1. In those writ appeals the questions involved are the same and the decision in one will cover the other too therefore, we would state the facts in one of the appealsonly
2. W.A. No. 126 of 1962 arises out of an order dated 12th July 1961 passed by the Industrial tribunal, Eramkulam, in M.P. No. 77 of 1961. There was an industrial dispute between the management of the appellant-company and their workers and that dispute was registered as I.D.No. 68 of 1959 Pending that dispute the appellant company took disciplinary action against the 2nd respondent and she was dismissed from service on 7th May 1960. On (sic) May the appellants applied under the proviso to Section 33(2)(B) of the Industrial Disputes Act for approval of their action and that application was M.P. No. 88 of 1960. Pending that appilcation the award in I.D. No. 68 of 1959 was passed by the Tribunal, which was published in meGazette on 12th July 1960, and it became enforceable on the expiry at 30 days thereafter, i.e., on 12th August.
In the meantime, the 2nd respondent filed a complaint wider Section 33-A of the Act on 20th October 1960 against the disciplinary action taken against her by the appellants and that dispute was registered as I.D. No. 42 of 1960 Ultimetly, the 2nd respondent filed an application on 23rd May 1951 seeking permission to withdraw I.D. No. 42 of 1960 and that petition was allowed by the Tribunal onthe next day without notice to the appellants, that awardwas published in the Gazette on 20th June 1961 and there after the appellants filed M.P. No. 77 of 1961 in M.P.No. 88 of 1960 on 22nd June 1961 questioning the jurisdiction of the Tribunal to proceed further with their application for approval under the proviso to Section 33(2)(b) of the Act. That application was dismissed by the Tribunal and against that the appellants filed a writ petition before this Court, which was also dismissed by valulaungam. the appeal is directed against that order.
3. Two objections appear to nave been raised before our learned brother and the same are reiterated before us we would straigntaway dispose of one of them, namely, that the withdrawal of I.D. No. 42 of 1960 by the 2nd respondent amounts to an acceptance of the disciplinary action taken by the appellants, in other words, the contention is that it a proceeding, which is treated as an industrial dispute and in which larger and wider questions covering the action taken by the appellants are involved, is withdrawn by the 2nd respondent, the result is that the action of the appellants must be deemed to have been accepted by the 2nd respondent, and there is therefore no further necessity to consider and approve that action in a more limited proceeding, in which the prima facie nature of the action need alone be considered by the Tribunal.
We are not inclined to accept this contention, the 2nd respondent, under the law, had the right to request the Tribunal to adjudicate upon the validity of the action taken by the appellants and she might exercise that right or might rot choose to do so. But, the approval that is required under the proviso to Section 33(2)(b) is independent of this right; and until the action of me appellants is approved By the Tribunal, the dismissal does not become final (vide Straw Board . v. Govind. AIR 1962 SC 1500). The withdrawal of the complaint or the 2nd respondent will not obviate the legal necessity, for the approval as contemplated By the proviso to Section 33(2)(b); nor will it amount to an acceptance by the 2nd respondent of the legality or the justitiability of the action taken by the appellants, it is thus dear that this argument has no force.
4. The next contention is the more important one in the case. It is contended by the learned aavocate of the appellants that 30 days after the publication of the award in I.D. No. 68 of 1959 the Tribunal became functurs officio and therefore it has no more any jurisdiction to process with or pass any order on merits to M.P. no. 88 of 1960, In support of this contention, our attention is drawn to some passages in some decisions Including two decisions of the Supreme Court and also to an unreported decision of the Madras High Court. The first of these cases is the Straw Board . v. Gutta Mill Workers' Union, AIR 1953 SC 95. In that decision a passage occurs at page 97 of the reports that the State Government had no authority to extend the time for making an award after the time limit originally fixed therefor expired and the adjudicator became functus officio on the expiry on the time specified in the original order of reference, the next case referred to is Martin Burn Ltd. v. R. N. Banerjee AIR 1958 SC 79 wherein also there is a passage at page 81 that the 5th Industrial Tribunal of west Bengal be-came functus ofticio on the expiry of 30 days from the publication of its award with the result that the application could not be disposed of and was accordingly stric-off. Our attention is also drawn to a similar passage in the judgment of Rajagopala Ayyangar J. in Silk Cloth Producers' Association v. State of Madras, 1954-2 Lab LJ 410 (Mad).
5. In none of these cases does the nature of an application under, the proviso to Section 33(2)(b) appear tohave been considered. Regarding the main dispute, I.D. No. 68 of 1959, it is apparent that the industrial tribunal has become functus officio and it has no further jurisdiction to pass any order relating to or touching that dispute. That is all what the passages hereinbefore referred to mean.
6. The position will be considerably clear if it is borne in mind that Were is a distinction between Sub-section 1 and Sub-section 2 of Section 33 and also that prior to the amendment of the section in 1956 there was no such distinction. The old Section 33 recited that during the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer should discharge or punish whether by dismissal or otherwise, any workman concerned In such dispute, save with the express permission in writing of the conciliation officer. Board, or Tribunal. So that, under the old section it we workman was concerned in a pending industrial dispute, no employer could discharge or punish mm, fey dismissal or otherwise, without the express permission in writing of the Tribunal.
The present Section 33 is different, under Sub-section 1 thereof the same provision as existed prior to the amendment is retained regarding discharge or punishment of any workman concerned in the dispute for any misconduct connected with the dispute. Sub-section 2 has been newly added providing, inter alia, for discharge or punishment, by dismissal or otherwise, of a workman concerned in me dispute for any misconduct not connected with the dispute. In the second category, namely, of misconduct not connected with the dispute, the management may discharge or punish the workman concerned m the industrial dispute provided that the workman is paid wages for one month and an application as also been made by the employer to the authority before which the proceeding is pending for the approval of the action taken by the employer.
Interpreting this provision the Supreme Court has held In the decision already referred to in AIR 1962 SC 1500 that the proviso to Section 33(2)(b) contemplates the three things mentioned therein, namely, (a) dismissal or discharge, (b) payment of wages, and (c) making an application for approval, to be simultaneous and to be part of the same transaction. So that, the employer, when, he takes action 'under this sub-section by dismissal or discharge, should immediately pay the employee wages for one month and should also make an application to the Tribunal for approval at the same time. Their Lordships have also pointed out as already indicated, that the dismissal or discharge wouldbe of no effect if the approval is not granted by the Tribunal, and the workman concerned would continue to be in service as if there was no dismissal or discharge. It is thus clear that in the case of action taken under Section 33(1), the employer has to take express permission m writing of the concerned authority before he discharges or punishes the workman; but under Sub-section 2 of me section the employer may discharge or punish the workman;out on so discharging or dismissing, the workman shouldbe paid wages for one month and an application should also be made to the authority before which the Industrial dispute is pending for approval of the action taken by the, employer.
7. if this effect of the amendment is borne in mind the observations of the Supreme Court in both the first Straw Board . case, AIR 1958 SC 79 are easily explainable. In both those cases their Lordships were considering the earlier Act, Section 33 of which resembled onlySub-section 1 of the present Section 33 and not Sub-section 2 thereof. The same applies to the observation of Rajagopala Ayyangar J. in the Silk Cloth Producers' Association case, 1954-2 Lab LJJ 410 also.
8. Another case cited before us is the decision of the Punjab High court in Om Parkash Sharma v. Industrial Tribunal, 1962-2 Lab LJ 272 (Punj). in that case the learned Judge has considered the distinction between Sub-sections1 and 2 of Section 33 of the amended Act; and thee learned, judge also observes that on the expiry of 30 days after the publication of the award the Tribunal becomes functus officio and has no jurisdiction to deal with any matter arising out of or connected with the reference; but, the learned Judge continues, that will not put an and to and application under Section 33(2), because that application has no connection with the industrial dispute, nor does it arise out of that dispute. We are also inclined to think that the proceeding under Section 33(2) is an independent proceeding, and is not merely in the nature of an interlocutory proceeding in the main dispute.
9. It is our further opinion that Sub-section 3 of Section 53 will throw some light on the question. That sub-section lays down that where an employer makes ad application to a Tribunal or other authority under the proviso to Sub-section2 for approval of the action taken by him, the authority concerned, shall, without delay, hear such application and pass, as expeditiously as possible, such draer in relation thereto as it deems fit. The recent decision of the supreme Court in the second Straw Board case makes it clear that the application under the proviso to Sub-section 2 should form part of the same transaction as the dismissal or discharge of the workman and payment of wages for one month. That means that the tiling of the said application should not be delayed.
Sub-section 5 makes it imperative that, when such an application is filed, the authority concerned shall hear such application and pass, as expeditiously as possible, such order as it deems fit. According to us, this provision indicates that the jurisdiction of the Tribunal is not merely to entertain the application, but is also to pass orders thereon and dispose of it on merits. Also, if it gets jurisdiction to entertain the application, it does not lose the jurisdiction merely because it has become functus officio in relation to the main industrial dispute. Its jurisdiction can terminate only after it disposes of the application as contemplated by Sub-section 5 of Section 33.
10. Now we would turn our attention to the unreported decision of the Madras High Court in The Management of Mettur Industries, Ltd. v. Sundara Naidu, W.P. No. 819 of 1958 (Mad) cited by the learned advocate of the appellants. In that case, pending en industrial dispute between the petitioner-Company and its workers, the Company dismissed one of the workers for misconduct and applied under Section 33(2)(b) for the approval of their action. Thereafter, white that application tor approval was still pending, the award in one dispute was given and was published in the gazette. Thirty days also elapsed and the award became enforceable Ultimately, after the said thirty days, the Tribunal refused approval to the petitioner-Company on their application under Section 33(2)(b) and the Company questioned the correctness of that order by way of writ before the High Court of Madras. Ramachandra Iyer, J. accepted the contention of the Company that the Tribunal became functus officio with regard to the main industrial dispute and wherefore It had no further jurisdiction to deal with the application under Section 33(2)(b) of the Act. According to the learned Judge, that application was only of an intericoutory nature, end since the main matter had already been disputed sed, the Tribunal had no further jurisdiction to deal with and dispose of the interlocutory matter. Ramachandra Iyer J. relied on the observation of the Supreme court we nave already referred to in the Martin Burn case in support of his decision. The learned counsel of the appellants argues that this decision supports his contention.
11. It appears to be so. But, it also appears that the attention of the learned Judge was not drawn to Sub-section (5) of Section 33 and also to the effect of the amendments made to Section 33 in 1956. With due respect to Ramachandra Iyer J., we are not inclined to agree with the view that the application under the proviso to Section 33(2)(b) is a mere interlocutory application. As already indicated, it is in the nature of an independent application; and the jurisdiction of the Tribunal, at the time when it received the application, is not taken away by the mere fact that it has be-come functus otttcio with regard to the main dispute.
12. In the result, we confirm the decisions of Vaidialingam J. in both the cases. We make it clear that in disposing of the applications, the Tribunal will be guided by the considerations pointed out by vaidialingam J. in paragraph 36 of his judgment. We also endorse the learned Judge's view that the Tribunal should have issued notice to the appellants before leave was granted for the withdrawal of I. D. No. 42 of 1960.
13. The writ appeals are consequently dismissed with costs. Advocates' fee we fix at Rs. 150/- in each case, of which the 2nd respondent in each case will get Rs. 100/-and the 1st respondent will get Rs. 50/-.