Judgment Case ID: 2246

Judgment:
Appeal No. 503 of 1966. Appeal by special leave from the Award dated November 10	 1964 of the Industrial Tribunal	 Andhra Pradesh in Misc. Petition No. 32 of 1964 in Industrial Dispute No. 4 of 1964. R. H. Gokhale	 B. K. Seshu	 Parameshwara Rao	 Jyotana R. Melkote and R. V. Pillai	 for the appellant. M. K. Ramamurthi	 Shyamala Pappu and Vineet Kumar	 for the respondent. The Judgment of the Court was delivered by Vaidialingam	 J. This appeal	 by special leave	 is directed against the award	 dated November 10	 1964	 of the Industrial Tribunal	 Andhra Pradesh	 Hyderabad	 accepting a complaint	 filed by the respondent	 under section 33A	 of the (Act XIV of 1947) (hereinafter called the Act). The respondent was	 at the material time	 working in the main branch of the appellant	 at Belgaum. By order dated March 8	 1963	 the respondent was transferred to Bhatkal branch	 as a 'C ' rank Officer	 to work there	 as an accountant. He was also informed that he was being relieved	 so as to enable him to proceed to duty	 at the place of transfer	 by March 18	 1963. He was allowed three days ' joining time. On March 13	 1963	 the Manager of the Branch at Belgaum informed the respondent that he was relieved	 with effect from that date	 to join duty at the Bhatkal branch	 by March 18	 1963. The respondent	 by letter dated March 14	 1963	 after setting out the various matters therein	 applied for privilege leave	 for ninety days	 from March 14	 1963 to June 11	 1963	 so as to enable him to improve his health and also to attend to certain domestic matters. But the Bank	 the appellant herein	 desired him	 by their letter dated March 23	 1963	 to join duty and then apply for leave	 if necessary. Some further correspondence ensued	 between the Bank and the respondent	 the respondent again making a request for sanction of his leave and the appellant Bank insisting upon his joining duty	 according to the order of transfer	 and then applying for leave. But	 as the respondent did not join duty at the Bhatkal branch	 though he was relieved from the Belgaum office	 the appellant	 by their communication	 dated July 23	 1963	 desired the respondent to offer explanation for not obeying the order of transfer. The respondent sent a reply	 on July 29	 1963	 stating what	 according to him	 were the reasons for his not joining duty at the transferred office. The appellant Bank	 not satisfied with the explanation	 given by the respondent	 framed two charges against him	 and communicated the same	 on August 7	 1963. The charges were to the effect that (a) the respondent	 by wilfully disobeying the lawful and reasonable transfer order of 329 the management	 has committed gross misconduct	 for which the punishment is dismissal from service; and (b) the respondent had absented himself from duty from March .14	 1963	 without leave	 which again	 is a minor misconduct for which also punishment can be imposed. The respondent was also directed to submit his explanation	 if any	 to the charges	 on or before August 25	 1963. The respondent offered his explanation to the charges	 by his letter	 dated August 21	 1963. The appellant informed the respondent	 on October 1	 1963	 that an enquiry would be conducted against him	 in respect of the charges	 on October 5	 1963 and desired him to be present at the enquiry	 with the necessary evidence	 in support of his defence. The inquiry was conducted by the Enquiry Officer	 in which the respondent participated. The Enquiry Officer sent a report to the Managing Director of the Bank	 dated October 28	 1963	 substantially finding the respondent guilty of both the charges. In respect of the first charge of gross misconduct	 for wilfully disobeying the order of transfer	 the Enquiry Officer had proposed that the respondent should be dismissed and	 in respect of the second charge	 of absenting without leave	 it was proposed in the report that the increment be stopped	 for a period of six months	 with effect from April 25	 1963. Certain consequential proposals were also made	 as to how exactly the respondent 's absence	 was to be dealt with. The Managing Director of the Bank	 after considering the re port submitted by the Enquiry Officer	 as well as the further explanation	 offered by the respondent	 in respect of the findings recorded in the said report	 by his order dated November 12	 1963	 agreed with the recommendation of the Enquiry Officer	 dismissed the respondent from the service of the Bank with immediate	 effect	 for the offence of wilful disobedience of the order of transfer. The respondent was also informed that he might appeal	 against the order of dismissal	 to the working committee of the Directors of the Bank	 within forty five days of receipt of the order. The respondent filed an appeal	 	on December 17	 1963	 be fore the working committee of the Directors	 wherein he attacked the various proceedings	 culminating in the order of dismissal	 passed against him. Intimation of the hearing of the appeal was given to the respondent. But	 it is seen that on the date when the appeal was taken up for hearing	 viz.	 March 20	 1964	 the respondent was not present either in person or through authorised representative of his. In consequence	 the working committee of the Directors dismissed the appeal on March 20	 1964. In the appellate order	 the working committee has elaborately considered the various circumstances necessitating the conduct of the en quiry	 the enquiry proceedings and the answers given by the respondent; and it has	 ultimately	 agreed with the findings recorded 330 in the enquiry proceedings that the respondent had wilfully disobeyed the lawful orders of the management transferring him. The result was that the order of dismissal	 passed by the Managing Director on November 12	 1963	 was confirmed. At this stage it may be mentioned that the Central Govern ment had referred	 on January 8	 1964	 for adjudication	 to the Industrial Tribunal	 of which Dr. Mir Siadat Ali Khan was appointed as the presiding officer	 with headquarters at Hyderabad	 the question as to whether action	 by the appellant Bank	 in discontinuing pigmy collection and payment thereof to the workmen	 was justified. This was numbered as I. D. No. 4 of 1964	 and the award	 in this dispute	 was given on August 26	 1964	 and the Central Government published the same	 in the Gazette of India	 on September 7	 1964. The respondent filed a complaint	 under section 33A of the Act	 on June 4	 1964	 before the Central Government Industrial Tribunal	 at Hyderabad	 attacking the enquiry proceedings	 conducted against him	 and the order of dismissal	 passed by the appellant. Apart from attacking the inquiry proceedings	 on merits	 as mala fide	 the respondent contended that the order of dismissal had been passed against him	 without the appellant Bank complying with the provisions of the proviso to section 33(2)(b)	 of the Act. According to him	 inasmuch as the order of dismissal had been passed	 during the pendency of 1. D. No. 4 of 1964	 the management should have asked the Industrial Tribunal for approval of their action	 and they should have paid him one month 's wages. Therefore	 inasmuch as these things were not done	 the appellants have contravened the provisions of section 33 of the. The appellant Bank	 in their counter statement	 pleaded that the domestic enquiry	 conducted by the management	 was very fair and that the action of the management	 in dismissing the respondent	 was perfectly justified. In this connection	 the appellant raised the contention that the respondent was not a 'workman '	 and that	 in any event	 he was not a workman concerned with the dispute covered by I.D. No. 4 of 1964	 and therefore he was not entitled to file an application	 under section 33A. They further contended that there was no contravention 'of section 33 of the Act	 because	 at the time when the order dismissing the respondent was passed	 on November 12	 1963	 there was no industrial dispute pending	 so as to make it obligatory on the part of the appellant	 to take action	 in accordance with the proviso to section 33(2)(b)	 of the Act. The Industrial Tribunal	 by its order	 under attack	 has overruled all the objections	 raised by the management. The Tribunal has held that the respondent was a 'workman ' and that he was also a workman concerned in 1. D. No. 4 of 1964	 and therefore 331 he was competent to file an application	 under section 33A. The Tribunal has also held that the dismissal of the respondent became effective only on March 20	 1964	 when the working committee of the Directors of the appellant Bank disposed of the appeal	 filed by the respondent. As this date fell within the period	 between January 8	 1964 and October 8	 1964	 (during which 1. D. No. 4 of 1964 was pending) the management was bound to comply with the proviso to section 33(2)(b) of the Act. As this proviso had not been complied with	 the Tribunal held that there was a contravention of the provisions of section 33 of the Act	 which gives a right to the respondent to invoke the jurisdiction of the Tribunal	 under section 33A of the Act. After having held that there is a contravention	 of section 33 of the Act	 the Tribunal then considered the attack levelled	 as against the domestic enquiry proceedings	 by the respondent	 and recorded a finding to the effect that it was not fair to consider that the	 respondent had wilfully disobeyed the order of transfer	 passed by the management. The tribunal	 therefore held	 on both the findings	 that the respondent should be reinstated	 with continuity of service and back wages. The same contentions	 that were raised before the Industrial Tribunal	 on behalf of the management	 have been urged before us	 by the appellants ' learned counsel	 Mr. Gokhale. Counsel urged that the respondent is not a 'workman ' and	 in any event	 he is not a workman concerned with the dispute in I.D. No. 4 of 1964. Counsel further pointed out that even assuming that the findings of the Tribunal	 recorded against the appellant	 were correct	 the application	 under section 33A	 was not maintainable	 inasmuch as there was no contravention	 by the management	 of any of the provisions of s	 33	 'of the Act. In this connection	 counsel pointed out	 that the order of dismissal	 having been passed by the Managing Director	 on November 12	 1963	 long before January 8	 1964	 the date when I.D. No. 4 of 1964	 was referred	 there was no obligation	 on the part of the management	 to ask for approval of the Tribunal	 in respect of their action	 or of paying one month 's wages to the respondent. Counsel also urged that even if these questions were answered against the appellant	 the award would have to be set aside	 because the Industrial Tribunal had really constituted itself as a Court of appeal	 when it set aside the order of dismissal	 passed by the management	 which was based on the findings recorded in a proper domestic enquiry. Mr. M. K. Ramamurthy	 learned counsel	 appearing for the respondent	 has supported the views	 expressed by the Tribunal	 on all aspects. If the contention of the appellant	 that there was no Indus trial dispute	 pending at the time	 when the order of dismissal was passed	 is accepted	 then	 quite naturally	 it follows that no question of contravention of section 33	 of the Act	 arises	 in which 332 case	 the complaint	 under section 33A	 is not maintainable	 in law. In an enquiry	 under section 33A	 the first question that the Tribunal will have to consider	 is regarding the contravention	 by the employer	 of the provisions of section 33 of the Act. If this issue is answered against the employee	 nothing further can be done	 under section 33A	 of the Act. This position has been settled	 by the decisions of this Court	 in Equitable Coal	 Ltd. vs Algu Singh (1) and The Punjab National Bank Ltd. vs Its Workmen (2). After hearing arguments	 on this aspect	 we are inclined	 in the instant case	 to accept the contention of the appellant	 in this regard	 and hence	 no other questions arise	 in the application filed	 by the respondent under s.33A of the Act. There is no controversy	 in this case	 that the appellant did not seek the approval of the Industrial Tribunal concerned	 nor did they offer or pay one month 's wages to the respondent. There is also no controversy that I.D. No. 4 of 1964	 can in law be considered to be pending only from January 8	 1964	 to October 8	 1964. The order of the Managing Director	 dismissing the respondent from service	 was made on November 12	 1963	 which date	 admittedly	 falls outside the duration of the pendency of I.D. No. 4 of 1964. The order of the working committee of Directors	 rejecting the respondent 's appeal	 which was passed on March 20	 1964	 certainly falls within the period when I.D. No. 4 of 1964 was pending. Therefore	 the question that arises for con sideration	 in this case	 is as to when	 it can be stated	 that the respondent was dismissed	 i.e.	 by the order of November 12	 1963	 of the Managing Director	 or by the appellate order of March 20	 1964	 passed by the working committee of Directors. According to the appellant	 the order which has to be taken into account	 for considering whether there is a contravention of section 33 of the Act	 is the original order passed	 by the Managing Director	 on November 12	 1963	 whereas	 according to the respondent	 the appellate order	 passed on March 20	 1964	 is the effective order	 dismissing him. The respondent 's contention	 in this regard	 is briefly as follows. Under the National Industrial Tribunal (Bank Disputes) Award	 1962 (known as the Desai Award)	 a workman	 in such cases	 has got a right of appeal	 to the appropriate authority	 and he has got a period of 45 days	 for filing the appeal. In this case	 the order of the Managing Director	 dated November 12	 1963	 also states that respondent is entitled to file an appeal	 against that order	 to the working committee of the Directors	 within 45 days of receipt of that order. The respondent	 admittedly	 filed an appeal	 on December 17	 1963	 well within the time. The appeal was disposed of	 on March 20	 1964. The language of section 33(2)	 counsel points out	 is to the effect that the employer has (1) [1958] I L.L.J. 793. (2) ; 333 been enabled to take action	 'in accordance with the standing orders applicable to a workman concerned	 in such dispute '. Inasmuch as the standing orders	 in this case	 give a right to appeal	 to the workman	 any order that is passed	 by the management	 in respect of which a right of appeal is given to a workman	 cannot be considered to be an effective or operative order	 till the appellate decision is made known. It will be open to the appellant to take action	 in accordance with the proviso to section 33(2)(b)	 at the time when the appellate order was passed	 on March 20	 1964	 as the appellate order is the effective and binding order. So far as the par ties are concerned	 the order of dismissal	 in this case	 must be considered to have been passed only on March 20	 1964	 which date squarely falls within the period	 during which I.D. No. 4 of 1964	 was pending. We are not inclined to accept the contentions of the learned counsel	 for the respondent	 in this regard. It has been laid down by this Court	 in Strawboard Manufac turing Co. vs Govind(1)	 in construing the proviso to section 33(2)(b) of the Act	 that the three things contemplated	 viz.	 dismissal or discharge	 payment of the wages and making of the application	 should be part of the same transaction. Therefore	 in our view	 there must be a fixed and certain point of time which will be applicable to all managements and workmen	 when construing the provisions of section 33 of the Act. The management must definitely know	 as to when they have to take the necessary action	 under the proviso to section 33(2)(b)	 and the workman also should	 likewise	 know the definite time when the management should have complied with the requirements of the proviso to section 33(2)(b)	 so that he could approach the Industrial Tribunal	 by way of a complaint		 under section 33A	 of the Act. A reading of the material provisions of section 33 shows that the expressions used are 'discharge or punish	 whether by dismissal or otherwise '	 and they clearly indicate	 in. our opinion	 the point of time	 when the order of discharge or dismissal is passed	 by the authority concerned. An order of discharge or. dismissal	 in our opinion	 can be passed	 only once; and	 in this case	 the order of dismissal is the one passed	 by the Managing Director	 on November 12	 1963. No doubt	 either by virtue of the Standing Orders	 or by virtue of a	 contract	 of service	 a right of appeal may be given to a workman concerned	 to challenge an order of dismissal. But the appellate authority only considers whether the order of dismissal has to be sustained	 or whether it requires modification. Therefore	 there is no question of the appellate authority passing	 again	 an order of dismissal. We are not concerned	 in construing the provisions of section 33	 as to the finality of the orders passed	 by the authority concerned	 in the first instance	 in passing orders of dismissal or discharge. Further	 the proviso to section 33(2)(b)	 when it	 refers to payment of wages for one month	 also indicates that it relates to an (1) [1962] Supp. 3 S.C.R. 618	 630. CI S 334 order of discharge or dismissal	 which comes into effect immediately	 which	 in this case	 is the order passed	 on November 12	 1963. The payment of one month 's salary or wages	 is to soften the rigour of unemployment that will face the workman	 against whom an order of discharge or dismissal	 has been passed. If the management has to wait for the minimum period prescribed for filing an appeal	 and also await the termination of the appeal when one is filed	 considerable time would have lapsed from the date of the original order	 during which period the workman would not have received any salary. It will be anomalous to hold that even after the lapse of such a long time	 the payment of one month 's salary would satisfy the requirements of the section. In this case	 if the contention of the respondent is accepted	 it will lead to very anomalous results	 and the time when a management has to comply with the proviso to section 33(2)(b)	 will radically differ. For example	 according to the respondent	 the management	 in this case	 will have to wait for the minimum period of 45 days	 which is the time given for the respondent	 to file an appeal. If an appeal is filed	 according to the respondent	 the management will have to wait further	 and await the disposal of the appeal. That means	 in such a case	 the proviso will come into effect only at the time when the appeal is disposed of. On the other hand. if	 after the expiry of 45 days	 the workman concerned does not file an appeal	 the management	 according to the respondent	 will have to comply with the proviso immediately after the period of limitation is over. That is	 the point of time when the proviso to section 33(2)(b) will have to be complied with	 by the management	 will depend upon the filing or non filing of an appeal	 by the workman concerned. Further	 if at the time	 when the original order of dismissal is passed	 there is no dispute pending	 and when the appeal against the order of dismissal is pending	 a dispute is referred for .adjudication	 it will be open to the management to prolong its decision	 in the appeal. till after the Industrial dispute 'has come to an end. It cannot be the intention of the Legislature that such variable and indeterminate periods are contemplated in construing the proviso to section 33(2)(b). The natural and reasonable in terpretation	 to be placed on section 33	 is	 in our opinion	 that the order of discharge or dismissal	 is the original or the very first order passed by the management 	 which in this case is the one passed. by the Managing Director	 on November 12	 1963. It follows that on that date	 I. D. No. 4 of 1964. had not even been referred	. for adjudication	 which	 as we 'have already indicated. was by an order of Government	 dated January 8	 1964. Hence there is no contravention of section 33	 in this case. Before we close the discussion	 it is necessary to state that Mr. Ramamurthy	 learned counsel for the respondent	 referred us to two decisions of this Court. in The Management of Hotel Imperial V. Hotel Workers ' Union (1) and Collector of Customs	 (1) ; 335 Calcutta vs East India Commercial Co. Ltd.(1). In the first decision	 this Court has recognised that a term should be implied	 by Industrial Tribunals	 in the contract of	 employment	 that	 if the master has held a proper enquiry and come to the conclusion that the servant should be dismissed	 and in consequence	 suspends him	 pending the permission	 required under section 33 of the Act	 he has the power to order suspension	 thus suspending the. contract of employment temporarily	 so that there is no obligation on him ' to pay wages	 and no obligation on the servant	 to work. In the second decision	 this Court held that in cases where an authority reverses the order under appeal	 or	 modifies or merely dismisses the appeal and thus confirms the order appealed against without any modification	 the operative order is the order of the appellate authority. :In our opinion	 these decisions do not assist the respondent and the principles laid down. therein	 have no bearing on the point to be determined in the instant case. The result is that the award of the Industrial Tribunal is set aside and the application	 filed by the respondent before it	 will stand dismissed. The appeal is	 accordingly	 allowed	 but without costs. Y.P. Appeal allowed.

Summary:
After holding a domestic enquiry the Managing Director of the appellant Bank dismissed the respondent employee with immediate effect. The employee was informed that he might appeal against this order to the working committee of the Directors within certain days. The respondent filed the appeal which the working committee dismissed. Subsequent to the filing of the appeal but prior to its dismissal	 the Central Government referred to an Industrial Tribunal the question as to whether action	 by the appellant Bank	 in discontinuing pigmy collection and payment thereof to the workmen	 was justified. The respondent filed a complaint to the Industrial Tribunal alleging that the appellant contravened section 33 of the Industrial Dispute Act as the order of dismissal had been passed during the pendency of an Industrial Dispute	 the management should have asked the Industrial Tribunal for approval of their action	 and they should have paid him one month 's wages. The Industrial Tribunal held that the dismissal of the respondent became effective only after the. working committee disposed of the appeal	 and as during this period an Industrial Dispute was pending the management was bound to comply with the proviso to section 33 (2) (b) of the Act. In appeal to this Court. Held:There was no contravention of section 33. An order of discharge or dismissal	 can be passed only once; and	 in thus case	 the order of dismissal was the original or very first passed by the Managing Director	 on which date the Industrial Dispute had not even been referred	 for adjudication. No doubt	 either by virtue of the Standing Orders	 or by virtue of a contract	 of service	 a right of appeal may be given to a workman concerned	 to challenge an order of dismissal. But the appellate authority only considers whether the order of dismissal has to be sustained or whether it requires modification. Further	 the proviso to section 33(2) (b) when it refers to payment of wages for one month	 also indicates that it relates to an order of discharge or dismissal which comer	 into effect immediately. The payment of one month 's salary or wages	 is to soften the rigour of unemployment that will face the workman	 against whom an order of discharge or dismissal	 has been passed. If the management has to wait for the minimum period prescribed for filing an appeal	 also await the termination of the appeal when one is filed	 considerable time would have elapsed from the date of the original order	 during which period the workman would not have received any salary. [333F 334B] Equitable Coal Ltd. vs Tlgu Singh The Punjab National Bank Ltd. vs Its Workmen [1960] 1 S.C.R. 806	 and Straw. board Manufacturing Co. vs Gobind [1962] Supp. 3 S.C.R. 618 relied 328 The Management of Hotel Imperial vs Hotel Workers ' Union ; 	 and Collector of Customs	 Calcutta vs East India Commercial Co. Ltd. held inapplicable.