D.M. Bhandari, J.
1. This is a petition under Article 226 of the Constitution of India praying that a writ of certiorari or any other appropriate writ or direction or order be issued against respondent 1, the industrial tribunal, Rajas-than, Jaipur, after quashing his order dated 7 January 1958, directing him to decide the application made by the petitioners under Section 33(2)(6) of the Industrial Disputes Act, 1947 (hereinafter called the Act), in accordance with law.
2. The petitioners own and manage several cement manufacturing factories, one of which is the Lakheri Cement Works at Lakheri in the State of Rajasthan. Sri Hari-prasad, respondent 2, was a workman employed in the petitioners works at Lakheri as 'C' grade electrician in the electrical department. On 29 June 1957, respondent 2 was served with a chargesheet for the various acts of misconduct alleged to have been committed by him during the period from 11 May 1957 to 27 June 1967. He was suspended on 29 June 1957. It is stated in the writ petition that a full-fledged enquiry was held against Mm on 3 July and 17 July 1957, and as a result of such enquiry respondent 2 was found guilty of the charges levelled against him. By the order dated 18 July 1957, respondent 2 was dismissed with effect from 29 June 1957. Respondent 2 was further asked to collect his dues from the company's cash office on or after 20 July 1957. An application dated 29 July 1957 under Section 33(2)(b) of the Act was also despatched to respondent 1 on 19 August 1957, and it was received by the tribunal on 26 August 1957. On this application, notice was given by respondent 1 to respondent 2, who submitted a written reply. It appears that certain preliminary objections, which we need not mention, as they are not material for the purposes of this writ petition, were taken on behalf of respondent 2, during the course of proceeding. Respondent 1 suo motu raised two points regarding the non-maintainability of the application. The first point was that respondent 2 was not paid wages for one month prior to or simultaneously with the order of dismissal and the second was that the application under Section 33(2)(b) was not made to the tribunal prior to or simultaneously with the order of dismissal. By his order dated 7 January 1958, which is challenged by this writ petition, respondent 1 overruled the other contentions raised by respondent 2 but held that the petitioner had committed breaches of the provisions of Section 33(2)(b) inasmuch as the wages for one month were not paid and so also the application required to be made under the proviso to that sub-section was not made prior to or simultaneously with the order of dismissal. He expressed the view that it was extremely doubtful that order under Section 33(2)(b) could be passed so as to operate retrospectively from the date of suspension of respondent 2. He further held that the application for approval was not made within a reasonable time. On the point of the payment of one month's wages, the petitioners had submitted an affidavit on behalf of the company that in pursuance of the dismissal order a voucher for the dues of respondent 2 including one month's wages payable under Section 33(2) of toe Act was prepared on 20 July 1957, but he failed to collect it. According to the voucher prepared out of the wages amounting to Rs. 84.40, a sum of Rs. 79.42 were deducted on various grounds, leaving the sum of Rs. 4.98 as payable. Respondent 1 was of the opinion that the workman had no opportunity to contest the validity of those deductions, and that there was no sufficient compliance of the proviso regarding the advance payment of one month's wages. The tribunal refused to treat these breaches on the part of the petitioners as merely technical and the application was dismissed summarily.
3. In this writ petition it is urged on behalf of the petitioners that the respondent 1 failed to exercise the jurisdiction vested in him in dismissing the application for approval submitted by the petitioners summarily. On the point of wages it is submitted that one month's wages must be demeed to have been paid by the petitioners to respondent 2 as required by proviso of Section 33(2) inasmuch as respondents was asked by the dismissal order to collect his dues on 20 July 1957, and the petitioners had prepared a voucher for the payment of wages after making such deductions as they were entitled to do under the law and kept it ready for payment to respondent 2 on that date but since he did not come to collect the amount of the voucher, it was credited to the unpaid wages account on 31 July 1957, and the said sum is still lying to his credit in the unpaid register. The petitioners have also justified the various deductions made by them. On the question of delay in making the application, it is submitted that the application which was filed before the tribunal was signed and verified on 29 July and thereafter time was taken in preparing the translations of the various documents to be submitted with the application. Simultaneously the petitioners were taking advice from their head office which was at Bombay. It is urged that the petitioners had furnished sufficient reason for the time taken in filing the application before the tribunal. Lastly, it is also contended that the tribunal could not have dismissed the application for approval of the action taken by them against respondent 2 without going into its merits.
4. Notice of the writ application was given to the respondents but no reply has been submitted by any of the respondents. But Sri Brij Sunder Sharma, however, appeared on behalf of respondent 2 and has opposed the writ application mainly on the ground that the order of the tribunal was not illegal and was just and proper and could not be challenged before us by way of the writ petition.
5. The main question that arises for determination in this writ application relates to the interpretation of Sub-sees. (2) and (5) of Section 33 of the Act; Section 33 inter alia lays down the circumstances and conditions under which an employer may dismiss or discharge a workman during the pendency of any proceeding before a labour court or tribunal or National Tribunal in respect of an industrial dispute. If the workman concerned in such dispute is sought to be dismissed or discharged for any misconduct connected with the dispute, he cannot do so 'save with the express permission in writing of the authority before which the proceeding is pending.' If the workman falls within the category of protected workman, the employer is not authorized to dismiss him whether the cause of dismissal is connected with the dispute or not, 'save with the express permission in writing of the authority before which the proceeding is pending.' The provisions find place in Sub-sees. (1) and (3) respectively. Then there is Sub-section (2) which inter alia provides for the cases of dismissal or discharge of a workman for any misconduct not connected with the dispute and it is this subsection which I have to consider in this case. It runs as follows:
33. (2).-'During the pendency of any such proceeding 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 conditions of service applicable to that workman immediately before the commencement of such proceeding;
(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 employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
6. It will be profitable to look to the history of Section 33 of the Act as I shall have occasion to refer to it in the course of this judgment. As the section originally stood in 1947, it provided that no employer could, during the pendency of any conciliation proceeding, dismiss any workman except for misconduct not connected with the dispute. Then, there was an amendment of the section by the Industrial Disputes (Appellate Tribunal) Act (No. 48 of 1950). The amendment provided that no employer could dismiss any workman, save with the express permission in writing of the authority concerned whether the misconduct related to any matter connected with the dispute or not. Then there was a further amendment of the section by Act No. 36 of 1956 and Section 33 as it stands now was substituted for the old section. The change thus brought out removed the restraint put on the employer in the matter of discharge or dismissal of any workman for any misconduct not connected with the dispute without previous express permission in writing of the authority before which the dispute was pending. The phraseology of Section 33(2) clearly shows that an employer can dismiss if he so likes a workman for any misconduct not connected with the dispute but in doing so he must act in accordance with the standing orders applicable to the workman and must fulfil the two conditions laid down in the proviso.
7. Now, let us proceed to examine the language of Section 33(2)(b) and the proviso. The proviso is worded in emphatic language as it is in negative form and uses the word 'shall.' The use of the words 'has been paid' where the wages for one month are mentioned and 'has been made' where an application for approval is mentioned suggest that in point of time these two acts must be performed before making the order of dismissal or discharge. At the same time, it cannot be forgotten that the application for approval to be made to the authority concerned is 'for approval of the action taken by the employer.' This only means that the application should be for the approval of the order of dismissal or discharge which has already been made by the employer. The action is to be taken first and the approval is to be sought thereafter. Sub-section (5) of Section 33 also speaks of an employer making an application under proviso to Sub-section (2) for approval of the action taken by him. Thus, it can hardly be disputed that in the natural sequence of things the order for dismissal or discharge as the case may be, has to be passed first and then an application for approval of that action is to be made. I may also refer to Rule 60(2) of the rules framed under the amended Act and also to the form 'K ' given in the schedule thereto. Rule 60(2) lays down that employer seeking the approval of the tribunal of any action taken by him under Clause (a) or Clause (6) of Section 33 shall present an application to the authority concerned. Form ' K,' however, shows that it must be mentioned in the application that the workman/workmen discharged or dismissed has/have been paid the wages for one month.
8. It may also be pointed out that under Section 31 of the Act, any employer who contravenes the provisions of Section 33 is liable to be punished with imprisonment or with fine.. This shows contravention of the aforesaid provisions is made punishable.
9. There is also Section 33A to which I shall refer in some detail hereinafter, which says that the employee may make a complaint to the appropriate authority given in that section of the contravention of the provisions of Section 33.
10. Under the general law of contract, an employer has a right to discharge or dismiss the employee in accordance with the terms of the contract for any misconduct. This right is curtailed in Section 33. For the first time restriction was imposed on the right of employer where the misconduct was not connected with the dispute, by Act No. 48 of 1950, which amended Section 33. It was provided that there could be no dismissal or discharge of the workman even for misconduct not connected with the pending disputes, save with express permission in writing of the authority concerned. Looking to the stringency of that provision, it was thought necessary to amend it and it was so amended in the present form. by Act No. 36 of 1956. With reference to this amendment it is said in the statement of objects and reasons of the Bills by which amending Act No. 36 of 1956 came into being that
It is proposed to alter the existing provisions so as to provide that, where, during the pendency of proceeding's an employer finds it necessary to proceed against any workman in regard to any matter unconnected with the dispute, he may do so in accordance with the standing order applicable to the workman but where the action taken involved discharge or dismissal, he will have to pay the workman one month's wages and simultaneously file an application before the authority, before which the proceeding is pending for its approval of the action taken.
As has been observed by their lordships of the Supreme Court in the Commissioner of Incometax, Madhya Pradesh v. Sudra Devi : 32ITR615(SC) , the statement of objects and reasons may be referred to ' for the limited purpose of ascertaing the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy.' The change in law brought about by amending Act removed the restraint to some extent put on the employer in the matter of discharge and dismissal of any workman for any misconduct not connected with the pending dispute. Instead of obtaining express permission in writing of the authority concerned before ordering the discharge or dismissal, he can now discharge or dismiss, if he so chooses, a workman but in doing so he must act in accordance with the standing orders applicable to the workman and must fulfil the conditions laid down in the proviso. The right of the employer under the general law of the land now stands restricted to that extent only, but still it is in derogation of the general law. It is proviso which lays down the conditions or restraints on the right of the employer to discharge or dismiss for any misconduct. The proviso must be strictly construed:
In fact, it may be put down, as a general rule, that a statute in derogation of the common law shall be strictly construed.' [Statutory Construction by Crawford, 1940 Edn., p. 423.]
Another consideration which leads to the same conclusion is that the change brought about in Section 33 by Act No. 36 of 1956 was remedial in its nature, that is, to relax the restrictions imposed on an employer in the matter of discharge or dismissal in a matter not connected with the pending dispute. It has been observed in Rai Ram Taran Banerjee Bahadur v. Mrs. D.J. Hill (1949) XI F.C.R. 292 at 302 that-
The words of remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved.
Yet another consideration is that effect (?) of a proviso is not to repeal the main section to which it is attached.
11. The aforesaid considerations point out that the Sub-section (2)(b) should be construed in a manner that the right of employer to dismiss and discharge should not be affected beyond a legitimate limit.
12. This takes us to the consideration of the proviso. I have already pointed out that there is an apparent conflict in the language of the provision itself. This conflict has to be resolved. Before embarking on the task I may point out that the proviso is in such an emphatic language that the conditions laid down in it must be fulfilled by the employer if this can be done without altogether taking away his right of discharge or dismissal of a workman guilty of misconduct. It has been stated in Crawford in the treatise already referred at p. 523 that-
Prohibitive or negative words can rarely, If ever, be directory, or, as it has been aptly stated, there is but one way to obey the command, ' thou shall not,' and that is, to completely refrain from doing the forbidden act.
If the command Is to do an act in particular manner and in no other, then it can be done in that manner and no other. The proviso lays down that no workman shall be discharged or dismissed unless certain conditions are fulfilled by the employer. Those conditions must be fulfilled, if they are capable of being fulfilled, before the employer dismisses or discharges the workman.
13. The Act is framed to protect the workman. It cannot be said that the framers of law considered the fulfilment of these two conditions by employer as subsidiary. The payment of one month's wages before the workman is discharged or dismissed was considered necessary in order to ensure that the workman may not be entirely helpless from the monetary point of view at the time of his discharge or dismissal. It may be sure of compensation to be given to the workman by the employer. The duty of making an application to the authority concerned is also cast upon the employer so that the authority may be apprised of what the employer has done during the pendency of a dispute before him. The purpose of the settlement of the dispute pending before him may not be frustrated by unwanted or indiscreet action of the employer. Lest such application may not be filed by the workman, who is sometimes ignorant of the law, the duty is cast on the employer. Both conditions laid down have set purpose behind them and it cannot be said that they are redundant or subsidiary. Having regard to the. opening words of the proviso, they must be performed in the manner and at the time laid down by the proviso if this can be done without defeating the main Clause 33(2)(b).
14. Learned Counsel for the petitioners has argued that, the very language of the proviso is such that the conditions cannot be performed before the order of discharge or dismissal and therefore the main section should override the proviso so far as time factor is concerned.
15. It was also urged that in the matter of payment of one month's wages the workman may avoid to take the wages if the condition of the payment of such wages before discharge or dismissal is insisted upon. The employer will then be at the mercy of the workman and can never dismiss him. This illustration, it is contended, will show that the proviso cannot always be obeyed and the main section is reduced to nullity.
16. It is true that a court of law should lean in adopting an interpretation which would avoid injustice and absurdity. In this connexion, I may quote with advantage the following passage from Maxwell on Interpretation of Statutes, 10th Edn., p. 208.
On the general principle of avoiding injustice and absurdity, any construction would, if possible, be rejected (unless the policy and object of the Act required it) which enabled a person to defeat or impair the obligation of his contract by his own act, or otherwise to profit by his own wrong, 'A man may not take advantage of his own wrong; he may not plead, in his own interest, a self-created necessity' Thus, an Act which authorized justices, in certain circumstances, to discharge an apprentice from his indenture, 'on the master's appearance' before them, would justify a discharge in his wilful absence. The Act, it was observed, must have a reasonable construction, so as not to permit, the master to take advantage of his own obstinacy. It would be very hard that, supposing the master was profligate and ran away, the apprentice should never be dis-discharged.
17. The above principle is operative under the circumstances when a person is seeking to defeat the object of a provision of law by his own act.
18. But what I am concerned here is to interpret the law irrespective of any such consideration.
19. There may be provisions of law where it may be taken from the language employed, the setting in which they are placed, the importance of one provision and the subsidiary nature of the other and other cognate considerations that one provision overrides the other. Without repeating what I have said hereinbefore, it cannot be said that Sub-section 33(2)(b) and the proviso present before me such considerations that one should override the other, if they can be reconciled.
20. In my opinion, the proper method for a court of law in solving such difficulty, as arises in the present case, is to see whether the provision under construction can be reconciled. This is what is known as harmonious construction. The true meaning of any part of a statute is that which best harmonizes with every other part of it and a construction which will leave without effect any part of a statute must be rejected.
The true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together, is to prevail.
[Maxwell on the Interpretation of Statutes, 10th Edn., p. 162.]
21. I am of opinion that the employer's right to dismiss or discharge any workman not connected with the pending dispute which had been fettered by Act No. 48 of 1950 in so far as he could not dismiss him without the express permission in writing of the authority concerned and which has been restored to some extent by Section 33(2), should not in any way be adversely affected, except to the extent it is thought necessary to uphold protection granted to the workman on the lines laid down in the proviso which should not be in any way made less mandatory to the deteriment of the workman. The aim should be to make the construction of the provisions of law under consideration harmonious. This object is achieved if the proviso is taken as laying down that the discharge or dismissal shall not be effective unless such workman had been paid wages for one month and an application has been made by the employer to the authority before which the dispute is pending for approval of the action taken by the employer. This can be easily done by providing in the order of discharge or dismissal that it shall be operative from some future date. In the meantime the employer may fulfil the two duties cast upon him, that is, he may make payment of wages for one month and may also file an application for approval. This would carry out the requirements of the main section as well as the proviso. Instead of giving the interpretation that the main section overrides the proviso or vice versa, it will be better to adopt the interpretation given above. I may also observe that it is not very common to pass an order for discharge or dismissal which may be operative at some future date. The provision of law under consideration contemplates that the only legal order of discharge or dismissal which an employer is authorized to pass, is that it shall be operative at some future time, thus affording the employer some breathing time to fulfil the requirements of the proviso.
22. Now let us proceed to examine what has happened in this case. In the present case, the order of dismissal was passed on 18 July 1957 and it said that respondent 2 should be deemed to be dismissed from the date of suspension, i.e., 29 June 1957. I have already pointed out that such an order is not contemplated under Section 33(2). Perhaps such an order was passed to resist any claim of respondent 2 for his wages during the period of suspension if he was so entitled to. But the petitioners should not have allowed their anxiety for meeting the claim of respondent 2 to over-shadow the duties cast upon them under the provisions of law.
23. Respondent 1 has held that the petitioners had failed to pay wages within one month and had also not made the application for approval within reasonable time. Had I adopted the interpretation that the conditions of the proviso can be performed after the dismissal within reasonable time, from such dismissal, I would have been inclined to think that the petitioners were not guilty of any undue delay. As this point has become Immaterial on the interpretation adopted by me, I refrain from entering into any elaborate discussion on the subject. I have already pointed out that the workman cannot be permitted to defeat the law by his own fault and by refusing to accept one month's wages even if the employer is willing to pay Mm.
24. Next it is to be considered whether respondent 1 was justified in dismissing the application for approval on the ground that there was a contravention of the provisions of Sub-section (2) of Section 33 in passing that order. This leads me to the consideration of Sub-section (5) of Section 33. This sub-section has cast on the authority concerned the duty to hear such application without delay. On the principles of natural justice, it is but necessary that notice of such application must go to the workman concerned. After hearing him, the tribunal is to pass, as expeditiously as possible, such order in relation thereto as it deems fit.
25. It is urged that for the breach of the provisions of Section 33, the aggrieved workman has the right to make a complaint in writing in the prescribed manner to the authority provided under Section 33A and on such complaint that authority has to adjudicate upon the complaint as if it were a dispute referred to or pending before it in accordance with the provisions of the Act and has to submit its award to the appropriate authority and the authority before whom the application for approval is made has only to see how far the order of dismissal or discharge was justified to meet its approval. Learned Counsel for the petitioners has, in this connexion relied on certain decisions of the Supreme Court bearing on the interpretation of Section 33 as it stood before the amendment of 1956 and on the scope of enquiry under Section 33A. Those decisions are no direct authorities on the interpretation of Sub-section (5) of Section 33 which has been added later on, but they do throw light on the whole ambit of Section 33 and I think that it will be profitable to consider the effect of those decisions.
26. I may first refer to the case of Atherton West & Co, Ltd., Kanpur v. Suti Mill Masdoor Union 1953-II L.L.J. 321. That was a case in which the Uttar Pradesh Government notification dated 10 March 1948, issued by the Governor of the United Provinces, in exercise of the powers conferred by Clauses (b), (c), (d), (e) and (g) of Section 3 and Section 8 of the United Provinces Industrial Disputes Act, 1947, came under consideration. Clause 23 of the Government notification imposed a ban on the discharge or dismissal of any workman by the employer during the pendency of an enquiry before the competent authority or of an appeal before the industrial court, except with the written permission of the concerned authority. It was held that the enquiry to be conducted by the authority concerned on an application for grant of permission was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed which industrial dispute could only arise after an employer had discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned. The authority concerned is to institute an enquiry and come to the conclusion whether there was a prima facie case made out for dismissal of the workman and the employer was not actuated by any improper motives or did not resort to any unfair practice or victimization in the matter of the proposed discharge or dismissal of the workman.
27. The next case is of the Automobile Products of India, Ltd. v. Rukmaji Bala 1955-I L.L.J. 346. In that case, the order of the Labour Appellate Tribunal, Bombay Bench, passed on an application made by the company under Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. 48 of 1950), at the instance of the employer-company was challenged. The Labour Appellate Tribunal had given the company permission to retrench certain workmen subject to certain conditions. As already mentioned, the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. 48 of 1950), had substituted a new section for the old Section 33 of the Industrial Disputes Act, 1947, and it had also enacted a new section as Section 33A. In the case before their lordships, Sections 33 and 33A, as it stood then, were considered. Section 33 of the Act, as it stood then, made provision for obtaining permission as a condition precedent for discharging or punishing the workman and no exception was made in the case of a pending dispute. Their lordships considered the meaning, scope and effect of Sections 33 and 33A as it stood then. Their lordships observed, as follows:
When an employer contravenes the provisions of Section 33 of the 1947 Act or of Section 32 of the 1950 Act, the workmen affected thereby obviously have a grievance. That grievance is twofold. In the first place, it is that the employer has taken a prejudicial action against them without the express permission in writing of the authority concerned and thereby deprived them of the salutary safeguard which the legislature has provided for their protection against victimization. In the second place, and apart from the first grievance, the workmen may also have a grievance on merits which may be of much more seriousness and gravity for them, namely, that in point of fact they have been unfairly dealt with in that their interest has actually been prejudicially affected by the highhanded act of the employer. These sections gave the workmen the right to move the authority by lodging complaint before it.
28. It was further observed that the authority to whom the complaint is made is to decide
(1) the fact of contravention, and
(2) the merits of the act or order of the employer.
29. Their lordships took the view that Section 33 imposed a ban on the right of an employer on an application for lifting the ban and 'all that is required of the authority excercising jurisdiction under that section is to accord or withhold permission.' In this view of the. matter, It was held that 'the Labour Appellate Tribunal was in error in holding that it had jurisdiction to lay down terms as conditions precedent for granting permission to the company to retrench its workmen.' This statement of law is reiterated by Bhagwati, J. in Lakshmi Devi Sugar Mills, Ltd. v. Pandit Ram Sarup 1957-I L.L.J. 17. In the recent case of Equitable Coal Co., Ltd. v. Algu Singh 1958-I L.L.J. 793, the employees made an application that they had been illegally and unjustifiably dismissed during the pendency of an industrial dispute without obtaining the express permission in writing of the Appellate Tribunal, as required by Section 22 of the Act. The Labour Appellate Tribunal found that the dismissal was justified. Nevertheless, since the applicant has not obtained the requisite permission under Section 22, the Labour Appellate Tribunal held that the employees were entitled to compensation. The employer went in appeal in the Supreme Court. Their lordships referred to the earlier judgment in the Automobile Products of India, Ltd. v. Rukmaji Bala 1955-I L.L.J. 346 and they observed, as follows:
In an enquiry held under Section 23, two questions fall to be considered: Is the fact of contravention by the employer of provisions of Section 22 proved? If yes, is the order passed by the employer against the employee justified on the merits If both these questions are answered in favour of the employee, the Appllate Tribunal would no doubt be entitled to pass an appropriate order in favor of the employee. If the first point is answered in favour of the employee, but on the second point the finding is that, on the merits, the order passed by the employer against the employee is justified, then the breach of Section 22 proved against the employer may ordinarily be regarded as a technical breach and it may not, unless there are compelling facts in favour of the employee, justify any substantial order of compensation in favour of the employee. It is unnecessary to add that, if the first issue is answered against the employee, nothing further can be done under Section 23. What orders would meet the ends of justice in case of a technical breach of Section 22 would necessarily be a question of fact to be determined in the light of the circumstances of each case.
The above weighty pronouncements of their lordships of the Supreme Court may be taken to lay down the law on the scope of enquiry on an application by the employer for permission to dismiss of discharge any workman under Sub-sections (1) and (3) of Section 33 as it stands at present, as also on the scope of enquiry under Section 33A on the complaint filed by the workman under that section. So far as it is relevant to this case, the law laid down may be summed up, as follows:
(1) The tribunal before whom an application for permission by the employer is made under Sub-secs. (2) and (3) of Section 33 has not to adjudicate upon any industrial dispute arising between the employer and the workman but is only to consider whether the ban imposed on the employer in the matter of dismissal or discharge during the pendency of proceedings should be lifted:
(2) If a prima facie case is made out by the employer, 'the only jurisdiction which the tribunal has is to give such permission or to refuse it provided the employer Is not acting mala fide and is not resorting to any unfair practice or victimization'--Lakshmi Devi Sugar Mills, Ltd. v. Pandit Ram Sarup 1957-I L.L.J. 17.
(3) If the permission is granted, the employer would be at liberty 'if he so chooses thereafter to dismiss or discharge the workman.'
(4) Then the workman has the right to file a complaint under Section 33A before an appropriate tribunal as provided therein.
(5) In the enquiry under complaint, the first question that the tribunal under Section 33A has to examine is whether the employer has contravened the provisions Sub-sees. (1) and (3) of Section 33.
(6) If there Is no contravention, the matter ends there.
(7) If there is contravention, the tribunal referred to therein is to adjudicate upon the complaint as if it were a dispute referred to and pending before it in accordance with the provisions of the Act: and shall submit Its award to the appropriate Government.
(8) In making that adjudication If the employer's action is justified on merits, then the breach of Section 33 may ordinarily be regarded as technical breach and unless there are compelling facts in favour of the employee, compensation for the technical breach should not be awarded.
30. Now, I have to examine, in the light of the above decisions, the scope of enquiry under Sub-section (5) of Section 33 on an application for approval of action taken by the employer in cases governed by Sub-section (2) of Section 33.
31. Sub-section (5) says that an employer is to make an application for approval of the action taken by him, i.e., for approval of the order of dismissal or discharge and the authority concerned is to pass an order In relation to that action. The scope of enquiry is limited to the determination of the question whether misconduct alleged to have been committed by the workman is prima facie proved and is of such a nature that prima facie the employer was justified in awarding the punishment of dismissal or discharge. No doubt under Sub-sec (5), the tribunal concerned has been given the power to pass any order 'as It deems fit,' but that order must be in relation to the application filed before the tribunal. In making that order the tribunal may prima facie examine the seriousness of misconduct proved against the employee and may further examine that the employer is not acting mala fide or la not resorting to any unfair practice or victimization. The tribunal would not be justified in determining the question that the conditions laid down in the proviso to Sub-section (2) are not fulfilled by the employer. For that, the remedy of the employee is either by way of taking action under Section 31 for the criminal prosecution of the employer or else by 'making a complaint In writing in the prescribed manner to the appropriate authority as laid down in Section 33A. When such a complaint is made, the appropriate tribunal shall adjudicate upon the complaint in the manner laid down by their lordships of the Supreme Court in the cases referred to above. It shall first determine whether there has been any contravention of the provisions Section 33 and if it comes to the conclusion that there was such a contravention, it may proceed to determine the dispute on merits and if it finds that the order of the employer in dismissing or discharging the workman was not justified, it may give an award to the appropriate Government for the reinstatement of the workman. In case it finds that the employer's action was justified, It may Ignore technical breaches or award such relief as it thinks proper.
32. This being, in my humble opinion, the correct position in law, let us examine what has happened in this case. As already mentioned, respondent 1 dismissed the application of the petitioner without examining whether they had made out any prima facie case for the dismissal of respondent 2 on the ground that the employer had committed breach of the conditions laid down in the proviso to Sub-section (2). In passing that order, respondent 1 failed to exercise its jurisdiction in refusing to examine whether any prima facie case had been made out or not for the dismissal of respondent 2 and in throwing out application on grounds which should have been the subject-matter of enquiry under Section 33A on a complaint made by respondent 2 in the prescribed manner. It may be pointed out that no application was made by respondent 2 under Section 33A in the prescribed manner and respondent 1 had committed an error in going into the question whether there had been any breach of the provisions of Sub-section (2) as laid down in the proviso to that sub-section. This being the position, the order passed by respondent 1 is liable to be Bet aside in a writ of certiorari.
33. I, therefore, allow the writ petition and set aside the order passed by respondent 1 dated 7 January 1958, and direct respondent 1 to decide the application made by the petitioner In the light of the principles laid down above. In view of the fact that the grounds on which respondent 1 has dismissed the application of the petitioner was taken by him suo motu, I leave the parties to bear and pay their own costs in this Court.
I.N. Modi, J.
34. The first question raised in this case is as to the correct interpretation of Section 33(2) of the Industrial Disputes Act as amended in 1956. My learned brother Bhandari, J., has come to the conclusion that what this sub-section requires is that the employer should pass an order of discharge or dismissal, even where such discharge or dismissal may not be connected with any pending industrial dispute (such an order being 'of course warranted under the standing orders of the employers) in a manner that it should necessarily come into effect from a future date, and in the meantime the employers should pay the dismissed or discharged employee a month's wages and also make an-application for the approval of the action taken to the industrial tribunal, before whom the industrial dispute may be already pending. If I understand my learned brother aright, it seems that he is of the view that it is only such an order of discharge or dismissal which can legally be passed under Section 33(2) of the Act.
35. On a careful and anxious consideration of the whole matter, I, for my part, am not prepared to go so far as to hold that. Cases are easily conceivable where an employer may dismiss an employee for misconduct unconnected with a pending industrial dispute and at once offer the payment of a month's wages to him and further simultaneously make an application to the tribunal for the approval of the action taken by them. I can see nothing in the language of Section 33(2) including its proviso to make such a course of conduct on the part of the employers illegal. On the other hand, it clearly seems to me that such an order, if passed, would be unexceptionable. I have hardly any doubt that even the proviso as it is worded requires an application for approval to be made ' of the action taken by the employer' and not of the action proposed to be taken by him. In other words, the approval is clearly an ex post facto requirement, and there is nothing in this subsection or the proviso which makes it incumbent on the employer that he must withhold the effect of the dismissal or discharge whereof approval is sought, until an application therefor has been made, though I would entirely agree that approval of the action has to be expeditiously applied for and that if approval is refused by the competent authority, the old position would be restored, and the employee may be entitled to all the benefits to which he would have been entitled if no such order had been passed against him. I should also like to point out in this connexion that it may be needlessly detrimental, nay even dangerous, for the employer to have to retain under his employment a dismissed employee after his dismissal. It is one thing to say that for such dismissal or discharge the employer has to apply without loss of time to obtain the approval of the authority before whom an industrial dispute is pending; but it would be quite another thing to say that he cannot pass an order of discharge or dismissal which could not possibly have immediate effect, under Section 33(2) of the Act.
36. The question may be posed as to whether on the language of this sub-section, taken with the proviso thereof as a whole, an order of dismissal (or a like order falling within the ambit of this sub-section) may be passed first, and the payment of one month's wages to the employee and an application for approval to the tribunal may be made, say on the day following, or even a few days afterwards by which of course I mean a reasonable time. As I read the proviso, speaking with profound respect, it does not appear to me to be very happily worded. A too literal Interpretation of it may lead to serious anomalies. For one thing, an application for approval of some action already taken may, In the ordinary course of things, be made only after that action has been taken, and yet it may be and is contended on the language of the proviso that such action cannot be ordered until an application for approval has been made in the first instance. Again, if a strictly literal interpretation is to be rigidly put on the language of the proviso, a workman may defeat the power vouchsafed to his employer in Sub-section (2) by merely refusing to take a month's wages as required in the proviso. I wonder if that could have ever been the intention of the legislature, when it enacted the proviso. The sole object of the legislature in enacting this proviso is that the workman may not be left stranded for money at the time of his discharge or dismissal and so offered a month's wages, and he may not be victimized while an industrial dispute is pending, and for this purpose the approval of the action taken has been prescribed in cases where the dismissal or discharge is not connected with such industrial dispute.
37. I am, therefore, inclined to think that a construction should be placed on the proviso which would harmonize with the body of this section itself. It further seems to me that the requirements of Section 33(2) would be satisfied substantially if in the category of cases provided for under Section 33(2) an employer makes the payment of a month's wages or offers it to the employee or makes an application to the industrial tribunal, simultaneously with the action taken, or on the day following, or even within a reasonable time of the action taken, where such a course may have become necessary so that the actual payment of wages or the application made for approval are not characterized by any unreasonable delay whatsoever. The present participial phrases ' has been paid ' or ' has been made ' as used in the proviso should not, and need not, in my judgment, be rigidly Interpreted so as to import the condition that the events to which they relate must have taken place prior in point of time to the order of dismissal or discharge, for such a requirement would perhaps make the provision contained in the body of the section largely nugatory, if not unworkable. I may also add that no harm can arise from such an interpretation to a workman for (apart from a prosecution under Section 31 of the Act) it is open to him under Section 33A to make a complaint against his employer to the tribunal concerned for a breach of the provisions of Section 33, and on receipt of such complaint, the tribunal shall adjudicate on the merits of the complaint as if it were an industrial dispute referred to or pending before it for enquiry and submit its award to the Government.
38. I pause to point out here that such a complaint has not been made in the present case so far, and It is the tribunal Itself which raised the preliminary points as to non- payment of the wages and the delayed filing of the application and dismissed the application, without going into the merits. If this interpretation of Section 33(2) is correct, then the next question that arises is whether in the present case the order as to the payment of the wages after the various deductions sought to be made by the employer was a substantial compliance with the proviso, and again whether the application for approval of the action taken was made after unreasonable delay or not, and what is the proper effect of the breaches in these respects, if any in other words, whether the breaches are merely technical breaches or otherwise. A proper decision of these questions in my opinion, pan only be arrived at after the matter of dismissal has been examined on the merits.
39. This brings me to the second question which is as to the correct scope of the enquiry under Sub-section (5; of Section 33, which the tribunal is called upon to make on an application for an order of approval. Putting it in a slightly different way, the question arises whether it was right on the part of the learned judge of the industrial tribunal to have thrown out the application for approval of the order of dismissal filed by the petitioner on the preliminary points as he did without applying his mind to the merits of the case. No direct authority on the precise meaning of Section 33 as amended has been placed before us in this connexion. I agree, however, with my learned brother Bhandari, J., that the decisions of the Supreme Court on Sections 22 and 23 of the Industrial Disputes (Appellate Tribunal) Act (No. XLVIII of 1950) or on Sections 33 and 33A of the Industrial Disputes Act of 1947 as amended by Act No. XLVIII of 1950 may be looked at for guidance for an answer on this point. Their lordships of the Supreme Court appear to have uniformly entertained the view while interpreting those sections that the proper approach for the approving authority is to decide two points: (1) whether a breach of the provisions of Section 22 of the Act of 1950 or Section 33 of the Act of 1947 as amended has been established, and (2) if that is so, whether the order of dismissal or discharge is prima facie justified, and that if the finding of the tribunal on the second point is in favour of the employers, then the breach of Section 22 or 33 should be generally regarded as technical. See Atherton West & Co., Ltd. v. Suti Mills Mazdoor Union and Ors. 1953-II L.L.J. 321; Automobile Products of India, Ltd. v. Rukmaji Bala and Ors. 1955-I L.L.J. 346; and Equitable Coal Company, Ltd. v. Algu Singh 1958-I L.L.J. 793.
40. The scheme underlying Sections 33 and 33A of the Act of 1947 as amended in 1956 appears to me to be fundamentally the same as under Sections 22 and 23 of the Industrial Disputes (Appellate Tribunal) Act of 1950 or SB. 33 and 33A of the Industrial Disputes Act before the amendments of 1956. A complaint under Section 33A may be made under the Act as amended alleging a breach of the provisions of Section 33, whereupon the tribunal must treat it as an industrial dispute under the Industrial Disputes Act and submit its award thereon to the Government. But in the absence of such a complaint, the only substantial question for the tribunal to decide on an application for approval under Section 33(5) would be whether to accord the approval asked for or to refuse it. Therefore, what the tribunal has to see is whether a fair enquiry has been held by the employer into the alleged misconduct of the employee and whether a prima facie case has been made out by the employer for the action taken or not, and where such a case is established, the permission, broadly speaking, cannot be refused. See Lakshmi Devi Sugar Mills, Ltd. v. Ram Sarup and Ors. 1957-I L.L.J. 17. There is also authority for the proposition that even where the employer should have obtained previous express permission for discharging or dismissing an employee and such permission was not obtained, but the order passed was substantially just, and did not favour of bad faith or victimization and was not otherwise bad as being in violation of the principles of natural justice, the failure to obtain such previous approval was a technical breach and the order of dismissal or discharge In such cases need not be interfered with, and any order of compensation in favour of the employee would not be justified. See Equitable Coal Co., Ltd. v. Algu Singh 1958-I L.L.J. 793. Again there is authority for the proposition that in a complaint under Section 33A a tribunal is not entitled to substitute its own judgment for that of the management as to the measure of the punishment except for compelling reasons, e.g.,
(1) want of bona fides, or
(3) violation of the principles of natural justice,
(4) a basic error of facts,
(5) or a perverse or absurd finding by the management. [See 1951-II L.L.J. 314.]
41. The net effect of the above discussion is that the tribunal cannot lawfully dispose of an employer's application for approval of an order of dismissal by throwing out such an application merely on the ground that the conditions laid down in the proviso were not fulfilled, and it must further consider the question whether the dismissal was prima facie justified or not, and where it does come to the latter conclusion, it would be its duty as a rule to grant the permission applied for, unless it further comes to the conclusion that such permission should be refused for compelling reasons, such as have been indicated above, and in that connexion it may conceivably be open to the tribunal also to consider the failure of the employer to comply with the conditions laid down in the proviso of Section 33(2) of the Act as possible material for arriving at a finding on the good faith or otherwise of the employers in an appropriate case. But the dismissal of the application by the tribunal for approval of the action taken by the employers without any investigation and a finding thereon as to whether the order of dismissal was prima facie justified or not and whether it had been arrived at after a fair enquiry into the conduct of the employee concerned is, I agree, a patent error in the exercise of its legitimate jurisdiction on the part of the tribunal and is sufficient to attract the certiorari jurisdiction of this Court.
42. Subject to the observations made above, I agree with the final order made by my learned brother Bhandari, J., that this writ application should be allowed and the case remanded to the tribunal for fresh disposal in accordance with law.
43. By the Court:-The order of the Court is that the writ application is allowed and the order of the learned judge of the industrial tribunal dated 7 January 1958, is quashed, and the case be remanded back to him for a fresh decision in accordance with law, and the parties will bear their own costs in this Court.