Case: P. D. Sharma Vs. State Bank Of India

2. In 196l, the appellant was a clerk working in the Dehradun branch of the State Bank of India, the respondent herein. In connection with certain alleged misconduct the respondent held a departmental enquiry against him; came to the conclusion that he was guilty of the charge levelled against him and for the said offence it proposed to dismiss him from its service. But as at that time an industrial dispute between the respondent and its workmen was pending before the National Industrial Tribunal in Ref. No. 1 of 1960 (which will hereinafter be referred to as the industrial dispute), and the appellant being one of the office bearers of a recognised trade union contracted with the respondent and consequently a protected workman, it applied on April 27, 1962 under Section 33 (3) to the National Industrial Tribunal for permission to discharge him from Service. On the authority of an order made by the Central Government on 23rd December, 1960 under Sub-section (2) of Sec. 33B the National Industrial Tribunal, Bombay transferred the said application to the Labour Court, Delhi. The National Industrial Tribunal Bombay, made its award in the aforementioned Reference on June 7, l962. The same was published in the official gazette on June l3, 1962 and it came into force on July 31, 1962 Thereafter on February 23, 1963 the Government of India transferred the respondents application under S. 33 (3) pending before the Labour Court, Delhi, to the Labour Court Lucknow. That court dropped the said proceedings as per its order dated 10th February, 1965 holding that in view of the award in the Reference in question it had no competence to deal with that application. This order of the Labour Court was challenged by the appellant in Civil Misc. Writ Petition No. 619 of 1965 on the file of the Allahabad High Court. That petition was summarily dismissed. Thereafter he applied to that court for a certificate under Articles 232 (1) and 133 (1) (c) of the Constitution. During the pendency of that application, he moved this court on July 17, 1965 for special leave under Article 136 of the Constitution to appeal against the order of the Tribunal. Special leave was granted by this court on September 8, 1965. The application for certificate made before the Allahabad High Court was rejected by that court by its order dated September 13, 1965. No application for special leave under Article 136 was filed against that order.      3. When this appeal came up for hearing on a previous occasion, learned counsel for the respondent urged that the special leave granted should be revoked as the appellant had not appealed against the order made by the Allahabad High Court in his writ petition. Thereafter, the appellant moved this court for special leave against the order of the Allahabad High Court rejecting his writ petition. He also filed an application for condonation of the delay in submitting that special leave application.

Reasoning:
Though in his special leave application the appellant mentioned the fact that his application under Article 226 had been dismissed by the High Court, he failed to mention the fact that his application for a certificate under Articles 132 and 133 was pending before the High Court.We were assured by Mr. A. K. Sen learned counsel for the appellant that this omission was due to an erroneous impression of the law on the part of the Advocate on record and there was no intention to keep back that fact from this court.As seen earlier the fact that the appellants application under Article 226 had been dismissed was mentioned in the special leave application. Hence the omission in question cannot be considered as a deliberate suppression of a fact. Under these circumstances, we do not think that a case is made out to revoke the special leave granted13. By enacting S. 33 the Parliament wanted to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and his employees. The object of S. 33 is that during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it14. While construing the scope of sub-s.(3) of S. 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub-s. (3) of S. 33. There is no doubt that at the time the application in question was made an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a protected workman.He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybodys permission to exercise its rights. In other words, the limitation placed on the respondents rights by sub-s. (3) of 3. 33 disappeared the moment the industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the industrial dispute was decided15. The learned Solicitor General tried to support the conclusion of the tribunal on yet another ground. His contention was that the permission sought for could have been granted only by the authority before which the industrial dispute was pending. In the instant case that dispute was pending before the National Tribunal at Bombay. Therefore according to him the permission asked for could not have been given either by the labour court at Delhi or by the Labour Court at Lucknow. The language of sub-s. (3) of S. 33 prima facie lends support to this contention. But in resisting that contention Mr. Sen relied on S. 33-B which confers power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any proceeding pending before them to labour court. The language of this provision is not in harmony with that in sub-ss. (1) and (3) of S. 33. The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation of S. 33-B only to cases falling under sub-s. (2) of S. 33.It is not necessary to decide this controversy in this case in view of our conclusion that the Labour court at Lucknow was right in its conclusion that it had no competence to grant the permission prayed for as the industrial dispute had come to an end.