Case: P. D. Sharma Vs. State Bank Of India

proceedings before a tribunal in respect of any industrial dispute, no employer shall (a) alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings; (b) discharge or punish, whether by dismissal or otherwise, any work men concerned in such dispute; save with the express permission in writing of the conciliation officer, board or tribunal, as the case may be." The amended section dropped the exception made in respect of misconduct not connected with the dispute. This change in the law prevented the employers from discharging or punishing their employees even in respect of a misconduct not connected with the industrial dispute. That was a serious inroad into the disciplinary jurisdiction of the employer. It is possibly with a view to avoid unnecessary interference with the rights of the employers the section was amended by Act 36 of 1956. 12. In Strawboard Manufacturing Co. v. Gobind, 1962 Supp (3) SCR 618 at p. 623 = (AIR 1962 SC 1500 at pp. 1502 1503) this court observed:"The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that S. 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an industrial tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on the matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workmen who may be discharged or dismissed during the pendency of a depute on account of some matter unconnected with the dispute. Consequently S. 33 was redrafted in 1956 and considerably expanded". 13. By enacting S. 33 the Parliament wanted to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and his employees. The object of S. 33 is that during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it. 14. While construing the scope of sub-s.(3) of S. 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub-s. (3) of S. 33. There is no doubt that at the time the application in question was made an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a protected workman.He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybodys permission to exercise its rights. In other words, the limitation placed on the respondents rights by sub-s. (3) of 3. 33 disappeared the moment the industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the industrial dispute was decided. 15. The learned Solicitor General tried to support the conclusion of the tribunal on yet another ground. His contention was that the permission sought for could have been granted only by the authority before which the industrial dispute was pending. In the instant case that dispute was pending before the National Tribunal at Bombay. Therefore according to him the permission asked for could not have been given either by the labour court at Delhi or by the Labour Court at Lucknow. The language of sub-s. (3) of S. 33 prima facie lends support to this contention. But in resisting that contention Mr. Sen relied on S. 33-B which confers power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any proceeding pending before them to labour court. The language of this provision is not in harmony with that in sub-ss. (1) and (3) of S. 33. The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation of S. 33-B only to cases falling under sub-s. (2) of S. 33.It is not necessary to decide this controversy in this case in view of our conclusion that the Labour court at Lucknow was right in its conclusion that it had no competence to grant the permission prayed for as the industrial dispute had come to an end.

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

Explanation:
0[ds]Though in his special leave application the appellant mentioned the fact that his application under Article 226 had been dismissed by the High Court, he failed to mention the fact that his application for a certificate under Articles 132 and 133 was pending before the High Court.We were assured by Mr. A. K. Sen learned counsel for the appellant that this omission was due to an erroneous impression of the law on the part of the Advocate on record and there was no intention to keep back that fact from this court.As seen earlier the fact that the appellants application under Article 226 had been dismissed was mentioned in the special leave application. Hence the omission in question cannot be considered as a deliberate suppression of a fact. Under these circumstances, we do not think that a case is made out to revoke the special leave granted13. By enacting S. 33 the Parliament wanted to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and his employees. The object of S. 33 is that during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it14. While construing the scope of sub-s.(3) of S. 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub-s. (3) of S. 33. There is no doubt that at the time the application in question was made an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a protected workman.He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybodys permission to exercise its rights. In other words, the limitation placed on the respondents rights by sub-s. (3) of 3. 33 disappeared the moment the industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the industrial dispute was decided15. The learned Solicitor General tried to support the conclusion of the tribunal on yet another ground. His contention was that the permission sought for could have been granted only by the authority before which the industrial dispute was pending. In the instant case that dispute was pending before the National Tribunal at Bombay. Therefore according to him the permission asked for could not have been given either by the labour court at Delhi or by the Labour Court at Lucknow. The language of sub-s. (3) of S. 33 prima facie lends support to this contention. But in resisting that contention Mr. Sen relied on S. 33-B which confers power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any proceeding pending before them to labour court. The language of this provision is not in harmony with that in sub-ss. (1) and (3) of S. 33. The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation of S. 33-B only to cases falling under sub-s. (2) of S. 33.It is not necessary to decide this controversy in this case in view of our conclusion that the Labour court at Lucknow was right in its conclusion that it had no competence to grant the permission prayed for as the industrial dispute had come to an end.