Judgement

GAJENDRAGADKAR, C.J.I. : This appeal raises a very short point for our decision. The appellant, the Tata Iron and Steel Co. Ltd., Jamadoba, filed an application under S. 33 (20 (b) of the Industrial Disputes Act, 1947 (No. 14 of 1947) (hereinafter called "the Act"), before the Central Government Industrial Tribunal, Dhanbad (hereinafter called "the Tribunal"), asking for its approval of the action which it proposed to take against its employee, the respondent D. R. Singh. This application was made by the appellant, because certain industrial disputes were pending at the relevant time between the appellant and its employees under References Nos. 45, 56, 63 and 65 of 1961. This application was opposed by the respondent who filed his written statement. At the hearing of the application, the appellant urged before the Tribunal that though it had made the present application as a matter of abundant caution, its case was that it was not necessary to apply under S. 33 (2), because the respondent was not concerned with the industrial disputes which were pending between the appellant and its employees in the different References to which we have already referred. In other words, the appellant wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant industrial disputes at all, before dealing with the merits of its application. The appellant s case was that one of the conditions precedent for the applicability of S. 33 is that the workman against whom the employer seeks to take action falling under S. 33 (2) must be a workman concerned in the main industrial disputes; if he is not so concerned, S. 33 (2) will not apply. In order to avoid any complications and with a view to save itself from the charge that it had contravened S. 33 of the Act, the appellant had no doubt made an application as a precautionary measure; that is why it wanted the Tribunal to consider its contention that S. 33 did not apply as a preliminary point. The Tribunal took the view that the appellant could not raise such a contention. It held that if the appellant thought that S. 33 did not apply, it should withdraw the application and take the consequences. On that view, it refused to entertain the plea raised by the appellant and proceeded to deal with the merits of the application. In the result, the Tribunal was not satisfied that a prima facie case had been made out for the dismissal of the respondent, and so, approval was not accorded to the action which the appellant wanted to take against the respondent and its application was accordingly dismissed. It is against this order that the appellant has come to this Court by special leave.

2. The learned Solicitor-General for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether S. 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself. It would be legitimate for an employer like the appellant to make an application under S. 33 without prejudice to his case that S. 33 did not apply. The question about the construction of the words "a workman concerned in such dispute" which occur in S. 33 (1) and (2) has been the subject-matter of judicial decisions and some-what inconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jahangir Vakil Mills Ltd., Bhavnagar v. N. L. Vyas, 1958-2 Lab LJ 573, while others put a broader construction on them, vide Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing Workers Union , 1952-1 Lab LJ 628 (LATI-Cal); Newtone Studios Ltd. v. T. R. Ethirajulu, 1958-1 Lab LJ 63 and Andhra