# MESSRS. KAMARHATTY CO. LTD v. SHRI USHNATH PAKRASHI

- **Citation:** [1960] 1 S.C.R. 473
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 310of1954
- **Bench:** B. P. Sinha, P. B. Gajendr.Agadk.Ar, K. N. w .ANCHOO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/messrs-kamarhatty-co-ltd-v-shri-ushnath-pakrashi-1780
- **Pages:** 4

## Headnote

473
Industrial Dispute-Power of Tribunal-Order of re-instatement,
when can be made-Industrial Disputes Act (I4 of I947), ss. 33A, IO.
The respondent made an application under s. 33A of the
Industrial Disputes Act, 1947, which, inter alia. stated that there
was no reason for retrenchment on account of the closure of a
ration shop, and that at any rate he was longer in s.ervice than
others who had been retained, and, therefore, the principle of
" last come, first go " had been violated. The Tribunal dismissed the application whereupon the respondent appealed to the
Appellate Tribunal which allowed the appeal and refused permission to retrench.
The Appellant Company was granted special leave to appeal
only on the limited question as to whether an order of re-instatem~nt can be made on an application under s. 33A of the Act.
Held, that the complaint under s. 33A of the Industrial
Disputes Act, 1947, is as good as a reference under s. IO of the
Act and the Tribunal has all the powers to deal with it as it
would have in dealing with a reference under s. 10 of the Act
and it is open to the Tribunal in proper case to order reinstatement.
Cxvn. APPELL.ATE JURISDICTION: Civil Appeal No.
310of1954.
Appeal by special leave from the judgment and
order dated March 22, 1956, of the Labour Appellate Tribunal of India, Calcutta. in Appeal No. Cal.
183 of 1955.
N. 0. Chatterjee, S. N. Mukherjee and B. N. Ghosh,
for the appellant.
Sukumar Ghosh, for the respondent.
1959. May 21. The Judgment of the Court wa.1
delivered by
I959
May u.
WANCHOO J.-This appeal by special leave agai11st
wanehoo J.
the decision of the Labour Appellate Tribunal of India
is limited to the question whether an order of reinstatement can be made on an application under s. 33-A of
6o
474
SUPREME COURT REPORTS [1960(1)]
z959
the Industrial Disputes Act, 1947 (hereinafter called the
Kamarhatty
Act). The brief facts necessary for the decision of this
co., Ltd.
question are these. The appellant is a Jut!J Mill. There
v.
was a dispute pending before an Industrial Tribunal
UshnaJhPakrashi between a number of jute mills in West Bengal and
their employees, and the appellant was ·a party to that
Wanchoo J.
dispute. During the pendency of that dispute, the
appellant laid-off the respondent who was an employee
in the ration shop maintained by the appellant from
July 19, 1954, as rationing of food-stuff came to an
end from July IO, 1954. The reason for the lay-off
was _that the ration shop was closed following the end
of rationing. This resulted in the staff in that shop
becoming surplus.
Consequently,· nine persons were
selected for retrenchment on the principle of "last
come first go", and the respondent was one of them.
The appellant also applied under s. 33 of the Act to
the Industrial Tribunal for permission to retrench the
respondent along with others.
Shortly before t_he
application under s. 33, the respondent had applied
under s. 33-A of the Act and his case was that there
was no reason to make any retrenchment on account
of the closure of the ration shop and that he was at
any rate longer in service than others who had been
retained and therefore the principle of" last come first
go " had not been followed. It was also said that the
respondent bad been laid-off as he was an active
worker of the union and as such was not in the good
books of the appellant. It was, therefore, prayed that
the respondent should be allowed full wages and amenities since the so-called lay-off, which was nothing more
nor less than retrenchment and that he should be
reinstated.
The Industrial Tribunal came to the conclusion that
the lay-off was justified because of the closure of the
ration shop' and gave permission to the appellant to
retrench the respondent on the principle of" last come
first go". The respondent appealed to the Labour
Appellate Tribunal. He did not urge there that there
was no ne.cessity for retrenchment at all. What was
urged there was that the Industrial Tribunal was
wrong in ho

## Text

'.
S.C.R.
SUPREME COURT REPORTS
MESSRS. KAMARHATTY CO. LTD.
v.
SHRI USHNATH PAKRASHI
(B. P. SINHA, P. B. GAJENDR.AGADK.AR and
K. N. w .ANCHOO, JJ.)
473
Industrial Dispute-Power of Tribunal-Order of re-instatement,
when can be made-Industrial Disputes Act (I4 of I947), ss. 33A, IO.
The respondent made an application under s. 33A of the
Industrial Disputes Act, 1947, which, inter alia. stated that there
was no reason for retrenchment on account of the closure of a
ration shop, and that at any rate he was longer in s.ervice than
others who had been retained, and, therefore, the principle of
" last come, first go " had been violated. The Tribunal dismissed the application whereupon the respondent appealed to the
Appellate Tribunal which allowed the appeal and refused permission to retrench.
The Appellant Company was granted special leave to appeal
only on the limited question as to whether an order of re-instatem~nt can be made on an application under s. 33A of the Act.
Held, that the complaint under s. 33A of the Industrial
Disputes Act, 1947, is as good as a reference under s. IO of the
Act and the Tribunal has all the powers to deal with it as it
would have in dealing with a reference under s. 10 of the Act
and it is open to the Tribunal in proper case to order reinstatement.
Cxvn. APPELL.ATE JURISDICTION: Civil Appeal No.
310of1954.
Appeal by special leave from the judgment and
order dated March 22, 1956, of the Labour Appellate Tribunal of India, Calcutta. in Appeal No. Cal.
183 of 1955.
N. 0. Chatterjee, S. N. Mukherjee and B. N. Ghosh,
for the appellant.
Sukumar Ghosh, for the respondent.
1959. May 21. The Judgment of the Court wa.1
delivered by
I959
May u.
WANCHOO J.-This appeal by special leave agai11st
wanehoo J.
the decision of the Labour Appellate Tribunal of India
is limited to the question whether an order of reinstatement can be made on an application under s. 33-A of
6o
474
SUPREME COURT REPORTS [1960(1)]
z959
the Industrial Disputes Act, 1947 (hereinafter called the
Kamarhatty
Act). The brief facts necessary for the decision of this
co., Ltd.
question are these. The appellant is a Jut!J Mill. There
v.
was a dispute pending before an Industrial Tribunal
UshnaJhPakrashi between a number of jute mills in West Bengal and
their employees, and the appellant was ·a party to that
Wanchoo J.
dispute. During the pendency of that dispute, the
appellant laid-off the respondent who was an employee
in the ration shop maintained by the appellant from
July 19, 1954, as rationing of food-stuff came to an
end from July IO, 1954. The reason for the lay-off
was _that the ration shop was closed following the end
of rationing. This resulted in the staff in that shop
becoming surplus.
Consequently,· nine persons were
selected for retrenchment on the principle of "last
come first go", and the respondent was one of them.
The appellant also applied under s. 33 of the Act to
the Industrial Tribunal for permission to retrench the
respondent along with others.
Shortly before t_he
application under s. 33, the respondent had applied
under s. 33-A of the Act and his case was that there
was no reason to make any retrenchment on account
of the closure of the ration shop and that he was at
any rate longer in service than others who had been
retained and therefore the principle of" last come first
go " had not been followed. It was also said that the
respondent bad been laid-off as he was an active
worker of the union and as such was not in the good
books of the appellant. It was, therefore, prayed that
the respondent should be allowed full wages and amenities since the so-called lay-off, which was nothing more
nor less than retrenchment and that he should be
reinstated.
The Industrial Tribunal came to the conclusion that
the lay-off was justified because of the closure of the
ration shop' and gave permission to the appellant to
retrench the respondent on the principle of" last come
first go". The respondent appealed to the Labour
Appellate Tribunal. He did not urge there that there
was no ne.cessity for retrenchment at all. What was
urged there was that the Industrial Tribunal was
wrong in holding that the principle of" last come first
S.C.R.
SUPREME COURT REPORTS
475
go" had been followed in this case. The Appellate
z959
Tribunal came to the conclusion that the respondent
had been in service much longer than others who had
Kama,hatly
b
.
l
f' l
Co.,Lld.
een retained and therefore the prmcip e o " ast come
v.
first go" had been violated. In consequence, the usl111ath Pakraslli
appeal was allowed and the permission to retrench the
respondent was refused. The Appellate Tribunal also
Wanchoof.
ordered that the respondent should be reinstated in
service without any break in the continuity of service
and the order of the appellant in laying him off and
discharging him in effect from July 19, 1954 was set
ai:.ide. Thereupon the appellant came to this Court and
was granted special leave on the limited question set
out above.
In our opinion, the answer to the limited question
on which the special leave has heen grantBd can only
be one in view of the language of 8. 33.A. That section
lays down that. "where an employer contravenes tho
provisions of s. 33 during the pendency of proceedings
before a tribunal, any employee aggrieved by such
contravention, may make a complaint in writing to the
tribunal and on receipt of such complaint the tribunal
shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance
with the provisions of the A<:t and sl111ll submit its
awar<l to the appropriate government and the provisions of this Act shall apply accordingly." It is thus
clear that a complaint under s. 33-A of the Act is as
good as a reference under s. 10 of the Act and the
tribunal has all the powers to deal with it as it. would
have in dealing with a reference under s. 10. It follows,
therefore, that the tribunal has the power to make such
order as to relief as may be appropri11t,e in the case
and as it can make if a dispute is rcforrcd to it relating
to the dismissa.l or discharge of a workman. In such a
dispute it is open to the tribunal in prnper cases to
order reinstatement.
Therefore a complaint under
s. 33-A being in the nature of a dispute referred to a
tribunal under s. 10 of the Act, it is certainly within
its power to order reinstatement on such complaint, if
the complaint is that the employee has been dismissed
or discharged in breach of s. 33.
I959
Kamarhatty
Co., Ltd.
••
U shnath Pakrashi
Wanehoo ].
I959
Mayaz
476
SUPREME COURT REPORTS [1960(1)]
Learned counsel for the appellant wanted to argue
that this was not a case of discharge or dismissal but
of lay-off. We did not permit him to raise this argument because the special leave was limited only to the
question set out above. The answer to that question
has already been indicated above and on that answer
the appeal must fail.
We therefore
dismiss the
appeal, but in the circumstances we make no order as
to costs of this Court.
Appeal dismissed.
THE MANAGEMENT OF HOTEL IMPERIAL,
NEW DELHI & OTHERS
v.
HOTEL WORKERS' UNION
(B. P. SINHA, P. B. GA.JENDRA.GADKA.B and
K. N. w A.NOHOO, JJ.)
Industrial Dispute-Employer seeking permission to dismiss
workmen as result of enquiry-Suspension of workmen pending
decision of such application by Tribunal-Validity-Workmen, if
entitled to wages during period of suspension-Grant of interim
relief-Power of Supreme Court-Industrial Disputes Act, r947 (I'f'
of r947), ss. I0(4), 33.
The appellants. who were the managements of the three
hotels, decided to dismiss some of their workmen who were found
guilty of misconduct as a result of enquiries held by them and
suspended them without pay pending the receipt of the permission of the Industrial Tribunal under s. 33 of the Industrial
Disputes Act, 1947. The workmen applied to the Industrial
Tribunal for the grant of interim relief pending disposal of the
applications and the Tribunal granted the relief prayed for
amounting to full wages and .a sum of Rs. 25 per head per month
in lieu of food.
The managements appealed against such grant,
but the Labour Appellate Tribunal dismissed the appeals. The
appellants came up to this court by special leave. The two
questions for decision in the appeals were, (r) whether any wages
were at all payable to the suspended workmen pending permission
being sought under s. 33 to dismiss them and the decision of the
applications under s. 33 of the Act, and, (2) whether the Industrial
Tribunal was competent to grant interim relief except by an
interim award that was published.
H e!d, that it was well settled that under the ordinary law of
master and servant the power to suspend the servant without