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A B c D E F G H SYNDICATE BANK LTD. v. K. R. V. BHAT August 22, 1967 [M. HIDAYATULLAH AND C. A. VAIDIALINGAM, JJ.J Industrial Disputes Act, 1947 (14 of. 1947) s. 33-Dismissal of employee with immediate effect-Dismwed employee files appeal Appeal dismissed-Effective date of dismissal-Industrial dispute referTed after originaldismissal order but befo1'e disposal of appeal If necessaTY to compltJ with. proviso to s. 33(2)(b). Afterholdinga domesticenquiry the ManagingDirector of the appellant-Bankdismissed the respondent-employeewith immediate effect.The employeewas informed that he mightappealagainstthis orderto theworkingcommitteeof theDirectorswithin certain days. The respondentfiled the appeal which the workingcommittee dis missed. Subsequentto thefilingof theappealbut prior to its dis missal, the Central ~vernment referred to an IndustrialTribunal thequestionas to whetheraction, by the appellant-Bank,in dis continuing pigmy collectionand paymentthereof to the workmen, wasjustified.The respondentfiled a complaintto the Industrial Tribunalalleging that the appellantcontravened s. 33 of the Indus trialDisputeAct as the orderof dismissalhad beenpassed durin!I the pendency of an IndustrialDispute, the managementshould have askedthe IndustrialTribunal for approval of theiraction,and they shouldhave paid him one month'swages. The IndustrialTribunal heldthat the dismissal of therespondentbecame effectiveonly after the workingcommitteedisposed of the appeal,and as during this periodan IndustrialDispute was pendingthe managementwas bound to complywith the provisoto s. 33(2)(b) of the Act. In appeal to thisCourt. Held:Therewas no contraventionof s. 33. An order of discharge or dismissal,can be passedonly once;and, inthiscase,the orderof dismissalwas the originalor veryfirst passedby theManagingDirector, on which date the Industrial Dis putehad not evenbeenreferred,for adjudicatioo. No doubt,either byvirtueof theStandingOrders, or byvirtue of a contract,of service, a rightof appealmay be givento a workmanconcerned,to challenge an orderof dismissal. ·But the appellateauthority only considerswhether . the order of dismissalhas to be sustainedor whether it requiresmodification.Further, the provisoto s. 33(2) (b) when it refersto payment of wagesfor onemonth,also indicates t_hat it relates to an order of dischargeor dismissal,which comes into effect immediately, The payment of onemonth'ssalary or v.rages, is to softenthe rigourof unemployment that will facethe work man,againstwhom an order of dischargeor dismissal,has been passed, If the m'!"agement has to waitfor theminimumperiod prescnbedfor fihngan appeal,also awaitthe terminationof the appeal whenone is filed, considerabletime wouJdhave elapsedfrom the date of theoriginalorder, duringwhich periodthe '''Orkman would not havereceivedany salary.[333F-334B] · _EquitableCoal Ltd. v. Tlgu Singh [1958]1 L.L.J. 793 ThePunjab National BankLtd. v. Its Workmen (1960) 1 S.C.R. 806, and S'tra:w board Manufacturing Co. v. Gobind [1962) Supp. 3 S.C.R 618 relied on. 327 328 SUPREME COURT RBl'ORTS [1968) 1 s.0.11. The Managementof Hotel Imperial v. Hotel Workers' Union A [1960) 1 S.C.R. 476, and Collector of Customs, Calcutta v. East India Commercial Co. Ltd. [1963] 2 S.C.R. 563 held inapplicable. CIVIL APPELLATE JurusmcnoN: Civil Appeal No. 503 of 1966. Appealby specialleave from the Award dated November 10, 1964 of theIndustrialTribunal, Andhra Pradesh in Misc. Peti- tion No. 32 of 1964 in IndustrialDispute No. 4 of 1964. B R. H. Gokhale,B. K. Seshu, Parameshwara Rao, JyotanaR. Melkote and R.V. Pillai, for the appellant. M. K. Ramamurthi,Shyamala Pappu and Vineet Kumar, for the respondent. TheJudgmentof the Court was delivered by Vaidialingam, J. This appeal,by specialleave, is directed againstthe award,dated' November 10, 1964, of theIndustrial Tribunal,Andhra Pradesh,Hyderabad, attepting a complaint, filed bytherespondent,under s. 33A, of theIndustrialDisputes Act, 1947 (ActXIVof 1947) (hereinafter calledthe Act). u The respondent was, at the materialtime, workingin the mambranchof theappellant,at Belgaum. By orderdatedMarch D 8, 1963, the respondent was transferredto Bhatkalbranch, as a 'C'rank Officer, to workthere,as anaccountant. He was also informedthat he was being relieved, so as to enable him to pro ceed to duty, at the place of transfer,by March 18, 1963. He was allbwedthree days'joining time. On March 13, 1963, the Managerof theBranchat Belgaum, informedthe respondentthat he was relieved, with effect from E that date, to join dutyat theBhatkalbranch, by March 18, 1963. Therespondent, by letterdatedMarch 14, 1963, after settingout thevariousmatters therein,applied for privilegeleave, for ninety days,from March 14, 1963 to June 11. 1963, so as to enable him to improve his healthand also to attendto oertain domestic matters.But the Bank,the appellantherein, desiredhim, by their letterdatedMarch 23, 1963, to join duty and thenapplyfor leave, ifnecessary. Some furthercorrespondenceensued, betweenthe Bankand the respondent,the respondentagain makinga request F torsanctionof his leave and the appellantBank insistingupon his joining duty, accordingto theorderof transfer,and then applyingfor leave.But, as the respondentdid not join dutyat the Bhatkalbranch, though he was relieved from the Belgaum office, the appellant,by theircommunication,dated July 23, 1963, G desiredthe respondent to offer explanation for not obeying the orderof transfer.The respondentsent a reply, on July 29, 1963, statingwhat, accordingto him, were thereasons for his not join- ingdutyat thetransferred office. Theappellant'Bank, not satis- fied withthe explanation,given by therespondent,framed two char~es againsthim, and communicatedthe same, on Aue;ust 7, l 1963. The charges were to the effect that (a) the respondent,by wilfullydisobeyingthe lawfuland reasonabletransfer order of A B c D E F G H SYNDICAl'E BANK v. 1'.R.V. BHAT ( Vaidialingam, J .) 329 the management, has committedgross misconduct,for whichthe punishment is dismissalfrom service;and (b) the respondenthad absentedhimself from duty fromMarch 14, 1963, withoutleave, whichagain, is a minor misconduct forwhichalso punishment can be imposed.The respondentwas alsodirectedto submithis explanal!on,if any, to thecharges,on or beforeAugust25, 1963. The respondentoffered his explanationto thecharges,by his letter,dated August21, 1963. The appellantinformed the respon dent, on October I. 1963, thatan enquirywould be conducted againsthim, in respectof thecharges,on October 5, 1963, and desiredhim to be presentat theenquiry,with the necessary evidence, in supportof hisdefence. Theinquiry was conductedby theEnquiryOfficer, in which the respondentparticipated.The Enquiry Officer senta report to theManagingDirector of the Ba!nk, dated October 28, 1963, sub stantiallyfinding the respondentguilty of boththe charges. In respectof the first chargeof grossmisconduct,for wilfully dis obeyingthe orderof transfer,the Enquiry Officer hadproposed thatthe respondentshould be dismissedand, in respect of the secondcharge,of absentingwithout leave, it was proposed in the reportthat the incrementbe stopped,for a periodof sixmonths, with effect fromApril 25, 1963. Certainconsequentialproposals werealso made, as to how exactlythe respondent'sabsence, was to be dealt with. TheManagingDirector of theBank,after consideringthe re port submitted by the Enquiry Officer, us well as thefurther ex planation, offered by the respondent, in respectof thefindings re corded in the saidreport,by hisorderdatedNovember 12, 1963, agreed with the recommendationof theEnquiry Officer, dismissed therespondent from the service of theBankwith immediateeffect, for the offence of wilfuldisobedienceof theorderof transfer.The respondent was alsoinformedthat he mightappeal,againstthe orderof dismissal,to theworkingcommitteeof theDirectorsof the Bank, within forty-fivedays of receiptof theorder. Therespondent filed an appeal, on December 17, 1963, be forethe workingcommitteeof theDirectors,wherein he attacked thevariousproceedings,culminating in the order of dismissal, pa~sed againsthim. Intimationof thehearingof theappeal was given to therespondent.But, it is seenthat on thedatewhenthe appeal was takenup forhearing, viz., March 20, 1964,the res pondent was not presenteither in personor throughauthorised representativeof his. In consequence,the workingcommitteeof theDirectorsdismissedthe appealon March 20, 1964. In the appellateorder, the workingoommitteehas elaboratelyconsidered thevariouscircumstancesnecessitating the conductof the en quiry,the enquiryproceedingsand the answersgiven by the res pondent;and it has,ultimately,agreed with the findingsrecorded 330 SUPRJl)li: COUBT BEPOR'fS (1968) I S.C.11.· in theenquiryproceedingsthat the respondenthad wilfully dis- A obeyedthe lawfulorders of themanagementtransferring him. Theresuit was thatthe orderof dismissal,passed by the Manag- ingDirectoron November 12, 1963, was continued. Atthisstageit maybe mentionedthat the Central Govern menthad refe1Ted, on Ja111uary 8, 1964, for adjudication,to theB IndustrialTribunal, of which Dr. Mir Siadat AliKhan was appoin· ted as thepresidingofficer, with headquartersat Hyderabad,the question as towhetheraction, by the appellantBank, in disconti· nuing pigmycollection and paymentthereof to theworkmen, was justified.This was numbered as I. D. No. 4 of 1964, andthe award,in thisdispute, was given on August 26, 1964, andthe CentralGovernmentpublished the same,in theGazetteof India, C on September 7, 1964. Therespondent filed a complaint,under s. 33A of theAct, onJune4, 1964,beforethe CentralGovernmentIndustrial Tri bunal, at Hyderabad,attacking the enquiryproceedings,conduct- edagainsthim, and the orderof dismissal,passed by the appellant. Apartfrom attackingthe inquiryproceedings,on merits, as mala D fide, therespondentcontended that the orderof dismissalhad beenpassedagainsthim, withoutthe appellantBank complying withthe provisionsof theprovisoto s. 33(2)(b), of theAct. Accord- ingto him,inasmuch as the orderof dismissalhad beenpassed, duringthe pendencyof I. D. No. 4 of 1964, themanagement shouldhave askedthe Industrial Tribunal for approvalof their action,and theyshouldhave paid him one month's wages. There- E fore,inasmuch as thesethings were ntit done,the appellantshave contravenedthe provisitins of s. 33 of theAct. TheappellantBank, in theircounter-statement,pleaded that .he domesticenquiry, conductedby themanagement, was very fairandthatthe actionof themanagement,in dismissingthe res pondent, was perfectly justified. In this connection,the appetlant 1 raisedthe contentionthat the respondent was not a 'wllrkman ', andthat,in anyevent,he was not a workmanconcernedwith the dispute covered by I.D. No. 4of 1964, andthereforehe was not entitledto file an application,under s. 33A. They further con tendedthat therewas no contravention tlf s. 33 of theAct, be cause,at thetimewhen the orderdismissingthe respondent was passed,on November 12, 1963,therewas no industrialdispute G pending, so as to makeit obligatoryon thepartof theappellant, Ill take action,in accordancewith the provisoto s. 33(2)(b), of theAct. TheIndustrialTribunal, by its order.under attack, has over ruled all the objedtions, raisedby themanagement.The Tribunal II has heldthat the respondentwas a 'workman'and thathe was also a workmanconcernedin I. D. No. 4 of1964,and therefore SYNDIC.lTll BANX 11. X.B. v. H..lT ( v aulialingam, J.) 331 A he was competentto file an application,under s. 3 3A. The Tribu nal has also heldthat the dismissalof therespondentbecame effec tive only on March 20, 1964, whenthe workingcommitteeof the Directorsof theappellant Bank disposed of theappeal, filed by the respondent. As thisdate fell withinthe period,betweenJan- . uary 8, 1964 and October 8, 1964,(duringwhich I. D. No. 4 B of 1964 was pending) the management was boundto complywith theproviso to s. 33(2)(b) of the Act. As this provisohad not been compliedwith, the. Tribunal held that there was a contravention of theprovisions of s. 33 of theAct,which gives a right to the respondent to invokethe jurisdictionof the Tribunal, under s. 33A of theAct. c D B F G B Afterhavingheld that there is a contravention, of s. 33 of theAct,the Tribunalthen consideredthe atta~k levelled, as against the domesticenquiry proceedings,by 'the respondent, and recordeda finding to the effect thatit was not fair to consider that the. respondenthad wilfullydisobeyedthe orderof transfer, passedby themanagement.The tribunal,thereforeheld, on both the findings,that the respondentshould be reinstated,with con- tinuity of serviceand back wages. Thesamecontentions,that wereraisedbeforethe Industrial Tribunal, on behalf of' themanagement,have beenurgedbefore us, by the appellants'learned counsel, Mr. Gokhale.Counsel urged thatthe respondent is nota 'workman'and, in anyevent, he is not a1 workman concernedwith the disputein I.D.No. 4 of 1964. Counsel further pointedout thateven aissuming that the findings oftheTribunal,recorded against the appellant,were correct,the application,under s. 33A, was not maintainable,inasmuch as there was no contravention, by themanagement,of any of the provisionsof s. 33, of the Act.In thisconnection,counsel pointed out,thatthe orderof dismissal,having been passedby the Manag ing Director,onNovember 12, 1963, long before Januaiy 8, 1964, the datewhenI.D. No. 4 of 1964, was referred,there was no obligation,on thepart of the management, tt> askfor approval of the Tribunal,in respectof theiraction,or of paying one month's wages. to therespondent.Counsel also urgedthat even if these questionswere answeredagainst the appellant,the awardwould have to besetaside,becausethe IndustrialTribunal had really constituteditself as a ·court of appeal,when it setasidethe order of dismissal, passedby themanagement,which was based on the findings recordedin a properdomesticenquiry. Mr. M. K. Ramamurthy, leained. counsel, appearing for the respondent, has supported the views, expressed by theTribunal, on all aspects. If thecontentionof theappellant,that there was no Indus trial dispute,pendingat thetime,whenthe orderof dismissal was passed, is accepted, then,quitenaturally, at follows that no ouestion of contraventionof s. 33, of theAct,arises,in which 382 SUl'llEKK COURT RlliPORTS [1968) l S.C.R. case, the complaint,under s. 33A, is not maintainable, in law.A In an enquiry,under s. 33A, the first questionthat the TribJ al will haveto consider, is regardingthe contravention, by the em ployer,of theprovisionsof s. 33 of the Act. If this issue is answer- edagainstthe employee, nothingfurther can be done, under s. 33A, of theAct.This positionhas beensettled, by the decisions of this Court, in EquitableCoal, Ltd. v. A/gu Singh(') and The Punjab B NationalBank Ltd. v. Its Workmen('). After hearingarguments, onthisaspect, we are inclined,in theinstantcase. to accept the contentionof theappellant, fa this regard, and hence, no t>ther questionsarise, in theapplication filed, by therespondentunder s. 33A of theAct. There is no controversy,in this case. that the appellantdid C not seek the approvalof theIndustrialTribunal concerned,nor didthey offer or payone mt>nth's wages to therespondent.There is also no controversythat I.D. No. 4 of 1964, canin lawbe con sidered to ·be pendingonly from January 8, 1964, toOctober 8, I 964. The orderof theManaging Directt>r, dismissing the res pondentfrom service, was made on November 12, 1963, which date,admittedly,falls outsidethe duration ·of the pendencyof D I.D. No. 4of 1964. Theorder of the workingcommitteeof Directors,rejecting the respondent'sappeal, which was passed on March 20, 1964, certainly falls within the period when I.D. No. 4 of 1964 was pending.Therefore,the questionthat arisesfor con sideration,in thiscase, is as to when,it can be stated,that the respondent was dismissed, i.e., by the order of November 12, 1963, oftheManagingDirector, or by the appellateorder t>f March 20, E 1964, passed by theworkingcommitteeof Directors.According to the appellant,the order which has to be takeninto account, for consideringwhether there is a contraventit>n of s. 33 of the Act, is the originalorder passed, by the ManagingDirector, on November 12, 1963, whereas, according to therespondent, the appellateorder, passed on March 20. 1964, is the effective order, dismissinghim.F Therespondent'scontention, in this regard, is briefly as fol lows. Under the NationalIndustrialTribunal (Bank Disputes) Award, 1962 (known as the DesaiAward),a workman,in such cmes, has gota rightof appeal,to theappropriateauthority. and hehasgot a periodof 45 days, for filing the appeal.In this case, the order of theManagingDirector, dated November 12, · 1963, G also statesthat respondent is entitledto file an appeal,against thatorder,to theworkingcommitteeof theDirectors,within 45 days of receiptof thatorder.The respondent,admittedly, filed an appeal,on December 17, 1963, well withinthe time. The appeal was disposedof, onMarch 20, 1964. Thelanguage t>f s. 33(2), counselpoints out, is to the effect thatthe employerbas B (1) [1958] I L.L.J. 793. (2) [1960] 1 S.C.R. 806. A B c ~YNDICATE BANK 1), K.R.V. BHAT (Vaidialingam, J.) 333 been enabledto takeaction,'in ioocordance with the standing 0rders applicableto a workmanconcerned,in suchdispute'. In asmuchas thestandingorders, in thiscase,give a rightto appeal, totheworkman,any orderthat is passed,by themanagement,in respectof whicha rightof appeal is givento a workman,cannot be ·considered to be an effective or operativeorder, till the appel latedecision is madeknown. It will be open to the appellantto takeaction, in accordancewith the provisoto s. 33(2)(b), at the timewhenthe appellateorder was passed,on March 20, 1964, as theappellateorder is the effectiveand bindingorder. So far as the partiesare concerned,the orderof dismissal,in thiscase, mustbe consideredto havebeen passed only on March 20, 1964, whichdate squarelyfalls withintheperiod, during which I.D. No. 4 of 1964, was pending.We are notinclinedto acceptthe contentionsof thelearnedcounsel,for therespondent,in this regard. It hasbeenlaid downby thisCourt,in Strawboard Manufac turing Co. v. Govind('), in donstruingthe provisoto s. 33(2)(b) of theAct,that the threethingscontemplated, viz .. dismissalor Ddischarge,payment of the wages andmakingof theapplication, shouldbe partof thesametransaction.Therefore, in ourview, theremust be a fixed andcertainpoint of timewhichwill be applicableto allmanagementsand workmen,when construing th-e provisionsof s. 33 of theAct.The managementmust definitely know,as to whenthey haveto takethenecessaryaction. under theprovisoto s. 33(2)(b), and the workmanalso should,likewise, Eknowthe definitetime when .. the managementshould have com plied with the requirementsof theprovisoto s. 33(2)(b), so that he ct>uld approachthe IndustrialTribunal, by way of a complaint, under s. 33A,of theAct.A reading of thematerialprovisionsof s. 33 shows that the expressibns usedare 'dischairge or punish, whetherby dismissalor otherwise',and theyclearly indicate, in ouropinion,the pointof time,whenthe orderof discharge or dis- F missal is passed,by theauthorityconcerned. An order of dis chargeor dismissal,in ouropinion,can be passedonly once;and, inthiscase,the orderof dismissal is theone passed, by the Mana ging Director,on November 12, 1963.No doubt,either by virtue oftheStandingOrders, or byvirtueof a contract,of service,a rightof appealmay be givento a workman concierned, to chal lengean orderof dismissal.But the appellateauthority only consi- Gders whetherthe order of dismissalhas to besustained,or whether it requires modification. Therefore,there is no questionof tbe appellateauthority passing. again, an orderof dismissal. We are notconcerned,in construingthe provisionsof s. 33, as to the finalityof theorderspassed,by theauthorityconcerned, in tbe firstinstance,in passingorders of dismissalor discharge. BFurther,the provisoto s. 33(2)(b), when it refers to pay ment of wagesfor onemonth,also indicates that it relates fo ali L/SllSOI-S (1) [1962] Supp, 3 S.C.R. 618, 630. 334 SUPREME COURT REPORTS [1968] 1 S.C.R. brder of dischargeor dismissal,which comes into effectimmediate- A ly, which, in thiscase, is the orderpassed,on November 12, 1963. Thepayment of one month'ssalary or wages, is to softenthe rigourof unemploymentthat will face the workman,against whom an orderof dischargeor dismissal,has beenpassed. If the manage menthas to waitfor theminimumperiod prescribed for filing an appeal,and alsoawaitthe terminationof theappealwhen one is filed, considerabletime would have lapsed from the dateof the originalorder, duringwhich periodthe workmanwould not have receivedany salary. It will be anomalous to holdthat evenafter thelapseof sucha longtime,the paymentof onemonth'ssalary wouldsatisfy the requirements of thesection. B In thiscase, if the contentionof therespondent is accepted, it will leadto veryanomalousresults, and the timewhena manage- C menthas to complywith the provisoto s. 33(2)(b), will radically differ.For example,accordingto therespondent,the management, in this case, will have to waitfor the minimumperiod of 45 days, which is thetime given for therespondent,to file an appeal. If anappeal is filed, accordingto therespondent,the management willhaveto waitfurther,and awaitthe disposalof theappeal. That means, in sucha case,the proviso will comeinto effectonly atthetimewhenthe appeal is disposed of. On the otherhand. if,afterthe expiryof 45 days, the workmanconcerneddoes not file an appeal.the management,aocording to theresnondent, will haveto complywith the provisoimmediatelyafter the periodof limitation is over. That is,thepointof timewhenthe provisoto s. 33(2)(b) will haveto be comoliedwith, by themanagement,will deiiend uoon the filingor non-filingof anappeal.by theworkman concerned.Further. if at thetime,whenthe originalorder of dis missal is passed.there is no disoutepending.and whenthe anneal aiiainst theorderof rlismissal is pendinri. a disPute is referred foradjudication, it will be opento themanagement lb prolon!! its decision, in theappeal.till afterthe Industrialdispute has cometo anend. Tt cannotbe theintentionof theLegislaturethat suchvariableand indeterminateperiods are contemplated in con struingthe provisoto s. 33(2)(b). The naturaland reasonable in temretation, to be placedon s. 33, is. in onr oninion.that the orderof discharge or dismissal. is theoriginalor theveryfirst oroer passedbv t'he management:which in this case is the one nassed.by the Managing T)irector. on November 12. 196'.l Tt followsthat on that date. T. n. No.4 of1964. had not evenbeen referred,for adjudication. which, as we have alreadvindiroted. was by anorderof Government. datecl January 8. 1964. Hence thereis nocontraventionof s. 33. in this case. · D E F G Before we close the discussion, it is neeessary to statethat Mr. Ramamurthy,, learneifcounsel for the respondent,referred us to two decisions of thisCourt. in ThrManagement·nf Hntel H Imperial v. HoielWorkers'Uninn ·(') and ('nl!rrtnr nf Custnms. -------- --. - ----- - (!) [1960] 1 SCR 476. A B 0 D SYNDICATE BANK v. K.R.V. BHAT ( Vaulialingam, J.) 335 Calcutta v. East IndiaCommercial Co. Ltd.('). In the first deci sion,this Court has recognisedthat a termshouldbe implied,by IndustrialTribunals, in the contractof employment,that, if the master has helda properenquiryand come to the conclusionthat theservantshould be dismissed,and in consequence,suspends him,pendingthe perm'ssion,required under s. 33 of theAct, he has thepower to ordersuspension,thus suspendingthe contract ofemploymenttemporarily, so that there is no obligationon him to pay wages, and no obligationon theservant, to work. In the 9eeond decision,th;s Court held thatin cases wherean appellate authority reverses theorderunderappeal,or modifies the order ormerely dismisses the appealand thus confirms the order ap pealedagainstwithoutany modification,the operative order is the orderof theappellateauthority.In ouropinion,these deci sions do not assist 1he respondentand the principleslaid down therein,have no bearing on the point to be determined in the instant case. Theresult is that the award of the IndustrialTribunal is set asideand the application, filed by therespondentbefore it, will stand dismissed. The appeal is, accordingly,allowed, but without costs. Y.P. Appealallowed (1) [1963] 2 S.C.R. 563; 568 L/SOOI(a)-8. |
