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TMI Blog1960 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... decide in the present appeal will apply as much to cases falling under s. 6-E(2)(b) of the U.P. Act as those falling under s. 33(2)(b) of the Act. 2. It appears that on October 12, 1957, when the appellant's Controller of Production and the General Superintendent were discussing certain matters in the office of the appellant mills, Har Prasad, one of the 8 workmen dismissed by the appellant, came to see the Controller along with some other workmen. These workmen placed before the Controller some of their grievances; and when the Controller told their leader Har Prasad that the grievances set forth by them were not justified Har Prasad replied that the Controller was in charge of the management of the appellant mills and could do what he liked, but he added that the ways adopted by the management were not proper and "it may bring very unsatisfactory results". With these words Har Prasad and his companions left the office of the Controller. Two days thereafter Har Prasad and Mool Chand saw the Controller again in his office and complained that one of the Back Sizers Yamin had reported to them that the Controller had beaten him; the Controller denied the allegation wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were also dismissed from service and required to take their final dues with one month's wages in lieu of notice. 4. At this time an industrial dispute in respect of bonus for the relevant year was pending before the industrial Tribunal (Textile) U.P., Allahabad. The appellant, therefore, made three applications before the Tribunal under s. 6-E(2) of the U.P. Act on November 21 and 27 and December 21, 1957 respectively. By these applications the appellant prayed that the Industrial Tribunal should accord its approval to the dismissal of the workmen concerned. On February 18, 1958 the Tribunal found that the appellant had failed to make out a case for dismissing the workmen in question, and so it refused to accord its approval to their dismissal. Accordingly it directed the appellant to reinstate the said workmen to their original jobs with effect from the dates on which they were suspended with continuity of service, and it ordered that the appellant should pay them full wages for the period of unemployment. It is on these facts that the question about the construction of s. 6-E(2)(b) of the U.P. Act falls to be considered. 5. As we have already observed the material provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed to be taken by the employer in regard to any matter connected with the dispute on the one hand, and action proposed to be taken in regard to a matter not connected with the dispute pending before the authority on the other. 7. Section 33(1) provides that during the pendency of such industrial proceedings 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 proceedings, or (b) for any misconduct connected with the dispute discharge or punish whether by dismissal or otherwise any workman connected with such dispute, save with the express permission in writing of the authority before which the proceeding is pending. Thus the original unamended section has now been confined to cases where the proposed action on the part of the employer is in regard to a matter connected with a dispute pending before an industrial authority. Under s. 33(1) if an employer wants to change the conditions of service in regard to a matter connected with a pending dispute he can do so only with the express permission in writing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely by s. 33(2) and the following sub-sections of s. 33. Section 33(2) reads thus : "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 workmen concerned in such dispute, - (a) alter, in regard to any matter not connected with 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." 10. It would be noticed that even during the pendency of an industrial dispute the employer's right is now recognised to make an alteration in the conditions of service so long as it does not relate to a matter connected with the pending dispute, and this right can be exercised by him in accordance with the relevant standing orders. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission in one case and only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval, for s. 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to s. 33(2)(b) as it may deem fit; it may either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order. 11. Section 33(3) deals with cases of protected workmen and it assimilates cases of alterations of conditions of service or orders of discharge or dismissal proposed to be made or passed in respect of them to cases falling under s. 33(1); in other words, where an employer wants to alter conditions of service in regard to a protected workman, or to pass an order of discharge or dismissal against him, a ban is imposed on his rights to take such action in the same manner in which it has been imposed under s. 33(1). Sub-section (4) provides for the recognition of protected workmen, and limits their number as therein indicated; and sub-s. (5) requires that where an employer has made an application under the proviso to sub-s. (2), the authority concerned shall withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or taken place. The word "approval" in contrast with the word "previous permission" shows that the action is taken first and approval obtained afterwards. Besides, the words "action taken" which are underlined by us, it may be argued, show that the order of discharge or dismissal has been passed, and approval for action thus taken is sought for by the application made by the employer. On the first construction the words "action taken" have to be construed as meaning action proposed to be taken, whereas on the latter construction the said words are given their literal meaning, and it is said that the discharge or dismissal has taken place and it is the action thus taken for which approval is prayed. In support of the first view it may be urged that the words "action taken" can well be interpreted to mean "action proposed to be taken" because it is plain that the condition as to payment of wages cannot be literally construed and must include cases where wages may have been tendered to the workman but may not have been accepted by him. In other words, the argument in support of the first interpretation is that in the const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng regard to their pleadings, we cannot allow the respondents to raise this question for our decision in the present appeal. It is clear from the contentions raised before the Tribunal and the pleas specifically raised by the respondents in their statement of case before this Court that both parties agreed that the application in question had been properly made under the proviso; and the only point at issue between them is about the validity and propriety of the order under appeal having regard to the limited jurisdiction of the enquiry under s. 33(2)(b), and it is to that question that we must now return. Before we do so, however, we ought to add that our attention had been drawn to three decisions of this Court in which, without any discussion of the point, the validity of the employers' applications made under s. 33(2)(b) appears to have been assumed though the said applications were presumably made after the employers had dismissed their employees. They are : Delhi Cloth and General Mills Ltd. v. Kushal Bhan (1960)ILLJ520SC ; The Management of Swatantra Bharat Mills, New Delhi v. Ratan Lal [Civil Appeal No. 392 of 1959 decided on 28-3-1960]; and The Central India Coalfields ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of fact; this criticism seems to us to be fully justified. One has merely to read the order to be satisfied that the Tribunal has exceeded its jurisdiction in attempting to enquire if the conclusions of fact recorded in the enquiry were justified on the merits. It did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner. On the other hand it has expressly proceeded to consider questions of fact and has given reasons some of which would be inappropriate and irrelevant if not fantastic even if the Tribunal was dealing with the relevant questions as an appellate court. "The script in which the statements have been recorded", observes the Tribunal, "is not clear and fully decipherable". How this can be any reason in upsetting the finding of the enquiry it is impossible to understand. The Tribunal has also observed that the evidence adduced was not adequate and that it had not been properly discussed. According to the Tribunal the charge-sheets should have been more specific and clear and the evidence should have been more satisfactory. Then the Tribunal has proceeded to examine the evidence, referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have carefully considered this workman's case, and we are satisfied that the Tribunal was not justified in refusing to accord approval even to him dismissal. It is common ground that Har Prasad led the deputation to the Controller of Production both on October 12 and October 14; and the threat held out by him on the earlier occasion is not denied by him. In terms he told the Controller that his conduct would bring trouble. It is significant that some of the workmen who assaulted the officers on October 14 had accompanied Har Prasad and were present when he gave the threat to the Controller. Mr. Sushil Kumar, who is the appellant's Controller of Production, has deposed to this threat. The sequence of events that took place on October 14 unambiguously indicates that it was the threat held out by Har Prasad and the incitement given by him that led to the assault on the evening of October 14. Mr. Sushil Kumar's evidence appears to be straight forward and honest. He has frankly admitted that in the past Har Prasad had been co-operating with him and that he had never instigated any attack on the officers on any previous occasion. Har Prasad no doubt denied that there was an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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