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Prem Nath Motors Vs. Presiding Officer, Industrial Tribunal Delhi and John Nigholson - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 1 of 1979
Judge
Reported in18(1980)DLT111; [1980(41)FLR338]
ActsIndustrial Disputes Act, 1947 - Sections 33(2); Constitution of India - Article 226
AppellantPrem Nath Motors
RespondentPresiding Officer, Industrial Tribunal Delhi and John Nigholson
Cases ReferredState of Punjab v. Amar Singh Harika
Excerpt:
.....the order of dismissal as well as payment of one month's wages as contemplated by the proviso to section 33(2)(b) of the act. 2 had been employed on 20th may, 1963. in respect of certain acts of alleged misconduct charges were framed against him on 18th june, 1964 by the inquiry officer and the inquiry officer found the charges well-founded and correct and thereafter the management of the appellants agreed with the findings of the inquiry officer as contained in his report dated 9th november, 1964 and dismissed respondent no. 1 had-dismissed the application for approval on a preliminary hearing for the alleged failure of the appellants to furnish explanationn for delay in filing the application for approval from the date of the passing of the order of dismissal. it is a case where..........by him by post. in this situation we have no option but to quash the impugned order of the tribunal dated 15.4.1965. (16) the present is not a case of disputed questions of fact being contested in this court disagreeing with the findings of fact recorded by the learned single judge or by the tribunal. it is a case where the tribunal failed to decide an essential question of fact as to the date when the order of dismissal was received by respondent no. 2. (17) during the hearing, respondent no. 2 raised another objection that the writ petition filed in this court was highly belated. as noticed earlier, the order of the tribunal was passed on 15.4.1965. the writ petition was, however, filed in this court on 16.8.1966 and was dismissed on 4th november, 1970 on merits. the learned.....
Judgment:

Yogeshwar Dayal, J.

(1) This is an appeal under Clause 10 of the Letters patent against the judgment of the learned single Judge dated 4th November, 1970 passed in G. W. 647-Dofl966 dismissing the writ petition filed by the appellant under Article 226 of the Constitution for quashing the order dated 15th April 1966 passed by Shri Anand Narain Kaul, Industrial Tribunal, Delhi (respondent No. 1) whereby the Presiding Officer of the said Tribunal had dismissed an application filed by the appellants under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'' for approval of anorderofdismissal passed by the Management of the appellants against John Nicholson (respondent No. 2) in the present appeal.

(2) It appears that the application under Section 33(2)(b) of the Act for approval of action of dismissal taken by the Management of the appeal- lants against respondent No. 2 was filed before respondent No. 1 on 24.11.1964 in view of the pendency of Industrial Dispute No. 170 of 1962 between the appellants and its workman.

(3) Respondent No. 1 dismissed the application for approval by the impugned order on the ground that there is no compliance with the require- ments of the proviso to Section 33(2)(b) of the Act and, thereforee, the appli- cation was not maintainable. This order was passed by the Tribunal during preliminary hearing on the ground that there is no Explanationn for the delay in filing the application for approval after the order of dismissal had been passed and communicated to the workman (respondent No. 2 herein).

(4) The appellants challenged the order of the Tribunal in the afore- said writ petition but the learned single Judge of this Court dismissed the writ petition on the ground that the application for approval has to be simultaneous with the order of dismissal and to be part of transaction of dismissal and did not fulfill the test laid down by the Supreme Court in the case of Strawboard Manufacturing Company v. Gobind : (1962)ILLJ420SC .

(5) Before the learned single Judge, it was contended on behalf of the appellants that for purposes of seeing whether the application for approval was simultaneous with the order of dismissal, the relevant date is the date of communication of the order of dismissal to the workman but the learned single Judge did not agree with the submission and dismissed the writ petition.

(6) The case of the appellants before respondent No. 1 as well as before the learned single Judge was that the application for approval which was filed before respondent No. 1 on 24.1 1.1964 was simultaneous with the order of dismissal as well as payment of one month's wages as contemplated by the proviso to Section 33(2)(b) of the Act. The case of the appellants further was that respondent No. 2 had been employed on 20th May, 1963. In respect of certain acts of alleged misconduct charges were framed against him on 18th June, 1964 by the Inquiry Officer and the Inquiry Officer found the charges well-founded and correct and thereafter the Management of the appellants agreed with the findings of the Inquiry Officer as contained in his report dated 9th November, 1964 and dismissed respondent No. 2 by order dated 16/20th November, 1964 which was received by respondent No. 2 either on 23rd or 24th November 1964 and as stated in the order of dismissal, the money order relating to one month's wages was also sent on 21.11.1964 which was received by respondent No. 2 on 24.11.1964 and though the application for approval was filed before respondent No. 1 on 24.11.1964 it was simultaneous with the act of dismissal and payment of one month's wages and was part of the same transaction as contemplated by the aforesaid decision of the Supreme Court while construing the proviso to Section 33(2)(b) of the Act in the case of Strawboard Manufacturing Co. (supra).

(7) The case of the appellants in appeal before us is that the Industrial Tribunal dismissed the application for approval at a preliminary hearing without any material being there on record and without finding as a fact the date of receipt of money order and/or date of receipt of the order of dismissal by respondent No. 2.

(8) It is also submitted that in fact the Tribunal took no objection to the payment of one month's wages being simultaneous with the order of dismissal but took exception to the so-called un-explained delay between the date of order of dismissal and the filing of application for approval under Section 33(2)(b) of the Act. It was submitted that the application for approval has to be made after the order of dismissal for if the application for approval is made before the order of dismissal, it would be against the decision of the Supreme Court in the aforesaid case of Strawboard Manufacturing Co. In this light, it was further submitted that the effective date of order of dismissal is the date when the order of dismissal is communicated to the workman for even if an order of dismissal is passed but is kept by the Management, it is not effective as against the workman so long as it is not communicated to him.

(9) Section 33(2)(b) of the Act provides as under :

33.'(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the stand- ing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,- (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.'

(10) This section, along with its proviso, for the first time, came up for consideration before the Supreme Court in the aforesaid case of Strawboard Manufacturing Co. The Supreme Court took the view that as opposed to an application for permission contemplated by Section 33(1) of the Act, an application for approval under Section 33(2)(b) of the Act can be filed only after action of discharge or dismissal. It cannot be filed before discharge or dismissal. While interpreting the proviso to Sub-section (2) (b), their Lordships of the Supreme Court observed as follows :

'ASwe have read the proviso, we are of the opinion that it contemplates the 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 part of the same transaction, so that the employer when the takes action under Section 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. When, however, we say that the employer must take action simultaneously or immediately, we do not mean that literally, for when three things are to be done, they cannot be done simultaneously but can only be done one after the other. What we mean is that 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 Section 33A would be affected. The question whether the application was made as part of the same transaction, or at the same time when the action was taken, would be a question of fact and will depend upon the circumstances of each case.'

(11) The order of dismissal bears the date '16/20th November, 1964'. Admittedly, it was dispatched to respondent No. 2 on 20th November, 1964 by registered post. The case of the appellants is that it must have been received by the workman either on 23rd or 24th November 1964 though the workman (respondent No. 2) in his reply to the application for approval did not mention when he had received the order of dismissal. The tribunal has also not given any finding as to when the order of dismissal was received by respondent No. 2. There was no dispute raised by the workman about the delay in the receipt of money order. The case of the appellants is that it was sent on 21st November, 1964 and was received by respondent No. 2 on 24th November, 1964 and since the application for approval was also filed on 24th November, 1964 all the three pre-requisites of the proviso to Section 33(2)(b) were simultaneous or, in any case, the conduct of the appellants shows that the three pre-requisities contemplated in the proviso, namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of the application are parts of the same transaction.

(12) In the case of Kalyani (P. E.) and Air France, Calcutta : decided by the Supreme Court and reported as : (1963)ILLJ679SC , the order of dismissal was made on 28th May, 1960 and was communicated to the workman on 30th May, 1960 and on the same date one month's wages were also tendered to him; and the application for approval was preferred on 30th May, 1960. The application for approval, in these circumstances, was held by the Supreme Court to be properly made. What is to be noticed is that the Supreme Court in that case considered the question in the light of the facts as to when the order of dismissal was communicated to the workman.

(13) The question as to when the order of dismissal becomes effective came up for consideration before the Supreme Court in the case of State of Punjab v. Amar Singh Harika, : (1966)IILLJ188SC where in the Supreme Court in paragraph 11 of their judgment observed :

'INour opinion, thereforee, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on 28th May, 1951.'

(14) In the present case, as the order of dismissal is dated l6/20ch November, 1964', we will have to assume that the date of passing of the order is 20th November, 1964. thereforee, the order of dismissal could not have been dispatched before 20th November, 1964. That it was communicated to him on 23/24th November, 1964 is a bare assertion of the workman- respondent. 'There is no finding of the Tribunal as to when it was received by respondent No. 2. The effective date to be considered is the date of communication to the workman and that was the date considered, in Kalyani's case (supra), by the Supreme Court for the purpose of examining whether the requirements of the proviso to Section 33(2)(b) of the Act had been complied with simultaneously or that the conduct of the employer shows that all the three pre-requisites of the proviso were part of the same transaction.

(15) Respondent No. 1 had-dismissed the application for approval on a preliminary hearing for the alleged failure of the appellants to furnish Explanationn for delay in filing the application for approval from the date of the passing of the order of dismissal. In this connection, it will be noticed that even the respondent No. 2 himself did not disclose in his reply as to when the order of dismissal was received by him by post. In this situation we have no option but to quash the impugned order of the Tribunal dated 15.4.1965.

(16) The present is not a case of disputed questions of fact being contested in this Court disagreeing with the findings of fact recorded by the learned single Judge or by the Tribunal. It is a case where the Tribunal failed to decide an essential question of fact as to the date when the order of dismissal was received by respondent No. 2.

(17) During the hearing, respondent No. 2 raised another objection that the writ petition filed in this Court was highly belated. As noticed earlier, the order of the Tribunal was passed on 15.4.1965. The writ petition was, however, filed in this Court on 16.8.1966 and was dismissed on 4th November, 1970 on merits. The learned single Judge did not think it fit to dismiss the writ petition on the ground of delay. The question of delay could be considered while exercising discretion under Article 226 of the Constitution.

(18) Learned counsel for respondent No. 2, however, submitted that practically 15 years have expired since the passing of the impugned order by the Tribunal and this Court should not interfere with the order of the Tribunal in the light of the delay already occasioned in disposing of the matter by this Court and also in the light of delay in filing the writ petition.

(19) So far as the delay in disposing of the writ petition by this Court is concerned, surely this Court cannot blame any of the parties and no parties should be allowed to suffer for delay on the part of the Court in disposing of matters pending before it. However, as stated earlier, the learned single Judge did not think it fit to dismiss the writ petition on the ground of delay in filing the same and thereforee this objection of the respondent also does not hold good.

(20) Looking at these facts coupled with the fact that there was a serious error of law in the approach of the Tribunal, we consider that it is not a fit case to refuse relief to the appellants on the ground of delay in circumstances of the case.

(21) The impugned order of the Tribunal dated 15.4.1965 is, thereforee, quashed. The writ petition is accepted and the appeal is allowed. It is directed that the Tribunal after reading evidence as to the date when the order of dismissal was communicated to respondent No. 2 shall consider the approval-application afresh in the light of the observations made above. Parties will, however, bear their own costs.


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