Appeal No 503 of 1966
Appeal by special leave from the Award dated November 10 1964 of the Industrial Tribunal Andhra Pradesh in Misc
Petition No 32 of 1964 in Industrial Dispute No 4 of 1964
R H Gokhale B K Seshu Parameshwara Rao Jyotana R Melkote and R V Pillai for the appellant
M K Ramamurthi Shyamala Pappu and Vineet Kumar for the respondent
The Judgment of the Court was delivered by Vaidialingam J
This appeal by special leave is directed against the award dated November 10 1964 of the Industrial Tribunal Andhra Pradesh Hyderabad accepting a complaint filed by the respondent under section 33A of the Act XIV of 1947 hereinafter called the Act
The respondent was at the material time working in the main branch of the appellant at Belgaum
By order dated March 8 1963 the respondent was transferred to Bhatkal branch as a C  rank Officer to work there as an accountant
He was also informed that he was being relieved so as to enable him to proceed to duty at the place of transfer by March 18 1963
He was allowed three days  joining time
On March 13 1963 the Manager of the Branch at Belgaum informed the respondent that he was relieved with effect from that date to join duty at the Bhatkal branch by March 18 1963
The respondent by letter dated March 14 1963 after setting out the various matters therein applied for privilege leave for ninety days from March 14 1963 to June 11 1963 so as to enable him to improve his health and also to attend to certain domestic matters
But the Bank the appellant herein desired him by their letter dated March 23 1963 to join duty and then apply for leave if necessary
Some further correspondence ensued between the Bank and the respondent the respondent again making a request for sanction of his leave and the appellant Bank insisting upon his joining duty according to the order of transfer and then applying for leave
But as the respondent did not join duty at the Bhatkal branch though he was relieved from the Belgaum office the appellant by their communication dated July 23 1963 desired the respondent to offer explanation for not obeying the order of transfer
The respondent sent a reply on July 29 1963 stating what according to him were the reasons for his not joining duty at the transferred office
The appellant Bank not satisfied with the explanation given by the respondent framed two charges against him and communicated the same on August 7 1963
The charges were to the effect that a the respondent by wilfully disobeying the lawful and reasonable transfer order of 329 the management has committed gross misconduct for which the punishment is dismissal from service and b the respondent had absented himself from duty from March 14 1963 without leave which again is a minor misconduct for which also punishment can be imposed
The respondent was also directed to submit his explanation if any to the charges on or before August 25 1963
The respondent offered his explanation to the charges by his letter dated August 21 1963
The appellant informed the respondent on October 1 1963 that an enquiry would be conducted against him in respect of the charges on October 5 1963 and desired him to be present at the enquiry with the necessary evidence in support of his defence
The inquiry was conducted by the Enquiry Officer in which the respondent participated
The Enquiry Officer sent a report to the Managing Director of the Bank dated October 28 1963 substantially finding the respondent guilty of both the charges
In respect of the first charge of gross misconduct for wilfully disobeying the order of transfer the Enquiry Officer had proposed that the respondent should be dismissed and in respect of the second charge of absenting without leave it was proposed in the report that the increment be stopped for a period of six months with effect from April 25 1963
Certain consequential proposals were also made as to how exactly the respondent s absence was to be dealt with
The Managing Director of the Bank after considering the re port submitted by the Enquiry Officer as well as the further explanation offered by the respondent in respect of the findings recorded in the said report by his order dated November 12 1963 agreed with the recommendation of the Enquiry Officer dismissed the respondent from the service of the Bank with immediate effect for the offence of wilful disobedience of the order of transfer
The respondent was also informed that he might appeal against the order of dismissal to the working committee of the Directors of the Bank within forty five days of receipt of the order
The respondent filed an appeal on December 17 1963 be fore the working committee of the Directors wherein he attacked the various proceedings culminating in the order of dismissal passed against him
Intimation of the hearing of the appeal was given to the respondent
But it is seen that on the date when the appeal was taken up for hearing viz March 20 1964 the respondent was not present either in person or through authorised representative of his
In consequence the working committee of the Directors dismissed the appeal on March 20 1964
In the appellate order the working committee has elaborately considered the various circumstances necessitating the conduct of the en quiry the enquiry proceedings and the answers given by the respondent and it has ultimately agreed with the findings recorded 330 in the enquiry proceedings that the respondent had wilfully disobeyed the lawful orders of the management transferring him
The result was that the order of dismissal passed by the Managing Director on November 12 1963 was confirmed
At this stage it may be mentioned that the Central Govern ment had referred on January 8 1964 for adjudication to the Industrial Tribunal of which Dr Mir Siadat Ali Khan was appointed as the presiding officer with headquarters at Hyderabad the question as to whether action by the appellant Bank in discontinuing pigmy collection and payment thereof to the workmen was justified
This was numbered as I D No 4 of 1964 and the award in this dispute was given on August 26 1964 and the Central Government published the same in the Gazette of India on September 7 1964
The respondent filed a complaint under section 33A of the Act on June 4 1964 before the Central Government Industrial Tribunal at Hyderabad attacking the enquiry proceedings conducted against him and the order of dismissal passed by the appellant
Apart from attacking the inquiry proceedings on merits as mala fide the respondent contended that the order of dismissal had been passed against him without the appellant Bank complying with the provisions of the proviso to section 332b of the Act
According to him inasmuch as the order of dismissal had been passed during the pendency of 1
D No 4 of 1964 the management should have asked the Industrial Tribunal for approval of their action and they should have paid him one month s wages
Therefore inasmuch as these things were not done the appellants have contravened the provisions of section 33 of the
The appellant Bank in their counter statement pleaded that the domestic enquiry conducted by the management was very fair and that the action of the management in dismissing the respondent was perfectly justified
In this connection the appellant raised the contention that the respondent was not a workman  and that in any event he was not a workman concerned with the dispute covered by ID No 4 of 1964 and therefore he was not entitled to file an application under section 33A
They further contended that there was no contravention of section 33 of the Act because at the time when the order dismissing the respondent was passed on November 12 1963 there was no industrial dispute pending so as to make it obligatory on the part of the appellant to take action in accordance with the proviso to section 332b of the Act
The Industrial Tribunal by its order under attack has overruled all the objections raised by the management
The Tribunal has held that the respondent was a workman  and that he was also a workman concerned in 1
D No 4 of 1964 and therefore 331 he was competent to file an application under section 33A
The Tribunal has also held that the dismissal of the respondent became effective only on March 20 1964 when the working committee of the Directors of the appellant Bank disposed of the appeal filed by the respondent
As this date fell within the period between January 8 1964 and October 8 1964 during which 1 D No 4 of 1964 was pending the management was bound to comply with the proviso to section 332b of the Act
As this proviso had not been complied with the Tribunal held that there was a contravention of the provisions of section 33 of the Act which gives a right to the respondent to invoke the jurisdiction of the Tribunal under section 33A of the Act
After having held that there is a contravention of section 33 of the Act the Tribunal then considered the attack levelled as against the domestic enquiry proceedings by the respondent and recorded a finding to the effect that it was not fair to consider that the respondent had wilfully disobeyed the order of transfer passed by the management
The tribunal therefore held on both the findings that the respondent should be reinstated with continuity of service and back wages
The same contentions that were raised before the Industrial Tribunal on behalf of the management have been urged before us by the appellants  learned counsel Mr Gokhale
Counsel urged that the respondent is not a workman  and in any event he is not a workman concerned with the dispute in ID No 4 of 1964
Counsel further pointed out that even assuming that the findings of the Tribunal recorded against the appellant were correct the application under section 33A was not maintainable inasmuch as there was no contravention by the management of any of the provisions of s 33 of the Act
In this connection counsel pointed out that the order of dismissal having been passed by the Managing Director on November 12 1963 long before January 8 1964 the date when ID No 4 of 1964 was referred there was no obligation on the part of the management to ask for approval of the Tribunal in respect of their action or of paying one month s wages to the respondent
Counsel also urged that even if these questions were answered against the appellant the award would have to be set aside because the Industrial Tribunal had really constituted itself as a Court of appeal when it set aside the order of dismissal passed by the management which was based on the findings recorded in a proper domestic enquiry
Mr M K Ramamurthy learned counsel appearing for the respondent has supported the views expressed by the Tribunal on all aspects
If the contention of the appellant that there was no Indus trial dispute pending at the time when the order of dismissal was passed is accepted then quite naturally it follows that no question of contravention of section 33 of the Act arises in which 332 case the complaint under section 33A is not maintainable in law
In an enquiry under section 33A the first question that the Tribunal will have to consider is regarding the contravention by the employer of the provisions of section 33 of the Act
If this issue is answered against the employee nothing further can be done under section 33A of the Act
This position has been settled by the decisions of this Court in Equitable Coal Ltd vs Algu Singh 1 and The Punjab National Bank Ltd vs Its Workmen 2
After hearing arguments on this aspect we are inclined in the instant case to accept the contention of the appellant in this regard and hence no other questions arise in the application filed by the respondent under s33A of the Act
There is no controversy in this case that the appellant did not seek the approval of the Industrial Tribunal concerned nor did they offer or pay one month s wages to the respondent
There is also no controversy that ID No 4 of 1964 can in law be considered to be pending only from January 8 1964 to October 8 1964
The order of the Managing Director dismissing the respondent from service was made on November 12 1963 which date admittedly falls outside the duration of the pendency of ID No 4 of 1964
The order of the working committee of Directors rejecting the respondent s appeal which was passed on March 20 1964 certainly falls within the period when ID No 4 of 1964 was pending
Therefore the question that arises for con sideration in this case is as to when it can be stated that the respondent was dismissed ie by the order of November 12 1963 of the Managing Director or by the appellate order of March 20 1964 passed by the working committee of Directors
According to the appellant the order which has to be taken into account for considering whether there is a contravention of section 33 of the Act is the original order passed by the Managing Director on November 12 1963 whereas according to the respondent the appellate order passed on March 20 1964 is the effective order dismissing him
The respondent s contention in this regard is briefly as follows
Under the National Industrial Tribunal Bank Disputes Award 1962 known as the Desai Award a workman in such cases has got a right of appeal to the appropriate authority and he has got a period of 45 days for filing the appeal
In this case the order of the Managing Director dated November 12 1963 also states that respondent is entitled to file an appeal against that order to the working committee of the Directors within 45 days of receipt of that order
The respondent admittedly filed an appeal on December 17 1963 well within the time
The appeal was disposed of on March 20 1964
The language of section 332 counsel points out is to the effect that the employer has 1 1958 I LLJ 793
2  333 been enabled to take action in accordance with the standing orders applicable to a workman concerned in such dispute 
Inasmuch as the standing orders in this case give a right to appeal to the workman any order that is passed by the management in respect of which a right of appeal is given to a workman cannot be considered to be an effective or operative order till the appellate decision is made known
It will be open to the appellant to take action in accordance with the proviso to section 332b at the time when the appellate order was passed on March 20 1964 as the appellate order is the effective and binding order
So far as the par ties are concerned the order of dismissal in this case must be considered to have been passed only on March 20 1964 which date squarely falls within the period during which ID No 4 of 1964 was pending
We are not inclined to accept the contentions of the learned counsel for the respondent in this regard
It has been laid down by this Court in Strawboard Manufac turing Co vs Govind1 in construing the proviso to section 332b of the Act that the three things contemplated viz dismissal or discharge payment of the wages and making of the application should be part of the same transaction
Therefore in our view there must be a fixed and certain point of time which will be applicable to all managements and workmen when construing the provisions of section 33 of the Act
The management must definitely know as to when they have to take the necessary action under the proviso to section 332b and the workman also should likewise know the definite time when the management should have complied with the requirements of the proviso to section 332b so that he could approach the Industrial Tribunal by way of a complaint under section 33A of the Act
A reading of the material provisions of section 33 shows that the expressions used are discharge or punish whether by dismissal or otherwise  and they clearly indicate in
our opinion the point of time when the order of discharge or dismissal is passed by the authority concerned
An order of discharge or
dismissal in our opinion can be passed only once and in this case the order of dismissal is the one passed by the Managing Director on November 12 1963
No doubt either by virtue of the Standing Orders or by virtue of a contract of service a right of appeal may be given to a workman concerned to challenge an order of dismissal
But the appellate authority only considers whether the order of dismissal has to be sustained or whether it requires modification
Therefore there is no question of the appellate authority passing again an order of dismissal
We are not concerned in construing the provisions of section 33 as to the finality of the orders passed by the authority concerned in the first instance in passing orders of dismissal or discharge
Further the proviso to section 332b when it refers to payment of wages for one month also indicates that it relates to an 1 1962 Supp 3 SCR 618 630
CI S 334 order of discharge or dismissal which comes into effect immediately which in this case is the order passed on November 12 1963
The payment of one month s salary or wages is to soften the rigour of unemployment that will face the workman against whom an order of discharge or dismissal has been passed
If the management has to wait for the minimum period prescribed for filing an appeal and also await the termination of the appeal when one is filed considerable time would have lapsed from the date of the original order during which period the workman would not have received any salary
It will be anomalous to hold that even after the lapse of such a long time the payment of one month s salary would satisfy the requirements of the section
In this case if the contention of the respondent is accepted it will lead to very anomalous results and the time when a management has to comply with the proviso to section 332b will radically differ
For example according to the respondent the management in this case will have to wait for the minimum period of 45 days which is the time given for the respondent to file an appeal
If an appeal is filed according to the respondent the management will have to wait further and await the disposal of the appeal
That means in such a case the proviso will come into effect only at the time when the appeal is disposed of
On the other hand
if after the expiry of 45 days the workman concerned does not file an appeal the management according to the respondent will have to comply with the proviso immediately after the period of limitation is over
That is the point of time when the proviso to section 332b will have to be complied with by the management will depend upon the filing or non filing of an appeal by the workman concerned
Further if at the time when the original order of dismissal is passed there is no dispute pending and when the appeal against the order of dismissal is pending a dispute is referred for adjudication it will be open to the management to prolong its decision in the appeal
till after the Industrial dispute has come to an end
It cannot be the intention of the Legislature that such variable and indeterminate periods are contemplated in construing the proviso to section 332b
The natural and reasonable in terpretation to be placed on section 33 is in our opinion that the order of discharge or dismissal is the original or the very first order passed by the management  which in this case is the one passed
by the Managing Director on November 12 1963
It follows that on that date I D No 4 of 1964
had not even been referred
for adjudication which as we have already indicated
was by an order of Government dated January 8 1964
Hence there is no contravention of section 33 in this case
Before we close the discussion it is necessary to state that Mr Ramamurthy learned counsel for the respondent referred us to two decisions of this Court
in The Management of Hotel Imperial V Hotel Workers  Union 1 and Collector of Customs 1  335 Calcutta vs East India Commercial Co Ltd1
In the first decision this Court has recognised that a term should be implied by Industrial Tribunals in the contract of employment that if the master has held a proper enquiry and come to the conclusion that the servant should be dismissed and in consequence suspends him pending the permission required under section 33 of the Act he has the power to order suspension thus suspending the
contract of employment temporarily so that there is no obligation on him  to pay wages and no obligation on the servant to work
In the second decision this Court held that in cases where an authority reverses the order under appeal or modifies or merely dismisses the appeal and thus confirms the order appealed against without any modification the operative order is the order of the appellate authority
In our opinion these decisions do not assist the respondent and the principles laid down
therein have no bearing on the point to be determined in the instant case
The result is that the award of the Industrial Tribunal is set aside and the application filed by the respondent before it will stand dismissed
The appeal is accordingly allowed but without costs
YP Appeal allowed


Summary:
After holding a domestic enquiry the Managing Director of the appellant Bank dismissed the respondent employee with immediate effect
The employee was informed that he might appeal against this order to the working committee of the Directors within certain days
The respondent filed the appeal which the working committee dismissed
Subsequent to the filing of the appeal but prior to its dismissal the Central Government referred to an Industrial Tribunal the question as to whether action by the appellant Bank in discontinuing pigmy collection and payment thereof to the workmen was justified
The respondent filed a complaint to the Industrial Tribunal alleging that the appellant contravened section 33 of the Industrial Dispute Act as the order of dismissal had been passed during the pendency of an Industrial Dispute the management should have asked the Industrial Tribunal for approval of their action and they should have paid him one month s wages
The Industrial Tribunal held that the dismissal of the respondent became effective only after the
working committee disposed of the appeal and as during this period an Industrial Dispute was pending the management was bound to comply with the proviso to section 33 2 b of the Act
In appeal to this Court
HeldThere was no contravention of section 33
An order of discharge or dismissal can be passed only once and in thus case the order of dismissal was the original or very first passed by the Managing Director on which date the Industrial Dispute had not even been referred for adjudication
No doubt either by virtue of the Standing Orders or by virtue of a contract of service a right of appeal may be given to a workman concerned to challenge an order of dismissal
But the appellate authority only considers whether the order of dismissal has to be sustained or whether it requires modification
Further the proviso to section 332 b when it refers to payment of wages for one month also indicates that it relates to an order of discharge or dismissal which comer into effect immediately
The payment of one month s salary or wages is to soften the rigour of unemployment that will face the workman against whom an order of discharge or dismissal has been passed
If the management has to wait for the minimum period prescribed for filing an appeal also await the termination of the appeal when one is filed considerable time would have elapsed from the date of the original order during which period the workman would not have received any salary
333F 334B Equitable Coal Ltd vs Tlgu Singh The Punjab National Bank Ltd vs Its Workmen 1960 1 SCR 806 and Straw
board Manufacturing Co vs Gobind 1962 Supp 3 SCR 618 relied 328 The Management of Hotel Imperial vs Hotel Workers  Union   and Collector of Customs Calcutta vs East India Commercial Co Ltd held inapplicable