P. D. Sharma Vs. State Bank of India
 INSC 32 (7 February 1968)
07/02/1968 HEGDE, K.S.
CITATION: 1968 AIR 985 1968 SCR (3) 91
R 1978 SC1283 (11) R 1979 SC1328 (10)
Industrial Disputes Act 1947 (14 of 1947) s,
33(3)--Application to discharge protected workman--Pending reference
over--Competence to entertain the application.
Constitution of India, Art. 136--High Court
summarily dismissed writ petition against Industrial Tribunal's
order--Application for certificate under Arts. 132 and 133 pending--Special
leave granted against Tribunal's order, whether to be revoked.
During the pendency of an industrial dispute,
before the Tribunal between the respondent-employer and its workmen, the respondent
decided to dismiss the appellant a 'protected workman'. So the respondent
applied under s 33(3) of the Industrial Disputes Act to the Tribunal for
permission to discharge him. The Tribunal made the award in the reference. The
Labour Court to which the application under s. 33(2) was transferred. held that
the award in Reference having been made, it had no competence to deal with the
application under s. 33(3). The appellant filed a writ petition in the High
Court challenging this order of the Labour Court. The writ petition was
Thereafter , the appellant applied to the
High Court for certificate under Articles 132(1) and 133(1)(c) of the
Constitution. During pendency of the application for certificate the appellant
moved this Court for Special Leave under Art. 136 of the Constitution against
the order of the Labour Court, which was granted. In the petition for a special
leave the fact of the filing of the writ petition and its dismissal was
mentioned. Later the High Court rejected the application for certificate. The
appellant contended that once an application under s. 33(3) is validly made,
the Tribunal must decide whether permission sought for should be granted or
refused even though the industrial dispute had been decided during the pendency
of the application. The respondent urged the revocation of the special leave as
he had not appealed against the High Court's order made in the writ petition.
HELD : No case was made out to revoke the
special leave granted. The High Court summarily dismissed the writ petition.
The order dismissing the writ petition was not a speaking order. Hence no
question of res judicata arose The respondent's contention is not correct, that
the order of the High Court not having been appealed against, it has become
final and if the present appeal is allowed there will be two conflicting final
orders. The scope of an appeal under Art. 136 is much wider than a petition
under Art. 226.
In an appeal under Art; 136, this Court can
go into questions on facts as well as law whereas the High Court in the writ
petition could have only considered questions which would have been strictly
relevant in an application for a writ of certiorari. [93 G--94 B] Daryao and
others v. State of U.P. and Ors.  1 S.C.R.
574, Management of Hindustan Commercial Bank
Ltd. Kanpur v. Bhagwan Pas, A.I.R. 1965 S.C. 1142 and Chandi Prasad Chokhni v.
State of Bihar,  2 S.C.R. 276, referred to.
92 The Labour Court was right in holding that
it was incompetent to deal with an application under s. 33(3) after the
industrial dispute was decided.
An application under s. 33(3) for prior
permission is different from an application for approval under s. 33(2)(b) in
respect of matters not connected with the dispute. The latter is an independent
proceeding and the order for the approval of which the application has been
made would remain incohate until the competent authority accords its approval.
The sole reason for an application under s.
33(3) is the pendency of the industrial dispute and once the dispute is decided
the ban placed on the common law, statutory or contractual, rights of the
employer stands removed and it is free to exercise those rights. [100 D-E; 101
B] Tata Iron and Steel Co. Ltd. v. S. N. Modak,  3 S.C.R.
411, held inapplicable.
Strawboard Manufacturing Co. v. Gobind,
 Supp. 3 S.C.R. 618 referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 785 of 1966.
Appeal by special leave from the order dated
February 10 1965 of the Labour Court, Lucknow (Central) in Misc. Case No. 22 of
A. K. Sen and Anand Prakash, for the
Niren De, Solicitor-General, S. V. Gupte, and
K. Baldev Mehta, for the respondent.
The Judgment of the Court was delivered by
Hegde, J. In the aforementioned appeal by special leave, the point for
consideration is whether the Labour Court, Lucknow was right in its conclusion
that it was not competent to deal with Misc. Case No. 22/63 on its file, an
application under s. 33(3) of the Industrial Disputes Act, 1947.
In 1961, the appellant was a clerk working in
the Dehradun branch of the State Bank of India, the respondent herein.
In connection with certain alleged misconduct
the respondent held a departmental enquiry against him; came to the conclusion
that he was guilty of the charge levelled against him and for the said offence
it proposed to dismiss him from its service. But as at that time an industrial
dispute between the respondent and its workmen was pending before the National
Industrial Tribunal in Ref. No. 1 of 1960 (which will hereinafter be referred
to as the industrial dispute), and the appellant being one of the office bearers
of a recognized trade union connected with the respondent and consequently a
'protected workman', it applied on April 27, 1962 under s. 3 3 (3 ) to the
National Industrial Tribunal for permission to discharge him from service. On
the authority of an order made by the Central Government on 23rd December, 1960
under sub-s. 2 of s. 33 B, the National Industrial Tribunal, Bombay transferred
93 the said application to the Labour Court, Delhi. The National Industrial
Tribunal Bombay, made its award in the aforementioned Reference on June 7,
1962. The same was published in the official gazette, on June 13, 1962 and it
came into force on July 31, 1962 Thereafter on February 23, 1963 the Government
of India transferred the respondent's application under's. 33(3) pending
'before the Labour Court, Delhi, to the Labour Court, Lucknow. That court
dropped the said proceedings as per its order dated 10th February, 1965 holding
that in view of the award in the Reference in question it had no competence to
deal with that application.
This order of the Labour Court was challenged
by the appellant in Civil Misc. Writ Petition No. 619 of 1965 on the fire of
the Allahabad High Court. That petition was summarily dismissed. Thereafter he
applied to that court for a certificate under Articles 132(1 ) and 13'(1) (C)
of the Constitution. During the pendency of that application, he moved this
Court on July 17, 1965 for special leave under Art. 136 of the Constitution to
appeal against the order of the Tribunal. Special leave was granted by this
Court on September 8, 1965. The application for certificate madebefore the
Allahabad High Court was rejected by that court by its order dated September
13, 1965. No application for special leave under Art. 136 was filed against
When this appeal came up for hearing on a
previous occasion, learned counsel for the respondent urged that the special
leave granted should be revoked as the appellant had not appealed against the
order made by the Allahabad High Court in his writ petition. Thereafter, the
appellant moved this Court for special leave against the order of the Allahabad
High Court rejecting hi,-, writ petition. He, also filed an application for
condonation of the, delay in submitting that special leave application.
We are not satisfied that there is any force
in the preliminary objection taken by the learned Solicitor General on behalf
of the respondent. This case does not fall within the rule, laid down by this
Court in Daryao and others v.
State of U.P. and Others(1). As seen earlier,
the High Court summarily dismissed the writ petition filed by the appellant.
The order dismissing the writ petition was not a Speaking order. Hence no
question of res judicata arises.
The learned Solicitor General did not try to
bring the present case within the rule laid down in Daryao's case(1).
His contention was that the order of the High
Court not having been appealed against the same, has become final and therefore
it would be inappropriate for this Court to grant the relief prayed for by the
appellant. According to him, if the present appeal is allowed there will be two
conflicting final orders. We are unable to accept this contention as correct.
The scope of an appeal under Art. 136 is (1)  1 S.C.R. 574.
94 much wider than a petition under Art. 226.
In an appeal under Art. 136, this Court can go into questions of facts as well
as law whereas the High Court in the writ petition could have only considered
questions which would have been strictly relevant in an application for a writ
of certiorari. From the order of the High Court it is not possible to find out
the reason or reasons that persuaded it to reject the, appellant's petition. An
appeal under Art.
136 against an order can succeed even if no
case is made out to issue a writ of certiorari.
The, decision of this Court in Management of
Hindustan Commercial Bank Ltd., Kanpur v. Bhagwan Dass(1) to which reference
was made by the learned Solicitor General does not bear on the question under
consideration. There the appellant had applied to the High Court for the issue
of a certificate under Art. 132 against its order but without pursuing that
application he applied for and obtained from this Court special leave to appeal
against the very same order and that without obtaining exemption from
compliance with, r. 2 of 0.13 of the rules of this Court. It was under those
circumstances this Court held that special leave granted should be revoked.
The learned Solicitor General in support of
his preliminary objection placed a great deal of reliance on the decision of
this Court in Chandi Prasad Chakhani v. State of Bihar (2 ) . That was a case
under the, Bihar Sales Tax Act. The appellant's claim of certain deductions had
been disallowed by the department. He went up in revision to the Board of
Revenue. The Board of Revenue dismissed his revision petition. Thereafter under
s.25(1) of the Bihar Sales Tax Act, he applied to the Board of Revenue by means
of three different applications to state a case to the High Court of Patna in
each of those petitions on questions of law formulated by him in his
applications. But those applications were rejected. The appellant then moved
the High Court to call upon the Board to submit to it for its opinions the
questions of law set out by him in his applications. The High Court dismissed
his applications in respect of the first two periods of assessment but by its
order dated November 17, 1954 it directed the Board to state a case in regard
to the third period on one of the questions of law mentioned in the petition
which alone in its opinion arose for consideration. By its judgment dated
January 21, 1957 the High Court answered that question against the appellant.
On February 17, 1955, the appellant made
applications to this Court for special leave to appeal against the order Of the
Board of Revenue referred to earlier. The leave prayed for was granted. When
the appeals came up for hearing, objection was raised as to their
maintainability. This Court held that though the words of Art. 136 are (1)
A.I.R. 1965 S.C. 1142.
(2)  2 S.C.R. 276.
95 wide this Court has uniformly held as a
rule of practice that there must be exceptional and special circumstances to
justify the exercise of the discretion under that article.
In the circumstances of that case the Court
opined that the appellant was not entitled to obtain special leave against the
orders of the Board of Revenue and thus bypass the orders of the High Court. In
the course of the judgment this Court observed "The question before us is
not whether we have the power; undoubtedly, we have the power, but the question
is whether in the circumstances under present consideration, it is a proper
exercise of discretion to allow the appellant to have resort to the power of
this Court under Art. 136. That question must be decided on the facts of each
case, having regard to the, practice of this Court and the limitations which
this Court itself has laid down with regard to the exercise of its discretion
under Art. 136." The reasons that persuaded this Court to revoke the
special leave granted in those appeals are not available in this case.
This takes up to the question whether a case
is made out to revoke the special leave granted. We shall presently see that an
important question of law arises for decision in this case. The High Court
summarily rejected the appellant's application under Art. 226. At the time the
appellant approached this Court for special leave, his application under
Articles 132 and 133(1)(C) was pending in the High Court. Though in his special
leave application the appellant mentioned the fact that his application under
226 had been dismissed by the High Court, he
failed to mention the fact that his application for a certificate under
Articles 132 and 133 was pending before the High Court. We were assured by Mr.
A. K. Sen learned counsel for the appellant that this omission was due to an
erroneous impression of the law on the part of the Advocate on, record and
there was no intention to keep back that fact from this Court. As seen earlier the
fact that the appellant's application under Art. 226 had been dismissed was
mentioned in the special leave application. Hence the omission in question
cannot be considered as a deliberate suppression of a fact' Under these
circumstances, we do not think that a case is made out to revoke the special
We now come to the merits of the appeal. As
seen earlier the tribunal had concluded that it had no competence to 'Pass
orders on the application made, by the respondent under s. 33 (3) as the industrial
dispute had come to an end because of the award made by the National Tribunal.
According to, Mr. Sen the tribunal erred in
taking that view. He urged that once an application 96 under S. 33 (3) is
validly made, the tribunal must decide whether the permission sought for should
be granted or refused even though the industrial dispute had been decided
during the pendency of that application. His contention was that if An
application under sub-ss. 1, 2 or 3 of s. 33 is made during the pendency of an
industrial dispute, the tribunal which considers that application has to make
an order one way or the other. In support of this contention he placed strong
reliance on the decision of this Court in Tata Iron and Steel Co. Ltd. v. S. N.
Modak(1). That was a case arising under s. 3 3 (2) (b). The question that arose
for decision therein was whether a proceeding validly commenced under that
provision would automatically come to an end merely because the industrial
dispute had in the meanwhile been finally determined. This Court upheld the
view taken by the tribunal that such an application would not automatically
come to an end. It was held therein that an application under s. 33 (2) (b) is
an independent proceeding and not an interlocutory proceeding; it is a
proceeding between an employer and his employee who was no doubt concerned with
the industrial dispute along with the other employees; but it is nevertheless a
proceeding 'between two parties in respect of a matter not covered by that
dispute. It was further laid down therein that the order for the approval of
which the application had been made would remain inchoate until the tribunal
accords its approval; the said order cannot effectively terminate 'the
relationship of the employer and the employee until an approval for that order
is obtained from the tribunal. If the approval is not accorded, the employer
would be bound to treat the workman as his employee and pay him full wages for
the period even though the employer may subsequently proceed to terminate the
employee's service. In that case this Court confined its attention to the scope
of s. 33(2)(b).
It did not address itself to s. 33(3). Hence,
Mr. Sen is, not right in his contention that the rule laid down in that
decision governs the controversy before us.
Alternatively, Mr. Sen contended that the
ratio of that decision at any rate would support his contention. To find out
whether the ratio of that decision has any bearing on the question that is
before us, we have to examine sub-ss.
(2) and (3) of s. 33. They read "(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, or, where there are no such standing orders,
in accordance with the terms of the contract, whether express or implied,
between him and the workman-(a) alter, in regard to any (1)  3 S.C.R.
97 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
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.
(3) Notwithstanding anything contained in
sub-section (2), no employer shall, during the pendency of any such proceeding
in respect of an industrial dispute, take any action against any protected
workman concerned in such dispute-(a) by altering to the prejudice of such
protected workman, the conditions of service applicable to him immediately
before the commencement of such proceedings; or (b) by discharging or
punishing, whether by dismissal or otherwise, such protected workman, save with
the express permission in writing of the authority before which the proceeding
Explanation.-For the purposes of this
sub-section, a` protected workman' in relation to an establishment, means a
workman who, being an officer of a registered trade union connected with the
establishment is recognised as such in accordance with rules made in this
behalf." One common condition precedent for an application to be made
under both those provisions is the pendency of any concillation proceedings
before a conciliation officer or a board or any proceeding before an arbitrator
or a labour court or a tribunal or National Tribunal in respect of an
industrial dispute. That apart the two provisions deal with different
situations. Sub-s. 2 of s. 33 concerns itself with actions that may be taken by
an employer against his employees in respect of matters not connected with the
industrial dispute. In those cases though the employer can take any of the
actions mentioned in that provision in accordance with the standing orders or
where there are no such standing orders, in accordance with the terms of the
contract, whether express or implied, between him and the workmen, on his own
authority, he must, in the case of discharging or punishing whether by
dismissal or otherwise, a workman 'pay him wages for one month and must also
make an application to the authority before which the industrial dispute is
pending for approval of the action taken by him., 98 Sub-s. 3 of s. 33 deals
with 'protected workman' which express' 'on in relation to an establishment
means a workman who being an officer of a registered trade union connected with
the establishment, is recognized as such in accordance with the ;-ales made in
that behalf. If the, employer wants to take any action prejudicial to a
protected workman concerned in an industrial dispute pending before one of the
authorities mentioned earlier he can do so only with the "express
permission in writing of the authority before which the proceeding is
pending". On a comparison of sub-ss. (2) & (3) of s. 33 it will be
seen that the scope of the two provisions are wholly different. Taking the case
of a worker's discharge or punishment by dismissal or otherwise.
In the former the previous permission of the
authority before which the industrial dispute is Pending is necessary but under
the latter only a subsequent approval from a competent authority is needed.
Though the application under that provision should be made to the authority
before which the industrial dispute is pending the approval to be obtained need
not be from that authority. Once approval is given it goes back to the date on
which the order in question was made. If the approval asked for is not accorded
then the action taken by the employer becomes ab initio void and the employee
will continue in service and his conditions of service will also continue without
any break as if the order in question had not been made at all.
Hence we are unable to accept the contention
of Mr. Sen that the decision of this Court in Tata Iron and Steel Company's
case (1)has any bearing on the, question to be decided in this case.
The purpose of those two sub-sections are
This will be further clear if we refer to the
history of s. 33. That section, since its incorporation in the Act in 1947, has
undergone several legislative changes. As it stood originally it read "No
employer shall during the pendency of any conciliation proceeding or
proceedings before a tribunal in respect of any industrial dispute, alter to
the prejudice ,of th e workmen concerned in such dispute the conditions of
service-applicable to them immediately before the ,commencement of such
proceeding, nor save with the express permission in writing of the conciliation
officer, board or tribunal, as the case may be shall he during the pendency of
such proceedings, discharge, dismiss, or otherwise punish any such workmen,
except for misconduct not connected with the dispute." The section was
amended by Act 48 of 1950. The amended section read :
"During the pendency of any conciliation
proceedings or proceedings before a tribunal in respect of any (1)  3
99 industrial dispute, no employer shall (a)
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; (b) discharge or punish, whether by dismissal or otherwise, any
workmen concerned in such dispute;
save with the express permission in writing
of the conciliation officer, board or tribunal, as the case may be." The
amended section dropped the exception made in respect of misconduct not
connected with the, dispute. This change in the law prevented the employers
from discharging or punishing their employees even in respect of a misconduct
not connected with the industrial dispute. That was a serious inroad into the disciplinary
jurisdiction of the employer. It is possibly with a view to avoid unnecessary
interference with the rights of the employers the section was amended by Act 36
In Strawboard Manufacturing Co. v. Govind(1)
this Court observed :
"The plain object of the section was to
maintain the status quo as far as possible during the pendency of any
industrial dispute before a tribunal. But it seems to have been felt that S.
33, as it stood before the amendment of 1956, was too stringent for it completely
took away the right of the employer to make any alteration in the conditions of
service or to make any order of discharge or dismissal without making any
distinction as to whether such alteration or such an order of discharge or
dismissal was in any manner connected with the dispute pending before an
industrial authority. It seems to have been felt therefore that the stringency
of the provision should be softened and the employer should be permitted to
make changes in conditions of service etc. which were not connected with the
dispute pending before an industrial tribunal. For the same reason it was felt
that the authority of the employer to dismiss or discharge a workman should not
be completely taken away where the dismissal or discharge was dependent on the
matters unconnected with the dispute pending before any tribunal. At the same
time it seems to have been felt that some safeguards should be provided for a
workman who may be discharged or dismissed during the pendency of a dispute on
account of some matter unconnected with the dispute. Consequently S. 33 was
re-drafted in 1956 and considerably expanded." (1)  Supp. 3 S.C.R.
100 By enacting s. 33 the Parliament wanted
to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed
by any action on the part of the employer which could create fresh cause for
disharmony between him and his employees.
The object of s. 33 is that during the
pendency of an industrial dispute status quo should be maintained and no
further element of discord should be introduced. But then distinction was made
between matters connected with the industrial dispute and those unconnected
While construing the scope of sub-s. 3 of s.
33 we have to bear in mind the fact that under the common law the employer has
a right to punish his employee for misconduct.
Therefore all that we have to see is, to what
extent that right is taken away by sub-s. 3 of S. 33. There is no doubt that at
the time the application in question was made, an industrial dispute was
pending between the respondent and its employees. It is admitted that the
appellant is a 'protected workman'. He had not been discharged or punished
before the industrial dispute was decided, though no doubt the respondent had
proposed to dismiss him after obtaining the necessary permission from the
tribunal. The application for permission to dismiss him was made during the
pendency of the principal dispute. No such permission would have been necessary
if no industrial dispute between the respondent and its employees was pending.
Hence, the sole reason for that application was the pendency of the industrial
dispute. Once the industrial dispute was decided, the ban placed on the common
law, statutory or contractual rights of the respondent stood removed and it was
free to exercise those rights. Thereafter there was no need to take anybody's
permission to exercise its rights.
In other words, the limitation placed on the
respondent's rights by sub-s. 3 of S. 33 disappeared the moment the industrial
dispute was decided. We are in agreement with the tribunal that it had no
competence to consider the application made by the respondent after the
industrial dispute was decided.
The learned Solicitor General tried to
support the conclusion of the tribunal on yet another ground. His contention
was that the permission sought for could have been granted only by the
authority before which the industrial dispute was pending. In the instant case
that dispute was pending before the National Tribunal at Bombay.
Therefore according to him, the permission
asked for could not have been given either by the Labour Court at Delhi or by the Labour Court at Lucknow. The language of sub-s. 3 of s. 33 prima facie
lends support to this contention. But in resisting that contention Mr. Sen
relied on s. 33B which confers power on the government and under certain
conditions on the Tribunal or National Tribunal as the case may be to transfer
any 101 proceeding pending before them to a Labour Court. The language of this
provision is not in harmony with that in sub-ss. (1) and (3) of s. 33. The
learned Solicitor General urged that to harmoniously construe these provisions
we must confine the operation of s. 33B only to cases falling under sub-s. 2 of
s. 33. It is not necessary to decide this controversy in this case in view of
our conclusion that the Labour Court at Lucknow was right in its conclusion
that it had no competence to grant the permission prayed for as the industrial
dispute had come to an end.
For the reasons mentioned above, the appeal
is dismissed but there will be no order as to costs. The special leave
application as well as the civil miscellaneous petition have now become
superfluous. They are accordingly dismissed without costs..
Y. P. Appeal dismissed.