O.H. Mootham, C.J.
1. This is an appeal from the order of a learned Judge dated 12-4-1955 quashing an order of the Labour Appellate Tribunal dated 11-7-1953.
2. The facts are these. The appellant is a limited company which has a cigarette factory at Saharanpur. The first respondent entered the employment of the appellant Company in the year 1948, and in 1950 he was appointed a Supervisor of the Company's Canteen. On the 23-2-1953, he was Placed under suspension and was charged with certain acts of dishonesty in connection with the Company's property and with having disobeyed a lawful and reasonable order. On 27-2-1953, he was served with an order dismissing him from the appellant Company's service, the order being subject to the granting of permission by the Labour Appellate Tribunal.
At that time the appellant Company was of opinion that the permission of the Labour Appellate Tribunal was required under Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, (hereinafter called the Act) as there was then pending before that Tribunal an appeal by the appellant Company against an award made by the State Government on 10-8-1952, in a dispute between the appellant Company and certain of its workmen including the first respondent. Subsequently however the appellant Company was advised that it was unnecessary to obtain the permission of the Labour Appellate Tribunal before dismissing the first respondent, and by a letter dated 22-4-1953, the latter was Informed that his services would be dispensed with on the 26th April following.
3. The first respondent then filed an application before the Labour Appellate Tribunal under Section 23 of the Act in which he averred that he had been discharged from the appellant Company's service in contravention of the provisions of Section 22. Before the Tribunal the appellant Company's contentions were that Section 22 of the Act was not applicable as the first respondent was not a workman within the meaning of the Industrial Disputes Act, 1947, & that the misconduct of the first respondent justified the Company in discharging him.
The Labour Appellate Tribunal took up the second issue first, and as it was of opinion that the appellant Company was fully justified in discharging the first respondent it considered that it was not necessary for it to decide whether the appellant was a workman or not. On the assumption however that the first respondent was a workman it was satisfied that although there had been what It termed a 'technical breach' of Section 22, the application failed, and it accordingly dismissed the latter by its order dated 11-7-1953.
4. The first respondent thereupon filed the petition which has given rise to this appeal. In that petition he challenged the validity of the order of the Labour Appellate Tribunal on the ground that it was made without jurisdiction and was illegal, and the relief which he sought was the quashing of the Tribunal's order and also ofthe order of the appellant Company dated 22-4-1953, terminating his services.
The learned Judge who heard the petition was of opinion that as the Tribunal had assumed that the appellant Company had contravened the provisions of Section 22 it was not entitled to refuse to grant the first respondent relief on the ground that his discharge from the appellant Company's service was justified. He accordingly allowed the petition and quashed the order of the Labour Appellate Tribunal,(5) Now Sections 22 and 23 of the Act read thus:
'22. Conditions of service, etc., to remain unchanged during a certain period. During the period of thirty days allowed for the filing of an appeal under Section 10 or during the pendency of any appeal under this Act, no employer shall-
(a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or
(b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such appeal,save with the express permission in writing of the Appellate Tribunal.
23. Special provision for decision whether conditions of service, etc., changed during pendency of proceedings. Where an employer contravenes the provisions of Section 22 during the pendency of proceedings before the Appellate Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending before it, in accordance with the provisions of this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly.' For the purposes of this appeal the appellant Company concedes that the first respondent is a workman and that accordingly there has been a contravention by it of Section 22 inasmuch as it discharged the first respondent without obtaining the permission of the Appellate Tribunal.
6. The appellant Company contends however that the contravention by an employer of Section 22 only gives the workman concerned a right of direct approach to the Labour Appellate Tribunal under Section 23; that the Appellate Tribunal has then to decide (where the complaint is under Clause (b) of Section 22) whether the employer was justified in discharging or punishing the employee, and if it answers that question in the affirmative it has no alternative but to dismiss the complaint. For the respondent it is urged that in such circumstances the Tribunal is bound to grant relief.
7. We think both arguments to be untenable. It is well settled that Sections 22 and 23 are provisions intended for the protection of the employee, and that the Appellate Tribunal has Jurisdiction to do complete justice between the parties with regard to the matters in dispute and also to give such relief as the nature of the case may require. The jurisdiction of the Appellate Tribunal to enquire into the merits of the act or order of the employer is however subject to the condition that the employer has contravened the provisions of Section 22.
The contravention of Section 22, in other words, isa condition precedent to the exercise by the Tribunal of its powers under Section 23: Automobileproducts of India Ltd, v. Bukmaji Bala, (S)AIR 1955 SO 258 (A). The Labour Appellate Tribunal was therefore in error in investigating the circumstances in which the first respondentwas discharged without first deciding that there had been a contravention of Section 22. The matter is not now however of importance in view of the fact that the appellant Company has conceded for the purposes of this appeal that there has been a contravention of Section 22. The question is whether the Tribunal, having decided that the order of discharge was justified, was obliged to dismiss the complaint.
8. Now assuming that there has been a contravention of Section 22 the obligation placed upon the Appellate Tribunal by Section 23 is 'to decide the complaint as if it were an appeal pending before it'. The Tribunal has to deal with the complaint, which involves an examination of the propriety of the employer's action, as if it were exercising its appellate powers; and in exercise of those powers it may, under Section 9 (7) of the Act, pass such orders as it may deem fit. The position is therefore that the Appellate Tribunal, if it finds the employer's action to be justified, is obliged neither to grant relief to the workman nor to refuse it.
It has a discretion in the matter which it will exercise in accordance with the circumstances. It is however bound to consider whether the failure of the employer to comply with the provisions of Section 22 has resulted in the workman being unfairly dealt with and his interests prejudiced. Such, for example, might be the case where compliance with the terms of the section would have resulted in the postponement of the workman's discharge and the consequent accrual of salary to which otherwise he would not have been entitled. In such a case it is in our opinion open to the Tribunal to grant the workman relief.
9. We have carefully considered the decision of the Tribunal and we are clearly of the view that that body did not apply its mind at all to the question whether, in the circumstances which have occurred, the first respondent was entitled to any relief. We are satisfied that the Tribunal having come to the conclusion that the appellant was justified in terminating the first respondent's services wrongly took the view that no other question arose. It clearly failed to exercise the jurisdiction vested in it when it omitted to consider whether the workman was entitled to any relief on account of the admitted contravention of Section 22.
10. We are therefore of opinion, though for different reasons, that the petition was rightly-allowed and that this appeal must fail. It is accordingly dismissed with costs.