Punjab Beverages Pvt. Ltd., Chandigarh
Vs. Suresh Chand & ANR [1978] INSC 41 (21 February 1978)
BHAGWATI, P.N.
BHAGWATI, P.N.
BEG, M. HAMEEDULLAH (CJ) DESAI, D.A.
CITATION: 1978 AIR 995 1978 SCR (3) 370 1978
SCC (2) 144
CITATOR INFO:
RF 1980 SC1650 (13) RF 1981 SC 960 (11) F
1982 SC1493 (6) F 1985 SC1034 (15)
ACT:
Industrial Disputes Act, 1947-Section 33(c)
(2)- Maintainability of an application under s.33 c (2)-Nature of Proceedings
under Section 33(c)(2).
Industrial Disputes Act, (No. XIV of 1947),
1947 Section 33-Object of-Scope of the inquiry before the Tribunal exercising
jurisdiction under Section 33.
Construction of a statute-Construction should
be with reference to the context and other provisions of statute- Construction
of S. 33 of the Industrial Disputes Act, 1947.
Industrial Disputes Act, 1947, Section
33A-Scope of the inquiry effect of S. 33 on the interpretation of S. 33.
Industrial Disputes Act, (No. XIV of 1947),
1947-Sections 31, 33(2) (b), 33A, 33C(2), Scope of-Effect of contravention of
Section 33 (2)(b) on an order of dismissal passed by an employer in breach of
it-Whether it renders the order of dismissal void and inoperative.
HEADNOTE:
Respondent No. 1 in (C.A. 1375 of 1977) was a
workman employed as an operator in the Undertaking of the appellant from 1st
March, 1970 and was in receipt of Rs. 100/- per month as salary, which would
have been raised to Rs. 115/- per month from 1st October, 1972, if he had
continued in service with the appellant. But on 21st December, 1971 the 1st
Respondent was suspended by the appellant and a Charge- sheet was served upon
him and before any inquiry on the basis of this Charge-sheet could be held
another Charge- sheet was given to him on 17th April, 1973. This was followed
by a regular inquiry and ultimately the appellant, finding the 1st Respondent
guilty, dismissed him from service by an order dated 23rd December, 1974.
Since, an Industrial Dispute was pending at the time when the 1st Respondent
was dismissed from service in view of the provisions contained in S. 33(2)(b)
of the Industrial Disputes Act, the appellant immediately approached Industrial
Tribunal at Chandigarh before which the Industrial dispute was pending for
approval of the action taken by it. The appellant, however, withdrew that
application and the Industrial Tribunal, thereupon, made an order on 4th
September 1976 dismissing the application as withdrawn. The 1st Respondent then
demanded from the appellant full wages from the date of his suspension till the
date of demand, contending that as the action of the appellant dismissing him
was not approved by the Industrial Tribunal, he continued to be in service and
was entitled to all the emoluments. The appellant did not respond to this
demand of the 1st Respondent. whereupon, the latter made an application to the
Labour Court under S. 33-C(2) for determination and payment of the amount of
wages due to him from the date of suspension on the ground that the appellant
not having obtained the approval of the Industrial Tribunal to the dismissal
under s. 33(2)(b) the Order of dismissal was void and the 1st Respondent
continued to be in service and was entitled to receive his wages from the
appellant.
The appellant resisted this application under
S. 33-C(2) inter alia on the ground that the application under S. 33(2) (b)
having been withdrawn the position was as if no application bad been made at
all, with the result that there was contravention of S. 33(2)(b) but such
contravention did not render the order of dismissal void ab Into and it was
merely illegal and unless it was set aside in an appropriate proceeding taken
by the 1st Respdt. under S. 33-A or a reference under S. 10, the Labour 37 1
Court had no jurisdiction under S. 33-C(2) to direct payment of wages to the
1st Respondent on the basis that he continued in service and the application
made by the 1st Respondent accordingly was incompetent.
The Labour Court rejected the contention of
the appellant and held that since reference in regard to an industrial dispute
between the appellant and the workman was pending before the Industrial
Tribunal, it was not competent to the appellant to pass an order of dismissal
against the 1st Respondent, unless the action so taken was approved by the
Industrial Tribunal under s. 33 (2)(b) and consequently the appellant having
withdrawn the application for approval under S. 3 3 (2) (b) and the approval of
the industrial Tribunal to the order of dismissal not having been obtained the
order of dismissal was ineffective and the Labour Court had jurisdiction to
entertain the application of the 1st Respondent under S. 33-C(2) and to direct
the appellant- to pay the arrears of wages to the 1st Respondent. The Labour
Court accordingly, allowed the application of the 1st Respondent and directed
the appellant to pay an aggregate sum of Rs. 6485.48 to the 1st Respondent on
account of arrears of wages upto 30th September 1966. Similarly, on identical
facts the Labour Court also allowed the application of another workman Shri
Jagdish Singh (1st Respondent in Civil Appeal No. 1384 of 1977) and directed
the appellant to pay him a sum of Rs. 6286.80 in respect of arrears of wages
upto the same date. The appellant thereupon preferred Civil Appeals Nos. 1375
and 1384 of 1977 after obtaining special leave from this Court.
Allowing the appeals, by special leave and
converting the arrears of wages into compensation, the Court.
HELD : 1.(a) It is only if an order of
dismissal passed in contravention of section 33 (2)(b) is null and void that
the aggrieved workman would be entitled to maintain an application under
section 33C(2) for determination and payment of the amount of wages due to him
on the basis of that he continues in service despite the order of dismissal.
[376 E-F] (b) A proceeding under section
33C(2) is a proceeding in the nature of executive proceeding in which the
Labour Court calculates the amount of money due to a workman from his employer,
or, if the workman is entitled to any benefit which is capable of being
computed in terms of money, pro- ceeds to compute the benefit in terms of
money. But the right to the money which is sought to be calculated or to the
benefit which is sought to be computed must be an existing one. that is to say,
already adjudicated upon off provided for and must arise in the course of and
in relation to the relationship between the industrial workmen, and his
employer. [376 F-H] Chief Mining Engineer, East India Coal Co. Ltd. v.
Rameshwar and Ors [1968] 1 SCR 140, referred to.
(c) It is not competent to the Labour Court
exercising jurisdiction under section 33(C)(2) to arrogate to itself the
functions of an industrial tribunal and entertain a claim which is not based on
an existing right but which mat appropriately be made the subject-matter of an
industrial dispute in a reference under section 10 of the Act. [376 H, 377 A]
Gopal v. Union of India, [1968]1 L.L.J. 589; Central Bank of India Lta v. S.
Rajagopalan etc, [19641 3 S.C.R. 140, applied.
2. (a) The object of the legislature in
enacting section 33 clearly appears to be to protect the workman concerned in
the dispute which forms the subject-matter of pending conciliation or
adjudication-proceedings, against victmisation by the employer on account of
his having raised the industrial dispute or his continuing the pending
proceedings and to ensure that the pending proceedings are brought to an
expeditious termination in a peaceful atmosphere, undisturbed by any subsequent
cause tending to further exacerbate the already strained relations between the
employer and the workmen. But at the same time it recognises that occasions may
arise when the employer may be 372 justified in discharging or punishing by
dismissal his employee and so it allows the employer to take such action,
subject to the condition that in the one case before doing so, he must obtain
the express permission in writing of the Tribunal before which the proceeding
is pending and in the other, he must immediately apply to the Tribunal for
approval of the action taken by him. [378 F-H] (b) The only scope of the
inquiry before.the Tribunal exercising jurisdiction under section 33 is to
decide whether the ban imposed on the employer by this section should be lifted
or maintained by granting or refusing the permission or approval asked for by
the employer. If the permission or approval is refused by the Tribunal, the
employer would be precluded from discharging or punishing the workman by way of
dismissal and the action of discharge or dismissal already taken would be void.
But the reverse is not true for even if the permission or approval is to be
granted that would not validate the action of discharge or punishment by way of
dismissal taken by the employer. The permission or approval would merely remove
the ban so as to enable the employer to make an order of discharge or dismissal
and thus avoid incurring the penalty under section 31(1), but the validity of
the order of discharge or dismissal would still be liable to be tested in a
reference at the instance of the workmen under section 10. The workman would be
entitled to raise an industrial dispute in regard to the order of discharge or
dismissal and have it referred for adjudication under s. 10 and the Tribunal in
such reference would be entitled to interfere with the order of discharge or
dismissal within the limits held down by this Court in several decisions
commencing from Indian Iron
the position which arises when the employer
makes an application for permission or approval under section 33 and such
permission or approval is granted or refused. [379 D-H, 380 A] The Punjab
National Bank Ltd. v. Its Workmen, [1960] 1 S.C.R. 806 @ 826., Atherton West
& Co. Ltd. v. Suti Mills Mazdoor Union and Ors.. [1953] S.C.R. 780, Lakshmi
Devi Sugar Mills Ltd. v. Pt. Ram Sarup, [1956] S.C.R. 916 applied.
3. (a) The exposition of the statute has to
be ex visceribus Actus. No one section of a statute should be read in
isolation, but it should be construed with reference to the context and other
provisions of the statute, so as, as far as possible, to make a consistent
enactment of the whole status. [377 F-G 380 C] Colguhoun v. Brooks, (1889) 14
A.C. 493 at 506 referred to.
Lincoln College Case [1595] 3 Co. Rep.b
referred to.
(b) Section 33 in both its limbs undoubtedly
uses language which is mandatory in terms and section 31(1) makes it penal for
the employer to commit a breach of the provisions of Section 33 and therefore,
if section 33 stood done' it might lend itself to the construction that any
action by way of discharge or dismissal taken against the workman would be void
if it is in contravention of Section 33. But Section 33 cannot be read in
isolation. Section 33 must be construed not as if it were standing alone and
apart from the rest of the Act, but in the light of the next following section
33A and if these two sections are read together, it is clear that the
legislative intent was not to invalidate an order of discharge or dismissal
passed in contravention of section 33, despite the mandatory language employed
in the section and the penal provision enacted in section 31(1) [380 B-C, D-E]
4. (a) Section 33A gives to a workman
aggrieved by an order of discharge of dismissal passed against him in
contravention of section 33, the right to move the Tribunal for redress of his
grievance without having to take recourse section 10. [580 H, 381 A] (b) The
first issue which is required to be decided in a complaint filed by an
aggrieved workman under section 33A is whether order of discharge or dismissal
made by the employer is in contravention of Section 33. The foundation of the
complaint under section 33A is contravention of section 33 and if the workman
is unable to show that the employer has contravened section 33 in making the
order of discharge or dismissal, the complaint would be liable to be rejected. But
if the contravention of section 33 is established, the next question would be
whether the order of discharge or dismissal passed by the employer is justified
on merits. The Tribunal would have to go into this question and decide whether,
on the merits, the order of discharge or dismissal passed by the employer is
justified and if it is, the Tribunal would sustain the order, treating the
breach of section 33 as a mere technical breach. Since, in such a case, the
original order of discharge or dismissal would stand justified, it would not be
open to the Tribunal, unless there are compelling circumstances, to make any
substantial order of compensation in favour of the workman.
The Tribunal would have to consider all the
aspects of the case and ultimately what order would meet the ends of justice
would necessarily have to be determined in the light of the circumstances of
the case. But mere contravention of section 33 by the employer will not entitle
the workman to an order of reinstatement, because inquiry under section 33A is
not confined only to the determination of the question as to whether the
employer is proved, the Tribunal has to go further and deal also with the
merits of the order of discharge or dismissal. [382 H, 383 A-D] The Automobile
Products of India Ltd. v. Rukmaji Bala and Ors. [1955] 1 S.C.R. 1241; Equitable
Coal Co. v. Algu Singh, A.I.R. 1958 S.C. 761, Punja National Bonk Ltd. v. Its
Workmen, [1960] 1 S.C.R. 806 @ 826, applied.
(c) The very fact that even after the
contravention of section 33 is proved, the Tribunal is required to go into the
further question whether the order of discharge or dismissal passed by the
employer is justified on the merits, clearly indicates that the order of
discharge is not rendered void and inoperative by such contravention. [383 E-
F] (d) If the contravention of section 33 were construed as having an
invalidating effect on the order of discharge or dismissal, section 33A would
be rendered meaningless and futile because in that event, the workman would
invariably prefer to make an application under section 33(C)(2) for
determination and payment of the wages due to him on the basis that he
continues to be in service. If the workman filed a complaint under section 33A,
he would not be entitled to succeed merely by showing that there is
contravention of section 33 and the question whether the order of discharge or
dismissal is justified on the merits would be gone into by the Tribunal and if,
on merits, it is found to be justified, it would be sustained as valid despite
contravention of section 33, but if, on the other hand, instead of proceeding
under section 33A, he makes an application under section 33C(2), it would be
enough for him to show contravention of section 33 and he would then be
entitled to claim wages on the basis that he continues in service. Another
consequent which would arise on this interpretation would be that if the
workman files a complaint under section 33A, the employer would have an
opportunity of justifying the order of discharge or dismissal on merits, but if
the workman proceeds under section 33C(2), the employer would have no such
opportunity.
Whether the employer should be able to
justify the order of discharge or dismissal on merits would depend upon what
remedy is pursued by the workmen, whether under section 33A or under section
33C(2). Such a highly anomalous result could never have been intended by the
legislature. If such an interpretation were accepted, no workman would file a
complaint under section 33A, but he would always proceed under section 33C(2)
and section 33A would be reduced to futility. It is, therefore, impossible to
accept the argument that the contravention of section 33 renders the order of
discharge or dismissal void and inoperative and if that be so the only remedy
available to the workman for challenging the order of discharge or dismissal is
that provided under section 33A, apart of course from the remedy under section
10 and he cannot maintain an application under section 33 C(2) for
determination and payment of wages on the basis that he continues to be in
service. The workman can proceed under section 33 C(2) only after the Tribunal
has adjudicated, on a complaint under section 33A or on a reference 374 under
section 10. that the order of discharge or dismissal passed by tile employer
was not justified and has set aside that order and reinstated the workman. [383
H, 384 A-F]
5. In the employer contravenes the provisions
of section 33 and discharges or dismisses a workman without obtaining
permission or approval of the Tribunal, he would render himself liable to
punishment under section 31(1) and this punishment can extend even to
imprisonment. Moreover, the aggrieved workman would not only have the remedy of
moving the appropriate Government for making a reference under section 10, but
he would also be entitled to make a complaint to the Tribunal under section 33A
and on such reference or complaint, the order of discharge or dismissal would
be liable to be subjected to a much greater scrutiny than what would be
available before a Tribunal exercising the limited jurisdiction conferred under
section 33. The workman is thus not left without remedy, though according to
the trade union movement, the remedy provided tinder sections, 31, 10 and 33A
may not be as adequate as the workman might wish it to be. [384 G-H, 385 A]
6. Where the Tribunal entertains an
application for approval under section 33(2)(b) on merits, it applies its mind
and considers whether the dismissal of the workman amounts to victimisation or
unfair labour practice and whether a prima facie case has been made out by the
employer for the dismissal of the workman. If the Tribunal finds that either no
prima facie case has been made out or there is victimisation or unfair labour
practice, it would refuse to grant approval and reject the application on
merits.
Then of course, the dismissal of the workman
would be void and inoperative, but that would be because the Tribunal having
held that no prima facie case has been made out by the employer or there is
victimisation or unfair labour practice, it has refused to lift the ban. Where,
however, the application for approval under section 33(2)(b) is withdrawn by
the employer and there is no decision on it on merits. it cannot be said that
the approval has been refused by the Tribunal. The Tribunal having had no
occasion to consider the application on merits, there can be no question of the
Tribunal refusing approval to the employer. It cannot be said that where the
application for approval is withdrawn, there is a decision by the Tribunal to
refuse to lift the ban.. The withdrawal of the application for approval stands
on the same footing as if no application under section 33(2)(b) has beer, made
at all [385 D-G] (b) In the instant case the appellant contravened section
33(2)(b) in dismissing the workman in both the appeals but such contravention
did not have the effect of rendering the orders of dismissal void and
inoperative and hence the workmen were not entitled to maintain the
applications for determination and payment of wages under section 33 C(2).
[385 G-H] & CIVIL APPELLATE JURISDICTION
: Civil Appeal Nos. 1375 and 1384 of 1977.
Appeals by Special Leave from the Judgment
and Order dated 14-2-77 of the Addl. Labour Tribunal Chandigarh in I.D. Case'
No. 66-67/76 respectively.
AND Civil Appeal No. 2820 of 1977.
Appeal by Special Leave from the Judgment and
Order dated 4th November, 1977 of the Rajasthan Tribunal Court in C.A. No. LC-3
1976.
Soli Sorabjee Addl. Sol. Genl. (for the
intervener in CA 2820), Anand Prakash, H. K. Puri & Lakshmi Anand Prakash
for the appellants in all the appeals and applicant intervener M/s. Hindustan
Copper Ltd.
375 R. K. Garg, S. C. Agarwal, Y. J. Francis
& Aruneshwar Gupta for the respondents : applicant intervener/Shri N. K. Saxena.
The Judgment of the Court was delivered by
BHAGWATI, J., These two appeals by special leave raises a short but interesting
question of law relating to the interpretation of sections 33(2) (b) and
33(c)(2) of the Industrial Disputes Act, 1947 Thereinafter referred to as the
Act). The facts giving rise to the two appeals are almost identical and it
would, therefore, be sufficient if we set out the facts of only one of the two
appeals, namely Civil Appeal No. 1375 of 1977.
The first respondent was a workman employed
as an operator in the undertaking of the appellant from 1st March, 1970 and he
was in receipt of Rs. 100/- per month as salary which would have been raised to
Rs. 115/- per month from 1st August, 1972 if he had continued in service with
the appellant. But on 21st December, 1971 the 1st respondent was suspended by
the appellant and a charge sheet was served upon him and before any inquiry on
the basis of this charge sheet could be held, another charge sheet was given to
him on 17th April, 1973. This was followed by a regular inquiry and ultimately
the appellant, finding the 1st respondent guilty, dismissed him from, service
by an order dated 23rd December, 1974. Now, at the time when the 1st respondent
was dismissed from service, an industrial ,dispute was pending before the
Industrial Tribunal at Chandigarh, and therefore, in view of the provisions
contained in section 33 (2) (b) of the Act, the appellant immediately approached
the Industrial Tribunal, 'before which the industrial dispute was pending, for
approval of the action taken by it. The application was resisted by the 1st
respondent, but before it came up for hearing, the appellant applied to the
Indus- trial Tribunal for withdrawing the application and the Industrial
Tribunal thereupon made an order on 4th September, 1976 dismissing the
application as withdrawn.
The 1st respondent then demanded from the
appellant full wages from the date of his suspension till the date of demand
contending that as the action of the appellant dismissing the 1st respondent
was not approved by the Industrial Tribunal, the 1st respondent continued to be
in service and was entitled to all the emoluments. The appellant did 'hot respond
to this demand of the 1st respondent, whereupon the 1st respondent made an
application to the labour Court under section 33C(2) for determination and
payment of the amount of wages due to the 1st respondent from the date of
suspension, on the ground that the appellant not having obtained the approval
of the Industrial Tribunal to the dismissal of the list respondent under
section 3 (2) (b), the order of dismissal was void and the 1st respondent
continued to be in service and was entitled to receive his wages from the
appellant. The appellant resisted this application under section 33C (2) inter
alia on the ground that the application under section 3 3 (2) (b) having been
withdrawn the position was as if no application had been made at all with the result
that there was contravention of section 33 (2) (b), but such contravention did
not render the order of dismissal void ab initio and it was merely illegal and
unless it was 376 set aside in an appropriate proceeding taken by the 1st
respondent section 33A or in a reference under section 10, the Labour Court had
no jurisdiction under section 3 3C (2) to direct payment of wages to the 1st
respondent on the basis that he continued in service and the application made
by the 1st respondent was accordingly incompetent.
The Labour Court rejected the contention of
the appellant and held that since a reference in regard to an Industrial
dispute between the appellant and its workmen was pending before the Industrial
Tribunal, it was not competent to the appellant to pass an order of dismissal
against the 1st respondent unless the action so taken was approved by the
Industrial Tribunal under section 33 (2) (b), and consequently, the appellant
having withdrawn the application for approval under section 3 3 (2) (b) and the
approval of the Industrial Tribunal to the order of dismissal not having been
obtained, the order of dismissal was ineffective and the Labour Court had
jurisdiction to entertain the application of the 1st respondent under section
33C(2) and to direst the appellant to pay the arrears of wages to the 1st
respondent. The Labour Court accordingly allowed the application of the 1st
respondent and directed the appellant to pay an aggregate sum of Rs. 6485.48 to
the 1st respondent on account of arrears of wages upto 30th September, 1976.
Similarly and on identical facts, the Labour
Court also allowed the application of another workman and directed the
appellant to pay to him a sum of Rs. 6262.80 in respect of arrears of wages
upto the same date. The appellant thereupon preferred Civil Appeals Nos. 1375
and 1384 of 1977 after obtaining special leave from this Court.
The principal question which arises for
consideration in these appeals is as to what is the effect of contravention of
section 3 3 (2) (b) on an order of dismissal passed by an employer in breach of
it. Does it render the order of dismissal void and inoperative so that the
aggrieved workman can say that he continues to be in service and is entitled to
receive wages from the employer ? It is only if an order of dismissal passed in
contravention of section 3 3 (2) (b) is null and void that the aggrieved
workman would be entitled to maintain an application under section 33C(2) for
determination and payment of the amount of wages due to him on the basis that
he continues in service despite the order of dismissal. It is now well settled,
as a result of several decisions of this Court, that a proceeding under section
33C(2) is a proceeding in the nature of executive proceeding in which the
Labour Court calculates the amount of money due to a workman from his employer,
or, if the workman is entitled to any benefit which is capable of being
computed in terms of money, proceeds to compute the benefit in terms of money.
But the right to the money which is sought to be calculated or to the benefit
which is sought to be computed must be an existing one, that is to say, already
adjudicated upon or provided for and must arise in the course of and in
relation to the relationship between the industrial workman, and his employer.
Vide Chief Mining Engineer East India Coal Co. Ltd. v. Rameshwar & Ors.(1)
It is not competent to the Labour Court exercising jurisdiction under section
33C(2) to arrogate to itself the functions of an industrial tribunal (1) [1968]
1 S.C.R. 140.
377 and entertain a claim which is not based
on an existing right but which may appropriately be made the subject-matter of
an industrial dispute in a reference under section 10 of the Act. Vide Gopaul
v. Union of (1). That is why Gajendragadkar, J., pointed out in The Central
Bank of India Ltd. v. P. S. Rajagopalan etc. that "if: an employee is
dismissed or demoted and it is his case that the dismissal or demotion is
wrongful, it would not be open to him to make a claim for the recovery of his
salary or wages under section 33C(2). His demotion or dismissal may give rise
to an industrial dispute which may be appropriately tried but once it is shown
that the employer has dismissed or demoted him, a claim that the dismissal or
demotion is unlawful and, therefore, the employee continues to be the workman
of the employer and is entitled to the benefits due to him under a preexisting
contract, cannot be made under section 33C(2)".
The workman, who has been dismissed, would no
longer be in the service of the employer and though it is possible that on a
reference to the Industrial Tribunal under Section 10 the Industrial Tribunal
may find, on the material placed before it, that the dismissal was unjustified,
yet until such adjudication is made, the workman cannot ask the Labour Court in
an application under section 33C(2) to disregard his dismissal as wrongful and
on that basis to compute his wages. The application under section 33C(2) would
be maintainable only if it can be shown by the workman that the order of
dismissal passed against him was void ab initio.
Hence it becomes necessary to consider
whether the contravention of section 33(2)(b) introduces a fatal infirmity in
the order of dismissal passed in violation of it so as to render it wholly
without force or effect, or despite such contravention, the order of dismissal
may still be sustained as valid.
The determination of this question depends on
the true interpretation of section 33 (2) (b), but it is a well settled rule of
construction that no one section of a statute should be read in isolation, but
it should be construed with reference to the context and other provisions of
the statute, so as, as far as possible, to make a consistent enactment of the
whole statute. Lord Herschel stated the rule in the following words in
Colguhoun v. Brooks. (3) "It is beyond dispute, too, that we are entitled,
and indeed bound, when construing the terms of any provision found in a
statute, to consider any other parts of the Act which throw light on the
intention of the legislature, and which may serve to show that the particular
provision ought not to be construed as it would be alone and apart from the
rest of the Act." We must therefore, have regard not only to the language
of section 33 (2) (b), but also to the object and purpose of that provision,
the context in which it occurs and other provisions of the Act in order to
determine what the legislature intended should be the effect of contravention
of section 33 (2) (b) on the order of dismissal.
(1) [1968] 1 L.L.J.589.
(2) [1964] 3 S.C.R. 140.
(3) [1889] 14 A.C. 493 at 506 378 We may
first examine the object and purpose for which section 33, of which sub-section
2(b) forms part, has been introduced in the Act. This section, as originally
enacted, was in a simple form, but over the years it suffered various charges
and in its present form it reads inter alia as follows :
"33. (1) During the pendency of any
conciliation proceeding before a conciliation officer or a Board or of any
proceeding before an arbitrator or a Labour Court or Tribunal or National
Tribunal in respect of an industrial dispute, no employer shall,- (b) for any
misconduct connected with the dispute, discharge or punish. whether by
dismissal or otherwise any workmen concerned in such dispute, save with the
express permission in writing of the authority before which the proceeding is
pending.
(2) During the pendency of any such
proceeding in respect of an industrial dispute the employer may (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 in
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".
The object of the legislature in enacting
this section clearly appears to be to protect the workman concerned in the
dispute which forms the subject-matter of pending conciliation or adjudication
proceedings, against victimisation by the employer on account of his having
raised the industrial dispute or his continuing the pending proceedings and to
ensure that the pending proceedings are brought to an expeditious termination
in a peaceful atmosphere, undisturbed by any subsequent cause tending to
further exacerbate the already strained relations between the employer and the
workmen. But at the same time it recognises that occasions may arise when the
employer may be justified in discharging or punishing by dismissal his employee
and so it allows the employer to take such action, subject to the condition
that in the one case before doing so, he must obtain the express permission in
writing of the Tribunal before which the proceeding is pending and in the
other, he must immediately apply to the Tribunal for approval of the action
taken by him. On what principles however is the Tribunal to act in granting or
refusing permission or approval and what is the scope of the inquiry before it
when it is moved under this section ? This ques- 379 tion came up for
consideration and was decided by this Court in Atherton West & Co. Ltd. v.
Suti Mill Mazdoor Union & Ors. (1) and Lakshmi Devi Sugar Mills Ltd. v. Pt.
Ram Sarup(2) and Gajendragadkar, J, summarised the effect of these two
decisions in the following words in The Punjab National Bank, Ltd. v. Its
Workmen.(8) "Where an application is made by the employer for the
requisite permission under S. 33 the jurisdiction of the tribunal in dealing with
such an application is limited. It has to consider whether a prima facie case
has been made out by the employer for the dismissal of the employee in
question. If the employer has held a proper enquiry into the alleged misconduct
of the employee, and if it does not appear that the proposed dismissal of the
employee amounts to victimisation or an unfair labour practice, the tribunal
has to limit its enquiry only to the question as to whether a prima facie case
has been made out or not. In these proceedings it is not open to the tribunal
to consider whether the order proposed to be passed by the employer is proper
or adequate or whether it errs on the side of excessive severity; nor can the
tribunal grant permission, subject to certain conditions, which it may deem to
be fair. It has merely to consider the prima facie aspect of the matter and
either grant the permission or refuse it according as it holds that a prima
facie case is or is not made out by the employer." It will be seen that
the only scope of the inquiry before the Tribunal exercising jurisdiction under
section 33 is to decide whether the ban imposed on the employer by this section
should be lifted or maintained by granting or refusing the permission or
approval asked for by the employer. If the permission or approval is refused by
the Tribunal, the employer would be precluded from discharging or punishing the
workman by way of dismissal and the action of discharge or dismissal already
taken would be void. But the reverse is not true for even it the permission or
approval that would not validate the action of discharge or is granted
punishment by way of dismissal taken by the employer. The permission or
approval would merely remove the ban so as to enable the employer to make an
order of discharge or dismissal and thus avoid incurring the penalty under
section 31 (1), but the validity of the order of discharge or dismissal would
still be liable to be tested in a reference at the instance- of the workmen
under section 10, Vide Atherton West & Co.'s case and the Punjab, National
Bank case. The workman would be entitled to raise an industrial dispute in
regard to the order of discharge or dismissal and hive it referred for
adjudication under s. 10 and the Tribunal in such reference would be entitled
to interfere with the order of discharge or dismissal within the limits laid
down by this Court in several decisions commencing from Indian Iron & Steel
Co. Ltd. v. Their Workmen (4).
This is the position which arises when the
employer makes an application for permission or approval under section 33 and
such permission (1) [1953] S.C.R, 780.
(2) [1956] S.C.R. 916.
(3) [1960] 1 S.C.R. R06 at 826.
(4) [1958] S.C.R. 667.
381 contravention of section 33, the fight to
move the Tribunal for redress of his grievance without having to take recourse
to section 10.
Now, what is the scope of the inquiry under
Section 33A when a 'workman aggrieved by an order of discharge or dismissal
passed in contravention of section 33 makes a complaint in writing to the
Tribunal under section 33A. This question also is not res integra and it has
been decided by this Court in a number of decisions. The first case where this
question came up for consideration was The Automobile Products of India Ltd. v.
ukmaji Bala & Ors. (1) where the Court was called upon to construe section
23 of the Industrial Disputes (Appellate Tribunal) Act 1950 which corresponded
to section-33A of the Act. Section 23 conferred a right on a workman aggrieved
by an order of discharge or dismissal passed in contravention of section 22 to
make a complaint to the Labour Appellate Tribunal and on receiving such
complaint, the Labour Appellate Tribunal was empowered to decide it as if it
were an appeal pending before it. Section 22 of the Industrial Disputes
(Appellate, Tribunal) Act, 1950 was in almost identical terms as section 33 of
the Act. Das, J., who delivered the judgment of the Court, observed while
construing section 33A of the Act and the corresponding section 23 of the
Industrial Disputes (Appellate Tribunal) Act, 1950 that the scheme of these
sections "indicates that the authority to whom the complaint is made is to
decide both the issues, viz., (1) the effect of contravention, (2) the merits
of the act or order of the employer". The provisions of these two sections,
said the learned. Judge quite clearly show that "that the jurisdiction of
the authority is not only to decided whether there has been a failure on the
part of the employer to obtain the permission of the authority before.
taking action but also to go into the merits
of the complaint and grant appropriate reliefs". It was urged before the
Court that in holding an inquiry under section 33A, the duty of the Tribunal is
only to find out whether there has been a contravention of section 33 and if it
finds that there is such contravention, to make a declaration to that effect
and no further question can thereafter arise for consideration in such inquiry.
This contention was however, rejected.
The same question was again raised before
this Court in Equitable Coal Co. v. Algu Singh(2) and in this case, the Court,
following its previous decision in Automobile Products of India Ltd. v. Rukmani
Bala (supra) pointed out in a very clear and lucid exposition of the subject :
"The breach of the provisions of S. 22
by the employer is in a sense a condition precedent for the exercise of the
jurisdiction conferred on the Labour Appellate Tribunal by S. 23. As soon as
this condition precedent is satisfied the employee is given an additional right
of making the employed's conduct the subject matter of an industrial dispute
without having to follow the normal procedure laid down in the Industrial
Disputes Act. In an enquiry held under s. 23 two questions fall to be
considered is the fact of contravention by the (1) [1955] 1 S.C.R.1241.
(2) A.I.R. 1958 S.C. 761.
7-277 SCI/78 382 employer of the provisions
of S. 22 proved ? If yes, is the Y" order passed by the employer against
the employee justified on the merits ? If both these questions are, answered in
favour of the employee. The Appellate Tribunal would no doubt be entitled to
pass an appropriate order in favour of the employee.
If the first point is answered in favour of
the employee, but on the second point the finding is that, on the merits the
order passed by the employer against the employee is justified, then the breach
of S. 22 proved against the employer may ordinarily be regarded as a technical
breach and it may not unless there are compelling facts in favour of the
employee justify any substantial order of compensation in favour of the
employee. It is unnecessary to call that, if the first issue is answered
against the employee, nothing further can be done under S. 23. What orders
would meet the ends of justice in case of a technical breach of S. 22 would
necessarily be a question of fact to be determined in the light of the
circumstances of each case. In view of the decision of this Court in 1955-1
S.C.R. 1241 : (S) (AIR 1955 S.C. 258) (A), it would be impossible to accept Mr.
Sen's argument that the only order which can be passed in proceedings under S.
23 is to grant a declaration that the employer has committed a breach of the
provisions of S. 22. In Atherton West & Co. Ltd., Kanpur v. Suti Mill
Mazdoor Union 1953 S.C.R. 780 : (AM 1953 S.C. 241) (B), this Court has
expressed a similar view in regard to provisions of S. 23 of the Act." The
same view was reiterated by this Court in Punjab National Bank case (supra)
where Gajendragadkar, J., speaking on behalf of the Court, pointed out that
there can be no doubt that in an enquiry under Section 33A the employee would
not succeed in obtaining' an order of reinstatement merely by proving
contravention of S. 33 by the employer. After such contravention is proved it
would still be open to the employer to justify the impugned dismissal on the
merits. That is a part of the dispute which the tribunal has to consider
because the complaint made by the employee is treated as an industrial dispute
and all the relevant aspects of the said dispute fall to be con- sidered under
section 33A. Therefore, we cannot accede to the argument that the enquiry under
section 33A is confined only to the determination of the question as to whether
the alleged contravention by the employer of the provisions of section 33 has
been proved or not." It will, therefore, be seen that the first issue
which is required to be decided in a complaint filed by an aggrieved workman
under section 33A is whether the order of discharge or dismissal made by the
employer is in contravention of section 33. The foundation of the complaint
under section 33A is contravention of section 33 and if the workman is unable
to show that the employer has contravened section 33 in making the order of discharge
or dismissal, the complaint would be liable to be rejected. But if the
contravention of section 33 is 383 established, the next question would be
whether the order of discharge or dismissal passed by the employer is justified
on merits. The Tribunal would have to go into this question and decide whether,
on the merits, the order of discharge or dismissal passed by the employer is
justified and if it is.
The Tribunal would sustain the order,
treating the breach of section 33 as a mere technical breach. Since in such a
case, the original order of discharge or dismissal would stand justified, it
would not be open to the Tribunal, unless there are compelling circumstances,
to make any substantial order of compensation in favour of the workman.
In fact in Equitable Coal Co.'s case an order
of compensation made by the Tribunal in favour of the workman was reserved by
this Court. The Tribunal would have to consider all the aspects of the case and
ultimately what order would meet the ends of justice would necessarily have to
be determined in the light of the circumstances of the case. But this much is
clear that mere contravention of section 33 by the employer will not entitle
the workman to an order of reinstatement, because inquiry under section 33A is not
confined only to the determination of the question as to whether the employer
has contravened section 33, but even if such contravention is proved, the
Tribunal has to go further, and deal also with the merits of the order of
discharge or dismissal.
Now, if the effect of contravention of
section 33 were to make the order of discharge or dismissal void and
inoperative, the workman would straightaway be entitled to an or of
reinstatement as soon as he establishes in the complaint made by him under
section 33A that the employer has contravened section 33 in making the order of
discharge or dismissal. There would be no need to go into the further of
discharge or dismissal passed by the employer is justified on the merits. If is
difficult to imagine how the law can permit an order of discharge or dismissal
Which is void and inoperative to be justified on the merits. There can be no
question of justification on merits of an order of discharge or dismissal which
is found to be null and void very fact that even after the contravention of
section 33 is proved, the Tribunal is required to go into the further question
whether the order of discharge or dismissal passed by the employer is justified
on the merits, clearly indicates that the order of discharge is not rendered
void and inoperative by such contravention. It is interesting to note that
Gajendragadkar, J., speaking on behalf of the Court in Equitable Coal Co. case,
characterised the breach of section 33 as a technical breach not having any
invalidating consequence on the order of discharge or dismissal. If the scope
of the inquiry under section 33A is what is has been held to be in the
decisions in Automobile Products of India, Equitable Coal Co. and the Punjab
National Bank cases, the conclusion must inevitably follow that the
contravention of section 33 does not render the order of discharge or dismissal
void and of no effect.
It is also significant to note that if the
contravention of section 33 were construed as having an invalidating effect on
the order of discharge or dismissal, section 33A would be rendered meaningless
and futile, because in that event, the workman would invariably prefer to 384
make an application under section 33C(2) for determination and payment of the
wages due to him on the basis that he continues to be in service. If the
workman files a complaint under section 33A, he would not be entitled to
succeed merely by showing that there is contravention of section 33 and the
question whether the order of discharge or dismissal is justified on the merits
would be gone into by the Tribunal and if, on the merits, it is found to be
justified, it would be sustained as valid despite contravention of section 33,
but if, on the other hand, instead of proceeding under section 33A, he makes an
application under section 33C(2), it would be enough for him to show
contravention of section 33 and he would then be entitled to claim wages, on
the basis that the continues in service. Another consequence which would arise
on this interpretation would be that if the workman files a com- plaint under
section 33A, the employer would have an opportunity of justifying the order of
discharge or dismissal on merits, but if the work-man proceeds under section
33C(2), the employer would have no such opportunity.
Whether the employer should be able to
justify the order of discharge or dismissal on merits would 'depend upon what
remedy is pursued by the workman, whether under section 33A or under section
33C(2). Such a highly anomalous result could never have been intended by the
legislature. If such an interpretation were accepted, no workman would file a
complaint under section 33A, but he would always precede under section 33C (2)
and section 33A would be reduced to futility. It is, therefore, impossible to
accept the argument that the contravention of section 33 renders the order of
discharge or dismissal void and inoperative and if that be so, the only remedy
available to the workman for challenging the order of discharge or dismissal is
that provided under section 33A, apart of course from the remedy under section
10, and he cannot maintain an application under section 33C (2) for
determination and payment of wages on the basis that he continues to be in
service. The workman can proceed under section 33C(2) only after the Tribunal
has adjudicated, on a complaint under section 33A or on a reference under section
10, that the order of discharge or dismissal passed by the employer was not
justified and has set aside that order and reinstated the workman.
It was urged on behalf of the workman that if
this view were taken, it would rob the workman of the protection afforded to
him under section 33 and the object and purpose of the section would be
defeated because the employer would then, with impunity, discharge or dismiss workman
without complying with the requirements of section 33. But we do not think this
apprehension of the workman is well founded.
If the employer contravenes the provisions of
section 33 and discharges or dismisses a workman without obtaining permission
or approval of the Tribunal, he would render himself liable to punishment under
section 31 (1) and this punishment can extend even to imprisonment. Moreover,
the aggrieved workman would not only have the remedy of moving the appropriate
Government for making a reference under section 10, but he would also be
entitled to make a complaint to the Tribunal under section 33A and on such
reference or complaint, the order of discharge or dismissal would be liable to
be subjected to a much greater scrutiny than what would be available before a
Tribunal exercising the limited jurisdiction conferred under section 33.
The workman is thus not left without remedy,
though, according to the trade union movement, the remedy provided under
sections 31, 10 and 33A may not be as adequate as the workman might wish it to
be. It is entirely a matter of legislative policy to decide what consequences
should flow from contravention of a statutory provision and what remedy should
be provided to an aggrieved workman in case of such contravention.
We may now refer to one last contention urged
on behalf of the workman. That contention was that the pp.-sent case was not
one in which no application for approval was made by the appellant to the
Industrial Tribunal and there was thus contravention of section 33(2) (b), but
an application for approval was made under section 33 (2) (b) and this
application did not result in grant of approval, since it was withdrawn. It was
argued that this was tantamount to refusal of approval and the ban imposed by
section 3 (2) (b), therefore, continued to operate and the order of dismissal
passed by the appellant was void and inoperative.
This contention of the workman is, in our,
opinion, without force, for it equates, in our opinion, erroneously the
withdrawal of the application under section 33 (2) (h) with its dismissal on
merits. Where the Tribunal entertains an application for approval under section
33 (2) (b) on merits, it applies its mind and considers whether the dismissal
of the workman amounts to victimisation or unfair labour practice and whether a
prima facie case has been made out by the employer for the dismissal of the
workman. If the Tribunal finds that either no prima facie case has been made
out or there is victimisation or unfair labour practice, it would refuse to
grant approval and reject the application on merits. Then of course the
dismissal of the workman would be void and inoperative, but that would be
because the Tribunal having held that no prima facie case has been made out by
the employer or there is victimisation or unfair labour practice it has refused
to lift the ban. Where, however, the application for approval under section 33
(2) (b) is withdrawn by the employer and there is no decision on it on merits,
it is difficult to see how it can be said that the approval has been refused by
the Tribunal. The Tribunal having had no occasion to consider the application
on merits there can be no question of the Tribunal refusing approval to the
employer. It cannot be said that where the application for approval is
withdrawn, there is a decision by the Tribunal to refuse to lift the ban. The
withdrawal of the application for approval stands on the same footing as if no
application under section 33 (2) (b) has been made at all.
We accordingly hold that the appellant
contravened section 33(2) (b) in dismissing the workmen in both the appeals but
such contravention did 'not have the effect of rendering the orders of
dismissal void and inoperative and hence the workmen were not entitled to
maintain the applications for determination and payment of wages under section
33C(2).
But since we are exercising our extraordinary
jurisdiction under Article 136, we are not bound to set aside the order of the
Labour Court directing the appellant to pay the respective sums of Rs. 6485.48
and Rs. 6262.80 to the workmen unless the justice of the 386 case so request.
We think that the demands of social justice are pardisputes and, 'therefore,
even amount while dealing with industrial though the Labour court was not right
in allowing these applications, we do not think we should exercise our
overwinding jurisdiction under Article 136 to set aside the orders of the
Labour Court directing the appellant to pay the respective sums of Rs. 6485.48
and Rs. 6262.80 to the workmen. We do not, therefore interfere with this part
of the orders of the Labour Court, and the amounts ordered to be paid by the
Labour Court may be treated as compensation instead of wages. The amounts which
have already been paid by the appellant to the workmen pursuant to the orders
of the Labour Court or in compliance with the directions given by this Court
during the pendency of these appeals will be adjusted against the amounts
ordered to be paid to the workmen. We may make to clear that this order shall
not be construed as precluding the workmen from, pursuing the remedy under
Section 33A or Section 10. Since at the time of grant of special leave in these
appeals it was made a condition by this Court that the appellant should in any
event pay the costs of the workmen, we direct that, though the appellant has
succeeded, the appellant will pay the costs of these appeals to the workmen. We
are told that such costs have already been paid by the appellant to the
workmen.
C.A. No. 2820 of 1977.
This appeal by special leave is directed
against the order made by the Labour Court granting the application made by the
1st respondent under section 33C(2) and directing the appellant to pay wages to
the 1st respondent on the basis that the order of dismissal passed against him
was void and ineffective and the 1st respondent continued LO be in service. It
is not necessary to set out the facts giving rise to this appeal since the only
question of law which arises in this appeal has been disposed of by us today in
a judgment delivered in Civil Appeals Nos. 1375 and 1384 of 1977 and having
regard to that judgment, it is clear that the 1st respondent was not entitled
to maintain the application under section 33C(2) without adjudication from a
proper authority, either oh a complaint under section 33A or in a reference
under section 10, that the order of dismissal passed against him was
unjustified and directing his reinstatement.
We accordingly allow the allow the appeal set
aside the judgment and order passed by the Labour Court and reject the
application under section 33C(2) made by the 1st respondent Since at the time
of grant of special leave in this appeal it was made a condition by this court
that the appellant should in any event pay the costs of the workmen, we direct
that, though the appellant has succeeded, the appellant will Pay the costs of
this appeal to the workman.
We are told that such costs have already been
paid by the appellant to the workman.
S.R. Appeals allowed.
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