Syndicate Bank Ltd. Vs. K. R. V. Bhat
 INSC 184 (22 August 1967)
22/08/1967 VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 231 1968 SCR (1) 327
CITATOR INFO :
R 1990 SC1080 (10,17)
Industrial Disputes Act, 1947 (14 of 1947) s.
33--Dismissal of employee with immediate effect--Dismissed employee files
appeal--Appeal dismissed--Effective date of dismissalIndustrial dispute
referred after original dismissal order but before disposal of appeal--If
necessary to comply with, proviso to s. 33(2)(b).
After holding a domestic enquiry the Managing
Director of the appellant-Bank dismissed the respondent-employee with immediate
effect. The employee was informed that he might appeal against this order to
the working committee of the Directors within certain days. The respondent
filed the appeal which the working committee dismissed. Subsequent to the
filing of the appeal but prior to its dismissal, the Central Government
referred to an Industrial Tribunal the question as to whether action, by the
appellant-Bank, in discontinuing pigmy collection and payment thereof to the
workmen, was justified. The respondent filed a complaint to the Industrial
Tribunal alleging that the appellant contravened s. 33 of the Industrial
Dispute Act as the order of dismissal had been passed during the pendency of an
Industrial Dispute, the management should have asked the Industrial Tribunal
for approval of their action, and they should have paid him one month's wages.
The Industrial Tribunal held that the dismissal of the respondent became
effective only after the. working committee disposed of the appeal, and as
during this period an Industrial Dispute was pending the management was bound
to comply with the proviso to s. 33 (2) (b) of the Act. In appeal to this
Held:There was no contravention of s. 33.
An order of discharge or dismissal, can be
passed only once;
and, in thus case, the order of dismissal was
the original or very first passed by the Managing Director, on which date the
Industrial Dispute had not even been referred, for adjudication. No doubt,
either by virtue of the Standing Orders, or by virtue of a contract, of
service, a right of appeal may be given to a workman concerned, to challenge an
order of dismissal. But the appellate authority only considers whether the
order of dismissal has to be sustained or whether it requires modification.
Further, the proviso to s. 33(2) (b) when it refers to payment of wages for one
month, also indicates that it relates to an order of discharge or dismissal
which comer, into effect immediately.
The payment of one month's salary or wages,
is to soften the rigour of unemployment that will face the workman, against
whom an order of discharge or dismissal, has been passed.
If the management has to wait for the minimum
period prescribed for filing an appeal, also await the termination of the
appeal when one is filed, considerable time would have elapsed from the date of
the original order, during which period the workman would not have received any
[333F-334B] Equitable Coal Ltd. v. Tlgu Singh
 1. L.L.J. 793 The Punjab National Bank Ltd. v. Its Workmen  1
806, and Straw. board Manufacturing Co. v.
Gobind  Supp. 3 S.C.R. 618 relied 328 The Management of Hotel Imperial v.
Hotel Workers' Union  1 S.C.R. 476, and Collector of Customs, Calcutta v.
East India Commercial Co. Ltd.  2
S.C.R. 563 held inapplicable.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 503 of 1966.
Appeal by special leave from the Award dated
November 10, 1964 of the Industrial Tribunal, Andhra Pradesh in Misc. Petition
No. 32 of 1964 in Industrial Dispute No. 4 of 1964.
R. H. Gokhale, B. K. Seshu, Parameshwara Rao,
Jyotana R. Melkote and R. V. Pillai, for the appellant.
M. K. Ramamurthi, Shyamala Pappu and Vineet
Kumar, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J. This appeal, by special leave, is directed against the award,
dated November 10, 1964, of the Industrial Tribunal, Andhra Pradesh, Hyderabad,
accepting a complaint, filed by the respondent, under S. 33A, of the Industrial
Disputes Act, 1947 (Act XIV of 1947) (hereinafter called the Act).
The respondent was, at the material time,
working in the main branch of the appellant, at Belgaum. By order dated March
8, 1963, the respondent was transferred to Bhatkal branch, as a 'C' rank
Officer, to work there, as an accountant. He was also informed that he was
being relieved, so as to enable him to proceed to duty, at the place of transfer,
by March 18, 1963. He was allowed three days' joining time.
On March 13, 1963, the Manager of the Branch
at Belgaum informed the respondent that he was relieved, with effect from that
date, to join duty at the Bhatkal branch, by March 18, 1963. The respondent, by
letter dated March 14, 1963, after setting out the various matters therein,
applied for privilege leave, for ninety days, from March 14, 1963 to June 11,
1963, so as to enable him to improve his health and also to attend to certain
domestic matters. But the Bank, the appellant herein, desired him, by their
letter dated March 23, 1963, to join duty and then apply for leave, if
necessary. Some further correspondence ensued, between the Bank and the
respondent, the respondent again making a request for sanction of his leave and
the appellant Bank insisting upon his joining duty, according to the order of
transfer, and then applying for leave. But, as the respondent did not join duty
at the Bhatkal branch, though he was relieved from the Belgaum office, the
appellant, by their communication, dated July 23, 1963, desired the respondent
to offer explanation for not obeying the order of transfer. The respondent sent
a reply, on July 29, 1963, stating what, according to him, were the reasons for
his not joining duty at the transferred office. The appellant Bank, not
satisfied with the explanation, given by the respondent, framed two charges
against him, and communicated the same, on August 7, 1963. The charges were to
the effect that (a) the respondent, by wilfully disobeying the lawful and
reasonable transfer order of 329 the management, has committed gross
misconduct, for which the punishment is dismissal from service; and (b) the
respondent had absented himself from duty from March .14, 1963, without leave,
which again, is a minor misconduct for which also punishment can be imposed.
The respondent was also directed to submit his explanation, if any, to the
charges, on or before August 25, 1963. The respondent offered his explanation
to the charges, by his letter, dated August 21, 1963. The appellant informed
the respondent, on October 1, 1963, that an enquiry would be conducted against
him, in respect of the charges, on October 5, 1963 and desired him to be
present at the enquiry, with the necessary evidence, in support of his defence.
The inquiry was conducted by the Enquiry
Officer, in which the respondent participated. The Enquiry Officer sent a
report to the Managing Director of the Bank, dated October 28, 1963,
substantially finding the respondent guilty of both the charges. In respect of
the first charge of gross misconduct, for wilfully disobeying the order of
transfer, the Enquiry Officer had proposed that the respondent should be
dismissed and, in respect of the second charge, of absenting without leave, it
was proposed in the report that the increment be stopped, for a period of six
months, with effect from April 25, 1963. Certain consequential proposals were
also made, as to how exactly the respondent's absence, was to be dealt with.
The Managing Director of the Bank, after
considering the report submitted by the Enquiry Officer, as well as the further
explanation, offered by the respondent, in respect of the findings recorded in
the said report, by his order dated November 12, 1963, agreed with the
recommendation of the Enquiry Officer, dismissed the respondent from the
service of the Bank with immediate, effect, for the offence of wilful
disobedience of the order of transfer. The respondent was also informed that he
might appeal, against the order of dismissal, to the working committee of the
Directors of the Bank, within forty-five days of receipt of the order.
The respondent filed an appeal, ,on December
17, 1963, before the working committee of the Directors, wherein he attacked
the various proceedings, culminating in the order of dismissal, passed against
him. Intimation of the hearing of the appeal was given to the respondent. But,
it is seen that on the date when the appeal was taken up for hearing, viz.,
March 20, 1964, the respondent was not present either in person or through
authorised representative of his. In consequence, the working committee of the
Directors dismissed the appeal on March 20, 1964. In the appellate order, the
working committee has elaborately considered the various circumstances
necessitating the conduct of the enquiry, the enquiry proceedings and the
answers given by the respondent; and it has, ultimately, agreed with the
findings recorded 330 in the enquiry proceedings that the respondent had
wilfully disobeyed the lawful orders of the management transferring him. The
result was that the order of dismissal, passed by the Managing Director on
November 12, 1963, was confirmed.
At this stage it may be mentioned that the
Central Government had referred, on January 8, 1964, for adjudication, to the
Industrial Tribunal, of which Dr. Mir Siadat Ali Khan was appointed as the
presiding officer, with headquarters at Hyderabad, the question as to whether
action, by the appellant Bank, in discontinuing pigmy collection and payment
thereof to the workmen, was justified. This was numbered as I. D. No. 4 of
1964, and the award, in this dispute, was given on August 26, 1964, and the
Central Government published the same, in the Gazette of India, on September 7,
The respondent filed a complaint, under s.
33A of the Act, on June 4, 1964, before the Central Government Industrial
Tribunal, at Hyderabad, attacking the enquiry proceedings, conducted against
him, and the order of dismissal, passed by the appellant. Apart from attacking
the inquiry proceedings, on merits, as mala fide, the respondent contended that
the order of dismissal had been passed against him, without the appellant Bank
complying with the provisions of the proviso to s. 33(2)(b), of the Act.
According to him, inasmuch as the order of
dismissal had been passed, during the pendency of 1. D. No. 4 of 1964, the
management should have asked the Industrial Tribunal for approval of their
action, and they should have paid him one month's wages. Therefore, inasmuch as
these things were not done, the appellants have contravened the provisions of
s. 33 of the. Act.
The appellant Bank, in their
counter-statement, pleaded that the domestic enquiry, conducted by the
management, was very fair and that the action of the management, in dismissing
the respondent, was perfectly justified. In this connection, the appellant
raised the contention that the respondent was not a 'workman', and that, in any
event, he was not a workman concerned with the dispute covered by I.D.
No. 4 of 1964, and therefore he was not
entitled to file an application, under s. 33A. They further contended that
there was no contravention 'of s. 33 of the Act, because, at the time when the
order dismissing the respondent was passed, on November 12, 1963, there was no
industrial dispute pending, so as to make it obligatory on the part of the
appellant, to take action, in accordance with the proviso to s. 33(2)(b), of
The Industrial Tribunal, by its order, under
attack, has overruled all the objections, raised by the management. The
Tribunal has held that the respondent was a 'workman' and that he was also a
workman concerned in 1. D. No. 4 of 1964, and therefore 331 he was competent to
file an application, under s. 33A. The Tribunal has also held that the
dismissal of the respondent became effective only on March 20, 1964, when the
working committee of the Directors of the appellant Bank disposed of the
appeal, filed by the respondent. As this date fell within the period, between
January 8, 1964 and October 8, 1964, (during which 1. D. No. 4 of 1964 was
pending) the management was bound to comply with the proviso to s. 33(2)(b) of
the Act. As this proviso had not been complied with, the Tribunal held that
there was a contravention of the provisions of s. 33 of the Act, which gives a
right to the respondent to invoke the jurisdiction of the Tribunal, under s.
33A of the Act.
After having held that there is a
contravention, of s. 33 of the Act, the Tribunal then considered the attack
levelled, as against the domestic enquiry proceedings, by the respondent, and
recorded a finding to the effect that it was not fair to consider that the,
respondent had wilfully disobeyed the order of transfer, passed by the
The tribunal, therefore held, on both the
findings, that the respondent should be reinstated, with continuity of service
and back wages.
The same contentions, that were raised before
the Industrial Tribunal, on behalf of the management, have been urged before
us, by the appellants' learned counsel, Mr. Gokhale.
Counsel urged that the respondent is not a
'workman' and, in any event, he is not a workman concerned with the dispute in
I.D. No. 4 of 1964. Counsel further pointed out that even assuming that the
findings of the Tribunal, recorded against the appellant, were correct, the
application, under s. 33A, was not maintainable, inasmuch as there was no
contravention, by the management, of any of the provisions of s, 33, 'of the
Act. In this connection, counsel pointed out, that the order of dismissal,
having been passed by the Managing Director, on November 12, 1963, long before
January 8, 1964, the date when I.D. No. 4 of 1964, was referred, there was no
obligation, on the part of the management, to ask for approval of the Tribunal,
in respect of their action, or of paying one month's wages to the respondent.
Counsel also urged that even if these
questions were answered against the appellant, the award would have to be set
aside, because the Industrial Tribunal had really constituted itself as a Court
of appeal, when it set aside the order of dismissal, passed by the management,
which was based on the findings recorded in a proper domestic enquiry.
Mr. M. K. Ramamurthy, learned counsel,
appearing for the respondent, has supported the views, expressed by the
Tribunal, on all aspects.
If the contention of the appellant, that
there was no Industrial dispute, pending at the time, when the order of
dismissal was passed, is accepted, then, quite naturally, it follows that no
question of contravention of s. 33, of the Act, arises, in which 332 case, the
complaint, under S. 33A, is not maintainable, in law. In an enquiry, under S.
33A, the first question that the Tribunal will have to consider, is regarding
the contravention, by the employer, of the provisions of S. 33 of the Act. If
this issue is answered against the employee, nothing further can be done, under
S. 33A, of the Act. This position has been settled, by the decisions of this
Court, in Equitable Coal, Ltd. v. Algu Singh (1) and The Punjab National Bank
Ltd. v. Its Workmen (2). After hearing arguments, on this aspect, we are
inclined, in the instant case, to accept the contention of the appellant, in
this regard, and hence, no other questions arise, in the application filed, by
the respondent under s.33A of the Act.
There is no controversy, in this case, that
the appellant did not seek the approval of the Industrial Tribunal concerned,
nor did they offer or pay one month's wages to the respondent. There is also no
controversy that I.D. No. 4 of 1964, can in law be considered to be pending
only from January 8, 1964, to October 8, 1964. The order of the Managing
Director, dismissing the respondent from service, was made on November 12,
1963, which date, admittedly, falls outside the duration of the pendency of
I.D. No. 4 of 1964.
The order of the working committee of
Directors, rejecting the respondent's appeal, which was passed on March 20,
1964, certainly falls within the period when I.D. No. 4 of 1964 was pending.
Therefore, the question that arises for consideration, in this case, is as to
when, it can be stated, that the respondent was dismissed, i.e., by the order
of November 12, 1963, of the Managing Director, or by the appellate order of
March 20, 1964, passed by the working committee of Directors. According to the
appellant, the order which has to be taken into account, for considering
whether there is a contravention of S. 33 of the Act, is the original order
passed, by the Managing Director, on November 12, 1963, whereas, according to
the respondent, the appellate order, passed on March 20, 1964, is the effective
order, dismissing him.
The respondent's contention, in this regard,
is briefly as follows. Under the National Industrial Tribunal (Bank Disputes)
Award, 1962 (known as the Desai Award), a workman, in such cases, has got a
right of appeal, to the appropriate authority, and he has got a period of 45
days, for filing the appeal. In this case, the order of the Managing Director,
dated November 12, 1963, also states that respondent is entitled to file an
appeal, against that order, to the working committee of the Directors, within
45 days of receipt of that order. The respondent, admittedly, filed an appeal,
on December 17, 1963, well within the time.
The appeal was disposed of, on March 20,
1964. The language of s. 33(2), counsel points out, is to the effect that the
employer has (1)  I L.L.J. 793.
(2)  1 S.C.R. 806.
333 been enabled to take action, 'in
accordance with the standing orders applicable to a workman concerned, in such
dispute'. Inasmuch as the standing orders, in this case, give a right to
appeal, to the workman, any order that is passed, by the management, in respect
of which a right of appeal is given to a workman, cannot be considered to be an
effective or operative order, till the appellate decision is made known. It
will be open to the appellant to take action, in accordance with the proviso to
s. 33(2)(b), at the time when the appellate order was passed, on March 20,
1964, as the appellate order is the effective and binding order. So far as the
par-ties are concerned, the order of dismissal, in this case, must be
considered to have been passed only on March 20, 1964, which date squarely
falls within the period, during which I.D. No. 4 of 1964, was pending. We are
not inclined to accept the contentions of the learned counsel, for the
respondent, in this regard.
It has been laid down by this Court, in
Strawboard Manufacturing Co. v. Govind(1), in construing the proviso to s.
33(2)(b) of the Act, that the three things
contemplated, viz., dismissal or discharge, payment of the wages and making of
the application, should be part of the same transaction. Therefore, in our
view, there must be a fixed and certain point of time which will be applicable
to all managements and workmen, when construing the provisions of s. 33 of the
Act. The management must definitely know, as to when they have to take the
necessary action, under the proviso to s. 33(2)(b), and the workman also
should, likewise, know the definite time when the management should have
complied with the requirements of the proviso to s.
33(2)(b), so that he could approach the
Industrial Tribunal, by way of a complaint,, under s. 33A, of the Act. A
reading of the material provisions of s. 33 shows that the expressions used are
'discharge or punish, whether by dismissal or otherwise', and they clearly
indicate, in. our opinion, the point of time, when the order of discharge or
dismissal is passed, by the authority concerned. An order of discharge or.
dismissal, in our opinion, can be passed, only once; and, in this case, the
order of dismissal is the one passed, by the Managing Director, on November 12,
No doubt, either by virtue of the Standing
Orders, or by virtue of a, contract, of service, a right of appeal may be given
to a workman concerned, to challenge an order of dismissal. But the appellate
authority only considers whether the order of dismissal has to be sustained, or
whether it requires modification. Therefore, there is no question of the
appellate authority passing, again, an order of dismissal. We are not
concerned, in construing the provisions of s. 33, as to the finality of the
orders passed, by the authority concerned, in the first instance, in passing
orders of dismissal or discharge. Further, the proviso to s. 33(2)(b), when it,
refers to payment of wages for one month, also indicates that it relates to an
(1)  Supp. 3 S.C.R. 618, 630.
CI--S 334 order of discharge or dismissal,
which comes into effect immediately, which, in this case, is the order passed,
on November 12, 1963. The payment of one month's salary or wages, is to soften
the rigour of unemployment that will face the workman, against whom an order of
discharge or dismissal, has been passed. If the management has to wait for the
minimum period prescribed for filing an appeal, and also await the termination
of the appeal when one is filed, considerable time would have lapsed from the
date of the original order, during which period the workman would not have
received any salary. It will be anomalous to hold that even after the lapse of
such a long time, the payment of one month's salary would satisfy the
requirements of the section.
In this case, if the contention of the
respondent is accepted, it will lead to very anomalous results, and the time
when a management has to comply with the proviso to s.
33(2)(b), will radically differ. For example,
according to the respondent, the management, in this case, will have to wait
for the minimum period of 45 days, which is the time given for therespondent,
to file an appeal. If an appeal is filed, according to the respondent, the
management will have to wait further, and await the disposal of the appeal.
That means, in such a case, the proviso will
come into effect only at the time when the appeal is disposed of. On the other
hand. if, after the expiry of 45 days, the workman concerned does not file an
appeal, the management, according to the respondent, will have to comply with
the proviso immediately after the period of limitation is over. That is, the
point of time when the proviso to s. 33(2)(b) will have to be complied with, by
the management, will depend upon the filing or non-filing of an appeal, by the
workman concerned. Further, if at the time, when the original order of
dismissal is passed, there is no dispute pending, and when the appeal against
the order of dismissal is pending, a dispute is referred for .adjudication, it
will be open to the management to prolong its decision, in the appeal. till
after the Industrial dispute 'has come to an end. It cannot be the intention of
the Legislature that such variable and indeterminate periods are contemplated
in construing the proviso to s. 33(2)(b). The natural and reasonable interpretation,
to be placed on s. 33, is, in our opinion, that the order of discharge or
dismissal, is the original or the very first order passed by the management-,
which in this case is the one passed. by the Managing Director, on November 12,
1963. It follows that on that date, I. D. No.
4 of 1964. had not even been referred,. for
adjudication, which, as we 'have already indicated.
was by an order of Government, dated January
8, 1964. Hence there is no contravention of s. 33, in this case.
Before we close the discussion, it is necessary
to state that Mr. Ramamurthy, learned counsel for the respondent, referred us
to two decisions-of this Court. in The Management of Hotel Imperial V. Hotel
Workers' Union (1) and Collector of Customs, (1)  1 S.C.R. 476.
335 Calcutta v. East India Commercial Co.
Ltd.(1). In the first decision, this Court has recognised that a term should be
implied, by Industrial Tribunals, in the contract of, employment, that, if the
master has held a proper enquiry and come to the conclusion that the servant should
be dismissed, and in consequence, suspends him, pending the permission,
required under S. 33 of the Act, he has the power to order suspension, thus
suspending the. contract of employment temporarily, so that there is no
obligation on him' to pay wages, and no obligation on the servant, to work. In
the second decision, this Court held that in cases where an authority reverses
the order under appeal, or, modifies or merely dismisses the appeal and thus
confirms the order appealed against without any modification, the operative
order is the order of the appellate authority. :In our opinion, these decisions
do not assist the respondent and the principles laid down. therein, have no
bearing on the point to be determined in the instant case.
The result is that the award of the
Industrial Tribunal is set aside and the application, filed by the respondent
before it, will stand dismissed. The appeal is, accordingly, allowed, but
Y.P. Appeal allowed.