Strawboard Manufacturing Co. Vs.
Gobind [1962] INSC 85 (6 March 1962)
06/03/1962 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
CITATION: 1962 AIR 1500 1962 SCR Supl. (3)
618
CITATOR INFO:
F 1963 SC1756 (4) R 1964 SC 708 (12) E 1964 SC
732 (2,3,4) RF 1968 SC 231 (17) E 1968 SC 266 (13) E 1968 SC 985 (12) R 1972 SC
171 (12,14) R 1973 SC1404 (4)
ACT:
Industrial Dispute-Authority of employer to
dismiss employee before approval of Tribunal-Rule of Interpretation of
statute-United Provinces Industrial Disputes Act, 1947, (U. P. 28 of 1947),
8.6-E(2) (b)-Industrial Disputes Act, 1947), (14 of 1947), as amended by Act 36
of 1956, s. 33 (2) (b).
HEADNOTE:
The respondent was in the employment of the
appellant company. He refused to comply with orders given to him by various
officers of the appellant company, from time to time. He was suspended and
charge-sheeted. An enquiry was held. After the enquiry, the appellant referred
the matter for the decision of the Labour Commissioner without giving any prior
decision of its own. However, the Labour Commissioner refused to pass any order
and directed the appellant to take such action as it thought fit. Thereupon,
the appellant dismissed the appellant. As two disputes were pending between the
appellant and its workmen at Allahabad and Meerut, the appellant sent
applications by post on the same day to the two authorities for approval of the
action taken. The Tribunal at Allahabad approved of the action but the Labour
Court at Meerut refused to approve the same.
However the Labour Court held that the
appellant was not motivated by victimisation and a prima facie case had been
made out for the dismissal of the respondent. The approval was refused on the
ground that the application for approval had been made after the dismissal of
the respondent and the same should have been made before dismissing him.
Held, that the employer can discharge or
dismiss the employee before obtaining the approval of Tribunal or the Labour
Court concerned. The use of the word "approval" suggests, that
something has been done by the employer who seeks approval of the same from the
Tribunal. If the intention had been that the employer could not pass the order
of dismissal or discharge without first obtaining the approval, the language
used would have been different. The legislature intended that the employer
would have the right to pass an order of discharge or dismissal subject to two
conditions, namely, payment of wages for one month and making of an.
application to the authority concerned for 619 approval of the action taken. If
the Tribunal does not approve of the action taken by the employer, the result
would be that the action taken by him would fall and the workmen would be
deemed never to have been dismissed or discharged and would continue to be in
the service of the employer.
The dismissal or discharge of an employee,
payment of wages and the making of an application for approval should be
simultaneous and part of the same transaction. When an employer dimisses or
discharges an employee, he should immediately pay him or offer to pay him wages
for one month and also make an application to the Tribunal for approval at the
same time. Although all this cannot be done literally simultaneously, the
conduct of the employer should show that the three things were done as a part
of the same transaction.
Metal Press Works Ltd. v. Deb (H. R.) and
Others, (1962) I. L. L. J. 75, approved.
The Premier Automobiles Ltd. V. Ramchandra
Bhimayya, I.L.R. (1950) Bom. 280 and Indian Extractions Private Ltd.
v. A. V. Vyas, Conciliation Officer, A. 1. R.
1961 Guj. 22, disapproved.
It is against the rules of interpretation to
add words to a provision, when the provision, as it stands, is capable of a
reasonable meaning which will give effect to the intention of the legislature
even on the words as they stand.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 387 of 1961.
Appeal by special leave from the judgment and
order dated April 29, 1960, of the Labour Court, Meerut in case No. 1 of 1960.
B. C. Misra, for the appellant.
Ranganadham Chetty, A. V. Rangam, A.
Vedavalli and P. C.
Agarwala, for the respondent.
1962. March. 6. The Judgment of the Court was
delivered by WANCHOO, J.This appeal by special leave raises the question of
interpretation of s. 6-E, (2)(b) of the United Provinces Industrial Disputes
Act, U.P. Act No. XXVIII of 1947 (hereinafter called the 620 U. P. Act), which
is in exactly the same terms as s. 33 (2)(b) of the Industrial Dispute,% Act.,
No. XIV of 1947, (hereinafter referred to as the Act), as amended by Act 36 of
1956. The question arises in this way. The appellant is a Strawboard Mill. The
respondent was in the employ of the appellant. On August 12, 1959, the
respondent was given certain orders by the Technical Director of the appellant,
but he refused to comply with them. The same day the respondent refused to
comply with certain similar orders given by the machine-man. Again on August
13, 1959, he refused to obey similar orders of the shift in-charge.
Finally, on August 14, he refused to obey
similar orders of another shift in-charge. Consequently a notice was served on
the respondent to show cause why he ,should not be dealt with under cl. 22(a) of
the Standing Orders which provided that wilful insubordination or disobedience
of any lawful orders of superior was misconduct. The respondent submitted his
explanation. He was then suspended and a charge-sheet was served on him on
August 16, 1959. Thereafter an inquiry was held into the alleged misconduct.
After the inquiry was over the appellant referred the matter for the decision
of the Labour Commissioner without giving any prior decision of its own as
provided in cl. 30 of the Standing Orders. The Labour Commission, however,
refused to give a decision and informed the appellant that it could take such
action as it was entitled to under the Standing Orders. The appellant again
approached the Labour Commissioner for giving an order as envisaged by cl. 30
of the Standing Orders, but the Labour Commissioner finally refused to pass any
order and directed the appellant to take such action as it thought fit and as
was within its power. Thereupon the appellant dismissed the respondent on
February 1, 1960. As however, two disputes were pending between the appellant
and its workmen one before the Industrial Tribunal 621 No. 3. at Allahabad and
the other before the Labour Court at Meerut, the appellant sent applications by
post on the same day to the two authorities for approval of the action taken,
namely, the dismissal of the respondent. It appears that the tribunal at
Allahabad approved of the action on March 22, 1960. When however the same
matter came before' the labour court at Meerut on April 29, 1960, it refused to
approve the action taken, even though the order passed by the tribunal at
Allahabad already was brought to its notice.
The labour court at Meerut held that the
appellant was not motivated by victimisation. It further held that in the
inquiry held by the appellant, prima facie case had been made out for the
dismissal of the respondent ; but the labour court said that though ordinarily
the application of the appellant should have been granted in these
circumstances it refused to approve the dismissal on the around that the
application for approval had been made after the respondent had already been dismissed;
therefore it held that the application was not bona fide and in the circumstances
the prayer that the order of dismissal should be approved was not granted. It
was of the view that the proviso to s. 6E(2)(b) required that the application
for approval should be made before the dismissal of the workmen concerned, and
failure to do so amounted to contravention of the terms of the section. Therefore
as the application in this case was made after the dismissal, approval could
not be granted and on this narrow ground the labour court refused to approve of
the dismissal of the respondent.
Thereupon the appellant obtained special
leave from this Court and that is how the matter has come up before us.
The question thus raised depends upon the
interpretation of the terms of s. 6E (2) which as we have said already
correspond word for word with the provisions of s. 33 (2) of the Act. We shall
622 therefore set out the provisions of s. 33 (2) which reads as below :"(2)
During the pendency of any such proceeding in respect of an industrial dispute,
the employer way, in accordance with the standing orders applicable to a
workman concerned in such dispute(a)... ... ...
"(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." We are
concerned in the present appeal with the interpretation of the proviso to
cl.(b) which says 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. It is unnecessary to consider in the
present case whether applications have to be made, where more than one dispute
is pending before more than one tribunal, to all the tribunals where the
disputes are pending or whether an application to only one of them would be enough.
In the presentcase disputes were pending before two authorities and
applications were made to both of them, though curiously the result has been
rather unfortunate for the appellant, for one tribunal has approved of the
action while the other has not.
623 Before however we turn to the
interpretation of the proviso we may refer to the circumstances in which s.
33(2) came to be enacted. Originally there was no such provision like s. 33(2)
in the Act and the only provision to be found therein corresponded to the
present section 33(1), The object behind enacting s. 33 as it was before the
amendment of 1956 was to allow continuance of industrial proceedings pending
before any authority prescribed by the Act in a calm and peaceful atmosphere
undisturbed by any other industrial dispute. 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 on 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 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 redrafted in 1956 and
considerably expanded. It is now in five sub-sections 624 while before 1956 it
consisted practically of what is now sub-s. (1).
The present scheme therefore of a 33 is as
follows :-Subsection (1) refers to matters connected with a dispute which might
be pending and forbids any alteration to the prejudice of the workmen concerned
in such dispute, in the conditions of service applicable to them immediately
before the commencement of the industrial proceedings resulting from such
dispute and also forbids the employer from discharging or punishing any workman
whether by dismissal or otherwise in connection with any matter connected with the
dispute;
and the employer, if he wants to make any
alteration in the conditions of service or to Punish any workman or discharge
him, must get the express permission of the authority before which the
proceeding relating to the dispute might be pending. Thus sub-s. (1) lays down
that if an employer proposes to alter any conditions of service or proposes to
punish or discharge a workman in relation to a matter connected with the
dispute which might be pending before a tribunal the employer must put such
proposal before the tribunal and obtain its express permission in writing
before carrying out the proposal whether it be for alteration of any conditions
of service or for punishment or discharge of a workman by dismissal or
otherwise.
Sub-section (2) (a) on the other hand gives
power to the employer to alter any conditions of service not connected with the
dispute and this the employer can do without approaching at all the tribunal
where the dispute' may be pending. It further permits the employer to discharge
or punish, whether by dismissal or otherwise, any ,workman where this maybe on
account of any matters unconnected with the dispute pending before the
tribunal; but such discharge or dismissal is subject to the proviso, which
imposes certain 625 conditions on it. The intention behind enacting sub-s. (2)
obviously was to free the employer from the fetter which was put on him under
is. 33 as it was before the amendment in 1956 with respect to action for
matters not connected with a dispute pending before a tribunal. So far as
conditions of service were concerned, if they were unconnected with matters in
dispute the employer was given complete freedom to change them, but so far as
discharge or dismissal of workmen was concerned, though the employer was given
freedom, it was not complete and he could only exercise the power of discharge
or dismissal subject to the conditions laid down in the proviso. Even so, these
conditions in the proviso cannot be so interpreted, unless of course the words
are absolutely clear, as to require that the employer must first obtain
approval of the tribunal where a dispute may be pending before passing the
order of discharge or dismissal of a workman, for on this interpretation there
will be no difference between s. 33 (1) (b) and s. 33(2)(b) and the purpose of
the amendment of 1956 may be lost.
Then we come to sub-s. (3) which provides
that notwithstanding anything contained in sub-s. (2) certain workmen who are
called protected workmen shall not be dealt with except with the express
permission in writing of the authority before which the proceeding is pending.
Thus the freedom which was given to the employer under sub-s. (2) with respect
to conditions of service unconnected with the dispute or with respect to
discharge or punishment of workmen on the ground of matters unconnected with
the dispute was out down by sub-s.(3) with respect to a small class of workmen,
even though the action of the employer may be unconnected with any matter in
dispute before the tribunal. The explanation to sub-s. (3) defines who, is a
protected workmen and sub-s. (4) makes consequential provisions with respect to
him.
626 Lastly we come to sub-s (5) which lays
down that where an employer makes an application under the proviso to sub-s.
(2) for approval of the action taken by him,
the authority concerned shall without delay hear such application And pass as
expeditiously as possible such order in relation thereto as it deems fit.
Let us now turn to the words of the proviso
in the background of what we have said above. The proviso lays down that no
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. It will be clear that two kinds of punishment are subject to the
conditions of the proviso, namely, discharge or dismissal. Any other kind of
punishment is not within the proviso. Further the proviso lays down two conditions,
namely (i) payment of wages for one mouth and (ii) making of an application by
the employer to the authority before Which the proceeding is pending for
approval of the action taken. It is not disputed before us that when the
proviso lays down the condition as to payment of one month's wages, all that
the employer is required to do in order to carry out that condition is to
tender the wages to the employee. But if the employee chooses not to accept the
wages, he cannot, come forward and say that there has been no payment of wages
to him by the employer.
Therefore, though s. 33 speaks of payment of
one month's wages it can only mean that the employer has tendered the wages and
that would amount, for payment, for otherwise a workman could always make the
section unworkable by refusing to take the wages. So far as the second
condition about the making of the application is concerned, the proviso
requires that the application ,should be made for approval of the action taken
by the employer. It has been urged on behalf of the 627 respondent that the
words "action taken" in this part of the proviso mean the action
proposed to be taken and therefore all that the employer can do is to make an
application to the tribunal asking it to approve the. action proposed to be
taken by it and it is only after the approval that the employer can proceed to
dismiss or discharge the workman.
We are however of opinion that on this
interpretation there would really be no difference between sub-s.(2) and sub-s.
(1) of s.33 and the intention of the
legislature in making the amendment in 1956 would be rendered nugatory.
Moreover, it is against the rules of interpretation to add words to a
provision, when the provision, as it stands, is capable of a reasonable meaning
which will give effect to the intention of the legislature even on the words as
they stand. On the plain meaning of the proviso, it is clear that it gives the
employer the power to discharge or dismiss the employee before obtaining the
approval of the tribunal concerned; but at the same time the protection
afforded to the employee by the proviso has to remain effective. It 'seems to
us therefore that when the proviso speaks of an application for approval of the
action taken, the action taken there is the order of actual discharge or
dismissal made by the employer and it is for the approval of this order that
the application is to be made. This is borne out by form 'K' under r. 60 of the
Rules framed under the Act which corresponds to form XV under r. 31 of the U.P.
Rules.
Further the use of the word
"approval" in the proviso also suggests that something has been done
by the employer who seeks approval of that from the tribunal. If the intention
was that in view of the proviso the employer could not pass the order of dismissal
or discharge without first obtaining the approval of the tribunal, we see no
reason why the words in the proviso should not have been similar to those
sub-ss.
(1) and (3), namely, that no workmen shall be
discharged or dismissed without the express permission 628 writing of the
authority concerned. The change therefore the language used in the proviso to
sub-s. 2 (b) clearly shows in our opinion that the legislature intended that
the employer would have the, right to pass an order of discharge or dismissal
subject to two conditions, namely, (i) payment or wages for one month and (ii)
making of an application to the authority concerned for approval of the action
taken.
The use of the word ,approval" also
suggests that what hag to be approved has already taken place, though sometimes
approval may also be sought of a proposed action. But it seems to us in the
context that the approval here is of something done, as otherwise it would have
been quite easy for the legislature to use the words "for approval of the
action proposed to be taken" in the proviso. Further sub-s. (5) also
suggests when it uses the words "approval of the action taken" that
some action has been taken and it is that action which the employer wants to be
approved by his application. The difference between sub-s. (1) and subs.(2) is
therefore that under sub-s. (1) the employer proposes what he intends to do and
asks for the express permission of the authority concerned to do it; in sub-s. (2)
the employer takes the action and merely asks for the approval of the action
taken from the authority concerned by his application. There can therefore be
no doubt that subs. (2) (b) read together with the proviso contemplates that
the employer may pass an order of dismissal or discharge before obtaining the
approval of the authority concerned and at the same time make an application
for approval of the action taken by him. It is however urged on behalf of the
respondent that if the employer dismisses or discharges a workman and then
applies for approval of the action taken and the tribunal refuses to approve of
the action the workman would be left with no remedy as there is no 629
provisions for reinstatement in s. 33 (2). We however see no difficulty on this
score. If the tribunal does not approve of the action taken by the employer,
the result would be that the action taken by him would fall and thereupon the
workman would be deemed never to have been dismissed or discharged and would
remain in the service of the employer. In such a case no specific 'provision as
to reinstatement is necessary and by the very fact of the tribunal not
approving the action of the employer, the dismissal or discharge of the workman
would be of no effect and the workman concerned would continue to be in service
as if there never was any dismissal or discharge by the employer. In that sense
the order of discharge or dismissal passed by the employer does not become
final and conclusive until it is approved by the tribunal under s. 33(2).
The next question is as to when should an
application be made. In this connection our attention was drawn to s. 33-A of
the Act which gives a right to the employer to apply for redress in case an
employer contravenes the provision of s. 33 and there is no doubt that the
proviso to s. 33 (2), (b) should be so interpreted as not to whittle down the
protection provided by s. 33-A. As we read the proviso, we are of opinion that
it contemplates the three things mentioned therein, namely, (i) dismissal or
discharge, (ii) payments of wages and (iii) making of ,in application for
approval, to be simultaneous and to be part of the same transaction, so that
the employer when he takes action under s. 33 (2) by dismissing or discharging
an employee, should immediately pay him or offer to pay him wages for one month
and also make an application to the tribunal for approval at the same time.
When however we say that the employer must take action simultaneously or
immediately we do not mean that literally, for when three things are to be done
they cannot be done, simultaneously but 630 can only be done one after the
other. What we mean is that the employer's conduct should show that the three
things contemplated under the proviso, namely, (i) dismissal or discharge, (ii)
payment of the wages, and (iii) making of the application, are parts of the
same transaction. If that is done, there will be no occasion to fear that the
employee's right under s. 33-A would be affected. The question whether the
application was made as part of the same transaction or at the same time when
the action was taken would be a question of fact and ,Will depend upon the
circumstances of each case.
We may now refer to certain cases which have
been relied upon by either side. The main case on which learned counsel for the
respondents relies is The Premier Automobiles Limited v. Ramchandra
Bhimayya(1). In that case the Bombay High Court held that the application
should be made before the action has been taken by the employer and that it was
not correct to infer from the use of the word "approval" in the
proviso that the legislature intended that such an application should be made
after the action had been taken.
The High Court has pointed out that there is
apparent conflict between the first and last part of the proviso and the view
it took was with the object of harmonising the two parts. This view has been
followed by the Gujarat High Court in Indian Extractions Private Limited v. A.
V. Vyan, Conciliation Officer(2) though with some hesitation. With respect we
feel that it is not necessary to read the words "action taken" in the
proviso as equal to "action proposed to be taken", as the Bombay High
Court has done and that the apparent conflict between the two parts of the
proviso can be harmonised, as we have indicated above, leaving it open to the
employer to dismiss or discharge the employee and at the same time pay him the
necessary wages and (1) I.L.R. [1960] Bom. 289.
(2) A.I.R. [1961] Guj, 22, 631 make an
application to the authority concerned for approval of the action taken. The
contrary view has been taken by the Calcutta High Court in Metal Press Works
Limited v. Deb (H.R.)(1) where it has been held that payment of wages and the
making of the application should be simultaneous with the order of discharge or
dismissal. It has further been pointed out that 'the word
"simultaneously" must of course be taken reasonably and a notion of
split-second timing should not be imported. It should be done at once and
without delay", and it will depend upon the facts of each case whether the
application has been made at once or without delay. This, we think, is the
correct view to take.
Let us therefore see what has happened in
this case, The appellant-concern is situate at Saharanpur while one tribunal
was at Meerut and the other at Allahabad. What the appellant did was to pass an
order of dismissal on February 1, 1960. On the same day he sent two
applications by post addressed to the two tribunals. The application at Meerut
was received on February 3 and the application at Allahabad on February 4,
1960. In these circumstances we are of opinion that the appellant had made the
application to the tribunal simultaneously and without delay on its passing the
order of dismissal and its action was therefore in accordance with the proviso.
The view taken by the labour court that the application must be made before
dismissing the respondent is not correct. The appellant in this case had
complied with the proviso to s. 33 (2) (b) when it dismissed the workman, paid
him or offered to pay the necessary wages and at the same time sent the
application by post to the tribunal concerned for approval of the action taken
by it.
(1) [1962] 1. L L.J. 75.
632 This being the only point on which the
labour court had refused to give approval, the appeal must succeed. We
therefore allow the appeal, set aside the order of the labour court and approve
the action taken by the appellant.
In the circumstances we pass no order as to
costs.
Appeal allowed.
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