Full Judgment Text
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PETITIONER:
SYNDICATE BANK LTD.
Vs.
RESPONDENT:
K. R. V. BHAT
DATE OF JUDGMENT:
22/08/1967
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
HIDAYATULLAH, M.
CITATION:
1968 AIR 231 1968 SCR (1) 327
CITATOR INFO :
R 1990 SC1080 (10,17)
ACT:
Industrial Disputes Act, 1947 (14 of 1947) s. 33--Dismissal
of employee with immediate effect--Dismissed employee files
appeal--Appeal dismissed--Effective date of dismissal-
Industrial dispute referred after original dismissal order
but before disposal of appeal--If necessary to comply with,
proviso to s. 33(2)(b).
HEADNOTE:
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 s. 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 s. 33 (2) (b) of the Act. In appeal to this Court.
Held:There was no contravention of s. 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
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considers whether the order of dismissal has to be sustained
or whether it requires modification. Further, the proviso
to s. 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. v. Tlgu Singh [1958] 1. L.L.J. 793 The
Punjab National Bank Ltd. v. Its Workmen [1960] 1 S.C.R.
806, and Straw. board Manufacturing Co. v. Gobind [1962]
Supp. 3 S.C.R. 618 relied
328
The Management of Hotel Imperial v. Hotel Workers’ Union
[1960] 1 S.C.R. 476, and Collector of Customs, Calcutta v.
East India Commercial Co. Ltd. [1963] 2 S.C.R. 563 held
inapplicable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil 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 S. 33A, of the
Industrial Disputes Act, 1947 (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
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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
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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
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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 s. 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 s. 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 s.
33 of the. Act.
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 s. 33A. They further contended that
there was no contravention ’of s. 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 s. 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 s. 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 s.
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 s. 33 of the Act, which gives a right to
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the respondent to invoke the jurisdiction of the Tribunal,
under s. 33A of the Act.
After having held that there is a contravention, of s. 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 s. 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 s. 33, of the
Act, arises, in which
332
case, the complaint, under S. 33A, is not maintainable, in
law. In an enquiry, under S. 33A, the first question that
the Tribunal will have to consider, is regarding the
contravention, by the employer, of the provisions of S. 33
of the Act. If this issue is answered against the employee,
nothing further can be done, under S. 33A, of the Act. This
position has been settled, by the decisions of this Court,
in Equitable Coal, Ltd. v. Algu Singh (1) and The Punjab
National Bank Ltd. v. 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.
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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 S. 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 s. 33(2), counsel points out, is to the effect that the
employer has
(1) [1958] I L.L.J. 793.
(2) [1960] 1 S.C.R. 806.
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 s. 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. v. Govind(1), in construing the proviso to s.
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
s. 33 of the Act. The management must definitely know, as
to when they have to take the necessary action, under the
proviso to s. 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 s.
33(2)(b), so that he could approach the Industrial Tribunal,
by way of a complaint,, under s. 33A, of the Act. A reading
of the material provisions of s. 33 shows that the
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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 s. 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 s. 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 s.
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 s. 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 s. 33(2)(b). The natural and reasonable in-
terpretation, to be placed on s. 33, is, in our opinion,
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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 s. 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) [1960] 1 S.C.R. 476.
335
Calcutta v. 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 S. 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.
(1) [1963] 2 S.C.R. 563, 568
CI(a)--8
336