# Lach man Utamchand Kripalani v. Muna Mata Subba Rao f

- **Citation:** [1964] 4 S.C.R. 403
- **Court:** Supreme Court of India
- **Decided:** 1963-08-14
- **Bench:** P. B. Gajendragadkar, K. N. WANCHoo, K. C. DAs GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lach-man-utamchand-kripalani-v-muna-mata-subba-rao-f-3158
- **Pages:** 7

## Headnote

lndustn"al Dispute-Application for approval moved before discharge-Validity of the application-Industrial Disputes Act (14 of
1947), s. 33(2)(b.)
The respondent while working as an assistant cashier of the
appellant-bank, received Rs. 4,100/- but denied having received
that amount and stated that he was paid only Rs. 4,000/-. He was
suspended and charge-sheeted for giving false statements to the
manager.
An enquiry was held. The enquiry officer found that
the charges framed against the respondent had been proved and
he recommended that he should be discharged from service of the
bank. The bank agreed to discharge him. Before passing the actual
1963
Lach man
Utamchand
Kripalani
v.
Muna Mata
Subba Rao f.
1963
August 14
1963
State Bank
of Bikaner
v.
Balai Chander
Sen
Wan<hoo J.
404
SUPREME COURT REPORTS
[1964]
order of discharge against the respondent, the bank applied under
s. 33(2)(b) of the
Industrial Disputes Act for
approval of the
action proposed to be taken against the respondent. The respondent
was hk>wever, actually discharged after this application was made.
The Labour court refuS<Od to approve the action of the bank, holding on the basis of Stratuboard Manufacturing Co's case that such
approval should have been sought after the actual discharge had
been made.
·
Held: (1) It was immaterial under s. 33(2)(b) of the Industrial Disputes Act whether the application for approval of the discharge of the workman was made before or after the actual order
of discharge.
(2) The Strawboard Manufacturing Co.'s case lays down that
the application for approval can be made after the action has been
taken and when this happens the employer is required to fulfil
the three conditions as laid down in the proviso to s. 33(2)(b),
namely, (i) the dismissal or discharge of employee (ii) payment
of wages and (iii)
the making of the application, as parts of the
same transaction.
Strawboard Manufacturing Co.
v. Govind, [1962] Supp. 3
S.C.R. 618, explained.
(3)There is nothing in principle against the employer making
an application under s. 33(2)(b) of the Act for approval of the
proposed action before the actual action is taken.
CIVIL APPELLATE JuR1so1cTioN : Civil Appeal No. 516
of 1963.
Appeal by special leave from the order dated September 20, 1962, of the Central Government Labour Court at
Dhanbad in Application No. L. C. 113 of 1962.
B. Sen, f. B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for the appellant.
fanardan Sharma, for the respondent.
August 14, 1963. The Judgment of the Court was delivered by
W ANCHOO J.-This is an appeal by special leave against
the order of the Central Government Labour Court at
Dhanbad.
The respondent was in the service of the appellant-bank's branch at Calcutta and worked as an assistant cashier. On June 17, 1961, one Shankerlal applied
for telegraphic transfer of Rs. 4,000/-
from Calcutta to
Sujangarh and handed over ·currency notes of Rs. 100/-
each to the respondent: As the respondent was counting
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4 S.C.R.
SUPREME COURT REPORTS
405
the notes, Shankerlal remembered that he had given 41
notes instead of 40 to the respondent and requested him to
return the bundle of notes for verification. The respondent however refused to return the notes saying that the
amount given to him was Rs. 4,000/- and not Rs. 4,100/-.
Shankerlal went back to his shop and verified that he
had taken 41 notes instead of 40 and had thus handed over
one note of Rs. 100/- extra to the respondent, in connection
with the telegraphic transfer. He then came back to the
bank and complained to the Manager about this. The manager ordered the chief cashier to close the cash in the
hands of the respondent and to check the amount in his
hand with the books. The chief cashier found on checking
that there was one note of Rs. 100/- extra with the respondent. The manager asked the respondent to hand over the
extra note but the respondent refused to do so saying
that it belonged to him. In explanation he said that it had
been given t

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4 S.C.R.
SUPREME COURT REPORTS
403
an immoral life and that he would no longer be "drawn into her game." Even after that letter, she wrote back denying his charges and promising to come as soon as her
health improved. I have no doubt that, at any rate from
April 2, 1955, the desertion, if any, on the part of the respondent, came to an end and from that date the appellant
was guilty of desertion.
For the aforesaid reasons, I agree with the conclusion
arrived at by the High Court. The appeal deserves to be
dismissed and I accordingly dismiss it with costs .
ORDER OF COURT
In accordance with the majority opinion, the appeal is
allowed with costs here and in the High Court.
STATE BANK OF BIKANER
v.
BALAI GRANDER SEN
(P. B. GAJENDRAGADKAR, K. N. WANCHoo AND K. C. DAs
GUPTA, JJ.)
lndustn"al Dispute-Application for approval moved before discharge-Validity of the application-Industrial Disputes Act (14 of
1947), s. 33(2)(b.)
The respondent while working as an assistant cashier of the
appellant-bank, received Rs. 4,100/- but denied having received
that amount and stated that he was paid only Rs. 4,000/-. He was
suspended and charge-sheeted for giving false statements to the
manager.
An enquiry was held. The enquiry officer found that
the charges framed against the respondent had been proved and
he recommended that he should be discharged from service of the
bank. The bank agreed to discharge him. Before passing the actual
1963
Lach man
Utamchand
Kripalani
v.
Muna Mata
Subba Rao f.
1963
August 14
1963
State Bank
of Bikaner
v.
Balai Chander
Sen
Wan<hoo J.
404
SUPREME COURT REPORTS
[1964]
order of discharge against the respondent, the bank applied under
s. 33(2)(b) of the
Industrial Disputes Act for
approval of the
action proposed to be taken against the respondent. The respondent
was hk>wever, actually discharged after this application was made.
The Labour court refuS<Od to approve the action of the bank, holding on the basis of Stratuboard Manufacturing Co's case that such
approval should have been sought after the actual discharge had
been made.
·
Held: (1) It was immaterial under s. 33(2)(b) of the Industrial Disputes Act whether the application for approval of the discharge of the workman was made before or after the actual order
of discharge.
(2) The Strawboard Manufacturing Co.'s case lays down that
the application for approval can be made after the action has been
taken and when this happens the employer is required to fulfil
the three conditions as laid down in the proviso to s. 33(2)(b),
namely, (i) the dismissal or discharge of employee (ii) payment
of wages and (iii)
the making of the application, as parts of the
same transaction.
Strawboard Manufacturing Co.
v. Govind, [1962] Supp. 3
S.C.R. 618, explained.
(3)There is nothing in principle against the employer making
an application under s. 33(2)(b) of the Act for approval of the
proposed action before the actual action is taken.
CIVIL APPELLATE JuR1so1cTioN : Civil Appeal No. 516
of 1963.
Appeal by special leave from the order dated September 20, 1962, of the Central Government Labour Court at
Dhanbad in Application No. L. C. 113 of 1962.
B. Sen, f. B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for the appellant.
fanardan Sharma, for the respondent.
August 14, 1963. The Judgment of the Court was delivered by
W ANCHOO J.-This is an appeal by special leave against
the order of the Central Government Labour Court at
Dhanbad.
The respondent was in the service of the appellant-bank's branch at Calcutta and worked as an assistant cashier. On June 17, 1961, one Shankerlal applied
for telegraphic transfer of Rs. 4,000/-
from Calcutta to
Sujangarh and handed over ·currency notes of Rs. 100/-
each to the respondent: As the respondent was counting
. -
-
•\
..
-
-
4 S.C.R.
SUPREME COURT REPORTS
405
the notes, Shankerlal remembered that he had given 41
notes instead of 40 to the respondent and requested him to
return the bundle of notes for verification. The respondent however refused to return the notes saying that the
amount given to him was Rs. 4,000/- and not Rs. 4,100/-.
Shankerlal went back to his shop and verified that he
had taken 41 notes instead of 40 and had thus handed over
one note of Rs. 100/- extra to the respondent, in connection
with the telegraphic transfer. He then came back to the
bank and complained to the Manager about this. The manager ordered the chief cashier to close the cash in the
hands of the respondent and to check the amount in his
hand with the books. The chief cashier found on checking
that there was one note of Rs. 100/- extra with the respondent. The manager asked the respondent to hand over the
extra note but the respondent refused to do so saying
that it belonged to him. In explanation he said that it had
been given to him by his mother. The manager immediately took steps to verify this statement and deputed the
chief cashier along with another person to the respondent's
house to make necessary inquiries. But at the house of the
respondent both his mother and father said that they had
not given a hundred-rupee note to the respondent.
Thereafter the respondent was told what his parents had
said and asked what he had to say further. The respondent
then came out with another story that the note was given
to him by a ten.mt of the building in which he lived. He
gave out the name of the tenant as Monda!. The manager
again sent the same persons to make enquiries from Monda! but it was found that there was no person of the name
of Monda! in that building. The bank therefore decided
to take disciplinary preceedings against the respondent and
ha.nded over a charge-sheet to him. The respondent was
also suspended from the bank's service.
Thereafter an
enquiry was conducted against the respondent. The enquiry officer came to the conclusion that the two charges
framed against the respondent had been proved and recommended after taking into consideration the past service
and conduct of the respondent that he should be discharged
from the service of the bank. Thereafter according to the
rules prevalent in the bank the respondent was given notice
1963
State Bank
of Bikaner
v.
Balai Chander
Sen
Wanchoo /.
1963
State Bank
of Bil(aner
v.
Ba/ai Chander
Sen
Wanchoo /.
406
SUPREME COURT REPORTS
[1%4]
to show cause why he should not be discharged. His explanation was taken into account and thereafter the bank
decided to discharge him. So on December 27, 1%1, the
bank applied under s. 33(2) (b) of the Industrial Disputes
Act, No. 14 of 1947, for approval of the action proposed
to be taken against the respondent. It may be added that
after this application was made, the bank's case is that it
actually dis.charged the respondent on January 15, 1%2.
The application m)lier s. 33 (2) (b) finally came up
for disposal before the labour court. That court hdd relying on a decision of this Court in Strawboard Manufacturing Co. v. Gobind(') that as the application had been
made for approval of the proposed discharge and before
the actual discharge of the respondent, it was not maintainable. Consequently it dismissed the bank's prayer for
approval of the proposed action. The present appeal by
special leave is against this order of the labour court.
The main contention of the appellant is that the labour
court was not right in holding that the application was
not maintainable on the ground that it had been made
for approval of the proposed action and not after the
action had been taken. It is urged that the decision of
this Court in Strawbo'ard Manufacturing Co.'s case(') has
been misunderstood by the labour court and this Court
did not lay down in that case that an application under s .
.33(2) (b) would not be maintainable if it is made by
an employer after he had concluded the enquiry and decided to impose a certain punishm~nt but had not actually
imposed it. We are of opinion that this contention must
prevail.
The contention in the Strawboard Manufacturing
Co.'s case(') was that the application for approval must
be made before the employer takes action and that view
was negatived. In that case what the employer had done
was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February
1, 1960 and on the same day an application was made to
the tribunal for approval of the action taken. The tribunal took the view that the application for approval had
been made after the dismissal of the employee and the
same should have been made before dismissing him. That
( 1) [1962] Supp. 3 S.C.R. 618.
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4 S.C.R.
SUPREME COURT REPORTS
407
view was held by this Court to be incorrect.
This
Court held that s. 33 (2) (b) requires the employer to
do three things contemplated in the proviso, namely
(1) the dismissal or discharge of the employee, (2) payment of wages and (3) the making of the application as
parts of the same transaction. That case, however, did
not lay down that if an employer takes the precaution of
making an application after the necessary enquiry-and
before actually taking any action-for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time
by which the employer must make the application for
approval after he had taken the action of which the approval was sought. But there is nothing in s. 33 (2) (b)
which requires that an application for approval can only
be made after the action has been taken. We see nothing
in principle against the employer making an application
under s. 33 (2) (b) for approval of the proposed action
before the actual action is taken. Such a course on the
part of the employer would, if anything, be more
favourable to the employee and would not in our opinion be against the provisions contained in s. 33 (2)
(b ). We are therefore of opinion that the labour court
was wrong in holding that an application made by an
employer under s. 33 (2) (b) for approval of the action he
proposes to take is not entertainable and that such an
application must necessarily be made after the action of
which approval is sought is taken. All that the Strawboard
Manufacturing Co.'s case(') lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens
the three conditions in the proviso to s. 33 (2) (b) must
be shown to be parts of the same transaction. But if an
employer chooses to make an application under s. 33 (2)
(b) for approval of the action he proposes to take and
then takes the action we find nothing in s. 33 (2) (b)
which would make such an application not maintainable.
Such an application in our opinion would not be contrary
to the provisions of s. 33 (2) (b) read with the proviso
thereof and would be maintainable. The view of the labour court therefore that the application by the appellant
(1) [1962] Supp. 3 S.C.R. 618.
1963
State Bank
of Bikaner
v.
Balai Chander
Sen
Wanchoo /.
1963
State Bank
of Bikaner
v.
Balai Chander
\!en
llanchoo /.
408
SUPREME COURT REPORTS
[1%4]
in the present case was not maintainable must fail.
This brings us to the question whether approval should
be granted to the action proposed to be taken by the
appellant-bank.
It appears that the respondent could
not appear before the labour court on the date on which
it decided the matter; on the ground that he was ill. He
had submitted a medical certificate in that connection. The
labour court however decided to proceed with the matter and dismissed the application on the ground that it
was not maintainable.
Learned counsel for the respon~
dent prays that in
the
circumstances
the matter
should be remanded to the labour court to enable the
respondent to appear. We find however that the respondent had filed a written statement in reply to the bank's
application in which he controverted the facts on which .
he was ordered to be discharged. Considering that the
matter has been pending since 1%1 we do not think that
this is a case where a remand is called for. The appellant
relied on the enquiry proceedings, copies of which were
filed with the application ; and all that the tribunal
has to see when dealing with an application under s. 33(2)
(b) is whether the employer had conducted the enquiry
properly and whether the action taken or proposed to be
taken was bona fide and not due to victimisation or unfair labour practice. We' have been taken through the enquiry papers and we are of opinion that there is nothing
in them to show that the enquiry was not properly
conducted. Nor is there anything to show that the respondent was victimised or the proposed action is the
result of any unfair labour practice.
It is true that
the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held
in utter disregard of the rules of natural justice and also
that he had been victimised. But besides making these
allegations the written statement does not show in what
manner the enquiry was not fair and proper and why the
respondent was victimised.
We are of opinion that
the enquiry held in this case was fair and proper and in
accordance with the principles of natural justice and the
respondent had full opportunity to d~fend himself. we·.
are also satisfied that there is no question of victimisa-
. tion or unfair labour practice. Therefore the approval
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4 S.C.R.
SUPREME COURT REPORTS
409
sought for must be granted.
We therefore allow the appeal, set aside the order of
labour court and grant the application of the appellantbank dated December 27, 1961 and approve the proposed
action. In the circumstances we pass no order as to costs.
Appeal allowed.
MAJOR S. S. KHANNA
ti.
BRIG. F.J. DILLON
(A.K. SARKAR, M. HIDAYATULLAH AND J.C. SHAH, JJ.)
Civil Pracedure-Revisional jurisdiction
of High
CourtMeaning of "case" in s • . 115 of the Code of Civil Procedure--
Separate trial of issues of law and issues of fact-Code of Civil
Procedure, 1908 (Act 5 of 1908), s. 115, O. 14, r. 2.
The appellant and the respondent entered into a partnership
to do business as Contruction Engineers but in February 1956 they
agreed to dissolve it.
It was agreed that the respondent was to
take over all the assets and liabilities of the partnership and keep
the appellant indemnified from all liability.
Later on, a suit was
filed by the appellant for dissolution of partnership and rendition
of accounts.
That suit ended in a compromise which provided
that all realisations of the old partnership would be converted into
cash and placed in joint account in the name of the two partners
before being paid towards the liabilities of the partnership.
The respondent filed two suits against the appellant for recovery of certain amounts on the allegation that the appellant had
taken that amount as loan. The defence of the appellant was that
as the money was still in the joint flame of the two partners and
he had taken the money from the loint account, suits between
the two partners were not maintainable.
In trying preliminary issues raised in the suits the trial Judge
held that the suits were not maintainable, but instead of dismissing
the suits there and then, he set them down for a future date.
Against the :findings of the trial Judge, revision petitions were
filed in the High Court under s. 115 of the Code of Civil PmOO<lure. The High Court set aside the orders passed by the Trial
Judge and held that the suits could not be held as not maintainable. The appellant appealed by special leave.
The appellant challenged the order of the High Court on
the ground that the order of the trial Judge did not amount to
2 7-2 S. C. lnd;a/64
1963
State Bank
of Bikaner
v.
Balai Chander
Sen
1963
August 14