Full Judgment Text
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PETITIONER:
STATE BANK OF BIKANER
Vs.
RESPONDENT:
BALAI CHANDER SEN
DATE OF JUDGMENT:
14/08/1963
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION:
1964 AIR 732 1964 SCR (4) 703
ACT:
Industrial Dispute-Application for approval moved before
discharge-Validity of the application-Industrial Disputes
Act (14 of 1947), s. 33(2)(b.)
HEADNOTE:
The respondent while working as an assistant cashier of the
appellant-bank, received Rs. 4,100/- but denied having
received that amount and stated that he was paid only Rs.
4,000/-. He was suspended and charge-sheeted for giving
false statements to the manager. An enquiry was held. The
enquiry officer found that the charges framed against the
respondent had been proved and he recommended that he should
be-discharged from service of the bank. The bank agreed to
discharge him. Before passing the actual
404
order of discharge against the respondent, the bank applied
under s. 33(2)(b) of the Industrial Disputes Act for
approval of the action proposed to be taken against the
respondent. The respondent was however, actually discharged
after this application was made. The Labour court refused
to approve the action of the bank, holding on the basis of
Strawboard Manufacturing Co’s case that such approval should
have been sought after the actual discharge had been made.
Held:(1) It was immaterial under s. 33(2)(b) of the
Industrial Disputes Act whether the application for approval
of the discharge of the workman was made before or after the
actual order of discharge.
(2)The Strawboard Manufacturing Co.’s case lays down that
the application for approval can be made after the action
has been taken and when this happens the employer is
required to fulfill the three conditions as laid down in the
proviso to s. 33(2)(b), namely, (i) the dismissal or
discharge of employee (ii) payment of wages and (iii) the
making of the application, as parts of the same transaction.
Strawboard Manufacturing Co. v. Govind, [1962] Supp. 3
S.C.R. 618, explained.
(3)There is nothing in principle against the employer making
an application under S. 33(2)(b) of the Act for approval of
the proposed action before the actual action is taken.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 516 of 1963.
Appeal by special leave from the order dated September 20,
1962, of the Central Government Labour Court at Dhanbad in
Application No. L. C. 113 of 1962.
B.Sen, I. B. Dadachanji, O. C. Mathur and Ravinder
Narain, for die appellant.
Janardan Sharma, for the respondent.
August 14, 1963. The judgment of the Court was delivered by
WANCHOO J.--This is an appeal by special leave against the
order of the Central Government Labour Court at Dhanbad.
The respondent was in the service of the appellant-bank’s
branch at Calcutta and worked as an assistant cashier. On
June 17, 1961, one Shankerlal applied for telegraphic
transfer of Rs. 4,000/- from Calcutta to Sujangarh and
handed over currency notes of Rs. 100/each to the
respondent. As the respondent was counting
405
the notes, Shankerlal remembered that he had given 41 notes
instead of 40 to the respondent and requested him to return
the bundle of notes for verification. The respondent
however refused to return the notes saying that the amount
given to him was Rs. 4,000/- and not Rs. 4,100/-.
Shankerlal went back to his shop and verified that he had
taken 41 notes instead of 40 and had thus handed over one
note of Rs. 100/- extra to the respondent, in connection
with the telegraphic transfer. He then came back to the
bank and complained to the Manager about this. The manager
ordered the chief cashier to close the cash in the hands of
the respondent and to check the amount in his hand with the
books. The chief cashier found on checking that there was
one note of Rs. 100/- extra with the respondent. The
manager asked the respondent to hand over the extra note but
the respondent refused to do so saying that it belonged to
him. In explanation he said that it had been given to him
by Ms mother. The manager immediately took steps to verify
this statement and deputed the chief cashier along with
another person to the respondent’s house to make necessary
inquiries. But at the house of the respondent both his
mother and father said that they had not given a hundred-
rupee note to the respondent.
Thereafter the respondent was told what his parents had said
and asked what he had to say further. The respondent then
came out with another story that the note was given to him
by a tenant of the building in which he lived. He gave out
the name of the tenant as Mondal. The manager again sent
the same persons to make enquiries from Mondal but it was
found that there was no person of the name of Mondal in that
building. The bank therefore decided to take disciplinary
proceedings against the respondent and handed over a charge-
sheet to him. The respondent was also suspended from the
bank’s service. Thereafter an enquiry was conducted against
the respondent. The enquiry officer came to the conclusion
that the two charges framed against the respondent had been
proved and recommended after taking into consideration the
past service and conduct of the respondent that he should be
discharged from the service of the bank. Thereafter
according to the rules prevalent in the bank the respondent
was given notice
406
to show cause why he should not be discharged. His expla-
nation was taken into account and thereafter the bank
decided to discharge him. So on December 27, 1961, the bank
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applied under s. 33(2)(b) of the Industrial Disputes Act,
No. 14 of 1947, for approval of the action proposed to be
taken against the respondent. It may be added that after
this application was made, the bank’s case is that it
actually discharged the respondent on January 15, 1962.
The application under s. 33 (2)(b) finally came up for
disposal before the labour court. That court held relying
on a decision of this Court in Strawboard Manufacturing Co.
v. Gobind(1) that as the application had been made for
approval of the proposed discharge and before the actual
discharge of the respondent, it was not maintainable.
Consequently it dismissed the bank’s prayer for approval of
the proposed action. The present appeal by special leave is
against this order of the labour court.
The main contention of the appellant is that the labour
court was not right in holding that the application was not
maintainable on the ground that it had been made for
approval of the proposed action and not after the action had
been taken. It is urged that the decision of this Court in
Strawboard Manufacturing Co.’s, case(1) has been
misunderstood by the labour court and this Court did not lay
down in that case that an application under s. 33(2)(b)
would not be maintainable if it is made by an employer after
he had concluded the enquiry and decided to impose a certain
punishment but had not actually imposed it. We are of
opinion that this contention must prevail.
The contention in the Strawboard Manufacturing Co.’s case(1)
was that the application for approval must be made before
the employer takes action and that view was negatived. In
that case what the employer had done was to make the enquiry
and decide to dismiss the employee. The order of dismissal
was passed on February 1, 1960 and on the same day an
application was made to the tribunal for approval of the
action taken. The tribunal took the view that the
application for approval had been made after the dismissal
of the employee and the same should have been made before
dismissing him. That
(1) [1962] SUPP. 3 S.C.R. 618.
407
view was held by this Court to be incorrect. This Court
held that s. 33 (2) (b) requires the employer to do three
things contemplated in the proviso, namely (1) the dismissal
or discharge of the employee, (2) payment of wages and (3)
the making of the application as parts of the same
transaction. That case, however, did not lay down that if
an employer takes the precaution of making an application
after the necessary enquiry-and before actually taking any
action-for approval of the proposed action, such an
application would not be maintainable. That case was
concerned with the latest time by which the employer must
make the application for approval after he had taken the
action of which the approval was sought. But there is
nothing in s. 33 (2) (b) which requires that an application
for approval can only be made after the action has been
taken. We see nothing in principle against the employer
making an application under s. 33 (2) (b) for approval of
the proposed action before the actual action is taken. Such
a course on the part of the employer would, if anything, be
more favourable to the employee and would not in our opinion
be against the provisions contained in s. 33 (2) (b). We
are therefore of opinion that the labour court was wrong in
holding that an application made by an employer under s. 33
(2) (b) for approval of the action he proposes to take is
not entertainable and that such an application must
necessarily be made after the action of which approval is
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sought is taken. All that the Strawboard Manufacturing
Co.’s case(1) lays down is that the application can be made
after the action of which the approval is sought has been
taken and that when this happens the three conditions in the
proviso to s. 33 (2) (b) must be shown to be parts of the
same transaction. But if an employer chooses to make an
application under s. 33 (2) (b) for approval of the action
he proposes to take and then takes the action we find
nothing in s. 33(2)(b) which would make such an application
not maintainable. Such an application in our opinion would
not be contrary to the provisions of s. 33 (2) (b) read with
the proviso thereof and would be maintainable. The view of
the labour court therefore that the application by the
appellant
(1) [1962] Supp. 3 S.C.R. 618.
408
in the present case was not maintainable must fail.
This brings us to the question whether approval should be
granted to the action proposed to be taken by the appellant-
bank. It appears that the respondent could not appear
before the labour court on the date on which it decided the
matter, on the ground that he was ill. He had submitted a
medical certificate in that connection. The labour court
however decided to proceed with the matter and dismissed the
application on the ground that it was not maintainable.
Learned counsel for the respondent prays that in the
circumstances the matter should be remanded to the labour
court to enable the respondent to appear. We find however
that the respondent had filed a written statement in reply
to the bank’s application in which he controverted the facts
on which he was ordered to be discharged. Considering that
the matter has been pending since 1961 we do not think that
this is a case where a remand is called for. The appellant
relied on the enquiry proceedings, copies of which were
filed with the application ; and all that the tribunal has
to see when dealing with an application under s. 33(2) (b)
is whether the employer had conducted the enquiry properly
and whether the action taken or proposed to be taken was
bona fide and not due to victimisation or unfair labour
practice. We have been taken through the enquiry papers and
we are of opinion that there is nothing in them to show that
the enquiry was not properly conducted. Nor is there
anything to show that the respondent was victimised or the
proposed action is the result of any unfair labour practice.
It is true that the respondent said in his written statement
that the enquiry was merely a pretence of an enquiry and was
held in utter disregard of the rules of natural justice and
also that he had been victimised. But besides making these
allegations the written statement does not show in what
manner the enquiry was not fair and proper and why the
respondent was victimised. We arc of opinion that the
enquiry held in this case was fair and proper and in
accordance with the principles of natural justice and the
respondent had full opportunity to defend himself. We are
also satisfied that there is no question of victimisation or
unfair labour practice. Therefore the approval
409
sought for must be granted.
We therefore allow the appeal, set aside the order of labour
court and grant the application of the appellant-bank dated
December 27, 1961 and approve the proposed action. In the
circumstances we pass no order as to costs.
Appeal allowed.
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