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1965 Supreme(Pat) 102
PATNA HIGH COURT
R.L.Narasimham and R.J.Bahadur JJ.
Jagdish
Versus
Presiding Officer, Labour Court
Miscellaneous Judicial Case No. 541 of 1962 ;
Decided On : SEPTEMBER 22, 1965
The failure to pay one months wages to a dismissed workman will be a direct contravention of the proviso to Sub-section (2) of Sec.33 of the Industrial Disputes Act, 1947.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 33 - SECTION 33A - DISMISSAL OF WORKMAN - APPROVAL OF LABOUR COURT - PAYMENT OF ONE MONTH'S WAGES - JURISDICTION OF LABOUR COURT - INDUSTRIAL DISPUTE - ADJUDICATION ON MERITS - SUMMARY DISMISSAL - VALIDITY.
Fact of the Case:
The petitioner, a workman, was dismissed from service by the respondent employer during the pendency of an industrial dispute. The employer applied to the Labour Court for approval of its action in pursuance of the proviso to Sub-section (2) of Sec.33 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). The workman also filed an application under Sec.33-A of that Act, and the Labour Court heard both the applications at the same time and disposed of them by one order. The Court observed that the employer did not pay wages for one month to the workman before dismissing him from service and applying to the Court for approval of its action in pursuance of the proviso to Sub-section (2) of Sec.33. The Court observed: "Under the circumstances, if this application under Sec.33 were to stand alone it would not have been possible for me to accord any approval to the action of dismissal taken by the Company against the workman concerned."
Finding of the Court:
The Labour Court held that there was contravention of the provisions of Sec.33 by the employer inasmuch as one months wages were not paid to the dismissed! workman, and, consequently, the Labour Court had jurisdiction to consider the dispute under Sec.33A of that Act. The Court further held that the order of dismissal was justified on merits.
Issues: 1. Whether there was contravention of the provisions of Sec.33 of the Act by the employer? 2. Whether the Labour Court had jurisdiction to consider the dispute under Sec.33A of the Act? 3. Whether the order of dismissal was justified on merits?
Ratio Decidendi: 1. The Court held that there was contravention of the provisions of Sec.33 of the Act by the employer inasmuch as one months wages were not paid to the dismissed! workman. The Court observed that the failure to pay one months wages to a dismissed workman will be a direct contravention of the proviso to Sub-section (2) of Sec.33 in view of the express provision made therein to that effect. 2. The Court held that the Labour Court had jurisdiction to consider the dispute under Sec.33A of the Act. The Court observed that once the jurisdiction is conferred by such an application, the Labour Court has no other option but to adjudicate on the dispute. The question about the contravention of the provisions of Sec.33 arises only for the limited purpose of conferring jurisdiction on the Labour Court under Sec.33A, but once the jurisdiction is conferred, the Labour Court has to decide the industrial dispute on its merits. 3. The Court held that the order of dismissal was justified on merits. The Court observed that the charges against the petitioner were proved by two co-workers, namely, Bishwanath and Ganesh, against whom also there were departmental proceedings pending at that time. The rules of natural justice were complied with in conducting the departmental enquiry and there was some evidence though of a somewhat tainted nature, to substantiate the charges.
Final Decision: The application was dismissed but in the circumstances without costs.
Narasimham, J.
1. This is an application by a workman to quash an order passed by the labour Court in Miscellaneous Case No. 6 of 1960, maintaining the order of the employer (respondent No. 2) dismissing the petitioner from service. 2-a. As the dismissal took place during the pendency of another industrial dispute, the employer sought the approval of the Labour Court, in pursuance of the proviso to Sub-section (2) of Sec.33 of the Industrial Disputes Act (hereinafter referred to as "the Act"). The workman also filed another application under Sec.33-A of that Act, and the Labour Court heard both the applications at the same time and disposed of them by one order. The Court observed that the employer did not pay wages for one month to the workman before dismissing him from service and applying to the Court for approval of its action in pursuance of the proviso to Sub-section (2) of Sec.33 The Court observed:
"Under the circumstances, if this application under Sec.33 were to stand alone it would not have been possible for me to accord any approval to the action of dismissal taken by the Company against the workman concerned."
But it thought that as the workman himself by filing an application under Sec.33-A raised an industrial dispute it was open to the Court to consider the dispute and decide whether the dismissal of the workman was justified on merits. It then examined the materials that were before the enquiring officer of the employer, (on the basis of which the workman was found guilty of the charges) and came to the conclusion that there were sufficient grounds for the dismissal of the workman Hence it upheld the order of dismissal.
2. Mr. Ranen Roy for the petitioner-work man raised the following four contentions:-
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(1) There was no contravention of the provisions of Sec.33 and, consequently, the Labour Court had no jurisdiction to decide the dispute under Sec.38-A
(2) Alternatively, once it held that there was contravention of Sec.38 (2), so far as the non-payment of one months wages to the petitioner was concerned, and consequently it was not prepared to approve the action of the employer in dismissing the workman, nothing further remained to be done, and following the observations of their Lordships of the Supreme Court in the Straw Board Manufacturing Co., Ltd. Saharanpur V/s. Gobind, AIR 1962 SC 1500, the labourer must be deemed to have been reinstated and further proceedings under Sec.38-A of the Act should have been dropped.
(3) On the materials on record the Labour Court should not have held that there was due enquiry into the charges against the workman and the rules of natural justice were observed and that the dismissal was justified on merits.
(4) In any view of the ease, the giving of retrospective effect to the order of dismissal from the date of suspension of the workman was invalid in law.
3. Before discussing these points, I may briefly refer to certain admitted facts. On the 81st March 1960, specific charges of misconduct were framed against the petitioner and he was called upon to answer those charges and further informed that a departmental enquiry would be made on the 11th April, 1960, where he would be given full facilities to cross-examine the witnesses who might depose against him and also to adduce evidence on his behalf. He was also informed that he was suspended forthwith from duty pending enquiry (see Annexure A) The allegations of misconduct mentioned in the charges are of serious nature, including theft, fraud and dishonesty in respect of certain articles of the Company. A regular departmental enquiry was held against the workman and also against some other workman, and on the basis of the enquiry report the employer by his order dated the 18th May, 1960, (Annexure D), dismissed the petitioner from service with retrospective effect from the date of his suspension, namely the 31st March, 1960. An application was also made to the Labour. Court for approval of the order in pursuance of
