The application for approval of dismissal under Section 33(2)(b) of the Industrial Disputes Act, 1947, is not a condition precedent to the dismissal, and the labor court has jurisdiction to consider the merits of an application for approval of dismissal even if the application is made after a delay.

Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 33 (2) (B) - DELAY IN MAKING APPLICATION FOR APPROVAL OF DISMISSAL - INTERPRETATION - INDUSTRIAL TRIBUNAL'S JURISDICTION - WRIT OF CERTIORARI.
Fact of the Case:

The petitioner, a factory owner, dismissed five workmen for misconduct during a labor dispute. The petitioner applied to the labor court for approval of the dismissals under Section 33(2)(b) of the Industrial Disputes Act, 1947, more than one month after the dismissals. The labor court rejected the application as void due to the delay, without considering the merits of the case.
Finding of the Court:

The court held that the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947, which requires an employer to make an application for approval of a dismissal within a reasonable time, does not make the application a condition precedent to the dismissal. The court further held that the labor court erred in rejecting the application solely on the ground of delay, without considering the merits of the case.
Issues: 1. Whether the application for approval of dismissal under Section 33(2)(b) of the Industrial Disputes Act, 1947, is a condition precedent to the dismissal. 2. Whether the labor court erred in rejecting the application solely on the ground of delay, without considering the merits of the case.
Ratio Decidendi: 1. The court interpreted the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947, to mean that the application for approval of dismissal must be made within a reasonable time, but it is not a condition precedent to the dismissal. 2. The court held that the labor court has jurisdiction to consider the merits of an application for approval of dismissal under Section 33(2)(b) of the Industrial Disputes Act, 1947, even if the application is made after a delay, and that the court erred in rejecting the application solely on the ground of delay.
Final Decision: The court quashed the labor court's order rejecting the application for approval of dismissal and directed the court to consider the application on the merits.

ORDER :- The facts in this case are shortly as follows : The petitioner, Messrs. Metal Press Works Ltd., owns and runs a factory at premises No.156, Victoria Road, Baranagore, in the suburbs of Calcutta. The respondents Nos.2 to 5 were employed therein as (1) Fitter, (2) Welder, (3) Solder-man and (4) Press-man respectively. By an order of reference dated 11th July, 1958 made under Sec.10 of the Industrial Disputes Act 1947, the Government of West Bergal referred certain disputes between the petitioner and its workmen, for adjudication of the Second Labour Court, being the respondent No.1 herein. According to the petitioner, the respondents Nos.2 to 5 were guilty of various unlawful and subversive activities viz., instigating and inciting other workmen to disobey the lawful and reasonable orders of the management, creating hooliganism inside the factory, staging demonstrations etc. On or about 24th/27th February, 1958 charge-sheets were issued to the said respondents by the management. Thereafter, an enquiry was held by the management on the 5th day of July, 1958, but it is stated that the respondents Nos.2 to 5 failed to attend on that day and it was continued on the 19th day of July, 1958. The management came to be of the opinion that the charges have been proved and on the 26th July, 1958 notices were served on the said respondents dismissing them from service, "with immediate effect". One months wages were forwarded to the said respondents with the said notices. On the 28th August, 1958 the company made an application under section 33 (2) (b) of the said Act, for approval of the said orders of dismissal before the Second Labour Court. On the 15th September, 1960 the respondent No.1 rejected the application on the ground that there was unreasonable delay of more than one month in making the application and, therefore, the application was ab initio void. The said respondent held that as a result thereof he could not enter into the merits of the application. It was, further, stated that there was nothing in the application to show why the employer had to make "such a delay" in making the application. In other words, the application was rejected on a preliminary ground namely delay, without going into the merits of the case. It is against this order that this application is directed.

2. The main point that arises in this case is the interpretation of Sec.33 (2) (b) and the proviso thereto, of the said Act. It is necessary for our purposes to set out the provision of Sec.33 (1) and (2) :

"33 (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall:

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute,

save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute.

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman :

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."

3. In this

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1961 Supreme(Cal) 98

HIGH COURT OF CALCUTTAD. N. SINHA, J.Metal Press WorksVersusH. R. Deb.Decided On : 01-06-1961

HIGH COURT OF CALCUTTA
D. N. SINHA, J.
Metal Press Works
Versus
H. R. Deb
.
Decided On : 01-06-1961