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Judgment
S.H. Sheth, J.—This group of 75 petitions raises common questions of law. All these petitions have been filed by the Gujarat State Road Transport Corporation (hereinafter referred to as "the Corporation") in which they challenge, the rejection of the applications made by them to the Conciliation Officer for granting approval to the orders of dismissal which the Corporation had passed against their employees.
The facts in Special Civil Application No. 1669 of 1979 are similar to the facts of the case in other petitions. We, therefore, state in this judgment facts of the case in Special Civil Application No. 1669 of 1979. On May 24, 1977 respondent No. 1(hereinafter referred to as "the respondent-workman") was driving a bus of the Corporation, it met with an accident as a result of which a pedestrian was killed. There spondent workman gave false information to the Corporation in order to save himself. Later on, however, correct facts became known to the Corporation. The Corporation, therefore, issued a charge-sheet to the respondent-workman who gave a written reply to it. On September 19, 1977, the respondent workman tendered oral explanation to the Corporation. Thereafter a departmental enquiry was held against the respondent-workman and the enquiry officer made his report. He found him guilty of the charges which were levelled against him.
On May 12, 1978 a second notice was issued to the respondent-workman to show cause why he should not be dismissed from service. The respondent workman replied to the said notice. On July 28, 1978 the respondent-workman was dismissed from service. At that time Conciliation proceedings between the Corporation''s workmen including the respondent-workman in respect of some other disputes had been pending'' before the Conciliation Officer. Therefore, the Corporation made an application to the Conciliation Officer u/s 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") for obtaining approval to the action of dismissal which the Corporation had taken against the respondent-workman. The Conciliation Officer rejected the application made to him by the Corporation on the ground that the provisions of Rule 63(3) of the Industrial Disputes (Gujarat) Rules, 1966 (hereinafter referred to as "the Rules") were not complied with. Similar orders made in all the 75 cases are challenged in as many petitions before us. There., is no dispute about what was not complied with by the Corporation; (1) the Corporation had not stated in each of the applications the place where the application for approval was verified; (2) the Corporation had not stated in the body of each of the applications material facts of the case and the order of which it sought approval from the Conciliation Officer and (3) the Corporation had not stated in the relevant paragraph the date on which wages were paid to the concerned workman.
Mr. Nanavaty has contended before us that the failure to comply, if any, by the Corporation, with these legal requirements was not such as to render the applications void and liable to be rejected in limine.
In order to examine the connection which Mr. Nanavati has raised, it is necessary to turn to Section 33(2)(b) of the Act. It provides as under:
(2). During the pendency of any such proceedings in respect of any industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, or where there are no such standing orders in accordance with the provisions of the contract whether express or implied between him and the workman:
... .. .. .. .. .. .. .. .. .. .. .. (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, the workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
The applications which the Corporation made to the Conciliation Officer were made in compliance with the proviso to Sub-section (2) of Section 33 of the Act. u/s 38(1) and (2)(g), Rules have been made in this behalf by the Government of Gujarat. Rule 63(3) is material for the present purpose. It provides as follows:
(3). Every application under Sub-rule (1) or Sub-rule (2) shall be verified at the foot by the employer making it or by some other person proved to the satisfaction of the Conciliation Officer, Board, Labour Court or Tribunal to be acquainted with the facts of the case.
Sub-rule (5) of Rule 63 provides as follows:
The verification shall be signed by the person making it and shall state the date on which and the place at which it was verified.
Now, the applications in these cases were made in Form No. XVIII. That form has been prescribed under Sub-rule (2) of Rule 63 of the Rules. which reads :
An employer seeking the approval of the Conciliation Officer, Board, Labour Court or Tribunal, as the case may be, of any action taken by him under Clause (a) or Clause (b) of Sub-section (3) of Section 33 shall present an application in Form XVIII in triplicate to such Conciliation Officer, Board, Labour Court or Tribunal and shall file along with the application as many copies thereof as there are opposite parties.
There is no doubt or dispute about the fact that all the 75 applications which the Corporation made to the Conciliation Officer were verified. However, they did not state the place where they were verified. In our opinion, omission on the part of an employer to state the place of verification is a curable irregularity. Having lacked at the scheme of the Rules we are of the opinion that it is not a matter of any grave significance. Omission to specify the place of verification does not render the applications void or not maintainable. Nothing has been shown to us on behalf of the employees as well as on behalf of the Conciliation Officer all of whom are represented before us that the omission on the part of an employer to specify the place of verification renders an application void and that, therefore, it is liable to be rejected in limine. We are, therefore, of the opinion that since it is a curable irregularity, it was the duty of the Conciliation Officer to call upon the Corporation to specify the place of verification with the object of bringing the applications in order. He could not have summarily rejected the applications on that ground.
We have seen the applications which the Corporation made to the Conciliation Officer. Column 6 in the prescribed form requires an employer to state material facts of the case and the action taken by it of which it seeks approval from the Conciliation Officer. There is no doubt or dispute about the fact that the Corporation did not state material facts of the case in that column, but merely stated the name of the workman against whom action was sought to be taken and his address. It appears to us that the Corporation attached to all those applications orders of dismissal of which they sought approval from the Conciliation Officer. If an order of dismissal is annexed to the application or sent to the Conciliation Officer immediately after the application is made, it can certainly be read as apart of the application itself. Therefore, once the Conciliation Officer has before him an order of which approval is sought, mere omission on the part of the employer to state material facts in column 6 loses significance. What is the matter of significance is that the Conciliation Officer must have before him material facts of the case and the action of which his approval is sought. If they are not before him, then certainly the application which an employer makes cannot be entertained and is liable to be rejected in limine. However, once those facts are before the Conciliation Officer, either in the shape of statement of facts in column 6 of the application or in the form of a separate order annexed to the application or sent to the Conciliation Officer, there is no material irregularity which vitiates the application made by an employer u/s 33(2)(b) of the Act because he can apply his mind to the order. It was, therefore, the duty of the Conciliation Officer to examine in each case whether the application made to him was accompanied by a copy of the order of which approval was sought or whether the copy of such an order was immediately sent to him. In so far as he did not do it, he was in error in rejecting the applications made by the Corporation.
The third contention which has been raised is that in order to comply with the provisions of Section 33(2)(b) of the Act, it was necessary for the Corporation to state the date on which wages for one month were paid to the concerned workmen. The date, we are told, is required to be stated in sub-column 3 of column 6 of the application. The requirement to stale the date of payment appears to us to be material because the law requires an employer u/s 33(2)(b) to pay one month''s wages simultaneously with the passing of the order of dismissal against the workman concerned. There is no doubt or dispute about the fact that in Sub-column (3) of column 6 though the Corporation stated that the concerned workman was paid wages for one month, it did not state the date of such payment. However, we find on the scrutiny of the record that all the applications were made by the Corporation to the Conciliation Officer on the date on which orders of dismissal were passed by it and in all these applications which were made on the same day, the Corporation stated that they had paid to the concerned workman wages for one month. The combined effect of these facts is that the concerned workman was paid wages for one month on the date on which order of dismissal was made against him and on that very day the application for approval was made to the Conciliation Officer u/s 33(2)(b) of the Act. It was necessary for the Conciliation Officer to scrutinize the facts and to come to a correct conclusion. It is necessary to note that all the technical legal requirements of law are intended to foster justice. Substantial justice cannot be allowed to fail merely because some technical error has been committed.
In the view which we have taken, the impugned orders in all these petitions deserve to be quashed. We, therefore, allow all the petitions, quash and set aside the orders impugned in all these petitions and direct the Conciliation Officer to decide all the applications afresh in light of the following directions:
(1) He shall consider on merits all the applications which were accompanied by orders of dismissal made against the respective workmen or in which orders of dismissal were immediately sent to him. He shall record his decision in all these applications on merits in accordance with law.
(2) He shall dismiss all those applications which were not accompanied by the orders of dismissal or in the context of which orders of dismissal were not immediately sent to him. In all such cases, it shall not be necessary for him to decide the applications on merits.
Rule is made absolute to the aforesaid extent with no order as to costs in each of the petitions.