Appeal No 423 of 1964
Appeal by special leave from the order dated October 5 1962 of the Central Government Industrial Tribunal at Dhanbad in Application No 53 of 1961 in Reference Nos 45 56 63 and 65 of 1961
section V Gupte Solicitor General and I N Shroff for the appellant
Jitendra Sharma and Janardan Sharma for the respondent
The Judgment of the Court was delivered by Gajendragadkar C J
This appeal raises a very short point for our decision
The appellant the Tata Iron  Steel Co Ltd N4SCI 430 Jamadoba filed an application under section 332b of the No 14 of 1947 hereinafter called the Act before the Central Government Industrial Tribunal Dhanbad hereinafter called the Tribunal asking for its approval of the action which it proposed to take against its employee the respondent D R Singh
This application was made by the appellant because certain industrial disputes were pending at the relevant time between the appellant and its employees under References Nos 45 56 63 and 65 of 1961
This application was opposed by the respondent who filed his written statement
At the hearing of the application the appellant urged before the Tribunal that though it had made the present application as a matter of abundant caution its case was that it was not necessary to apply under section 322 because the respondent was not concerned with the industrial disputes which were pending between the appellant and its employees in the different References to which we have already referred
In other words the appellant wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant industrial disputes at all before dealing with the merits of its application
The appellant s case was that one of the conditions precedent for the applicability of section 33 is that the workman against whom the employer seeks to take action falling under section 332 must be a workman concerned in the main industrial disputes if he is not so concerned section 332 will not apply
In order to avoid any complica tions and with a view to save itself from the charge that it had contravened section 33 of the Act the appellant had no doubt made an application as a precautionary measure that is why it wanted the Tribunal to consider its contention that section 33 did not apply as a preliminary point
The Tribunal took the view that the appellant could not raise such a contention
It held that if the appellant thought that section 33 did not apply it should withdraw the application and take the consequences
On that view it refused to entertain the plea raised by the appellant and proceeded to deal with the merits of the application
In the result the Tribunal was not satisfied that a prima facie case had been made out for the dismissal of the respondent and so approval was not accorded to the action which the appellant wanted to take against the respondent and its application was accordingly dismissed
It is against this order that the appellant has come to this Court by special leave
The learned Solicitor General for the appellant contends and we think rightly that the Tribunal was in error in not dealing with the preliminary point as to whether section 33 applied to the facts of this case
It is plain that in a situation like the present even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes it would be justified in refusing to take the risk of deciding the said point for itself
It would be legitimate for an employer like the appellant to make an application under section 33 without prejudice to his case that section 33 did not apply
The question 431 about the construction of the words a workman concerned in such dispute which occur in section 331 and 2 has been the subject matter of judicial decisions and somewhat inconsistent views had been taken by different High Courts on this point
Some High Courts construed the said words in a narrow way vide New Jehangir Vakil Mills Ltd Bhavnagar vs N L Vyas  Ors1 while others put a broader construction on them vide Eastern Plywood Manufacturing Company Ltd vs Eastern Plywood Manufacturing Workers  Union2
Newton Studios Ltd vs Ethirajulu T R  Others3 and Andhra Scientific Company Ltd vs Seshagiri Rao A4
This problem was ultimately resolved by this Court in its two recent decisions viz New India Motors Private Ltd vs Morris KT5 and Digwadih Colliery vs Ramji Singh6
In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words workmen concerned in such dispute
Where judicial decisions differed on the construction of the words workmen concerned in such dispute it would be idle and unreasonable to suggest that the employer should make up his mind whether section 33 applies or not and if he thinks that section 33 does not apply he need not make the application on the other hand if he thinks that section 33 applies he should make an application but then he cannot be permitted to urge that the application is unnecessary
Such a view is in our opinion wholly illogical and unsatisfactory
Therefore we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such the application made by it was unnecessary
That raises the question as to the course that we should adopt in dealing with the merits of the present appeal
Logically it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered because if the appellant is right in contending that the respondent is not a workman concerned with such disputes within the meaning of section 322 the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent
In the present case however we do not propose to adopt such a course
The order terminating the services of the respondent was passed on December 4 1961 and it was to take effect from December 9 1961
The Award was pronounced by the Tribunal on October 5 1962 and when the appeal has come for final disposal before us more than three years have elapsed since the date of dismissal of the respondent
The learned Solicitor General fairly con ceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent as to have a 1 1958 II LLJ 575
4 1959 II LLJ 717
2 1952 I LLJ 628
5 1960 I LLJ 551
3 1958 I LLJ 63
6 19641 II LLJ 143
432 decision from this Court on the point of law raised by it before the Tribunal
Accordingly we have decided that point in favour of the appellant but having regard to the long passage of time between the date of the impugned order and the date when we are pronouncing our judgment in the present appeal we think it would be inexpedient and unjust to send the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the appellant as to whether the respondent is a workman concerned in such disputes within the meaning of section 332 of the Act
That is why though we have reversed the finding of the Tribunal on the preliminary point we do not propose to give this litigation any further lease of life
In the result without examining the merits of the findings recorded by the Tribunal for not according approval to the dismissal of the respondent we direct that the appeal fails and is dismissed
There would be no order as to costs
Appeal dismissed


Summary:
Because certain industrial disputes were pending before the Industrial Tribunal at the relevant time between the appellant and its employees the appellant filed an application under section 332 b asking for approval of action which it proposed to take against its employee the respondent
The appellant urged that this application was made as a matter of abundant caution and it wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant industrial dispute at all before dealing with the merits of the application
The Tribunal being of the view that if the appellant thought that s 33 did not apply it should withdraw the application and take the consequences dealt with the merits of the application
In appeal by special leave HELD The Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial dispute and as such the application made by it was unnecessary
431E It is plain that in a situation like the present where judicial decisions differed on the construction of the words workman concerned in such dispute even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes it would be justified in refusing to take the risk of deciding the said point for itself
It would he legiti mate for an employer to make an application under section 33 without prejudice to his case that section 33 did not apply
431D E Case law referred to