SUPREME COURT REPORTS [1953]

1953 previous years, though the Act came iuto operation

Poppatlal Shah as early as the ye11r 1939. It is not disputed also that

v. the company is pa.ying sale tax on its transactions The State of with the Calcutta merchants sirice the explanation

Madras. added by Act XXV of 1947 came into force.

In our opinion, the appeal should be allowed and the con- Miikhe1j ea J. b 1 viction and sentence passed by the courts e ow should be set aside. The fine and sale tax, if actually paid, should be refunded to the appellant.

Appeal allowed.

Agent for the a, ppellant: M. S. K. Aiyangar.

Agent for the respondent (the State of Madras), the L' nion of India, and the States f Punjab, Mysore, Madhya Pradesh and Travancore- Cochin (Interveners): G. H. Rajadhyaksha.

Agent for the State of Bihar : R. 0. Prasad.

Agent for the State of TJ. P. : 0. P. Lal.

Agent for Intervener No. 8: Rajinder Narain.

PUNJAB NATIONAL BANK LTD.

EMPLOYEES OF THE BANK.

[PATANJALI 8ASTRI 0. J.,

MUKHERJEA, S. R. DAS,

GHULAM HASAN and BHAGWATI JJ.]

Industrial Disp11t'8 Act, 1947, s. 33-lnili; strial dispute-Reference to Tribunal-Strike on fresh grounds-Dismissal of strikers during pendency of proceedings before Tribunal-Legality-Scope of s. 33.

During the pendency of proceedings before an Industrial Tribunal relating to certain disputes between a bank and its workmen represented by the ur.ion of its employees, the respondents along with other workmen numbering over a thousand commenced a gerieral strike in connection with a fresh dispute.

The strikers were dismissed and on a reference to another Tribunal, it was held by that Tribunal that, the strike was illegal and the dismissal was legal.

The Labom Appellate Tribunal held on appeal that though the strike was illegal the bank had condoned it and the dismissal was therefore illegal ancj ordered reinstatelllent, Oq f1nther appeal ; ·

S.C.R.

SbPREME COURT BEPOtTS 687

Held, that even assuming that the strike was illegal and the 1953 bank had not condoned it, as proceedings were pending before another Tribunal between the bank and its workmen in respect P1"ijab Nationat o( an industrial dispute, under section 33 of the Industrial Dis- Ban1' Ltd. putes Act, 1947, the ban)< could not dismiss the workmen save v, with the permission in writing of that Tribunal which was not Employ8's of obtained and the dismissal was accordingly illegal on this ground. the Ban1'.

Section 33 of the Industrial Disputes Act, 1947, applies to strikes and lock-outs as well, though it does not appear in Chap. V of the Act which is headed "Strikes and lock-outs" but in Chap. VII which is headed "Miscelhneous." '

CIVIL APPELLATE JuRisDICTION: Civil Appeal No. 181 of 1952.

Appeal by special leave granted by the Supreme Court on the 16th October, 1952, from the decision dated the 22nd December, 1952, of the Labour Appellate •rribunal of India at Calcutta in Appeals Nos.

Cal. 366/51, Cal. 69/52 and Cal. 70/52, arising out of the award dated the 9th Februa, ry, 1952, of the Chairman, Industrial Tribunal, Delhi.

M. 0. Setalvad (Attorney-General for India) and N. 0. Chatterjee (R. L. Agarwal, with them) for the appellant.

A. S. R. Chari and Hardyal Hardy for the respondents.

1953. April 10. '.l 1he Judgment of the Court-, was delivered by

PATANJALI 8ASTRI C. J.· -'rhis is an appeal by special leave from a decision dated September 22, 1952, of the Labour Appellate Tribunal of India at Calcutta setting aside an award dated February 9, 1952, made by the Industrial 'l'ribunal constituted to adjudicate on certain disputes between the appellant, the Punjab National Bank Ltd., Delhi (hereinafter referred to as the Bank) and its workmen, the respondents represented by their Union.

The facts leading to this appeal may be briefly stated. Several other disputes between the parties had already been referred on February 21, 1950, to another Industrial Tribunal presided over by Sri K. S.

688 . SUPREME COUR'l' REPORrs (1953]

w; s Campbell-Puri, and during the pendency of the pro- . -;;; 1ceedings before the said Tribunal, the Bank alleged PunJab ., ationa h h h k Bank Ltd. that t e respondents along wit ot er wor men v. numbering more than a t'.1ousand illegally commenced Employees of a general strike on April 18, 1951, in connection with

the Bank. a fresh dispute. Thereu-:ion, notice was issued to the strikers that unless they returned to work by April Patanjali 24, 1951, they would be deemed to have left service Sastri a. J. of their , own accord. '!.'hat notice having been ignored by the strikers a scond noticEl, was issued to them on April 27, 1951, terminating their service.

The Government of India thereupon intervened, and as a result of the discussions held between the Government officials and the Ba.uk, the latter agreed to take back all the employees except 150 against whom the Bank had objections on account of their alleged subversive activities and other objectionable and unlawful conduct before and during the strike.

On July 2, 1951, the Government of India constituted a 'l'ribuual to decide the questions regarding the dismissals etc. of the aforesaid 150 employees, and that 'l'ribunal, after calling for the statements of case on behalf of the parties and hearing them, made an award on J<'ebruary 9, 1951, refusing reinstatement on the sole ground that the respondents had gone on an illegal strike in contravention of section 23(b) of. the Indus- 'trial Disputes Act, and that the Bank was entitled to dismiss them. The Tribunal, however, granted to the respondents compens.ation by way of salary and allow- ·

ances at half the rates from the date of dismissal to the date of the publication of the award.

'l'he respondents appealed to the Labour Appellate Tribunal at Calcutta which, while agreeing with the Industrial 'l'ribunal that the strike was illegal, held that it was condoned by the Bank and it was, therefore, not open to it to justify the dismissal of the respondents on the ground that they had participated in the illegal strike.

The Appellate Tribunal further held that the dismissal of the respondents was wron.gful because no charges were framed against any of them in respect of their alleged aets of violence or

8.C.R.

SUPREME COURT REPOR'l'S 689

subversive activities and their explanation was not 1958 called for.

The Appellate Tribunal accordingly . -b" . . h h h h . d Punja l••t•oi>a< t oug t t at furt er ev1 ence was nece1<sary on Banlc Ltd. certain specific points mentioned in its order and rev. served its decision as to whether the respondents were Employees of entitled to reinstatemsn~ till after such evidence was the Bank. taken.

Learned counsel for the Bank advanced a two-fold contention in support of this appeal.

He challenged the correctness of the conclusion that the Bank had, in the circumstances of the case, condoned the illegal strike by the respondents, and maintained that it was open to the Bank to rely upon the illegal strike as justifying the dismissal of the respondents. On that basis learned counsel argued that there could no longer be any question of reinstating the respondents in the service of the Bank as such reinstatement would in law amount to compelling the Bank to employ these respondents afresh iu its service, which the Appellate Tribunal had no jurisdiction to do. He accordingly submitted that this Court should set aside the order of the Labour Appellate Tribunal dated

September 22, 1952, obviating the further enquiry directed by the said order.

We consider it unnecessary to express any opinion on the question of condonation or waiver of the illegal strike; for, assuming that there was no such condonation or waiver and it was open to the Bank to r,!lly upon the illegal strike as a valid ground for dismissing the respondents, we are of opinion that section 33 of the Industrial Disputes Act, 1947, furnishes a short answer to the further contention that the Appellate Tribunal had no jurisdiction to order reinstatement of the respondents.

That section provides, inter alia, that no employer shall, during the pendency of any proceedings before a Tribunal in respect of any industrial dispute, discharge by way of dismissal or otherwise, any workman concerned in the dispute save with the permission in writing of the said 'l'ribunal.

Admittedly, no such permission was obtained. If the pendency of the proceedings before

Palanjali Sastri O. J.

690 SUPREME cotr:RT REPORTS [1953)

1953 Sri Campbell-Puri made the strike of the respondents

Punjab Natwnazillegal under section 23(b) of the Act, the dismissal Bank Ltd. of the respondents by the Bank without obtaining his v. permission as required by section 33 was also illegal.

Employ"' of We see no force in the argument of the Attorneythe Ba,.k.

General that the section has no application to the case as strikes and lock-outs are dealt with in a differ- Patanjali.

Sastri a. J. ent chapter, Chapter V, and as the respondents were not concerned in the disputes pending adjudication before Sri Campbell-Puri. The terms of section 33 are wide enough to cover the present case, and the fact that it finds place in Chapter VII headed "Miscellaneous" is by no means inconsistent with its general application to all cases of discharge on whatever ground it may be based. This is shown by the recent amendment of the section by Act XL VIII of 1950 which has omitted the words "except for misconduct not connected with the dispute" in the newly substituted section. It is equally 'clear that the respondents are concerned in the disputes pending before Sri

Campbell-Puri, as it is conceded that any award made by him would bind the respondents. Section 33 being thus applicable to the case, the contention of the Bank that the dismissal of the respondents was lawful and that in consequence the Appellate Tribunal had no jurisdiction to direct their reinstatement falls to the ground.

We therefore see no reason to interfere with the ord'er made by the Labour Appellate Tribunal and we accordingly clismiss the appeal with costs.

Appeal dismissed.

Agent for the appellant: Ganpat Rai.

Agent for the respondent: V. P. K. Nambiyar