002  rendered  by  the  

Industrial Tribunal, Jaipur in Case No. I.T. No.41 of 1994.  All  

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the three judgments, except the finding in paragraph 8 and 9  

of the Industrial Tribunal, Jaipur in Case No. I.T. No.41 of 1994  

are hereby set-aside.  Consequently, the said Complaint being  

case No. I.T. No.41 of 1994 shall stand dismissed requiring no  

order  on  the  Civil  Writ  Petition  No.3933  of  2009  and  D.B.  

Special  Appeal  (Writ)  No.1093 of  2005.   Both  of  them will  

stand disposed of.  In the facts of the present case however,  

we do not make any order as to costs.

………………………………………….J.       [ H.L. GOKHALE ]

………………………………………….J.       [RANJAN GOGOI]

New Delhi Dated: April 9, 2013

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