The proviso to section 33(2) of the Industrial Disputes Act, 1947 requires the employer to apply to the Tribunal for approval of an action which has actually been taken, not an action proposed to be taken.

Falshaw, J.

1. This is a petition under Article 226 of the Constitution which has been referred to a Division Bench because of certain difficulties arising out of the interpretation of section 33 of the industrial Disputes Act 1947. The section as a whole deals with the maintenance of the status quo during the pendency of conciliation proceedings or cases proceeding before Labour Courts and Tribunals and sub-section (1) deals with the status quo as regards the matters connected with the pending dispute itself. Sub-section (2) reads:

"During the pendency of any such proceedings 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 proceedings; 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 proceedings is pending for approval of the action taken by the employer."

2. The facts of the case are as follows. In June 1958 an industrial dispute between the workers of the New Egerton woolen Mills, Dhariwal, a branch of the British India Corporation Ltd., and the employers was pending before the Industrial Tribunal at Jullundur of which the sole member was Shri Avtar Narain Gujral. On the 18th of June 1958 a fight took place in the office of the Engineering Department between Jiva Mal, the contesting respondent in the present petition, and a Supervisor named Waryam Singh. Both these workmen were charge-sheeted and ordered to be dismissed, after an enquiry, on the 20th of August, 1958. As they were among the workmen concerned in the dispute already pending before the Tribunal an application was filed by the company under section 33(2) of the Act on the 23rd of August 1958 for approval of the orders of dismissal of Waryam Singh and Jiva Mal. This application was decided by the Tribunal by its order dated the 1st of December 1958. The Tribunal held on the evidence produced before it that a prima facie case had been made out for the dismissal of both Waryam Singh and Jiva Mal. But approval was only granted in the case of Waryam Singh.

3. Approval was refused in the case of Jiva Mal on a technical ground, namely, that the terms of the proviso regarding the payment of one months wages had not been complied with. It appears that Jiva Mal was occupying a residential quarter belonging to the Company and in the notice of dismissal conveyed to Jiva Mal was occupying a residential quarter belonging to the Company to Jiva Mal dated the 20th August 1958 he was informed that he would be paid full salary up to date from the date of his suspension and one months salary in addition as provided under the Industrial Disputes Act. but at the same time that these does could be collected from the Cash Office on any working day after he had vacated the Companys quarter which he was asked to do which a week. This imported a condition on the payment not warranted be law. The decision of the Tribunal appears to be wholly correct, and it seems to have been accepted as such by the Company, whose next step was to communicate a fresh order of dismissal to Jiva Mal dated the 50th January 1959. This Communication reads:

"Vide Industrial Tribunals award dated 1st December 1958, the approval of the action was not granted by the Tribunal on a technical ground. A copy of the award is enclosed for your reference.

you are now informed as under; Our letter dated 20th August 1958 be read as under : Para 5. You will be paid full salary up to 20th August 1958 plus one months salary in addition as provided under I. D. Act plus also full salary up to 1st Dec