Tata Iron and Steel Co. Ltd. Vs. S. N.
Modak  INSC 74 (19 March 1965)
19/03/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 288 1965 SCR (3) 425
Industrial Disputes Act 1947 (14 of 1947), s.
33-Application pending industrial dispute-Industrial dispute finally decided-If
The appellant applied under s. 33(21)(b) of
the Industrial Disputes Act, 1947 to the Industrial Tribunal for the Tribunal's
approval of the order passed by the appellant discharging its employee -the
respondent. This application was made because certain industrial disputes were
pending between the appellant and its employees, but when the matter came to be
argued before the Tribunal, the pending disputes had been disposed of. Hence,
the appellant contended that the application made by it no longer survived'.
which the Tribunal rejected. In appeal by Special Leave.
HELD: The Tribunal was right in overruling
the appellant's contention. [419 E].
A proceeding validly commenced under s.
33(2)(b) would not automatically come to an end merely because the main industrial
dispute had in the meanwhile been finally determined. [417 D-E].
The application of the appellant can in a
sense, be treated as an incidental proceeding; but it is a separate proceeding
all the same, and in that sense it will be governed by the provisions of s.
33(2)(b) as an independent proceeding. It is not an interlocutory proceeding
properly so called in its full sense and significance; it is a proceeding
between the employer and his employee who was no doubt concerned with the main
industrial dispute along with other employees; but it is nevertheless a
proceeding between two parties in respect of a matter not covered by the main
dispute. [417 BD].
The order being incomplete and inchoate until
the approval is obtained, cannot effectively terminate the relationship of the
employer and the employee between the appellant and the respondent; and so even
if the main industrial dispute was finally decided, the question about the
validity of the order would still have to be tried and if the approval is not
accorded by the Tribunal, the employer would be bound to treat the respondent
as its employee and pay him full wages for the period even though the appellant
may subsequently proceed to terminate the respondent's service. [418 C-E].
Besides, if it were held that with the final
determination of the main industrial dispute such application would
automatically come to an end, it would mean that s. 33-A under which a
complaint by the employee is treated as an independent proceeding, would be
rendered nugatory. [419 A].
Alkali and Chemical Corporation of India Ltd.
v. Seventh Industrial Tribunal, West Bengal and Ors. (1964) II L.L.J.
568, Mettur Industries Ltd. v. Sundara Naidu
and Anr. (1963) II L.L.J. 303 and Shah (A.T.) v. State of Mysore and Ors (1964)
I LL.J. 237, disapproved Kannan Devan Hill Produce Company Ltd. Munnar v. Miss
Aleyamma Varughesa and Anr. (1962) II L.L.J. 158, Om Prakash Sharma v.
Industrial Tribunal, Punjab and Anr. (1962) II L.L.J. 272 and Amrit Bazar
Patrika (Private) Ltd. v. Uttar Pradesh State Industrial Tribunal and Ors.
(1964) II L.L.J.
CIVIL CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 422 of 1964 Appeal by special leave from the order dated September
29, 1962 of the Central Government Industrial Tribunal at Dhanbad in
Application No. 45 of 1960 in Reference Nos. 40 and 34 of 1960.
S. V. Gupte, Solicitor-General and 1. N.
Shroff, for the appellant Jitendra Sharma and Janardan Sharma, for the
The Judgment of the Court was delivered by Gajendragadkar
C.J. The short question of law which arises in this appeal relates to the scope
and effect of the provisions contained in s-33(2) of the Industrial Disputes Act,
1947 (No. 14 of 1947) (hereinafter called 'the Act').
The appellant, the Tata Iron & Steel Co.
Ltd., Jamadoba, applied before the Chairman, Central Government Industrial
Tribunal, Dhanbad, (hereafter called "the Tribunal") under s.
33(2)(b) of the Act for approval of the order passed by it discharging the
respondent, its employee S. N. Modak, from its service. In its application, the
appellant alleged that the respondent had been appointed as a Grade 11 Clerk in
the Chief Mining Engineer's Office at Jamadoba. One of the duties assigned to
the respondent was to check arithmetical calculations according to sanctioned
rate of the bills coming from the Heads of Department. He was required to bring
to the notice of the Deputy Chief Mining Engineer cases of discrepancies or
irregularities, and also cases where additions or alterations in the bills had
been made, but not initialed. On rechecking of the bills which had been passed
by the respondent, it was discovered that several additions and alterations
made in the bills were not noticed by him and were not reported. This failure
constituted misconduct under the Standing Orders of the appellant. For this
misconduct, the respondent was charge sheeted (No. 51 dated 1/5-10-1960); that
led to a departmental enquiry, and as a result of the report made by the
Enquiry Officer, the appellant passed an order on December 17, 1960,
terminating the services of the respondent as from December 24, 1960. The
present application was drafted on the 17th December and it reached the
Tribunal on the 23rd December 1960. It appears that this application was made
by the appellant under S. 33(2)(b), because four industrial disputes were
pending between the appellant and its employees at that time in References Nos.
27, 34, 40 & 49 of 1960.
After this application was filed, the
respondent challenged the propriety of the order passed by the appellant for
which approval was sought by it, and several contentions were raised by him in
support of his case that the enquiry held against him was invalid and improper
and the 'order of dismissal passed against him was the result of mala fides.
Evidence was led by the parties in support of
their respective pleas 413 When the matter came to be argued before the
was urged by the appellant that the
application made by it no longer survived, because all the industrial disputes
which were pending between the appellant and its employees and as as a result
of the, pendency of which it had made the application under s. 33(2)(b) of the
Act, had been decided by the Tribunal; Awards had been, made in all the said
References and they had been published in the Gazette. It does appear that the
four References which we have already mentioned, ended in Awards made on
14-4-1961, and 22-9-1961 respectively. The
award on the present application was made on 29-9-1962, and it is common ground
that, the time when the appellant urged its contention that the application
made by it did not survive any longer, all the four References had, in fact,
been disposed of. The plea thus raised by the appellant naturally raised the
question as to what would be the effect of the awards pronounced by the
Tribunal on industrial disputes pending before it at the time when the
appellant moved the Tribunal tinder s. 33(2)(b)? If, as a result of the
pendency of an industrial dispute, between an employer and his employees, the
employer is required to apply for approval of the dismissal of his employee
under s. 33 (2)(b), does such an application survive if the main industrial
dispute is meanwhile finally decided and an award pronounced on it? That is the
question which this appeal raises for our decision, aid the answer to this
question would depend upon a fair determination of the true scope and effect of
the provisions of s. 33(2)(b) of the Act.
This question has been answered by the
Tribunal against the appellant. Having held that the application made by the
appellant survived the decision of the main industrial disputes, the Tribunal'
has considered the merits of the controversy between the parties. Airier
examining the evidence, the Tribunal has found that the enquiry made by the
appellant before passing the impugned order of discharge against the
respondent, was invalid. It has pointed out that the Enquiry Officer, Mr. Watch
a, did not in fact record the statement of any witnesses who gave evidence
before him, and the only record of the enquiry is the report made by Mr. Watch a.
It has also noticed that the enquiry in question suffered from the serious
infirmity that Mr. Watch a who acted as the Enquiry Officer himself gave
evidence against the respondent, and the evidence which was actually recorded
in the case was taken not by Mr. Watch a, but by Mr. Paravatiyar. In the result
the conclusion of the Tribunal on the merits was that the enquiry "was a
farce, a mere eyewash, biased with pre-determined result, and entirely mala
fide and not at all fair". As a result of this conclusion, the Tribunal refused
to accord approval to the order of discharge passed by the appellant against
It is against this order that the appellant
has come to this Court by special leave.
Reverting then to the question of construing
s. 33 of the Act,. we may refer to some general considerations at the outset.
414 stated. s. 33 provides that the
conditions of service, etc.
should remain unchanged under certain
circumstances during the pendency of industrial adjudication proceedings. It is
unnecessary to refer to the previous history of this section. It has undergone
many changes-, but for the purpose of the present appeal, we need not refer to
the ,aid changes. We are concerned with S. 33 as it stands after its final
amendment in 1956. Section 33 consists of five subsections. For the purpose of
this appeal, it is necessary to read subsections (1) & (2) of s. 3 3 : "(1)
During the pendency of any conciliation proceeding before a conciliation
officer or a Board or of any proceeding before a Labour Court or Tribunal or
National Tribunal in respect of an industrial dispute, no employer shall-(a)in
regard to any matter connected with the dispute, alter, to the prejudice of the
workmen concerned in such dispute, the conditions of service applicable to them
immediately before the commencement of such proceedings; or (b)for any
misconduct connected with the dispute, discharge or punish, whether by
dismissal or otherwise, any workmen concerned in such dispute save with the
express permission in writing of the authority before which the proceeding is
(2)During the pendency of any such proceeding
in respect of an industrial dispute, the employer may, in accordance with the
standing orders applicable to a workman concerned in such dispute(a) alter, in
regard to any matter not connected with the dispute, the conditions of service
applicable to that workman immediately before the commencement of such
proceeding; or (b)for any misconduct not connected with the dispute, discharge
or punish, whether by dismissal or otherwise, that 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".
A reading of the above two sub-sections of S.
33 makes it clear that its provisions are intended to be applied during the
pendency of any proceeding either in the nature of conciliation proceeding or
in the 415 nature of proceeding by way of reference made under s. 10.
The pendency of the relevant proceeding is
thus one of the conditions prescribed for the application of s. 33. Section
33(1) also shows that the provisions of the said subsection protect workmen
concerned in the main dispute which is pending conciliation or adjudication.
The effect of sub-s.
(1) is that where the conditions precedent
prescribed by it are satisfied, the employer is prohibited from taking any
action in regard to matters specified by clauses (a) & (b) against
employees concerned in such dispute without the previous express permission in
writing of the authority before which the proceeding is pending. In other
words, in cases falling under sub-s. (1), before any action can be taken by the
employer to which reference is made by clauses (a) & (b), he must obtain
express permission of the specified authority. Section 33(2) proceeds to lay
down a similar provision and the conditions precedent prescribed by it are the
same as those contained in s. 33(1.). The proviso to s. 33(2) is important for
our purpose. This proviso shows that where is action is intended to be taken by
an employer against any of his employees which falls within the scope of cl.
(b), he can do so, subject to the requirements of the proviso. If the employee
is intended to be discharged or dismissed an order can be passed by the
employer against him, provided he has paid such employee the wages for one
month, and he has made an application to the authority before which the
proceeding is pending for approval of the action taken by him. The requirements
of the proviso have been frequently considered by Industrial Tribunals and have
been the subject-matter of decisions of this Court as well. It is now
well-settled that the requirements of the proviso have to be satisfied by the
employer on the basis that they form part of the same transaction; and stated
generally, the employer must either pay or offer the salary for one month to
the employee before passing an order of his discharge or dismissal, and must
apply to the specified authority for approval of his action at the same time,
or within such reasonably short time thereafter as to form part of the same
transaction. It is also settled that if approval is granted, it takes effect
from the date of the order passed by the employer for which approval as sought.
If approval is not granted the order of dismissal or discharge passed by the
employer is wholly invalid or inoperative, and the employee can legitimately
claim too continue to be in the employment of the employer notwithstanding the
order passed by him dismissing or discharging him words, approval by the
prescribed authority makes the order of discharge or dismissal effective; in
the absence of approval such an orders is invalid and inoperative in law.
Sub-sections (3) & (4) of s. 33 deal with
cases of protected workmen, but with the provisions contained in these two
subsections we are not concerned in the present appeal.
That leaves s. 33(3) to be considered. This
sub-section requires that where an application is made under the proviso to
sub-s. (2), the specified authority has to 416 dispose of the application
without delay; and indeed, it expressly prescribes that the said proceedings
must be dealt with as expeditiously as possible. This sub-section is naturally
limited to cases falling under sub-s. (2). In regard to cases falling under
sub-s. (1), the employer can act only with the previous express sanction of the
prescribed authority, and, therefore, there is no need to made any provision in
regard to an application which the employer may make under sub-s. (1) requiring
that the said application should be dealt with expeditiously. That is the
general scheme of s. 33.
it is quite clear that S. 33 imposes a ban on
the employer exercising his common-law, statutory, or contractual right to
terminate the services of his employees according to the contract or the
provisions of law governing such service.
In all cases where industrial disputes are
pending between the employers and their employees, it was thought necessary
that such disputes should be adjudicated upon by the Tribunal in a peaceful
atmosphere undisturbed by any subsequent cause for bitterness or
unpleasantness. It was, however, realized that if the adjudication of such
disputes takes long the employers cannot be prevented absolutely from taking
action which is the subject matter of s. 33(1) and (2). The Legislature,
therefore, devised a formula for reconciling the need of the employer to have
liberty to take action against his employees, and the necessity for keeping the
atmosphere calm and peaceful pending adjudication of industrial disputes. In
regard to actions covered by s.
33(1), previous permission has to be obtained
by the employer, while in regard to actions falling under s. 33(2), he has to
obtain subsequent approval, subject to the conditions which we have already
considered. In that sense, it would be correct to say that the pendency of an
industrial dispute is in the nature of a condition precedent for the
applicability of s. 33(1) & (2). It would, prima facie, seem to follow that
as soon as the said condition precedent ceases to exist, s. 33(1) and (2)
should also cease to apply; and the learned Solicitor-General for the appellant
has naturally laid considerable emphasis on this basic aspect of the matter.
It is also true that having regard to the
conditions precedent prescribed by s. 33(1) and (2), it may be possible to
describe the application made by the employer either under s. 33(1) or under s.
33(2) as incidental to the main industrial dispute pending between the parties.
We have noticed that such applications have to be made before the specified
authority which is dealing with the main industrial dispute; and so, the
argument is that an incidental or an interlocutory application which arises
from the pendency of the main industrial dispute, cannot survive the decision
of the main dispute itself. That is another aspect of the matter on which the
learned Solicitor-General relies. He urges that it is during the pendency of
the main industrial dispute that s. 33 applies; that it applies in relation to
workmen concerned with such main dispute; and that the 417 power conferred by
it has to be exercised by the authority before which the main dispute is
pending. These broad features of s. 33 impress upon the applications made under
s. 33(1) and (2) the character of interlocutory proceedings, and thus
considered, interlocutory proceedings must be deemed to come to an end as soon
as the main dispute has been finally determined.
On the other hand, there are several
considerations which do not support the argument of the appellant that as soon
as the main industrial dispute is decided, the application made by it for
approval under s. 33(2) should automatically come to an end. As we have already
indicated, the application of the appellant can., in a sense, be treated as an
incidental proceeding; but it is a separate proceeding all the same, and in
that sense, it will be governed by the provisions of s. 33(2)(b) as an
independent proceeding. It is not an interlocutory proceeding properly so
called in its full sense and significance; it is a proceeding between the
employer and his employee who was no doubt concerned with the main industrial
dispute along with other employees; but it is nevertheless a proceeding between
two parties in respect of a matter not covered by the said main dispute.
It is, therefore, difficult to accept the
argument that a proceeding which validly commences by way of an application
made by the employer under s. 33(2)(b) should automatically come to an end
because the main dispute has in the meanwhile been decided. What is the order
that should be passed in such a proceeding, is a question which cannot be
satisfactorily answered, unless it is held that the proceeding in question must
proceed according to law and dealt with as such..
In this connection it is significant that
though the Legislature has specifically issued by s. 33(5) a directive to the
specified authorities to dispose of the applications without delay and act as
expeditiously as possible, it has not made any provision indicating that if the
decision on the applications made under s. 33(2) is not reached before the main
dispute is decided no order should be passed on such applications. There is
little doubt that the Legislature intends that applications made under s. 33(2)
should be disposed of well before the main dispute is determined; but failure
to provide for the automatic termination of such applications in case the main
dispute is decided before such applications are disposed of, indicates that the
Legislature intends that the proceedings which begin with an application
properly made under s. 33(2) must run their own course and must be dealt with
in accordance with law. The direction that the said proceeding should be
disposed of as expeditiously as possible emphasises the fact that the
legislature intended that proper orders should be passed on such applications
without delay, but according to law and on the merits of the applications
It is, however, urged by the learned
Solicitor-General that it would be futile to allow the present application to
proceed any 418 further, because the appellant can proceed to dismiss the
respondent notwithstanding the fact that the Tribunal does not accord its
approval to its order in question. This argument, in out opinion, is
misconceived. It cannot be denied that with final determination of the main
dispute between the parties, the employer's right to terminate the services of
the respondent according to the terms of service revives and the ban imposed on
the exercise of the said power is lifted. But it cannot be overlooked that for
the period between the date on which the appellant passed its order in question
against the respondent, and the date when the ban was lifted by the final
determination of the main dispute, the order cannot be said to be valid unless
it receives the approval of the Tribunal' In other words, the order being
incomplete and inchoate until the approval is obtained, cannot effectively
terminate the relationship of the employer and the employee between the
Appellant and the respondent-, and so, even if the main industrial dispute is
finally decided, the question about the validity of the order would still have
to be tried and if the approval is not accorded by the Tribunal, the employer
would be bound to treat the respondent as its employee and pay him his full
wages for the period even though the appellant may subsequently proceed to
terminate the respondent's services.
Therefore, the argument that the proceedings
if continued beyond the date of the final decision of the main industrial
dispute would become futile and meaningless, cannot be accepted.
There is another aspect of this matter to
which reference must be made. Section 33A makes a special provision for
adjudication as to whether any employer has contravened the provisions of s.
33. This section has conferred on industrial employees a very valuable right of
seeking the protection of the Industrial Tribunal in case their rights have
been violated contrary to the provisions of s. 33.
Section 33-A provides that wherever an
employee has a grievance that he has been dismissed by his employer in
contravention of s. 33(2), he may make a complaint to the specified authorities
and such a complaint would be tried as if it was an industrial dispute referred
to the Tribunal under s. 10 of the Act. In other words, the complaint is
treated as an independent industrial proceeding and an award has to be pronounced
on it by the Tribunal concerned.
Now, take the present case and see how the
acceptance of the appellants argument would work. As we have already pointed
out, in the present case the Tribunal has considered the met-its of the
appellant's prayer that it should accord approval to the proposed dismissal of
the respondent and it has come to the conclusion that having regard to the
relevant circumstances, the approval should not be accorded.
If the appellant's argument is accepted and
it is held that as soon as the main industrial disputes were finally determined,
the application made by the appellant under s. 33(2) auto magically came to an
end, the respondent would not be able to 419 get any relief against the
appellant for the wrongful termination of his services between the date of the
impugned order and the final disposal of the main industrial disputes; and this
would mean that in a case like the present, s. 33A would be rendered nugatory,
because the employer having duly applied under s. 33(2)(b), the employee cannot
complain that there has been a contravention of s. 33 by the employer, even
though on the merits the dismissal of the employee may not be justified. That,
in our opinion, could not have been the intention of the Legislature. This
aspect of the matter supports the conclusion that a proceeding validly
commenced under s. 33(2)(b) would not automatically come to an end merely
because the main industrial dispute has in the meanwhile been finally
It is of course true that under s. 33 the
authority to grant permission or to accord approval in cases falling under s. 33(1)
and (2) respectively is vested in the Tribunal, before which the main
industrial dispute is pending, but that is not an unqualified or inflexible
requirement, because s. 33B(2) seems to permit transfers of applications before
one Tribunal to another, and in that sense, the argument urged by the appellant
that the condition that a specified Tribunal alone can deal with applications
made to it is an inflexible condition, cannot be accepted. We are, therefore,
satisfied that the Tribunal was right in overruling the contention raised by
the appellant that the application made by it for approval under s. 33(2)(b)
ceased to constitute a valid proceeding by reason of the fact that the main
industrial disputes, the pendency of which had made the application necessary,
had been finally decided.
This question has been considered by several
High Courts in this country. The High Courts of Calcutta, Madras and Mysore
have taken the view for which the learned SolicitorGeneral has contended before
us, vide Alkali and Chemical Corporation of India Ltd. v. Seventh Industrial
Tribunal, West Bengal and Ors.(1); Mettur Industries Ltd. v. Sundara Naidu and
Anr.;(2) and Shah (A.T.) v. State of Mysore and Ors.(3) respectively. On the
other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken
the view which we are inclined to adopt, vide Kannan Devan Hill Produce Company
Ltd., Munnar v. Miss Aleyamma Varghese and Anr.;(4) Om Parkash Sharma v.
Industrial Tribunal, Punjab and Anr.;(5) and Amrit Bazar Patrika (Private) Ltd.
v. Uttar Pradesh State Industrial Tribunal and Ors.(6) respectively.
In our opinion, the former view does not,
while the latter does, correctly represent the true legal position under s. 33(2)(b).
That takes us to the merits of the findings
recorded by the Tribunal in support of its final decision not to accord
approval to the (1)  II L.L.J. 568. (2)  II L.L.J. 303.
(3)  I L.L.J. 237. (4)  II L.L.J.
(5)  II L.L.J. 272, (6)  II
L.L.J. 53, B(N)3SCI-14 420 action proposed to be taken by the appellant against
the respondent. We have already indicated very briefly the nature and effect of
the said findings. The learned Solicitor-General no doubt wanted to contend
that the said findings were not justified on the evidence adduced before the
Tribunal. We did not, however, allow the learned Solicitor-General to develop
this point because, in our opinion, the findings in question are based on the
appreciation of oral evidence, and it cannot be suggested that there is no
legal evidence on the record. to support them. Usually, this Court does not
under Art. 136 of the Constitution entertain a plea that the findings of fact recorded
by the Industrial Tribunal are erroneous on the ground that they are based on a
mis appreciation of evidence.
The propriety or the correctness of the
findings of fact is not ordinarily allowed to be challenged in such appeals.
The result is the appeal fails and is
dismissed with costs.