Case: Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand And Anr

thus not left without remedy, though, according to the trade union movement, the remedy p rovided under sections 31, 10 and 33A may not be as adequate as the workman might wish it to be. It is entirely a matter of legislative policy to decide what consequences should flow from contravention of a statutory provision and what remedy shou ld be provided to an aggrieved workman in case of such contravention. 10. We may now refer to one last contention urged on behalf of the workman. That contention was that the pp.-sent case was not one in which no application for approval was made by the appellant to the Industrial Tribunal and there was thus contravention of section 33(2) (b), but an application for approval was made under section 33 (2) (b) and this application did not result in grant of approval, since it was withdraw n. It was argued that this was tantamount to refusal of approval and the ban imposed by section 3 3 (2) (b), therefore, continued to operate and the order of dismissal passed by the appellant was void and inoperative. This contention of the workman is, in our , opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under section 33 (2) (h) with its dismissal on merits. Where the Tribunal entertains an application for approval under section 33 (2) (b) on merits, it applies its mind and considers whether the dismissal of the workman amounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the workman . If the Tribunal finds that either no prima facie case has been made out or there is victimisation or unfair labour practice, it would refuse to grant approval and reject the application on merits. Then of course the dismissal of the workman would be void and inoperative, but that would be because the Tribunal having held that no prima facie case has been made out by the employer or there is victimisation or unfair labour practice it has refused to lift the ban. Where, however, the application for approval under section 33 (2) (b) is withdrawn by the employer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal. The Tribunal having had no occasion t o consider the application on merits there can be no question of the Tribunal refusing approval to the employer. It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift t he ban. The withdrawal of the application for approval stands on the same footing as if no application under section 33 (2) (b) has been made at all.We accordingly hold that the appellant contravened section 33(2) (b) in dismissing the workmen in both the appeals but such contravention did not have the effect of rendering the orders of dismissal void and inoperative and hence the workmen were not entitled to maintain the applications for determination and payment of wages under section 33C(2). But since we are exercising our extraordinary jurisdiction under Article 136, we are not bound to set aside the order of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80 to the workmen unless the justice of the case so request. We think that the demands of social justice are pardisputes and, therefore, even amount while dealing with industrial though the Labour court was not right in allowing these applications , we do not think we should exercise our overwinding jurisdiction under Article 136 to set aside the orders of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80 to the workmen. We do not, therefore interfere with this part of the orders of the Labour Court, and the amounts ordered to be paid by the Labour Court may be treated as compensation instead of wages. The amounts which have already been paid by the appellant to the workmen pursuant to the orders of the Labour Court or in compliance with the directions given by this Court during the pendency of these appeals, will be adjusted against the amounts ordered to be paid to the workmen. We may make to clear that this order shall not be construed as precluding the workmen from, pursuing the remedy under Section 33A or Section 10. Since at the time of grant of special leave in these appeals it was made a condition by this Court that the appellant should in any e vent pay the costs of the workmen, we direct that, though the appellant has succeeded, the appellant will pay the costs of these appeals to the workmen. We are told that such costs have already been paid by the appellant to the workmen.C.A. No. 2820 of 1977. 11. This appeal by special leave is directed against the order made by the Labour Court granting the application made by the 1st respondent under section 33C(2) and directing the appellant to pay wages to the 1st respondent on the basis that the order of dismissal passed against him was void and ineffective and the 1st respondent continued LO be in service. It is not necessary to set out the facts giving rise to this appeal since the only question of law which arise s in this appeal has been disposed of by us today in a judgment delivered in Civil Appeals Nos. 1375 and 1384 of 1977 and having regard to that judgment, it is clear that the 1st respondent was not entitled to maintain the application under section 33C(2) without adjudication from a proper authority, either oh a complaint under section 33A or in a reference under section 10, that the order of dismissal passed against him was unjustified and directing his reinstatement. 12.

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

Explanation:
1[ds]It is only if an order of dismissal passed in contravention of section 3 3 (2) (b) is null and void that the aggrieved workman would be entitled to maintain an application under section 33C(2) for determination and payment of the amount of wages due to him on the basis that he continues in service despite the order of dismissal. It is now well settled, as a result of several decisions of this Court, that a proceeding under section 33C(2) is a proceeding in the nature of executive proceeding in which the Labour Court calculates the amount of money due to a workman from his employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. But the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. Vide Chief Mining Engineer East India Coal Co. Ltd. v. Rameshwar &Ors.([1968] 1 S.C.R. 140.) It is not competent to the Labour Court exercising jurisdiction under section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made ther of an industrial dispute in a reference under section 10 of the Act. Vide Gopaul v. Union of ([1968] 1 L.L.J.589.). That is why Gajendragadkar, J., pointed out in The Central Bank of India Ltd. v. P. S. Rajagopalan etc. ([1964] 3 S.C.R. 140.) that:The workman, who has been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under Section 10 the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under section 33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under section 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of section 33(2)(b) introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid.The determination of this question depend s on the true interpretation of section 33 (2) (b), but it is a well settled rule of construction that no one section of a statute should be read in isolation, but it should be construed with reference to the context and other provisions of the statute, so as, as far as possible, to make a consistent enactment of the whole statute. Lord Herschel stated the rule in the following words inColguhoun v. Brooks. ([1889] 14 A.C. 493 at 506)"It is beyond dispute, too, that we are entitle d, and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act." We must therefore, have regard not only to the language of section 33 (2) (b), but also to the object and purpose of that provision, the context in which it occurs and other provisions of the Act in order to determine what the legislature intended should be the effect of contravention of section 33 (2) (b) on the order of dismissalIt will be seen that the only scope of the inquiry before the Tribunal exercising jurisdiction under section 33 is to decide whether the ban imposed on the employer by this section should be lifted or maintained by granting or refusing the permission or approval asked for by the employer. If the permission or approval is refused by the Tribunal, the employer would be precluded from discharging or punishing the workman by way of dismissal and the action of discharge or dismissal already taken would be void. But the reverse is not true for even it the permission or approval that would not validate the action of discharge or is granted punishment by way of dismissal taken by the employer. The permission or approval would merely remove the ban so as to enable the employer to make an order of discharge or dismissal and thus avoid incurring the penalty under section 31 (1), but the validity of the order of discharge or dismissal would still be liable to be tested in a reference at the instanceof the workmen under section 10, Vide Atherton West &Co.s case and the Punjab, National Bank case. The workman would be entitled to raise an industrial dispute in regard to the order of discharge or dismissal and hive it referred for adjudication under s. 10 and the Tribunal in such reference would be entitled to interfere with the order of discharge or dismissal within the limits laid down by this Court in several decisions commencing from Indian Iron &Steel Co. Ltd. v. Their Workmen([1958] S.C.R. 667.).This is the position which arises when the employer makes an application for permission or approval under section 33 and such permission contravention of section 33, the fight to move the Tribunal for redress of his grievance without having to take recourse to section 10Now, what is the scope of the inquiry under Section 33A when a workman aggrieved by an order of discharge or dismissal passed in contravention of section 33 makes a complaint in writing to the Tribunal under section 33A. This question also is not res integra and it has been decided by this Court in a number of decisions. The first case where this question came up for consideration was The Automobile Products of India Ltd. v. ukmaji Bala &Ors. ([1955] 1 S.C.R.1241.) where the Court was called upon to construe section 23 of the Industrial Disputes (Appellate Tribunal) Act 1950 which corresponded toA of the Act. Section 23 conferred a right on a workman aggrieved by an order of discharge or dismissal passed in contravention of section 22 to make a complaint to the Labour Appellate Tribunal and on receiving such complaint, the Labour Appellate Tribunal was empowered to decide it as if it were an appeal pending before it. Section 22 of the Industrial Disputes (Appellate, Tribunal) Act, 1950 was in almost identical terms as section 33 of the Act. Das, J., who delivered the judgment of the Court, observed while construing section 33A of the Act and the corresponding section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 that the scheme of these sections "indicates that the authority to whom the complaint is made is to decide both the issues, viz., (1) the effect of contravention, (2) the merits of the act or order of the employer". The provisions of these two sections, said the learned. Judge quite clearly show that "that the jurisdiction of the authority is not only to decided whether there has been a failure on the part of the employer to obtain the permission of the authority before. taking action but also to go into the merits of the complaint and grant appropriate reliefs". It was urged before the Court that in holding an inquiry under section 33A, the duty o f the Tribunal is only to find out whether there has been a contravention of section 33 and if it finds that there is such contravention, to make a declaration to that effect and no further question can thereafter arise for consideration in such inquiry. This contention was however, rejected.The same question was again raised before this Court in Equitable Coal Co. v. Algu Singh(A.I.R. 1958 S.C. 761.) and in this case, the Court, following its previous decision in Automobile Products of India Ltd. v. Rukmani Bala (supra) pointed out in a very clear and lucid exposition of the subject:It will, therefore, be seen that the first issue which is required to be decided in a complaint filed by an aggrieved workman under section 33A is whether the order of discharge or dismissal made by the employer is in contravention of section 33. The foundation of the complaint under section 33A is contravention of section 33 and if the workman is unable to show that the employer has contravened section 33 in making the order of discharge or dismissal, the complaint would be liable to be rejected. But if the contravention of section 33 is established, the next question would be whether the order of discharge or dismissal passed by the employer is justified on merits. The Tribunal would have to go into this question and decide whether, on the merits, the order of discharge or dismissal passed by the employer is justified and if it is. The Tribunal would sustain the order, treating the breach of section 33 as a mere technical breach. Since in such a case, the original order of discharge or dismissal would stand justified, it would not be open to the Tribunal, unless there are compelling circumstances, to make any substantial order of compensation in favour of the workman. In fact in Equitable Coal Co.s case an order of compensation made by the Tribunal in favour of the workman was reserved by this Court. The Tribunal would have to consider all the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the circumstances of the case. But this much is clear that mere contravention of section 33 by the employer will not entitle the workman to an order of reinstatement, because inquiry under section 33A is not confined only to the determination of the question as to whether the employer has contravened section 33, but even if such contravention is proved, the Tribunal has to go further, and deal also with the merits of the order of discharge or dismissal.Now, if the effect of contravention of section 33 were to make the order of discharge or dismissal void and inoperative, the workman would straightaway be entitled to an or of reinstatement as soon as he establishes in the complaint made by him under section 33A that t he employer has contravened section 33 in making the order of discharge or dismissal. There would be no need to go into the further of discharge or dismissal passed by the employer is justified on the merits. If is difficult to imagine how the law can permit an order of discharge or dismissal Which is void and inoperative to be justified on the merits. There can be no question of justification on merits of an order of discharge or dismissal which is found to be null and void very fact t hat even after the contravention of section 33 is proved, the Tribunal is required to go into the further question whether the order of discharge or dismissal passed by the employer is justified on the merits, clearly indicates that the order of discharge is not rendered void and inoperative by such contravention. It is interesting to note that Gajendragadkar, J., speaking on behalf of the Court in Equitable Coal Co. case, characterised the breach of section 33 as a technical breach not having any invalidating consequence on the order of discharge or dismissal. If the scope of the inquiry under section 33A is what is has been held to be in the decisions in Automobile Products of India, Equitable Coal Co. and the Punjab National Bank cases, the conclusion must inevitably follow that the contravention of section 33 does not render the order of discharge or dismissal void and of no effect. It is also significant to note that if the contravention of sect ion 33 were construed as having an invalidating effect on the order of discharge or dismissal, section 33A would be rendered meaningless and futile, because in that event, the workman would invariably prefer to make an application under section 33C (2) for determination and payment of the wages due to him on the basis that he continues to be in service. If the workman files a complaint under section 33A, he would not be entitled to succeed merely by showing that there is contravention of section 33 and the question whether the order of discharge or dismissal is justified on the merits would be gone into by the Tribunal and if, on the merits, it is found to be justified, it would be sustained as valid despite contravention of section 33, but if, on the other hand, instead of proceeding under section 33A, he makes an application under section 33C(2), it would be enough for him to show contravention of section 33 and he would then be entitled to claim wages, on the basis that the continues in service. Another consequence which would arise on this interpretation would be that if the workman files a complaint under section 33A, the employer would have an opportunity of justifying the order of discharge or dismissal on merits, but if theworkmanproceeds under section 33C(2), the employer would have no such opportunity. Whether the employer should be able to justify the order of discharge or dismissal on merits would depend upon what remedy is pursued by the, whether under section 33A or under section 33C(2). Such a highly anomalous result could never have been intended by the legislature. If such an interpretation were accepted, noworkmanwou ld file a complaint under section 33A, but he would always proceed under section 33C(2) and section 33A would be reduced to futility. It is, therefore, impossible to accept the argument that the contravention of section 33 renders the order of discharge or dismissal void and inoperative and if that be so, the only remedy available to theworkmanfor challenging the order of discharge or dismissal is that provided under section 33A, apart of course from the remedy under secti on 10, and he cannot maintain an application under section 33C(2) for determination and payment of wages on the basis that he continues to be in service. Theworkmancan proceed under section 33C(2) only after the Tribunal has adjudicate d, on a complaint under section 33A or on a reference under section 10, that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated thet was urged on behalf of theworkmanth at if this view were taken, it would rob theworkmanof the protection afforded to him under section 33 and the object and purpose of the section would be defeated because the employer would then, with impunity, discharge or dismissworkmanwithout complying with the requirements of section 33. But we do not think this apprehension of theworkmanis well founded. If the employer contravenes the provisions of section 33 and discharges or dismisses aworkmanwithout obtaining per mission or approval of the Tribunal, he would render himself liable to punishment under section 31 (1) and this punishment can extend even to imprisonment. Moreover, the aggrievedworkmanwould not only have the remedy of moving the appropriate Government for making a reference under section 10, but he would also be entitled to make a complaint to the Tribunal under section 33A and on such reference or complaint, the order of discharge or dismissal would be liable to be subjected to a much greater scrutiny than what would be available before a Tribunal exercising the limited jurisdiction conferred under section 33. Theworkmanis thus not left without remedy, though, according to the trade union movement, the remedy p rovided under sections 31, 10 and 33A may not be as adequate as theworkmanmight wish it to be. It is entirely a matter of legislative policy to decide what consequences should flow from contravention of a statutory provision and what remedy shou ld be provided to an aggrievedworkmanin case of such contraventionThis contention of theworkmanis, in our , opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under section 33 (2) (h) with its dismissal on merits. Where the Tribunal entertains an application for approval under section 33 (2) (b) on merits, it applies its mind and considers whether the dismissal of theworkmanamounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the