Balakrishna Ayyar, J.
1. In March 1956, various disputes arose between P. Orr & Sons, Ltd., and some of their employees. On 20 August 1956, conciliation proceedings were started in respect of these disputes. In September 1956, the management held an enquiry into certain allegations of misconduct against three of their employees and finding the allegations proved to their satisfaction wanted to dismiss them. But as the conciliation proceedings were pending, the management applied for the requisite permission to conciliation officer under Section 33 of the Industrial Disputes Act. The conciliation officer advised the management to await his report in the conciliation proceedings and thereafter take action. The conciliation officer drew up his report on 9 January 1957 and despatched copies of it to the Government, the management and the union. The management received its copy on 4 February 1957. Thereupon on 5 February 1957 they passed an order dismissing the three employees with effect from the following day, i.e., 6 February 1957. It appears from a letter which was produced before the labour court that the copy which the conciliation officer sent to the Government was actually received by Government only on 6 February 1957. Therefore, in passing an order of dismissal on 5 February 1957, the management contravened the provisions of Section 33 of the Act, since a conciliation proceeding is deemed to be pending till the report of the conciliation officer reaches the Government. An industrial disputes about the order of the management dismissing the three workmen concerned was raised and the Government referred the following question for adjudication to the labour court, Madras:
Whether the dismissal of the following three workmen is justified and to what relief they are entitled ?
It need hardly be mentioned that the workmen referred to there were the workmen who were dismissed on 5 February 1957. The labour court examined the merits of the case and reached this conclusion:
I therefore hold that the case of the management is true. On the evidence as to how this incident took place, I am inclined to Infer that it was a premeditated act that these three workers must have pre-planned the mischief, and must have acted concertedly. Therefore, though Ganesan actually threw the instrument down, all of them are bound to share the responsibility for his act, Even granting that the suggestion of the union Is well founded, this is an unfortunate case in which the workers gave an opportunity to management to achieve their object. When I find the incident as put forward by the management is true, I cannot hold that the action of the management was altogeter wrong whatever might have been their motive. In the result, I find that the management had good reasons to dismiss these three workers.
He, however, held that the dismissal was illegal because it had been effected in contravention of the provisions of Section 33 of the Act. He then considered that
the normal relief to which the workers, are entitled is reinstatement with continuity of service and payment of wages from the date of dismissal till the date of reinstatement. Though the management appears to be very much disinclined to take back these workers, they have not put forward any grounds as to why this normal relief should not be granted to them. I therefore direct the management to reinstate all these workers with continuity of service and pay them back-wages for the period of unemployment.
The management has come to this Court for the issue of an appropriate writ to quash this order of the tribunal.
2. When an employer contravenes the provisions of Section 33 of the Industrial Disputes Act, it is, of course, open to the workmen concerned to raise an industrial dispute about it and invite Government to refer the dispute for adjudication and this is precisely what was done in the present case. In addition, the statute prescribes a penalty and also provides a summary remedy. An offending employer can be prosecuted under Section 31 of the Act and if found guilty, he may be sentenced to a term of imprisonment which may extend to six months or to pay a fine which may go up to Rs. 1,000 or both. The remedy is set out in Section 33A which runs thus :
Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner to such tribunal and on receipt of such complaint that tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, In accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly.
It will be noticed that whether a matter is brought before it by means of a complaint by the workmen or by a reference made to it by the Government, the labour court has to dispose of the matter in the same way. On the language of the statute, it is important to note that it nowhere says that an order passed in contravention of Section 33 shall be null and void. When the Act omits to say that and instead provides for alternative penalties and remedies, it will hardly be permissible to deal with the matter on the basis of first principles and say straightaway that the order is null and void. In fact, the explicit provision that enables a workman to make a complaint before the appropriate labour court or tribunal and the clear direction to the tribunal that it shall dispose of the matter as if it were a dispute referred to it or pending before it shows that it was not intended that the moment it is established that Section 33 of the Act has been contravened the Court shall automatically say that the order is null and void and direct reinstatement.
3. The question has been considered by a Bench of the Bombay High Court in Batuk K. Vyas v. Surat Municipality 1952 L.L.J. 178 . The relevant facts there were as follows: One B. K. Vyas joined the Surat Municipal Borough in November 1949. There was a dispute between the municipality and its workmen which was referred to the industrial tribunal in May 1950. While that dispute was pending before the tribunal, the municipality dismissed the petitioner. The petitioner complained to the tribunal against the order of dismissal. The tribunal reached the conclusion that the municipal council was justified in dismissing the petitioner. The appeal which the petitioner took to the Labour Appellate Tribunal failed. He, thereupon, went to the High Court. It was argued before the Bombay High Court that the scope and ambit of an enquiry under Section 33A was limited and confined to a mere enquiry as to whether there has been a contravention of Section 33. The learned Chief Justice observed:
Mr. Phadke says that if the tribunal comes to the conclusion that the employer contravened the provisions of Section 33, then the only award that the tribunal can make is to restore the status quo either by ordering the reinstatement of the workman if he has been discharged, or by restoring the previous conditions of service if those conditions have been altered to his prejudice. But Mr. Phadke says that it is not competent to the tribunal to go into the merits of the change made by the employer to the prejudice of the workman;
and the Court ruled;
It seems to us difficult, on the language used by Section 33A, to hold that the ambit and scope of the inquiry to be held by the tribunal is as limited as Mr. Phadke would suggest. If the intention of the legislature was that all that the tribunal could do under Section 33A was merely to determine the simple question as to whether a change to the prejudice of the workman had been brought about by the employer with out the express permission in writing of the tribunal, and if that decision was against the employer, the only power that the tribunal had was to restore the status quo, it seems to us that the language used by the legislature in Section 33A would have been very different from the language it has actually used. The very fact that the legislature treats the complaint as if it were a dispute referred to or pending before it, goes to show that the jurisdiction of the tribunal was not limited merely to consider the question of the contravention of Section 33, but to decide on the substantive dispute between the employer and the workman with regard to the change in the conditions of service or the discharge of the employee by the employer... Apart from the breach of the law under Section 33, for which a penalty is provided, the tribunal would be concerned with the question as to whether on merits the employer was justified in discharging the petitioner or changing the conditions of service to his prejudice... In our opinion the object of enacting Section 33A is not merely to confine the jurisdiction of the tribunal to the simple question of the breach of the law, but to confer upon the tribunal the wider jurisdiction of deciding the merits of the dispute between the employer and the workmen.
This decision was approved by the Supreme Court in Automobile Products of India, Ltd. V. Rukmaji Bala : (1955)ILLJ346SC their lordships say:
When an employer contravenes the provisions of Section 33 of the 1947 Act or of Section 22 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 5 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 which may be called the statutory grievance, the workman 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 give the workmen the right to move the authority by lodging a complaint before it.
4. The judgment then proceeds to state that the complaint is required to be made in the prescribed manner, and that the form requires tae complaining workmen to show in their petition of complaint: not only the manner in which the alleged contravention has taken place but also the grounds on which the order or the act of the management is challenged.
5. Then the learned Judges say:
This clearly indicates that the authority to whom the complaint is made is to decide both the issues, namely, (1) the fact of contravention and (2) the merits of the act or order of the employer.
6. And then referring to the provisions of Section 33// of the Act it is stated:
These provisions quite clearly indicate that the jurisdiction of the authority is not only to decide whether there has been a, failure on the part of the employer to obtain the permission of the authority before taking action but also to go into the merits of the complaint and grant appropriate reliefs.... The authority is therefore enjoined to go into the merits of the act complained of under Section 33A of the 1947 Act and Section 23 of the 1950 Act. In this sense the jurisdiction of the authority named in these two sections is certainly wider than that of the criminal court exercising jurisdiction under the penal sections referred to above. Having regard to the scope of the enquiry under Section 33A. of the 1947 Act and Section 23 of the 1950 Act, it must follow that the power of the authority to grant relief must be co-extensive with its power to grant relief on a reference made to it or on an appeal brought before it, as the case may be... It follows therefore, that the authority referred to in these sections must have jurisdiction to do complete justice between the parties relating to the matters in dispute and must have power to give such relief as the nature of the case may require, and as is also indicated by the prayer clause mentioned in the two forms DD and B referred to above.
To the same effect is the decision in Equitable Coal Company, Ltd. v. Algu Singh 1953 L.L.J. 793, In that case the management of a coal company dismissed certain of its employees during the pendency of certain proceedings before the Labour Appellate Tribunal, Calcutta, without obtaining the express permission of the Tribunal. They were dismissed because after inquiry the management was satisfied that the employees concerned had been guilty of riotous and disorderly behaviour and of assault. There were also criminal proceedings on the termination of which, the employees concerned were sentenced to undergo rigorous imprisonment for two months each and to a fine of Rs. 20 each. In view of the fact that the permission of the Labour Appellate Tribunal had not been obtained, a complaint was made and the Tribunal directed that the employees were entitled to compensation and directed that they be awarded compensation. The company went to the Supreme Court. Delivering the judgment of the Court, Gajendragadkar, J., observed:
In an enquiry held under Section 23, two questions fall to be considered. Is the fact of contravention by the employer of the 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 Appellate Tribunal would no doubt be entitled to pass an appropriate order in favour 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 answerd against the employee, nothing further can be done under Section 23. What oraers 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 Supreme Court took the view :
The conduct of the respondents which was held proved by the enquiring officer would undoubtedly justify their dismissal. Having regard to the facts of this case, therefore, we hold that the order of compensation passed by the Appellate Tribunal must be reversed.
On the other side, reference was made to the decision of Rajagopala Ayyangar, J., in the case of Palace Theatre, Salem v. Labour Appellate Tribunal of India 1954 L.L.J. 635 , where it was observed that where the requisite permission has not been obtained
and the dismissal Is effected during the pendency of the appeal, it is open to the tribunal without considering any other matter to direct reinstatement of the discharged workmen.
On this decision I would make two observations. One is that on the merits of the case it was found by the Tribunal that there had been no enquiry by the management before the dismissal was effected. In the second place, that decision was given before the decisions of the Supreme Court which I have already referred to.
7. Mr. Mohan Kumaramangralam pointed out that In W.A. Nos. 79 and, 80 of 1957, a Bench of this Court has taken the same view as Rajagopala Ayyangar, J. The Bench observed :
This ground, namely, contravention of Section 22 of the Act, would alone suffice for setting aside the order of retrenchment or discharge passed against the workmen now concerned.
In respect of this case also it must be observed that the Bench found that the Chairman of the Tribunal had gone into the merits of the matter and found that the action of the management was not justified. In the second place It does not appear that the decision of the Supreme Court was brought to the notice of the learned Judges who decided the appeal.
8. The labour court proceeded on the basis that when there has been a contravention of Section 33, the normal relief to which the workers are entitled is reinstatement with continuity of service and payment of back-wages. In taking this view I think the labour court was in error. The order made In each case must, it seems to me, depend on the merits of that case. It will be appreciated that the protection conferred by Section 33 of the Act is in the nature of a stay order and qualified stay order at that. During the pendency of the proceedings the workman may not be dismissed or his conditions of service altered, to his prejudice. But once the proceedings are terminated, the hands of the employer are freed. Even during the period occupied by the pendency of proceedings an employer can act provided he obtains the approval of the appropriate labour court or tribunal as the case may be. When an employer contravenes Section 33, he in effect contravenes a stay order. Now, the contravention of a stay order may have various consequences. But it does not have the effect of wiping out the rights, liabilities and penalties that have accrued before. I shall give an illustration or two. Supposing an execution petition is pending in a subordinate Court and the judgment-debtor comes to this Court with a civil revision petition and obtains a stay. If in ignorance of the stay order execution proceedings are continued, it may be a proper case for setting aside the proceedings subsequent to the stay order. But the contravention of the stay order does not have the effect of wiping out the decree. Similarly, if a stay order is contravened in a criminal case, say a murder case, it does not have the effect of absolving the accused from liability for murder. When the labour court thought that the normal relief to which the workers are entitled is reinstatement with continuity of service and payment of back-wages, it was in effect saying that the contravention of the stay imposed by the Act would automatically wipe out the past misconduct, if any, on the part of the worker. That clearly is not the right view. The matter is covered by the decisions of the Supreme Court I have already referred to.
9. In the result, this petition is allowed and the order complained of is quashed. There will be no order as to costs.