Case: M/s. Filmistan Private Limited Vs. Balkrishna Bhiwa &amp; Another

3. The workman concerned was employed in theas an unskilled worker in the general department and is termed as a helper. On a prior occasion, in view of complaints received against him the appellant administered to the workman a warning on April 9, 1963. But later on again, in view of his unsatisfactory conduct charges were framed on April 12, 1963 and duly served on the workman and an inquiry after due notice to the workman was conducted by the management on April 17, 1963. The workman was found guilty by the management in the said inquiry. The finding in the inquiry was that the workman was guilty of the charge of refusal to carry out the lawful orders of his superiors in charge. Accordingly, April 19, 1963 a memo was issued to the workman regarding the inquiry conducted against him as well as the finding of guilt recorded therein. It was also stated that he was found guilty of similar offences in the past and that he was let off with a warning on his tendering an apology and undertaking to behave properly in future. The memo winds up by saying that the workman is dismissed with immediate effect. The memo also informed the workman to collect his salaryas well as one months wages from the accountant of the company. This order of dismissal was served on the workman only on April 24, 1963 as he was not available till then. April 25, 1963 was a holiday and on April 26, 1963 the management entrusted the necessary papers to their legal adviser to prepare an application to be filed before the Industrial Tribunal for approval under S. 33(2)(b) proviso of the Act. The application was got ready on April 27, 1963 and the next day being Sunday, it was filed before the Industrial Tribunal, Maharashtra on April 29, 1963.1963.5. In the application filed by the management, they have set out the circumstances leading up to the passing of the order of dismissal and also to his having collected his dues from the company. The reasons for passing the order of dismissal were also mentioned in the said application.6. The workman filed a written statement opposing the application filed by the management for grant of approval under S. 33(2)(b) proviso. In particular in paragraph 3 of hishe had stated that he was served with the order of dismissal on April 24, 1963 and that he was required to collect his salary as well as one months wages. According to him the accountant has delayed paying the amount and the same was ultimately given to him on May 7, 1963, although his dismissal has been made effective from April 19, 1963. He has further referred to the affect that the application before the Industrial Tribunal has been made only on April 29, 1963. On these facts he has taken a plea that the management has given no explanation for the delay in filing the application for approval. According to him, the order of dismissal has been passed in contravention of S. 33(2)(b) of the Act. He has also taken various pleas regarding the allegations made against him in respect of which the inquiry was held by the management.

Reasoning:
9. It is significant to note that there is no averment in the writ petition that the Industrial Tribunal did not consider the plea of contravention of S. 33(2)(b) though it was raised and argued before it. It is also significant that the same lawyer who represented the workman before the Industrial Tribunal appeared for him. The appellant contended that the Industrial Tribunal, after a consideration of the material on record, was satisfied that a prima facie case has been made out for the grant of approval and that it is on that basis that the order of the Industrial Tribunal came to be passed. It was further pleaded that the Industrial Tribunals findings being on facts there was no scope for interfering under Art. 277.From the above extract it is clear that two principles emerge : (i) the employers conduct should show that the three things contemplated under the proviso to S. 33(2)(b) have been done by him as parts of the same transaction; and (ii) whether an application was made as part of the same transaction at the same time when action was taken is a question of fact depending upon the circumstances of each case. The principles laid down in the above decision have been quoted with approval by a Constitution Bench of this Court in Kalyan (R. H.) v. Air France, Calcutta, [1963I L.L.J. 679].13. In the case before us the management in its application before the Industrial Tribunal had given various dates as well as the reasons for filing the application on April 29, 1963. Apart from the fact that there were intervening holidays, they had also referred to the steps taken by them for the preparation of the application and to its being filed immediately thereafter. So far as we could see the workman except making a bold averment that there has been a violation of S. 33(2)(b) proviso has not controverted the truth of the averment made by the, management. Over and above that he has not pursued this point before the Industrial Tribunal. If he had pressed this contention, the Industrial Tribunal would have gone into the matter and considered the same and expressed an opinion whether the appellant has taken action under S. 33(2)(b) proviso, as interpreted by this Court in Strawboard Manufacturing Co. v. Govind, (1962) suppl. 3 S.C.R. 618. That decision was available when the Industrial Tribunal passed the order of approval on July 29, 1963.14. We have already pointed out that even in the writ petition, the workman who was represented by the same lawyer, who appeared for him before the Industrial Tribunal did not make any grievance that the Industrial Tribunal omitted to consider his plea based upon the violation of S. 33(2)(b) proviso thought it was argued before it. Under those circumstances, in our opinion, the High Court was not justified in allowing the workman to raise this plea which really requires an investigation into facts and consideration of the explanation into facts be offered by the management if there has been anywas no such error on the record in the case before us which justified interference by the High Court. We have already pointed out by reference to the decision of this Court, that the question whether the application for approval under S. 33(2)(b) proviso was made as part of the same transaction or at the same time when the action was taken, is a question of fact and will depend upon the circumstances of each case. The workman did not raise the contention based upon S. 33(2)(b) proviso before the Industrial Tribunal and therefore he must be presumed to have abandoned that plea. In these circumstance there was absolutely no justification for the High Court Art. 227 to consider the plea requiring investigation of facts and adjudicate upon the same. Considering from any point of view the High Court was not justified in setting aside the order of the Industrial Tribunal.