Case: National Machinery Manufacturers Limited Vs. P.D. Vyas &amp; Another

2. The short facts are that respondent No. 2 was employed as a watchman with the petitioner Company. On 5th December 1959 he wasBefore Mr. Justice Mody, the Petitioner company, contended that Section 33(2)(b) had no application fax a case of discharge simpliciter and as the order was one of discharge, the Tribunal had no jurisdiction to entertain the complaint under Section 33A. It was contended that the Tribunal conferred Jurisdiction upon itself by making. an erroneous finding on a question of fact viz., whether the termination of the 2nd respondents services amounted to punishment for misconduct and while doing so, instead of requiring the 2nd respondent, if he so desired, to prove mala fides on the part of the petitioner, the Tribunal proceeded on the footing that it was the petitioners duty to, prove positively want of mala fides; that there is no clear finding of mala fides on the part of the Petitioner and even if there were any, it was based on no evidence whatsoever. His further contention need not be stated, as it does not survive.5. Mr. Justice Mody held that a simple discharge was covered by(2) of Section 33 and as the condition of the proviso was not complied with, the Tribunals ordor was justified. He did not decide the question whether the discharge was for misconduct. He therefore dismissed the Petition.

Reasoning:
c. (1) cl. (a) of Sec. 33 alteration of the conditions of service in regard to any matter which is connected with the dispute are not allowed and by cl. (b) without the prior permission in writing of the authority before whom, such dispute is pending, workman cannot for misconduct be discharged, dismissed or punished if the misconduct is connected with the dispute. This part is in a prohibitiven (2) is an enabling section and is worded in permissive language, enabling the employer (a) to alter the conditions of service of a worker in regard to any matter not connected with the dispute and (b) it enables an employer for misconduct to discharge or punish, whether by dismissal or otherwise, the workman with the condition, that in case of discharge or dismissal, he must pay wages for one month and must make an application to the authority before which the proceeding is pending, for approval of the action taken by him. It may be possible to suggest, though it was not so suggested in the arguments, that as cl. (b) of(2) is affirmative in form permitting the employer to discharge or dismiss etc. for misconduct, the inference must be that a negative is implied in it i.e. that he shall not do anything else i.e. terminate the service. In our view it is not possible to adopt this construction for the simple reason, that merely because discharge for misconduct is permitted with certain restrictions, it could never have been intended to prohibit simple dischargesis not possible to accept this construction for severalis an ordinary rule of construction that where relative words are used, they qualify or relate to the nouns preceding those words. No reasons are suggested why we should depart from the ordinary grammatical rule of construction. The words clearly refer to "such workman" as is referred, to in cl. (b) i.e. one who has been discharged or is being punished for misconduct. To read the words in the way suggested by Mr. Singhvi would necessarily mean that cl. (b) of(2) is a useless appendage in the section and need not have existed there, since this by itself would be a complete safeguard for the workman. In our view before a proviso could be read as a provision amplifying the meaning of the section or as an independent provision by itself, there must be sufficient and strong indications in the language of the provision which is very much lacking in this case. This contention must,Mr. Singhvi also stressed that the word "discharge" in clauses (b) of both the(1) and (2) must mean "discharge simpliciter" and would not be a discharge formisconduct. But, then he had to meet the difficult question as to whether the employer would act underec. (2) since both would apply if "discharge" is not to be qualified by "for misconduct" in bothRealising the difficulty in the way of his argument, he accepted that the "discharge" must be for misconduct in(1) connected with the dispute and in(2) not connected with the dispute. We are clearly, therefore, of the opinion that the word "discharge" is used not to mean "discharge simpliciter" in cls. (b) of each of thebut a discharge for misconduct. Mr. Justice Mody says : "Therefore though under cl. (b) discharge is to be for misconduct discharge I can be otherwise than for punishment and it is in that sense that the word has been used in cl. (b)", (P. 41 fast lines). In Maim v. Aspinwal and Co., Ltd., 19634 lab U 212 : (AIR 1963 Kerala 264) Mr. Justice. Vaidialingam held this to mean that in order that2(b) should apply "discharge" must be for misconduct (sea p. 215 (of Lab LJ) : (at p. 257 of AIR).This however does mot appear to be so with respect as his final observations (at p. 45) that(2) also covers the case of discharge simpliciter would seem to be in conflict. In our view, with respect Sec. 33(2)(b) can have no application to case of discharge unless it is for misconduct.22. This brings us to the question whether this Court has jurisdiction to determine whether the finding on the issue of fact involved is erroneous on, the basis of which relief has been granted. Mr.Phadke argued that the language of Sec. 33 shows that it is only in the case of breach of Sec. 33(1) or 33(2) that an application can be made under Sec.and this being a condition any finding made by the Tribunal on the question of breach of Sec. 33 must be treated as a finding on a jurisdictional issue and this Court is entitled to examine, itsvi seriously disputed this proposition.However, in view of the observations of Mr. Justice S.R. Das in (Automobile Products of India v. Rukmaji Bala, (S) AIR 1955 SC 258  , where the learned" Judge says that the contravention of the section is the condition precedent to the exercise by the authority concerned of the Additional jurisdiction and powers conferred on it by the sections, we may for the purposes of this case assume without deciding that the question whether the respondent has been discharged in contravention of the provisions of Sec. 33(2)(b) is a jurisdictional issue and can be gone into by this Court.23. On the merits, however, there is not much that can be said against the finding made by the Tribunal. It is admitted that the respondent was a watchman, and as such had to perform the duties of safeguarding, the property of the Company. It is also admitted that on a certain day he was found not behaving as he should have, which raised suspicion in the mind of the two gentlemen who had seen him. As a result of this, a charge was framed against him and an enquiry was proposed. An enquiry was in fact made by Mr. J.E. Small. It is also admitted in the Petition that the management thought that the evidence was not sufficient or strong enough to justify the conclusion of guilt as having been established beyond doubt, which could justify the dismissal of the second respondent. It is further admitted that, it was for this reason, that on 2nd January 1960, the charge was withdrawn and on the 3rd January 1960, the 2nd respondent was discharged from service. Underit is impossible to say that the discharge was an ordinary discharge in the ordinary course of business of the company, when the statements from the petition were pointed out to Mr. Phadke, he practically gave up this contention. It is clear, therefore, that the discharge in the present case is for misconduct and it being for misconduct not connected with the matter in dispute, is covered by cl. (b) of(2) and since admittedly no application was made for the approval of the action taken by the employer there is a clear contravention of the said section.