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N. Rarichan Vs. the Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1974)IILLJ176Ker
AppellantN. Rarichan
RespondentThe Industrial Tribunal and ors.
Cases ReferredCalcutta State Transport Corporation v. M.A. Noor Alam
Excerpt:
- - ) whatever be the plausibility of the argument, based on the language of the proviso to section 33(2)(b) that the dismissal or discharge and the payment of one month's wages, must both precede the application contemplated by it, it has now been recognised by the supreme court in the decision in state bank of bikaner's case (1963)iillj657sc ,that an application under section 33(2)(b) may well precede an order of discharge or dismissal. this requirement again, we should think, would stand satisfied, if the payment and the application are related to each other in time and space as parts of the same transaction, without the payment necessarily preceding the application......with form k, prescribed for the making of an application, it was mandatory that the payment of one month's wages should have preceded the application ; and as the same had not been done in this case, the application and the approval accorded by the tribunal on the strength of the same were ineffective and of no avail. the proviso to section 33(2)(b) reads as follows: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.form k, prescribed under rule 61(2) of the rules framed under the act, by its relevant portion provides:the workman/workmen discharged/ dismissed under clause (b).....
Judgment:

V.P. Gopalan Nambiyar, J.

1. We think the learned Judge was right ; and no interference is called for in this appeal. The appellant is a labourer who was dismissed on 27-1-1967, the order of dismissal having been served on 21-1-1967. One month's salary or wages of the workman was also paid on 28-1-1967. Before these, even on 12-1-1967, the management had made an application to the Industrial Tribunal, Calicut, for approval of the action under Section 33(2)(b) of the Industrial Disputes Act, as the dismissal for misconduct was connected with a pending industrial dispute. The Tribunal by Ext. P3 order, granted the approval ; and the appellant-labourer filed a writ petition in this Court to quash the said order. The same was dismissed by the learned Judge, whose judgment reported in 1972 K.L.T. 210. is under appeal.

2. Counsel for the appellant stressed the point that on the language of Section 33(2)(b) proviso, read with Form K, prescribed for the making of an application, it was mandatory that the payment of one month's wages should have preceded the application ; and as the same had not been done in this case, the application and the approval accorded by the Tribunal on the strength of the same were ineffective and of no avail. The proviso to Section 33(2)(b) reads as follows:

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.

Form K, prescribed under Rule 61(2) of the Rules framed under the Act, by its relevant portion provides:

The workman/workmen discharged/ dismissed under Clause (b) Sub-section (2) of Section 33 has/have been paid wages for one month,

The applicant prays that the conciliation officer/Board Labour Court/Tribunal may be pleased to approve of the action taken, namely:

(Here mention the action taken under Clause (a) or Clause (b) of Sub-section (2) of Section 33).

(Signature of the applicant.)

Whatever be the plausibility of the argument, based on the language of the proviso to Section 33(2)(b) that the dismissal or discharge and the payment of one month's wages, must both precede the application contemplated by it, it has now been recognised by the Supreme Court in the decision in State Bank of Bikaner's case : (1963)IILLJ657SC , that an application under Section 33(2)(b) may well precede an order of discharge or dismissal. If that be so, in making such an application it seeks difficult to conceive of payment of one month's salary or wages, even before the dismissal or discharge has been effected. As for Form K, the relevant averment relied on proceeds on the basis that there was a dismissal or discharge of the workman concerned, and the requisite payment had been made. If there is no room for the averment of the first part, there is no warrant in insistence on the second, and no truth, if the same is still repeated as an empty formality. For these reasons, we are unable to read as a requirement of the law, that the payment of one month's wages must precede the making of an application under Section 33(2)(b) of the Act.

3. There is another aspect of the matter. In The Straw Board Manufacturing Company's case, supra it has been recognised that it is enough if the dismissal or discharge, the payment of one month's wages or salary, and the making of the application, are all related to each other as parts of the same transaction. This requirement again, we should think, would stand satisfied, if the payment and the application are related to each other in time and space as parts of the same transaction, without the payment necessarily preceding the application. In this case, they have been so related, the application being on 17-1-1967 and the dismissal and the payment of wages, being both, on 28-1-1967.

4. Counsel for the appellant placed considerable reliance on the recent decision of the Supreme Court in Podar Mills Ltd. v. Bhagwan Singh and Anr. : (1973)IILLJ133SC . We should think that, on the facts, the decision is quite distinguishable. The dismissal of the labourer there was on the 8th January. The application for permission under Section 33(2)(b) was also made on the same day, namely, the 8th of January. But the payment of one month's wages was made only on the 2nd February. The Supreme Court on these facts ruled that the rejection of the application by the Tribunal was proper and valid. It is plain that in the case before the Supreme Court, the application was after the dismissal, unlike in the present case, where it was made before the dismissal. This, we think, makes a difference.

5. In a recent decision of the Supreme Court in Calcutta State Transport Corporation v. M.A. Noor Alam : (1973)IILLJ248SC , it has again been stressed that the true test is to find out whether the three things required by the proviso to Section 33(2)(b) form parts of the same transaction and that the difference of a day or a small interval of time between these, does not very much matter. The conduct of the employer was material, and so long as it is plain that the employer wanted these things to take effect as parts of the same transaction, that would be sufficient compliance with the requirement of the proviso to Section 33(2)(b).

6. Counsel for the appellant contended that his case of victimisation had not been properly dealt with by the Tribunal in Ext. P. 3. We agree with the learned Judge that the complaint is unfounded. The learned Judge in his judgment has extracted the relevant paragraph in the written statement of the appellant, where the case of victimisation has been setforth. The case was only this that the long delay, as the appellant would have it, which intervened between the finalisation of the inquiry and the actual order of dismissal or discharge, was only meant to terrorise the appellant for his activities as secretary of a particular trade union. This aspect of the matter has been dealt with in paragraphs 5 and 6 of the Tribunal's order ; and we agree with the learned Judge that the case presented to the Tribunal had received fair and proper attention at the hands of the Tribunal. We see no ground to accede to the appellant's complaint in this respect.

7. We dismiss this appeal but in the circumstances, without costs.


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