(1) In this petition under Articles 226 and 227 of the Constitution, the petitioner-company, Matchwel Electricals (India), Limited, prayed for quashing the order, dated 19th December, 1958 of the Authority under the Payment of Wages Act, directing the petitioner-company under Section 15(3) of that Act to pay Rs. 288.71 nP. to Ram Singh respondent. The facts giving rise to this petition were not disputed and, in brief as follows:
(2) The respondent Ram Singh is an employee of the petitioner-company. A dispute arose between them, and the same was referred to the Industrial Tribunal. Before it could be disposed of, on 16th April, 1958, the petitioner, purporting to act under sub-section (2) of Section 33 of the Industrial Disputes Act, 1947, dismissed Ram Singh from service, with effect from 29th March, 1958. Under section 33(2) of the Industrial Disputes Act, the petitioner-company made an application to the Industrial Tribunal for approval of their action, but the same was dismissed on 10th June, 1958. Thereupon Ram Singh applied to the Authority under the payment of Wages Act, Delhi, claiming wages for the period between 29th March, 1958, and 30th June, 1958, at the rate of Rs. 100/- per mensem. Besides contesting the application on merits, an objection to the jurisdiction of the Authority was raised but without any success. Ultimately on 19th December, 1958, the Authority under the Payment of Wages Act passed the impugned order, which is annexure E to the present petition.
(3) The sole ground on which this order has been assailed is that the claim of Ram Singh respondent for the Payment of Wages after 29th March, 1958, could not be entertained by the Authority under the Payment of Wages Act as Ram Singh has been dismissed, and there was no relationship of employer and workman between the parties. I, however, do not find any merit in this contention.
(4) The petitioner-company claims to have acted under the provisions of sub-section (2) of Section 33 of the Industrial Disputes Act in ordering the dismissal of Ram Singh respondent on 16th April, 1958. This provision of law runs as follows:
'33(2). During the pendency of any such proceedings in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute,--
(a) alter, in regard to any matter not connected with the dispute, the condition of service applicable to the workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such 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 authority before which the proceeding is pending for approval of the action taken by the employer.'
(5) From the above it is evident that when a dispute between the employer and the workman is pending adjudication before the Industrial Tribunal, the employer may, in accordance with the relevant standing order, punish the workman even to the extent of ordering his dismissal for any misconduct not connected with the dispute which is already before the Tribunal, but this right of dismissal or discharge of the workman is not absolute but subject to the limitations contained in the later part of the clause (b) of sub-section (2) of Section 33. Under Section 33(2) a workman cannot be discharged or dismissed unless he has been paid wages for one month and an application seeking approval for the action taken by the employer is made to the authority before which the dispute is already pending.
(6) In the present case, an application seeking the approval of the order of respondent Ram Singh's dismissal, dated 16th April, 1958, was no doubt made to the Industrial Tribunal, but the same was rejected on 10th June, 1958, with the following observations :--
'Considering the evidence mentioned on record, I am of opinion that the facts established do not bring the case within cases (ii)(j) of the standing orders. The action of the management in dismissing Shri Ram Singh from service cannot be approved. He has not been proved guilty of such misconduct as to merit dismissal. I find that the action of the management cannot be approved.'
(7) On behalf of the respondents it is contended that since the Industrial Tribunal did not accord its approval to the petitioner's order, dated 16th April, 1958, Ram Singh continued to be in service, and for recovery of wages that has been denied to him be property invoked the powers of the Authority under the Payment of Wages Act by an application under section 15 of that Act. The petitioner's learned counsel, however, argued that all that the petitioner was required to do under Section 33(2) was to make an application seeking approval of the order of dismissal, and once the application had been made, the order of dismissal became effective irrespective of the fact whether the Industrial Tribunal approved the order or refused to do so.
In this connection, it is pointed out that Section 33(2) nowhere lays down that the order of dismissal passed under that provision of law shall not take effect until it is approved. It is true that these express words are not used, but the language of clause (b) of Section 33(2) of the Industrial Disputes Act XIV of 1947 leaves no doubt that the legislature intended that in cases falling under that clause the workman should not be entirely at the mercy of his employer, and if he is to be discharged for his alleged misconduct it must be with the approval of the authority before whom the dispute is pending. If the ultimate result of an application for approval of the employer's action is not to affect the order of dismissal, there could have been hardly any object in making it obligatory upon the employer to make an application for approval of his action. Such an application is not an idle formality and, in my opinion, the clear intention of law is that an order of dismissal passed under Section 33(2) shall not take effect unless it is approved or affirmed by the authority concerned.
In cases in which the employer's conduct in discharging or dismissing the workman is not approved, the order of dismissal passed by the employer would have no effect, nor would it operate to end the relationship of the workman and employer between the parties concerned. In the instant case, since the Tribunal had refused to give its approval to the order of the petitioner company dismissing Ram Singh, the authority under the Payment of Wages Act was perfectly competent to entertain and decide his application for the payment of wages.
(8) Thought in the petition the order of the authority under the Payment of Wages Act has been attacked on merits as well, the learned counsel has quite rightly refrained from addressing any arguments on that point, in view of the well established rule that in present proceedings the High Court does not act as a Court of Appeal and would not interfere where the subordinate tribunal had acted within its jurisdiction.
(9) For the reasons stated above, I find no merits in this petition and dismiss the same with costs.
(10) Petition dismissed.