Judgment Case ID: 162

Judgment:
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 Tribunal of India at Calcutta in Appeals Nos. 366/51	 Cal. 69/52 and Cal. 70/52	 arising out of the award dated the 9th February	 1952	 of the Chairman	 Industrial Tribunal	 Delhi. M.C. Setalvad (Attorney General for India) and N.C. Chatterjee (B. L. Agarwal	 with them) for the appellant. A.S. B. Chari and Hardyal Hardy for the respondents. April 10. The Judgment of the Court was delivered by PATANJALI SASTRI C. J. This 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 'Tribunal :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. section 688 Campbell Puri	 and during the pendency of the proceedings before the said Tribunal	 the Bank alleged that the respondents along with other workmen numbering more than a thousand illegally commenced a general strike on April 18	1951	 in connection with a fresh dispute. Thereupon	 notice was issued to the strikers that unless they returned to work by April 24	 1951	 they would be deemed to have left service of their own accord. That notice having been ignored by the strikers a second notice 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 Bank	 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 Tribunal to decide the questions regarding the dismissals etc. of the aforesaid 150 employees	 and that Tribunal	 after calling for the statements of case on behalf of the parties and hearing them	 made an award on February 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 	 and that the Bank was entitled to dismiss them. The Tribunal	 however	 granted to the respondents compensation byway of salary and allowances at half the rates from the date of dismissal to the date of the publication of the award. The respondents appealed to the Labour Appellate Tribunal at Calcutta which	 while agreeing with the Industrial Tribunal 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 wrongful because no charges were framed against any of them in respect of their alleged acts of violence or 689 subversive activities and their explanation was not called for. The Appellate Tribunal accordingly thought that further evidence was necessary on certain specific points mentioned in its	 order and reserved its decision as to whether the respondents were entitled to reinstatement till after such evidence was 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 in 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 rely upon the illegal strike as a valid ground for dismissing the respondents	 we are of opinion that section 33 of the 	 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 Tribunal. Admittedly	 no such permission was obtained. If the pendency of the proceedings before 690 Sri Campbell Puri made the strike of the respondents illegal under section 23(b) of the Act	 the dismissal of the respondents by the Bank without obtaining his permission as required by section 33 was also illegal. We see no force in the argument of the AttorneyGeneral that the section has no application to the case as strikes and lock outs are dealt with in a different 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 XLVIII 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 order made by the Labour Appellate Tribunal and we accordingly dismiss the appeal with costs. Appeal dismissed. Agent for the appellant : Ganpat Rai.

Summary:
During the pendency of proceedings before an Industrial Tribunal relating to certain disputes between a bank and its workmen represented by the union of its employees	 the respondents along with other workmen numbering over a thousand commenced a general 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 Labour Appellate Tribunal held on appeal that though the strike was illegal the bank had condoned it and the dismissal was therefore illegal and ordered reinstatement On further appeal; 687 Held	 that even assuming that the strike was illegal and the bank had not condoned it	 as proceedings were pending before another Tribunal between the bank and its workmen in respect of an industrial dispute	 under section 33 of the 	 the bank could not dismiss the workmen save with the permission in writing of that Tribunal which was not obtained and the dismissal was accordingly illegal on this ground. Section 33 of the 	 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 " Miscellaneous."