Rajagopala Ayyangar, J.
1. This is an application to issue a writ of certiorari quashing an award of the industrial tribunal, Coimbatore, in industrial dispute No. 4A of 1952 dated 25 June 1952, and published in the Port St. George Gazette, dated 2 July 1952.
2. The facts giving rise to the petition are as follows: The petitioner is the proprietor of a concern known as the Mysore Modern Cafe, Coimbatore. There was a dispute between the petitioner and his workers regarding the bonus payable to the latter for the year 1949-50, which was referred to the industrial tribunal, Coimbatore, for adjudication. This dispute was numbered as I.D. No. 27 of 1950 and an award was passed in it, which was taken up in appeal to the Labour Appellate Tribunal at the instance of the petitioner. Meanwhile the workers raised a fresh dispute regarding the quantum of bonus for the next year 1950-51, and this was also referred to the industrial tribunal, Coimbatore, for adjudication. The matter was taken up for enquiry by the tribunal on 1 April 1952 and on that date the parties filed two separate memoranda, but in identical terms agreeing that the bonus payable for 1949-50 as per the decision of the Labour Appellate Tribunal would be treated as the proper amount of bonus payable for the year 1950-51 also. The tribunal accepted this joint statement and passed an award on 5 April 1952 in the same terms, which was published in the Fort St. George Gazette on 18 April 1952.
3. On the same date on which these statements were filed, that is, on 1 April 1952, the petitioner filed an application to the tribunal setting' out the fact that he was a permanent resident of Mysore, and that owing to domestic difficulties he could not stay in Coimbatore and carry on his hotel, which required his personal attention in its day-to-day affairs. He, therefore, prayed that the tribunal might be pleased to permit him to close his concern from 16 April 1952. This was obviously an application seeking the permission of the tribunal under Section 33 of the Industrial Disputes Act to discharge his workmen, during the pendency of a dispute, a request which might have been granted, if the tribunal considered that the closure intended was bona fide. Unfortunately the petitioner entitled his application as one under Section 33A of the Industrial Disputes Act. The industrial tribunal immediately passed an order summarily rejecting the petition on the ground that under Section 33A of the Act such a petition was not maintainable. This is most unfortunate because, under Section 36(4) of the Industrial Disputes Act, legal practitioners cannot appear except with the consent of the other side, and in my experience, the consent is seldom accorded. If laymen have to conduct proceedings in which highly technical problems and points are involved, the tribunals in conduct of such proceedings are expected to take a lenient view of such lapses, which are really errors of a clerical nature. Even in civil courts, where professional lawyers of experience handle cases it is not uncommon to find errors of this type creeping in, but the courts, however, do not dismiss applications which are maintainable under the law, merely because a wrong section is quoted as that under which the relief is sought. Either liberty is afforded to correct such errors, or the petitions or applications are dealt with as if they carried in their cause title the correct provision of law corresponding to the reliefs prayed for. It is regrettable that the industrial tribunal should have dismissed the petitions on such a ground but one thing, however, is clear that though the petitioner applied to the tribunal for permission to discharge his workmen, this has never been refused on the merits.
4. The petitioner issued a notice to his workmen on 1 April 1952 followed by another, two days later, which intimated to them that he would be closing his concern on and from 16 April 1952. The workers immediately filed a complaint on 4 April 1952 under Section 33A stating that the discharge was being effected during the pendency of the dispute, that the management should be directed to re-employ the present workers, if the business was restarted, and that they should be awarded as compensation 15 days' wages for every year of service with a minimum of 14 days' wages for workers, whose service was less than one year.
5. The petitioner, when served with notice of this petition, filed a reply on 17 April 1952, wherein he referred to the circumstances in which he was closing his business as also to the fact that he had applied for permission to the tribunal on 1 April 1952, for closing the business, but had received no orders on his petition. The tribunal immediately served him with a memorandum in which it brought to his notice that the order dated 1 April 1952 dismissing his petition was read out in open Court on 1 April 1952. The petitioner was informed that if so advised he ought to have applied for a certified copy of that order. The latter part of the order is somewhat difficult to follow, since, if the petitioner was not aware of the order dismissing his petition he could obviously not apply for a certified copy of such order. I might mention in passing that the workers also do not seem to be aware of the dismissal since they do not allege in their petition under Section 33A that the employer was proceeding to discharge the workmen in contravention of the orders of the tribunal.
6. The petitioner filed a further answer on 25 April 1952, in which after acknowledging receipt of the communication from the tribunal, dated 19 April 1952, he went on to state that his application, dated 1 April 1952, for permission to close the business might have been dealt with on the merits, overlooking the technical irregularity in the cause title. Thereupon the tribunal passed an order on 29 April 1952 that this application, dated 25 April 1952, might be treated as an application under Section 33 of the Act. But notwithstanding this statement this application was not considered at all and the tribunal, proceeding on the footing that there had been a violation of Section 33 of the Industrial Disputes Act, has awarded to the workers compensation payable for the termination of their services under Section 33A of the Industrial Disputes Act. It is this award of the tribunal, which has been published by Government under Section 17 of the Act, that is impugned by the petitioner as illegal and ultra vires.
7. The contentions raised on behalf of the petitioner are twofold:
(1) that when an employer seeks the permission of the tribunal to do any of the acts specified in Sub-clause (a) or (b) of Section 33, and the tribunal refuses to deal with or ignores his application, there can in law be no contravention of Section 33 so as to invest the tribunal with the jurisdiction to act under Section 33A of the Act;
(2) that the closure of a business is neither an alteration of the conditions of service of workmen to their prejudice, nor a discharge or punishment by way of dismissal of a workman within Section 33 of the Act, so as to entail the consequences set out in Section 33A.
8. In my judgment, the first contention put forward on behalf of the petitioner is well-founded. The foundation of a tribunal's award under Section 33A is a 'contravention' of Section 33, and there cannot be a contravention of that provision, when the employer applies for permission, but the tribunal refuses to decide whether the permission should be granted or not. Section 33A is a penal provision and cannot be held to be attracted to a case where an application preferred by the employer is refused to be decided on the merits. The tribunal cannot say to an applicant under Section 33 that his petition is not maintainable or refrain from deciding it on the merits and at the same time entertain a complaint under Section 33A based on the allegation that the employer has failed to obtain a permission under Section 33, and award relief on such a footing. The order of the tribunal in the present case awarding relief to the workmen on the basis of a contravention of Section 33 of the Industrial Disputes Act is entirely without jurisdiction.
9. The second point argued by the learned Counsel for the petitioner is that he has a fundamental right to close his business which has been recognized and upheld by a decision of a Bench of this Court in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras : (1952)ILLJ364Mad , and that such a closure would not amount to an alteration of the condition of service or discharge within the meaning of either of the Sub-clauses (a) or (b) of Section 33 which contemplates a running business. This decision has been distinguished by the tribunal on the ground that its principles are inapplicable to enable a closure of the business during the pendency of an industrial dispute. The point, however, has not been fully argued before me, in view of the opinion expressed by me on the first point during the hearing and I do not therefore feel justified or called upon to express a final opinion on the correct position.
10. I hold that in the circumstances of this case, the tribunal had no jurisdiction to make an award under Section 33A of the Industrial Disputes Act, The writ petition is allowed and the award of the tribunal, dated 9 June 1952, in I.D. No. 4A of 1952 and published in the Fort St. George Gazette, dated 2 July 1952, is set aside. As the workers were not responsible for this state of affairs, there will be no order as to costs.