K.S. Hegde, J.
1. These writ petitions are filed by a common petitioner. Respondent 2 in each one of these petitions is an ex-employee of the petitioner. These petitions raise common questions of law and fact and hence they can be conveniently dealt with in one order.
2. In these petitions, under Art. 226 of the Constitution of India, the petitioner complains that respondent 1 has refused to accord approval for the dismissal of his four workmen (respondent 2 in each of these petitions, who will be hereinafter referred to as 'workmen') on patently erroneous grounds and therefore he seeks to have those orders quashed.
3. Respondent 1 refused to accord the approvals prayed for under S. 33(2)(b) of the Industrial Disputes Act, 1947 (to be hereinafter referred to as the 'Act') on two grounds, viz;
(i) the petitioner having cancelled the orders of dismissal of the 'workmen' made on 17 July 1963 was incompetent to dismiss them again on 28 July 1963 on the very grounds on which the previous orders of dismissal were based,
(ii) no approval can be accorded since the petitioner has not satisfied the conditions mentioned in the proviso to S. 33(2)(b) of the Act.
4. The facts material for the present purpose may be briefly stated thus : the 'workmen' were the employees of the petitioner. It is alleged that on 26 June 1963, there was a rioting in the petitioner's factory. In that connexion the petitioner framed certain charges against the 'workmen', held an enquiry, came to the conclusion that they were guilty of the charges levelled against them, and on 17 July 1963, the union of which the missal from service with effect from 19 July 1963. On 23 July 1963, the union of which the 'workmen' were members brought to the notice of the petitioner that on the date the petitioner dismissed the 'workmen', there was an industrial dispute pending before respondent 1 and therefore the petitioner was incompetent to dismiss the 'workmen', except in accordance with the provisions contained in S. 33(2)(b) of the Act. The petitioner then realized that the orders of dismissal made by him on 17 July 1963 were invalid in law. Hence he revoked those orders as per the communication dated 28 July 1963; but by means of that very communication, he again dismissed the 'workmen'; at about the same time filed applications under S. 33(2)(b) to respondent 1 seeking approval of the action taken by him; and sent by money order to the 'workmen' one month's wages as required by S. 33 along with the back-wages due. It may be noted that 28 July 1963 happened to be a Sunday. Therefore, the petitioner could file applications under S. 33 of the Act only on 29 July 1963 which he did. He also sent the wages due to the workmen by money order on that very day, viz., 29 July 1963, which the 'workmen' refused to accept. To the applications filed by the petitioner the 'workmen' filed their written objections. In those objections they raised several grounds in opposition to the applications in question. Respondent 1 did not go into all those objections. He refused to accord approval to the action taken by the petitioner on the two grounds mentioned above, viz., that the petitioner having cancelled the orders of dismissal made on 17 July 1963 was incompetent to make fresh orders of dismissal on 28 July 1963 and the petitioner had failed to comply with the requirements laid down in the proviso to S. 33(2)(b) of the Act.
5. In his communication dated 28 July 1963 this is what the petitioner informed the workmen :
'Further to the notice dated 17 July 1963 you are hereby informed that the above dismissal order stands cancelled. You are dismissed from service with effect from 28 July 1963. As proceedings are pending before the conciliation officer, Bangalore, in respect of the dispute relating to wages, etc., and your misconduct is not in connexion with that dispute, application has been filled before the Conciliation Officer for approval, under S. 33(2)(b) of the Industrial Disputes Act, of the action taken against you. In addition to the amount of Rs. . . . . . (less deductions) tendered to you on . . . which you refused to receive, you are being paid wages from 18 to 27 July 1963 the date of this order, as also one month's wages under S. 33(2)(b). The amount of ... is sent to you today by separate postal money order.'
6. From this communication, it is evident that what the petitioner did was merely to revoke the orders of dismissal made on 17 July 1963 and not to condone the misdeeds of the 'workmen'. The reason for so revoking the orders of dismissal is also obvious. Therefore, there is no substance in the contention that charges levelled against the 'workmen' stood withdrawn as a result of the communications in question. There is also no merit in the contention that the petitioner having cancelled the orders of dismissal made on 17 July 1963, should have held a fresh enquiry against the 'workmen'. What he has revoked is only the orders of dismissal and not the findings reached at the enquiry. The revocation of the orders of dismissal became necessary in order to comply with the requirements laid down in S. 33 of the Act. Further the orders made on 17 July 1963 are invalid in law and therefore inoperative. In the eye of law, they had no existence. Despite those orders, the 'workmen', in law, continued to be the 'workmen' of the petitioner. The resulting position being that those 'workmen' were dismissed for the first time only on 28 July 1963, respondent 1 was clearly in error in holding that the communication sent by the petitioner on 28 July 1963 to the 'workmen' cancelled all the earlier proceedings. This is an error apparent on the face of the records.
7. Now coming to the second ground on which respondent 1 refused the prayer of the petitioner, what is necessary to decide is whether in fact the orders of dismissal, the applications under S. 33(2)(b) and the offer of payment of one month's wages were made as parts of the same transaction. Dealing with this question, the Supreme Court observed as follows in Starboard Manufacturing Company v. Gobind [1962 - I L.L.J. 420] :
'The proviso to S. 33(2)(b) of the Industrial Disputes Act . . . lays down that no 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 authorities before which the proceeding is pending for approval of the action taken by the employer. It will be clear that two kinds of punishment are subject to the conditions of the proviso, namely, discharge or dismissal. Any other kind of punishment is not within the proviso. Further the proviso lays down two conditions, namely :
(i) payment of wages for one month; and
(ii) making of an application by the employer to the authority before which the proceeding is pending for approval of the action taken.
When the proviso lays down the condition as to payment of one month's wages, all that the employer is required to do in order to carry out that condition is to tender the wages to the employee. But if the employee chooses not to accept the wages, he cannot come forward and say that there has been no payment of wages to him by the employer. Therefore, though S. 33 speaks of payment of one month's wages, it can only mean that the employer has tendered the wages and that would amount to payment, for otherwise a workman could always make the section unworkable by refusing to take the wages.'
8. Dealing with the proviso, their lordships held that that proviso contemplates three things mentioned therein, namely,
(i) dismissal or discharge,
(ii) payment of wages, and
(iii) making of an application for approval,
to be simultaneous and to be parts of the same transaction, so that the employer when he takes action under S. 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. The employer's conduct should show that the three things contemplated under the proviso, namely,
(i) dismissal or discharge,
(ii) payment of wages, and
(iii) making of the application,
are parts of the same transaction. If that is done, there will be no occasion to fear that the employee's right under S. 33A would be affected. The question whether the aforementioned conditions were fulfilled is a question of fact depending upon the circumstances of each case.
9. The principles laid down in Starboard Manufacturing Company case [1962 - I L.L.J. 420] (vide supra) were affirmed by the Supreme Court in P. K. Kalyani v. Air France [1963 - II L.L.J. 679]. In the light of these established in these cases, it can be held that the orders of dismissal, the payment of wages and the making of the applications were plants of the same transaction.
10. The applications in question appear to have been prepared and signed on 27 July 1963 which was a Saturday. According to the petitioner, he could not file the applications on that date nor on the next day which was a Sunday. Those applications were filed on 29 July 1963. The wages were sent by means of money orders on 29 July 1963. Notices of dismissal were given on 28 July 1963. In these circumstances, there can be hardly any doubt that the orders of dismissal, the making of the applications under S. 33(2)(b) and sending of the wages by money orders were parts of the same transaction. That being so it must be held that the petitioner has complied with the conditions laid down in the proviso to S. 33(2)(b) of the Act. Respondent 1 committed a patent error of law in holding that the conditions laid down in the proviso in question have not been satisfied. The error committed by respondent 1, in this regard also, is an error apparent on the face of the records.
11. As both the grounds relied on by respondent 1 have been held against the 'workmen', these petitions have to be allowed and the impugned orders quashed. But, as noticed earlier, respondent 1 had not gone into the merits of the rest of the contentions raised on behalf of the 'workmen.' We are told that the dispute which was pending before him is no more pending and therefore respondent 1 has become functus officio. Hence the interested parties will have to take appropriate steps to enforce their rights. It is not necessary for us to decide what those steps should be.
12. In the result, these petitions are allowed and the impugned orders are quashed. No costs.
Govinda Bhat, J.
13. I agree that the impugned orders should be quashed.