1. This appeal raises a very short point for our decision. The appellant,the Tata Iron & Steel Co. Ltd., Jamadoba, filed an application under s.33(2)(b) of the Industrial Disputes Act, 1947 (No. 14 of 1947) (hereinaftercalled 'the Act'), before the Central Government Industrial Tribunal,Dhanbad (hereinafter called 'the Tribunal'), asking for its approvalof the action which it proposed to take against its employee, the respondent D.R. Singh. This application was made by the appellant, because certain industrialdisputes were pending at the relevant time between the appellant and itsemployees under References Nos. 45, 56, 63 and 65 of 1961. This application wasopposed by the respondent who filed his written statement. At the hearing ofthe application, the appellant urged before the Tribunal that though it hadmade the present application as a matter of abundant caution, its case was thatit was not necessary to apply under s. 32(2), because the respondent was notconcerned with the industrial disputes which were pending between the appellantand its employees in the different References to which we have alreadyreferred. In other words, the appellant wanted the Tribunal to consider thequestion as to whether the respondent was a workman concerned in the relevant industrialdisputes at all, before dealing with the merits of its application. Theappellants case was that one of the conditions precedent for the applicabilityof s. 33 is that the workman against whom the employer seeks to take actionfalling under s. 33(2), must be a workman concerned in the main industrialdisputes; if he is not so concerned, s. 33(2) will not apply. In order to avoidany complications and with a view to save itself from the charge that it hadcontravened s. 33 of the Act, the appellant had no doubt made an application asa precautionary measure; that is why it wanted the Tribunal to consider itscontention that s. 33 did not apply as preliminary point. The Tribunal took theview that the appellant could not raise such a contention. It held that if theappellant thought that s. 33 did not apply, it should withdraw the applicationand take the consequences. On that view, it refused to entertain the plearaised by the appellant and proceeded to deal with the merits of theapplication. In the result, the Tribunal was not satisfied that a prima faciecase had been made out for the dismissal of the respondent, and so, approvalwas not accorded to the action which the appellant wanted to take against therespondent and its application was accordingly dismissed. It is against thisorder that the appellant has come to this Court by special leave.
2. The learned Solicitor-General for the appellant contends, and we thinkrightly, that the Tribunal was in error in not dealing with the preliminarypoint as to whether s. 33 applied to the facts of this case. It is plain thatin a situation like the present, even if the appellant took the view that theworkman against whom it was taking action was not a workman concerned with themain industrial disputes, it would be justified in refusing to take the risk ofdeciding the said point for itself. It would be legitimate for an employer likethe appellant to make an application under s. 33 without prejudice to his casethat s. 33 did not apply. The question about the construction of the words'a workman concerned in such dispute' which occur in s. 33(1) and (2)has been the subject matter of judicial decisions and somewhat inconsistentviews had been taken by different High Courts on this point. Some High Courtsconstrued the said words in a narrow way, vide New Jehangir Vakil Mills Ltd.,Bhavnagar v. N. L. Vyas & Ors.  2 LLJ 575 while others put abroader construction on them, vide Eastern Plywood .v. Eastern Plywood . v. Ethirajulu (T.R) & Others  I LLJ 63 and AndhraScientific Company Ltd. v. Seshagiri Rao (A.)  2 LLJ 717. Thisproblem was ultimately resolved by this Court in its two recent decisions,viz., New India Motors (Private) Ltd. v. Morris (K.T.) : (1960)ILLJ551SC andDigwadih Colliery v. Ramji Singh  II LLJ 143 In this latter case thisCourt considered the conflicting judicial decisions rendered by the differentHigh Courts and has approved of the broader construction of the words'workmen concerned in such dispute'. Where judicial decisionsdiffered on the construction of the words, 'workmen concerned in suchdispute', it would be idle and unreasonable to suggest that the employershould make up his mind whether s. 33 applies or not, and if he thinks that ii33 does not apply, he need not make the application; on the other hand, if hethinks that s. 33 applies, he should make an application, but then he cannot bepermitted to urge that the application is unnecessary. Such a view is, in ouropinion, wholly illogical and unsatisfactory. Therefore, we must hold that theTribunal was in error in not considering the preliminary point raised by theappellant that the respondent was not a workman concerned with the mainindustrial disputes and as such, the application made by it was unnecessary.
3. That raises the question as to the Course that we should adopt in dealingwith the merits of the present appeal. Logically, it would be necessary to makea finding on the preliminary point raised by the appellant before the meritsconsidered, because if the appellant is right in contending that the respondentis not a 'workman concerned with such disputes' within the meaning ofs. 32(2), the application would be unnecessary and there would be nojurisdiction in the Tribunal either to accord or to refuse approval to theaction proposed to be taken by the appellant against the respondent. In thepresent case, however, we do not propose to adopt such a course. The orderterminating the services of the respondent was passed on December 4, 1961 andit was to take effect from December 9, 1961. The award was pronounced by theTribunal on October 5, 1962, and when the appeal has come for final disposalbefore us, more than three years have elapsed since the date of dismissal ofthe respondent. The learned Solicitor-General fairly conceded that theappellant has come to this Court not so much to enforce its order of dismissalagainst the respondent, as to have a decision from this Court on the point oflaw raised by it before the Tribunal. Accordingly, we have decided that pointin favour of the appellant; but having regard to the long passage of timebetween the date of the impugned order and the date when we are pronouncing ourjudgment in the present appeal, we think it would be inexpedient and unjust tosend the matter back to the Tribunal with a direction that it should decide thepreliminary point raised by the appellant as to whether the respondent is a'workman concerned in such disputes' within the meaning of s. 33(2)of the Act. That is why though we have reversed the finding of the Tribunal onthe preliminary point, we do not propose to give this litigation any furtherlease of life.
4. In the result, without examining the merits of the findings recorded bythe Tribunal for not according approval to the dismissal of the respondent, wedirect that the appeal fails and is dismissed. There would be no order as tocosts.
5. Appeal dismissed.