PUNJAB BEVERAGES PVT. LTD., CHANDIGARH

v. '

SURESH CHAND AND ANR.

February 21, 1978

[M. H. BEG, C.J., P. N. BHAGWATI & D. A. DESAI, JJ.J

Industrlal Disputes Act, 1947-Section 33(c)(2)-Mainttdnability of an application under s.33 c (2)-Nature of Proceedings under Section 33(c)(2).

Industrial Disputes Act, (No. XIV of 1947), 1947 Section 33-0bject of- Scope of the inquiry before the Tribunal exercising jurisdiction under Section 33.

Cotruction of a. statute-Construction should be with reference to the context and other provisions of statute-Construction of S. 33 of the Industrial Disputes Act, 1947.

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Industrial Disputes Act, 1947, Section 33A-Scope of the inquiry effect of r S. 33 on the interpretation of S. 33.

Industrial Disputes Act. (No. XIV of 1947), 1947-Sections 31, 33(2) (b), 33A, 33C(2), Scope of-Effect of contravention of Section 33 (2)(b) on an order of dismissal passed by an ernployer in breach of it-Whether it renders the order of lfismissal void and inoperative.

Respondent No. I in (C.A. 1375 of 1977) was a workman employed as an operator in the Undertaking of the appellant from Ist March, 1970 and was in receipt of Rs. 1001per month as salary, which would have been raised to Rs. il5/- per month from Ist October, 1972, if he had continued in service

\Vith the appellant.

But on 21st December, 1971 the 1st Respondent was suspended by the appellant and a Charge-sheet was served upon him and before any inquiry on the basis of this Charge-sheet could be held another Chargesheet was given to him on 17th April, 1973. This was followed by a regular in9uiry and ultimately the appellant, finding the 1st Respondent guilty, dismissed him from service by an order dated 23rd December, 1974. Since, an Industrial Dispute was pending at the time when the Jst Respondent \\'as dismissed from service in view of the provisions contained in S. 33(2)(b) of tho Industrial Disputes Act, the appellant immediately approached Industrial Tribunal at Chandigarh before which the Industrial dispute was pending for approval of the action taken by it. The appellant, however, withdrew that application and the Industrial Tribunal, thereupon, made an order on 4th September 1976 dismissing the application as withdrawa The 1st Respondent then demanded from the appeUant full wages from the date of his suspension till the date of demand, contending that as the action of the appellant dismissing him was not approved by the Industrial Tribunal, he continued to be in service and was entitled to all the emoluments. The appellant did not respond to this demand of the Ist Respondent. whereupon, the latter made an application to the Labour Court under S. 33-C(2) for dctefmiitation aod payment of the amount of wages due to him from the date of suspension on the gronnd that the appellant not having obtained the approval of the Industrial Tribunal to the dismissal under s. 33(2)(b) the Order of dismissal was void and the 1st Respondent continued to be in service and was entitled to receive his wages from the appellant. The appellant resisted this application under S. 33-C(2) inter alia on the ground that the application under S. 33(2)

(b) having been withdrawn the position was as if no application had been made at all, with the result that there was contravention of S. 3312)(b) but such contravention did not render the order of dismissal void ab inltio and it was nterely illegal and unl.ess it was set aside in an appropriate proceeding 1aken by the 1st Respdt. under S. 33-A or a reference unJer S. 10, the Labour

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, PUNJAB BEVERAGES V. SURESH CHAND 371

Court had no jurisdiction under S. 33-C(2) to direct payn1en~· of 'vage:; :to he lst Respondent on the basis that he continued in service and the apphcauon .made by the Ist Respondent accordingly was incompetent.

The Labour Court rejected the contention of the appellant and held that since refcrer.ce in regard to non industrial dispute between the appell; int_ and the workman was pending before the Industrial Tribunal, it \Vas not competent to the appellant to pass an order of dismissal against the lst Respondent, unless the action so taken was approved by the Industrial Tribunal under s. 33 B (2)(b) and consequently the appellant having withdrawn the application for approval under S. 33(2) (b) antl the approval of the Industrial .Tribunal to the order of dismissal not having been obtained the order. of d1smissl '_Vas ineffective and the Labour Court had jurisdiction to entertain the apphcat1on of the 1st Respondent under S. 33-C(2) and to direct the appellant to pay tbe arrears of wages to the Ist Respondent. The Labour Court accordingly, allowed the application of the Ist Respondent and directed the appellant to pay an aggregate sum of Rs. 6485.48 to the 1st Respondent on ac.count of arrears of wages upto 30th September 1966.

Similarly, on identical facts the Labour C Court also allowed the application of another workman Shti Jagdish Singh (Ist Respondent in Civil Appeal No. 1384 of 1977) and directed the appellant to pay him a sum of Rs. 6286.80 in respect of arrears of wage, s upto the same date. The appellant thereupon preferred Civil Appeals Nos. 1375 and 1384 of 1977 after obtaining special leave from this Court.

Allowing tbe appeals, by special leave and converting the arrears of wages into compensation, the Court.

HELD : 1.(a) It is only if an order of dismissal passed in contravention of section 33 (2)(b) is null and void that the aggrieved workman would be entitled to maintain an application under section 33C(2) for determination and payment of the amount of wages due to him on the basis of that be continues in service despite the order of dismissal. [376 EfJ

(b) A proceeding under section 33C(2) is a proceeding in the nature of executive proceeding in 'Nhich the Labour Court calculates the amount of money due to a workman from his employer. or, if the workman is entitled to any benefit v; hich is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. But the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship bet\vccn the industrial workmen, and his employer. [376 F-ll]

Chief Mining Engineer, East India Coal Co. Ltd. v. Ra1nesh1var and Ors. [1968] I SCR 140, referred to .

(c) It is not competent to the Labour Court exercising jurisdiction under section 33(C) (2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference

under section JO of the Act. [376 H, 377 A]

Gopal v. Union of India .. [1968]1 LL.J. 589: Central Bank of India Ltd.

v. :S. Rajagorytfan, etc. [1964] 3 S.C.R. 140, applied .

2. (a) The object of the legislature in enacting section 33 clearly appears

to be to protect the \\'Ork.man concerned in the dispute which forms the sub~

jet-ll!atter of pending conciliation or adjudication proceedings, against victim1sat1on by the employer on account of his having raised the industrial dispute or his continuing the pending proceedings and to ensure that the pending proceedings are brought to an expeditious termination in a peaceful atmosphere, H undisturbed by any .subsequent cause tending to fl,11iher exacerbate the already strained relations betv.'een the employer and the workmen..

But at the . same .time it recognises that occasions may arise when the employer may be

A justified in discharging or punishing by disn1issal his employee and so it allows the employer to take such action, subject to the condition that in the one case before doing so, he must obtain the express permission in V.Titing of the Tribunal before which the proceeding is pending and in the other, he must immediately apply to the Tribunal for approval of the action taken by him.

[378 F-H]

( b) The only scop~ of the inquicy before the Tribunal exercising jurisdiction under section 33 is to decide whether the ban imposed on the employer by this section should be lifted or maintained by granting or refusing the permission or approval asked for by the employer. If the pcnnission or approval is refused by the Tribunal, the employer -..vould be precluded from discharging or punishing the \VOrkman by way of dismissal and the action of discharge or disn1issal alrendy taken \vould be void.

But the reverse is not true for even if the permission or approval is to be granted that would not validate the action of discharge or punishment by way of dismissal taken by the employer. The permission or approval would merely remove the ban so as to. enable the employer to make an order of discharge or dismissal and thus avoid incurring the penalty under section 31(1), but the validity of the order of discharge or dismissalwould still be liable to be tested in a reference at the instance of the workmen under section 10. The workman would be entitled to raise an industrial dispute in regard to the order of discharge or dismissal and have it referred for adjudication under s. 10 and the Tribunal in such reference would be entitled to interfere with the order of discharge or dismissal' within the limits held down by this Court in several decisions commencing from l11dia11 /1011 & Steel Co. Ltd. v. Their Workmen, 1958 S.C.R. 667. Thra is the position which arises when the employer makes an application for permission or approval under section 33 and such permission or approval is granted or refused. [379 DH, 380 A]

The Punjab National Bank Ltd. v. Its Workmen, (1960) I S.C.R. 80& @ 826., Atherton West & Co. Ltd. v. Suti Mills Mazdoor Union and Ors. [1953) S.C.R. 780, Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, [1956!

S.C.R. 916, applied.

3. (a) The exposition of the statute has to be ex visceribus Actus. Noone section of a statute should be read in isolation, but it should be construed with reference to the context and other provisions of the statute, so as, as far as possible, to rnake a consistent enactmel\t of the whole status. [377 F-G.

& 380 CJ

Cokuhoun v. Brooks, (1889) 14 A.C. 493 at 506 referred to.

Lincoln College Case [1595) 3 Co. Rep.b referred to.

(b) Section 33 in both its limbs undoubtedly uses language which is mandatory in terms and section 31(1) makes it penal for the employer to commit a breach of the provisions of Section 33 and therefore, if section 33 stood' alone, it might lend itself to the construction that any action by way of dis charge or dismissal taken against the workman would be void if it is in contravention of Section 33.

But Section 33 cannot be read in isolation.

Section 33 must be constmed not as if it were standing alone and apart from the-- rest of tJ:ie Act. but in the light of the next following section 33A and if these two sections are read together, it is clear that the legislative intent was not to invalidate an order of discharge or dismissal passed in contravention of section 33, despite the mandatory language employed in the section and the

penal provision enacted in section 31(1) (380 B-C, D-E]

 4. (a) Section 33A ives to a workman aggrieved by an order of dischargeor dismissal passed against him in contravention of section 33, the right to move the Tribunal for redress of his grievance without having to take recourseto section !(). [380 H. 381 Al

(b) Th~ first issue which is required to be decided in a complaint filed by an aggneved workman under section 33A is whether order of ct.ischarge or dismissal made by the employer is in contravention of Section 33.

The foun-

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PUNJAB BEVERAGES V. SURESH CHAND 373

dation pf the complaint under section 33A is contravention of section 33 and A if the workman is unable to show that the employer has contravened section 33 in making the order of discharge or dismissal, the complaint would be liable to be rejected. But if the contravention of section 33 is established, the next question would be \Vhether the order of discharge or dismissal passed by the employer is justified on merits. The Tribunal would have to go into this question and decide whether, on the merits, the order of discharge or dismissal passed by the employer is justified and if it is. the Tribunal would sustain the order, treating the breach of section 33 as a mere B tcchnica1 breach. Since, in such a case, the original order of discharge or dismissal would stand justified, it would not be open to the Tribunal, unless there are compelling circumstances, to make any substantial order of compensation in favour of the workman. The Tribunal y; ould have to consider all the aspects of the case and ultimately what order would meet the ends of justice \\'Ould necessarily have to be determined in the light of the circumstances of the case. But mere contravention of section 33 by the employer will not entitle the workman to an order of reinstatement, because inquiry under section 33A is not confined only to the detern1ination of the question as to C whether the employer is proved, the Tribunal has to go further and deal also with the merits of the order of discharg~ or dism:ssal. [382 I-l. 383 1\-D]


(c) The very fact that even after the contravention of section 33 is pro- D ved, the Tribunal is required to go into the further question whether the order of discharge or dismissal passed by the employer is justified on the merits, clearly indicates, that the order of discharge is not rendered void and inoperativi! hy such contn1vention. f383 E-Fl

(d) If the contravention of section 33 were construed as having an invalidating effect on the order of discharge or dismissal, section 33A would be rendered meaningless and fultile because in that event, the \\'Orkman would invariably prefer to make an application under section 33(C) (2) for determination and payment of the wages due to him on the basis that he continues to be in 'service.

Jf the v.'orkmc:in filed a complaint under section 33A, he would not be entitled to succeed merely by showing that there is contravention of section 33 and the question whether the order of discharge or disn1issal is justified on the merits ¥.'OU]d be gone into by the Tribunal and if, on merits, it is found to be justified, it would be sustained as valid despite contravention of section 33, but if, on the other hand, instead of proceeding under section 33A, he makes an application under section 33C(2), it would be nough for him to show contravention of section 33 and he would then be entitled to claim \Vages on the basis that he continues in service. Another consequent which \\'ould arise on this interpretation \vould be that if the workman files a complaint under section 33A, the employer \\'Ould have an opportunity of justifying the order of discharge or dismissal on merits, but if the \vorkman proceeds under section 33C(2), the employer would have no such opportunity.

WJiether the e!llployer should be able to justify the order of discharge or dismissal on merits would depend upon what remedy is pursued by the Workmen, whether under section 33A or under section 33C(2). Such a highly

anoalous reult could never have been intended by the legislc:iture.

If such an !nterpretatton \\'ere accepted, no workman would file a cotltplaint under section 33A, but he would always proceed under section 33C(2) and section 33A would be reduced to fi:tility. It is_. therefore, in1possible to accept the

argue11:t that he conravenhn of secto1n 33 renders the order of discharge or d1sm1ssal void and 1noperat, tve and if that be so, the only remedy availablP to the workman for challenging the order of discharge or disrnissal is that provided under section 33A, apart of course from the remedy under section

l~, a?d he cannot maintain an application under section 33 C(2) for determination and payment of \\'ages on the basis that he continues to be in ser~ vice. The workn1an can proceed under section 33 C(2) only after the rribunat has adjm.Ikatell, on a complaint under section 33A or on a reference

A under section 10. that the order of discharge or dismissal passed by the em ployer was not justified and ha" set aside that order and reinstated the work

man. [383 Ii, 384 A-F]

5. In the employer contravenes the provisions of section 33 and discharges or dismisses a 1-vorkman \Vithout obtaining permission or approval of the Tribunal, he \vould render hin1self liable to punishment under section 31 (1) and this punishment can extend even to in1prisonment 11oreover, the aggrieved \VOrkman vlould not only have the remedy of moving the appropriate Gove1nment for making a reference under section 10, but he \VOuld also be entitled to make a complaint to the Tribunal under section 33A and on such reference Or complaint, the order of discharge or dismissal would be liable to be subjected to a much greater scrutiny than what would be available before a Tribunal exercising the limited jurisdiction conferrrd under \Section 33. The \\'Orkman is thus not left \Vithout remedy, though according to the trade union movement, the remedy provided under sections, 31, 10 and 33A may not be

as adeq11ate as the workman might \vish it to be. [384 G-H, 385 Al

6. \Vhere the Tribunal entertains nn application for approval under section 33 (2) (b) on merits, it applies its n1ind and considers whether the dismissal of the workman amounts to victimisation or unfair labour practice and \Vhether a prilna facie case has been 1nade out by the employer for the dismissal of the workman. If the Tribunal finds that either no prirna facie case has been n1ade out or there is victimisation or unfair Jabour practice, it would re[use to grant approval and reject the application on merits. Then of course, the dismissal of the workman 'vould be void and inoperative, but that 'NOuld be because the Tribunal having held that no prilna facie case has been n1ade out by the employer or there is victimisation or unfair labour practice, it has refused to lift the ban. Where, however, the application for approval under section 33(2) (b) is \Vithdrawn by the employer and there is no decision on it on merits. it cannot oe said that the approval bas been refused by the Tribunal. The Tribunal having had no occasion to consider the application on merits, there can be no question of the Tribunal refusing approval to the employer.

It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban. The withdrawal of the application for approval stands on the same footing as if no application under section 33 (2) (b) has

been n1~1de nt :.JL f385 D-G1

(b) In the instant case the appellant contravened sectron 13(2)(h) in dis~ missing the workman in both the appeals but such contravention did not have the effect of rendering the orders of dismissal void and inoperative and hence the workmen were not entitled to maintain the applications for determination

and pavment of wges JJ.nder section 33 C(2). [385 G-Hl

Crv1L APPELLATE JURISDICTION : Civil Appeal Nos. 1375 and 1384 of 1977-

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Appeas by Special Leave from the Judgment and Order dated 1 14-2-77 of the Addi. Labour Tribunal Chandigarh in l.D. Case No.

66-67 /76 respectively.

AND Civil Appeal No. 2820 of 1977.

Appeal bv Special Leave from the Judgment and Order dated 4th November, 1977 of the Rajasthan Tribunal Court in C.A. No. LC-3 1976.

Soli Sorabjee. Addi. Sol. Genl. (for the intervener in CA 2820), Anand Prakash, H. K. Puri & Lakshmi Anand Praka$h for the appellants in all the appeals and applicant intervener M/s.

Hindustan Copper Ltd.

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PUNJA!l BEVERAGES v. SURESH CHAND (Blzagwati, J.) 375

R. K. Garg, S. C. Agarwal, V. I. Francis & Aruneshwar Gupta for A the respondents : applicant in'.ervener/Shri N. K. Saxena.

The Judgment of t11e Court was delivered by

BHAGWATT, J., These two appeals by special leave raises a short but interesting question of law relating to the interpretation of sections 33(21 (b) and 33(c) (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) . The facts giving rise to the two appeals are almost identical and it would, therefore, be sufficient if we set out the facts of only one of the two appeals, namely Civil Appeal No. 1375 of 1977.

The first respondent was a workman employed as an operator in the undertaking of the appellant from 1st March, 1970 and he. was iri C receipt of Rs. I 00 /- per month as salary which would have been raised to Rs. J 151per month from Isl August, 1972 if he had continued in service with the appellant.

But on 21st December, 1971 the !st respondent was suspended by the appellant and a chargesheet was served upon him and before any inquiry on the basis of this charge sheet could be held, another chargsheet was given to him on 17th D April, 1973.

This was followed by a regular inquiry and ultimately the appeEant, findi'ng the 1st respondent guilty, dismissed him from service by an order dated 23rd Deoornber, 1974.

Now, at the time when the I st respondent was dismissed from service, an industrial dispute was pending before the Industrial Tribunal at Chandigarh, and therefor:, in view of the provisions contained in section 33(2) (b) ot the Act, the appellant immediately approached the Industrial Tribunal, E before which the industrial dispute was pending, for approval of the action taken by it. The application was resisted by th~ !st respondent, but before it came up for hearing,_ the appellant applied to the Industrial Tribunal for withdrawing the application and the Industrial Tribunal thereupon made an order on 4th September, 1976 dismissing the application as withdrawn.

The !st respondent then demanded from the appellant full wages from the date of his suspension till the date of F demand contending that as the action of the appellant dismissing the 1st respondent was not approved by the Industrial Tribunal, the !st respondent continued to be in service and was entitled to all the emoluments.

The appellant did not respond to this demand of the 1st respondent, whereupon the 1st respondent made an application to the labour Court under section 33C(2) for determination and payment of the amount of wags due to the 1st respondent from the date of sus- G pensio'n, on the ground that the appellant not having obtained the approval of the Industrial Tribunal to the dismissal of the 1st respondent under section 33(2){b), the order of dismissal was void and the !st respondent continwd to be in service and was entitled to receive his wages from the appellant.

The appellant resisted this application under sectio'n 33C(2) inter alia on the ground that the application under section 33(2) (b) having been withdrawn the position was as if no applica- H tion had !:>=en made at all with the' result that there was contravention of section 33(2) (b), but such contravention did hot render the order of dismissal void ab initio and it was merely illegal and unless it was

376 SUPREME COllRT REPORTS

[I 978J 3 S.C.R.

A set asi<te in an appropriate proceeding taken by the l st respondent secton 33A or in a reference under section 10, the Labour Court had no jurisdiction ooder section 33C(2) to direct payment of wages to the 1st respo'ndent on the basis that he continued in service and the application made by the 1st respondent was accordingly incompetent.

The Labour Court rejec~d the contention of the appellant and held that since a reference in regard to an Industrial dispute between the appellant and its workmen was pending before the Industrial Tribunal, it was not competent to the appellant to pass an order of dismissal against the 1st respondent unless_ the action so taken was approved by the Industrial Tribunal under &xtion 33(2) (b), and consequently, the appellant having withdrawn the application for approval under section 33(2) (b) and the approval of the Industrial Tribunal to the order of dismissal not having been obtained, the order of dismissal was ineffective and th~ Labour Court had jurisdiction to entertain the application of the 1st respondent under section 33C(2) and to direct the appellant to pay the arrears of wages to the 1st respondent.

The Labour Court accordingly allowed the application of the 1st respondent and directed the appellant to pay an aggregate sum of Rs. 6485.48 to the 1st respondent on accourit of arrears of wages up to 30th September, 1976. Similarly and on identical facts, the Labour Court also allowed the application of another workman and directed the appellant to pay to him a sum of Rs. 6262.80 in respect of arrears of wages upto the same date. The appellant thereupon preferred Civil Appeals Nos. 1375 and 1384 of 1977 after obtaining special leave from this Court.

The principal question which arises for consideration in these appeals is as to what is the effect of contravention of section 33(2) (b) on an order of dismissal passed by an employer in breach of it. Does it render the order of dismissal void and inoperative so that the aggrieved workman can say that he continues to be in service and is entitled to receive wages from the employer ? It is only if an order of dismissal passed in contravention of section 33 (2)(b) is null and void that the aggrieved workman would be entitled to maintain an application under section 33C(2) for determination and payment of the amount of wages due to him ou the basis that he continues in service despite te order of dismissal.

It is now well settled, as a result of several dc1sions of this Court, that a proceeding under section 33C(2) is a proceeding in the 'nature of executive proceeding in which the Labour Court calculates the amooot of money due to a workman from his employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money.

But the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing o'ne, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer.

Vide Chief Mining Enineer East India Coal Co. Ltd. v. Rameshwar & Ors.(') It is0 not comoetent to the Labour Court ex>rcisi'ng jurisdiction under section 33C(2) to arrogate to itself the functions of an industrial tribunal' ____ ,, _____ ... _ _._.

(I) (1968] I S.C.R. 140.

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PUNJAB BEVERAGES v. SURESH CHAND (Bhagwati, J.) 377

and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference u'nder section I 0 of the Act.

V ide Gopaul v. Union of India(').

That is why Gajendragadkar, J., pointed out in The Central Bank of India Ltd. v. P. S. Rajagopalan etc.(2 ) that "if an employee is dismissed or demoted and it is his case that the dismissal or .demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under section 33C(2). His demotion

or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the. emplover ancl is entitled to the benefits due to him under a preexisting contract, cannot be made under section 33C(2)". The workman, wbo nas been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under Section 10 the Industrial Tribunal may find, on the material place.d before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under section 33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under section 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio.

Hence it becomes necessary to consider whether the contravention of section 33(2)(b) introduces a fatal infirmity in the order of dismissal pasred in violation of it so as to rehder it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid.

The determination of this question depends on the true interpretation of section 33(2)(b), but it is a well settled rule of construction that no one section of a statute should be read ih isolation, but it Should

be construed with reference to the context and other provisions of the F statute, so as, as far as possible, to make a: consistent enactment of the whole statute.

Lord Herschell stated the rule in the following words in Colguhoun v. Brooks.(8) "It is beyond dispute, too, that we arc entitled, and ihdeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would G be alone and apart from the rest of the Act." We must therefore. have regard not only to the language of sectioh 33(2) (b). but also to the ol)ject and purpose of that provision, the context in which it occurs and other provisions of the Act in order to determine what the legislature intended should be the effect of contravention of scc'.ion 33 (2) (b) on the order of dismissal.

(I) [1968] I L.L.J. 589.


(l) [1889] 14 A.C. 493 at oOF.

W7 may first xamine the object and purpose for which section 33, of which sub-section 2 (b) forms part, has been introduced in the Act.

This sction, as orinally enacted, was in a simple form, but over the years 1t suffered various charges and in its present form it reads inter alia as follows :

"33. (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding oofore an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall, - .

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute the employer may ....... .

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and in 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".

The object of the legislature in enacting this section clearly appears to be to protect the workman concerned in the dispute which forms the subject-matter of pending conciliation or adjudication proceedings, against victimisation by the employer on account of his having raised the industrial dispute or his continuing the pending proceedings and to ensure that the pending proceedings are brought to an expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate the already strained relations between the employer and the workmen.

But at the same time it recognises that occasions may arise when the employer may be justified in discharging or punishing by dismissal his employee and so it allows the employer to take such action, subject to the condition that in the ene case before doit1g so, he must obtain the express permission in writing of the Tribunal before which the proceeding is pending and in the other, he must immediately apply to the Tribunal for approval of the action

taken by him.

On what principles however is the Tribunal to act ill granting or refusing permission or approval and what is the scope Of the inquiry before it when it is moved under this section ? This ques-

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PUNJAB BEVERAGES v. SURESH CHA'.'ID (Bhagwati, J.) 379

tion came up for consideration and was decided by this Court i'n Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union & Ors.(') and Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram SarupC') and Gajendragadkar, J, summarised the effect of these two decisions in the following words in The Punjab National Bank, Ltd. v. Its Workmen.(•)

"Where .an applicatio'n is made by the employer for the reqnisite permission under S. 33 the jurisdiction of the tribunal in dealing with snch an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appear that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the qucst10n as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair.

It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer." It will be seen that the only scope of the inquiry before the Tribunal exercising jurisdiction under section 33 is to decide whether the ban imposed o'.n the employer by this section should be lifted or maintained by granting or refusing the permission or approval asked for by the employer. If the permission or approval is refused by the Tribunal, the employer would be precluded from discharging or punishing the workmun by way of dismissal and the action cf discharge 0r dismissal a!readv taken would be void.

But the reverse is not true for even if the permission or approval that would not validate the action of discharge or is granted pu'nishment by way of dismissal taken by the employer.

The permission or approval would merely remove the ban so as to enable the employer to make an order of discharge or dismissal and thus avoid incurring the penalty under section 31 (1), bnt the validity of the order of discharge or dismissal would still be liable to be tested in a referenee at the instance of the workmen under section

10. Vide Atherton West & Co.'s case and t11e Punjab National Bank case.

The workman would be entitled to raise an industrial dispnte in. regard to the order of discharge or dismissal and have it referred for ' adjudication under s. 10 and the Tribunal in such reference would be entitled to interfere with the order of discharge or dismissal within the limits laid down by this Court in several decisions comme'.ncing from Indian Tron & Steel Co. Ltd. v. Their Workmen('').

This is the position which. arises when the employer makes an application for permission or approval under section 33 and such permission

I') [1953) S.C.R. 780. 12\ [195<i] SC.R. 916. f3l [l9hOJ 1 s.r.R. R06 at 826 .

. (4) [!958] S.C.R. 667.

or approval is granted or refused.

But what would be the position where the employer does not make an application for permission or approval and takes action by way of discharge or dismissal of the workman without complying with the requirement of section 33. If an application for permission or approval is not made as required by Section 33 what would be its effect on the order of discharge or dismissal made by the employer ? Section 33 in both its limbs undoubtedly uses language which is mandatory in terms and section 31 ( 1) makes it penal for the employer to commit a breach of the provisions of Section 33 and therefore, if section 33 stood alone, it might lend itself to the construction that any action by way of discharge or dismissal taken against workman would be void if it is in contravention of Section 33.

But section 33 carmot be read in isolation, for, as we have already pointed out, the intention of the legislature has to be gathered not from one provision of the Statute or another, but from the whole of the Statute.

The exposition of the statute has to be ex Visceribus ActuJ because, as pointed out by Coke in Lincoln College case (1595) 3 Co.

Rep. 5 8b) : "The office of a good expositor of an Act of Parliameht is to make construction of all parts together, and not of one part only by imelf'' and "it is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers".

We must, therefore, construe section 33 not as if it were standing alone and apart from fue rest of the Act, but in the light of the next following section 33A and if these two sections are read together, it is clear that the legislative intent was not to invalidate an order of discharge or dismissal passed in contravention of section 33, despite the mandatory language emp- E Joyed i'n the section and the penal provision enacted in Section 31 (1 ) .

We may first examine the scope and meaning of section 33A and then consider what is the effect of that section on the interpretation of section 33.

Before section 33A was introduced in the Act by Act 48 of 1950, the only remedy available to the workman a~inst the F breach of section 33 was to raise an industrial dispute in that behalf and to move the appropriate Government for its reference to the adjudication of a Tribunal under section 10. The Trade Unions ill the country complained that the remedy of asking for a reference under section 10 involved delay and left the redress of the grieva'nce of the workman entirely in the discretion of the appropriate Government, because even in cases of contravention of section 33, the appropriate G Government was not bound to refer the dispute u'nder section 10.

That is why section 33A was enacted for making a special provision for adjudication as to whether section 33 has been contravened. This section enables a workman aggrieved by such contravention to make a complaint in writing in the prescribed manner to the Tribunal and it says that on receipt of such complaint, the Tribunal shall adjudicate upon it as if it is a dispute referred to it in accordance with the pro- H visions of the Act. It also requires the Tribunal to submit its award to the appropriate Government and the provisions of the Act would then apply to the said award.

Section 33A thus gives to a workman aggrieved by an order of discharge or dismissal passed against him in

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PUNJAB BEVERAGES v. SURESH CHAND (Bhagwati, J.) 381

contravention of section 33, the right to move the Tribunal for redress A of his grievance without having to take recourse to section 10.

Now, what is the scope of the inquiry under Section 33A when a workman aggrieved by an order of discharge or dismissal passed in contravention of section 33 makes a complaint in writing to the Tribunal under section 33A. This question also is not res integra and it has been decided by this Court in a number of decisions.

The first case where this question came up for consideration was The Automobile Products of India Ltd. v. Rukmaji Bala & Ors.(') where the Court was called upon to construe section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 which corresponded to section 33A of the Act.

Section 23 conferred a right on a workman aggrieved by a'.n order of discharge or dismissal passed in contravention of section 22 to make a complaint to the Labour Appellate Tribunal and on receiving such complaint, the Labour Awellate Tribunal was empowered to decide it as if it were an appeal pending before it.

Section 22 of the InduJtrial Disputes (Appellate Tribunal) Act, 1950 was in almost identical terms as rection 33 of the Act. Das, J., who delivered the judgment of the Court, observed while construing section 33A of the Act and the corresponding section 23 of the Industrial Disputes (Appellate Tribunal) Act, 19 50 that the scheme of these sections "indicates

that the authority to whom the complaint is made is to decide both the issues, viz., (1) the effect of contravention, (2) the merits of the act or order of the employer''. The provisions of these two sections, said the learned Judge quite clearly show that "that the jurisdiction of the authority is not only to decided whether there has ooen a failure on the part of the employer to obtain the permission of the authority before taking action but also to go into the merits of the complaint and grant appropriate reliefs". It was urged before the Court that in holding an inquiry under section 33A, the duty of the Tribunal is only to find out whether there has been a contravention of section 33 and if it finds that there is such contravention, to make a declaration to that effect and no further question can thereafter arise for consideration in such inquiry. This contention was however, rejt'Cted.

The same question was again raised before this Court in Equitable Coal Co. v. Algu Singh(') and in this case, the Court, following its previous decision in Automobile Products of India Ltd. v.

Rukma;; Bala (supra) pointed ont in a very clear and lucid exposition of the subject :

"The breach of the provisions of S. 22 by the employer is in a sense a condition precedent for the exercise of the iurisdicticm conferred on the Labonr Appellate Tribunal by S. 23.

As soon as this condition precedent is satisfied the employee is given an additional right of making the employer's conduct the subject matter of an industrial dispute without having to follow the normal procedure laid down in the Industrial Disputes Act.

Tn an enauiry held under s. 23 two questioos fall to be considered : ls the fact of contravention by the

(1) [1955] 1S.C.R.1241.

(2) A.T.R. 1958 S.C. 761. 7-277 S.Cl/78

employer of the provisions of S. 22 proved ? If yes, is the order pass~ by the employer against the employee justified on the ments ? If both these questions are answered in favour of the employee. the Appellate Tribunal would no doubt be entitled to pass an appropriate order in favour of the employee. If the first point is answered in favour of the employee, but on the second point the finding is that, on the merits the order passed by the employer against the employee is justified, then the breach of S. 22 proved against the employer may ordinarily be regarded as a technical breach and it may not, unless there are compelling facts in favour of the employee, justify any substantial order of compensation in favour of the employee. It is unnecessary to call that, if the first issue is answered against the employee, nothing further can be done under S. 23.

What orders would meet the ends of justice in case of a technical breach of S. 22 would necessarily be a question of fact to be determined in the light of the circumstances of each case. In view of the decision of thi, Court in 1955-1 S.C.R. 1241: (S) (AIR 1955 S.C.

258) (A), it would be impossible to accept Mr. Sea's argument that the ohly order which can be passed in proceedings under S. 23 is to grant a declaration that the emplor has committed a breach of the provisions of S. 22. In Atherton

We<t & Co. Ltd., Kanpur v. S11ti Mill Mazdoor Union 1953 S.C.R. 780 : (AIR 1953 S.C. 241) (B), this Court has expressed a similar view in regard to provisions of S. 23 of the Act"

The same view was reiterated by this Court in Punjab National Bank case (supra) where Gajendragadkar, J., speaking on behalf of the Court, pointed out that "there can be no doubt that in an enquiry under Section 33A the employee would not succeed in obtaining mi

order of reinstatement merely by oroving contravention of s. 33 by the employer.

After such contravention is proved it would still be open to the employer to justify the impugned dismissal on the merits.

That is a part of the dispute which the tribunal has to consider because the complaint made by the employee is treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under section 33A. Therefore, we cannot accede to the argument that the enquiry under section 33A is confined only to the determination of the question as to whether the alleged contravention by the employer of the provisions of section 33 has been proved or not."

It will, therefore, be seen that the first issue which is required to be decided in a complaint filed by an aggrieved workman under section 33A is whether the order of discharge or dismissal made by the employer is in contravention of section 33.

The foundation of the complaint under section 33A is contravention of section 33 and if the workman is unable to show that the employer has contravened section '.'13 in making the order of discharge or dismissal, the complaint would be liable to be rejected.

But if the contravention of section 33 is

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PUNJAB BEVERAGES 1'. SURESI! CHAND (B!wgwati, .T.) 383 A , established, the next question would he whether the order of discharge .or dismissal passed by the employer is justified on merits.

The Tribunal would have to go into this question and decide whether on the merits, the order of discharge or dismissal passed by the employer is justified and if it is. The Tnbunal would sustain the order, treating the breach of section 33 as a mere technical breach. Since in such a case, •the original order of discharge or dismissal wotild stand justified, it B would not be open to the Tribunal, unless there arc compelling circumstances, to make any substantial order of compensation in favour of the workman. In fact in Equitable Coal Co.' s case an order of compensation made by the Tribunal in favour of the workman was reserved by this Court.

The Tribunal would have to consider al! the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the cir- C cumstances of the ca&e.

But this much is clear that mere contravention of section 33 by the emplover will not entitle the workman to an order of reinstatement, because inquiry under section 33A is not confined only to the determination of the question as to whether the employer has contravened section 33, but even if such contravention is proved. the Tribunal has to go furthe~ and deal al; o with the merits of the order of discharge or dismissal.

Now, if the effect of contravention of section 33 were to make the order of discharge or dismissal void and inoperative, the workman would straightway be entitled to an order of reinstatement as soon as he establishes iu the complain! made by him under section 33A that the employer has contravened section 33 i'n making the order of dis- E charge or dismissal. There would be no need to go into the further of discharge or dismissal passed by the employer is justified on the merits.

It is difficult to imagine how the law can permit an order of discharge or dismissal which is void and inoperative to be justified on the merits.

There can be no question of justificaton on merits of ah order of discharge or dismissal which is found to be null and void.

The very fact that even after the contravention of section 33 is proved, the F Tribunal is required to go into the further question whether the order of discharge or dismissal passed by the employer is justified on the merits, clearly indicates that the order of discharge is not re'ndered void and inoperative by such contravention. It is interesting to note that Gajendragadkar, J., speaking on behalf of the Court'in Equitable Coal Co. case, characterised the breach of section 33 as a technical breach not having any invalidating consequence on the order of discharge or dismissal. 1f the scope of the inquiry under section 33A is G what is has been held to be in the decisions in Autvmobile Products of India, Equitable Coal Co. and the Puniab National Bank cases, the conclusion must inevitably follow that the contrave'ntion of section 33 does not render the order of discharge or dismisnal void and of no effect.

It is also significant to note that if the contravention of section 33 H were construed as havin cr an invalidati'ng effuct on the order of discharge or dismissal, sectkin 33A would be renderd maningless an~ 'futile, because in that event, Jhe workman would mvanably prefer to

make an application nnder. section 33q2J for detern_iination and payment of the wages due to him on the basis that he contmues to be in service. If f.!ie workman files a complaint under section 33A, he would not be entitled to succeed merely by showing that there is contraventi?n ?f se:tl?n ~3 and the ques.tion wl, lether the order of discharge or d1Silllssal IS Justified on the ments would be gone into by the Tribunal and if, on the merits, it is found to be justified, it would be sustained as valid despite contravention of section 33, but if, on the other hand, instead of proceeding under section 33A, he makes an application under section 33C(2), it would be enough for him to show contravention of section 3 3 and he would then be entitled to claim wages. on the basis that the continues in service. Another consequence whcih would arise on thia interpretation would be that if the workman files a complaint under section 33A, the employer would have an opportunity of C justifying the order of discharge or dismissal on merits, but if the workman proceeds under section 33C(2), the employer would have no such opportunity. Whether the employer should be 2ble tc justify the order of discharge or dismissal on merits would depend upou what remedy is pursued by the workman, whether under section 33A or under section 33C(2). Such a highly anomalous result could never have been intended by the legislature. If such an interpretation were accepted. no workman would file a complaint under section 33A, but he would

always proceed under section 33C(2) and section 33A would be reducod to futility.

It is, therefore. imoossible to accept the argument that the contravention of sectio"n 33 renders the order of discharge or dismissal void and inoperative and if that be so, the only remedy available to the workman for challenging the order of discharge or dismissal is that provided under section 33A, apart of course from the remedy under section 10, and he cannot maintain a'n application under section 33C(2) for determination and payment of wages on the basis that he continues to be in service.

The workman can proceed under section 33C(2) only after the Tribunal has adjudicated, on a complaint under section 33A or on a reference under section 10, that the order of discharge or dismissal passed by the employer was not justified and bas set aside that order and reinstated the workman.

It was urged on behalf of the workman that if this view were taken, it would rob the workman of the protection afforded to him under section 33 and the object and purpose of the section would be defeated because the employer would then, with impunity, discharge or dismiss workman without complying with the requirements of section 33.

But we do not think this apprehension of the workman is well founded. If the employer contravenes the provisions of section 33 and discharg::s or dismisses a workman without obtaining permission or approval of the Tribunal, he would render himself liable to punishment under section 31 ( 1) and this punishment can extend even to imprisonment.

Moreover, the aggrieved workman would not only have the remedy of moving the appropriate Governmnt for making a referei; ice under S".J?° tion 10 but he would also be entitled to make a complamt to the Tribunal uder section 3 3A and on such reference or complaint, the order of discharge or dismissal would be liable to be subjected to a much greater scrutiny than 'what would be available before a Tribunal exer-

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PUNJAB BEVERAGES v. SURESH CHAND (Bhagwati, J.) 385

cising the lillJited jurisdiction conferred under section 33.

The work- A man is thus not left without remedy, though, according to the trade union movement, the remedy provided under sections 31, 10 and 33A may not be as adequate as the workman might wish it to be.

It is entirely a matter of legislative policy to decide what consequences should flow from contravention of a statutory provision and what remedy should be provided to an aggrieved workman in case of such contravention.

We may now refer to one last contentiO"n urged on behalf of the . workman.

That contention was that the pvsent case was not one in which no application for approval was made by the appellant to the Industrial Tribunal and there was thus contrave'ntion of section 33(2) (b), but an application for approval was made under section 33 (2) {b) and this application did not result in grant of approval since it was withdrawn. It was argued that this was tantamonnt to refusal of approval and the ban imposed by section 33(2) (b), therefore, continued to operate and the order of dismissal passed by the appellant was void and inoperative.

This contention of the workman is, in our opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under section 33 (2) (h) with its dismissal on merits.

Where the Tribnnal entertains an application for approval under section 33 (2) (b) on merits, it applies its mind and considers whether tbe dismissal of the workman amounts to victimisation or unfair labour practice and whether a prima fade case has been made out by the employer for the dismissal of the workman. If the Tribunal finds that either no prima facie case has been made out or there is victimisation or unfair labour practice, it would refuse to grant approval and reject the application on merits.

Then of course the dismissal of the workman would be void and inoperative, but that would be because the Tribunal having held that no prima facie case has been made out by the employer or there is victimisation or unfair labour practice, it has refused to"Iift the ban. Where, however, the application for approval under section 33(2) (b) is withdrawn by the emplover and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal.

The Tribunal having had no occasion to consider the application on merits. there can be no question of the Tribunal refusing approval to the emnloyer.

It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban. The withdrawal of the application for approval stands o'.n the same footing as if no application nnder section 33 (2) (b) has been made at all.

We accordingly hold that the appellant contravened section 33(2)

(b) in dismissing the workmen in both the appeals but such contravention did '.not have the effect of rendering the orders of dismissal void

iind inoperative and hence the workmen were not entitled to mainfain t!ie applications for determination and payment of wages under secc

tion 33C(2). But since we are exercismg our extraordinary jurisdiction under Article 136, we are not bound to set aside the order of the H Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80 to the workmen unless the justice of the

case so requires.

We think that the demands of social justice are paramount while dealing with industrial disputes and, t_herefore, even though the bour Court was llot right in allowing these app; ications. we .do not thmk we should exercise our overriding jurisdiction under Article 136 to set aside the orders of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80• to the workmen. . We do not, therefore, interfere with this part of the orders of the Labour Court, and the amounts ordered to be paid by the Labour Court may be treated as compensation instead of wages.

The amounts which have already been paid by the appellant to the workmell pursuant to the orders of the Labour Court or in compliance with the directions given by this Court during the pendency of these appeals, will be adjusted against the amounts ordered to be paid to the workmen. We may make •t clea; r that this order shall not be construed as precluding the workmen from. pursuing the remedy under Section 33A or Section 10. Since at the time of grant of special leave in these appeals it was made a co'ndition by this Conrt that the appe:lant should in any eveut pay the costs of the workmeu, we direct that, though th~

appellant has succeeded, the appollant will pay the costs of these appeals to the workmen.

We are told that such costs have already been paid by the appellant to the workmen.

C.A. No. 2820 of 1977.

This appeal by special leave is directed against the order made by the Labour Court granting the application made by the !st respondent under section 33C(2) and directihg the appellant to pay wages lo the 1st respondent on the basis that the order of dismissal passed against him was void and ineffective and the 1st respondent continued lo be in service.

It is not necessary to set out the facts giving rise to this appeal since the o'nly question of law which arises in this appeal has been disoosed of by us today in a judgment delivered in Civil Appeals Nos. 1375 and 1384 of 1977 and having regard to that judgment, it is clear that the 1st respondent was not entitled to maintain the application under section 33C(2) without adjudieation from a propor authority, either o'n a complaint under section 33A or in a reference under section 10, that the order of dismissal passed against him was unjustified and directing his reinstatement.

We accordingly allow the appeal set aside the judgment and order passed by the Labour Court and reject the application under section 33C(2) made by the 1st respondent.

Since at the time of grant of special leave in this appeal it was made a cdndition by this Court that the appellant should in any event pay the costs of the workmn, we direct that, though the appellant has succeeded, the appellant will pay the o sts of this appeal to the workman.

We are told that such costs havo already been paid by the appellant to the workman.

S.R.

Appeals allowed:.

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