Appeal No 353 of 1959
Appeal from the judgment and order dated April 22 1958 of the Punjab High Court Circuit Bench at Delhi in Civil Writ No 257 D of 1957
M C Setalvad Attorney General of India section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the Appellant
G section Pathak R L Anand and Janardan Sharma for the respondent No 2 591 1960
November 22
The Judgment of the Court was delivered by WANCHOO J
This is an appeal on a certificate granted by the Punjab High Court
Sharda Singh hereinafter called the respondent was in the service of the appellant mills
On August 28 1956 the respondent was transferred from the night shift to the day shift in accordance with para 9 of the Standing Orders governing the workmen in the appellant mills
At that time an industrial dispute was pending bet ween the appellant mills and their workmen
The transfer was to take effect from August 30 1956 but the respondent failed to report for work in the day shift and was marked absent
On September 1 1956 he submitted an application to the General Manager to the effect that he had reported for duty on August 30 at 10 30 pm and had worked during the whole night but had not been marked present
He had again gone to the mills on the night of August 31 but was not allowed to work on the ground that he had been transferred to the day shift
He complained that he had been dealt with arbitrarily in order to harass him
Though he said that he had no objection to carrying out the orders he requested the manager to intervene and save him from the high handed action taken against him adding that the mills would be responsible for his wages for the days he was not allowed to work
On September 4 1956 he made an application to the industrial tribunal where the previous dispute was pending under section 33 A of the  No XIV of 1947 hereinafter called the Act and complained that he had been transferred without any rhyme or reason from one shift to another and that this amounted to alteration in the conditions of his service which was prejudicial and detrimental to his interest
As this alteration was made against the provisions of section 33 of the Act he prayed for necessary relief from the tribunal under section 33 A
On September 5 1956 the General Manager replied to the letter of September 1 and told the respondent that his transfer from
one shift to the other had been ordered on 592 August 28 and he had been told to report for work in the day shift from August 30 but instead of obeying the order which was made in the normal course and report for work as directed he had deliberately disobeyed the order and reported for work on August 30 in the night shift
He was then ordered to leave and report for work in the day shift
He however did not even then report for work in the day shift and absented himself intentionally and thus disobeyed the order of transfer
The General Manager therefore called upon the respondent to show cause why disciplinary action should not be taken against him for wailfully refusing to obey the lawful orders of the departmental officers and he was asked to submit his explanation within 48 hours
The respondent submitted his explanation on September 7 1956
Soon after it appears the appellant mills received notice of the application under section 33 A and they submitted a reply of it on October 5 1956
Their case was that transfer from one shift to another was within the power of the management and could not be said to be an alteration in the terms and conditions of service to the prejudice of the workman and therefore the complaint under section 33 A was not maintainable
The appellant mills also pointed out that a domestic inquiry was being held into the subsequent conduct of the respondent and prayed that proceedings in the application under section 33 A should be stayed till the domestic inquiry was concluded
No action seems to have been taken on this complaint under section 33 A for which the appellant mills might as they had prayed for stay However the domestic inquiry continued and on February 25 be partly responsible of those proceedings
against the respondent 1957 the inquiry officer reported that t e charge of misconduct was proved
Thereupon the General Manager passed an order on March 5 1957 that in view of the serious misconduct of the respondent and looking into his past records he should be dismissed but as an industrial dispute was pending then the General Manager ordered that the permission of the industrial tribunal should be taken before the order of dismissal was 593 passed and an application should be made for seeking such permission under section 33 of the Act
In the meantime a notification was issued on March 1 1957 by which 10th March 1957 was fixed for the coming into force of certain provisions of the Central Act No XXXVI of 1956 by which sections 33 and 33 A were amended
The amendment made a substantial change in section 33 and this change came into effect from March 10 1957
The change was that the total ban on the employer against altering any condition of ser vice to the prejudice of workmen and against any action for misconduct was modified
The amended section provided that where an employer intended to take action in regard to any matter connected with the dispute or in regard to any misconduct connected with the dispute he could only do so with the express permission in writing of the authority before which the dispute was pending but where the matter in regard to which the employer wanted to take action in accordance with the Standing Orders applicable to a workman was not connected with the dispute or the misconduct for which action was proposed to be taken was not connected with the dispute the employer could take such action as he thought proper subject only to this that in case of discharge or dismissal one month s wages should be paid and an application should be made to the tribunal before which the dispute was pending for approval of the action taken against the employee by the employer
In view of this change in the law the appellant mills thought that as the misconduct of the respondent in the present case was not connected with the dispute then pending adjudication they were entitled to dismiss him after paying him one month s wages and applying for approval of the action taken by them
Consequently no application was made to the tribunal for permission in accordance with the order of the General Manager of March 5 1957 already referred to
Later on April 2 19579 an order of dismissal was passed by the General Manager after tendering one month s wages to the respondent and an application was made to the authority concerned for approval of the action taken against the respondent
594 Thereupon the respondent filed another application under section 33 A of the Act on April 9 1957 in which he complained that the appellant mills had terminated his services without the express permission of the tribunal and that this was a contravention of the provisions of section 33 of the Act he therefore prayed for necessary relief
On April 18 1957 an interim order was passed by the tribunal on this application by which as a measure of interim relief the appellant mills were ordered to permit the respondent to work with effect from April 19 and the respondent was directed to report for duty
It was also ordered that if the management failed to take the respondent back the respondent would be paid his full wages with effect from April 19 after he had reported for duty
On May 6 1957 however the application dated April 9 1957 was dismissed as defective and therefore the interim order of April 18 also came to an end
On the same day namely May 6 1957 the respondent made another application under section 33 A in which he removed the defects and again complained that his dismissal on April 2 1957 without the express previous permission of the tribunal was against section 33 and prayed for proper relief
It is this application which is pending at present and has not been disposed of though more than three years have gone by
It is also not clear what has happened to the first application of September 41956 in which the respondent complained that his conditions of service had been altered to his prejudice by his transfer from one shift to another
Applications under section 33 and section 33 A of the Act should be disposed of quickly and it is a matter of regret that this matter is pending for over three years though the appellant mills must also share the blame for this state of affairs  However the appellant mills gave a reply on May 141957 to the last application under section 33 A and objected that there was no breach of section 33 of the Act their case being that the amended section 33 applied to the order of dismissal passed on April 2 1957
Further on the merits the appellant mills  case was that the dismissal was in the circumstances justified
595 The matter came up before the tribunal on May 16 1957
On this date the tribunal again passed an interim order which was to the effect that as a measure of interim relief the respondent should be permitted to work from May 17 and the respondent was directed to report for duty
It was further ordered that in case the management failed to take him back they would pay him his full wages with effect from the date he reported for duty
Thereupon the appellant mills filed a writ petition before the High Court
Their main contention before the High Court was two fold
In the first place it was urged that the tribunal had no jurisdiction to entertain an application under section 33 A of the Act in the circumstances of this case after the amended sections 33 and 33 A came into force from March 10 1957
In the alternative it was contended that the tribunal had no jurisdiction to pass an interim order of reinstatement or in lieu thereof payment of full wages to the respondent even before considering the questions raised in the application under section 33 A on the merits
The High Court held on the first point that in view of section 30 of the Industrial Disputes Amendment and Miscellaneous Provisions Act No XXXVI of 1956 the present case would be governed by section 33 as it was before the amendment and therefore the tribunal would have jurisdiction to entertain the complaint dated May 6 1957 under section 33 A of the Act
On the second point the High Court held that the order of the tribunal granting interim relief was within its jurisdiction and was justified
In consequence the writ petition was dismissed
Thereupon the appellant mills applied and was granted a certificate by the High Court to appeal to this Court and that is how the matter has come up before us
The same two points which were raised in the High Court have been urged before us
We are of opinion that it is not necessary in the present case to decide the first point because we have come to the conclusion that the interim order of May 16 1957 is manifestly erroneous in law and cannot be supported
Apart from the question whether the tribunal had jurisdiction 596 to pass an interim order like this without making an interim award a point which was considered and left open by this Court in The Management of Hotel Imperial vs Hotel Workers  Union 1 we are of opinion that where the tribunal is dealing with an application under section 33 A of the Act and the question before it is whether an order of dismissal is against the provisions of section 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did not take the workman back in its service as an interim measure
It is clear that in case of a complaint under section 33 A based on dismissal against the provisions of section 33 the final order which the tribunal can pass in case it is in favour of the workman would be for reinstatement
That final order would be passed only if the employer fails to justify the dismissal before the tribunal either by showing that proper domestic inquiry was held which established the misconduct or in case no domestic inquiry was held by producing evidence before the tribunal to justify the dismissal See Punjab National Bank Ltd vs All India Punjab National Bank Employees  Federation 2 where it was held that in an inquiry under section 33 A the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of section 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 to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under section 33 A
Therefore when a tribunal is considering a complaint under section 33 A and it has finally to decide whether an employee should be reinstated or not it is not open to the tribunal to order reinstatement as an interim relief for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal
The interim relief ordered in this case was that the work 1  2  597 man should be permitted to work in other words he was ordered to be reinstated in the alternative it was ordered that if the management did not take him back they should pay him his full wages
We are of opinion that such an order cannot be passed in law as an interim relief for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under section 33 A As was pointed out in Hotel Imperial s case 1ordinarily interim relief should not be the whole relief that the workmen would get if they succeeded finally
The order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside
We therefore allow the appeal set aside the order of the High Court as well as of the tribunal dated May 16 1957 granting interim relief
Learned counsel for the respondent submitted to us that we should grant some interim relief in case we came to the conclusion that the order of the tribunal should be set aside
In the circumstances of this case we do not think that interim relief to the respondent is justified hereafter
As we have pointed above applications under sections 33 and 33 A should be dealt with expeditiously
We trust that the applications dated September 4 1956 which appears to have been overlooked and of May 6 1957 will now be dealt with expeditiously and finally disposed of by the tribunal as all applications under section 33 A should be
In the circumstances we pass no order as to costs
Appeal allowed


Summary:
One Sharda Singh respondent who was an employee of the appellant mills was dismissed for disobeying the orders of the managing authority
He filed an application before the Industrial tribunal under section 33 A of the  contesting his dismissal on various grounds whereupon the tribunal passed an order to the effect that as an interim measure the respondent be permitted to work in the appellant mills and if the management failed to take him back his full wages be paid from the date he reported for duty
The appellant mills then filed a Writ Petition before the High Court contesting the interim order of the Tribunal and the High Court held that the interim relief granted to the respondent was justified
On appeal by a certificate of the High Court Held that the interim order passed by the tribunal reinsta ting the respondent was erroneous
Such an interim relief could not be given by the Tribunal as it would amount to prejudging the respondents  case and granting him the whole relief at the outset without deciding the legality of his dismissal after hearing the appellant employer
The Management Hotel Imperial and Ors
vs Hotel Workers  Union   and Punjab National Bank vs All India Punjab National Bank Employees  Federation AIR  referred to