Case: Strawboard Manufacturing Co Vs. Gobind

1. This appeal by special leave raises the question of interpretation of S. 6-E(2)(b) of the United Provinces Industrial Disputes Act, U. P. Act No. XXVIII of 1947, (hereinafter called the U. P. Act) which is in exactly the same terms as S. 33 (2)(b) of the Industrial. Disputes Act, No. XIV of 1947, (hereinafter referred to as the Act) as amended by Act 36 of 1956. The question arises in this way. The appellant is a Strawboard Mill. The respondent was in the employ of the appellant. On August 12, 1959, the respondent was given certain orders by the Technical Director of the appellant, but he refused to comply with them. The same day the respondent refused to comply with certain similar orders given by the machineman. Again on August 13,1959, he refused to obey similar orders of the shift-incharge. Finally, on August 14, he refused to obey similar orders of another shift-incharge. Consequently a notice was served on the respondent to show cause why he should not be dealt with under Cl. 22(a) of the Standing Orders which provided that wilful insubordination or disobedience of any lawful orders of superior was misconduct. The respondent submitted his explanation. He was then suspended and a chargesheet was served on him on 16-8-59. Thereafter an inquiry was held into the alleged misconduct. After the inquiry was over the appellant referred the matter for the decision of the Labour Commissioner without giving any prior decision of its own as provided in cl. 30 of the Standing Orders. The Labour Commissioner, however, refused to give a decision and informed the appellant that it could take such action as it was entitled to under the Standing Orders. The appellant again approached the Labour Commissioner for giving an order as envisaged by Cl. 30 of the Standing Orders, but the Labour Commissioner finally refused to pass any order and directed the appellant to take such action as it thought fit and as was within its power. Thereupon the appellant dismissed the respondent on February 1, 1960. As however, two disputes were pending between the appellant and its workmen one before the Industrial Tribunal No. 8 at Allahabad and the other before the Labour Court at Meerut, the appellant sent applications by lost on the same day to the two authorities or approval of the action taken, namely, the dismissal of the respondent. It appeals that the tribunal at Allahabad approve of the action on March 22, 1960. When however the same matter came before the labour court at Meerut on April 29, 1960, it refused to approve the action taken, even though the order passed by the tribunal at Allahabad already was brought to its notice. The labour court at Meerut held that the appellant was not motivated by victimisation. It further held that in the inquiry held by the appellant, a prima facie case had been made out for the dismissal of the respondent; but the labour court said that though ordinary the application of the appellant shout have been granted in these circumstances it refused to approve the dismissal on the ground that the application for approval had been made after the respondent had already been dismissed; therefore it held that the application was not bona fide and in the circumstances the prayer that the order of dismissal should be approved was not granted. It was of the view that the proviso to S. 6E(2)(b) required that the application for approval should be made before the dismissal of the workman concerned and failure to do so amounted to contravention of the terms of the section. Therefore as the application in this case was made after the dismissal, approval could not be granted and on this narrow ground the labour court refused to approve of the dismissal of the respondent. Thereupon the respondent obtained special leave from this court and that is how the matter has come up before us.

Reasoning:
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.