Case: State Bank Of Bikaner Vs. Balai Chander Sen

1500 ) has been misunderstood by the labour court and this Court did not lay down in that case that an application under S. 33(2) (b) would not be maintainable if it is made by an employer after he had concluded the enquiry and decided to impose a certain punishment but had not actually imposed it. We are of opinion that this contention must prevail.4. The contention in the Strawboard Manufacturing Co.s case. (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That view was held by this Court to be incorrect. This Court held that S. 33 (2)(b) requires the employer to do three things contemplated in the proviso, namely, (1) the dismissal or discharge of the employee. (2) payment of wages and (3) the making of the application as parts of the same transaction. That case, however, did not lay down that if an employer takes the precaution of making an application after the necessary enquiry and before actually taking any action for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is nothing in S. 33(2)(b) which requires that an application for approval can only be made after the action has been taken. We see nothing in principle against the employer making an application under Section 33 (2) (b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33 (2) (b).We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under S. 33 (2) (b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought is taken. All that the Strawboard Manufacturing Co.s case, (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens the three conditions in the proviso to S. 33 (2) (b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under S. 33 (2) (b) for approval of the action he proposes to take and then takes the action we find nothing in S. 33 (2) (b) which would make such an application not maintainable. Such an application in our opinion would not be contrary to the provisions of S. 33 (2) (b) read with the proviso thereof and would be maintainable. The view of the labour court therefore that the application by the appellant in the present case was not maintainable must fail.5. This brings us to the question whether approval should be granted to the action proposed to be taken by the appellant-bank. It appears that the respondent could not appear before the labour court on the date on which it decided the matter, on the ground that he was ill. He had submitted a medical certificate in that connection. The labour court however decided to proceed with the matter and dismissed the application on the ground that it was not maintainable. Learned counsel for the respondent prays that in the circumstances the matter should be remanded to the labour court to enable the respondent to appear. We find however that the respondent had filed a written statement in reply to the banks application in which he controverted the facts on which he was ordered to be discharged. Considering that the matter has been pending since 1961 we do not think that this is a case where a remand is called for. The appellant relied on the enquiry proceedings, copies of which were filed with the application; and all that the tribunal has to see when dealing with an application under S. 33(2) (b) is whether the employer had conducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and not due to victimisation or unfair labour practice. We have been taken through the enquiry papers and we are of opinion that there is nothing in them to show that the enquiry was not properly conducted. Nor is there anything to show that the respondent was victimised or the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice and also that he had been victimised. But besides making these allegations the written statement does not show in what manner the enquiry was not fair and proper and why the respondent was victimised. We are of opinion that the enquiry held in this case was fair and proper and in accordance with the principles of natural justice and the respondent had full opportunity to defend himself. We are also satisfied that there is no question of victimisation or unfair labour practice. Therefore the approval sought for must be granted.

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

Explanation:
1[ds]4. The contention in the Strawboard Manufacturing Co.s case. (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500  ) was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That view was held by this Court to be incorrect. This Court held that S. 33 (2)(b) requires the employer to do three things contemplated in the proviso, namely, (1) the dismissal or discharge of the employee. (2) payment of wages and (3) the making of the application as parts of the same transaction. That case, however, did not lay down that if an employer takes the precaution of making an application after the necessary enquiry and before actually taking any action for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is nothing in S. 33(2)(b) which requires that an application for approval can only be made after the action has been taken. We see nothing in principle against the employer making an application under Section 33 (2) (b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33 (2) (b).We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under S. 33 (2) (b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought is taken. All that the Strawboard Manufacturing Co.s case, (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500  ) lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens the three conditions in the proviso to S. 33 (2) (b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under S. 33 (2) (b) for approval of the action he proposes to take and then takes the action we find nothing in S. 33 (2) (b) which would make such an application not maintainable. Such an application in our opinion would not be contrary to the provisions of S. 33 (2) (b) read with the proviso thereof and would be maintainable. The view of the labour court therefore that the application by the appellant in the present case was not maintainable must fail.5. This brings us to the question whether approval should be granted to the action proposed to be taken by the appellant-bank. It appears that the respondent could not appear before the labour court on the date on which it decided the matter, on the ground that he was ill. He had submitted a medical certificate in that connection. The labour court however decided to proceed with the matter and dismissed the application on the ground that it was not maintainable. Learned counsel for the respondent prays that in the circumstances the matter should be remanded to the labour court to enable the respondent to appear. We find however that the respondent had filed a written statement in reply to the banks application in which he controverted the facts on which he was ordered to be discharged. Considering that the matter has been pending since 1961 we do not think that this is a case where a remand is called for. The appellant relied on the enquiry proceedings, copies of which were filed with the application; and all that the tribunal has to see when dealing with an application under S. 33(2) (b) is whether the employer had conducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and not due to victimisation or unfair labour practice. We have been taken through the enquiry papers and we are of opinion that there is nothing in them to show that the enquiry was not properly conducted. Nor is there anything to show that the respondent was victimised or the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice and also that he had been victimised. But besides making these allegations the written statement does not show in what manner the enquiry was not fair and proper and why the respondent was victimised. We are of opinion that the enquiry held in this case was fair and proper and in accordance with the principles of natural justice and the respondent had full opportunity to defend himself. We are also satisfied that there is no question of victimisation or unfair labour practice. Therefore the approval sought for must be granted.