# J962 }r! arch 6· 618 SUPREIIIE COURT REPORTS [Hl62] SUPP. STRAWBOARD MANUFACTURING CO v. GO BIND

- **Citation:** [1962] Supp. 3 S.C.R. 618
- **Court:** Supreme Court of India
- **Decided:** 1960-04-29
- **Bench:** P. B. GAJElWRAGADKAR, A. K. SAHKaR, K. N. \Vanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j962-r-arch-6-618-supreiiie-court-reports-hl62-supp-strawboard-manufacturing-co-2486
- **Pages:** 15

## Headnote

Industrial Dispute-Autliority of emplovcr
to
dismiss
employee before appro1:a./ of Tribunal-Rule of 111-lerpr(;fation of
stalute-['niteil Provinc<S lndu.•lrial Di"putrs Act, J!i47, (L'. P.
28 ~{ J.?47), s.6-E(2)(b)-lndustrial1Xspufos Act, J.'t.Ji), r 14 o'
lfl47), as amended by Act 36 of J!J!jlj, s. 33(2)(b).
'
·
1,he respondent \vas in the r.mplo)ment rif the appellant
company.
I-le refused to comply \\'ith orders gh·cn to hin1 by
various officers of the appellant con1pany from 1iJnc to time.
He ,,·as suspended and charg·r.-shee1ed.
An c1~quiry \Vas heJd.
After the enquiry, thr appellant referrer! thr matter .for the
decision of the Labour Comrnissioncr \\'ithCJlil giving a11y prior
decision of its ov.111.
!·Iowever, the Labour Con1missioncr
refused to pas; any order and dire.cted the appellant to takr.
such action as it thought fit.
~rhcrcupon, the appellant
<lismh:sc<l the appellant.
.i\s
t\\'O di ... putcs \\Tre
pending
bet\\o·cen the appellant and its \\'orkmen at .'\llahahad and
Meerut, the appellant sent applications by post on the sarne
day to the tv.·o authorities for appro\•al of the ar.tion ra.ken.
The Tribunal at Allahabad approvrd of the action Lut the
Labour Court at Meerut refused to approv•: tl.1· <amc.
However the Labour Court held that the appellant
\\";-t!i not moti·
vated by victimisation and a prima fncic rasc had hc:cn 111adc
out for the dismissal of the respondent.
Thr. appro\'al was
refused on the ground that the application for appro\·al ha<l
bcr.n made after the dismissal of the rcsponrle11t and the same
should have been made before dismissing hin:.
field, that the employer ran disl'hargc or dismiss the
employee hr.fore obtaining the approval of 'I'ribunal or the
I .. abour Court concerned. The u~c of tl:e \\·ord ''approval"
suggests that something has been <lone hy tlic en1ploycr "·ho
seeks approval of. the same fro1n
the 'I'ribunal.
If the
intention had bce.n that the etnploycr could not pa~s the
order of dismissal or discharge "·ithout first obtaining the
approval, the language usec.l "·otild have bcc11 diffcrer11.. 'fhe
legislature intended that the cn1ployer \\·ould ha\'e the right to
pass an order of <lischar~e or dismbsal
... ubject
to
tv.•o
conditions, namely, pavment of wages for one n1onth an<l
making of an applicaiion to the authority concerned for
3 S.C.R.
SUPREME COURT REPORTS
619
approval of the action taken. If the Tribunal does not
approve of the action taken by the employer, the result would
be that the action taken by him would fall and the workmen
would be deemed never to have been dismissed or discharged
and would continue to be in the service of the employer.
The dismissal or discharge of an employee, payment of
wages and the making of an application for approval should
be simultaneous and part of the same transaction.
When an
employer dimisses or discharges
an employee. he should
immediately pay him or offer to pay him wages for one month
and also make an application to the Tribunal for approval at
the same time. Although all this cannot be done literally•
simultaneously, the conduct of the employer should show that
the three things were done as a part of the same transaction.
Metal Press Works Ltd. v. Deb (H. R.) and Others, (1962)
L. L. j. 7 5, approved.
.
The Premier Automobiles Ltd. v. Ramchandra Bhimayya,
J.L.R.'(1950) Born. 289 and Indian Extractions Private Ltd. v.
A. V. Vyas, Conciliation Officer,
A. I. R.
1961
Guj.
22,
disapproved.
'
It is agatnst the rules of interpretation to add words to
a provision, \Vhen the provision, as it stands, is capable of a
reasonable n1eaning which will give effect to
the intention
of the legislature even on the words a-; they stand.
CrvIL APPELLATE JuRISDICTION : Civil Appeal
No. 387 of 1961.
Appeal by special leave from t,he judgment
and order dated April 29, 1960, of the Labour
Court, Meerut in case No. 1 of 1960.
B. 0. Misra, for the appellant.
Ranganadham Ohetty, A. V. Rangam,
A.
Vedavalli and P. 0. Agarwala, for the respondent.
1962.

## Text

J962
}r! arch 6·
618 SUPRE!IIE COURT REPORTS [Hl62] SUPP.
STRAWBOARD MANUFACTURING CO.
v.
GO BIND
(P. B. GAJElWRAGADKAR, A. K. SAHKaR, and
K. N. \VANCHOO, JJ.)
Industrial Dispute-Autliority of emplovcr
to
dismiss
employee before appro1:a./ of Tribunal-Rule of 111-lerpr(;fation of
stalute-['niteil Provinc<S lndu.•lrial Di"putrs Act, J!i47, (L'. P.
28 ~{ J.?47), s.6-E(2)(b)-lndustrial1Xspufos Act, J.'t.Ji), r 14 o'
lfl47), as amended by Act 36 of J!J!jlj, s. 33(2)(b).
'
·
1,he respondent \vas in the r.mplo)ment rif the appellant
company.
I-le refused to comply \\'ith orders gh·cn to hin1 by
various officers of the appellant con1pany from 1iJnc to time.
He ,,·as suspended and charg·r.-shee1ed.
An c1~quiry \Vas heJd.
After the enquiry, thr appellant referrer! thr matter .for the
decision of the Labour Comrnissioncr \\'ithCJlil giving a11y prior
decision of its ov.111.
!·Iowever, the Labour Con1missioncr
refused to pas; any order and dire.cted the appellant to takr.
such action as it thought fit.
~rhcrcupon, the appellant
<lismh:sc<l the appellant.
.i\s
t\\'O di ... putcs \\Tre
pending
bet\\o·cen the appellant and its \\'orkmen at .'\llahahad and
Meerut, the appellant sent applications by post on the sarne
day to the tv.·o authorities for appro\•al of the ar.tion ra.ken.
The Tribunal at Allahabad approvrd of the action Lut the
Labour Court at Meerut refused to approv•: tl.1· <amc.
However the Labour Court held that the appellant
\\";-t!i not moti·
vated by victimisation and a prima fncic rasc had hc:cn 111adc
out for the dismissal of the respondent.
Thr. appro\'al was
refused on the ground that the application for appro\·al ha<l
bcr.n made after the dismissal of the rcsponrle11t and the same
should have been made before dismissing hin:.
field, that the employer ran disl'hargc or dismiss the
employee hr.fore obtaining the approval of 'I'ribunal or the
I .. abour Court concerned. The u~c of tl:e \\·ord ''approval"
suggests that something has been <lone hy tlic en1ploycr "·ho
seeks approval of. the same fro1n
the 'I'ribunal.
If the
intention had bce.n that the etnploycr could not pa~s the
order of dismissal or discharge "·ithout first obtaining the
approval, the language usec.l "·otild have bcc11 diffcrer11.. 'fhe
legislature intended that the cn1ployer \\·ould ha\'e the right to
pass an order of <lischar~e or dismbsal
... ubject
to
tv.•o
conditions, namely, pavment of wages for one n1onth an<l
making of an applicaiion to the authority concerned for
3 S.C.R.
SUPREME COURT REPORTS
619
approval of the action taken. If the Tribunal does not
approve of the action taken by the employer, the result would
be that the action taken by him would fall and the workmen
would be deemed never to have been dismissed or discharged
and would continue to be in the service of the employer.
The dismissal or discharge of an employee, payment of
wages and the making of an application for approval should
be simultaneous and part of the same transaction.
When an
employer dimisses or discharges
an employee. he should
immediately pay him or offer to pay him wages for one month
and also make an application to the Tribunal for approval at
the same time. Although all this cannot be done literally•
simultaneously, the conduct of the employer should show that
the three things were done as a part of the same transaction.
Metal Press Works Ltd. v. Deb (H. R.) and Others, (1962)
L. L. j. 7 5, approved.
.
The Premier Automobiles Ltd. v. Ramchandra Bhimayya,
J.L.R.'(1950) Born. 289 and Indian Extractions Private Ltd. v.
A. V. Vyas, Conciliation Officer,
A. I. R.
1961
Guj.
22,
disapproved.
'
It is agatnst the rules of interpretation to add words to
a provision, \Vhen the provision, as it stands, is capable of a
reasonable n1eaning which will give effect to
the intention
of the legislature even on the words a-; they stand.
CrvIL APPELLATE JuRISDICTION : Civil Appeal
No. 387 of 1961.
Appeal by special leave from t,he judgment
and order dated April 29, 1960, of the Labour
Court, Meerut in case No. 1 of 1960.
B. 0. Misra, for the appellant.
Ranganadham Ohetty, A. V. Rangam,
A.
Vedavalli and P. 0. Agarwala, for the respondent.
1962. March. 6.
The Judgment of the Court
was delivered by
WANCHOO, .J.- This appeal by special leave
raises th~ question. of interpreta:tion of s. 6-E (2l(h)
of the Umted Provmces Industrial Disputes Act, U.P.
Act No, XXVIII of 19-li, (hereinafter called the
1962
Strawboa1d
Manfacturing Co.
v.
Go-bind
T1'af'lchoo J,
1962
Strawbr.ard
Al cnujactttring Co
v.
Gob ind
Wancllao J.
620 SUPREME COl'RT REPORTS [191l2] SUPP.
U. P. Act), which is in exactly the· Aame terms as
s. 3:1 (2)(b) of the Industrial Disputes Act, No. XIV
of 1947, (hereinafter referred to aH the Act), 118
amended by Act 36
of LH:"i6.
The
question
arises in this way. The appellant is a Strawboard·
Mill. The respondent was in the employ of the appellant. On August 12, I 959, the respondent was 'given
·certain orders by the Technfoa.l Director of the
appellant, but he refused to comply with them.
The same day the respondent refused to comply
with certai11 similar order~ given by the machinoman. Again on August 13, l 959, he refused to
obey similar orders of the shift in.charge.
Finally,
on August 14, he refused to obey similar orders of
another shift in-charge. Consequently a notice was
rnrved on the respondent to show cause why he
should not be dealt with under cl. 22(a) of t.he
Standing Orders which provided that wilful insubordination or disohcdicnc(' of anv lawful orders of
superior was miAconduct. The respondent submitted
his explanation. HP was then
suspended and a
ebarge-sheC't was served on him nu August 16, l!.l.J9.
Thereafter an inquiry was hcl<l. into th" alleged
mi8condnct.
After t.ho inquiry was over t!l<' appellant referred th<' rnattN for the clccision of the
Labour CommiHsioncr without gidng any prior
dedson of its own as provickd in cl. :10 of the ::lta.m].
ing Orders. The Labour Commission, howc'l'cr, rcfusC'd to give a decision and informed the appellant
that it could take such action as it was entitled to
under the Standing Ordern. Tho appollant again
approached the Labour Commis~ioner for giving an
order as envisaged by cl. 30 of the 8Urnding Orders,
but the Labour Commissioner finally refused to
pass any order :m(] directed tho appellant to t:ike
such action as it thought fit and as was within its
power.
'l'hcr<,upon the appellant clismisHctl the
r<>spondcnt on February' l, I 960.
As however. two
disput-0s
were
pending between t.he
appullant
and its workmen one before the Industrial Tribunal
3 S.C.R.
SUPREME COURT REPORTS
621
No. 3. at Allahabad and the o\her before the Labour
Court at Meerut, the appellant sent applications
by post on the same day to the two authorities for
approval of the action taken, namely, the dismissal
of the respondent. It appears that the tribunal at
Allahabad approved of the action on March 22,
1960. When however the same matter came before
the labour court at Meerut on April 29, 1960, it
refused to approve the action taken, even though
the order pas3ed by the tribunal at Allahabad already was brought to its notice. The labour court
at Meerut held that the appellant was not motivated
by victimisation. It further held that in the inquiry
held by the appellant, prima f acie case had been
made out rufthe dismissal of the respondent ; but
the labour court said that though ordinarily the
application of the appellant should have been granted in these circumstances it refused to approve the
dismissal on the ground that the application for
approval had been made after the respondent had
already been dimissed; therefore it held that the
application was not bona fide and in the circumstances the prayer that the order of dismissal should
be approved was not granted. It was of the view
that the proviso to s. 6E(2)(b) required that the
application for approval should be made before the
dismissal of the workmen concerned, and failure to
do so amounted to contravention of the terms of
the section. Therefore as the application in this
case
was
made after the dismissal, approval
could not be granted and on this narrow ground the
la.hour court refused to approve of the dismissal
of the respondent. Thereupon the appellant obtained special leave from this Court and that is how
the matter has come up before us.
The question thus raised depends upon the
interpretation of the terms . of s. 6E (2) which as
we have said already correspond word for word
with the provisions of s. 33 (2) of the Act. We shall
1962
Strawboard
Manufacturing Co.
v.
Gobind
•
Wonchoo J.
1962
Strawboard
Manufacturing Co.
v.
Oobind
J.t'anchoo J.
622 SUPREME COURT REPORTS [1962] SUPP·
therefore set out the provisions of s. 33 (2) which
reads as below :-
"(2)
Durin!! the pcnde11c:y of any Ruch
proc·ceding in respect of an industrial dlRputc,
the employer may, in 11ccordanc(J with the
standing orders applicablo to a workman
concerned in such dispute-
( a)
"(b) for any misconduct not <:onnected
with the dispute, discharge or punish, whether
by dismissal or otherwise, that workman;
Provided that no such workman shall Le
discharged or dismissed, unless he has been
paid wages for one month and an application
has been ma.do by the employer to the authority before which the proceeding is pending
for approval of the ac:tion taken by the em·
ployer."
We aro concerned in the present appeal with the
interpretation of the proviso to cl. (b) which says
that no such workman shall be discharged or dismissed, unless he has been paid wages for one
month and an application haH been made by thn
employer to the authority before which the proceeding is pending for approval of the action taken by
the employer. It is unnecessary to consider in the
present case whether applications have to be made,
where more than one dispute is pending before
more than one tribunal, to all the tribune.ls where
the disputes are pending or whether an application
to oniy ono of them would be enough. In the
present case disputes were pending before two
authorities and applications were made to both of
them, though curiously the result has been rather
unfortunate for the appellant, for one tribunal
has approved of the action while the other has
not.
3 s.c.R.
SUPREME COURT REPORTS
623
Before however we turn to the interpretation
of the proviso we may refer to the circumstances
in which s. 33( 2) came to be enacted. Originally
there was no such provision like s. 33(2) in the
Act and the only provision to be found therein
corresponded to the present section 33( 1 ).
The
objAct behind enacting s. 33 as it was before the'
amendment of 1956 was to allow continuance of
industrial proceedings pending before any authority
prescribed by the Act in a calm and peaceful
atmosphere undisturbed by any other industrial
dispute. The plain obje<Jt of the section was to
maintain the status quo as far as possible during the
pendency of any industrial dispute before a tri-
. bunal. But it seems to have been felt that s. 33,
as it stood before the amendment of 1956, was too
stringent for it completely took away the right of
the employer to make any alteration in the con·
ditions of service or to make any order of discharge
or dismissal without making any diatinction as to
whether such alteration or such an order of discharge
on dismissal was in any manner connected with the
dispute pending before an industrial authority. It
seems to have been felt therefore that the stringency
of the provision should be softened and the em ploy er should be permitted to make changes in oonditi!:ms of service etc. which were not connected with
the dispute pending before an industrial tribunal.
For the same reason it was felt that the authority
of the employer to dismiss or discharge a workman should not be
completely
taken
away
where the dismissal or discharge was dependent on
matters unconnected with the dispute pending
before any tribunal. At the same time it seems to
have been felt that some safeguards should be provided for a workman who may be discharged or
dismissed during the pendenoy of a dispute on account of some matter unconnected with the dispute.
Consequently s. 33 was redrafted in 1956 and considerably expanded. It is now in five sub-sections
1962
Strawboard
Manufacturing Co.
v.
Gob ind
Wanchoo J.
1961
StrOUJl><i ord
Milflff!W#ri•g Co.
v.
Goliod
IV an<hoo J.
624 SUPREME COURT HEPORTS [1962] SUPP.
while before 19;)6 it consisted practically of what
is now sub-s. (l).
The present scheme thereforo of s. 33 is as
follows :-Sub-section (l) refers t" matters connected with a dispute which might be pending and
forbids any alteration to the prejudice of the workmen concerned in such dispute, in the conditions
of eervice applicable to them immediately before
the commencement of the industrial proceedings
resulting from such dispute and also forbids the
employer from discharging or punishing any workman whether by dismissal or otherwise in connection with any matter connected with the dispute;
and the employer, if he wants to make any alteration i11 the conditions of service or to punish any
workman or discharge him, must get the express
permission of the authority before which the
proceeding relating to tho dispute might be pending.
Thus sub-s. (l) lays down that if an employer proposes to alter any conditions of service or proposes
to punish or discharge a workman in relation to
a matter connected with the dispute which might be
pending befor<' a tribunal the employer must put
such proposal before the tribunal and obtain itl! express permiBl!ion in writing before carrying out the
proposal wlwther it be for alteration of any conditions of service or for punishment or discharge
of a workman by dismissal or otherwise.
·
Sub-se!]tion (2) (a) on the other hand gives
power to the employer to alter any conditions of
service not connected with the dispute and this
the employer can do without approaching at all the
tribunal where tho dispute may be pending. It
further permits the employer to discharge or
punish, whether by dismissal or otherwise, any
workman where tbis may be 'on account of any
matters unconnected with the dispute pendinit
before the tribunal; but such discharge or dismissal
is subject to the proviso, which imposes certain
a s.c.R.
SUPREME COURT REPORTS
625
1962
Strawboard
conditions on it. The intention behind enacting
sub-s. (2) obviously was to free the employer from
the fetter which was put on him under s. 33 as it
was ·before the amendment in 1956 with respect to
action for matters not connected with a dispute
pending before a tribunal. So far as conditions of
service were concerned, if they were unconnected
with matters in dispute the employer was ~iven
complete freedom to change them, but so far as
discharge or dismissal of workmen w~s concerned,
though the employer was given freedom, it was
.i:ll anufacturing Co.
not complete and he could only exercise the power
of discharge or dismissal subject to the conditions
/
laid down in the proviso. Even so, these condi-,, '
tions in the proviso cannot be so interpreted, unle1>ii
of course the words are absolutely clear, as tr.f require that the employer must first obtain approval
of the tribunal where a dispute may be pending
before passing the order of discharge or dfismissal
of a workman,
for on this interpretaticfn there
will be no difference between s. 33 (1 }' (b) and
s. 33(2)(b) and the purpose of the amerndment of
1956 may be lost.
/
Then ·we come to sub-s. (3) wh~ch provides
that notwithstanding anything contained ~n sub-s. (2)
certain workmen who are called protected workmen
shall not be dealt with except with the e)i:press permission in writing of the authority before\which the
proceeding is pending. Thus the freedom which
was given to the employer under sub-s. (2) ~jth respect to conditions of service unconnected with the
dispute or with respect to discharge or punishment
of workmen on the ground of matters unconnected
with .the dispute was cut down by sub-s.(3) with
respect to a small class of workmen, even though
the action of the employer may be unconnected
'
with any matter in dispute before the tribunal. The
explanation to sub-s. (3) defines who is a protected workmen and sub-s. ( 4) makes consequential
provisions with respect to him.
v.
Gobind
Wonchoo .1,
1961
Strawloard
MtttrUjacturing Cu.
v.
Go;i1ui
Wanchoo J.
\
\
\
\ \ ' •
!i26 SUPREME COURT REPORTS [1962] SUPP.
Lastly we come to sub-s. (5) which lays down
that where an employer makos an application under
the proviso to Bub·s. (2) for approval of thu action
taken by him, the authority concerned shall without
delay hear such application and pass as expeditiously as possibl<' such order in relation thereto as it
deems fit.
Let us now turn to the words of the vroviso
in the background of what we have said above. The
proviso lays down that no workman shall be discharged or dismissed unless he has been paid wages
for one month and an application has been mad~ by
the employer to the authority before which the
p.r?ceeding is pending for approval of the action
ta.ken by the employer. It will be clear that two
kinds 1-:>f punishment are subject to the conditions of
the pr1oviso, namely, discharge or dismissal. Any
other ki.μd of punishment is not within the proviso.
Fnrther \ the proviso lays down two conditions,
namely (f,) payment of wages for one month and (ii}
making o'f an -application by the employer to the
authority lleforc which the proceeding is pending for
approval of the action taken. It is not disputed
before us th~t when the proviso lays down tho condition as t<;> payment of one month's wages, a.II
that the employer is required to do in order to carry
out that condition is to tender the wages to the
l'mployeo. 1 But if the employee chooses not to
accept the wages, he ca~not come forward and say
that there has been no payment of wages to him by
tho employer. Therefore, though s. 33 speaks of
payment of one month's wages it can only moan
that the employer has tendered the wages and that
would amount, for payment, for otherwise a work·
man could always make the section unworkable by
refusing to take the wages.
So far as the second
condition about the making of the application is
concerned, the proviso requires that the application
should be ma.de for approval of the action taken by
tho employer. It has been urged on behalf of the
.,
' ..
I
3 s.c.Ji.
SUPREMlli COURT REPORTS
627
respondent that the words "action taken" in this
part of the proviso mean the action proposed to
be taken and therefore all that the employer can do
is to make an application to the tribun11,l asking it
to approve the action proposed to be taken by it
and it is only after the approval that the employer
can proceed to dismiss or discharge the workman.
We are however of opinion that on this interpl'etation there would really be no dilference between
sub-s.(2) and sub·s. (I) of s.33 and the intention of
the legislature in making the amendment in 1956
would be rendered nugatory.
Moreover, it is
against the rules of interpretation to add words to a
provision,
when the provision, as it stands, is
capable of a reasonable meaning which will give
effect to the
intention of
the
legislature
even on the words as they stand. On the plain
meaning of the proviso, it is clear that it gives the
employer the power to discharge or dismiss the
employee before obtaining the approval of· the
tribunal concerned; but at the same time the protection afforded to the employee by the proviso has
to remain effective. It seems to us therefore that
when the proviso speaks of an application for approval of the action taken, the action taken there is
the order of actual discharge or dismissal made by
the employer and it is for the approval of this order
that the application . is to be made. This is borne
out by form 'K' under r. 60 of the Rules framed
under the Act which corresponds to form XV under
r. 31 of the U.P. Rules. Further the use of the
word "approval" in the proviso also suggests that
something has been done by the employer who
seeks approval of that from the tribunal. If the
intention was that in view of. the proviso the employer could not pass the order of dismissal or discharge without first obtaining the approval of the
tr\ bunal, we see no reason whv the words in the
proviso should not have been similar to those sub-ss.
(I) and (3), namely, that no workmen shall be discharged or dismissed without the express permission
.Strawb~rtl
Jlt111uJacturfrig Co
••
Gob ind
Wanckoo J.
SIYou·board
Al .nufatturing Co •
••
Golit1d
628
::H.:PHEME COUl~T ltEPURTS [19ti2] SUPP.
writing of the authority concerned. The change therefore in the la111mage used in the proviso to ~u b-s. 2
(b) clearly. shows in our opinion that the lngislat?re intended that the employer would have the
nght to pass an order of discharge or dismiseal
subject to two conditions, namely, (i) paym~nt of
wages for one month and (ii) ma.king of an appli·
oatic:in to the authority concerned for approval of
the action taken. The use of the word "approval"
also suggests that what has to be approved has
already taken place, though sometimes approval
ma.y also be sought of a proposed action.
But it
seems to us in the context that the approval here
is of something <lorn;, as otherwise it wonld have
been quite easy for the legislature to use the words
."for approval of the action proposed to be taken"'
in the proviso.
Further sub.s. ( 5) also suggests
when. it uses the words "approval of the action
taken" that some action has been taken and it is
that action which the employer wants to be approved by
his application. The difference between
sub-s. ( 1) and sub-s.(2) is therefore that under
sub-s. (1) the employer proposes what he intends
to do and asks for the express permission of"thc
authority concerned to do it; in sub-s. (2) the employer takes the action and merely asks for the
approval of the action taken from the authority
concerned by his application. There can therefore
be no doubt that sub-s. (2) (b) read together with
the proviso contemplates that the employer may
pass an order of dismissal or discharge before obtaining the approval of the authority concerned ancl at
the same time make an application for approval
of the action taken by him. It is however urged
on behalf of the respondent that if the employer
dismiBses or dfaeharges a workman and then applies for approval of the action taken and the
tribunal refuses to approve of the action tho workman would be left with no remedy as there is nu
I
3 S.C.R.
SUPREME COURT REPORTS
629
provisions for reinstatement ins. 33 (2). We how·
ever see no difficulty on this score. If the tribunal
does not approve of the action taken by the employer, the result would be that the action taken
by him would fall and thereupon the workman
woufd be deemed never to have been dismissed or
discharged and would remain in the service of
the employer. In such a case no specific provision
as to reinstatement is necessary and by the very
fact of the tribunal not approving the action of the
employer, the dismissal or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there
never was any dismissal or discharge by the em-
. ployer. In that sense the order of discharge or
dismissal passed by the employer does not become
final and conclusive until it is approved by the
tribunal under s. 33(2).
The next question is as to when should an
application be made. In this connection our attention was drawn to s. 33·A 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 s. 33 (2) (b)
should be so interpreted as not to whittle down the
protection provided by s. 33-A. As we read the
proviso, we are of opinion that it contemplates the
three things mentipned therein, namely, (i) dismissal or discharge, (ii) payments of wages and (iii)
making of ;m application for approval, to be simultaneous and to be part of the same transaction, so
that the e'.11.ployer when he takes action .under
s. 33 (2) hy dismissing or discharging an employee,
should immediately pay. him or offer to pay him
wages for one month and also make 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 simultaneousl;v bu~
1962
Strawboard
Manufacturing Co.
v.
Gobind
W anchoo ·J·.
St1aw•1~tl
.\/ anufacluring C1 .
..
w .. ei... J.
630 SUPREME COURT REPORTS [19G2] SUPP
can only be dom., one after the other. What we
mean is that th<' employer's conduct should Hhow
that the three things 0ont€mplatcd under the proviso, namely, (i) dismissal or discharge, (ii) payment
of the wages, and (iii) making of the application, are
parts of the same transaction. If that is done,
there will be no oocasion to frar that the employee's
right under s. 33-A would bo affected. The question whether tho application was made as part of
tho 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 caaes which have
ooen relied upon by either side.
The main ea8e
on which learned couusel for the respondents relies
is The Premier A ulomobiles f,imited ,. . Ramclw.ndra
Bhim.ayyri(').
In that case the Bombay High Court
held that thti application should be made before
the action has been taken by the employer and
that it was not correc:t to infi>r from the us" of tho
word "approval" in the proviso that. the legislature
intended that such an applicatio11 should bu made
a.fter the action had been takon. The High Court
haR pointecl out that there is 1ippara.nt conflict betwt>cn the first and last part of the proviso and the
view it took was with the object of harmonising the
two parts.• 'fhiR view has been followed by the
Gujarat High Court in Indian E:rtraction-< Prii:al.e
LimifR;J, v. A. V. Vyan, Conciliation Offic£r(') though
with some hesitation. With respect we foe] t,hat it
is not necessary to read tho words "action taken••
in tho proviso as "qual to "action proposed to be
takon", as the Bombay High Court has done and
that the apparent conflict between tho two parts
of the proviso can be harmonised, as we ha.ve indicated above, leaving it open to the employer to
dismiss or discharge the employee and at tho
same time pay him the ncecssary wages and
(ll f.LR. [1960] Born. 289.
(2) A.J.R, 1961 Guj. 22.
a s.c.R.
SUPREME COURT REPORTS
631
make an application to the authority concerned for
approval of the action taken. The c.mtrary view
has been taken by the Calcutta High Court in Metal
Press Works Limit'!,f], v. Dib (ll.R.)(') 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 notion of splitsecond 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 has 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 othe-r at Allahabad. What the appellant did
was to pass an order of dismissal on February I,
1960. On the same day he sent two applications
by post addressed to the two tribunals. The application at Meerut was received on February 3 and
the application at Allahabad on February 4, 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 thnefore in
accordance with the proviso. The view taken by
the labour court that the application must be made
before dismissing the respon<lent is not correct.
The appellant in this case had complied with the
proviso to.s. 33 (2) (b) when it diemissed the workman, paid him or offered to pay the necessary
wages and at tho same time sent the application by
post to the tribunal concerned for approval of th<)
action taken by it.
·
\IJ [1962] I. T. L.J. 75.
J96S
StrawbOard
Manufacturing Co.
v.
Gobind·
Wanchoo J,
\
\
I96Z
s1;dr;J;;;rd
M tnU}aeturing Co.
. v.
"G'obind
v,;;:;~J;
1962
March 7.
..
632 Sl)'PREl\lE COURT RE;E'ORTS [1962] SUPP.
This being the only'poin~ on whioh the labour
court had refu~ed to give approval, the appeal m~st
suc'ceed. We therefore allow the appeal, .set.aside
the order of the labour court and approve the
action taken by· 'the appellant. In the circumstances we pass na order as to costs.
{l.ppool allowed.
JOSEPH KURUVILLA •VELLUKUNNEL
v.
THE RESERVE BANK OF INDIA AND OTHERS
(With connected petition)
Banking Companies-Winding up-Enactment providing
for an order for winding up by High Court on the basis of
Reser11e
Bank's opinion-Constitutional
validity-Banking
Companies Act, 1949 (10 of 1949), ss. 2, 35, 35A, 36, 38-
-Reserve Bank of India Act, 1934 (2 of 1934), ss. 7, 8, 38Companies Act, 1956 (I of 1956), ss. 433, 450(2)-Constitution
of Inaia, Arts. U, 19(1)( f) and (g), 301, 302.
·
~
I
Sub·section (l) of s. 38 of the Banking Companies
Act, 1949, provided : '1Notwithstanding anything contained
in ss. 391, 392, 433 and 583 of the Companies Act, 1956 ....
the High Court shall order the win'ding 'up for a banking
company . ... if an application for its winding up has been
made by the Reserve Bank under s. 47 of this .section."
Under s. 38(b)(iii) of the Act .''the Reserve Ban'k may make
an application under this section for
the winding up of a
~
banking company• if in the opinion of the Reserve Bank the
. ·1
continuance of the banking company is prejudicjal to the
interests of its depositors."
· ·rn exercise of, the p9wers vested in it by the Banking
companies Act, 1949, as w'ell -as the Reserve Bank of India
Act, 1934, the Reserve Bank had been inspecting the Palai
Central Bank Ltd., periodically, and had been warning the
Bank that its business was being .conducted in a manner
detrimental to the .interest of its depositoi-s.
In June 1960,
there was ·a run on several branches of the
Bank.
The
R·eserve Bank was of the opnion that the Palai Bank was not
jn a positipn to fay its depositors in
f'lll and ~h11t lhr