Case: Strawboard Manufacturing Co Vs. Gobind

If the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the tribunal not approving of the action of the employer, the dismiss or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under S. 33(2). 9. The next question is as to when should an application be made. In this connection our attention was drawn to Section 33-A of the Act which gives a right to the employee to apply for redress in case an employer contravenes the provision of S. 33 an there is no doubt that the proviso to S. 33(2)(b) should be so interpreted as not to whittle down the protection provided by S. 33-A. 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 the action under S. 33(2) by dismissing or discharging an employee, should immediately pay him or 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 the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33-A 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. 10. We may now refer to certain cases which have been relied upon by either side. The main case on which learned counsel for the respondents relies is Premier Automobiles Ltd. v. Ramchandra Bhimayya, ILR (1960) Bom 289 : (AIR 1960 Bom 390 ). In that case the Bombay High Court had that the application should be made before the action as been taken by the employer and that it was not correct to infer from the use of the word "approval" in the proviso that the legislature intended that such an application should be made after the action had been taken. The High Court has pointed out that there is apparent conflict between the first and last part of the proviso and the view it took was with the object of harmonising the two parts. This view has been followed by the Gujarat High Court in Indian Extractions Private Ltd. v. A. V. Vyas, Conciliation Officer, AIR 1961 Guj 22 though with some hesitation. With respect we feel that it is not necessary to read the words action taken" in the proviso as equal to "action proposed to be taken," as the Bombay High Court has done and that the apparent conflict between the two parts of the proviso can be harmonised, as we have indicated above leaving it open to the employer to dismiss or discharge the employee an at the same time pay him the necessary wages and make an application to the authority concerned for approval of the action taken. The contrary view has been taken by the Calcutta High Court in Metal Press Works Ltd. v. H. R. Deb, (1962) 1 Lab LJ 75: (AIR 1962 Cal 123 ) where it has been held that payment of wages and the making of the application shout be simultaneous with the order of discharge or dismissal. It has further been pointed out that nine word simultaneously must of course be taken reasonably and a notion of split-second timing should not be imported. It should be done at once and without delay", and it will depend upon the facts of each case whether the application has been made at once or without delay. This, we think, is the correct view to take. 11. Let us therefore see what has happened in this case. The appellant-concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on February 1, 1960. On the same day he sent two applications by post addressed do the two tribunals. The application at Meerut was received on February 3 and the application at Allahabad on February 4, 1960. In these circumstances we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was therefore in accordance with the proviso. The view taken by the labour court that the application must be made before dismissing the respondent is not correct. The appellant in this case had complied with the proviso to S. 33 (2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it.

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

Explanation:
1[ds]The proviso lays down that no workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. It will be clear that two kinds of punishment are subject to the conditions of the proviso, namely, discharge or dismissal. Any other kind of punishment is not within the proviso. Further the proviso lays down two conditions, namely, (i) payment of wages for one month and (ii) making of an application by the employer to the authority before which the proceeding is pending, for approval of the action taken. It is not disputed before us that when the proviso lays down the conditions as to payment of the months wages, all that the employer is required to do in order to carry out that condition is to tender the wages to the employee. But if the employee chooses not to accept the wages, he cannot come forward and say that there has been no payment of wages to him by the employer. Therefore, though S. 18 speaks of payment of one months wages it can only mean that the employer has tendered the wages and that would amount to payment for otherwise a workman could always make the section unworkable by refusing to take the wages so far as the second condition about the making of the application is concerned the proviso requires that the application should be made for approval of the action taken by the employer. It has been urged on behalf of the respondent that the words "action liken" in this part of the proviso mean the action proposed to be taken and therefore all that the employer can do is to make an application to the tribunal asking it to approve the action proposed to be taken by it and it is only after the approval that the employer can proceed to dismiss or discharge the workman. We are however of opinion that on this interpretation there would really be no difference between subs. (2) and sub-s. (1) of S. 33 and the intention of the legislature in making the amendment in 1956 would be rendered nugatory. Moreover, it is against the rules of interpretation to add words to a provision, when the provision, as it stands, is capable of a reasonable meaning which will give effect to the intention of the legislature even on the words as they stand. On the plain meaning of the proviso, it is clear that it gives the employer the power to discharge or dismiss the employee before obtaining the approval of the tribunal concerned; but at the same time the protection afforded to the employee by the proviso has to remain effective, it seems to us therefore that when the proviso speaks of an application for approval of the action taken, the action taken there is the order of actual discharge or dismissal made by the employer and it is for the approval of this order that the application is to be made. This is borne out by Form K under R. 60 of the Rules framed under the Act which corresponds to Form XV under F. 31 of the U. P. Rules. Further the use of the word "approval" in the proviso also suggests that something has been done by the employer who seeks, approval of that from the tribunal. If the intention was that in view of the proviso the employer could not pass the order of dismissal or discharge without first obtaining the approval of the tribunal, we see no reason why the words in the proviso should not have been similar to those in sub-ss. (1) and (3), namely that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. The change therefore in the language used in the proviso to sub-s. (2)(b) clearly shows in our opinion that the legislature intended that employer would have the right to pass an order of discharge or dismissal subject to two conditions, namely, (i) payment of wages for one month and (ii) making of an application to the authority concerned for approval of the action taken. The use of the word "approval" also suggests that what has to be approved has already taken place, though sometimes approval may also be bought of a proposed action. But it seems to us in the context that the approval here is of something done, as otherwise it would have been quite easy for the legislature to use the words "for approval of the action proposed to be taken" in the proviso. Further sub-s. (5) also suggests when it uses the words "approval of the action taken" that some action has been taken and it is that action which the employer wants to be approved by his application. The difference between sub-s. (1) and sub-s. (2) is therefore that under sub-s. (1) the employer proposes what he intends to do and asks or the express permission of the authority concerned to do it; in sub-s. (2) the employer takes the action and merely asks for the approval of the action taken from the authority concerned by his application. There can therefore be no doubt that sub-s. 2(b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him. It is however urged on behalf of the respondent that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the tribunal refuses to approve of the action the workman would be left with no remedy as there is no provision for reinstatement in S. 33(2). We however see no difficulty on this score. If the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the tribunal not approving of the action of the employer, the dismiss or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under S. 33(2)In this connection our attention was drawn to Section 33-A of the Act which gives a right to the employee to apply for redress in case an employer contravenes the provision of S. 33 an there is no doubt that the proviso to S. 33(2)(b) should be so interpreted as not to whittle down the protection provided by S. 33-A. 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 the action under S. 33(2) by dismissing or discharging an employee, should immediately pay him or 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 the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33-A 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 case11. Let us therefore see what has happened in this case. The appellant-concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on February 1, 1960. On the same day he sent two applications by post addressed do the two tribunals. The application at Meerut was received on February 3 and the application at Allahabad on February 4, 1960. In these circumstances we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was therefore in accordance with the proviso. The view taken by the labour court that the application must be made before dismissing the respondent is not correct. The appellant in this case had complied with the proviso to S. 33 (2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it.