State Bank of Bikaner Vs. Balai
Chander Sen [1963] INSC 166 (14 August 1963)
14/08/1963 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1964 AIR 732 1964 SCR (4) 703
ACT:
Industrial Dispute-Application for approval
moved before discharge-Validity of the application-Industrial Disputes Act (14
of 1947), s. 33(2)(b.)
HEADNOTE:
The respondent while working as an assistant
cashier of the appellant-bank, received Rs. 4,100/but denied having received
that amount and stated that he was paid only Rs.
4,000/-. He was suspended and charge-sheeted
for giving false statements to the manager. An enquiry was held. The enquiry
officer found that the charges framed against the respondent had been proved
and he recommended that he should be-discharged from service of the bank. The
bank agreed to discharge him. Before passing the actual 404 order of discharge
against the respondent, the bank applied under s. 33(2)(b) of the Industrial
Disputes Act for approval of the action proposed to be taken against the
respondent. The respondent was however, actually discharged after this
application was made. The Labour court refused to approve the action of the
bank, holding on the basis of Strawboard Manufacturing Co's case that such
approval should have been sought after the actual discharge had been made.
Held:(1) It was immaterial under s. 33(2)(b)
of the Industrial Disputes Act whether the application for approval of the
discharge of the workman was made before or after the actual order of discharge.
(2)The Strawboard Manufacturing Co.'s case
lays down that the application for approval can be made after the action has
been taken and when this happens the employer is required to fulfill the three
conditions as laid down in the proviso to s. 33(2)(b), namely, (i) the
dismissal or discharge of employee (ii) payment of wages and (iii) the making
of the application, as parts of the same transaction.
Strawboard Manufacturing Co. v. Govind,
[1962] Supp. 3 S.C.R. 618, explained.
(3)There is nothing in principle against the
employer making an application under S. 33(2)(b) of the Act for approval of the
proposed action before the actual action is taken.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 516 of 1963.
Appeal by special leave from the order dated
September 20, 1962, of the Central Government Labour Court at Dhanbad in
Application No. L. C. 113 of 1962.
B.Sen, I. B. Dadachanji, O. C. Mathur and
Ravinder Narain, for die appellant.
Janardan Sharma, for the respondent.
August 14, 1963. The judgment of the Court
was delivered by WANCHOO J.--This is an appeal by special leave against the
order of the Central Government Labour Court at Dhanbad.
The respondent was in the service of the
appellant-bank's branch at Calcutta and worked as an assistant cashier. On June
17, 1961, one Shankerlal applied for telegraphic transfer of Rs. 4,000/from
Calcutta to Sujangarh and handed over currency notes of Rs. 100/each to the
respondent. As the respondent was counting 405 the notes, Shankerlal remembered
that he had given 41 notes instead of 40 to the respondent and requested him to
return the bundle of notes for verification. The respondent however refused to
return the notes saying that the amount given to him was Rs. 4,000/and not Rs.
4,100/-.
Shankerlal went back to his shop and verified
that he had taken 41 notes instead of 40 and had thus handed over one note of
Rs. 100/extra to the respondent, in connection with the telegraphic transfer.
He then came back to the bank and complained to the Manager about this. The
manager ordered the chief cashier to close the cash in the hands of the
respondent and to check the amount in his hand with the books. The chief
cashier found on checking that there was one note of Rs. 100/extra with the
respondent. The manager asked the respondent to hand over the extra note but
the respondent refused to do so saying that it belonged to him. In explanation
he said that it had been given to him by Ms mother. The manager immediately
took steps to verify this statement and deputed the chief cashier along with
another person to the respondent's house to make necessary inquiries. But at
the house of the respondent both his mother and father said that they had not
given a hundredrupee note to the respondent.
Thereafter the respondent was told what his
parents had said and asked what he had to say further. The respondent then came
out with another story that the note was given to him by a tenant of the
building in which he lived. He gave out the name of the tenant as Mondal. The manager
again sent the same persons to make enquiries from Mondal but it was found that
there was no person of the name of Mondal in that building. The bank therefore
decided to take disciplinary proceedings against the respondent and handed over
a chargesheet to him. The respondent was also suspended from the bank's
service. Thereafter an enquiry was conducted against the respondent. The
enquiry officer came to the conclusion that the two charges framed against the
respondent had been proved and recommended after taking into consideration the
past service and conduct of the respondent that he should be discharged from
the service of the bank. Thereafter according to the rules prevalent in the
bank the respondent was given notice 406 to show cause why he should not be
discharged. His explanation was taken into account and thereafter the bank
decided to discharge him. So on December 27, 1961, the bank applied under s.
33(2)(b) of the Industrial Disputes Act, No. 14 of 1947, for approval of the
action proposed to be taken against the respondent. It may be added that after
this application was made, the bank's case is that it actually discharged the
respondent on January 15, 1962.
The application under s. 33 (2)(b) finally
came up for disposal before the labour court. That court held relying on a
decision of this Court in Strawboard Manufacturing Co.
v. Gobind(1) that as the application had been
made for approval of the proposed discharge and before the actual discharge of
the respondent, it was not maintainable.
Consequently it dismissed the bank's prayer
for approval of the proposed action. The present appeal by special leave is
against this order of the labour court.
The main contention of the appellant is that
the labour court was not right in holding that the application was not
maintainable on the ground that it had been made for approval of the proposed
action and not after the action had been taken. It is urged that the decision
of this Court in Strawboard Manufacturing Co.'s, case(1) has been misunderstood
by the labour court and this Court did not lay down in that case that an
application under s. 33(2)(b) would not be maintainable if it is made by an
employer after he had concluded the enquiry and decided to impose a certain
punishment but had not actually imposed it. We are of opinion that this
contention must prevail.
The contention in the Strawboard
Manufacturing Co.'s case(1) was that the application for approval must be made
before the employer takes action and that view was negatived. In that case what
the employer had done was to make the enquiry and decide to dismiss the
employee. The order of dismissal was passed on February 1, 1960 and on the same
day an application was made to the tribunal for approval of the action taken.
The tribunal took the view that the application for approval had been made
after the dismissal of the employee and the same should have been made before
dismissing him. That (1) [1962] SUPP. 3 S.C.R. 618.
407 view was held by this Court to be
incorrect. This Court held that s. 33 (2) (b) requires the employer to do three
things contemplated in the proviso, namely (1) the dismissal or discharge of
the employee, (2) payment of wages and (3) the making of the application as
parts of the same transaction. That case, however, did not lay down that if an
employer takes the precaution of making an application after the necessary
enquiry-and before actually taking any action-for approval of the proposed
action, such an application would not be maintainable. That case was concerned with
the latest time by which the employer must make the application for approval
after he had taken the action of which the approval was sought. But there is
nothing in s. 33 (2) (b) which requires that an application for approval can
only be made after the action has been taken. We see nothing in principle
against the employer making an application under s. 33 (2) (b) for approval of
the proposed action before the actual action is taken. Such a course on the
part of the employer would, if anything, be more favourable to the employee and
would not in our opinion be against the provisions contained in s. 33 (2) (b).
We are therefore of opinion that the labour court was wrong in holding that an
application made by an employer under s. 33 (2) (b) for approval of the action
he proposes to take is not entertain able and that such an application must
necessarily be made after the action of which approval is sought is taken. All
that the Strawboard Manufacturing Co.'s case(1) lays down is that the
application can be made after the action of which the approval is sought has
been taken and that when this happens the three conditions in the proviso to s.
33 (2) (b) must be shown to be parts of the same transaction. But if an
employer chooses to make an application under s. 33 (2) (b) for approval of the
action he proposes to take and then takes the action we find nothing in s.
33(2)(b) which would make such an application not maintainable. Such an
application in our opinion would not be contrary to the provisions of s. 33 (2)
(b) read with the proviso thereof and would be maintainable. The view of the
labour court therefore that the application by the appellant (1) [1962] Supp. 3
S.C.R. 618.
408 in the present case was not maintainable
must fail.
This brings us to the question whether
approval should be granted to the action proposed to be taken by the appellant bank.
It appears that the respondent could not appear before the labour court on the
date on which it decided the matter, on the ground that he was ill. He had submitted
a medical certificate in that connection. The labour court however decided to
proceed with the matter and dismissed the application on the ground that it was
not maintainable.
Learned counsel for the respondent prays that
in the circumstances the matter should be remanded to the labour court to
enable the respondent to appear. We find however that the respondent had filed
a written statement in reply to the bank's application in which he controverted
the facts on which he was ordered to be discharged. Considering that the matter
has been pending since 1961 we do not think that this is a case where a remand
is called for. The appellant relied on the enquiry proceedings, copies of which
were filed with the application ; and all that the tribunal has to see when
dealing with an application under s. 33(2) (b) is whether the employer had
conducted the enquiry properly and whether the action taken or proposed to be
taken was bona fide and not due to victimisation or unfair labour practice. We
have been taken through the enquiry papers and we are of opinion that there is
nothing in them to show that the enquiry was not properly conducted. Nor is
there anything to show that the respondent was victimised or the proposed
action is the result of any unfair labour practice.
It is true that the respondent said in his
written statement that the enquiry was merely pretence of an enquiry and was
held in utter disregard of the rules of natural justice and also that he had
been victimised. But besides making these allegations the written statement
does not show in what manner the enquiry was not fair and proper and why the
respondent was victimised. We arc of opinion that the enquiry held in this case
was fair and proper and in accordance with the principles of natural justice
and the respondent had full opportunity to defend himself. We are also
satisfied that there is no question of victimisation or unfair labour practice.
Therefore the approval 409 sought for must be granted.
We therefore allow the appeal, set aside the
order of labour court and grant the application of the appellant-bank dated December 27, 1961 and approve the proposed action. In the circumstances we pass no order
as to costs.
Appeal allowed.
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