Section 33(2)(b) ID Act | Approval of Dismissal Without Inquiry Does Not Bar Subsequent Challenge on Merits : Delhi HC

The Delhi High Court has reaffirmed that an employer’s approval under Section 33(2)(b) of the Industrial Disputes Act, 1947, for dismissing a workman without conducting a domestic inquiry or leading evidence cannot bar a subsequent industrial dispute under Section 10. The judgment restores the Labour Court’s award directing reinstatement with full back wages, emphasizing that procedural compliance and natural justice are non-negotiable in service matters.

Background & Facts

The Dispute

The respondent, Mrs. Thresiamma George, was appointed as a staff nurse at the Moolchand Khairati Ram Hospital and Ayurvedic Research Institute on 15.04.1987. During the pendency of Industrial Dispute No. 86/1998 concerning pay scales and service conditions, she was dismissed on 14.09.1998 on allegations of inciting violence, blocking hospital access, leading dharnas, threatening officials, and abusing doctors and managers. The dismissal was effected without issuing a charge sheet, holding a domestic inquiry, or seeking her explanation.

Key Facts

• The respondent was appointed as a staff nurse on 15.04.1987.
• Industrial Dispute No. 86/1998 was pending before the Industrial Tribunal concerning service conditions of employees.
• On 14.09.1998, the Management dismissed the respondent based on seven allegations of misconduct, all relating to the ongoing industrial dispute.
• No charge sheet was issued, no show cause notice was served, and no domestic inquiry was conducted prior to dismissal.
• The Management filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947, seeking approval for the dismissal on 20.10.1998.
• The Industrial Tribunal passed an order on 22.12.2004, granting approval for the dismissal without recording any findings on the merits of the allegations or appreciating evidence.
• The respondent filed an industrial dispute under Section 10 of the I.D. Act on 26.11.2005, challenging the legality of her dismissal.
• The Labour Court framed a preliminary issue on 01.06.2015, determining whether the order dated 22.12.2004 operated as res judicata - which it held it did not.
• The Labour Court observed in paragraph 26 of its order dated 01.06.2015: "Since the management has not reserved its right to prove the alleged misconduct of the workperson before the Court, in the written statement filed on its behalf, matter is now directed to be listed for evidence on remaining issues."
• No evidence was led by the Management in either the Section 33(2)(b) proceedings or the subsequent Section 10 proceedings to substantiate the allegations.
• The Labour Court rendered its Award on 10.04.2018, holding the dismissal illegal and ordering reinstatement with full back wages and other benefits from the date of termination.
• The appellant challenged the Award before the Single Judge of the Delhi High Court via W.P.(C) 13418/2018, which was dismissed on 28.11.2025.
• The appellant filed the present Letters Patent Appeal (LPA 788/2025) on 28.03.2026.

Procedural History

• 15.04.1987: Respondent appointed as staff nurse.
• 1998: Industrial Dispute No. 86/1998 filed regarding service conditions.
• 14.09.1998: Dismissal order passed without inquiry or notice.
• 20.10.1998: Application filed under Section 33(2)(b) for approval of dismissal.
• 22.12.2004: Industrial Tribunal granted approval under Section 33(2)(b) without recording findings or evidence.
• 26.11.2005: Respondent filed industrial dispute under Section 10 of the I.D. Act.
• 01.06.2015: Labour Court decided preliminary issue - res judicata not applicable; directed evidence on merits.
• 10.04.2018: Labour Court awarded reinstatement with full back wages and benefits.
• 12.06.2018: Appellant filed W.P.(C) 13418/2018 before Single Judge.
• 28.11.2025: Single Judge dismissed the writ petition, upholding the Labour Court’s Award.
• 28.03.2026: LPA 788/2025 filed before Division Bench.

The Parties' Positions

The appellant contended that the order dated 22.12.2004 under Section 33(2)(b) operated as res judicata and barred the respondent from raising a fresh dispute under Section 10. It relied on Rajasthan State Road Transport Corporation v. Bharat Singh to argue that where evidence was led and findings recorded, the approval order should bind subsequent proceedings.

The respondent countered that no inquiry was held, no evidence was led, and no findings were recorded in the Section 33(2)(b) proceedings. She argued that the scope of Section 33(2)(b) is limited to preventing victimisation during pending industrial disputes and does not constitute adjudication. She relied on G. Mckenzie & Co. v. Workmen, Delhi Transport Corporation v. Ram Kumar, and Surinder Pal v. Management of Delhi Transport Corpn.

Relief Sought

The respondent sought reinstatement with full back wages from the date of termination (14.09.1998), with periodic revision of wages, and consequential benefits. The Labour Court awarded this relief in its Award dated 10.04.2018. The appellant sought to set aside the Award and the Single Judge’s order.

The Legal Issue

The central question was whether an order granting approval under Section 33(2)(b) of the Industrial Disputes Act, 1947, without any inquiry, evidence, or findings on the merits of the alleged misconduct, operates as res judicata and bars a subsequent industrial dispute under Section 10.

Arguments Presented

For the Appellant

The appellant argued that the order dated 22.12.2004, granting approval under Section 33(2)(b), amounted to a final adjudication on the validity of the dismissal. It relied on Rajasthan State Road Transport Corporation v. Bharat Singh, where the Supreme Court held that where evidence was led and misconduct proven before the Tribunal in Section 33(2)(b) proceedings, the findings were binding in subsequent Section 10 proceedings. It contended that the Single Judge erred in distinguishing this precedent and failed to appreciate that approval under Section 33(2)(b) conclusively determined the legality of dismissal.

For the Respondent

The respondent argued that Section 33(2)(b) proceedings are not adjudicatory but preventive in nature - their sole purpose is to lift the statutory ban on dismissal during pending industrial disputes. She emphasized that no charge sheet, no inquiry, and no evidence were presented in the Section 33(2)(b) proceedings. She relied on G. Mckenzie & Co. v. Workmen, Delhi Transport Corporation v. Ram Kumar, and Surinder Pal v. Management of Delhi Transport Corpn., all of which hold that Section 33(2)(b) orders do not operate as res judicata unless findings on the merits are recorded. She further pointed out that the Labour Court explicitly noted the Management had not reserved its right to prove misconduct, leaving the issue open for adjudication.

The Court's Analysis

The Court undertook a detailed examination of Section 33 of the Industrial Disputes Act, 1947, and its judicial interpretation by the Supreme Court and this Court. It held that the function of the Tribunal under Section 33(2)(b) is not to adjudicate the merits of the dismissal but to determine whether the employer has made out a prima facie case and is not acting mala fide or in violation of natural justice.

"The purpose of S. 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under S. 33 would not operate as res judicata and bar the raising of an industrial dispute."

The Court emphasized that in G. Mckenzie & Co. v. Workmen, the Supreme Court had unequivocally held that proceedings under Section 33(2)(b) are not adjudicatory and cannot bar a subsequent reference under Section 10. This principle was reaffirmed in Delhi Transport Corporation v. Ram Kumar and Surinder Pal v. Management of Delhi Transport Corpn.

The Court distinguished Rajasthan State Road Transport Corporation v. Bharat Singh on critical factual grounds. In that case, the employer had conducted a departmental inquiry, led oral and documentary evidence before the Tribunal, and the Tribunal had recorded findings on the merits of the misconduct. In contrast, in the present case, no inquiry was held, no charge sheet was issued, and no evidence was led in the Section 33(2)(b) proceedings. The order dated 22.12.2004 merely lifted the statutory ban without any adjudication.

The Court further noted that the Labour Court, in its order dated 01.06.2015, had explicitly recorded that the Management had not reserved its right to prove the allegations. This left the issue of misconduct entirely open for adjudication under Section 10. The Court held that where no inquiry is held and no evidence is led, the entire case remains open before the Labour Court, as per Motipur Sugar Factory v. Workmen.

The Court also affirmed the Labour Court’s finding that the respondent was a "workman" under Section 2(s) of the I.D. Act, as she performed no supervisory duties, and that the hospital was an "industry" under Section 2(j).

The Verdict

The appellant’s appeal was dismissed. The Court upheld the Labour Court’s Award dated 10.04.2018 and the Single Judge’s order dated 28.11.2025. The respondent is entitled to reinstatement with full back wages from the date of termination (14.09.1998), with periodic revision of wages and consequential benefits. The Court directed the immediate release of Rs. 10,00,000 deposited by the appellant, along with accrued interest, to the respondent. No costs were awarded.

What This Means For Similar Cases

Approval Under Section 33(2)(b) Is Not a Substitute for Inquiry

• Practitioners must not assume that approval under Section 33(2)(b) conclusively validates a dismissal - it only lifts a statutory ban.
• If no inquiry is held and no evidence is led, the dismissal remains open to challenge under Section 10.
• Employers must conduct proper inquiries and lead evidence if they intend to rely on Section 33(2)(b) as a basis for finality.

Res Judicata Applies Only When Merits Are Adjudicated

• A finding of misconduct must be recorded in Section 33(2)(b) proceedings for it to operate as res judicata in subsequent Section 10 proceedings.
• Mere approval without reasoning or evidence does not create a binding precedent.
• The burden remains on the employer to prove misconduct in any subsequent industrial dispute.

Procedural Compliance Is Non-Negotiable

• Failure to issue a charge sheet or hold a domestic inquiry renders dismissal illegal, regardless of approval under Section 33(2)(b).
• Labour Courts and Tribunals must examine the entire factual matrix when no inquiry exists - they are not bound by procedural approvals.
• Employers cannot use Section 33(2)(b) as a shield to avoid substantive adjudication.

Evidence Must Be Led to Establish Misconduct

• Even if an employer files an application under Section 33(2)(b), it must lead evidence to substantiate allegations.
• Silence or non-participation in Section 33(2)(b) proceedings cannot be used to bar a workman’s right to a full hearing under Section 10.
• The Motipur Sugar Factory principle applies: where no inquiry is held, the entire case is open before the Tribunal.

Workman Status and Industry Definition Remain Broad

• The Court reaffirmed that staff nurses without supervisory duties qualify as "workmen" under Section 2(s).
• Charitable hospitals providing services to the public are "industries" under Section 2(j), unless they are purely philanthropic without commercial activity.