Judgment Case ID: 1959

Judgment:
Civil Appeal No. 422 of 1964 Appeal by special leave from the order dated September 29	 1962 of the Central Government Industrial Tribunal at Dhanbad in Application No. 45 of 1960 in Reference Nos. 40 and 34 of 1960. section V. Gupte	 Solicitor General and 1. N. Shroff	 for the appellant Jitendra Sharma and Janardan Sharma	 for the respondent. The Judgment of the Court was delivered by Gajendragadkar C.J. The short question of law which arises in this appeal relates to the scope and effect of the provisions contained in s 33(2) of the (No. 14 of 1947) (hereinafter called 'the Act '). The appellant	 the Tata Iron & Steel Co. Ltd.	 Jamadoba	 applied before the Chairman	 Central Government Industrial Tribunal	 Dhanbad	 (hereafter called "the Tribunal") under section 33(2)(b) of the Act for approval of the order passed by it discharging the respondent	 its employee section N. Modak	 from its service. In its application	 the appellant alleged that the respondent had been appointed as a Grade 11 Clerk in the Chief Mining Engineer 's Office at Jamadoba. One of the duties assigned to the respondent was to check arithmetical calculations according to sanctioned rate of the bills coming from the Heads of Department. He was required to bring to the notice of the Deputy Chief Mining Engineer cases of discrepancies or irregularities	 and also cases where additions or alterations in the bills had been made	 but not initialed. On rechecking of the bills which had been passed by the respondent	 it was discovered that several additions and alterations made in the bills were not noticed by him and were not reported. This failure constituted misconduct under the Standing Orders of the appellant. For this misconduct	 the respondent was charge sheeted (No. 51 dated 1/5 10 1960); that led to a departmental enquiry	 and as a result of the report made by the Enquiry Officer	 the appellant passed an order on December 17	 1960	 terminating the services of the respondent as from December 24	 1960. The present applica tion was drafted on the 17th December and it reached the Tribunal on the 23rd December 1960. It appears that this application was made by the appellant under section 33(2)(b)	 because four industrial disputes were pending between the appellant and its employees at that time in References Nos. 27	 34	 40 & 49 of 1960. After this application was filed	 the respondent challenged the propriety of the order passed by the appellant for which approval was sought by it	 and several contentions were raised by him in support of his case that the enquiry held against him was invalid and improper and the 'order of dismissal passed against him was the result of mala fides. Evidence was led by the parties in support of their respective pleas 413 When the matter came to be argued before the Tribunal	 it. was urged by the appellant that the application made by it no longer survived	 because all the industrial disputes which were pending between the appellant and its employees and as as a result of the	 pendency of which it had made the application under section 33(2)(b) of the Act	 had been decided by the Tribunal; Awards had been	 made in all the said References and they had been published in the Gazette. It does appear that the four References which we have already mentiond	 ended in Awards made on 31 10 1960	 8 11 1960	. 14 4 1961	 and 22 9 1961 respectively. The award on the present application was made on 29 9 1962	 and it is common ground that	 the time when the appellant urged its contention that the application made by it did not survive any longer	 all the four References had	 in fact	 been disposed of. The plea thus raised by the appellant naturally raised the question as to what would be the effect of the awards pronounced by the Tribunal on industrial disputes pending before it at the time when the appellant moved the Tribunal tinder section 33(2)(b)? If	 as a result of the pendency of an industrial dispute	 between an employer and his employees	 the employer is required to apply for approval of the dismissal of his employee under section 33 (2)(b)	 does such an application survive if the main industrial dispute is meanwhile finally decided and an award pronounced on it? That is the question which this appeal raises for our decision	 aid the answer to this question would depend upon a fair determination of the true scope and effect of the provisions of section 33(2)(b) of the Act. This question has been answered by the Tribunal against the appellant. Having held that the application made by the appellant survived the decision of the main industrial disputes	 the Tribunal ' has considered the merits of the controversy between the parties. Airier examining the evidence	 the Tribunal has found that the enquiry made by the appellant before passing the impugned order of discharge against the respondent	 was invalid. It has pointed out that the Enquiry Officer	 Mr. Watcha	 did not in fact record the statement of any witnesses who gave evidence before him	 and the only record of the enquiry is the report made by Mr. Watcha. It has also noticed that the enquiry in question suffered from the serious infirmity that Mr. Watcha who acted as the Enquiry Officer himself gave evidence against the respondent	 and the evidence which was actually recorded in the case was taken not by Mr. Watcha	 but by Mr. Paravatiyar. In the result	the conclusion of the Tribunal on the merits was that the enquiry "was a farce	 a mere eye wash	 biased with pre determined result	 and entirely mala fide and not at all fair". As a result of this conclusion	 the Tribunal refused to accord approval to the order of discharge passed by the appellant against the respondent. It is against this order that the appellant has. come to this Court by special leave. Reverting then to the question of construing section 33 of the Act	. we may refer to some general considerations at the outset. Broadly. 414 stated. section 33 provides that the conditions of service	 etc. should remain unchanged under certain circumstances during the pendency of industrial adjudication proceedings. It is unnecessary to refer to the previous history of this section. It has undergone many changes 	 but for the purpose of the present appeal	 we need not refer to the 	aid changes. We are concerned with section 33 as it stands after its final amendment in 1956. Section 33 consists of five sub sections. For the purpose of this appeal	 it is necessary to read subsections (1) & (2) of section 3 3 : "(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute	 no employer shall (a)in regard to any matter connected with the dispute	 alter	 to the prejudice of the workmen concerned in such dispute	 the conditions of service applicable to them immediately before the commencement of such proceedings; or (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	 in accordance with the standing orders applicable to a workman concerned in such dispute (a) alter	 in regard to any matter not connected with the dispute	 the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b)for any misconduct not connected with the dispute	 discharge or punish	 whether by dis missal or otherwise	 that workman: Provided that no such workman shall be discharged or dismissed	 unless he has been paid wages for one month and an 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". A reading of the above two sub sections of section 33 makes it clear that its provisions are intended to be applied during the pendency of any proceeding either in the nature of conciliation proceeding or in the 415 nature of proceeding by way of reference made under section 10. The pendency of the relevant proceeding is thus one of the conditions prescribed for the application of section 33. Section 33(1) also shows that the provisions of the said subsection protect workmen concerned in the main dispute which is pending conciliation or adjudication. The effect of sub section (1) is that where the conditions precedent prescribed by it are satisfied	 the employer is prohibited from taking any action in regard to matters specified by clauses (a) & (b) against employees concerned in such dispute without the previous express permission in writing of the authority before which the proceeding is pending. In other words	 in cases falling under sub section (1)	 before any action can be taken by the employer to which reference is made by clauses (a) & (b)	 he must obtain express permission of the specified authority. Section 33(2) pproceedes to lay down a similar provision and the conditions precedent prescribed by it are the same as those contained in section 33(1.). The proviso to section 33(2) is important for our purpose. This proviso shows that where is action is intended to be taken by an employer against any of his employees which falls within the scope of cl. (b)	 he can do so	 subject to the requirements of the proviso. If the employee is intended to be discharged or dismissed an order can be passed by the employer against him	 provided he has paid such employee the wages for one month	 and he has made an application to the authority before which the proceeding is pending for approval of the action taken by him. The requirements of the proviso have been frequently considered by Industrial Tribunals and have been the subject matter of decisions of this Court as well. It is now well settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally	 the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal	 and must apply to the specified authority for approval of his action at the same time	 or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted	 it takes effect from the date of the order passed by the employer for which approval as sought. If approval is not granted the order of dismissal or discharge passed by the employer is wholly invalid or inoperative	 and the employee can legitimately claim too continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him words	 approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval such an orders is invalid and inoperative in law. Sub sections (3) & (4) of section 33 deal with cases of protected workmen	 but with the provisions contained in these two subsections we are not concerned in the present appeal. That leaves section 33(3) to be considered. This sub section requires that where an application is made under the proviso to sub section (2)	 the specified authority has to 416 dispose of the application without delay; and indeed	 it expressly prescribes that the said proceedings must be dealt with as expeditiously as possible. This sub section is naturally limited to cases falling under sub section In regard to cases falling under sub section (1)	 the employer can act only with the previous express sanction of the prescribed authority	 and	 therefore	 there is no need to made any provision in regard to an application which the employer may make under sub section (1) requiring that the said application should be dealt with expeditiously. That is the general scheme of section 33. it is quite clear that section 33 imposes a ban on the employer exercising his common law	 statutory	 or contractual right to terminate the services of his employees according to the contract or the provisions of law governing such service. In all cases where industrial disputes are pending between the employers and their employees	 it was thought necessary that such disputes should be adjudicated upon by the Tribunal in a peaceful atmosphere undisturbed by any subsequent cause for bitterness or unpleasantness. It was	 however	 realized that if the adjudication of such disputes takes long the employers cannot be prevented absolutely from taking action which is the subject matter of section 33(1) and (2). The Legislature	 therefore	 devised a formula for reconciling the need of the employer to have liberty to take action against his employees	 and the necessity for keeping the atmosphere calm and peaceful pending adjudication of industrial disputes. In regard to actions covered by section 33(1)	 previous permission has to be obtained by the employer	 while in regard to actions falling under section 33(2)	 he has to obtain subsequent approval	 subject to the conditions which we have already considered. In that sense	 it would be correct to say that the pendency of an industrial dispute is in the nature of a condition precedent for the applicability of section 33(1) & (2). It would	 prima facie	 seem to follow that as soon as the said condition precedent ceases to exist	 section 33(1) and (2) should also cease to apply; and the learned Solicitor General for the appellant has naturally laid considerable emphasis on this basic aspect of the matter. It is also true that having regard to the conditions precedent prescribed by section 33(1) and (2)	 it may be possible to describe the application made by the employer either under section 33(1) or under section 33(2) as incidental to the main industrial dispute pending between the parties. We have noticed that such applications have to be made before the specified authority which is dealing with the main indus trial dispute; and so	 the argument is that an incidental or an interlocutory application which arises from the pendency of the main industrial dispute	 cannot survive the decision of the main dispute itself. That is another aspect of the matter on which the learned Solicitor General relies. He urges that it is during the pendency of the main industrial dispute that section 33 applies; that it applies in relation to workmen concerned with such main dispute; and that the 417 power conferred by it has to be exercised by the authority before which the main dispute is pending. These broad features of section 33 impress upon the applications made under section 33(1) and (2) the character of interlocutory proceedings	 and thus considered	 interlocutory proceedings must be deemed to come to an end as soon as the main dispute has been finally determined. On the other hand	 there are several considerations which do not support the argument of the appellant that as soon as the main industrial dispute is decided	 the application made by it for approval under section 33(2) should automatically come to an end. As we have already indicated	 the application of the appellant can.	 in a sense	 be treated as an incidental proceeding; but it is a separate proceeding all the same	 and in that sense	 it will be governed by the provisions of section 33(2)(b) as an independent proceeding. It is not an interlocutory proceeding properly so called in its full sense and significance; it is a proceeding between the employer and his employee who was no doubt concerned with the main industrial dispute along with other employees; but it is nevertheless a proceeding between two parties in respect of a matter not covered by the said main dispute. It is	 therefore	 difficult to accept the argument that a proceeding which validly commences by way of an application made by the employer under section 33(2)(b) should automatically come to an end because the main dispute has in the meanwhile been decided. What is the order that should be passed in such a proceeding	 is a question which cannot be satisfactorily answered	 unless it is held that the proceed ing in question must proceed according to law and dealt with as such. In this connection it is significant that though the Legislature has specifically issued by section 33(5) a directive to the specified authorities to dispose of the applications without delay and act as expeditiously as possible	 it has not made any provision indicating that if the decision on the applications made under section 33(2) is not reached before the main dispute is decided no order should be passed on such applications. There is little doubt that the Legislature intends that applications made under section 33(2) should be disposed of well before the main dispute is determined; but failure to provide for the automatic termination of such applications in case the main dispute is decided before such applications are disposed of	 indicates that the Legislature intends that the proceedings which begin with an application properly made under section 33(2) must run their own course and must be dealt with in accordance with law. The direction that the said proceeding should be disposed of as expeditiously as possible emphasises the fact that the legislature intended that proper orders should be passed on such applications without delay	 but according to law and on the merits of the applications themselves. It is	 however	 urged by the learned Solicitor General that it would be futile to allow the present application to proceed any 418 further	 because the appellant can proceed to dismiss the respondent notwithstanding the fact that the Tribunal does not accord its approval to its order in question. This argument	 in out opinion	 is misconceived. It cannot be denied that with final determination of the main dispute between the parties	 the employer 's right to terminate the services of the respondent according to the terms of service revives and the ban imposed on the exercise of the said power is lifted. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent	 and the date when the ban was lifted by the final determination of the main dispute	 the order cannot be said to be valid unless it receives the approval of the Tribunal ' In other words	 the order being incomplete and inchoate until the approval is obtained	 cannot effectively terminate the relationship of the employer and the employee between the Appellant and the respondent 	 and so	 even if the main industrial dispute is finally decided	 the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal	 the employer would be bound to treat the respondent as its employee and pay him his full wages for the period even though the appellant may subsequently proceed to terminate the respondent 's services. Therefore	 the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless	 cannot be accepted. There is another aspect of this matter to which reference must be made. Section 33A makes a special provision for adjudication as to whether any employer has contravened the provisions of section 33. This section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their rights have been violated contrary to the provisions of section 33. Section 33 A provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of section 33(2)	 he may make a complaint to the specified authorities and such a complaint would be tried as if it was an industrial dispute referred to the Tribunal under section 10 of the Act. In other words	 the complaint is treated as an independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned. Now	 take the present case and see how the acceptance of the appellants argument would work. As we have already pointed out	 in the present case the Tribunal has considered the met its of the appellant 's prayer that it should accord approval to the proposed dismissal of the respondent and it has come to the conclusion that having regard to the relevant circumstances	 the approval should not be accorded. If the appellant 's argument is accepted and it is held that as soon as the main industrial disputes were finally deter mined	 the application made by the appellant under section 33(2) auto magically came to an end	 the respondent would not be able to 419 get any relief against the appellant for the wrongful termination of his services between the date of the impugned order and the final disposal of the main industrial disputes; and this would mean that in a case like the present	 section 33A would be rendered nugatory	 because the employer having duly applied under section 33(2)(b)	 the employee cannot complain that there has been a contravention of section 33 by the employer	 even though on the merits the dismissal of the employee may not be justified. That	 in our opinion	 could not have been the intention of the Legislature. This aspect of the matter supports the conclusion that a proceeding validly commenced under section 33(2)(b) would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined. It is of course true that under section 33 the authority to grant permission or to accord approval in cases falling under section 33(1) and (2) respectively is vested in the Tribunal	 before which the main industrial dispute is pending	 but that is not an unqualified or inflexible requirement	 because section 33B(2) seems to permit transfers of applications before one Tribunal to another	 and in that sense	 the argument urged by the appellant that the condition that a specified Tribunal alone can deal with applications made to it is an inflexible condition	 cannot be accepted. We are	 therefore	 satisfied that the Tribunal was right in over ruling the contention raised by the appellant that the application made by it for approval under section 33(2)(b) ceased to constitute a valid proceeding by reason of the fact that the main industrial disputes	 the pendency of which had made the application necessary	 had been finally decided. This question has been considered by several High Courts in this country. The High Courts of Calcutta	 Madras and Mysore have taken the view for which the learned Solicitor General has contended before us	 vide Alkali and Chemical Corporation of India Ltd. vs Seventh Industrial Tribunal	 West Bengal and Ors.(1); Mettur Industries Ltd. vs Sundara Naidu and Anr.;(2) and Shah (A.T.) vs State of Mysore and Ors.(3) respectively. On the other hand	 the Kerala	 the Punjab	 and the Allahabad High Courts have taken the view which we are inclined to adopt	 vide Kannan Devan Hill Pro duce Company Ltd.	 Munnar vs Miss Aleyamma Varghese and Anr.;(4) Om Parkash Sharma vs Industrial Tribunal	 Punjab and Anr.;(5) and Amrit Bazar Patrika (Private) Ltd. vs Uttar Pradesh State Industrial Tribunal and Ors.(6) respectively. In our opinion	 the former view does not	 while the latter does	 correctly represent the true legal position under section 33(2)(b). That takes us to the merits of the findings recorded by the Tribunal in support of its final decision not to accord approval to the (1) [1964] II L.L.J. 568. (2) [1963] II L.L.J. 303. (3) [1964] I L.L.J. 237. (4) [1962] II L.L.J. 158. (5) [1962] II L.L.J. 272	 (6) [1964] II L.L.J. 53	 B(N)3SCI 14 420 action proposed to be taken by the appellant against the respondent. We have already indicated very briefly the nature and effect of the said findings. The learned Solicitor General no doubt wanted to contend that the said findings were not justified on the evidence adduced before the Tribunal. We did not	 however	 allow the learned Solicitor General to develop this point because	 in our opinion	 the findings in question are based on the appreciation of oral evidence	 and it cannot be suggested that there is no legal evidence on the record. to support them. Usually	 this Court does not under article 136 of the Constitution entertain a plea that the findings of fact recorded by the Industrial Tribunal are erroneous on the ground that they are based on a misappreciation of evidence. The propriety or the correctness of the findings of fact is not ordinarily allowed to be challenged in such appeals. The result is the appeal fails and is dismissed with costs. Appeal dismissed.

Summary:
The appellant applied under section 33(21)(b) of the to the Industrial Tribunal for the Tribunal 's approval of the order passed by the appellant discharging its employee the respondent. This application was made because certain industrial disputes were pending between the appellant and its employees	 but when the matter came to be argued before the Tribunal	 the pending disputes had been disposed of. Hence	 the appellant contended that the application made by it no longer survived '. which the Tribunal rejected. In appeal by Special Leave. HELD:The Tribunal was right in overruling the appellant 's contention. [419 E]. A proceeding validly commenced under section 33(2)(b) would not automatically come to an end merely because the main industrial dispute had in the meanwhile been finally determined. [417 D E]. The application of the appellant can in a sense	 be treated as an incidental proceeding; but it is a separate proceeding all the same	 and in that sense it will be governed by the provisions of section 33(2)(b) as an independent proceeding. It is not an interlocutory proceeding properly so called in its full sense and significance; it is a proceeding between the employer and his employee who was no doubt concerned with the main industrial dispute along with other employees; but it is nevertheless a proceeding between two parties in respect of a matter not covered by the main dispute. [417 B D]. The order being incomplete and inchoate until the approval is obtained	 cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so even if the main industrial dispute was finally decided	 the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal	 the employer would be bound to treat the respondent as its employee and pay him full wages for the period even though the appellant may subsequently proceed to terminate the respondent 's service. [418 C E]. Besides	 if it were held that with the final determination of the main industrial dispute such application would automatically come to an end	 it would mean that section 33 A under which a complaint by the employee is treated as an independent proceeding	 would be rendered nugatory. [419 A]. Alkali and Chemical Corporation of India Ltd. vs Seventh Industrial Tribunal	 West Bengal and Ors. (1964) II L.L.J. 568	 Mettur Industries Ltd. vs Sundara Naidu and Anr. (1963) II L.L.J. 303 and Shah (A.T.) vs State of Mysore and Ors (1964) I LL.J. 237	 disapproved Kannan Devan Hill Produce Company Ltd. Munnar vs Miss Aleyamma Varughesa and Anr. (1962) II L.L.J. 158	 Om Prakash Sharma vs Industrial Tribunal	 Punjab and Anr. (1962) II L.L.J. 272 and Amrit Bazar Patrika (Private) Ltd. vs Uttar Pradesh State Industrial Tribunal and Ors. (1964) II L.L.J. 53	 approved.