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Judgment
Honourable Mr. Justice K. Chandru
The petitioner is State Express Transport Corporation Limited at Chennai. In this writ petition, they have come forward to challenge an order
passed by the first respondent viz., Joint Commissioner in Approval Petition No.50 of 2005 dated 05.01.2007. By the impugned order, the first
respondent declined to grant approval for the dismissal of the second respondent workman vide their dismissal order dated 14.03.2005. When the
writ petition came up on 10.09.2007, notice regarding admission was given. Pending the writ petition, an interim injunction was granted.
Subsequently, the writ petition was admitted on 01.12.2011 and the main writ petition was directed to be posted during January 2012. The interim
injunction was made absolute as no vacate stay application has been filed by the workman.
It is seen from the records that the contesting second respondent was employed as a Tradesman in the technical side of the petitioner
corporation. He was charge sheeted for having absented from duty with effect from 17.12.2003. The workman when he was asked to report for
duty sent a letter dated 10.03.2004 seeking for extension of medical leave. Disciplinary action was initiated against the second respondent treating
his absence from 17.12.2003 as unauthorised absence. Though the workman claimed that he was suffering from illness like elephantiasis and piles,
as he did not enclose medical certificate from the Government Hospital, they did not consider his leave request seriously. On the basis of enquiry
proceedings, a second show cause notice was issued to him and thereafter, by an order dated 14.03.2005, he was dismissed from service.
At the relevant time, as there was dispute pending before the Commissioner of Labour, an approval petition was filed u/s 33-2(b) of the
Industrial Disputes Act. The first respondent was directed to hear the matter. He took up the application in A.P.No.50 of 2005 and issued notice
to the second respondent. After hearing both sides, the authority declined to grant approval only on the short ground that the application was not
filed as part of the same transaction. In the impugned order, he had observed as follows:
The next issue to be decided is whether the Applicant has simultaneously or within such reasonably short time as to form part of the same
transaction applied to this Authority before which the main industrial dispute was pending for approval of he action taken by him. The opposite
party was dismissed by an order dated 14.03.2005. The application seeking approval was filed before this Authority on 6.4.2005. The time
interval between the two actions is 24 days. The time interval between the action of dismissal and the action of filing the approval application is so
so big that both the actions could not b e regarded to be part of the same transaction. The Applicant had violated his mandatory condition of
Section 33(2)(b) of the Industrial Disputes Act, 1947. Therefore, for this reason, I refuse to accord approval for the dismissal of Thiru
D.Kaliyaperumal, Tradesman (Technical Assistant), Staff No.4715.
Challenging the same, the petitioner Corporation contended that the delay of 22 days cannot be considered as unreasonable and it should be
taken as a simultaneous action.
As it involves an interpretation of Section 33(2) of the Industrial Disputes Act, 1947, it is necessary to extract the said provision of law:
Section 33 (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 (or, where there are no such standing orders, in accordance with the terms of the
contract, whether express or implied, between him and the workman),
(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.
(emphasis added)
The Supreme Court vide its judgment in Strawboard Manufacturing Co. Vs. Gobind, had an occasion to consider the scope of Section 33(2)
(b) of the Industrial Disputes Act, 1947. The Supreme Court had explained the proviso to Section 33 (2)(b) of the Act. In pages 425 and 426 of
the Report, it was observed as follows:
The next question is as to when should an application be made. In this connection, our attention was drawn to Section 33A of the Act which gives
a right to the employer to apply for redress in case an employer contravenes the provision of S.33 and there is no doubt that the proviso to Section
33(2)(b) should be so interpreted as not to whittle down the protection provided by S.33A. As we read the proviso, we are of opinion that it
contemplates the three things mentioned therein, namely,
(i) dismissal or discharge;
(ii) payment of wages; and
(iii) making of an application for approval,
to be simultaneous and to be part of the same transaction, so that the employer when he takes action u/s 33(2) by dismissing or discharging an
employee, should immediately pay him or offer to pay him wages for one month and also makes an application to the tribunal for approval at the
same time. When, however, we say that the employer must take action simultaneously or immediately, we do not mean that literally, for when three
things are to be done, they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer''s conduct
should show that the three things contemplated under the proviso, namely,
(i) dismissal or discharge;
(ii) payment of wages; and
(iii) making of the application
are parts of the same transaction. If that is done, there will be no occasion to fear that the employee''s right under S.33A would be affected. The
question whether the application was made as part of the same transaction, or at the same time when the action was taken, would be a question of
fact and will depend upon the circumstances of each case.
We may now refer to certain cases which have been relied upon by either side. The main case on which learned counsel for the respondents relies
is Premier Automobiles Ltd. Vs. Ramachandra Bhimayya Polkam, In that case, the Bombay High Court held that the application should be made
before the action has been taken by the employer and that it was not correct to infer from the use of the word ""approval"" in the proviso that the
legislature intended that such an application should be made after the action had been taken. The High Court has pointed out that there is apparent
conflict between the first and last part of the proviso and the view it took was with the object of harmonizing the two parts. This view has been
followed by the Gujarat High Court in Indian Extractions (Private) Ltd. Vs. Vyas (A.V.) and Another, though with some hesitation. With respect
we feel that it is not necessary to read the words ""action taken"" in the proviso as equal to ""action proposed to be taken"" as the Bombay High Court
has done and that the apparent conflict between the two parts of the proviso can be harmonized, as we have indicated above, leaving it open to the
employer to dismiss or discharge the employee and at the same time pay him the necessary wages and make an application to the authority
concerned for approval of the action taken. The contrary view has been taken by the Calcutta High Court in Metal Press Works Ltd. Vs. Deb
(H.R.) and Others, where it has been held that payment of wages and the making of the application should be simultaneous with the order of
discharge or dismissal. It has further been pointed out that
:the word ""simultaneously"" must of course be taken reasonably and a motion of split-second timing should not be imported. It should be done at
once and without delay.
and it will depend upon the facts of each case whether the application had been made at once or without delay. This, we think, is the correct view
to take.
Let us, therefore, see what has happened in this case. The appellant concern is situate at Saharanpur while one tribunal was at Meerut and the
other at Allahabad. What the appellant did was to pass an order of dismissal on 1 February 1960. On the same day, he sent two applications by
post addressed to the two tribunals. The application at Meerut was received on 3 February and the application at Allahabad on 4 February 1960.
In these circumstances, we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing
the order of dismissal and its action was, therefore, in accordance with the proviso. The view taken by the labour Court that the application must
be made before dismissing the respondent, is not correct. The appellant in this case had complied with the proviso to Section 33(2)(b) when it
dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal
concerned for approval of the action taken by it.
The Supreme Court, once again, considered the scope of proviso to Section 33(2)(b) of the Act in the judgment in Calcutta State Transport
Corporation Vs. Md. Noor Alam, . In that case, the Court also referred to Strawboard Manufacturing Co. Vs. Gobind, and in paragraph 4, it was
observed as follows:
4..........The employer''s conduct should show that the three things contemplated under the proviso are parts of the same transaction. (See
Strawboard Manufacturing Co. Vs. Gobind, In P.H. Kalyani Vs. Air France Calcutta, he order of dismissal was passed on May 28, 1960 and
was communicated to the employee on May 30,1960. The wages were offered to him at the same time when the order was communicated. An
application was made under S.33(2)(b) on the same day. It was held that the application was in accordance with the proviso to S.33(2)(b). This
decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done
on the same day. It is the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or
discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one
thing or the other may not be of materials consequence so long as it is clear that the employer meant to do all the three things as part of one and the
same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts. (Emphasis added)
The Supreme Court in the judgments cited have considered as to what was meant by the ""same transaction"" and held it has to be seen in the
facts and circumstances of each case. In the case of Calcutta State Transport Corporation Vs. Md. Noor Alam, the Supreme Court held that a
day''s delay cannot be said to be material consequence so long as it was clear that the employer had meant to do all the three things as part of one
and the same transaction. In the case of Strawboard Manufacturing Co. Vs. Gobind, the Supreme Court rejected the argument that approval
should be obtained before dismissal. The Supreme Court had held that the word ""simultaneously"" must of course be taken reasonably and a motion
of split second timing should not be imported. It should be done at once and without delay. In the present case, the Authority had categorically
held that 24 days delay was unexplained and therefore, the time gap is too large. In the light of the principles enunciated in the above decisions of
the Supreme Court, the writ petition stands dismissed. However, there shall be no order as to costs.