Case: M/s. Filmistan Private Limited Vs. Balkrishna Bhiwa &amp; Another

as asked for by the management, especially when there was no error apparent on the record; (2) that though the workman raised the plea of violation of S. 33(2)(b) in his written statement, that contention was not pursued before the Industrial Tribunal and therefore the High Court was not justified in entertaining that plea, specially when there was no averment by the workman in the writ petition that though the point was raised and argued, was not decided and adjudicated upon by the Industrial Tribunal; and (3) in any event the dates adverted to clearly show that the order of dismissal, the tender of wages and the application for approval have all been taken by the management simultaneously as a part of the same transaction and there has been no delay as wrongly assumed by the High Court We may deal with all the contentions together. The scope of S. 33(2)(b) proviso has been dealt with very elaborately by this Court in Straw board Manufacturing Co. v. Gobind, (1962) Suppl. 3 S.C.R. 618. The principle laid down in that case is as follows :"As we read the proviso, we are of opinion that it contemplates the three things mentioned therein namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes action under S. 33(2)(b) by dismissing or discharging an employee, should immediately pay him of offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time. When, however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employers conduct should show that the three things contemplated under proviso namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application are part of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case."12. From the above extract it is clear that two principles emerge : (i) the employers conduct should show that the three things contemplated under the proviso to S. 33(2)(b) have been done by him as parts of the same transaction; and (ii) whether an application was made as part of the same transaction at the same time when action was taken is a question of fact depending upon the circumstances of each case. The principles laid down in the above decision have been quoted with approval by a Constitution Bench of this Court in Kalyan (R. H.) v. Air France, Calcutta, [1963 - I L.L.J. 679].13. In the case before us the management in its application before the Industrial Tribunal had given various dates as well as the reasons for filing the application on April 29, 1963. Apart from the fact that there were intervening holidays, they had also referred to the steps taken by them for the preparation of the application and to its being filed immediately thereafter. So far as we could see the workman except making a bold averment that there has been a violation of S. 33(2)(b) proviso has not controverted the truth of the averment made by the, management. Over and above that he has not pursued this point before the Industrial Tribunal. If he had pressed this contention, the Industrial Tribunal would have gone into the matter and considered the same and expressed an opinion whether the appellant has taken action under S. 33(2)(b) proviso, as interpreted by this Court in Strawboard Manufacturing Co. v. Govind, (1962) suppl. 3 S.C.R. 618. That decision was available when the Industrial Tribunal passed the order of approval on July 29, 1963.14. We have already pointed out that even in the writ petition, the workman who was represented by the same lawyer, who appeared for him before the Industrial Tribunal did not make any grievance that the Industrial Tribunal omitted to consider his plea based upon the violation of S. 33(2)(b) proviso thought it was argued before it. Under those circumstances, in our opinion, the High Court was not justified in allowing the workman to raise this plea which really requires an investigation into facts and consideration of the explanation into facts be offered by the management if there has been any delay15. The limits of the jurisdiction exercised by the High Court under Art. 227 have been, laid down by this Court in several cases. Some of the decisions bearing on the matter have been referred to by this Court in Sarpanch, Lonand Gram Panchayat v. Ramgiri Gosavi and anothers, (1967) 3 S.C.R. 774. There was no such error on the record in the case before us which justified interference by the High Court. We have already pointed out by reference to the decision of this Court, that the question whether the application for approval under S. 33(2)(b) proviso was made as part of the same transaction or at the same time when the action was taken, is a question of fact and will depend upon the circumstances of each case. The workman did not raise the contention based upon S. 33(2)(b) proviso before the Industrial Tribunal and therefore he must be presumed to have abandoned that plea. In these circumstance there was absolutely no justification for the High Court Art. 227 to consider the plea requiring investigation of facts and adjudicate upon the same. Considering from any point of view the High Court was not justified in setting aside the order of the Industrial Tribunal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. It is significant to note that there is no averment in the writ petition that the Industrial Tribunal did not consider the plea of contravention of S. 33(2)(b) though it was raised and argued before it. It is also significant that the same lawyer who represented the workman before the Industrial Tribunal appeared for him. The appellant contended that the Industrial Tribunal, after a consideration of the material on record, was satisfied that a prima facie case has been made out for the grant of approval and that it is on that basis that the order of the Industrial Tribunal came to be passed. It was further pleaded that the Industrial Tribunals findings being on facts there was no scope for interfering under Art. 277.From the above extract it is clear that two principles emerge : (i) the employers conduct should show that the three things contemplated under the proviso to S. 33(2)(b) have been done by him as parts of the same transaction; and (ii) whether an application was made as part of the same transaction at the same time when action was taken is a question of fact depending upon the circumstances of each case. The principles laid down in the above decision have been quoted with approval by a Constitution Bench of this Court in Kalyan (R. H.) v. Air France, Calcutta, [1963I L.L.J. 679].13. In the case before us the management in its application before the Industrial Tribunal had given various dates as well as the reasons for filing the application on April 29, 1963. Apart from the fact that there were intervening holidays, they had also referred to the steps taken by them for the preparation of the application and to its being filed immediately thereafter. So far as we could see the workman except making a bold averment that there has been a violation of S. 33(2)(b) proviso has not controverted the truth of the averment made by the, management. Over and above that he has not pursued this point before the Industrial Tribunal. If he had pressed this contention, the Industrial Tribunal would have gone into the matter and considered the same and expressed an opinion whether the appellant has taken action under S. 33(2)(b) proviso, as interpreted by this Court in Strawboard Manufacturing Co. v. Govind, (1962) suppl. 3 S.C.R. 618. That decision was available when the Industrial Tribunal passed the order of approval on July 29, 1963.14. We have already pointed out that even in the writ petition, the workman who was represented by the same lawyer, who appeared for him before the Industrial Tribunal did not make any grievance that the Industrial Tribunal omitted to consider his plea based upon the violation of S. 33(2)(b) proviso thought it was argued before it. Under those circumstances, in our opinion, the High Court was not justified in allowing the workman to raise this plea which really requires an investigation into facts and consideration of the explanation into facts be offered by the management if there has been anywas no such error on the record in the case before us which justified interference by the High Court. We have already pointed out by reference to the decision of this Court, that the question whether the application for approval under S. 33(2)(b) proviso was made as part of the same transaction or at the same time when the action was taken, is a question of fact and will depend upon the circumstances of each case. The workman did not raise the contention based upon S. 33(2)(b) proviso before the Industrial Tribunal and therefore he must be presumed to have abandoned that plea. In these circumstance there was absolutely no justification for the High Court Art. 227 to consider the plea requiring investigation of facts and adjudicate upon the same. Considering from any point of view the High Court was not justified in setting aside the order of the Industrial Tribunal.