Case: Messrs. Kamarhatty Co. Ltd Vs. Shri Ushnath Pakrashi

K.N. Wanchoo J.1. This appeal by special leave against the decision of the Labour Appellate Tribunal of India is limited to the question whether an order of reinstatement can be made on an application under S. 33-A of the Industrial Disputes Act, 1947, (hereinafter called the Act). The brief facts necessary for the decision of this question are these. The appellant is a Jute Mill. There was a dispute pending before an Industrial Tribunal between a number of jute mills in West Bengal and their employees, and the appellant was a party to that dispute. During the pendency of that dispute, the appellant laid-off the respondent who was an employee in the ration shop maintained by the appellant from 19-7-1954, as rationing of food-stuff came to an end from 10-7-1954. The reason for the lay-off was that the ration shop was closed following the end of rationing. This resulted in the staff in that shop becoming surplus. Consequently, nine persons were selected for retrenchment on the principle of "last come first go", and the respondent was one of them. The appellant who applied under S. 33 of the Act to the Industrial Tribunal for permission to retrench the respondent along with others. Shortly before the application under S. 33, the respondent had applied under S. 33-A of the Act and his case was that there was no reason to make any retrenchment on account of the closure of the ration shop and that he was at any rate longer in service than others who had been retained and therefore the principle of "last come first go" had not been followed. It was also said that the respondent had been laid-off as he was an active worker of the union and as such was not in the good books of the appellant. It was therefore prayed that the respondent should be allowed full wages and amenities since the so-called lay-off, which was nothing more nor less than retrenchment and that he should be reinstated.2. The Industrial Tribunal came to the conclusion that the lay-off was justified because of the closure of the ration shop and gave permission to the appellant to retrench the respondent on the principle of "last come first go". The respondent appealed to the Labour Appellate Tribunal. He did not urge there that there was no necessity for retrenchment at all. What was urged there was that the Industrial Tribunal was wrong in holding that the principle of "last come first go" had been followed in this case. The Appellate Tribunal came to the conclusion that the respondent had been in service much longer than others who had been retained and therefore the principle of "last come first go" had been violated. In consequence, the appeal was allowed and the permission to retrench the respondent was refused. The Appellate Tribunal also ordered that the respondent should be reinstated in service without any break to the continuity of service and the order of the appellant in laying him off and discharging him in effect from 19-7-1954, was set aside. Thereupon the appellant came to this Court and was granted special leave on the limited question set out above.3. In our opinion, the answer to the limited question in which the special leave has been granted can only be on one view of the language of S. 33-A. That section lays down that where an employer contravenes the provisions of S. 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention, may make a complaint in writing to the tribunal and on receipt of such complaint the tribunal shall adjudicate upon the complaint as if it was a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit its award to the appropriate Government and the provisions of this Act shall supply accordingly. It is thus clear that a complaint under S. 33-A of the Act is as good as a reference under S. 10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under S. 10. It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman.In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore a complaint under S. 33-A being in the nature of a dispute referred to a tribunal under S. 16 of the Act, it is certainly which its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S. 33.4. Learned counsel for the appellant wanted to argue that this was not a case of discharge or dismissal but of lay-off. We did not permit him to raise this argument because the special leave was limited only to the question set out above. The answer to that question has already been indicated above and on that answer the appeal must fail.

Decision:
0[ds]3. In our opinion, the answer to the limited question in which the special leave has been granted can only be on one view of the language of S. 33-A. That section lays down that where an employer contravenes the provisions of S. 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention, may make a complaint in writing to the tribunal and on receipt of such complaint the tribunal shall adjudicate upon the complaint as if it was a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit its award to the appropriate Government and the provisions of this Act shall supply accordingly. It is thus clear that a complaint under S. 33-A of the Act is as good as a reference under S. 10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under S.It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman.In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore a complaint under S. 33-A being in the nature of a dispute referred to a tribunal under S. 16 of the Act, it is certainly which its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S. 33.4. Learned counsel for the appellant wanted to argue that this was not a case of discharge or dismissal but of lay-off. We did not permit him to raise this argument because the special leave was limited only to the question set out above. The answer to that question has already been indicated above and on that answer the appeal must fail.