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TMI Blog1978 (2) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... in receipt of ₹ 100/- per month as salary which would have been raised to ₹ 115/- per month from 1st August, 1972 if he had continued in service with the appellant. But on 21st December, 1971 the 1st respondent was suspended by the appellant and a chargesheet was served upon him and before any inquiry on the basis of this charge sheet could be held, another chargesheet was given to him on 17th April, 1973. This was followed by a regular inquiry and ultimately the appellant, finding the 1st respondent guilty, dismissed him from, service by an order dated 23rd December, 1974. Now, at the time when the 1st respondent was dismissed from service, an industrial, dispute was pending before the Industrial Tribunal at Chandigarh, and therefore, in view of the provisions contained in section 33 (2) (b) of the Act, the appellant immediately approached the Industrial Tribunal, before which the industrial dispute was pending, for approval of the action taken by it. The application was resisted by the 1st respondent, but before it came up for hearing, the appellant applied to the Industrial Tribunal for withdrawing the application and the Industrial Tribunal thereupon made an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application of the 1st respondent under section 33C(2) and to direst the appellant to pay the arrears of wages to the 1st respondent. The Labour Court accordingly allowed the application of the 1st respondent and directed the appellant to pay an aggregate sum of ₹ 6485.48 to the 1st respondent on account of arrears of wages upto 30th September, 1976. Similarly and on identical facts, the Labour Court also allowed the application of another workman and directed the appellant to pay to him a sum of ₹ 6262.80 in respect of arrears of wages upto the same date. The appellant thereupon preferred Civil Appeals Nos. 1375 and 1384 of 1977 after obtaining special leave from this Court. The principal question which arises for consideration in these appeals is as to what is the effect of contravention of section 3 3 (2) (b) on an order of dismissal passed by an employer in breach of it. Does it render the order of dismissal void and inoperative so that the aggrieved workman can say that he continues to be in service and is entitled to receive wages from the employer ? It is only if an order of dismissal passed in contravention of section 3 3 (2) (b) is null and void th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under section 33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under section 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of section 33(2)(b) introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid. The determination of this question depends on the true interpretation of section 33 (2) (b), but it is a well settled rule of construction that no one section of a statute should be read in isolation, but it should be construed with reference to the context and other provisions of the statute, so as, as far as possible, to make a consistent enactment of the whole statute. Lord Herschel stated the rule in the following words in Colguhoun v. Brooks. ([1889] 14 A.C. 493 at 506) It is beyond dispute, too, that we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate the already strained relations between the employer and the workmen. But at the same time it recognises that occasions may arise when the employer may be justified in discharging or punishing by dismissal his employee and so it allows the employer to take such action, subject to the condition that in the one case before doing so, he must obtain the express permission in writing of the Tribunal before which the proceeding is pending and in the other, he must immediately apply to the Tribunal for approval of the action taken by him. On what principles however is the Tribunal to act in granting or refusing permission or approval and what is the scope of the inquiry before it when it is moved under this section ? This question came up for consideration and was decided by this Court in Atherton West Co. Ltd. v. Suti Mill Mazdoor Union Ors. ([1953] S.C.R, 780.) and Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup([1956] S.C.R. 916.) and Gajendragadkar, J, summarised the effect of these two decisions in the following words in The Punjab National Bank, Ltd. v. Its Workmen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in such reference would be entitled to interfere with the order of discharge or dismissal within the limits laid down by this Court in several decisions commencing from Indian Iron Steel Co. Ltd. v. Their Workmen([1958] S.C.R. 667.). This is the position which arises when the employer makes an application for permission or approval under section 33 and such permission contravention of section 33, the fight to move the Tribunal for redress of his grievance without having to take recourse to section 10. Now, what is the scope of the inquiry under Section 33A when a workman aggrieved by an order of discharge or dismissal passed in contravention of section 33 makes a complaint in writing to the Tribunal under section 33A. This question also is not res integra and it has been decided by this Court in a number of decisions. The first case where this question came up for consideration was The Automobile Products of India Ltd. v. ukmaji Bala Ors. ([1955] 1 S.C.R.1241.) where the Court was called upon to construe section 23 of the Industrial Disputes (Appellate Tribunal) Act 1950 which corresponded to section-33A of the Act. Section 23 conferred a right on a workman ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of S. 22 proved ? If yes, is the Y order passed by the employer against the employee justified on the merits ? If both these questions are, answered in favour of the employee. the Appellate Tribunal would no doubt be entitled to pass an appropriate order in favour of the employee. If the first point is answered in favour of the employee, but on the second point the finding is that, on the merits the order passed by the employer against the employee is justified, then the breach of S. 22 proved against the employer may ordinarily be regarded as a technical breach and it may not unless there are compelling facts in favour of the employee justify any substantial order of compensation in favour of the employee. It is unnecessary to call that, if the first issue is answered against the employee, nothing further can be done under S. 23. What orders would meet the ends of justice in case of a technical breach of S. 22 would necessarily be a question of fact to be determined in the light of the circumstances of each case. In view of the decision of this Court in 1955-1 S.C.R. 1241 : (S) (AIR 1955 S.C. 258) (A), it would be impossible to accept Mr. Sen s argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here are compelling circumstances, to make any substantial order of compensation in favour of the workman. In fact in Equitable Coal Co. s case an order of compensation made by the Tribunal in favour of the workman was reserved by this Court. The Tribunal would have to consider all the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the circumstances of the case. But this much is clear that mere contravention of section 33 by the employer will not entitle the workman to an order of reinstatement, because inquiry under section 33A is not confined only to the determination of the question as to whether the employer has contravened section 33, but even if such contravention is proved, the Tribunal has to go further, and deal also with the merits of the order of discharge or dismissal. Now, if the effect of contravention of section 33 were to make the order of discharge or dismissal void and inoperative, the workman would straightaway be entitled to an or of reinstatement as soon as he establishes in the complaint made by him under section 33A that the employer has contravened section 33 in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the continues in service. Another consequence which would arise on this interpretation would be that if the workman files a complaint under section 33A, the employer would have an opportunity of justifying the order of discharge or dismissal on merits, but if the work-man proceeds under section 33C(2), the employer would have no such opportunity. Whether the employer should be able to justify the order of discharge or dismissal on merits would depend upon what remedy is pursued by the workman, whether under section 33A or under section 33C(2). Such a highly anomalous result could never have been intended by the legislature. If such an interpretation were accepted, no workman would file a complaint under section 33A, but he would always proceed under section 33C(2) and section 33A would be reduced to futility. It is, therefore, impossible to accept the argument that the contravention of section 33 renders the order of discharge or dismissal void and inoperative and if that be so, the only remedy available to the workman for challenging the order of discharge or dismissal is that provided under section 33A, apart of course from the remedy under section 10, and he cannot mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval, since it was withdrawn. It was argued that this was tantamount to refusal of approval and the ban imposed by section 3 3 (2) (b), therefore, continued to operate and the order of dismissal passed by the appellant was void and inoperative. This contention of the workman is, in our ,opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under section 33 (2) (h) with its dismissal on merits. Where the Tribunal entertains an application for approval under section 33 (2) (b) on merits, it applies its mind and considers whether the dismissal of the workman amounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the workman. If the Tribunal finds that either no prima facie case has been made out or there is victimisation or unfair labour practice, it would refuse to grant approval and reject the application on merits. Then of course the dismissal of the workman would be void and inoperative, but that would be because the Tribunal having held that no prima facie case has been made out by the employer or there is victimisation or unfair labour practice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of special leave in these appeals it was made a condition by this Court that the appellant should in any event pay the costs of the workmen, we direct that, though the appellant has succeeded, the appellant will pay the costs of these appeals to the workmen. We are told that such costs have already been paid by the appellant to the workmen. C.A. No. 2820 of 1977. This appeal by special leave is directed against the order made by the Labour Court granting the application made by the 1st respondent under section 33C(2) and directing the appellant to pay wages to the 1st respondent on the basis that the order of dismissal passed against him was void and ineffective and the 1st respondent continued LO be in service. It is not necessary to set out the facts giving rise to this appeal since the only question of law which arises in this appeal has been disposed of by us today in a judgment delivered in Civil Appeals Nos. 1375 and 1384 of 1977 and having regard to that judgment, it is clear that the 1st respondent was not entitled to maintain the application under section 33C(2) without adjudication from a proper authority, either oh a complaint under section 33A or in a refer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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