# CORPORATION LTD v. VISW ANATH PRASAD AND ANOTHER

- **Citation:** [1972] 1 S.C.R. 266
- **Court:** Supreme Court of India
- **Decided:** 1971-08-17
- **Bench:** G. K. Mitter, C. A. V Aidialingam, ~P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/corporation-ltd-v-visw-anath-prasad-and-another-5351
- **Pages:** 11

## Headnote

Industrial Disputes .4ct (14 of 1947), ss. 33 and 33A-Dismissal
of emp/oyee-Pendency of Conciliation proceeding-Effect on dismissal.
The appellant-management served on the
respondent a charge
sheet to show cause why disciplinary action should not be taken
against him for his misconduct in lodging a false complaint to the police
against some of the officers of the appellant, and, after inquiry, dismissed
him. The industrial dispute regarding the dismissal of this workman
and some others was referred to the Labour Court which upheld the
orders of dismissal. The Labour Court also rejected the plea that the
orders of dismissal were passed during the pendency of conciliation
proceedings and were therefore illegal, on the ground such pendency
was not established. The High Court
in a writ petition filed by the
respondent, held that it was necessary for the Labour Court to first go
into question whether or not there was ''. conciliation proceeding pending
at the date of the dismissal order with a view to find out whether the
impugned order of dismissal was passed in contravention of s. 33(2)(b)
of the Industrial Disputes Act, 1947, and remitted the matter back to
the Labour Court for deciding the question after giving an opportunity
to the respondent.
Allowing the appealjto this Court,
B
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HELD: (!) Section 33(2)(b) of the Act relates to the dismissal,
F
discharge etc. of a workman for any misconduct not connected with an
industrial dispute during the pendency of a conciliation proceeding
before
a conciliation officer or Board
or of any
proceeding
before a Labour Court or Tribunal, and prohibits such discharge or
dismissal 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 was pending for approval of such action.
Sectioi;t~3-A enables
G
a workman who has been punished by dismissal 'or discharge
etc.,
to
make
a complaint in writing to a Labour Court.
Tribunal, or National Tribunal when an employer contravenes the provisions of s. 33 during the pendency of the proceedings before a Labour
Court,
Tribunal or National Tribunal. If such
a complaint is
made the Labour Court or Tnounal is to adjudicate upon the complaint
as if it were a dispute referred to or pending before it and in accordance
H
with the provisions of the Act submit its award to the appropriate
Government; that is, the workman does not have to wait for a reference
of an industrial dispute but can himself prefer his, complaint which is
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HlNDl)"STAN GEN. ELECT. CORP. v. VISHWANATH (Mitter, /.)267
to be treated as a dispute under s. 10, and it would be the duty of
the Labour Court to examine the merits of the case in the light of the
principles formulated in the Indian Iron Steel Company case, [1958]
S.C.R. 667. These sections do not require that as soon as the Labour
Court or Tribunal finds that there has been a violation of s. 33 it should
award reinstatement. [272C-H; 273A]
(2) It has not been alleged in this case that conciliation proceedings
were pending before the Labour Court, Tribunal or National Tribunal
as envisaged . in s. 33A. Assuming that thete was a conciliation proceedings before the Jabour officer, s. 33A would not be attracted.[273B-C]
\3) The Tribunal rightly refused to go into the question of the
pendency of any conciliation proceeding; because, even if there was any
such proceedings, it would make no difference to the result of the case.
The Labour Court would still have to consider whether the employer's
action was justified and would have to be satisfied that the allegations
about want of good faith or victimisation or unfair Jabour practice were
baseless, that the inquiry was not vitiated by basic errors or violation of
any principles of natural justice, and that the order of dismissal was
not perverse. [274D-F]
In the present case, the Labour Court held on the material before
it-the lodging of the complaint was not disputed, that the allegations
were

## Text

266
HINDUSTAN GENERAL ELECTRICAL
A
CORPORATION LTD.
v.
VISW ANATH PRASAD AND ANOTHER
August 17, 1971
[G. K. MITTER, C. A. V AIDIALINGAM AND
~P. JAGANMOHAN REDDY, JJ.]
Industrial Disputes .4ct (14 of 1947), ss. 33 and 33A-Dismissal
of emp/oyee-Pendency of Conciliation proceeding-Effect on dismissal.
The appellant-management served on the
respondent a charge
sheet to show cause why disciplinary action should not be taken
against him for his misconduct in lodging a false complaint to the police
against some of the officers of the appellant, and, after inquiry, dismissed
him. The industrial dispute regarding the dismissal of this workman
and some others was referred to the Labour Court which upheld the
orders of dismissal. The Labour Court also rejected the plea that the
orders of dismissal were passed during the pendency of conciliation
proceedings and were therefore illegal, on the ground such pendency
was not established. The High Court
in a writ petition filed by the
respondent, held that it was necessary for the Labour Court to first go
into question whether or not there was ''. conciliation proceeding pending
at the date of the dismissal order with a view to find out whether the
impugned order of dismissal was passed in contravention of s. 33(2)(b)
of the Industrial Disputes Act, 1947, and remitted the matter back to
the Labour Court for deciding the question after giving an opportunity
to the respondent.
Allowing the appealjto this Court,
B
c
D
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HELD: (!) Section 33(2)(b) of the Act relates to the dismissal,
F
discharge etc. of a workman for any misconduct not connected with an
industrial dispute during the pendency of a conciliation proceeding
before
a conciliation officer or Board
or of any
proceeding
before a Labour Court or Tribunal, and prohibits such discharge or
dismissal 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 was pending for approval of such action.
Sectioi;t~3-A enables
G
a workman who has been punished by dismissal 'or discharge
etc.,
to
make
a complaint in writing to a Labour Court.
Tribunal, or National Tribunal when an employer contravenes the provisions of s. 33 during the pendency of the proceedings before a Labour
Court,
Tribunal or National Tribunal. If such
a complaint is
made the Labour Court or Tnounal is to adjudicate upon the complaint
as if it were a dispute referred to or pending before it and in accordance
H
with the provisions of the Act submit its award to the appropriate
Government; that is, the workman does not have to wait for a reference
of an industrial dispute but can himself prefer his, complaint which is
A
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HlNDl)"STAN GEN. ELECT. CORP. v. VISHWANATH (Mitter, /.)267
to be treated as a dispute under s. 10, and it would be the duty of
the Labour Court to examine the merits of the case in the light of the
principles formulated in the Indian Iron Steel Company case, [1958]
S.C.R. 667. These sections do not require that as soon as the Labour
Court or Tribunal finds that there has been a violation of s. 33 it should
award reinstatement. [272C-H; 273A]
(2) It has not been alleged in this case that conciliation proceedings
were pending before the Labour Court, Tribunal or National Tribunal
as envisaged . in s. 33A. Assuming that thete was a conciliation proceedings before the Jabour officer, s. 33A would not be attracted.[273B-C]
\3) The Tribunal rightly refused to go into the question of the
pendency of any conciliation proceeding; because, even if there was any
such proceedings, it would make no difference to the result of the case.
The Labour Court would still have to consider whether the employer's
action was justified and would have to be satisfied that the allegations
about want of good faith or victimisation or unfair Jabour practice were
baseless, that the inquiry was not vitiated by basic errors or violation of
any principles of natural justice, and that the order of dismissal was
not perverse. [274D-F]
In the present case, the Labour Court held on the material before
it-the lodging of the complaint was not disputed, that the allegations
were false was not denied and the humilitation to the officers was not
contradicted that the respondent's action wa~ subversive of discipline
which merited dismissal. [274G-H; 275F-H]
Indian Iron and Steel Co. Ltd. v. The Workmen, [1958] S.C.R. 667,
Punjab National Bank Ltd. v. Its Workmen,
(1960] 1 S.C.R. 806 .and
Rodrick v. Karam Chand Thapar and Anr. [1963] 1 L.L.J. 248 (S.C.)
referred to.
Crv1L APPELLATE JURISDICTION : Civil Appeal No.
2167 of 1966.
Appeal by special leave from the judgment and order
Jated October 22, 1965 of the Patna !High Court in Misc.
Judicial Case No. 614 of 1962.
G. B. Pai and D. N. Gupta, for the appellant.
S. K. Mehta and K. L. Mehta, (for respondent No. 1.
The Judgment of the Court was delivered by
Mitter, J.-This appeal by special leave.arises out
H
of an order of the Patna High Court setting aside the
award dated 23rd February, 1962 made by the Presiding
Officer of the Labour Court, Ranchi and remitting the
•
268
SUPREME COURT REPORTS
[1972] 1 S.C.R.
matter back to him for making a fresh award in accordance
A
with the observations of the High Court.
The
facts are as follows. The
first
respondent,
Bishwanath Prasad, a workman of the appellant, made a
complaint in writing to the officer
in charge ofNirsa
B
Police
station on September 19,
1960
stating inter
plia that the members of his Union were being harassed
repeatedly by the Management of the company and that
the labourers had reported on that day that an Assistant
Manager, a Labour Welfare Officer and others had broken
open the lock of the room of a worker by the name of c
Kashi Nath Singh and thrown away his belongings when
he was actually on duty. The police were requested to
take proper action against the said Assistant Manager.
After enquiry the officer in charge Nirsa police station
submitted a final report on 19th November 1960 to the
effect
that the complainant Bishwanath Prasad had
D
deliberately
breught
a false
complaint. The
SubDivisional Officer of the
District acting on the final
report dismissed the complaint
on 12th January 1961.
The
Management
served the respondent Bishwanath
Prasad with a charge sheet on 23rd Janaury 1961 to show
E
c~use why disciplinary action should not be taken against
him for his misconduct subversive of discipline in making
serious defamatory allegations against
the officers in
general and to two of the officers in particular who had
been put to great harassment and humiliation at the investigation by the police. The
explanation
given by
F
Bishwanath Prasad to the charge sheet was that he had
made the report to the police after receiving a com·
plaint from Kashinath
Singh, a member of his Union
with no intention to undermine the prestige of the officers
concerned and the discipline in the factory,
but simply
to pacify the workers who were very much excited owing
G
to the action of the officer. It appears that an
enquiry
into the matter was fixed by the Management and the
respondent was asked to appear at the enquiry on 30th
January, 1961 but he failed to attend the same and
sent a letter "asking for an open enquiry in which representatives of the Labour Department, Dhanbad should
H
be present". The enquiry officer sent in his report and
The Management acting thereupon dismissed the res-
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HINDUSTAN GEN, ELECT. CORP. V. VISHWAN'ATH (Mitter, I.) 269
pondent from service with effect from the date of suspension, namely, 23rd January, 1961.
Quite
unconnected with the above
matter, 'there
was trouble in the factory on 10th January, 1916 when
one group of workers is alleged to have assaulted another
group due to inter-Union rivalry. The
Company dismissed 10 workmen on the ground of their assaulting two
others on 28th January, 1961.
On 28th March 1961,
the Government of Bihar referred an Industrial Dispute to the Labour Court, Ranchi
regarding the dismissal of the 11 workmen including the
respondent Bishwanath Prasad. The
Labour
Court
examined tht> merits of the matter aD.d held that the
orders of dismissal meted out by the management to all the
workmen would have to be maintained and the workmen
were not entitled to any relief. Examining the facts and
circumstances in the light of the principles formulated
by this
Court in the case of Indian Iron and Steel Co.
Ltd. v. Their Workmen (1) at page 685 that:
"In case of dismissal on misconduct, the Tribunal
does not, however, act as a Court of appeal and
substitute its own judgment for that of the management. It will interfere (i) when there is a want
of good faith,
(ii)
when
there is victimisation
or unfair labour practice, (iii) when the management has been guilty of a basic error or violation
of a principle of natural justice, and (iv)
when
on the materials the finding is completely baseless
or perverse.'.'
the Tribunal held that the finding of the Management with
regard to the guilt of the 10 workmen other than Bishwanath Prasad was not in any way unwarranted or perverse
and the Management was not actuated by bad faith.
With regard to Bishwanath Prasad the Tribunal examined
the facts and circumstances relied on by the parties and
held that the order of _dismissal was not vitiated on any
of the well-known grounds of interference as laid down
in Indian Iron and Steel Co.'s Case (1).
(I) (1958] S.C.R. 667.
270
SUPREME COURT REPORTS
[ 1972] 1 S.C.R
The Tribunal also examined the plea put forward
A
on behalf of the workers that the orders of dismissal
should be held to be illegal inasmuch as they were all
passed during the pendency of a·conciliation proceeding.
The Tribunal noted that no evidence had been led to
sustain the plea and the Union had only placed on record
B
carbon copies of two letters which were alleged to have
been addressed to the Labour Officer, Dhanbad. The
Tribunal was not satisfied that the letters had actually
been delivered to the Labour Officer and found that there
was no evidence to show that the Labour Officer had
applied his mind to the matter mentioned in those letters c
and accordingly took the view that the pendency of a
conciliation proceeding at the relevant time had not been
established.
The respondent, Bishwanath Prasad, filed a petition
under Arts. 226 and 227 of the Constitution before the
D
Patna High Court challenging the award inter alia on
the ground that the Labour Court had failed to appreciate
that the enquiry officer had acted malafide
and in violation of the principles of natural justice in holding the
enquiry. A complaint
was also made that the letters
E
from the conciliation officer Dhanbad were ingored by the
Labour Court. The Management filed a counter affidavit
justifying its action against the workmen and submitting
that the award had been correctly made.
Before the High Court one of the main pleas taken
F
on behalf.of the respondent was that the order of dismissal
against him having been passed in contravention of
s. 33 of the Act was invalid and ineffectjve and on that
ground · alone he should have been reinstated. It was also
contended that in cases
where in order of dismissal
passed in contravention of s. 33 of the Act was the subG
ject matter of adjudication either by virtue of a reference
under s. IO (I) or by reason of a complaint under s. 33A
of the Act, the enquiry held by the employer before passing the order of
dismissal was of no avail. According
to the High Court all the contentions raised on behalf of
the petitioner are found on the basic fact that there was
H
contravention of
s. 33.
Referring to the judgment of
this Court in The. Punjab National Bank Ltd., v. Its
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HINDUSTAN GEN. ELECT, CORP. v. VISHWANATH (Mitter. J.) 271
Workmen (1) the High Court took the view that it was
necessary for the Labour Court
to first go into the
question whether or not there was a
conciliation proceeding pending at the date when the dismissal order was
made with a view to find out whether the plea of the
workmen
concerned that the impugned order of dismissal was -pas~d in contravention of s. 33 (2) (b) was
correct or not and if it accepted the petitioner's contention
that the order of dismissal contravened s. 33 (2)
(b), •,the departmental enquiry would. not avail the employer
and the whole question would be open. The
High Court directed that the petitioner should be afforded
an opportunity to place the letters earlier referred to,
, viz., annexures I and I-1, and such other relevant evidence
in this connection as he might choose before the .Labour
Court and the Labour Court should come to its own
conclusion on the issue before it upon all the evidence
adduced before it. Being of the view that in the absence
of any determination of the basic question whether or
not there was a contravention of s. 33, the High Court
did not think it advisable to pronounce upon the merit.s
of the
several contentions raised on behalf of the petitioner, set aside the award and remitted the matter back
to the Labour Court for making a fresh award in accordance with the court's observations.
In our view~e High Court did not properly appreciate the true scope of s. 33 (2) (b) of the Industrial
Disputes Act and the result of the violation thereof. It
is undisputed that the order of dismissal of the respondent was made after an enquiry on the basis of a charge
sheet submitted to him. In his explanation to the show
cause notice the respondent admitted having lodged the
complaint before the Nirsa police on 19th September&
1960 and the harassment and humiliation of two officers
at the investigation by the police. He did not deny
that the report made by him was false and contented
himself by submitting :
"It ls for the police and the Government authority
H
to take any action.against me if my report was at
all false."
·
(I} [1960] I S,C,R, 806.
272
SUPREME COURT REPORTS
(1972] l S.C.R
He was examined before the Labour Court and the only
A
statement relating to conciliation proceedings made by
him was that conciliation proceedmgs were held before
the Labour Officer and the Labour Commissioner. Jn
our view, the High Court failed to observe that under the
Act
pendency of conciliation proceedings at the time s
when
the respondent was discharged could not affect
the merits of the question at all.
The scope of sections 33 and 33-A was examined by
this Court in several cases to some of which we shall
presently refer.
S. 33 (1) has obviously no application c
to the facts of this case.
S. 33 (2) relates to the dismissal, discharge etc. of a workman for any misconduct
not connected with an industrial dispute during the
pendency of any conciliation proceeding before a conciliation officer or a Board etc. unless he had been paid
0
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.
S. 33-A enables a workman who has been
punisht~d by dismissal or discharge etc. to make a complaint in writing to a Labour Court, Tribunal or National
E
Tribunal when an employer contravenes the provisions
of s. 33 during the pendency of proceedings before Labour
Court, Tribunal or National Tribunal etc. if such a complaint is made, the Labour Court, Tribunal etc. is to adjudicate upon the complaint as if it were a dispute referred to or pending before it and in accordance with the
F
provisions of the Act submit its award to the appropriate
Government.
In other words, when
the conditio11s
laid down
in
s.33-A apply a workman who is
punished as mentioned therein does not have to wait for a
reference of an industrial dispute by an appropriate
authority under s. 10 of the Act for adjudication of the
G
dispute but can himself prefer his\ complaint which is to
be treated in the same way as a· dispute under s. 10.
These sections do not lend themselves to the construction
that as soon as the Labour Court, Tribunal etc.
finds that
there has been a violation of s. 33 it should •:
award teinstatement. It must go through the proceedings which would have
to be taken under s. 10 and it
would be the duty of the Labour Court etc. to examine the
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HlNDl'STAN GEN, ELECT, CORP. v. V!SHWANATH (Mitter,!.) 273
merits of the case in the light of the principles formulated
in the.Indian Iron and Steel Co.'s case. (1)
It has not been alleged in this case that any conciliation
proceedings were pending before a Labour Court, Tribunal'
or National Tribunal as envisaged in s. 33-A. Assuming
for a moment that there was a conciliation proceeding
before a labour officer, s. 33-A would not be attracted.
Jn any event it would be open to the complaining workman
to take exception to the conduct of the management in
ignoring the provisions of s. 33 (2) (b ).
Jn The
Pwijab
National
Bank Ltd.' s
case (2)
referred to by the High Court for the purpose of remitting the matter back to the Labour Court this Court
examined the ,scope of ss., 10,
33 and 33-A of the Industrial Disputes Act and pointed out (at p. 826) :
" ...... even if the requisite permission is granted
to the employer under s. 33 that would not be the end
of the matter. It is not as if the permission granted
under s. 33 validates the order of dismissal. It
merely removes the ban; and so the validity of the
order of dismissal can be made,
and often is,
challenged by the union by raising an industrial
dispute in that behalf.''
The contention on behalf of the workmen that disregard
of a ban imposed by s. 33 of the Act would render the
employer's action of dismissal void and inoperative was
rejected by this Court. The reason for enactment of
s. 33-A. was explained at p. 830 of the said report.
Jn that case the impugned orders of dismissal had given
rise to an industrial dispute which was referred to a tribunal by the appropriate Government under s. 10 and.
this Court observed that :
"There can be no doubt that if under a complaint
filed untler s. 33A a tribunal has to deal not only
with the question of contravention but also with
the merits of the order of dismissal, the position·
cannot be any different when a reference is made to
H
·the tribunal like the present under s. 10. What
is true about the scope of enquiry under s .. 33A
0) (1958] S.C.R. 667.
(2) [1960) I S.C.R. 806.
274
SUPREME COURT REPORTS
[1972] l S.C.R.
is a fortiori true in the case of an enquiry under
s. 10. What is referred to the tribunal under s. 10
is the industrial dispute between the Bank and its
employees. The alleged contravention by the Bank
of s. 33 is no doubt one of the points which the tribunal has to decide; but the decision on this question does not conclude the enquiry. The tribunal
would have also to consider whether th.e impugned
orders of dismissal are otherwise justified;
and
whether, in the light of the relevant circumstances
of the case, an order of reinstatement should or
should not be passed. It is only after all these aspects
have been considered by the tribunal that
it can adequately deal with the industrial dispute
referred to it and make an appropriate award:"
A
B
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The Tribunal in our view rightly refused to go imo
the question of the pendency of any conciliation proceedD
ing; but, even if there was any such proceeding, it would
make no difference to the result in this case. The Tribunal would still have to consider whether the employer's action was justified in the light of the decision
in the Indian Iron & Steel Co.'s case. (1) In other words,
the 1Tribunal would have to be satisfied that the alleE
gations, if any, about want of good faith or victimisation
or unfair labour practice were baseless. The Tribunal
would also have to be satisfied whether any complaint
'was made on the score that the enquiry was vitiat~d by
basic error or violation of any principle of natural jusF
tice and its finding on which the order of dismissal was
passed was therefore perverse or without any foundation.
The Tribunal came to the conclusion . that there was
no justification for the respondent's
complaint to the
police that the company's officials were in the habit of G
acting high-handedly and oppressively as alleged by him
and further took the view that the respondent's action in
defaming two of the officers of the company could not
but be pronounced as an act subversive of discipline
and undermining the authority of the officers and there by
affecting the maintenance of peace and good order in that
H
factory.
(I) [1958] S.C.R. 667.
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HINDUSTAN GEN. ELECT. CORP. v. VISHWANATH (Mitter, J.) 275
Reliance was placed on a judgment of this C0urt in
Rodrickv.Karam ChandThapar & Bros. (1) and the observation therein that:
"It is well settled that if an application is made by an
employee under s. 33A and it is
shown that the
impugned.-dismissal of the employee has contravened
s. 33, it is open to the employer to justify the dismissal on the merits by adducing satisfactory evidence before the Tribunal."
It was contended that this course was not adopted in
this
case. The facts in that case as found from the
report are that the appellant who· was a store keeper of
the respondent company had been served with a charge
sheet as a result of the checking of the stock in his care;
this was followed by an enquiry and an order of dismissal
of the appellant.
The employee made an application
under s. 33-:A
of the Act alleging that s. 33 had been
contravened and he was entitled to reinstatement. The
Tribunal rejected the preliminary objection of the company that an application under s. 33-A was not compe~
tent and thereafter proceeded to examine the merits of
the case. As a result thereof the Tribunal believed the evidence led by the respondent to hold that the appellant was
guilty of misappropriation.
.
To our mind, this case does not help the respondent.
The Labour Court had to adjudicate upon the dispute
which was
referred to it; with regard to the respondent
it had to go into the question as to whether he had been
properly dismissed .. On the material before it, it came
to the conclusion that the respondent's action in lodging
a false complaint to the police against the conduct of
the appellant's officers was subversive of discipline which
merited dismissal. The Labour Court had the evidence
before it; the lodging of the complaint was not disputed,
that the allegations therein were false were not denied
,jllld the humiliation of the officers was not contradicted.
Not
Jne of the grounds formulated in the Indian Iron
and Steel Co.'s case(2) which could lead the Tribunal t<>
hold that the dismissal was improper was substantiated.
(I) [1963) l L.L.1. 248 ot 249.
('2) [1958] S.C.R. 667.
276
SUPREME COURT REPORTS
[1972] 1 S.C.R.
In the result, we hold that the order of the High A
-Court remitting the matter back to the Labour Court was
.not justified. The appeal is therefore allowed and the
the award of the Labour Court upheld. The order for
costs made at the time when special leave was granted
iin this case will stand.
~
V.P.S.
Appeal allowed.
B